off was allowed the successful party, against the unsuccessful one, to the extent of all costs actually paid. The court refused the set-off only as to the costs not actually paid, because the officers were entitled to their fees, and had a lien on the judgment for them. Aiken v. Smith, 57 Fed. 423, 6 C. C. A. 414. In the present case, if the officers, and other persons rendering services, whose compensation is properly taxable as part of the costs of the case, but whose fees have not been paid, would suggest to the court that they desire to be paid out of the cost fund in court to the credit of the case, the court would be justified in passing an order authorizing its clerk to pay these unpaid fees and expenses out of that fund, but the case just cited is an authority against the contention of the appellant that a third person, who has paid certain fees and expenses for the accommodation of a party, is entitled to be reimbursed through the intervention of the court, in the same manner as the officers themselves may recover the compensation due them. In such a case the person discharging the fees and expenses must look to the party at whose instance the services were rendered. The reason for this distinction, no doubt, is that in contemplation of law the parties to a suit pay their own part of the fees and expenses, as they are incurred, during the progress of the case, and judgment for costs is rendered in favor of the prevailing party, upon the theory that he has paid or is liable for the fees and expenses incurred by him, and to reimburse him therefor. 5 Ency. P. & P. 253.

The party requiring an officer to perform services for which compensation is to be made is primarily liable therefor, and the fact that the costs may be ultimately adjudged against his adversary does not relieve such party of his liability to the officer entitled thereto. If the adversary against whom costs are adjudged fails to pay the same, or if for any reason the officer is unable to collect his compensation from such adversary, he still has his remedy against the party at whose request, in the first instance, the services were performed. If, therefore, the costs incurred by one of the parties during the progress of a case are paid by a third person, the right of such third person to reimbursement is primarily against the party for whom the costs were paid; and, if such party be the successful one to whom costs are awarded, the right of the third person to any part of these costs is only through and by virtue of the right of the successful party thereto. The right of such third person can therefore be no higher than that of the successful party, and such right is necessarily subject to all the equities which would exist against that party himself. A similar contention to that of the appellant in this case was fully considered by this court in the case of Marshall v. Cooper, 43 Md. 46. In that case, as in this, a bill was filed to obtain the benefit of an equitable set-off. One Utterback

had obtained a judgment against Cooper for $6,000, and costs of suit. This judgment had been entered to the use of Messrs. Marshall and Fisher, who thus became liable for a large amount of costs incurred in prosecuting the suit. As incidental to the relief of setoff, an injunction to restrain the enforcement of this judgment was prayed for. It was urged in that case that Marshall and Fisher should at least have the costs for which they were responsible excepted from the operation of the order directing such an injunction to issue. But this court held that the rights of Messrs. Marshall and Fisher were subject to the equitable rights of setoff claimed by Cooper, and the decree of the lower court restraining the enforcement of the judgment was affirmed.

But the appellant contends that he was a party to the earlier case, and, as such, obliged to lay out and expend a large sum in the lower court in defending the bona fides of his mortgage, and that he should at least be reimbursed for these costs which he was obliged to pay. We think this contention is answered by what we have said, but in addition to the reasons already given, it must be remembered that the lower court in the earlier case awarded Mr. William B. Willson a proportion of the costs incurred by him in that case, and the sum agreed upon and accepted by him, was $40. No appeal was taken from the decree of the lower court, in that case, so far as it determined his rights, and consequently that part of the decree remains undisturbed. His acceptance of the $40 as his share of the costs operates effectually against his contention that he was obliged to pay the residue for which he seeks reimbursement. As to this residue, he stands in no better position than a stranger to the proceedings, who has paid the fees and expenses for the benefit and accommodation of one of the parties. He may be subrogated to the rights of such party, but not to the rights of the officers whose fees he has paid. We have carefully examined the able briefs of counsel for the appellant, but we cannot give our assent to the application of the doctrine of subrogation, in the way and manner which is so earnestly contended for therein. We do not think the cases cited support such contention as applicable to the circumstances of this

case.

It follows from what we have said that we do not consider the right of the appellant to reimbursement for the fees and expenses defrayed by him for Tyson Willson and wife, in the earlier case, out of the costs awarded them in that case, superior to the right thereto of Tyson Willson and wife themselves, against whom, as we have seen, on the facts as they now appear, the complainants are entitled to the equitable set-off which they seek. The decree of the lower court will therefore be affirmed.

Decree affirmed, with costs.

DEATH PROOF.

