had been so employed only a few days, he, with other employes, was accompanying the loaded cars, which were being pulled by an open motor car, and, upon nearing a railroad crossing, he was told that it was his time to turn the derail. Having had no experience in doing this, he went to the front of the motor car to see how it was done. After the derail was turned, and while the cars were moving three or four miles an hour, plaintiff, who was cold, concluded to return to the rear end of the car, where he would be better protected. While he was walking back along the running board the car gave a jerk which threw him off, or he slipped off in some manner, and his foot was crushed by the car wheels. In meeting the contention that the plaintiff, at the time he was injured, was a mere volunteer, the court said: "We are not inclined to hold that, because plaintiff at the time he was injured was not actually engaged in performing some active service for defendant, he is to be treated as a mere volunteer, and therefore not entitled to recover. It was a part of his duty to ride on the car from the quarry to the place where the stone was to be distributed. Being on the front of the car, we think he had the right to walk along the running board provided for that purpose in order to get to the rear end of the car, especially in view of the fact that the night was cold, and he could .be better protected from the inclement

weather at the rear end of the car. In doing this however, it was his duty to exercise ordinary care for his own safety, and the fact that he was so engaged did not relieve the defendant from liability for a failure to use ordinary care in the operation of the car."22

Plaintiff and others were employed by defendant railroad company to do work on a mountain, and were transported by defendant between the place of their

(22) Central Kentucky Tr. Co. v. Smedley, 150 Ky. 598, 150 S. W. 658.

A laborer employed to repair the track of a railroad company at a place several miles from his home, rode with other laborers each morning and evening to and from the place of work on a gravel train of the company. This was done with the consent of the company, and for mutual convenience; nothing being paid for the passage by the laborers, and the company being under no contract to convey the laborers to and from their work. Held, that the relation of master and servant existed between the company and the laborer during the time the latter was being conveyed to and from his work.24

In this case the court said: "If the

plaintiff was by the contract of service to be carried by the defendants to the place for his labor, then the injury was

received while engaged in the service for which he was employed, and so falls within the ordinary cases of servants sustaining an injury from the negligence of other servants. If it be not properly inferable from the evidence that the contract between the parties actually embraced this transportation to the place of labor, it leaves the case to stand as a to the permissive privilege granted plaintiff, of which he availed himself, to facilitate his labors, and is equally connected with it and the relation of master and servant."

(23) Kindellan v. Mt. Washington R. Co., 76 N. H. 54, 79 Atl. 691.

(24) Gillshannon v. Stony Brook R. Corp., 10 Cush. (Mass.) 228.

An employer arranged with certain employes to transport them to its works on Monday and return them home Saturday of each week, by way of its railroad. No fare was charged them, but their wages did not commence until they reached the works, and ceased when they left them. While being so transported an employe was injured. Held, that he occupied the position of servant at the time.25

In this case the Court disapproved the case of O'Doonnell v. Allegheny R. Co.,20 declaring that it is not sound law. In the latter case it was declared that where an

employe is carried to and from his place

of work in consideration of a deduction from his wages, that he stands in the same relation as any other person paying fare, and while being so employed he is acting independently of his employment.

An employe of a railroad company who accepted an invitation to ride on one of the company's trains towards his home after his day's work was done, was held to continue as a servant during the ride.27 The Court said that so carrying the workman was to be regarded as a priv

ilege incidental to his contract of service.

A workman employed by a railroad company to clean switches, was held to be acting in the capacity of servant while traveling between switches on one of the company's cars, on an employes' ticket, although it was Sunday and the running of the car on that day was unlawful.28

A gang of workmen employed in repairing the track of a railroad company were ordered by their foreman to quit work about fifteen minutes before the usual time and board a train which would

carry them to a station where they would receive their pay. This was according to a monthly custom, and they were not

(25) Vick v. New York Cent., etc., R. Co., 95 N. Y. 267. 47 Am. Rep. 36.

(26) 59 Pa. St. 239, 98 Am. Dec. 336. (27) Iannone v. New York, etc., R. Co., 21 R. I. 452, 44 Atl. 592, 46 L. R. A. 730, 79 Am. St. Rep. 812.

