derail switch or blocks were not necessary, might and ought to have secured the cars by having the brakes set up on each one of them. Instead of that, the rule of the appellant only required the brakes to be set up on the one car nearest to the main track. He knew the character of the grade on the coal track, and the danger of cars escaping therefrom onto the main track, and, with this knowledge, he failed to exercise proper care to guard against it. The decedent had never been on this coal track but once before the night on which he was killed, and that in the nighttime, and he had no notice. or knowledge of its dangerous condition. This danger was not one of the ordinary hazards of the service, and it was not one assumed by the decedent. The burden is on the appellant to show contributory negligence on the part of the appellee. This he has failed to do. Even if the appellee neglected to set up the brake when the engine pulled out onto the main track, still the evidence fails to show that he knew the condition of the coal track, or that the brakes had been set up only upon one of the cars. Being in ignorance of the appellant's negligence, he had a right to act on the assumption that the coal track was reasonably safe and suitable for the use to which it was put, and that the cars stored thereon were so secured that they would not run out upon the main track. Especially is this so in view of the fact that that part of the coal track where the decedent was employed on the night of the accident was on a level grade, and he had no knowledge but that the entire coal track was on the same grade. On the argument at bar it was suggested that the damages were excessive. No such question was presented in the motion for a new trial in the court below, nor has it been assigned as an error in this court. Under these circumstances, we do not feel called upon to examine this question. We find no available error in the record. The decree of the court below is affirmed, at the cost of the appellant. DENNING v. STATE. Supreme Court, California, January, 1899. STATUTE - CLAIM AGAINST STATE-ACTION AUTHORIZED. — Section I of the act of 1893, p. 57, which authorizes an action to be brought against the State for a claim not allowed by the board of examiners, does not create any liability or cause of action which did not exist before. SAME HARBOR COMMISSIONERS — INJURY TO EMPLOYEE. St. 1889, p. 380, giving power to the State harbor commissioners to collect tolls and charges as will enable them to discharge their duties of controlling the Bay of San Francisco does not affect the character of the board as a governmental agency and make the State liable to an employee who was injured through the negligence of the board (1). STATE NOT LIABLE FOR INJURY TO EMPLOYEE OF BOARD WHOSE DUTIES WERE GOVERNMENTAL. — Among other duties of the board was that of extinguishing fires, and that being undoubtedly governmental, and plaintiff specially employed in that service, he could not recover from the State for the negligence of the board, though it was acting administratively in collecting wharfage. DEPARTMENT 2. Appeal from judgment, Superior Court, City and County of San Francisco, in favor of plaintiff. ATTORNEY-GENERAL FITZGERALD, for the State. R. R. BIGELOW, HENLEY & COSTELLO, and EDW. J. BANNING, for respondent. 1. The following are some recent cases in which was presented the question whether the municipal corporation was acting in its governmental capacity or not: JUDGE BEAN says in his opinion in CIGAR CO. CITY OF PORTLAND, (CAL.) 55 Pac. Rep. 962: "There is a well established distinction made by the authorities between the liability of a municipal corporation for the acts of its servants, agents, officers, or employees done in the exercise of powers and duties granted to or imposed upon it as a mere agency of the State, and performed exclusively for public governmental purposes, and acts done in the exercise of powers granted to or privileges conferred for its own profit, advantage and emolument, although inuring incidentally to the public." VOL. V - 19 See Quill v. Mayor, etc., of N. Y., reported in this volume of AM. NEG. REP. post. A municipal corporation is not liable in damages for the death of one convicted in a corporation court and sentenced to work upon the public streets, although his death was occasioned while the convict was engaged in such work, and resulted from negligence on the part of the foreman who had been placed by the municipal authorities in charge thereof, and from the failure of such foreman to provide the convict, after his injury, with the proper medical attention and treatment. NISBET v. CITY OF ATLANTA, 97 Ga. 650. A city is not liable for unlawfully arresting and imprisoning a person PER CURIAM. The plaintiff, Denning, was employed by the board of state harbor commissioners as a night deck hand upon a tugboat the Governor Irwin - belonging