the affirmative fact that the hotel had in prior use similar boilers. So that the purchaser not only had its own engineer run and operate the boiler, but it had a special knowledge of the quality and properties of the Missouri river water. While there was present in the case knowledge on the part of the vendor that Missouri river water was to be used in operating the boilers, it could not be said that the vendee had any right to rely upon the fact that the vendor knew the use to which the boilers were to be put. It was of this character of case that evidence was excluded tending to show the knowledge of the plaintiff as the basis of invoking an implied warranty. It can therefore better be understood why the learned judge, while stating in the first paragraph of the opinion that, "where a manufacturer contracts to supply an article which

factured to answer a purpose made known | the boilers, there was present in the case to the manufacturer, which purpose the manufacturer said his machine would accomplish. Whether or not it could do so could not possibly be known to the purchaser until the machine was put in actual operation in the field in Iowa. The vendor knew that the machine it was to manufac ture would not meet the purpose of the vendee unless it could be successfully operated in the earth to be bored into through such strata to overcome the defects of the diamond drill. It was sold to accomplish this very object. Thereupon the agent of the vendor turned to his desk, and, in the form of a letter or proposition, stated, not as in the contract in the Seitz Case, 141 U. S. 510, 35 L. ed. 837, 12 Sup. Ct. Rep. 46, that the company agreed to furnish a machine "as constructed by the party of the first part," but "we propose to furnish you one Class F3 drill," with certain equip-he manufactures to be applied to a parments, which proposition Mallory's agent instantly accepted at the bottom of the submitted letter.

If it is to be established as law that such method of concluding such transactions precludes the vendee from asserting an implied warranty that the machine to be manufactured is suitable to the use for which the manufacturer is advised the purchaser is buying it, it does seem to me that the doctrine of implied warranty can afford no protection to the confiding purchaser against the smart secretary of the manufacturer.

The case of Grand Ave. Hotel Co. v. Whar ton, 24 C. C. A. 441, 49 U. S. App. 108, 79 Fed. 43, when read with regard to the particular facts of that case, and the qualifying language of Judge Lochren, furnishes little support to the majority opinion. There was a written contract in that case, whereby the defendant agreed to furnish and deliver to plaintiff, on the cars at Philadel. phia, two certain described safety boilers, of 150 horse power each, and the services of a man to put them up, for a given sum, to be paid for as specified; the contract containing specifications of the material and the construction of the boilers in their parts. The defense interposed was that the vendor knew that the boilers were to be used in the Midland hotel at Kansas City, and that the water to be used in operating them was supplied from the Missouri river. The contention was that the company should have taken notice of the quality of that water, as to the amount of sand it contained in solution, which rendered the use of the boilers largely ineffective. Aside from the fact that there was nothing in the evidence to show any knowledge on the part of the vendor as to the peculiar properties of the water of the Missouri river as affecting the use of

ticular use, of which he is advised, so that
the buyer necessarily trusts to the judgment
and skill of the manufacturer, there is an
implied warranty that the article shall be
reasonably fit for the use to which it is to
be applied," he then said: "But when a
known, described, and definite article is or-
dered of a manufacturer, although it be
stated by the purchaser to be required for a
particular use, yet, if the known, described,
and definite thing be actually supplied, there
is no implied warranty that it shall answer
the particular purpose intended by the buy-
Here the purchaser contracted
for a definite, well known kind of boiler;
its president having then a boiler of the
same kind in use."
From which it is appar-
ent that the ruling was based upon the
proposition that the buyer in that case was
bargaining for a specific article known to
him.

er.