(28) Shannon v. Union. R. Co., 27 R. I. 475, 63 Atl. 488.

charged for the passage. In attempting to board the train one of the men was struck by a hand car operated by another gang of men. Held, that he was in the service of the company as a servant at the time of the injury.29

A railroad company engaged in ballasting its road, employed a workman to assist in loading and unloading a gravel train. In the execution of the work it. was necessary for the workman to ride on the train between the gravel pit and the place of unloading. The train was run under the direction of a conductor, the management of it. Held, that while and the workman had nothing to do with riding on the train the workman occupied towards the company the relation of

servant.30

An employe was engaged by a railroad company by the month in the capacity of baggage master and conductor of passenger and gravel trains, at such times. and places as directed. He was ordered to go to a certain station and take charge of a gravel train the next day at that place. He boarded a train but passed the station he was directed to go to, and went to the next. On the following morning he was returning to the station where he had been ordered to go, when employe in charge of the train. he was injured by the carelessness of an Held, that he was to be regarded as an employe at the time, and a fellow servant of those in charge of the train."1

In St. Louis, I. M. & S. R. Co. v. though an employe being transported to Wiggam, the rule is stated that, alhis place of work is not a passenger, the railway company owes him the duty to exercise ordinary care for his transportation, and he is bound to exercise such ordinary prudence would exercise under care for his own safety as a person of

the circumstances.

St. Louis, Mo.

C. P. BERRY.

(29) O'Brien v. Boston, etc., R. Co., 138 Mass. 387, 52 Am. Rep. 279.

(30) Kumler v. Junction R. Co., 33 Ohio St. 150. (31) Manville v. Cleveland, etc., R. Co., 11 Ohio St. 417.

(32) Ark. 1911, 135 S. W. 889.

CARRIER OF GOODS-IMPROPER PACKING.

NORTHWESTERN MARBLE & TILE CO. v. WILLIAMS.

Supreme Court of Minnesota. March 5, 1915.

151 N. W. 419.

(Syllabus by the Court.)

If improper packing is apparent to the carrier or his servants, then the carrier may refuse to receive the shipment. If he does receive the shipment, he assumes to carry the goods as they are, and the full common-law liability as carrier attaches.

HALLAM, J. Plaintiff, a dealer in marble in Minneapolis, shipped a number of marble slabs by rail to the state school for the feebleminded at Faribault. Defendant is in the transfer business at Faribault. He was engaged to haul the marble from the railway station at Faribault to its destination. The marble was packed in crates, and on the way some of the crates fell from the wagon and several slabs were broken. Plaintiff sued for damages. The jury found for defendant. Plaintiff moved for judgment notwithstanding the verdict, but did not ask for a new trial, and the court denied the motion. This appeal involves only the question of the correctness of this ruling.

[1] 1. Plaintiff assigns as error certain rulings of the court in the admission of evidence and in the charge to the jury. If plaintiff were asking for a new trial, it would be proper to consider these assignments of error; but they are quite immaterial on this appeal. A party against whom a verdict has been returned may move in the alternative for a new trial or for judgment notwithstanding the verdict. G. S. 1913, § 7998. When he moves only for judg ment, and rests upon that motion alone, he cannot on appeal be awarded a new trial. He has waived all errors which would be ground only for a new trial. Bragg v. Chicago, M. & St. P. Ry. Co., 81 Minn. 130, 83 N. W. 511; Krumdick v. C. & N. W. Ry. Co., 90 Minn. 260, 95 N. W. 1122; Sallden v. City of Little Falls, 102 Minn. 358, 113 N. W. 884, 13 L. R. A. (N. S.) 790, 120 Am. St. Rep. 635; Helmer v. Shevlin-Mathieu Lbr. Co., 151 N. W. 421, filed herewith. Errors in the admission of evidence or in the charge to the jury are of this sort. They present no ground for judgment notwithstanding the verdict. Final judgment cannot be given to the defeated party because the cause was erroneously tried. Such new party may, if he asks for it, be entitled to a new trial on this ground,

but never to final judgment. The question before us is, not whether the case was properly tried, but whether there is any competent evidence reasonably tending to sustain the verdict. If so, the verdict must be sustained. In determining that question, every intendment will be indulged in favor of the verdict, and judg ment will only be granted when the evidence is conclusive against the verdict. Cruikshank v. St. Paul Fire & Marine Ins. Co., 75 Minn. 266, 77 N. W. 958; Fohl v. C. & N. W. Ry. Co., 84 Minn. 314, 87 N. W. 919; Marengo v. Great Northern Ry. Co., 84 Minn. 397, 87 N. W. 1117, 87 Am. St. Rep. 369; Fischer v. Sperl, 94 Minn. 421, 103 N. W. 502; Stebbins v. Martin, 121 Minn. 154, 140 N. W. 1029.

