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factured to answer a purpose made known the boilers, there was present in the case to the manufacturer, which purpose the the affirmative fact that the hotel had in manufacturer said his machine would ac- prior use similar boilers. So that the purcomplish. Whether or not it could do so chaser not only had its own engineer run could not possibly be known to the pur- and operate the boiler, but it had a special chaser until the machine was pat in actual knowledge of the quality and properties of operation in the field in Iowa. The vendor the Missouri river water. While there was knew that the machine it was to manufac present in the case knowledge on the part ture would not meet the purpose of the of the vendor that Missouri river water was vendee unless it could be successfully oper. to be used in operating the boilers, it could ated in the earth to be bored into through not be said that the vendee had any right such strata to overcome the defects of the to rely upon the fact that the vendor knew diamond drill. It was sold to accomplish i the use to which the boilers were to be put. this very object. Thereupon the agent of It was of this character of case that evithe vendor turned to his desk, and, in the dence was excluded tending to show the form of a letter or proposition, stated, not knowledge of the plaintiff as the basis of as in the contract in the Seitz Case, 141 U. invoking an implied warranty. It S. 510, 35 L. ed. 837, 12 Sup. Ct. Rep. 46, therefore better be understood why the that the company agreed to furnish a ma- learned judge, while stating in the first par. chine “as constructed by the party of the agraph of the opinion that, "where a manufirst part,” but “we propose to furnish you facturer contracts to supply an article which one Class F3 drill,” with certain equip he manufactures to be applied to a parments, which proposition Mallory's agent ticular use, of which he is advised, so that instantly accepted at the bottom of the sub- the buyer necessarily trusts to the judgment mitted letter.

and skill of the manufacturer, there is an If it is to be established as law that such implied warranty that the article shall be method of concluding such transactions pre- reasonably fit for the use to which it is to cludes the vendee from asserting an implied be applied,” he then said: “But when a warranty that the machine to be manufac- known, described, and definite article is ortured is suitable to the use for which the dered of a manufacturer, although it be manufacturer is advised the purchaser is stated by the purchaser to be required for a buying it, it does seem to me that the particular use, yet, if the known, described, doctrine of implied warranty can afford no and definite thing be actually supplied, there protection to the confiding purchaser against is no implied warranty that it shall answer the smart secretary of the manufacturer. the particular purpose intended by the buyThe case of Grand Ave. Hotel Co. v. Whar.

Here the purchaser contracted ton, 24 C. C. A. 441, 49 U. S. App. 108, 79 for a definite, well known kind of boiler; Fed. 43, when read with regard to the par- | its president having then a boiler of the ticular facts of that case, and the qualify- same kind in use."

From which it is apparing language of Judge Lochren, furnishes ent that the ruling was based upon the little support to the majority opinion. There proposition that the buyer in that case was was a written contract in that case, where bargaining for a specific article known to by the defendant agreed to furnish and de- him. liver to plaintiff, on the cars at Philadel. Mr. Justice Harlan, in Kellogg Bridge Co. phia, two certain described safety boilers, v. Hamilton, 110 U, S. 108, 28 L. ed. 86, 3 of 150 horse power each, and the services of Sup. Ct. Rep. 537, cited in the foregoing a man to put them up, for a given sum, to opinion, discussing the applicability of the be paid for as specified; the contract con- doctrine of implied warranty, summed up taining specifications of the material and the rules as follows: "According to the the construction of the boilers in their parts. principles of decided cases, and upon clear The defense interposed was that the vendor grounds of justice, the fundamental inquiry knew that the boilers were to be used in the must always be whether, under the circumMidland hotel at Kansas City, and that the stances of the particular case, the buyer water to be used in operating them was sup- had the right to rely, and necessarily replied from the Missouri river. The conten- lied, on the judgment of the seller, and not tion was that the company should have tak. upon his own. In ordinary sales the buyer en notice of the quality of that water, as has an opportunity of inspecting the article to the amount of sand it contained in solu- sold, and, the seller not being the maker, tion, which rendered the use of the boilers and therefore having no special or technilargely ineffective. Aside from the fact that cal knowledge of the mode in which it was there was nothing in the evidence to show made, the parties stand upon the grounds any knowledge on the part of the vendor as of substantial equality. If there be, in fact, to the peculiar properties of the water of in the particular case, any inequality, it is the Missouri river is affecting the use of such that the law cannot, or ought not to at


