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down by Sutherland, be enlarged and ex in possession of a railroad and operating panded so as to include any person, com it were held to be within the meaning of pany, or corporation engaged in operating the statute. These decisions are in line a railroad, incident to which operation are with sound reasoning and the spirit and the dangers and hazards from which the purpose of such statutes. It was held in legislature intended to protect the employees. Funk v. St. Paul City R. Co. 61 Minn. 435, Winters v. Duluth, 82 Minn. 127, 84 N. W. 29 L. R. A. 208, 52 Am. St. Rep. 608, 63 788. Defendant was not organized as a rail. N. W. 1099, that the statute did not apply road corporation, it is true; but it is con- to street railways. But the reasons for the ceded that it is operating a line of railroad statute do not in any essential degree apply equipped with engines and cars, the opera- to such railways. Employees on such roads tion of which, so far as concerns the running are not exposed to such hazards, risks, and of its trains, is identical with ordinary dangers as are the employees of railroad railroads, except that it is in the interests corporations proper. The spirit and purof its own private affairs. Every purpose pose of the statute must be looked to in deintended to be subserved by the statute ap- termining its scope and application; and, as plies to it. Its servants and employees in the spirit and purpose of this law was the the operation of its trains are exposed to protection of employees engaged in a hazardthe same dangers and hazards, if not greater, ous and dangerous work, though the literal as employees of ordinary railroads; and to language thereof limits its operation to railhold that it does not come within the stat. road corporations, we hold that it applies ute would, in our judgment, be illogical and to any corporation or person engaged in out of harmony with the prior decisions of operating a line of railroad, incident to the court, against the manifest intent of the which operation are the dangers and hazards legislature, and a cramped and unnecessa- to employees the legislature intended to rily restricted interpretation of the law. provide against. The mere fact that it is called a "logging 2. It is contended by appellant that there railroad," and came into existence since the is no evidence sufficient to support the findpassage of that act, is by no means decisive ing of the jury that plaintiff's injury was of the question. It is a general rule of statu- caused by defendant's negligence. The actory construction that legislative enactments cident occurred in the nighttime, when it in general and comprehensive terms, pro- was very dark. The employees in charge of spective in operation, apply alike to all the logging train had been engaged in haulpersons, subjects, and business within their ing car loads of logs from spur tracks to general purview and scope coming into ex the main track of defendant's road, and istence subsequent to their passage. Mc- plaintiff was injured in coupling two of the Aunich v. Alississippi & M. R. Co. 20 Iowa, cars.

The cars

so coupled by him were 338. And within this rule, even though a de- loaded with logs which were so placed fendant is engaged in operating a “logging thereon that the ends projected over the railroad” only, and exclusively in the in- ends of the cars to such an extent that terests of its private affairs; and though the first effort to couple them failed, the such railroads were not known at the time ends of the logs coming together and preof the passage of the statute, and consequent. venting the coupling. The impact, howly not then in the contemplation of the legis. ever, drove the logs back on the respective lature,—the operation of its road, in respect cars, so that at the next attempt to couple to the dangers and hazards to which its the drawbars came together, and the coupemployees are exposed, brings it squarely ling was made. The evidence tends to show within the spirit and purpose of the law; and that it was customary, in making couplings it must, to effectuate fully the intention of of this kind, for the engineer, when the the legislature, be held to be within its scope cars being coupled came together, to stop and operation. In the case of Mikkelson v. his engine immediately, and not move it Truesdale, 63 Minn. 137, 65 N. W. 260, it until signals were received from the person was held that the statute applies to a re making the coupling, and after he had come ceiver engaged in operating a line of rail- from between the cars. This custom and road as the representative of the court, in practice are not disputed. There is evidence, the interests of bondholders and creditors. also, that the brakeman making the coupWe are unable to point out any logical dis- ling usually signaled the engineer for the tinction between a receiver engaged in oper- purpose of guiding the movement of the ating a railroad and a lumber company sim- engine as it approached the car to which ilarly engaged, in so far as applicable to the coupling was to be made, and that just this statute. A like conclusion was reached prior to the time the cars came together in Wall v. Platt, 169 Vass. 398, 48 N. E. a signal would be given by the brakeman to 270,-a case involving a similar statute. In stop the engine. No such signal was given Daniels v. Hart, 118 Mass. 543, mortgagees on this occasion; but plaintiff relies for re