to the State and used by said board. Among other duties of the plaintiff as a deck hand, it is alleged he was required to place lights on the top of the cabin on each side, and for this purpose climbed a ladder eight or nine feet and incarcerating him in a filthy and improperly built and kept calaboose, since the municipality can only act through its officers and agents and is not responsible for their illegal acts in attempting to exercise police powers. BLAKE v. CITY OF PONTIAC, 49 Ill. App. 543. A municipal corporation is not liable for the acts of a police officer while performing his duty in making an arrest of one charged with the violation of an ordinance. VAUGHTMAN v. TOWN OF WATERLOO, 14 Ind. App. 649. A city is not absolved, as a governmental agency, from liability for a nuisance caused in cleaning streets by dumping unhealthy refuse near plaintiff's house, on the theory that street cleaning is a duty, and a public benefit in which plaintiff shared. CITY OF NEW ALBANY ย. SLIDER (Appellate Court, Indiana, January, 1899), 52 N. E. Rep. 626. It is the settled law of this State that incorporated towns are liable for injuries occurring from defective streets or sidewalks. TOWN OF WILLIAMSPORT v. LISK, (Appellate Court, Indiana, January, 1899), 52 N. E. Rep. 628. Where in making a contract for macadamizing its streets a certain stipulated price per square yard was deducted by a city from the estimate for the use of the city's steam roller, and the city's agents used the roller without suggestions from the contractor, and the city retained its stipulated price, the city could not escape liability for a fire set by sparks from the roller, on the ground that the roller was used for the benefit of the public. MCMAHON . CITY OF DU BUQUE (Supreme Court, Iowa, December, 1898), 5 AM. NEG. REP. 147. A town is not liable for injuries to a traveler who was thrown out of his wagon by his horse taking fright at a steam roller used in repairing a street. LANE v. CITY OF LEWISTON, (Supreme Court, Maine, January, 1898), 39 Atl. Rep. 999. A city is liable to the owner of a farm bounded by a running stream across which the city erected a dam under powers granted by the legislature in connection with its water supply, when the water was forced back upon the farm by the obstruction and certain fencing and crops were destroyed. MAYOR, ETC., of Baltimore V. MERRYMAN, (Court of Appeals, Maryland, January, 1898), 39 Atl. Rep. 98. A child, attending a public school in a school house provided by a city, under the duty imposed upon it by general laws, cannot maintain an action against the city for an injury suffered by reason of the unsafe condition of a staircase in the school house, over which he is passing. HILL v. CITY OF BOSTON, 122 Mass. 344. The city of Boston was not liable for an injury to an employee of the Boston Transit Commission that was engaged in building a subway under a statute of the State authorizing it, where the city had no control over the commissioners or the manner in which the work should be done or in fixing the charges to be collected though the surplus after certain expenses were paid was to be used to maintain the public parks. MAHONEY v. CITY OF high, reaching from the deck to the top of the cabin; that the ladder was insecurely fastened, and became detached at one side, and caused the plaintiff to fall, whereby he sustained serious injuries, and to recover damages therefor he brought this action, alleging that it was caused by the negligence of the defendant. The defendant demurred to the complaint, upon the ground that it did not state BOSTON (Supreme Judicial Court, Massachusetts, June, 1898), 4 AM. NEG. REP. 395. A city is responsible for the negligence of water commissioners who were acting as its agents in digging a ditch, in leaving excavations in the streets insufficiently lighted and guarded. Fox v. CITY OF CHELSEA (Supreme Judicial Court, Massachusetts, May, 1898), 50 N. E. Rep. 622. A municipal corporation is not liable for maintaining its lockup or prison in a defective condition whereby a prisoner was injured. 62 Minn. 278. So far as the city of Minneapolis maintains its water plant for use by its fire department in extinguishing fires, it is performing a public or governmental function, and is not liable for the negligence of its officers and servants in permitting the pipes and hydrants to become clogged and choked with sand, bark and other refuse, so that no water could be obtained, and plaintiff's goods were burned in consequence. MILLER v. CITY OF MINNEAPOLIS, (Supreme Court, Minnesota, December, 1898), 5 AM. NEG. REP. 183. A city is not liable for damages sustained by a property owner because it failed to prevent the erection of a wooden building on an adjoining lot, in violation of an ordinance. HARMAN V. CITY OF ST. LOUIS, 137 Mo. 494. An employee of the Monroe County Insane Asylum provided by the county for its insane, cannot maintain an action against the county for injuries received while operating a steam mangle in the laundry through alleged negligence of employees of the county as it was engaged as a politi cal division of the State in the discharge of a public duty. HUGHES V. COUNTY OF MONROE, 147 N. Y. 50. A county cannot by any rule of law as established in this State be held liable at the suit of a private individual, who has received personal injuries from a defective bridge with the maintenance of which the county was chargeable. MARKEY V. COUNTY OF QUEENS, 154 N. Y. 675. 