ACTIONS FOR PRESUMPTIONS AND BURDEN OF

In an action for the death of an employé, the burden is on plaintiff to establish the allegations in the declaration, failing in which, it is error to refuse to direct a verdict for the employer.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 895-905.] 2. NEGLIGENCE-QUESTIONS FOR JURY.

The fact of negligence is for the jury, where there is evidence legally sufficient to prove it, but in the absence of such evidence, it is the duty of the court to withdraw the case from the jury. [Ed. Note.-For cases in point, see Cent. Dig. vol. 37, Negligence, § 282.]

3. SAME.

A scintilla of evidence, or a mere surmise that there may have been negligence, will not justify the court in leaving the case to the jury, but there must be evidence on which they may reasonably conclude that there was negligence.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 37, Negligence, §§ 282, 284.]

-

4. MASTER AND SERVANT ASSUMPTION OF RISK.

It is implied, as a part of a contract to perform services for compensation, that as between the employé and the employer, the employé assumes all the risks incident to the service, including such as arise from the hazardous character of the service, and from the negligence of other servants in the same employment, though of a different grade.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 538-543, 550.] 5. SAME-DUTY OF MASTER TO FURNISH PROPER MATERIALS AND APPLIANCES.

A master is required to use due and reasonable care to provide proper materials and appliances.

[Ed. Note.-For cases in point. see Cent. Dig. vol. 34, Master and Servant, §§ 172, 173.]

6. SAME-FELLOW SERVANTS-CARE REQUIRED OF MASTER.

A master is required to use due and reasonable care in the selection and employment of competent and careful fellow servants.

[Ed. Note.-For cases in point. see Cent. Dig. vol. 34, Master and Servant, § 336.]

7. SAME-EXPOSURE TO EXTRAORDINARY PER

ILS.

A master cannot negligently expose a servant to such extraordinary perils in the course of the employment that the servant, from the want of knowledge, skill, or physical ability, cannot by ordinary care, under all the circumstances, guard himself against them.

8. SAME-CARE REQUIRED OF MASTER.

A master is not liable for injury to a servant, unless chargeable with some neglect of duty, measured by the standard of ordinary care. [Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 139.] 9. SAME CARE.

DUTY OF SERVANT TO EXERCISE

ly caused the employé to become entangled in a hawser, thrown from one of its ships to its wharf, and to be thereby dragged from the wharf and drowned, recovery cannot be had on the ground that the employer negligently failed to rescue the employé after he had been dragged into the water.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 871, 872.]

Appeal from Baltimore City Court; George M. Sharp, Judge.

Action by the state, for the use of Annie Hazelton, widow, against the Merchants' & Miners' Transportation Company. Judgment for plaintiff, and defendant appeals. Reversed, without a new trial.

Argued before BOYD, C. J., and BRISCOE, PEARCE, SCHMUCKER, BURKE, WORTHINGTON, and HENRY, JJ.

Walter L. Clark and William L. Marbury, for appellant. Emil Budnitz and J. Cookman Boyd, for appellee.

BRISCOE, J. This action was brought in the Baltimore city court, by the appellee, against the appellant, to recover damages for the death, on the 20th of March, 1906, of William Harry Hazelton, the husband of the equitable plaintiff, while in the employ of the appellant corporation as a line tender on one of its wharves, in Baltimore city, by reason of the alleged negligence of the appellant company. The declaration alleges that the defendant is the owner of and operates a line of steamships running to and from Baltimore, and that on the 20th of March, 1906, the deceased, while using due care and caution, and by reason of the wrongful act, neglect, and default of the defendant, its officers, and agents became entangled with a hawser, thrown from one of the defendant's steamships to its wharf, in Baltimore city, and he was thereby dragged overboard and drowned. And, further, that the deceased was employed by the defendant as a stevedore, but that he was ordered by the defendant to catch and make fast the hawser, although the same was not within the scope of his employment; and, although unknown to the deceased, and not notified thereof, but well known to the defendant, it was exceedingly dangerous for one man alone to attempt to catch and make fast the hawser, as the defendant was ordered to do, whereupon he was dragged overboard and drowned. The bill of particulars filed by the plaintiff states the cause of the action as follows: To recover damages for the death of the deceased, which was caused by the wrongful act, neglect, and default of the defendant company in ordering and causing the deceased, who was employed as a stevedore by the defendant, to attempt to catch and make fast to the defendant's wharf a hawser thrown from one of the defendant's ships, whereby he became entangled in same and was dragged overboard and drowned. Secondly, that it was well known to the defendant, although it was not known to the de

cedent, and he was not warned, that it was dangerous for one man alone to attempt to catch and make fast the hawser, and the same was without the scope of the decedent's employment.