Mr. Justice Harlan, in Kellogg Bridge Co. v. Hamilton, 110 U. S. 108, 28 L. ed. 86, 3 Sup. Ct. Rep. 537, cited in the foregoing opinion, discussing the applicability of the doctrine of implied warranty, summed up the rules as follows: "According to the principles of decided cases, and upon clear grounds of justice, the fundamental inquiry must always be whether, under the circumstances of the particular case, the buyer had the right to rely, and necessarily relied, on the judgment of the seller, and not upon his own. In ordinary sales the buyer has an opportunity of inspecting the article sold, and, the seller not being the maker, and therefore having no special or technical knowledge of the mode in which it was made, the parties stand upon the grounds of substantial equality. If there be, in fact, in the particular case, any inequality, it is such that the law cannot, or ought not to at

the contract had or could have knowledge of the manner in which the work had been done. The law therefore implies a warranty that this false work was reasonably suitable for such use as was contemplated by both parties. It was constructed for a particular purpose, and was sold to accomplish that purpose; and it is intrinsically just that the company, which held itself out as possessing the requisite skill to do work of that kind, and therefore as having special knowledge of its own workmanship, should be held to indemnify its vendee against latent defects arising from the mode of construction, and which the latter, as the company well knew, could not by any inspection discover for himself."

tempt to, provide against. Consequently the company, which alone of the parties to the buyer in such cases-the seller giving no express warranty and making no representations tending to mislead-is holden to have purchased entirely on his own judgment. But, when the seller is the maker or manufacturer of the thing sold, the fair presumption is that he understood the process of its manufacture, and was cognizant of any latent defect caused by such process, and against which reasonable diligence might have guarded. This presumption is justified in part by the fact that the manufacturer or maker by his occupation holds himself out as competent to make articles reasonably adapted to the purposes for which such or similar articles are designed. When, therefore, the buyer has no opportunity to inspect the article, or when, from the situation, inspection is impracticable or useless, it is unreasonable to suppose that he bought on his own judgment, or that he did not rely on the judgment of the seller as to latent defects of which the latter, if he used due care, must have been informed during the process of manufacture. If the buyer relied, and, under the circumstances, had reason to rely, on the judgment of the seller, who was the manufacturer or maker of the article, the law implies a warranty that it is reasonably fit for the use for which it was designed; the seller at the time being informed of the purpose to devote it to that use. In the cases of sales by manufacturers of their own articles for particular purposes, communicated to them at the time, the argument was uniformly pressed that, as the buyer could have required an express warranty, none should be implied. But plainly such an argument impeaches the whole doctrine of implied warranty, for there can be no case of a sale of personal property in which the buyer may not, if he chooses, insist on an express warranty against latent defects." In that case there was a written contract as to what the parties were to do in completing the bridge, in connection with the work already done by the bridge company. There was no express warranty about the character of the work the bridge company had already done. But the bridge company knew that Hamilton was to use the structure for a particular purpose. Its internal construction and adaptability were known to the bridge company, but presumptively could be known to Hamilton only after using it. Of this situation the learned judge said: "The buyer did not. because, in the nature of things, he could not, rely on his own judgment; and, in view of the circumstances of the case and the relations of the parties, he must be deemed to have relied on the judgment of

In Pullman's Palace Car Co. v. Metropolitan Street R. Co. 157 U. S. 94, 39 L. ed. 632, 15 Sup. Ct. Rep. 503, the contract for the building of the cars by the Pullman company was in writing, containing specifications as to the thing to be made and shipped,-as much so as in the case at bar. Notwithstanding the fact that the contract provided for an inspection of the cars after completion, by the purchaser's expert engineer, before they were delivered, it was contended by the vendee, when sued for the purchase money, that there was an inherent defect in the brakes furnished for the cars, not discoverable by inspection, and that there was an implied warranty of such latent defects in the cars. As the Pullman company was advised that the cars to be manufactured were to be operated on a particular line of road, with peculiar, acute curves, requiring brakes especially adapted thereto, it was held that there was an implied warranty on the part of the manufacturer that the brakes constructed by it as a part of the machinery would meet the requirements of the purchaser. Inasmuch as the defendant had accepted the cars, and the only defect was the insufficiency of the brakes, which the vendee had the means of supplying, it was ruled that it could recoup for the difference which it would cost to equip the cars with such obtainable brakes.