44 The rule of respondeat superior does not apply to the relation existing between the board of education of a union free school district and an attendance officer" appointed by the for. mer in compliance with the Consolidated School Law, and the board of education is not liable for the act of such attendance officer" in wrongfully arresting a scholar by reason of which in his efforts to escape along the line of a railroad, the scholar is killed. REYNOLDS V. BOARD OF EDUCATION, ETC., OF LITTLE FALLS, (Supreme Court, Appellate Division, New York, July, 1898), 33 App. Div. 88. Where a person was arrested for violation of a village ordinance and imprisoned in a place negligently permitted to become and remain so dilapidated that in consequence of the exposure he contracted a disease which caused his death, the village was not liable for the omission of its duty in the exercise of its governmental functions. EDDY v. VILLAGE OF ELLICOTVILLE, (Supreme Court, Appellate Di vision, New York, December, 1898), 35 App. Div. 256. If the authorities of a town provide in its prison the necessaries to protect a prisoner from bodily suffering, but facts sufficient to constitute a cause of action. It was overruled by the court, and the defendant answered. A jury trial was had, and the plaintiff had judgment, from which, and from an order denying a new trial, the defendant appeals. The most important question in the case is whether the State is liable for the negligence of the board of State harbor commissioners. whereby the plaintiff, an employee, it is alleged, was injured. This question was raised by the defendant by demurrer to the complaint, by motion for nonsuit, by a request to instruct the jury, and by a specification that the evidence does not justify the verdict. The complaint alleges that the plaintiff was employed by said board "as a night deck hand on a steam towboat, owned by the State of California, and operated by it in and upon the waters of the Bay of San Francisco, through its servants, the said board of State harbor commissioners;" but for what specific purpose it was so operated is not the custodians of the jail neglect or fail to supply him with such necessaries, the town is not liable in damages for injury caused to the prisoner by such neglect or failure of the custodians provided it is not shown that the officers of the town were negligent in supervising the custodians. SHIELDS v. Town OF DURHAM, 116 N. C. 394. A city is not liable for damages caused by the enactment and enforcement of a valid ordinance, though the ordinance shows an abuse by the municipality of a discretionary power with which it is vested. ROSENBAUM v. CITY OF NEWBERN, 118 N. C. 83. Waterworks belong to a city in its private rather than its public capacity and it is for the jury to say whether the city was liable for the bursting of a water main causing plaintiff's property to be flooded where it was shown to have bursted before under ordinary pressure, and there was no unusual pressure at the time of the accident, and that water pipe when properly constructed and laid will not burst ordinarily when under such a pressure. ESBERG-GUNST CIGAR Co. v. CITY OF PORTLAND, (Supreme Court, Oregon, January, 1899), 55 Pac. Rep. 961. A demurrer to a declaration was properly sustained where it was alleged that the complainant was negligently cared for while temporarily confined in a police station, as such negligence did not render the city liable, since in caring for persons under arrest, the city discharged a public duty. KELLY v. Cook, (Supreme Court, Rhode Island, October, 1898), 5 AM. NEG. REP. 94. A municipal corporation being an agency of the State government, is not liable to an individual for trespass upon his property in laying a sewer pipe, in the absence of a statute imposing liability for such acts. PARKS v. CITY COUNCIL OF GREENVILLE, 44 S. C. 168. A city is not liable for loss by fire through the fact that the fire department had been ordered to parade at a distant part of the city on the morning that the fire destroyed plaintiff's house and no response was made when he sent out the alarm. IRVINE 7. MAYOR, ETC., OF CHATTANOOGA, (Supreme Court, Tennessee, October, 1898), 47 S. W. Rep. 419. The owner of lands where a sewer discharges may bring successive actions against a city maintaining it for |