At the trial of the case, the appellant reserved three exceptions. Two to the admission of evidence, and the third to the granting of the plaintiff's prayer as to the measure of damages, and to the rejection of the defendant's four prayers, which instructed the jury that, under the evidence and upon the pleadings, the verdict of the jury must be for the defendant upon the issues joined. The objection to the admissibility of evidence embraced in the second exception, and to the exception to the granting of the plaintiff's prayer, was practically abandoned in this court, but it is contended that there was error in the action of the court in its ruling upon the admission of the testimony, in the first bill of exceptions, and in its refusal to grant the appellant's prayers, set out in its third bill of exceptions. As these prayers present the prominent questions upon which the decision of the case must turn, and as we are of the opinion, after a careful consideration of the record, that they should have been granted, we will proceed to state, as briefly as possible, the reasons for the conclusion we have reached. It will be seen, that the specific allegation of defendant's negligence, as set out in both the declaration and the bill of particulars, and the ground upon which the recovery was sought, was, by reason of the neglect and default of the defendant, its officers, and agents, the deceased became entangled with a hawser, thrown from one of the defendant's steamships to its wharf, in Baltimore city, and was dragged overboard and drowned, and that it was dangerous for. one man alone to attempt to catch and make fast the hawser; that the work was without the scope of the decedent's employment; that the danger was well known to the defendant, but not known to the decedent, and he was not warned of the danger.

The defendant's prayers are based upon the insufficiency of evidence to prove that the death of Hazelton was occasioned by the negligence of the defendant, as alleged in the pleadings. It is well settled that the defendant had the undoubted right to have the jury confined to the issue made by the pleadings. City Pass. Ry. Co. v. Nugent, 86 Md. 360, 38 Atl. 779; Fletcher v. Dixon (Md.) 68 Atl. 878. The burden of proof was upon the plaintiff to establish the allegations in the declaration as the ground of the action; and, failing to offer evidence tending to prove these, it was error in the court below to refuse the defendant's prayers. The law is well established that the fact of negligence is for the jury where there is evidence legally sufficient to prove it; but, in the absence of such evidence, it is the duty of the court to withdraw the case from the consideration of the jury. All the cases hold that a scintilla of evidence,

or a mere surmise that there may have been negligence on the part of the defendant, clearly would not justify the judge in leaving the case to the jury. There must be evidence upon which they might reasonably and properly conclude that there was negligence. In the leading case of State v. Malster, 57 Md. 309, Judge Alvey, in delivering the opinion of this court, thus lays down the rule: "It is incumbent upon the plaintiff to show affirmatively all the elements of the right to recover. Unless the court can see that there is such evidence in the cause as will fairly support a verdict, if the jury should find it to be credible and proper to be made the basis of their finding, it becomes an imperative duty of the court to instruct the jury to find their verdict for the defendant. Conjecture or irrational speculation by the jury as to conclusions of fact should not be allowed; and, unless there be such proof as would justify a deduction of a rational conclusion as to the existence of the essential facts to entitle the plaintiff to recover, the instruction should be for the defendant. Otherwise there would be no certainty attained, and often the grossest injustice would be inflicted in the trial by jury."

In the case at bar there was no evidence whatever that the deceased became entangled in the rope or hawser that was thrown from the defendant's steamship to the wharf, and was thereby dragged overboard and drowned, as alleged in the declaration. On the contrary, the evidence is to the effect that he was not entangled in the rope at all, and was not dragged or pulled over by the rope, because the rope remained on the pier, after he had fallen in the water. According to the undisputed facts of the case as shown by the testimony, the deceased, while attempting to lift the rope over the last pile, lost his balance, and fell overboard, and there is no evidence whatever tending to prove negligence on the part of the defendant company in connection with it. The witness Fisher, who was present at the time of the accident, and saw the deceased when he fell overboard, testified as follows: "Q. What was he doing after you left him and went up forward? A. You see, after I went forward, he had to take the line off the cleat, and lift it on the pier-it was not on a level. Q. Wasn't it on the same level? A. No, sir; he was down on a little flat. Q. How far up did he have to take it? A. The step was about three steps, or something like that. Q. You looked down and saw him? What was he doing then? A. He had got the line over around the corner, and was bringing it along the side of the wharf to the cleat, and in bringing his line along, these little piles stick up, and this line of his was catching in them piles, and you have to swing that line over the pile, you know, to carry it along further, and he had stopped there— them piles held it—and in swinging this line, you see, in swinging over these piles, that

He

pulled him off his balance, you see." further testified that the eye of the hawser was still on the wharf after the man had fallen in the water, and he put it over the cleat. But, apart from a failure of evidence to establish that the death of the deceased was directly caused by the negligence of the appellant company or its agents, and as alleged in the pleadings, there was no legally sufficient evidence to show a failure on its part to perform any duty that it owed the appellee's husband, the omission of which caused his death, and which would support the verdict rendered in the case. This legal proposition was directly submitted by the appellant's fourth prayer. The burden of proof was upon the appellee to establish the negligence as a basis of the action; and, there being a failure of evidence in this respect tending to prove it, there was error in the refusal of the court to grant this prayer.