tempt to provide against. Consequently the company, which alone of the parties to the buyer in such cases—the seller giving the contract had or could have knowledge of no express warranty and making no repre- the manner in which the work had been sentations tending to mislead-is holden to done. The law therefore implies a warranty have purchased entirely on his own judg- that this false work was reasonably suitment. But, when the seller is the maker or able for such use as was contemplated by manufacturer of the thing sold, the fair both parties. It was constructed for a parpresumption is that he understood the proc. ticular purpose, and was sold to accomplish ess of its manufacture, and was cognizant that purpose; and it is intrinsically just of any latent defect caused by such process, that the company, which held itself out as and against which reasonable diligence possessing the requisite skill to do work of might have guarded. This presumption is that kind, and therefore as having special justified in part by the fact that the manu- knowledge of its own workmanship, should facturer or maker by his occupation holds be held to indemnify its vendee against lathimself out as competent to make articles ent defects arising from the mode of conreasonably adapted to the purposes for struction, and which the latter, as the comwhich such or similar articles are designed. pany well knew, could not by any inspection When, therefore, the buyer has no oppor discover for himself.” tunity to inspect the article, or when, from In Pullman's Palace Car Co. v. Metropolthe situation, inspection is impracticable or itan Street R. Co. 157 U. S. 94, 39 L. ed. useless, it is unreasonable to suppose that 632, 15 Sup. Ct. Rep. 503, the contract for he bought on his own judgment, or that he the building of the cars by the Pullman did not rely on the judgment of the seller company was in writing, containing specias to latent defects of which the latter, if fications as to the thing to be made and he used due care, must have been informed shipped,-as much so as in the case at bar. during the process of manufacture. If the Notwithstanding the fact that the contract buyer relied, and, under the circumstances, provided for an inspection of the cars after had reason to rely, on the judgment of the completion, by the purchaser's expert engiseller, who was the manufacturer or maker neer, before they were delivered, it was conof the article, the law implies a warranty tended by the vendee, when sued for the purthat it is reasonably fit for the use for chase money, that there was an inherent dewhich it was designed; the seller at the fect in the brakes furnished for the cars, time being informed of the purpose to de- not discoverable by inspection, and that vote it to that use.

In the cases

there was an implied warranty of such of sales by manufacturers of their own ar- | latent defects in the cars. As the Pullman ticles for particular purposes, communi- company was advised that the cars to be cated to them at the time, the argument manufactured were to be operated on a parwas uniformly pressed that, as the buyer ticular line of road, with peculiar, acute could have required an express warranty, curves, requiring brakes especially adapted none should be inplied. But plainly such thereto, it was held that there was an iman argument impeaches the whole doctrine plied warranty on the part of the manufacof implied warranty, for there can be no turer that the brakes constructed by it as a case of a sale of personal property in which part of the machinery would meet the rethe buyer may not, if he chooses, insist on quirements of the purchaser. Inasmuch as an express warranty against latent defects." | the defendant had accepted the cars, and the

In that case there was a written contract only defect was the insufficiency of the as to what the parties were to do in com- brakes, which the vendee had the means of pleting the bridge, in connection with the supplying, it was ruled that it could recoup work already done by the bridge com- for the difference which it would cost to pany.

There was no express warranty equip the cars with such obtainable brakes. about the character of the work the bridge The utility of the machinery furnished by company had already done. But the bridge the plaintiff company in this case consisted company knew that Hamilton was to use entirely in the adaptability of the drill bit the structure for a particular purpose. Its to accomplish the required boring in the internal construction and adaptability were peculiar strata formation where Mallory known to the bridge company, but pre- was exploring for coal. While the plaintiff sumptively could be known to Hamilton submitted in writing an itemized specifionly after using it. Of this situation the cation of the equipment to be furnished by learned judge said: “The buyer did not. it, and the cost thereof, and Mallory agreed because, in the nature of things, he could by the acceptance to pay the sum specified, not, rely on his own judgment; and, in it was practically contemporaneous with the view of the circumstances of the case and information given the manufacturer by the the relations of the parties, he must be purchaser as to the particular use to which deemed to have relied on the judgment of it was to be applied, and with the knowl

edge that, unless it accomplished the desired purpose for which it is bought, a warranty work, it would be practically useless to the that it is fit for the specified use, and when purchaser. It does seem to me, therefore, the manufacturer knows that the vendee is that if there can be a case where the law relying upon the manufacturer's superior writes into the executory contract, where knowledge of the fitness of the machine, this the manufacturer undertakes to manufac. is clearly a proper case for the application ture a machine with full knowledge of the of this wholesome rule of law.



the stile; had pot assumed control thereof;

it had no right to enter on the grounds BOONE SUBURBAN RAILWAY COM of the North Western Railway Company, PANY, Appt.

either to inspect, repair, or rebuild the

stile; and it therefore owed the plaintiff (125 Iowa, 46.)

no duty to inspect, repair, or rebuild it.

