and such right of action by the insurance company is not affected by the fact that the liability of the brewing company in one case was statutory and existed in favor of certain persons only. Travelers' Insurance Co. v. Great Lakes Engineering Works Co., 184 Fed. 426. 1:747 Before an employer's liability insurer, which has paid in full a loss sustained by an assured as the result of the death of an employee, is entitled to recover under the right of subrogation from the party whose negligence caused such death, it is not essential to such right of recovery that a judg ment should have been recovered against the assured before the claim was paid, since the only effect of such judgment would be by way of evidence establishing liability. Travelers' Insurance Co. v. Great Lakes Engineering Works Co., 184 Fed. 426....1:747 2. Explanation of Term by Court. A county court judge may properly explain in writing the sense of an ambiguous word which he has used in giving judgment. Lowery v. Walker, L. R. App. Cas. 10 (1911).......1:215 3. Arrest of Judgment; Good Counts. That a count in a declaration is fatally defective, will not sustain a motion in arrest where there are good counts upon which the verdict for plaintiff might have been based. Blanchard v. Vermont Shade Roller Co., 84 Vt. 442. .1:152 JURY. Speed of Automobile as question for jury, see Automobiles, 7. Capacity of one acting as superintendent, as question for jury, see Master and Servant, 3. Question for jury as to physician's exercise of due skill, see Physicians and Surgeons, 3. Workmen's Compensation, 11. JUSTICE OF THE PEACE. 1. Jurisdiction; Time of Return of Summons; Waiver. The appearance of a defendant by his attorney on the return day of a summons issued by a justice of the peace, and his consent to the adjourn ment of the case to an agreed date, operates as a waiver of the objection that the summons was made returnable in less time than was prescribed by statute. Fanton v. Byrum, 26 S. D. .1:812 366. ..... 2. Proof of Landlord's Knowledge. A finding that a landlord knew, or by the exercise of reasonable diligence, could have known of the defective condition of the framework supporting an iron grating in the sidewalk in front of his premises, is sustained by proof that the defect had existed for ten or fifteen years and that the landlord had visited the premises monthly during 3. Warranty as to Condition. The lessor of a dwelling house does There is no implied warranty that ...1:906 A landlord's statement to a prospec- 6. Repairs-Duty of Landlord. A landlord is under no implied con- 7. Liability to Sub-tenant. Mere neglect by a landlord to keep MANUSCRIPT. As baggage, see Carriers, 10. MASTER AND SERVANT. See Employer's Liability Acts; Insurance; Workmen's Compensation. Failure to charge that one causing injury was fellow servant where master still liable, see Appeal, 7. Liability of owner of automobile for negligence of borrower, see Automobiles, 3. Acceptance of benefits by servant as bar to recovery of damages for injury, see Constitutional Law, 1. Admissibility of statements by injured employee to physician, see Evidence, 4. Declaration as to condition of machine as binding servant who did not hear same, see Evidence, 5. Fire escapes as place to work, see Fire Escapes, 1. Liability of city for death of servant, see Municipal Corporations, 13. Consent of parent to employment of child as barring right of recovery for negligent death, see Parent and Child, 2. 1. Existence of Relation; Effect of Fraud as to Age. a The fact that one employed as fireman upon a locomotive who was killed by the explosion of the engine due to the failure of the engineer to perform his duty to keep a sufficient supply of water in the boiler, obtained his position by falsely representing that he was over 21 years of age, does not affect the relation of master and servant with respect to the master's statutory obligation respecting the safety of persons serving it, and therefore such misrepresentation is not material in an action to recover damages for the servant's death. Hart, Adm'x v. New York Central & Hudson River R. Co., 205 N. Y. 317............1:762 2. Superintendence.-Duty to Provide. It is the duty of a master to furnish a skilled superintendent to take charge of the construction of a raft and the mooring of the same in a stream having a rapid current, at a short distance above a falls, on which common laborers are directed to stand for the purpose of removing the false work underneath a bridge, and in case of the master's failure to provide such superintendence, he will be held liable for the death of the laborers caused by the action of the current in tearing the raft from its moorings and carrying them over the falls. Engelking v. City of Spokane, 59 Wash. 446, 110 Pac. 25...... 3. .1:142 Capacity as Question for Jury. In an action to recover for the death of a servant employed by an electric railway line, based upon a statute which gives a right of action against an employer for injuries to a servant on account of the negligence of any person intrusted with the duty of superintendence, or in the absence of such superintendent, on account of the negligence of any other person acting in that capacity with the consent of the employer, it is a question for the jury as to whether a fellow employee, in the absence of the superintendent, was acting in the capacity of superintendent with the employer's consent. V. Greif, Adm'x Buffalo, Lockport & Rochester Ry. Co., 205 N. Y. 239...... 1:44 superintendence, control, or command ..1:762 A master is not bound to furnish a 8. A servant who has been induced by - 9. Injuries by Revolving Shaft. - V. the table 23 inches from its edge and 8 inches from the floor, is a question for the jury. Dettering v. Levy et al., 114 Md. 273..... ...1:630 In determining whether the location of an unguarded revolving shaft which furnishes power to operate sewing machines, is dangerous, so that a master may be charged with negligence in failing to guard it, the question is whether the operatives of the machines are likely to come into such close contact in the discharge of their duties as to place them in danger of injury. Dettering v. Levy et al., 114 Md. 273. 1:630 same shall be completed within a reasonable time after notification by the chief State factory inspector. Streeter v. Western Wheeled Scraper Co., 254 Ill. 244.. 1:828 13. Practicability of Guard. Evidence that it was practicable to guard a jointer having revolving knives, as required by statute, is shown by a witness who testified that he was a mechanical engineer and draughtsman, that he was familiar with the kind of jointer by which plaintiff was hurt and the manner of its operation, that such jointer was in use in the shop of the company by which he was employed, that a guard was used over the knives, and that such guard is a practical device. Streeter V. Western Wheeled Scraper Co., 254 Ill. 244. 1:828 - 14. Sufficiency of Declaration. A declaration in an action brought to recover damages for injuries sustained by an employee when his hand accidentally slipped into the knives of a jointer, described as a machine having whirling knives which cannot be so placed as not to be dangerous, and which alleges that such knives are unguarded, states a cause of action within Hurd's Rev. Stat., 1909, chap. 48, sec. 1, which requires that dangerous machinery shall be either guarded or so located as to remove the danger. Streeter v. Western Wheeled Scraper Co., 254 Ill. 244..... ...1:828 |