It is contended, however, that it was dangerous for one man alone to attempt to catch and make fast the hawser; that this danger was known to the defendant, but the plaintiff was not warned of it, and the same was without the scope of his employment. The settled principle in England and in this state, applicable to the liability of the master to his employé, is clearly stated in the case of Wood v. Heiges, 83 Md. 267, 34 Atl. 872: "When a servant is engaged to perform certain services for a compensation, it is implied, as a part of the contract, that, as between himself and his employer, he assumes all the risks incident to the service. And these risks include such as arise from the hazardous character of the service, and from the negligence of other servants in the same employment, even though they may be in a different grade. But the master himself is bound to use ordinary (that is, due and reasonable) care and diligence to provide proper materials and appliances to do the work, and in the selection and employment of competent and careful fellow servants. In addition to this the master cannot negligently expose the servant to such extraordinary perils in the course of the employment that the servant, from the want of knowledge, skill, or physical ability, cannot by ordinary care and prudence, under all the circumstances of the case, guard himself against them." State v. Malster et al., 57 Md. 307; Wonder v. B. & O. R. R. Co., 32 Md. 417, 3 Am. Rep. 143. In the case now before us there is no contention or intimation that the master did not exercise due and reasonable care in providing safe and proper materials and appliances and premises to do the character of work he was sent to do, or in the selection of fellow servants of competent skill and prudence.

The deceased was employed as a stevedore, whose general duty was to assist in loading and unloading freight on board the steamers at the wharves, and also to attend as a "line

tender"; that is, to catch the lines when the ships came in. On the day of the accident the deceased, with one Fisher, was sent from Pier 5 to Pier 6, in Baltimore city, to the steamer Nantucket, to catch her lines and make her fast to the wharf. They caught the stern line, and made it fast to the cleat. The mate of the boat then directed them to catch the forward line, and make it fast, stating that it did not take two men to attend to one line, and "sent one forward, and kept one aft." Fisher took the forward line, and made it fast. The deceased, while attempting to remove the stern line from the cleat and make it fast on another, lost his balance, and fell overboard, as heretofore stated. There was positive and uncontradicted evidence that he had been employed to do similar work on another occasion, and had caught lines before. He had worked for the company, on its wharves, for two years, in connection with mooring vessels and handling lines. There was no evidence of inexperience in the work he was sent to do, and he voluntarily undertook the employment. The risk attending and surrounding the handling the line was open, patent, and obvious, and must have been known to any man of average intelligence, and there is no proof "that any of his senses were impaired, or that he was not possessed of ordinary power of observation." There was testimony, also, to the effect that anybody could handle these lines who had worked around ships and seen lines handled, and who had sufficient "presence of mind" to do the work. In Gans Salvage Co. v. Byrnes, 102 Md. 249, 62 Atl. 155, 1 L. R. A. (N. S.) 272, it is distinctly said: "If the place was really dangerous, the appellees must have known that it was, because the means of knowledge were as open and obvious to him as to the master, and by voluntarily working there he assumed the risks of being injured by causes which were open and obvious, and he cannot hold the employer responsible in damages if those open and obvious causes produced the injuries." In Wood v. Heiges, 83 Md. 269, 34 Atl. 872, it is said: "The master is not an insurer of the servant's safety. He cannot be bound for his servant's injury without being chargeable with some neglect of duty, measured by the standard of ordinary care. On the other hand, the servant is under an obligation to provide for his own safety when danger is either known to him, or is discoverable by the exercise of ordinary care. He must take ordinary care to learn the dangers which are likely to beset him; and, where the servant is as well acquainted as the master with the dangerous nature of the instrument used, he cannot recover." Upon the whole record we are of the opinion there was a failure of evidence to prove negligence on the part of the defendant or its agents, as alleged in the pleadings, and there was a legal insufficiency of evidence to show that the death of Hazelton was caused by

failure of the appellant to discharge any of its legal duties towards him.

