performing his contract with his client, but for, in effect, certifying to the person with whom his client was dealing (the plaintiff in the case) a fact as true which, if he had exercised ordinary care, he would have known to be untrue, in other words, that the attorney was chargeable with culpable ignorance where it was his duty to be informed, and, therefore, had committed a legal deceit, not only against his own client, but against the plaintiff as well.

The case of Richmond and Danville Railroad Company v. Elliott, 149 U. S. 266, though not directly in point, is worthy of examination in this connection. What is said in the opinion of the court at pages 271 and 272, 149 U. S., and page 837, 13 Sup. Ct. Rep., indicates, we think, that it was assumed that, except under special circumstances, the acceptance by the vendee of the subject of purchase and sale relieves the vendor from liability to a stranger for any injury to him from negligent construction of the thing sold. See, also, Goodlander Mill Co. v. Standard Oil Co., 11 C. C. A. 253, 63 Fed. Rep. 400. There are cases which may seem to qualify the principle which we have discussed, but which are quite consistent with it, and which, as is pointed out in Curtin v. Somerset, supra, have no application to such an one as that with which we are now concerned. They decide that one who deals with a thing which is inherently very dangerous, involving "death or great bodily harm to some person, as the natural and almost inevitable consequence" of lack of care, owes to the public at large the duty of extreme caution. Such a case is Thomas v. Winchester, 6 N. Y. 397 (1), which in England has been thought to go too far. Brett, M. R., in Heaven v. Pender, supra. But it is hard to see in what respect it goes further than Dixon v. Bell, 5 Maule & S. 198 (2), which was cited as a strong case, and apparently with hesitating acceptance, in Longmeid v. Holliday, 6 Exch. 761 (supra), where it was rightly held that, as

I. In Thomas v. Winchester, 6 N. Y. 397, it appeared that plaintiff was poisoned and made sick by a dose of belladonna given to her for dandelion, which latter had been prescribed by her physician. The druggist who sold same had taken it from jar labelled dandelion, which jar with its contents was bought by him from another druggist who had purchased it from defendant. The latter having bought the belladonna, put it into the jar, and labelled it dandelion. Verdict and judgment for plaintiff for $800 affirmed.

2. In Dixon v. Bell, 5 Maule & S.

198, it was held that the law requires of persons having in their custody instruments of danger, that they should keep them with the utmost care; therefore, where defendant, being possessed of a loaded gun, sent a young girl to fetch it, with directions to take the priming out, which was accordingly done, and damage accrued to the plaintiff's son in consequence of the girl's presenting the gun at him and drawing the trigger, when the gun went off; the defendant was liable to damages in an action upon the case.

lamps are not in their nature explosive, liability for sale, without fraud, of an ill-made lamp, which exploded in use, is contractual only, and therefore does not extend to any person who could not sue on the contract, or on a warranty therein expressed or implied. See Pol. Torts, p. 449. In our opinion, Thomas v. Winchester was rightly decided; but that case, and the others which follow its lead, do not at all conflict with our present judgment. The article here in question is not, like a poisonous drug, which was the harmful agent in Thomas v. Winchester, inherently dangerous, but is, like the lamp in Longmeid v. Holliday, not in its nature hazardous.

The Circuit Court did not err in refusing to strike off the compulsory nonsuit which it had entered, and therefore the judgment is affirmed.

MONSARRAT AND OTHERS, RECEIVERS OF VALLEY RAILWAY COMPANY, V. KEEGAN.

Circuit Court of Appeals, United States, Sixth Circuit, April, 1898.

MASTER AND SERVANT - RAILWAY COMPANY CONTRACTING TO PLANK BETWEEN RAILS AT STREET CROSSING. — While there is no general duty requiring a railway company to plank between its rails, yet a railway company that accepts certain street rights on condition that it would plank between its rails those portions of the public streets used by it, is under a duty to so put down the planks and so maintain them when down that they should be reasonably safe to its employees who might be required to work thereon.

RISK OF EMPLOYMENT. — Before a court is authorized to presume as a matter of law that an employee accepts the dangers incident to defective machinery or roadbed, it must appear that he accepted employment with actual knowledge of such defect and its dangers, or that he continued in the service after he acquired knowledge or by due care and reasonable attention might have known of the danger (1).

BRAKEMAN INJURED WHILE COUPLING CARS BY STEPPING IN HOLE ALONGSIDE TRACK. — K., the plaintiff, was a brakeman and had been employed by the defendant for several years. At the time of the accident, and for two months prior, he was employed in a railway yard a mile long and containing twenty-two tracks. Two of these occupied portions of a public street, and the injury occurred where these tracks crossed the sidewalk of the street. At this crossing, and in the street, the tracks were planked between the rails. At the outer side of the sidewalk there was a space between this planking and the rail of between three and threequarters and four inches in width at its widest part, and a depth of seven inches, and it had so existed for at least two months. It was K.'s business to make all couplings that fell to his crew, and he had passed over that part of the roadbed many times a day. As he was attempting to couple a mov. ing car to a stationary one, he stepped out from between them and his foot was caught in this space between the planking and the rail so tightly that he was unable to remove it before it was run over and crushed. There was a verdict for the plaintiff, and upon a writ of error to review, the court held: 1. That it was a question for the jury whether the hole was a dangerous defect in the roadbed. 2. That it was not reversible error to admit evidence of the condition upon which the company had acquired its street rights. 3. That the hole in which the plaintiff's foot was caught was not such an obviously dangerous defect in the roadbed that in view of his long employment in the yard the court should have directed a verdict against him. 4. That the question of whether the existence of the dangerous space was so obvious as to make the plaintiff's ignorance of it inexcusable, was properly submitted to the jury, and the facts did not make a case where the court could justifiably say that the plaintiff's ignorance of the dangerous character of the space in the roadbed was unjustifiable in law, and his acceptance of the risk presumed.