covery, not upon a failure to obey that sig. plaintiff's favor cannot be disturbed. Plainnal, but upon a failure on the part of the en- tiff's evidence to the effect that the engineer gineer to observe the usual custom in re did not stop the engine and cars at the time spect to stopping the engine and train at the coupling was made is corroborated by unthe time the coupling is made. It is not dis. disputed evidence tending to show that fact. puted in the evidence but that the engineer It appears that there were not more than is able to tell from the jar of the train four cars attached to the engine at the when the cars come together, and, in view time the coupling was made, and five after it of the fact that it appears from his testimony was made. It further appears that, just that when they came together on this occa- before making this coupling, plaintiff and sion he did immediately stop his engine, it his fellow brakeman blocked the wheels of is not important that the usual signal to the fifth car with a large stick of timber or stop was not given. The custom being estab. wood, about 6 inches in thickness; the testilished, it is clear that plaintiff had the right mony is that (and we find nothing in the to rely upon its observance, and the failure record to dispute it), after the coupling on the part of the engineer to do so was neg- had been made, the fifth car, to use the lanligence. Romick Chicago, R. I. & P. R. guage of the witness, "passed clear over the Co. 62 Iowa, 167, 17 N. W. 458; Hooper v. blocks.” It is the claim of plaintiff that the Great Northern R. Co. 80 Minn. 400, 83 N. train proceeded a distance of a car length W. 440. Besides, it is not claimed that the and a half after the coupling was made. If failure to give the stop signal was the cause defendant's testimony that the engineer did of the continued movement of the train after in fact bring the engine and cars to a standthe coupling was made; but it is insisted by still at the time the coupling was made be appellant that the engine was in fact true, it is not very clear how the fifth car stopped, and did not move a greater distance could have passed over the blocking. The than 2 or 3 feet. It is contended by plaintiff fact that it did tends to show, and to corrobthat at the time he entered between the curs orate plaintiff's assertion, that the engine to make the coupling, instead of observing was not stopped. Again, pla tiff was the usual custom and rule as to stopping picked up after his injury at the side of the the engine when the coupling is made, the track, about the center of the third car engineer continued to move and push the from the engine, and he testified that the cars forward, in consequence of which plain-coupling was made between the fourth and tiff was injured. Because of the fact that fifth cars. It is not seriously controverted the logs extended over the ends of the cars that plaintiff was found near the track at so being coupled, plaintiff could not enter be about the center of the third car though it tween them in an erect position, but was com- is claimed by defendant that the coupling pelled to do so in a stooping position. To was made between the third and fourth. make the coupling was a dangerous under- If plaintiff's testimony that the coupling taking. He knew of the situation and the was made between the fourth and fifth cars manner in which he would be required to is true, the fact that he was found immego between the cars, and before doing so he diately after the accident at about the center called the engineer's attention to the fact, of the third car tends to corroborate his and requested him to move his engine back claim that the engine was not stopped carefully, so as to avoid any danger. As when the coupling was made, but constated, the specific charge of negligence is tinued to move forward the distance of that the engineer failed to observe the a

The truthfulness of the usual custom in respect to stopping the several witnesses was for the jury to deengine at the time the coupling was made. termine, and we are unable to see our way On this theory the case was sent to the clear to declare, as a matter of law, that the jury. The evidence on the part of the de- evidence is conclusive against the contention fendant tends to show not only that no sig. that the engineer was negligent. nal was given to the engineer to stop his

3. It is claimed that plaintiff was guilty engine at the time plaintiff entered between of contributory negligence, and that he asthe cars to make the coupling, but that the sumed the risks incident to making the coupengineer did in fact stop it, by shutting off ling in question. It is true, as a general steam and reversing the machinery. It is rule, that, if a person by his own carelessclaimed that the evidence is conclusive thatness contributes to his injury, he cannot rethe engineer exercised care and prudence, cover.