3 Thomp. Neg. $ 3352; Veeder v. Little 1. A railway company which expressly Falls, 100 N. Y. 343, 3 N. E. 306; Quimby or by implication invites its passen

v. Boston & M. R. Co. 69 Me. 340; Teras gers to use a stile over a wire fence in leaving its grounds is bound to use at least & N. 0. R. Co. v. Dessommes (Tex.) 15 S. ordinary «care in seeing that it is fit for the W. 806. purpose intended, although the stile was not Il essrs. C. T. Cotant and Ganoe & erected by it, and the defective part is not on Hollingsworth, for appellee: its property, but where it has no right to go

Plaintiff was not required to take more to make inspection or repairs.

than a casual observation of the stile be2. Damages for future suffering be

cause of a negligent injury may be al. fore attempting to cross it. He would be lowed where plaintix is still suffering at the justified in assuming defendant had done time of trial, and experts testify that the in

its part. jury will probably be permanent.

Pennsylvania Co. v. Marion, 123 Ind. 415, 3. The questions of the provision of a 7 L. R. A. 687, 18 Am. St. Rep. 330, 23 N. reasonably safe and accessible exit

E. 973; Lucas v. Pennsylvania Co. 120 Ind. from a railroad terminal, and of the negligence of a passenger injured by attempt

205, 16 Am. St. Rep. 323, 21 N. E. 972. ing to use a stile over a wire fence for that

The conduct of defendant placed plaintiff purpose, are for the jury, where the evidence in the position in which he was, and what shows that there was an opening through would amount to ordinary care on plainthe fence 40 rods away, and another 400 or

tiff's part would be negligence when viewed 500 feet away, not in sight, which might have

from the standpoint of defendant. been closed on the day of the accident.

Hall v. Murdock, 114 Mich. 233, 72 N. 4. Passengers have a right to assume

W. 150. that means of egress from the carrier's terminat grounds are reasonably safe.

Plaintiff would not be compelled to fore5. A carrier cannot delegate to another go the use of the stile, even though there

the duty of seeing that the means of egress were some apparent dangers in its use, if from its terminal grounds are reasonably safe. he exercised care commensurate with the

added danger. (April 6, 1904.)

Pennsylvania Co. v. Marion, 123 Ind. 415. PPEAL by defendant from a judgment 7 L. R. A. 687, 18 Am. St. Rep. 330, 23 A

of the District Court for Boone County N. E. 973. in favor of plaintiff in an action brought to Where a person is injured, without neg. recover damages for personal injuries al. lect on his part, by a defect in a way or pasleged to have been caused by defendant's sageway over which he has been induced to negligence. Affirmed.

pass, for a lawful purpose, by an invitaThe facts are stated in the opinion. tion, express or implied, he can recover dam

Messrs. W. W. Goodykoontz and Dow- ages for the injury sustained, against the ell & Parrish, for appellant:

party so inviting, or being in fault for the The street railway company did not erect | defect.

VOTE.--As to duty of carrier to provide safe safe, see note to Johns v. Charlotte, C. & A. means at entrance to and exit from its stations, R. Co. 20 L. R. A. 520. see also, in this series, Delaware, L. & W. R. As to duty to maintain safe approaches beCo. v. Trautwein, 7 L. R. A. 435.

yond its premises, see note to Skottowe v. OreAs to measure of care which a carrier must gon Short Line & U. N. R. Co. 16 L. R. A, 593, exercise to keep its platforms and approaches

