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knowledge of its existence or fault on his part, the
plaintiff, in the ordinary course of his business, having
occasion to go upon the platform, fell through this new
hole a distance of thirty-five feet, and received serious
bodily injury. It appears in the exceptions that the
written contract with the plaintiff was in the posses-
sion of the defendants, but it was not produced by
them, and its full details as given by the plaintiff in his
testimony should be regarded as proved. The only
modification suggested in defense comes from the tes-
timony of the defendants' superintendent to the effect
that "plaintiff in his work was under the direction of
the superintendent." There was evidence that the lad-regarded as assuming any risks arising from the negli
der-hole was made by direction of the defendants'
"superintendent.'

view of the decisions, some of them irreconcilably con-
flicting, touching the liability imposed by law upon
masters for the negligent acts of servants in their em-
ploy, and what constitutes the relation of master and
servant in such cases. That has been done not long
since in Eaton v. E. & N. A. R. Co., 59 Me. 520; aud
McCarthy v. Second Parish in Portland, 71 id. 318.
We think it clear that upon the undisputed evidence
presented in these exceptions Mayhew was a contrac-
tor with the defendants for the performance of this
job, and not a servant employed by them, whose ser-
vices they could dispense with at will, or who could be

gence of the company's servant or superintendent. It
was directly held in Eaton v. E. & N. A. R. Co., supra,
that the fact that the work was to be done "under the
direction of the chief engineer of said company, as re-
quired by the contract," did not convert the contrac-
tors into servants of the railway company, and that
fact is all that can be inferred from the testimony of
the defendants' superintendent in the present case.
Defendants' counsel lay much stress upon the fact
that it was part of the regular mining operations that
Mayhew was carrying on. But where there is a bind-
ing contract for the performance of a specific job by
the contractor and those whom he may employ for a
price agreed, it matters not, in determining the ques-
tion whether he who has undertaken such job is to be
regarded as the mere servant of the other party, what
kind of work was the subject of the contract, or
whether it was or was not a portion of the regular work
which the party contracting for it is carrying on, or
some piece of work incidentally connected with it as
necessary or convenient. Such an agreement bears
little resemblance to a mere arrangement for the com-

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1. The defendants found their claim that the plaint-pensation of personal services by the piece instead of iff was simply a servant of the company, and so a co- by the day. We think the instruction given was corservant with the superintendent and the man who cut rect upon the uncontradicted testimony, and the rethe hole in the platform under his direction, upon the quested instructions being inconsistent with it, were idea that the work he was doing (blasting to disclose rightly refused. the vein) was part of the regular work of the mine, and was done under the direction of the superintendent, and hence they argue that the relation between him and the company was that of master and servant merely, and not that of parties bound to each other as mutual contractors for any purpose except for the rendering and compensation of personal services.

A glance at the abbreviated statement of the terms and conditions of the contract above given will show the fallacy of the claim. Here was a job of a certain number of feet of rock and ore to be broken down at a stipulated price, by one who was to furnish and pay his own assistants and find the materials necessary for the performance of the job. The defendants let this piece of work to be performed by a contractor, instead of employing men to perform it. Had this been a suit brought by one of Mayhew's employees to cover for an injury caused by the negligence of one of the men who was operating the steam drill which they were to furnish Mayhew under the contract, it would have quickened the perceptions of the defendants as to what constituted a contract with Mayhew, and they would have confidently claimed exemption from liability upon the ground that the man who was running the steam drill, though paid by them, was not their servant, but pro hac vice the servant of the contractor, and they would have found in Rourke v. White Moss Colliery Co., 2 C. P. Div. 205, an authority in point to support their claim, where the subject and terms of the contract were singularly like those in this case in their general character. Similar in principle are Murray v. Currie, 6 C. P. 24; Reedie v. Railway Co., 4 Ex. 244; Pearson v. Cox, 2 C. P. Div. 369.

