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Show COURT PROCEEDINGS. j SL THEME COLRT, MeKE.LV, C. J., I EMERSON AND BO REM AN, ASSOCIATES, l'RESIDLNG. Wednesday, Oct. S. Court formally opened at 10 a.m. Minutes of Monday and Tuesday read. John R. McBride admitted to practice, prac-tice, upon motion of Frank Tilford. Attorney General Snow asktd leave to file an application for rehearing in the ease of the United States r.. Mc Allister. District Attorney Carey-gave Carey-gave notice that he desiretl time to I'jok into the case and see if he wished to oppose it. The application was then tiled with the clerk. Mr. Gilchrist moved for the final discharge of the case of Moses C. Phelps, iu bankruptcy. Discharge ordered. Upon motion of C. II. Hempstead, Charles H. Morgan was admitted to practice. The calendar was then Liken up. Silas A. Mintur r. Union Pacific Railroad; an appeal on demurrer to judgment tor costs, rendered in the Third District Court. R. X. Baskin for plaintuf; C. H. Hempstead for the defence. 'In this case the plaintiff. Mintur, upon the 6th of March, 1870, whiii. selling up a car brake, on the Union Pacific road, was thrown from the car by the giving way of the brake : and a wheel ran over his right j use. Mintur sued the road for 150,- I (MjO damages, with medical expenses i and costs; claiming that for five j months he was unable to practice his business, and w:is permanently crippled. crip-pled. Mr. Baskin opened for the plaintiff. plain-tiff. While admitting the general gene-ral rule that there was no remedy where a servant was injured by the carelessness of a fellow servant, he thought the rule could be questioned. It is a master's duty to provide sound and safe materials tor the use of his servants, and, if he docs not, he is certainly answerable lor injury to those servants. This exception is mo: e firmly established than the general gen-eral rule, and if neglect of such precaution pre-caution tloes not present good cause for action then it is impossible for a servant to recover for injuries arising ; from a defective machine. If the servant knows of such defect, it is considered "contributive negligence," and he cannot recover. In the present pres-ent case, the party couldn't have known the defect before the accident. In illustration, suppose it the du'y of a brakeraan, upon entering a station, to leave one car and go upon another, and that, the moment his feet touches touch-es tho new car it starts off, and he Lakes hold of the . brake, gives it a turn, and down down he goes. This is parallel with the case stated in the allegation, that Jim plaintiff could not know of the defe-ct in the brako, and that the defendant de-fendant could. If it was the duty of the railroad company to see that its servants had safe and secure mach- inerv. and if LliO def'eet. rnnlrl Imvo been readily detected then, under the exception to the general rule, the railroad, or master, is clearly liable lor damages. To sustain this position posi-tion various authorities were cited. Upon the question as to the acts of special or general agents making the florporation or master responsible, Mr. Baskin held that there j po reasonable dillerence. The one to whom the employer commits the control con-trol is a responsible person whether he be a general or a special agent. Mr. Hempstead for the defense claimed that tho general rule, that a master is not liable to a servant fur the neglect of a fellow servant, is undisputed. un-disputed. In Ohio, Kentucky, and I Georgia there are certain exceptions, . but iho decisions are almost unanimous on this point. The ! master does not warrant to l)is servants the skillfulness or competence of his fellow servants, , or the' safeness and security of the machinery and its appliances. Ordj- nary care and diligence are requisite, j in providing suitable servants and ma-: ma-: chincry, but a railroad is not prima faric liable- for defects in its rolling stock, rails, etc., even where the work-inaci work-inaci is employed on some particular thing, personal negligence of its general agents renders t liable, but the workman who enters its employment employ-ment is supposed to know the risks a lid hazards thereof, and must lake -die GGiistquence; and one of these risks is the negligence of fellow ser vants. If he remains in the service, nc matter how great negligence there j may be, he himself w responsible. I After argument at great length, the ' case was submitted and at half-past 1 tli roe the Court adjourned until to-day at 10 a.m. |