The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1899-05-30

tty Decided Otherwise.
The judges of the United States circuit
court of appeals filed two opinions yes
terday. and in both Judge Caldwell dis
sents from the opinions of Judges San
born and Thayer.
In the case of Flora Myers, as admin
istratriX of the estate or Edward Myers,
deceased. plaintiff in error against the
Chicago St Paul, Minneapolis & Omaha
railway. which came up from the circuit
court OF the district of Minnesota, the
Judgment of the lower court is affirmed,
with costs.
Edward Myers. while employed as a
brakeman by the defendant. was killed
Instantly on Feb. IA. 1896. while riding on
top of a freight train. Near Hudson,
Wis. he struck his head against low
bridge with fatal results. In the lower
court the judge directed a verdict for the
defendant.
In dissenting from the opinion of the
majority Judge Caldwell says:
1T is elementary that it is the absolute
duty of the employer to furnish the en-
ploYe a reasonably safe place to work.
having regard to the kind of work, and
the place and conditions under which it
kinds of work are necessarily attended
with dangers to the employe which the
employer cannot remove or abate by the
exercise OF reasonable care and diligence,
and when this is the case the employee
takes upon himself all the risks incident
to the employment. But the employe does
not take upon himself extraordinary and
unnecessary risks. dangers which do not
inhere in the business, but are the result
of the want of reasonable care and
diligence on the part OF the employer.
Where, by the exercise of ordinary care
and diligence, the employer can make
safe or render less dangerous the place
where the employee is required to work,
it is his duty to do so, and failing in
this duty. he IS guilty of a continuing
act of Culpable negligence. Some extern
United the bridges to have been higher
without increasing the grade of the
streets There never existed any neces-
Sity for placing the overhead timbers at
the deadly height. 1t was an act of
gross negligence to do So"
In an opinion written by Judge Sanborn
the court reverses the lower court in the
case of Joseph Whalen, plaintiff in error
against G.. l.. Gordon ct al, defendants
In error. which came up from the north
ern district of Iowa The defendants, as
the Tiger Horse company, In March, 1882.
purchased a horse of Whalen, paying $l00
cash and 81. 700 in notes. A written war
rahty was given with the animal, and the
horse company afterwards sued for the
dnnulUneHI VI the lOlSSS OH lhc 6IOuiLA
that the animal had not come up to the
warranty. The lower court found for the
plaintiff, and the decision Is reversed.
In his dissenting opinion Judge Cald-
well says:
1.-The substantial cause of action was
the same whether the plaintiff counted
upon the breach Of the warranty or upon
a recession of the contract for the price
and keep of the horse because of the
breach of the warranty. The same testt
nTlN a
either form of, the complaint, and the
testimony shows that the recovery
would have been substantially. If not
identicaIIy, the same under either form.
To deny a recovery on these facts is to
refine away. the plain justice and right
of the case by reviving the bubbles and
technicalities of common law pleading
which were abolished in Iowa nearly fifty
years ago, Judge Shiras, whose famil
iarity with the iowa code and the decis-
ions of the supreme court of that state
is well known, held that the action was
not barred and of the soundness of that
CONFUSION there can be no doubt"