in possession of a railroad and operating it were held to be within the meaning of the statute. These decisions are in line with sound reasoning and the spirit and purpose of such statutes. It was held in Funk v. St. Paul City R. Co. 61 Minn. 435, 29 L. R. A. 208, 52 Am. St. Rep. 608, 63 N. W. 1099, that the statute did not apply to street railways. But the reasons for the statute do not in any essential degree apply to such railways. Employees on such roads are not exposed to such hazards, risks, and dangers as are the employees of railroad corporations proper. The spirit and purpose of the statute must be looked to in determining its scope and application; and, as the spirit and purpose of this law was the protection of employees engaged in a hazardous and dangerous work, though the literal language thereof limits its operation to railroad corporations, we hold that it applies to any corporation or person engaged in operating a line of railroad, incident to which operation are the dangers and hazards to employees the legislature intended to provide against.

down by Sutherland, be enlarged and expanded so as to include any person, company, or corporation engaged in operating a railroad, incident to which operation are the dangers and hazards from which the legislature intended to protect the employees. Winters v. Duluth, 82 Minn. 127, 84 N. W. 788. Defendant was not organized as a railroad corporation, it is true; but it is conceded that it is operating a line of railroad equipped with engines and cars, the operation of which, so far as concerns the running of its trains, is identical with ordinary railroads, except that it is in the interests of its own private affairs. Every purpose intended to be subserved by the statute applies to it. Its servants and employees in the operation of its trains are exposed to the same dangers and hazards, if not greater, as employees of ordinary railroads; and to hold that it does not come within the statute would, in our judgment, be illogical and out of harmony with the prior decisions of the court, against the manifest intent of the legislature, and a cramped and unnecessarily restricted interpretation of the law. The mere fact that it is called a "logging railroad," and came into existence since the passage of that act, is by no means decisive of the question. It is a general rule of statutory construction that legislative enactments in general and comprehensive terms, prospective in operation, apply alike to all persons, subjects, and business within their general purview and scope coming into existence subsequent to their passage. McAunich v. Mississippi & M. R. Co. 20 Iowa, 338. And within this rule, even though a defendant is engaged in operating a "logging railroad" only, and exclusively in the interests of its private affairs; and though such railroads were not known at the time of the passage of the statute, and consequently not then in the contemplation of the legis lature, the operation of its road, in respect to the dangers and hazards to which its employees are exposed, brings it squarely within the spirit and purpose of the law; and it must, to effectuate fully the intention of the legislature, be held to be within its scope and operation. In the case of Mikkelson V. Truesdale, 63 Minn. 137, 65 N. W. 260, it was held that the statute applies to a receiver engaged in operating a line of railroad as the representative of the court, in the interests of bondholders and creditors. We are unable to point out any logical distinction between a receiver engaged in operating a railroad and a lumber company similarly engaged, in so far as applicable to this statute. A like conclusion was reached in Wall v. Platt, 169 Mass. 398, 48 N. E. 270,-a case involving a similar statute. In Daniels v. Hart, 118 Mass. 543, mortgagees on this occasion; but plaintiff relies for re

2. It is contended by appellant that there is no evidence sufficient to support the finding of the jury that plaintiff's injury was caused by defendant's negligence. The accident occurred in the nighttime, when it was very dark. The employees in charge of the logging train had been engaged in hauling car loads of logs from spur tracks to the main track of defendant's road, and plaintiff was injured in coupling two of the cars. The cars so coupled by him were loaded with logs which were so placed thereon that the ends projected over the ends of the cars to such an extent that the first effort to couple them failed, the ends of the logs coming together and preventing the coupling. The impact, however, drove the logs back on the respective cars, so that at the next attempt to couple the drawbars came together, and the coupling was made. The evidence tends to show that it was customary, in making couplings of this kind, for the engineer, when the cars being coupled came together, to stop his engine immediately, and not move it until signals were received from the person making the coupling, and after he had come from between the cars. This custom and practice are not disputed. There is evidence, also, that the brakeman making the coupling usually signaled the engineer for the purpose of guiding the movement of the engine as it approached the car to which the coupling was to be made, and that just prior to the time the cars came together a signal would be given by the brakeman to stop the engine. No such signal was given