This case does not seem to call for an extended re

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Hereupon the defendants requested various instructions, for the details of which reference may be had to the bill of exceptions, all looking to a finding by the jury that the plaintiff, doing his work under the direction of the superintendent, and being engaged in the general work of carrying on mining in the company's mine, although he was paid by the foot for the work done by him and the men in his employ, was not a coutractor with but a servant of the defendants, and so not entitled to recover for an injury caused by the negligence of a fellow-servant. The presiding judge refused the several requests, and said to the jury: "I instruct you as matter of law that if you find the contract as the plaintiff claims it, the plaintiff was not a servant of the defendant corporation within the meaning of the law, and not a co-servant with the day laborers and servants of the corporation." The defendants reasonably excepted to this instruction and to the refusal of their requests. The exceptions are not tenable.

2. But elaborate discussion of the relations of the parties to each other in this particular seems the more needless, because we are of the opinion that the case falls into that class which requires an employer at his peril to keep his premises and all ways of access thereto free from unknown dangers not naturally or commonly incident to the work to be carried on there, and makes him liable to his servants and employees, as well as to all others who are there by invitation, for the existence of secret pit-falls which he negligently permits or causes to be made when damages thereby aocrue without the fault of the injured party.

In Thompson on Negligence, vol. 2, p. 973, we find the law upon this topic briefly stated as follows: "If the master has failed in his duty in this respect, and the servant has in consequence of such failure been inre-jured without fault on his part, and without having voluntarily assumed the risk of the consequences of the master's negligence, with full knowledge or competent means of knowledge of the danger, he may recover damages of the master."

Numerous cases are cited in support of the doctrine, thus laid down, and among them Buzzell v. Laconia Man. Co., 48 Me. 113; Shanny v. Androscoggin Mills Co., 66 id. 420, in both which, and in cases there cited, it is fully recognized affirmed. In the full and valuable text book from which the above quotation is made it is well said also (p. 974) that the servant has a remedy against the master when the injury is in con. sequence of the direct negligence of the master or his vice principal in his personal conduct of the work; and (p. 975) when the carelessness of the master exposes the servant to sudden and unusual danger.

These rules are thus illustrated: "The master may not with impunity expose a servant to dangers not con

templated in his original contract of employment and not connected therewith. Thus the proprietors of an establishment in one room of which about twenty girls were employed, deemed it expedient to remove an engine from one room of the factory to another. Being pressed with business, they made the change in the night-time; and in the morning the machine was left in such a position that the main shaft projected through the wall into this room from four to six feet. In this state the machinery was put in motion. One of the girls in passing near the revolving shaft about her work was caught by it and injured." The employer was beld liable. Fairbank v. Haentzche, 73 Ill. 237.

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The ruling of the presiding judge was not only correct, but the defendants' contention upon the point to which it related was immaterial, and could not affect the result. Nor could it aid the defendants to avoid their liability in such a case if it appeared affirmatively that the neglect to notify the plaintiff or to guard or light the pit-fall, which was made by the direction of their superintendent on their premises, was the neglect of subordinates, who did the work. The hidden and extraordinary dauger which caused the plaintiff's hurt bears little analogy to the obvious perils in Lawler Indroscoggin R. Co., 62 Me. 463, and Osborne v. Knox & Lincoln R. Co., 68 id. 49, which are cited by the vigilant counsel to support their contention that "the improper construction of the ladder-hole (if it was improper), the want of light or railing, or the want of warning, was the negligence of the superintendent or Stanley, and if it was the negligence of the superintendent the same rule applies."

V.

Created as the danger here was, by the direction of one who quoad hoc stood in the place and stead of the defendants themselves, their reasonable duty was to protect the plaintiff against suffering from it unawares, whether he was a servant or.contractor.

ter of the negligence is not available. It was negligence which exposed the plaintiff to a peril, the risk of which he never assumed. It created a danger in a place where a servant had a right to expect safety. It was the negligence of those for whose fault in this particular the defendants were responsible. That it was committed in furtherance of the defendants' mining operations can no more aid the defense here than it did in cases of like negligence in Fairbank v. Haentzche and Berea Stone Co. v. Kraft, supra.