It is also true that a railroad emand was guilty of no failure or neglect in ployee assumes all the ordinary risks and the respects contended for by plaintiff. If dangers of his employment; but this as this were true, defen ant should have judg. sumption of risks extends only to such as ment; but a careful examination of the are, in point of fact, ordinary risks of the evidence satisfies us that a case was fairly employment. He does not assume risks and made for the jury, and their verdict in dangers resulting from the negligence of

car or more.

was

his fellow servants. The question of plain. | signed by him, but relied wholly upon the tiff's contributory negligence is disposed of, statements of defendant's agent as to its we think, by the decision in Corbin v. Winona contents. A similar situation was presented & St. P. R. Co. 64 Minn. 185, 66 N. W.271,- in the case of Christianson v. Chicago, St. P. a very similar case. There the car V, 6. R. Co. 67 Minn. 94. 69 N. W. 640. loaded with iron rails, and, as here, they It was there held, upon evidence similar to projected over the end of the car; and, in that presented in the record in this case. order to make the coupling, it was necessary that the question whether the money was that the brakeman stoop over in going be paid in satisfaction of plaintiff's damages. tween the cars for that purpose. He knew and whether the release was signed for the the situation, and the condition in which the purpose of discharging the railroad company cars were loaded; and the court held that he from liability, or whether it was procured was not guilty of contributory negligence, as by fraud on the part of the company's agent. a matter of law, but that the question was were questions for the jury to determine. one of fact for the jury to determine. That The verdict in that case was to the effect case is on all fours with the case at bar, that the release was obtained by fraud, and so far as this question is concerned, and is this court sustained it. We discover no decisive and controlling.

reason, after a careful reading of the evi4. About a month after plaintiff received dence, for disturbing the finding of the jury his injury, and while he was still at the hos- in this case, though there are some items of pital, an agent of the defendant called upon evidence which tend strongly to corroborate him and paid him the sum of $75, obtaining defendant's contention, but it is by no means therefor a written release of defendant of all conclusive in its favor. Jullen v. Old Colony claims for damages arising in plaintiff's R. Co. 127 Mass. 86, 34 Am. Rep. 349. There favor by reason of this accident. It is are circumstances, too, tending to corroboclaimed by defendant that this payment was rate plaintiff's contention that the money made and accepted in full settlement of was paid as a donation. If defendant did plaintiff's claim, that an agreement to that not deem itself liable to plaintiff on account effect was entered into by plaintiff under of his injuries, no reason is apparent why standingly, and that he was fully apprised it should donate to him any sum whatever ; of the contents of the written release before and, on the other hand, if, in its opinion, a it was signed by him. Plaintiff claims that liability in fact existed, and one which, in the payment to him was stated at the time justice, it ought to settle, it is fair to as. to be a donation by defendant; that noth- sume, as the jury probably did, taking into ing was said to him about the settlement of consideration the nature and extent of plainhis claim for damages; that his signature tiff's injuries, that it would have offered him to the written release was obtained by the considerably more than the very nominal fraudulent representations of defendant's sum of $75. agent; that he cannot read the English lan- Our conclusion is that the verdict of the guage, and did not read the paper or release jury must be sustained. Order affirmed.

TENNESSEE SUPREME COURT.

Barney BLUE, Appt.,

V.

been purchased for an unfinished building and placed therein, but not affixed there. to, does not pass by a sale of the real property under a mortgage foreclosure, where it is not mentioned or deemed a part of the sale.

L. F. GUNN.

(.... Tenn......) Commercial finishing material, such as

doors, mantels, casings, etc., which have

(May 1, 1905.)

I. Introduction.

NOTA.- Are things placed on land with the

intention of annering them firtures, where they are never actually attached?

1

1. Introduction, 892.
II. Actual anneration, 893.
III. Constructive annexation, 893.
IV. Here intention to annex.

a. Machinery or parts thereof, 894.
b. Materials for use, repair, or recon-

struction of railroads, 897.
c. Building materials, 98.
d. Fencing materials, 901.

e. Fertilizers, 902. V. Conclusion, 902.