The utility of the machinery furnished by the plaintiff company in this case consisted entirely in the adaptability of the drill bit to accomplish the required boring in the peculiar strata formation where Mallory was exploring for coal. While the plaintiff submitted in writing an itemized specification of the equipment to be furnished by it, and the cost thereof, and Mallory agreed by the acceptance to pay the sum specified, it was practically contemporaneous with the information given the manufacturer by the purchaser as to the particular use to which it was to be applied, and with the knowl

IOWA SUPREME COURT.

BOONE SUBURBAN RAILWAY COM- of the North Western Railway Company,

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 care430, 16 L. R. A. 593, 30 Pac. 222; Corrigan lessly failed, refused, and neglected to assist v. 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 break his leg, causing the injury complained of." Defendant denied any negligence on its part, and pleaded contributory negligence on the part of the plaintiff. Many points are relied upon for a reversal, the more important of which we shall consider in the order presented by appellant's counsel in their brief.

Deemer, Ch. J., delivered the opinion of the court:

Defendant owns and operates an electric railway from the city of Boone to the Des Moines river, near what is known as the "High Bridge" of the Chicago & Northwestern Railway, and on the 4th day of July, 1901, was carrying passengers over the said line for hire. The west or river end of this railway ran for some distance parallel to, and immediately north of, the right of way of the Chicago & Northwestern Railroad Company, and the rights of way of the two companies were separated by a wire fence. Just prior to the 4th day of July, 1901, one Spraker who owned some land south of the steam railway right of way, which he used as pleasure ground, constructed a stile over this wire fence, which was made by placing two ladders, each 8 or 10 feet in length, and 14 or 16 inches in width, in such a position as that two ends met over and above the fence, while the other ends were set in the earth on either side thereof. Boards running parallel with the sides of the ladders were nailed thereon, and strips or cleats at short intervals were fastened to these boards. There were no railings or handrails, and no lateral supports. Plaintiff took one of defendant's trains in the city of Boone, rode out to the western terminal at or near the Des Moines river, alighted from the car, and, seeing this stile, which was near where the train stopped, attempted to pass over it, and, as he started to descend from the top, caught his foot in such a way as that he was thrown to the ground, and received the injuries of which he complains. He said on the witness stand that as he took the second step down, and placed the weight on his foot, something broke or turned with him causing him to lose his balance and to fall to the ground; that his foot was caught and held, so that his head and shoulders struck the ground. The alleged grounds of negligence are that "the said stile was without railing or means of lateral support, and that the defendant, its

The first proposition made by them is that, as defendant did not erect the stile, had not assumed control thereof, and had no right to enter upon the land of the steam railway, either to inspect or to repair it, it owed plaintiff no duty with respect thereto, and cannot be charged with negligence either in the construction or maintenance of this device. The trial court gave the following, among other instructions: "You are instructed that, after completing its road, defendant was under no obligations to build or erect a stile or stairs over the fence from the right of way leading over and into the right of way of the Chicago & Northwestern Railway; but, if you find from the evidence that said stile in question was constructed partly on defendant's grounds and partly on the grounds of the Chicago & Northwestern Railway Company, and that the same was used by the passengers from defendant's cars as the usual means of egress from said grounds, and such fact was known to defendant, and defendant permitted the same, and there was no other reasonable or safe way of egress from said grounds, then the fact that said stile was partially upon the grounds of the Chicago & Northwestern Railway Company would not relieve defendant of the obligation to exercise ordinary care in keeping said stile in a reasonably safe condition, if it allowed the same to remain and be used as the only reasonable means of egress from its grounds." From the statement already made, it will be observed that the accident occurred on that part of the stile which was over and upon the right of way of the Chicago & Northwestern Railroad, and it is contended that defendant's responsibility