[2] 2. We address ourselves, therefore, to this question of the sufficiency of the evidence to sustain the verdict. Defendant was admittedly a common carrier of goods. A common carrier of goods in general insures the safe transportation of goods committed to him for that purpose, and he is responsible for all damage to the same while in transit, unless such damage is occasioned by certain excepted causes. These excepted causes are act of God, act of public enemy, the inherent quality or "proper vice" of the articles themselves, or some act or omission of the shipper or owner. Christenson v. American Express Co., 15 Minn. 270 (Gil. 208), 2 Am. Rep. 122; Goodman v. O. R. & N. Co., 22 Or. 14, 28 Pac. 894.

Defendant contends that this case comes within the last exception; that is, the contention is that the marble slabs were not properly packed or crated by the shipper, that when they were transferred to wagons they were loaded in the proper and practicable way and were braced in the usual and proper way by means of boards running from the top of the crates to the bottom of the wagon bed, but that they fell by reason of the fact that the crating was worm-eaten, dozy, and decayed, so that it would not properly hold the nails driven into it for that purpose.

The general rule is that, where the shipper packs articles for shipment, he cannot recover from the carrier for injuries due to improper packing. Hutchinson, Carriers, § 233; Shriver v. S. C. & St. P. R. Co., 24 Minn. 506, 31 Am. Rep. 353. Some authorities apply here the rules of contributory negligence, and hold that if the bad packing contributes in any measure to the loss or injury the carrier is not liable. 5 Thompson, Negligence, § 6465. See Reed & 'Walker v. P., W. & B. R. R. Co., 3 Houst. (Del.) 176, 212; Ross v. Troy & Boston R. Co., 49 Vt. 364, 24 Am. Rep. 144. It appears to us that the rules of contributory negligence have no ap

plication to such a case.

gence of plaintiff is a defense only in cases where the action is founded on negligence of defendant. Here the action is not founded on negligence of the carrier at all. The carrier's common-law liability is founded, not on negligence, but "on broad principles of public policy and convenience, and was introduced to prevent the necessity of going into circumstances impossible to be unraveled." Arthur v. St. Paul & Duluth R. Co., 38 Minn. 95, 100, 35 N. W. 721. It would be a distinct extension of the doctrine of contributory negligence to apply it to a case of this kind, and an extension which we believe to be unwarranted. On proof of the contract of carriage and of loss or damage, liability is prima facie established. To relieve himself from liability, the carrier must prove that the loss or damage arose solely from one or more of the excepted causes, and it avails him not to show that the shipper was negligent, if the loss or damage would not have resulted, except for the concurring fault of the carrier. The proof must bring the case "entirely and perfectly within the exception." This view is sustained by the weight of authority. McCarthy & Baldwin v. Louisville & Nashville R. Co., 102 Ala. 193, 14 South. 370, 48 Am. St. Rep. 29; Hutchinson, Carriers, § 333; 1 Moore on Carriers, 559; Elliott, Railroads, § 1492.

[3] 3. It is admitted that defendant discovered that the condition of the crating was defective at the time the marble was loaded on his wagon. It is claimed he thereby assumed all the responsibility of carrying it in its defective condition. There is some authority for the proposition that the full duty of the carrier is simply to carry goods in the condition offered, though the defect in loading or packing is apparent, and that if in such case injury results from such defective loading or packing the carrier is relieved. Ross v. Troy & Boston R. Co., 49 Vt. 364, 24 Am. Rep. 144. See Union Express Co. v. Graham, 26 Ohio St. 595. The better and the more general rule seems to be that, if goods presented for carriage are not properly packed, and that fact is apparent to the carrier or his servants upon ordinary observation, then the carrier may refuse to receive the goods in that condition; but, if he does see fit to receive them, he assumes to carry them as they are, and his full common-law liability as carrier attaches to the contract of carriage. McCarthy & Baldwin v. Louisville & Nashville R. Co., 102 Ala. 193, 14 South. 370, 48 Am. St. Rep. 29; E., J. & E. Ry. Co. v. Bates Machine Co., 98 Ill. App. 311; Elgin, etc., Ry. Co. v. Bates Machine Co., 200 111. 636, 66 N. E. 326, 93 Am. St. Rep. 218; The David & Caroline, 5