It is not intended in this note to include all of the cases bearing upon the question whether an article or thing may become a fixture with out actual annexation to real property, as it has generally arisen where the chattels in dispute were in place and actually in use, or, at least, ready for the work, or business, or purpose for which they were designed and made, al. though not actually annexed or let into the real property. A few leading cases on the general subject will be referred to where it is thought they will he of some help on the point defined in the subject of this note. Cases in which the

A

PPEAL by plaintiff from a judgment of 948; Fogg v. Middlesex Mut. F. Ins. Co.

the Circuit Court for Lawrence County 10 Cush. 337; Wrom pelmeir v. Moses, 3 in favor of defendant in an action brought to Baxt. 467; Kirtland V. Montgomery, I recover the value of certain building mate. Swan, 452; Jones v. Richardson, 99 Tenn. rials alleged to have been wrongfully con- 614, 42 S. W. 440; Philadelphia Mortg. d verted by defendant to his own use. Re- T. Co. v. Hiller, 20 Wasin, 607, 44 L. R. A. tersed.

560, 72 Am. St. Rep. 138, 56 Pac. 382. The facts are stated in the opinion.

There is no ambiguity in said mortgage as Messrs. Robert B. Williams and L. B. to its meaning, and no meaning can be read White, for appellant:

into it, as its terms are plain. The property did not pass under the mort- 11 Am. & Eng. Enc. Law, p. 519, note 1, mage.

p. 520, notes 1, 2, | 2; Chicago v. Sheldon, 9 11 Am. & Eng. Enc. Law, pp. 519–521, Wall. 50, 19 L. ed. 594; Stapenhorst v. rote; Topliff v. Topliff, 122 U. S. 121, 30 L. Wolff, 3 Jones & S. 25; l'inton v. Baldicin, ed. 1110, 7 Sup. Ct. Rep. 1037; Citizens' l'ire 95 Ind. 433. Ins. Security & Land Co. v. Doll, 35 Md. 99, Simply being stored on the mortgaged 6 Am. Rep. 360; Philadelphia, W. & B. premises, though part of the property may R. Co. v. Trimble, 10 Wall. 367, 19 L. ed. 'have been used in the building, is not a issue is whether mechanics' liens reach things fitted so as, in ordinary understanding, to connot yet annexed to the freehold are omitted, as stitute a part of the structure itself. It must they turn upon the application of special be permanently attached to, or the component statutes, rather than upon the law of fixtures. part of some erection, structure, or machine

which is attached to the freehold, and without II. Actual annexation.

which the erection, structure or machine would

be imperfect or incomplete." In Capen v. Peckham, 33 Conn. 88, the court says the great weight of authority is in favor

III. Constructive annexation. of the doctrine that to constitute a fixture it is necessary that the article should be annexed to The criterion of an immovable fixture is the the freehold, as the name itself imports; but united application of these three requisites : that there is great diversity of opinion in rela- (1) Real or constructive annexation of the artition to the degree of annexation which is essen- cle in question to the freehold ; (2) appropriatial for this purpose.

tion or adaptation to the use or purpose of that In Williamson v. New Jersey Southern R. part of the realty with which it is connected ; Co. 29 N. J. Eg. 311, it is stated that the mere (3) the intention of the party making the anintention of the parties to make a chattel a nexation to make the articie a permanent acpart of the freehold does not make it a fixture ; cession to the freehold. Binkley v. Forkner. that to accomplish that result there must be an 117 Ind. 176, 3 L. R. A. 33, 19 N. E. 753. actual annexation to the freehold, though the

Where the first of these three tests may be strength of the union is not material if in fact satisfied by constructive annexation, the courts it be annexed; that the intent of the party are not in harmony as to just how far the atlixing it is only important on the question doctrine should be carried. whether he intended to make the chattel so an- A thing may be said to be constructively atnexed a temporary or a permanent accession to tached to realty where it has been annexed, but the freehold.