see, and the steam railway company was
under no obligation to look after his safety
in coming upon its premises.
The use
made of the stile was for the joint benefit
of the defendant company and the owner of
the pleasure grounds. The jury was justified
in finding that the defendant company knew
that it was being used by its passengers,
and that it was in a dangerous condition.
It was also justified in finding, on account
of its position and the manner in which
the defendant stopped its trains and
operated its road, that there was an im-
plied invitation to its passengers to use the
device in going to the High Bridge and to
the picnic grounds of Spraker, the man who
constructed the stile. Had the contrivance
been constructed by the defendant and the
Chicago & Northwestern Railroad Com-
pany jointly for the use of the passengers
of either line, both would undoubtedly have
been liable for an injury received by a
passenger. The rule seems to be "that the
depot and connected grounds, visited by
coming and going passengers, should be
fitted up with a careful regard to their com-
fort and safety. The approaches, the
tracks around, the platforms and places for
entering and leaving the cars, the passages
to the cars, every spot likely to be visited
by passengers seeking the depot, waiting at
it for trains or departing, should be made
safe, and kept so." Bishop, Noncontract
Law, § 1086. See also Lucas v. Pennsyl-

ceased when the passenger passed upon the | doing, he was nothing more than a licengrounds of another carrier; that, at most, it was under no other duty to the plaintiff than to warn him of danger of which it had notice or knowledge, and that its liability is no greater than if the stile had been erected jointly by the steam railway company and the defendant. The defendant did not erect the stile, and there is no evidence that the Chicago & Northwestern Railroad Company had anything to do with it. Little need be said in support of the proposition that this stile was a dangerous contrivance. The jury so found, and we have no doubt of the correctness of its finding. But defendant strenuously insists that, as it had no right to enter upon the grounds of the other company to repair the device. it cannot be held liable for any injury that may have resulted from the use thereof. Ordinarily this proposition is true, but it must be remembered that this contrivance, while partly on or over the land of the Chicago & Northwestern Railroad Company, was a single, complete device, and formed a continuous passageway over the fence; and, if defendant invited its passengers to use it, either expressly or by implication, it was bound to at least ordinary care in seeing that it was fit for the purpose in tended. That it had no right to go upon the grounds of the Chicago & Northwestern Railroad Company to make inspection or repairs is not controlling. Its passengers were not bound to ascertain at their peril what 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 right defendant had to use it. Defendant undoubtedly had the right to make arrangements with this other company for the construction of a stile, and for permission to its passengers to cross its right of way; and, having invited the traveling public to use the device, it will not be permitted to say that it had no right to erect part of the contrivance upon grounds of another company. It will not do to say that the traveling public must inquire in such cases as to the right the carrier had to pass upon the grounds of another company to make repairs. This contrivance was used by defendant's passengers alone. It was not built to accommodate the steam railway or its passengers. The use made of the railway right of way was permissive only. That company had no interest in the device, did not profit therefrom in any way, and was not using it for the benefit of its patrons. It did not owe the plaintiff or the defendant company any duty whatever with reference to this stile, and the plaintiff was not going upon its grounds for the purpose of taking its trains, or for any other purpose than simply to cross them. In so

21 N. E. 972, and cases cited. Here there was no liability on the part of the steam railway company, but the situation was such as to make it natural for a person alighting from defendant's train as plaintiff did, intending to go to the bridge or to the pleasure grounds, to use the stile in passing over the fence. Defendant was bound to know that persons alighting from its trains would likely use this device in passing to their destination, and it was its duty to use at least ordinary care in seeing that it was properly constructed and in good repair. The following cases lend support to our conclusions on this point: Cross v. Lake Shore & M. S. R. Co. 69 Mich. 363, 13 Am. St. Rep. 399, 37 N. W. 361; Collins v. Toledo, A. A. & N. M. R. Co. 80 Mich. 390, 45 N. W. 178; East Tennessee, V. & G. R. Co. v. Watson, 94 Ala. 634, 10 So. 228; Delaware, L. & W. R. Co. v. Trautwein, 52 N. J. L. 169, 7 L. R. A. 435, 19 Am. St. Rep. 442, 19 Atl. 178.

2. The defendant asked an instruction to the effect that, if the jury found the injury was due to a defective step or board in the stile, it would not be liable, unless it knew, or in the exercise of ordinary care should