Nor is it of any importance whether the negligence exhibits itself in the form of a chronic remissness, superficial oversight, or positive careless act which introduces unawares a new and serious danger upon premises previously safe. We do not think the scanty protection for servants and employees which they enjoy under the rule should be abridged by mere subtlety of reasoning and verbal refinements of logic.

4. Nor do the instructions given respecting the allowance of damages for the future furnish the defendants any good cause of complaint. As to damages, the defendants' first request for instructions, besides being fully covered in the charge, was emphatically given in terms; and the other requests, in one form or another, all called for a measure of proof which is not appropriate in the trial of civil causes to the jury, and were for this cause rightly refused.

5. The defendants complain because they were not allowed to ask Stanley (who made this hole in the platform, under the direction of the defendants' superintendent, and who testified that he was a miner of twenty-five years' experience, that he had worked in several different mines, and had constructed other ladder-holes, and noticed many more) the following questions:

"Have you ever known ladder-holes at a lower level to be railed or fenced round?"

"As a miner, is it feasible in your opinion to use a ladder-hole with a railing round it?"

"Have you ever seen a ladder-bole in a mine below the surface, with a railing round it?"

Also th they were not allowed to ask one Dugan (who gave similar testimony as to the length of his experience as a miner, and that he had worked in many different mines and observed the ladder-holes in them) this question:

"From your experience as a miner, whether or not this ladder-hole, as Mr. Stanley left it, was constructed in the usual and ordinary manner of ladder-holes in mines, and in a proper way?"

3. Defendants' counsel argue that this case "is not within the principle of the cases holding the master respousible to his servant for the neglect of another servant charged with the repairs or keeping in order of buildings or machinery," because it is not a case of a platform made of defective materials or badly put together. They rightly concede that "if the defendants' servant,charged with the duty of keeping the platform in good repair, had neglected that duty or insufficiently performed it, and the accident had resulted from that neglect, the company would have been liable." But they seem to derive consolation and encouragement from the undisputed fact that "the platform was strong, properly built of good materials and in good repair," until this hole was made in it by direc tion of defendants' superintendent. They contend that the negligence which caused the plaintiff's injury was in another mining operation-in the carrying on of the work of the mine. We think that the distinc-guarding or lighting them, and without notice to contion which the counsel seek to draw as to the charac- tractors or workmen, it would have no tendency to

Defendants' counsel claim that the favorable answers to these questions which they had a right to expect would have tended to show that there was no want of " average ordinary care" on the part of the defendants. We think the questions were properly excluded. The nature of the act in which the defendauts negligence was asserted to consist, with all the circumstances of time and place, whether of commission or omission, and its connection with the plaintiff's injury, presented a case as to which the jury were as well qualified to judge as any expert could be. It was not a case where the opinion of experts could be necessary or useful. See for analogous instances Cannell v. Insurance Co., 59 Me. 582, 591; State v. Watson, 65 id. 76, 77, and cases there cited. See also Lord Mansfield's opinion in Carter v. Boehm, 3 Burr. 1905, and note to S. C. Smith's Lead. Cas. (6th Am. ed.) vol. 1, part 2, page 769. If the defendants had proved that in every mining establishment that has existed since the days of Tubal-Cain, it has been the practice to cut ladder-holes in their platforms, situated as this was, while in daily use for mining operations, without

show that the act was consistent with ordinary prudence, or a due regard for the safety of those who were using their premises by their invitation. The gross carelessness of the act appears conclusively upon its recital. Defendants' counsel argue that "if it should appear that they rarely had railings, then it tends to show no want of ordinary care in that respect," that "if one conforms to custom he is so far exercising average ordinary care.' The argument proceeds upon an erroneous idea of what constitutes ordinary care. "Custom" and "average" have no proper place in its definition.