Tobin v. Portland, S. & P. R. Co. 59 Me., agents or servants, so carelessly and negli183, 8 Am. Rep. 415; Carleton v. Franconia gently constructed, appropriated, mainIron & Steel Co. 99 Mass. 216; Skottowe v. tained, and used said unsafe and dangerous Oregon Short Line & U. N. R. Co. 22 Or. ladder and stile, and so negligently and care. 430, 16 L. R. A. 593, 30 Pac. 222; Corrigan lessly failed, refused, and neglected to assist vi Elsinger, 81 Minn. 42, 83 N. W. 492; plaintiff at any time or in any manner in Brezee v. Powers, 80 Mich. 172, 45 N. W. getting over said ladders or stile or barb130; Stewart v. Cincinnati, W. & M. R. Co. wire fence, in departing from the defendant's 89 Mich. 315, 17 L. R. A. 539, 50 N. W. said grounds, and so failed, refused, and neg852; Burnett v. Burlington & M. R. Co. 16 lected to provide safe means of egress and Neb. 332, 20 N. W. 280; Lillstrom v. North ingress from or to said grounds, as to cause ern P. R. Co. 53 Minn. 464, 20 L. R. A. each and all of the damages set out in the 587, 55 N. W. 624; Emery v. Minneapolis petition; that said stile or ladder was so Industrial Exposition, 56 Minn. 460, 57 N. defectively constructed of light and defecW. 1132.

tive timber as to break and give way, and

thus throw plaintiff to the ground and Deemer, Ch. J., delivered the opinion of break his leg, causing the injury complained the court:

of.” Defendant denied any negligence on Defendant owns and operates an electric its part, and pleaded contributory neglirailway from the city of Boone to the Des gence on the part of the plaintiff. Many Moines river, near what is known as the points are relied upon for a reversal, the "High Bridge” of the Chicago & Northwest

more important of which we shall consider ern Railway, and on the 4th day of July, in the order presented by appellant's coun1901, was carrying passengers over the said sel in their brief. line for hire. The west or river end of this The first proposition made by them is railway ran for some distance parallel to, that, as defendant did not erect the stile, had and immediately north of, the right of way not assumed control thereof, and had no of the Chicago & Northwestern Railroad right to enter upon the land of the steam Company, and the rights of way of the two railway, either to inspect or to repair it, companies were separated by a wire fence. it owed plaintiff no duty with respect thereJust prior to the 4th day of July, 1901, one to, and cannot be charged with negligence Spraker who owned some land south of the either in the construction or maintenance steam railway right of way, which he used of this device. The trial court gave the as pleasure ground, constructed a stile over following, among other instructions: “You this wire fence, which was made by placing are instructed that, after completing its two ladders, each 8 or 10 feet in length, and road, defendant was under no obligations 14 or 16 inches in width, in such a position to build or erect a stile or stairs over the as that two ends met over and above the fence from the right of way leading over fence, while the other ends were set in the and into the right of way of the Chicago earth on either side thereof. Boards run & Northwestern Railway; but, if you find ning parallel with the sides of the ladders from the evidence that said stile in question were nailed thereon, and strips or cleats at constructed partly defendant's short intervals



fastened to these grounds and partly on the grounds of the boards. There were no railings or hand- Chicago & Northwestern Railway Company, rails, and no lateral supports. Plaintiff and that the same was used by the passentook one of defendant's trains in the city of gers from defendant's cars as the usual Boone, rode out to the western terminal at

means of egress from said grounds, and or near the Des Moines river, alighted from such fact was known to defendant, and dethe car, and, seeing this stile, which was fendant permitted the same, and there was near where the train stopped, attempted to no other reasonable or safe way of egress pass over it, and, as he started to descend from said grounds, then the fact that said from the top, caught his foot in such a way stile was partially upon the grounds of the as that he was thrown to the ground, and Chicago & Northwestern Railway Company received the injuries of which he complains. would not relieve defendant of the obligation He said on the witness stand that as he to exercise ordinary care in keeping said took the second step down, and placed the stile in a reasonably safe condition, if it weight on his foot, something broke or allowed the same to remain and be used as turned with him causing him to lose his the only reasonable means of egress from its balance and to fall to the ground; that his grounds." From the statement already foot was caught and held, so that his head made, it will be observed that the accident and shoulders struck the ground. The al- occurred on that part of the stile which leged grounds of negligence are that “the was over and upon the right of way of the said stile was without railing or means of Chicago & Northwestern Railroad, and it lateral support, and that the defendant, its is contended that defendant's responsibility