ERROR to the Circuit Court of the United States for the Eastern Division of the Northern District of Ohio.

KLINE, CARR, TOLLES & GOFF, for plaintiffs in error.

MEYER & MOONEY, for defendant in error.

Before TAFT and LURTON, Circuit Judges, and SEVERENS, District Judge.

The facts and points decided are stated in the syllabus.
Judgment affirmed.

Opinion by LURTON, CIRCUIT JUDGE.

case would require us to go even beyond that ruling. On this record we could not justifiably assume the existence of this hole when Keegan accepted employment. Knowledge of the existence of such a hole in the

roadway might be presumed as matter of law from employment in a yard 500 feet long and forty feet wide, which would be unjustifiable in a yard a mile long and containing twenty-two tracks."

CONTINENTAL TRUST COMPANY OF NEW YORK v. TOLEDO, ST. LOUIS AND KANSAS CITY RAILROAD COMPANY.

Circuit Court of Appeals, United States, Seventh Circuit, May, 1898.

MASTER AND SERVANT-STORAGE OF CARS ON TRACK HAVING STEEP GRADE — EMPLOYEE STRUCK BY ESCAPING CAR. — A rail. way company that stores heavily loaded coal cars upon a side track having a dangerous grade without taking any other precaution than setting the brakes on the first car to prevent their escape to the main track is guilty of negligence and liable for the death of an employee who was struck by one of the cars, though the employee had released the brake of the car in the course of his duties, and had failed to set the brake again, it not being shown that he knew of the grade or that the brakes had been set up only upon one of the cars.

APPEAL from Circuit Court of the United States for the Southern District of Illinois.

CLARENCE BROWN, for appellant.

R. E. HAMILL, for appellee.

Before Woods and SHOWALTER, Circuit Judges, and BAKER, District Judge.

BAKER, DISTRICT JUDGE.

This is an appeal by the receiver from a decree on an intervening petition filed by Walter Bartlett, administrator of the estate of Michael Delaney, deceased, to recover for damages sustained by the next of kin on account of the death of the decedent. The alleged negligence consisted in the construction and maintenance of a side track used for storing loaded coal cars, having a dangerous grade, extending from a coal shaft for about 600 feet to its point of junction with the main track, and in failing to provide suitable means to secure such loaded cars on the said track, in consequence of which one of them ran down upon or so near the main track that the decedent, a brakeman, who was standing on the step on the side of the engine, was struck thereby, and instantly killed. The accident occurred on the night of December 15, 1893. Delaney, at the time he was killed, was an extra freight brakeman, employed on the west end of the road. been employed in that capacity less than two months and had made but a few trips over the road. Prior to that time he had been employed in the yards at Charleston. He was a strong, capable, and bright young man, about twenty years of age, but with little

experience as a brakeman. At the time of his death, he was braking on a local freight train which handled the output of a coal mine on the line of the railroad at Sorrento, Ill. The mine was near the main track, and it had a daily output of about 400 tons. The scale level at the mine was two feet and seven inches higher than the main track at the point where the coal track joined it. The cars were placed on the scale level at the mine, and, when loaded, they were moved down the coal track to the east towards the point of junction with the main track. This coal track, having a length of about 600 feet and a descending grade of two feet seven inches, was used for storing heavily loaded coal cars. It had no derail switch, and no blocks were provided to prevent the loaded cars from running onto the main track. The grade was in the upper two-thirds of the coal track, and loaded cars were habitually left standing upon this grade without being blocked, and without their brakes being set. The car nearest the main track had its brake set, and it was relied upon to hold the other cars where were run down against it. On the night of the accident, there were fifteen or sixteen loaded coal cars thus placed on the coal track, covering almost its entire length. The train on which the decedent was employed had been directed to take up some cars at this place, and for that purpose the engine had gone onto the coal track, and coupled onto the nearest coal car. It is claimed that the decedent loosened the brakes on this car, and that when it was found that none of the cars wanted were on the coal track, and the engine was detached, the decedent neglected to set up the brake on the coal car, and that this failure caused the car to move down onto or near the main track, and thus brought about the accident.

Many errors are assigned, but all that are available present only two questions: First. Was the appellant chargeable with negligence in the construction and maintenance of the coal track, and in failing to provide suitable means to secure the loaded cars placed thereon? Second. Was the appellee's intestate guilty of contributory negli gence? The master's duty is to exercise ordinary and reasonable care to furnish a reasonably safe working place for his employee, having regard to the danger of the service and the peril to which the employee will be exposed from the failure to exercise such care. From the brief review of the facts which we have given, we feel no doubt that the master failed in the performance of his duty. The grade of the coal track rendered it a dangerous location on which to place fifteen or sixteen heavily loaded cars without any means of preventing their escape onto the main track, except by the setting up of the brake on the car nearest thereto. The appellant, even if a