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It would be no excuse for a want of ordinary care that carelessness was universal about the matter involved, or at the place of the accident, or in the business generally. Ordinary care is the care which persons of ordinary prudence-not careless personswould take under all the circumstances. See definition approved in Topsham v. Lisbon, 65 Me. 455.

..

• Keasonable care is perhaps as good a term, and conveys as correct an idea of the care required." It was held not sufficient to relieve the defendant from the imputation of negligence to show that the elevator way 66 was constructed in the manner usual in the defendants' business." Indermauer v. Dames (in the Exchequer Chamber), 2 L. R., C. P. 311.

The remark in Low v. G. T. Ry. Co., 72 Me. 320, that "in fitting up a place for business purposes one is at liberty to consult his own convenience and profit, but not without a reasonable regard for the safety of those whom his operations bring upon his premises upon lawful business errands; in particular, every thing which may operate as a trap or pit-fall * * * is to be avoided if reasonable care will accomplish security to life and limb in that respect," is applicable here.

The tendency of part of the questions to raise collateral issues is obvious.

The exclusion of testimony of that description in the discretion of the judge is no ground for exceptions. Exceptions to the exclusion of testimony, having a similar bearing and tendency, were overruled in Lewis v. Smith, 107 Mass. Hill Manufacturing Co. v. Providence and New York Steamship Co., 125 id. 292. One substantial ground for excluding evidence of collateral facts is that it is seldom that such identity in all essentials is found that a legitimate interference respecting the one case can be drawn from the other, and a host of collateral issues are brought in to distract the attention of the jury from the real point. The fear of this has sometimes perhaps produced decisions excluding evidence which might throw light upon the issue; but the present case well illustrates the absurdity that would attend an indiscriminate admission of it. It is not probable that the defendants could show a single instance, where while a mine was in active operation a ladder-hole so dangerously located as this, was cut and left without railing or light, or notice to the workmen; and the naked fact (whatever it may have been) as to the existence of railings about such holes in other mines could not have even the semblance of a bearing upon the contention here without proof that they were cut under like circumstances.

Here there was no pretense of any notice to the plaintiff of the existence of the chasm into which he fell.

There is no motion to set aside the verdict as against evidence in any particular, nor any complaint that the damages are excessive.

We find no error in the conduct of the trial, or in the instructions to the jury, which requires correction in order that justice may be done.

Exceptions overruled. Peters, C. J., Walton, Danforth and Libbey, JJ., concurred.

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BRETT, M. R. This is an action to recover the price of certain horses sold by the plaintiff to the defendant, and the defendant has pleaded that at the time of the sale he was under the age of twenty-one years. The question raised is important, depending as it does upon a rule of evidence which may have to be considered in other cases. The evidence which was admitted at the trial was a declaration in an affidavit (and therefore a solemn declaration) by the deceased father of the defendent giving whas is alleged to be the date of the defendant's birth. No doubt, if it is admissible, it is strong evidence of the true date of the birth; but the question is, whether in such an action, as to such question, and on such an issue as the present, it is admissible. It is unimportant what the family of the defendant may be, or whose son he is, or whether he is a legitimate or an illegitimate son, or whether he is an elder or a younger son; all these questions are immaterial, for no question of family is raised in the case. The problem to be considered is whether this evidence, with regard to the question here at issue, cau be received against the plaintiff. It certainly cannot be received unless there is some rule which makes it evidence as against all the world. This is clearly hearsay evidence, and according to the general rule, such evidence is not admissible; therefore if it is to be made admissible, it must be brought within some recognized exception. The question cannot be decided on principle alone, but we must look at the decisions in order to ascertain whether evidence such as this in a case such as this has ever been admitted as coming within any of the exceptions to the general rule. There might be much to be said on both sides if it were sought now for the first time to establish the exception; but it is no part of the province of the court to consider whether the original rule is good or bad, nor to enunciate the principle of the exceptions; we have only to see what the exceptions are.