ceased when the passenger passed upon the doing, he was nothing more than a licen. grounds of another carrier; that, at most, see, and the steam railway company was it was under no other duty to the plaintiff | under no obligation to look after his safety than to warn him of danger of which it had in coming upon its premises. The use notice or knowledge, and that its liability made of the stile was for the joint benefit is no greater than if the stile had been of the defendant company and the owner of erected jointly by the steam railway com- the pleasure grounds. The jury was justified pany and the defendant. The defendant did in finding that the defendant company knew not erect the stile, and there is no evidence that it was being used by its passengers, that the Chicago & Northwestern Railroad and that it was in a dangerous condition. Company had anything to do with it. Lit. It was also justified in finding, on account tle need be said in support of the proposi- of its position and the manner in which tion that this stile was a dangerous con- the defendant stopped its trains and trivance. The jury so found, and we have operated its road, that there was an imno doubt of the correctness of its finding. plied invitation to its passengers to use the But defendant strenuously insists that, as device in going to the High Bridge and to it had no right to enter upon the grounds the picnic grounds of Spraker, the man who of the other company to repair the device. constructed the stile. Had the contrivance it cannot be held liable for any injury that been constructed by the defendant and the may have resulted from the use thereof. Chicago & Northwestern Railroad ComOrdinarily this proposition is true, but it pany jointly for the use of the passengers must be remembered that this contrivance, of either line, both would undoubtedly have while partly on or over the land of the been liable for an injury received by a Chicago & Northwestern Railroad Company, passenger. The rule seems to be “that the was a single, complete device, and formed a depot and connected grounds, visited by continuous passageway over the fence; and, coming and going passengers, should be if defendant invited its passengers to fitted up with a careful regard to their comuse it, either expressly or by implication, fort and safety. The approaches, the it was bound to at least ordinary care in tracks around, the platforms and places for seeing that it was fit for the purpose in- entering and leaving the cars, the passages tended. That it had no right to go upon to the cars, every spot likely to be visited the grounds of the Chicago & Northwestern by passengers seeking the depot, waiting at Railroad Company to make inspection or it for trains or departing, should be made repairs is not controlling. Its passengers safe, and kept so.” Bishop, Noncontract were not bound to ascertain at their peril Law, 8 1086. See also Lucas v. Pennsylwhat part of this stile was on the prem-vania Co. 120 Ind. 205, 16 Am. St. Rep. 323, ises owned by another company, and what 21 N. E. 972, and cases cited. Here there right defendant had to use it. Defendant was no liability on the part of the steam undoubtedly had the right to make arrange railway company, but the situation was ments with this other company for the con- such as to make it natural for a person struction of a stile, and for permission to alighting from defendant's train as plainits passengers to cross its right of way; tiff did, intending to go to the bridge or to and, having invited the traveling public to the pleasure grounds, to use the stile in use the device, it will not be permitted to passing over the fence. Defendant was say that it had no right to erect part of bound to know that persons alighting from the contrivance upon grounds of another its trains would likely use this device in company. It will not do to say that the passing to their destination, and it was traveling public must inquire in such cases its duty to use at least ordinary care in as to the right the carrier had to pass seeing that it was properly constructed and upon the grounds of another company to in good repair. The following cases lend make repairs. This contrivance was used support to our conclusions on this point: by defendant's passengers alone. It was not Cross v. Lake Shore & M. S. R. Co. 69 Mich. built to accommodate the steam railway or 363, 13 Am. St. Rep. 399, 37 N. W. 361; its passengers. The use made of the rail. Collins v. Toledo, A. A. & N. M. R. Co. 80 way right of way was permissive only. Mich. 390, 45 N. W. 178; East Tennessee, That company had no interest in the device, V. & G. R. Co. v. Watson, 94 Ala. 634, 10 did not profit therefrom in any way, and So. 228; Delaware, L. & W. R. Co. v. was not using it for the benefit of its pa. Trautwein, 52 N. J. L. 169, 7 L. R. A. 435, trons. It did not owe the plaintiff or the 19 Am. St. Rep. 442, 19 Atl. 178. defendant company any duty whatever with 2. The defendant asked an instruction to reference to this stile, and the plaintiff the effect that, if the jury found the injury was not going upon its grounds for the pur- was due to a defective step or board in the pose of taking its trains, or for any other stile, it would not be liable, unless it knew, purpose than simply to cross them. In so or in the exercise of ordinary care should

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