As to the right of recovery for alleged negligence in failing to save or rescue the deceased after he fell in the water, we need only say there was no such issue of negligence involved in the case on the pleadings. The suit was based upon a charge in the declaration for negligence in causing the deceased to be dragged overboard, by becoming entangled with a hawser thrown from one of the defendant's steamships to its wharf, and he was thereby dragged overboard and drowned. There could be no recovery, based upon subsequent negligence, under the pleadings in this case. Fletcher v. Dixon (Md.) 68 Atl. 878; City Pass. Ry. Co. v. Nugent, 86 Md. 360, 38 Atl. 779.

It follows, for the reasons given, there was error in the refusal of the court below to grant the appellant's prayers withdrawing the case from the jury, so the judgment appealed from must be reversed; and, as it is apparent the appellee is not entitled to recover, a new trial will not be awarded. Judgment reversed, with costs, without awarding a new trial.

(108 Md. 300)

ARND v. HECKERT.

(Court of Appeals of Maryland. June 24, 1908.) 1. BILLS AND NOTES-QUESTIONS FOR JURYBONA FIDE PURCHASER.

In an action on a note, whether plaintiff was a bona fide purchaser held, under the evidence, for the jury.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 7, Bills and Notes, § 1879.]

2. SAME-FACTS CONSTITUTING HOLDER IN DUE COURSE.

An instruction that if defendant signed the bill in question, and if plaintiff became the holder of the instrument in due course, the jury should find for plaintiff, was properly refused, since the facts constituting a holder in course is a question of law, and should not be left to the jury.

Appeal from Circuit Court, Allegany County; Robert R. Henderson, Judge.

Action by William Arnd against John H. Heckert. From a judgment for defendant, plaintiff appeals. Affirmed.

The prayers offered by plaintiff were as follows:

"(1) The plaintiff prays the court to instruct the jury that there is no evidence in this case legally sufficient to prove that plaintiff took or purchased the single bill offered in evidence with knowledge of any fraud in its obtention, or of any failure of consideration therein.

"(2) The plaintiff further prays the court to instruct the jury that if they find from the evidence that defendant signed the single bill offered in evidence, and shall find that plaintiff became the holder of said instrument in due course, then they must find for the plaintiff, even though they further find that said instrument was obtained from de

fendant by fraud and misrepresentations of third parties.

"(3) The plaintiff further prays the court to instruct the jury that if they find from the evidence in the cause that defendant signed the single bill sued on in this case, and shall further find that same was passed to the plaintiff for a valuable consideration before maturity, and shall further find that plaintiff purchased said single bill in good faith without notice of any fraud in its obtention or of any failure of consideration therein, then their verdict must be for the plaintiff.

"(4) The plaintiff further prays the court to instruct the jury that if they find from the evidence in the cause that the plaintiff purchased the single bill sued on for value, in good faith and before maturity, with no other knowledge that the single bill furnished on its face, then they must find that the plaintiff was a bona fide holder of said single bill, and no knowledge of fraud or want of consideration in the giving of said single bill subsequently acquired by him can affect his title as a bona fide holder for value.

"(5) The plaintiff further prays the court to instruct the jury that there is no evidence in this case legally sufficient to prove that the plaintiff took or purchased the single bill offered in evidence with knowledge of any fraud in its obtention or of any failure of consideration therein, and their verdict must be for the plaintiff.”

Argued before BOYD, C. J., and BRISCOE, PEARCE, SCHMUCKER, BURKE, and WORTHINGTON, JJ.

J. W. Scott Cochrane, for appellant. Robert H. Gordon, for appellee.

PEARCE, J. This is an action brought by the appellant against the appellee upon the following instrument of writing: "May 4th, 1906. Allegany County, Maryland. $100.00. Three months after date I promise and bind J. H. Heckert, heirs, executors, etc., to pay to R. B. Parks or order one hundred dollars for value received, bearing interest from date, at the rate of 6 per cent. per annum, and hereby waive the benefit of the homestead exemption, or any other law, that is now or may hereafter be enforced to prevent the collection of the same, and further agree to pay all attorney's fees for collecting, if collected by suit. Witness hand and seal this 18th day of April, 1906. P. O. Pinto, Md. J. H. Heckert. [Seal.] Witness: E. C. Heckert. [Seal.]" Under the negotiable instruments act (Code Pub. Gen. Laws 1904 art. 13, § 25) the addition of a seal to the maker's signature does not affect the negotiable character of this obligation, which was indorsed in blank by R. B. Parks and subsequently passed into the hands of the appellant. The declaration set out the obligation in full, and alleged that it was executed by Heckert and delivered by him to Parks, “and