is separated for a temporary purpose, as in the The rule that actual annexation is necessary case of a millstone removed for the purpose of before a chattel can be turned into realty is also being dressed, or where the thing, although laid down in Brown v. Lillie, 6 Nev. 244. After never physically fixed, is an essential part of referring generally to the cases holding that something which is fixed; as in the case of keys movables of a certain class may be constructive- to a door, or the loose cover of a kettle set in ly annexed to the realty, the court says: "We brick work. Wolford v. Baxter, 33 Minn. 12, 53 do not wish to be understood as indorsing these Am. Rep. 1, 21 N. W, 744. authorities, except so far as they hold that ac- Articles held to be constructively annexed are tual annexation to the soil is necessary. All the of that class which, although movable, and pure cases deserving consideration certainly make ly personal property in themselves, yet form a that an essential requisite, while others not only part of, or are essential to the completion of, require an actual annexation, but something in something which is actually fastened to the addition thereto."

soil. As articles einbraced in this class, may be And in Wolford v. Baxter, 33 Minn. 12, 53 mentioned, the doors, windows, locks, keys, Am. Rep. 1, 2; X. W. 744, it is stated that the rings of a house, and an ordinary Virginia authorities, while not agreeing as to the neces- rail fence. Brown v. Lillie, 6 Nev. 244. sity for, or the degree of importance to be at- In Williamson v. New Jersey Southern R. Co. tached to the fact of, actual physical annexa- 29 N. J. Eq. 311, it is stated that cases of what tion, yet tiat they generaliy unite in holding are called constructive annexation are only apthat, to constitute a fixture, the thing must be parent exceptions to the general rule requiring of an accessory character, and must be in some actual annexation. The instances of construct. way in actual or constructive un'on with the ive annexation, says the court, such as keys, principal subject, and not merely brought upon doors, and windows of a house removed for a it. "To make a fixture," says the court, "it temporary purpose, a millstone taken out of the most not mereiy be essential to the business of mill to be picked, the saws and leather belting the structure, but it must be attached to it in taken to be repaired or laid aside for future some way; or, at least, it must be mechanically use, and the like, are all cases where the chattel, down for the purpose of gathering the crop, and The following things have been declared flxi ileri ip with the intention of being used over tures, although not actually annexed to the free | again,-Bishop v. Bishop, 11 N. Y. 123, 62 Am. hold: Loom beams in a cotton mill, which are Dec. 68 ; (but not as between tenant and grantee essential parts of the Jooms,--Hopewell Mills of landlord where the poles were put up by v. Taunton Sav. Bank, 150 Mass. 519, 6 L. R. tenant for his temporary use. Wing y. Gray, A. 249, 15 Am. St. Rep. 235, 23 N. E. 327 : 36 Vt. 261); a bell taken from a belfry of an ice in an ice house on premises sold for hotel old church, set up on a temporary frame on the purposes,--Hill v. Mundy, 89 Ky. 36, 4 L. R. A. lot, and intended to be placed in the tower of a 674, 11 S. W. 936, detachable chain, which was new building -Congregational Soc. v. Fleming, part of the machinery of a sawmill.-Farrar v. 11 Iowa, 533, 79 Am. Dec. 511 ; the rolling stock Stackpole, 6 Me. 154, 19 Am. Dec. 201 ; a hay. of a rallroad,-Palmer v. Forbes, 23 II. 301, fork, which was part of a plant consisting of infra; Titus v. Mabee, 25 III. 257 ; Michigan C. a track, a truck, pulleys, and the fork, the track R. Co. v. Chicago & M. L. S. R. Co. 1 Ill. App. being attached to the realty,-- McCarthy v. Mc- 399; although the weight of authority as to Carthy, 20 Can. Law Times, 211; machinery. this last-named class of property is the other or parts thereof, temporarily severed, but fatend. way. For cases holding the contrary rule, see ed to be reannexed to the freehold,-Wistow's Williamson v. New Jersey Southern R. Co. 29 Case of Gray's Inn, 14 Hen. VIII. 25 b, Cited N. J. Eq. 311, supra; Randall v. Elwell, 52 N. in report of Liford's Case, 11 Coke, 50b; Grant Y. 521, 11 Am. Rep. 747 ; Hoyle v. Plattsburgh v. Wilson, 17 U. C. Q. B. 144; Wadleigh v.