American Express Co., 21 Wis. 21, 91 Am. Dec. 452; Atlantic Coast Line R. Co. v. Rice, 169 Ala. 265, 52 South. 918, 29 L. R. A. (N. S.) 1214, Ann. Cas. 1912B, 389; Hannibal Railroad v. Swift, 12 Wall. 262, 20 L. Ed. 423; 1 Moore on Carriers, 559.

[4] 4. It cannot be said, however, that the carrier must, at his peril, know that the goods are not in fact safely packed. The shipper usually knows better than the carrier the manner in which the goods have been packed and the manner in which they should be packed, and even though the carrier may have knowledge of some defect in the packing, still if it is not apparent to the ordinary observation of the carrier or his servants that the goods cannot be safely carried in the condition in which they are presented, the carrier should not be held to take the chances of injury from improper packing. See Jaggard, Torts, 1064; McCarthy & Baldwin v. Louisville & Nashville R. Co., 102 Ala. 193, 14 South. 370, 48 Am. St. Rep. 29. It is right here that we think the evidence in this case presents a question of fact for the jury to determine whether it was manifest to the defendant that the marble could not be carried with safety in the manner in which it was crated.

The motion for judgment was therefore properly denied, and the judgment is affirmed. HOLT, J., took no part.

NOTE. Contributory Negligence of Shipper in Improper Packing.-It must be considered settled that a carrier has the right to refuse to receive for transportation goods that are improperly crated or packed. 4 Elliott, Railroads § 1466; I Hutchinson, Carr. §§ 143, 145. There arises the question what is the liability of the carrier, where it accepts for transportation such goods? There seems to be a view with regard to such goods, where the improper packing or crating is apparent, and where it is not apparent.

It has been held that if two many live fowls are packed in a crate, the loss for such a reason falls on the shipper. But this was a case in which it was said in effect that the overpacking was not apparent. Cohn v. Platt, 95 N. Y. Supp. 535. The same may be said where a demijohn of whisky was packed in a champagne case intended to carry separate bottles. Morris v. Wier, 46 N.. Y. Supp. 413. And where fruit trees and berry plants are shipped, the fact that the packing could not keep them for more than three days was not evidence of an apparent improper packing in a journey to last longer than that. Farmers' Nursery Co. v. Cowan, 21 Sup. Ct. 192. And a dog with a leather collar, which he slips and escapes, this is not apparently improper securing of the dog. Richardson v. N. E. R. Co., L. R., 7 C. P. 75, Eng. Rul. Cas. 329. But where two dogs were crated in

a box and escaped therefrom, the carrier was held to have taken the risk of such escape, this seemingly being deemed by the court an absolute liability without respect to the appearance of the

crate. Atlantic C. L. R. Co. v. Rice, 169 Ala. 265, 52 So. 918, 29 L. R. A., N. S., 1214.

In this case the court said: "In this instance the character of the shipment, viz.: live animals in a box or crate, and their natural propensity to escape confinement, were known to appellant's (railroad's) servants. The tender for transportation was of these animals, and not, primarily, of the box or crate, which was but a means to conserve convenience of custody and handling and the safety of animals within it. If the dog had been leashed with cords attached to a heavy block, there would have been in principle, no difference. If that had been the means employed, the carrier could not, after acceptance of the shipment, have answered, when impleaded for the loss or injury to the animal that the cord was too sleazy to serve the purpose, and hence that the shipper was negligent in that regard, with the result that he could not recover for the loss or injury."

This case relied on Hannibal & St. J. R. Co. v. Swift, 12 Wall. 262, 20 L. ed. 423, as an apparent improper securing of an animal offered for ship

ment.