In Sturla v. Freccia, Lord Blackburn enumerates them in the following terms: "It is not disputed that the general rule of English law is that hearsay evidence is not receivable; one reason probably is the want of the safeguard of cross-examination. However undoubtedly the law is, that as a general rule, say evidence is not admissible. But to that a great many exceptions have been introduced. I do not say that if we were but beginning to make the law, we should be able to say exactly why so much should be admitted and no more; probably it would be difficult to say that in all cases; but the exceptions have been established and exist, and we have to see whether this case comes within any one of those. Now, my lords, the first and one of the most important exceptions is briefly ex

pressed in a dictum in Higham v. Ridgway, 10 East, 109, that documents, on the face of them appearing to be against the interest of a deceased person who stated the matter, are evidence. I need not enter into the qualifications of that further than to point out that in no point of view can this Giunta di Marina who made this statement (and who presumably are all dead by this time) be said to have been making statements against their own pecuniary interests. Then, my lords, there is a second class of cases, of which Price v. Lord Torrington, 1 Salk. 285; 2 Ld. Raym. 873, may be mentioned as being the earliest, establishing that where a deceased person in the course of his duty makes a contemporaneous entry of an act which he has done, and returns that in the course of his business, then after his death it would be received as evidence. That class of cases is also well established. There again I do not go into the qualifications, or express any opinion upon the different matters introduced, further than to point out that in no sense can it be said that the Giunta di Marina was making any statement in the course of business contemporaneous with the fact, and it is impossible to say that it falls within that principle. Then my lords comes another large class of cases, where from the nature of the thing, evidence of reputation from deceased persons is admissible. Where it is a publio right, or a quasi public right, evidence of reputation is admissible if you prove that the deceased person was of the class who would know it, and had stated it. Upon that again I merely say that the question we are now inquiring into, viz., the history of a private individual-is not a matter in which, in any sense, reputation generally can be received. Then my lords there is another class of cases which comes nearer to it. It has been established for a long while that in questions of pedigree-I suppose upon the ground that they were matters relating to a time long past, and that it was really necessary to relax the strict rules of evidence there for the purpose of doing justice-but for whatever reason the statements of deceased members of the family, made ante litem motam, before there was any thing to throw doubt upon them, are evidence to prove pedigree. And such statements by deceased members of the family may be proved, not only by showing that they actually made the statements, but by showing that they acted upon them, or assented to them, or did any thing that amounted to showing that they recognized them." 43 L. T. Rep. (N. S.) 213, 214; 5 App. Cas. [640, 641. Lord Blackburu there intended to give an exhaustive definition of the exceptious to the rule against the admission of hearsay evidence, and in doing so he distinctly states that "in questions of pedigree" statements of deceased members of the family "are evidence to prove pedigree." If this be correct, and if what I have stated (that no question as to family is at issue in the present case) is right, it is impossible to say that this evidence

was given on a question of pedigree to prove pedigree, APPEAL from judgment in respondent's favor. The

opinion states the case.

Leopold Leo and Charles K. Lexow, for appellants.
Benno Loewy, for respondent.

and if it was not does not come within the excep-
tion. A strong opinion was expressed by Patteson,
J., in the case of Figg v. Wedderburne, 11 L. J. 45, Q.
B., that in a case like the present, such evidence as
this cannot be admitted, and the same view was taken
by Pollock, C. B., in Plant v. Taylor, where he said:
"In an action for goods sold and delivered, declara-
tions of a deceased parent are not admissible to prove
the defendant is an infant. It is different where the
question is one of pedigree." 7 H. & N. 227. I
am of opinion that the evidence which the defendant
seeks to give in the present case does not come within
any of the recognized exceptions to the rule, and
therefore is inadmissible; and if this be so, it follows
that the order of the Divisional Court directing a new
trial was right. I have listened with great interest,
and satisfaction to the able argument of Mr. Willis,

DANIELS, J. The controversy in the action related to the right to moneys, payable by the plaintiff upon the decease of Louis Boniface, who was a member in good standing of the Polar Star Mutual Benefit Association. These moneys were claimed by the respondent as his widow, and by the appellants who were the children of his first lawful wife, with whom he had intermarried in Hamburg prior to his emigration to this country. That marriage was solemnized in June,1842. The decoased emigrated to New York in August, 1853, and there he formally intermarried with the respondent on the 26th day of February, 1860. His wife in Hamburg died in January, 1878, and he himself died

who has taken every point which could have been taken; he has however failed to convince me that this affidavit of the defendant's father was rightly received as evidence against the plaintiff.