sufficient altering of its property nature as pose of completing the building, and the mato convert it into a fixture, or into realty. terial had actually been deposited in the

8 Am. & Eng. Enc. Law, pp. 41, 43; Cub- | building for that purpose at the time of the bin: v. Ayres, 4 Lea, 329.

execution of the trust deed under which the Mere intention to put this material into property was sold; and part of it had been this building without doing so is not suffi- used, and was being used, in furnishing the cient to convert it from a chattel into a house when the trust deed was executed. fixture,

Plaintiff and wife, in the trust deed, exWolford v. Baxter, 33 Minn. 12, 53 Am. pressly covenanted to keep improvements in Rep. 1, 21 N. W. 744; Arnold v. Crowder, 81 a good state of repair and preservation. Ill. 56, 21 Am. Rep. 260; Treadway v. Plaintiff moved out and left this material in Sharon, 7 Nev, 37.

the building. Mr. W. R. King, for appellee:

In determining what is a fixture the noNothing but a description of the lot or tion of physical attachment is exploded. It parcel of land was necessary to carry with it is now to be determined by the character of all the improvements on the land, and the ap- the act by which the structure is put in purtenances on the land thereunto belonging. place, the policy of the law connected with

Shannon's Code, $ 3080; Daly v. Willis, its purpose, and the intention of those con5 Lea, 104.

cerned. The most controlling test of the question Meigs's Appeal, 62 Pa. 28, 1 Am. Rep. 372. whether property connected with real estate Constructive annexation is sufficient. is to be deemed realty or a mere chattel, 13 Am. & Eng. Enc. Law, 2d ed. p. 605, removable at the pleasure of the owner, is note 3. the intention and purpose of the erection. Articles placed on the ground for the pur

Johnson v. Patterson, 13 Lea, 631; Mc-pose of annexation at once become part of David v. Wood, 5 Heisk. 95; Hopewell Mills the realty, and will pass as such. v. Taunton Sav. Bank, 150 Mass. 519, 6 L. Palton v. Moore, 16 W. Va. 428, 37 Am. R. A. 249, 15 Am. St. Rep. 235, 23 N. E. 327; Rep. 789; McFadden v. Crawford, 36 W. Va. Atchison, T. & 8. F. R. Co. v. Morgan, 42 671, 32 Am. St. Rep. 894, 15 S.. E. 408 ; Kan. 23, 4 L. R. A. 284, 16 Am. St. Rep. 471, Hackett v. Amsden, 57 Vt. 432; Conklin v. 21 Pac. 809.

Parsons, 2 Pinney, 264; Palmer v. Forbes, This material had been purchased, togeth- 23 Ill. 301; McLaughlin v. Johnson, 46 II. er with other material, for the express pur- | 163; Daniel v. Weaver, 5 Lea, 393. by actual annexatior., was once part of the rebuilding,--Moore v. Cunningham, 23 III. 328 : realty, and had been detached for temporary Beard v. Duralde, 23 La. Ann. 284 ; fence rails purposes without the intention to sever it from or materials accidentally or temporarily de the freehold. Having once been a part of the tached, but intended to be reannexed to the realty. removal temporarily without intent to land, -Goodrich v. Jones, 2 Hill, 142; McLaugh. sever perinanently does not reconvert the chat- lin v. Johnson, 46 n. 163; Ilannibal & St. J. R. tei into personalty, and destroy its character as Co. v. Crawford, 68 Mo. 80; hop poles taken a fixture.

& M. R. Co. 54 N. Y. 315, 13 Am. Rep. 595 ; Janvrin, 41 N. II. 503, 77 Am. Dec. 780 ; Se

Coe v. Columbus P. & I. R. Co. 10 Ohio St. curity (o. v. Security Co. 13 Montg. Co. L. Rep. | 372, 75 Am. Dec. 518. 126; Voorhis v. Freeman, 2 Watts & S. 116,

IV. Mere intention to annex. 37 Am. Dec. 490, infra; Pyle v. Pennock, 2 Watts & S. 390, 37 Am. Dec. 517, infra; ma

a. Machinery or parts thereof. terials from a building which has been torn down, where they are intended to be used in The cases are comparatively few in which the

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