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 v. 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 cars orate plaintiff's assertion, that the engine to make the coupling, instead of observing was not stopped. Again, plaintiff 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 car or more. 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 engine at the time plaintiff entered between the cars to make the coupling, but that the engineer did in fact stop it, by shutting off steam and reversing the machinery. It is claimed that the evidence is conclusive that the engineer exercised care and prudence, and was guilty of no failure or neglect in the respects contended for by plaintiff. If this were true, defendant should have judgment; but a careful examination of the evidence satisfies us that a case was fairly made for the jury, and their verdict in

3. It is claimed that plaintiff was guilty of contributory negligence, and that he assumed the risks incident to making the coupling in question. It is true, as a general rule, that, if a person by his own carelessness contributes to his injury, he cannot recover. It is also true that a railroad employee assumes all the ordinary risks and dangers of his employment; but this as sumption of risks extends only to such as are, in point of fact, ordinary risks of the employment. He does not assume risks and dangers resulting from the negligence of

his fellow servants. The question of plain- | signed by him, but relied wholly upon the tiff's contributory negligence is disposed of, we think, by the decision in Corbin v. Winona & St. P. R. Co. 64 Minn. 185, 66 N. W. 271,a very similar case. There the car was loaded with iron rails, and, as here, they projected over the end of the car; and, in order to make the coupling, it was necessary that the brakeman stoop over in going between the cars for that purpose. He knew the situation, and the condition in which the cars were loaded; and the court held that he was not guilty of contributory negligence, as a matter of law, but that the question was one of fact for the jury to determine. That case is on all fours with the case at bar, so far as this question is concerned, and is decisive and controlling.

statements of defendant's agent as to its contents. A similar situation was presented in the case of Christianson v. Chicago, St. P. M. & G. R. Co. 67 Minn. 94. 69 N. W. 640. It was there held, upon evidence similar to that presented in the record in this case, that the question whether the money was paid in satisfaction of plaintiff's damages, and whether the release was signed for the purpose of discharging the railroad company from liability, or whether it was procured by fraud on the part of the company's agent. were questions for the jury to determine. The verdict in that case was to the effect that the release was obtained by fraud, and this court sustained it. We discover no reason, after a careful reading of the evidence, for disturbing the finding of the jury in this case, though there are some items of evidence which tend strongly to corroborate defendant's contention, but it is by no means conclusive in its favor. Mullen v. Old Colony R. Co. 127 Mass. 86, 34 Am. Rep. 349. There are circumstances, too, tending to corroborate plaintiff's contention that the money was paid as a donation. If defendant did not deem itself liable to plaintiff on account of his injuries, no reason is apparent why it should donate to him any sum whatever; and, on the other hand, if, in its opinion, a liability in fact existed, and one which, in justice, it ought to settle, it is fair to assume, as the jury probably did, taking into consideration the nature and extent of plaintiff's injuries, that it would have offered him considerably more than the very nominal sum of $75.

4. About a month after plaintiff received his injury, and while he was still at the hospital, an agent of the defendant called upon him and paid him the sum of $75, obtaining therefor a written release of defendant of all claims for damages arising in plaintiff's favor by reason of this accident. It is claimed by defendant that this payment was made and accepted in full settlement of plaintiff's claim, that an agreement to that effect was entered into by plaintiff understandingly, and that he was fully apprised of the contents of the written release before it was signed by him. Plaintiff claims that the payment to him was stated at the time to be a donation by defendant; that nothing was said to him about the settlement of his claim for damages; that his signature to the written release was obtained by the fraudulent representations of defendant's 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.

L. F. GUNN.

(......Tenn......)

Commercial finishing material, such as doors, mantels, casings, etc., which have

NOTE. Are things placed on land with the intention of annexing them fixtures, where they are never actually attached?

I. Introduction, 892.

II. Actual annexation, 893.

III. Constructive annexation, 893.

IV. Mere intention to annex.

a. Machinery or parts thereof, 894.
b. Materials for use, repair, or recon-
struction of railroads, 897.

c. Building materials, 898.

d. Fencing materials, 901.

e. Fertilizers, 902.

V. Conclusion, 902.

been purchased for an unfinished building and placed therein, but not affixed thereto, 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.

(May 1, 1905.)

I. Introduction.

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 without 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, although 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 be of some help on the point defined in the subject of this note. Cases in which the

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

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.

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 bins v. Ayres, 4 Lea, 329. execution of the trust deed under which the property was sold; and part of it had been used, and was being used, in furnishing the house when the trust deed was executed.