BOWEN, L. J. I am of the same opinion, notwithstanding the able argument of Mr. Willis. The exact point appears to me to be this: in such an action as the present, and on such an issue, the declaration of a deceased person is inadmissible, because the question at issue is not one of family, but is merely a question of the age of a particular young man.

FRY, L. J. I am of the same opinion. The exceptions to the general rule excluding hearsay evidence have been explained by Lord Blackburn in Sturla v. Freccia, ubi supra, and the rule is stated by Lord Kenyon, C. J.: "The evidence should be given under the sanction of an oath legally administered, and in a judicial proceeding depending between the parties affected by it, or those who stand in privity of estate or interest with them * * * I admit that declarations of the members of a family * * * are received in evidence as to pedigrees. * * *That however has been always understood to be an excepted case, and to stand on reasons peculiar to itself." R. v. Eriswell, 3 T. R. 707. This view has been followed down to the present time. I am of opinion that this is not a question of pedigree, for whose son the defendant is, or who his relations are, or any other question as to his family, would be wholly immaterial. I therefore agree that there must be a new trial.

Appeal dismissed. Solicitors for plaintiff, Wakeford, May, and May. Solicitors for defendant, Cookson, Wainewright, and Pennington.

[See ante 51.]

INSURANCE —“WIDOW."

NEW YORK SUPREME COURT, GENERAL TERM, FIRST
DEPARTMENT, JAN. 9, 1885.

POLAR STAR MUT. BEN. ASSOCIATION OF NEW YORK V.
BONIFACE, RESPONDENT AND BONFORT,

APPELLANTS.

A member of a mutual benefit association, being married, marries a second time, the woman being unaware that he was already married.

The certificate or agreement issued to him by the association by its terms provided that the moneys due thereon after his decease should be paid to his "widow," and if there was no widow, then to his children In an action of interpleader, in which the children by the first wife who had in the meantime died claimed the moneys. Held, that the wife by the second marriage was the "widow" within the term of the certificate entitled to the moneys.

An objection was taken by the appellants to the question put to the respondent asking what her husband said when the information was received that his wife in Hamburg was dead. This was in the most general terms. The objection was overruled and an exception was taken. No point has been made upon this exception, and none could very well be presented, even if she was not competent to answer, for that particular objection was not interposed at the time. If her competency was intended to be questioned, it should have been done in such a manner as to bring the point to the notice of the court. That was not done and the exception taken can be of no benefit to the appellants.

The judgment in the case was well sustained, and it should be affirmed, together with the usual costs and disbursements.

on the 15th day of March, 1882. By the terms of the certificate or agreement issued by the association to to him, the money was made payable after his decease to his widow, and if there was no widow, then to his children. The respondent claimed the money as the widow, and the children of the marriage in Hamburg also claimed it, for the reason that her intermarriage with the deceased was illegal, inasmuch as it took place while the wife married by him in Hamburg was living. The plaintiff brought this action as one of interpleader to obtain a settlement of these conflicting claims and a determination under which the money could be safely paid. The court held the respondent entitled to the money, and whether that decision was in accordance with the law is the only point required to be considered for the disposition of the appeal.