In Calender-Vanderhoof Co. v. Railroad, 99 Minn. 295, 101 N. W. 402, it was held not contributory negligence by shipper to pack apples in bulk in an ordinary box-car instead of in barrels, or in a refrigerator car, where they were liable to encounter frost. But the carrier was found to have done all it could to save the apples in the condition in which they were shipped, and for this reason there was evidence tending to show exoneration and a new trial was ordered.

In Revilla Fish, etc., Co. v. Am. & S. Co., 77 Wash. 49, 137 Pac. 337, it appears to have been held that improper packing does not constitute contributory negligence, nor does acceptance make the carrier liable just as if goods were properly packed, there being no bill of lading issued until after shipment had begun. The carrier might be liable or not, according to the terms of shipment or their modification.

It was held in a Texas case that improper loading of perishable freight by direction of shipper did not as matter of law constitute contributory negligence on his part, the carrier having the duty to properly load it. St. L.-S. W. R. Co. v. Waldert Gro. Co. (Tex. Civ. App.) 144 S. W. 1194.

Many cases of animal shipments hold that it is contributory negligence for a shipper to so ship them that they escape and if loss arises therefrom it is the shipper's loss, irrespective of the question of carrier's acceptance. St. Louis, etc., R. Co. v. Law, 68 Ark. 218, 57 S. W. 258; Chapin v. Railroad, 79 Ia. 582, 44 N. W. 820; Susong v. Railroad, 115 Ga. 361, 41 S. E. 566.

And it seems doubtful whether the rule applied in an animal case, as by the Rice case supra, is entirely consistent with the rule declared in a prior decision by the same court as to other goods, it being held that if the proximate cause of their being lost was negligence by shipper in marking or packing. Broadwood v. Express Co., 148 Ala. 17, 41 So. 769. If a shipper on his own side-track loads a car, improper loading resulting in loss makes it his loss. Penn. Co. v. Kenwood Bridge Co., 170 Ill. 645, 49 N. E. 215. But if a carrier furnishes a defective car, the loss, though the shipper uses it, falls on the carrier, notwithstanding shipper inspects the car and knows of its defects. St. L. I. M. & S. R. Co., 74 Ark. 597, 86 S. W. 802.

If shipper undertakes to ice a refrigerator car, the carrier may assume he will do this properly. Railroad v. Reyman, 76 N. E. 970, 166 Ind. 278.

A shipper is not responsible for cars being insufficiently iced, before their departure, by the company, though he is aware thereof, if he had no opportunity to remedy the situation. Johnson v. Railroad, 133 Mich. 596, 95 N. W. 724.

Upon the whole, it seems to us, that if loss is directly attributable to shipper's fault in improperly packing or crating, mere acceptance by carrier does not put upon it any more than the duty to care for the property in the condition in which it is delivered to it. C.

JETSAM AND FLOTSAM.

SINN AND HELL DIVORCED.

That the Bible is not a closed book to lawyers, or at least to law editors, is abundantly proven by the unusual interest taken by many of our contemporaries in the following headline that appeared in one of the St. Louis papers: "Two Women Set Free from Sinn and Hell."

While this startling announcement was hardly justified by the two very prosaic divorce proceedings to which attention was thus attracted, yet some of our contemporaries seriously argued that Hell has by this decision been judicially located in St. Louis.

Quite the contrary, as it seems to us. The St. Louis courts, in dragging a woman away from Hell has accomplished something that judges in other jurisdictions would shrink from attempting, feeling perhaps that they had no right to do for another what they could not do for themselves.

Another contemporary observes that one woman got Hell when she married in St. Louis. But that does not prove that some women who marry in other cities do not share the same fate.

At any rate, Sinn and Hell have discovered that the hand of the law is against them in St. Louis, and they both will be more careful hereafter in snaring their game in that city.

BOOK REVIEWS

BRANSON'S INSTRUCTIONS TO JURIES.

This book by Mr. Edward R. Branson, of Springfield, Illinois, Bar, is a very excellent volume both for the introductory part in which is explained principles of law involved in the framing of instructions and in the approved forms which follow.

The introductory portion of the work is exceedingly well done, both in arrangement and