When her own formal marriage with the deceased took place, the respondent had no information of the fact that he was under the disability of a preceding marriage, but she became aware of that fact some months after her own marriage took place. Notwithstanding that information, she continued to live with the deceased until the time of his death. But evidence was given tending to establish the fact that after the wife to whom the deceased was married in Hamburg had died information of the fact was received by him, and that he then stated to the respondent that if she ever was in doubt that she was his lawful wife, she was sure of it then, and showed her the letter containing information of the decease of the wife in Germany. It was further proved that during the period intervening between the exhibition of this letter and his own decease, a period of a little over four years, he continued to live with the respondent as his wife and treated her as such, introducing and referring to her in his conversation as his wife, to and including the period of his last illness. And from their evidence a new marital relation was presumed to have arisen between herself and the deceased after the death of his wife in Hamburg. That her purpose was to contract a lawful relation with the deceased, at the time when her formal but illegal marriage took place, may very justly be inferred from the proof in the case, and that after the discovery of the fact that he had a preceding wife living she was not satisfied with her relation to him. It may well therefore be presumed, when the information was obtained of the decease of the wife in Germany, that both parties united in the design that their relations from that time should be in entire accordance with the requirements of the law, and for that purpose agreed henceforth to live together as husband and wife. That presumption is supported by what is stated to have been said by him to the responding

ent when the information was obtained of the decease

of the wife in Hamburg, and also from the manner in which each was recognized and treated by the other from that time to the period of his decease. The obstaole which previously stood in the way of the execution of their design was removed, and when that took place, as the same design continued to exist, it is reasonable to presume that they did all that could be legally required to render that design lawfully binding. This subject has been recently very fully considered in Hynes v. McDermot, 91 N. Y. 451. The authorities were there very particularly referred to, and a conclusion was reached that a voluntary marriage should be presumed to have taken place between parties situated as these persons were, and afterward living together and conducting themselves as husband and wife. That was all that could be required for the purposes of this case, and at the time of the decease of Boniface, the respondent became his widow both in judgment of law and within the terms of the certificate issued to him by the association, and accordingly entitled to the money payable by means of it.

Davis, P. J., and Brady, J., concurred.
[See 5 Am. Rep. 535; 95 N. Y. 474.—ED.]

MUNICIPAL CORPORATION-RESPONDEAT SU

PERIOR-CEMETERY TRUSTEES-CITY

VAULT. &

OHIO SUPREME COURT COMMISSION,
JANUARY TERM, 1884.

CITY OF TOLEDO V. CONE.*

An employee, while engaged in a city cemetery in improving a vault owned by the city, was injured through the carelessness and want of skill of the superintendent of the cemetery and the negligence of the trustees. The employee worked under and obeyed the orders and directions of the superintendent, and both received their appointment from the board of trustees, subject to the approval of the council. Held, that the city was liable for the injuries resulting to the employee.

RROR to the Court of Common Pleas of Lucas county. Reserved in the District Court. The opinion states the point sufficiently.

ERR

E. P. Raymond, H. A. Chamberlain and Clarence Brown, for plaintiff in error.

Hamilton & Ford, and Pratt, Wilson & Pratt, for defendant in error.

DICKMAN, J. Whether the verdict is supported by the evidence, we are not called upon to determine, there being no portion of the evidence embodied in the record by bill of exceptions. Nor need we inquire whether there was error in the charge of the court to whether the verdict is contrary to law, the conthe jury, as no such error is assigned. In determintrolling question that arises is, whether a cause of action sufficient to sustain the judgment rendered is stated in the original petition. Whatever is alleged in the petition, which upon issue joined requires proof, will after verdict for the plaintiff be presumed to have been proved. 1 Chitty's Pl. 673. And the objection that the facts stated in the petition, and thus presumed to have been proved, are not sufficient to constitute a cause of action, may be made at any time before final judgment in error, if proper notice of such objection appear on the record in the reviewing court, before the case is heard. Youngstown v. Moore, 30 Ohio St. 133. Such notice in the case before us is ap

parent in the demurrer to the original petition, the exception taken to the overruling of the same, and the assignment in the District Court as error in the record, that the Court of Common Pleas erred in overruling such demurrer.

In the light of the record before us, the fact that Cone, the defendant in error, was injured through the

*To appear in 41 Ohio State Reports.

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