of wages due him, together with one dollar for each day succeeding the expiration of the ten-day limit, and for a reasonable attorney's fee. The amount of damages allowed to be assessed, however, can in no event exceed double the amount of the wages due the employé. The statute in this respect is reasonable and the amount of the exemplary damages assessed can neither be said to be excessive nor oppressive.

It is manifest that if the delay in paying after the expiration of the ten days allowed is short, then, consequently, the damages to be assessed will be small. The employer is in a position to prevent the assessment of these damages by either paying or tendering the amount actually due the employé before the expiration of the prescribed limit. The essential purpose of the legislature, under the circumstances, in providing for the assessment of these damages, was to enforce the performance of the duty enjoined upon the employer to pay his employé the amount of his earnings, or wages, within ten days after demand is made for the payment thereof. According to the statute the additional amount of damages authorized to be assessed over and above the actual amount of wages due is regulated, or measured, at the rate of one dollar for each day which the employer allows his default in payment to continue beyond the prescribed limit. The power of the legislature, under the circumstances, as mentioned in the statute, to allow damages of the character and nature of those in question, is fully sustained by the decisions of the higher courts: See Missouri Pac. R. Co. v. Humes, 115 U. S. 512, 6 Sup. Ct. Rep. 110, 29 L. ed. 463; Leep v. St. Louis etc. R. Co., 58 Ark. 407, 41 Am. St. Rep. 109, 25 S. W. 75, 23 L. R. A. 264; St. Louis etc. R. Co. v. Paul, 64 Ark. 83, 62 Am. St. Rep. 154, 40 S. W. 705, 37 L. R. A. 504; Minneapolis etc. R. Co. v. Beckwith, 129 U. S. 26, 9 Sup. Ct. Rep. 207, 32 L. ed. 585; Day v. Woodworth, 13 How. *363, 14 L. ed. 181; Huntington v. Attrill, 570 146 U. S. 657, 13 Sup. Ct. Rep. 224, 36 L. ed. 1123; Merchants' Bank v. Bliss, 35 N. Y. 412; Terre Haute etc. R. Co. v. Salmon, 161 Ind. 131, 67 N. E. 918, and authorities there cited; American etc. Co. v. Ellis, 156 Ind. 212, 59 N. E. 679.

The validity of the provision of section 4, authorizing the assessment of a reasonable attorney's fee as a part of the

damages in the action instituted by the employé to recover the wages due him, is fully sustained by the following decisions: Duckwall v. Jones, 156 Ind. 682, 58 N. E. 1055, 60 N. E. 797; Dowell v. Talbot Paving Co., 138 Ind. 675, 38 N. E. 389; Terre Haute etc. R. Co. v. Salmon, 161 Ind. 131, 67 N. E. 918; Forrest v. Corey, 29 Ind. App. 159, 64 N. E. 45; Pittsburgh etc. R. Co. v. Taber (Ind. Sup.), 77 N. E. 741. We find no error, and the judgment of the lower court is therefore affirmed.

A Statute Providing that "Every Corporation doing business in this state shall pay the mechanics and laborers employed by it the wages earned by and due them, weekly or monthly, on such day in each week or month as shall be selected by such corporation," has been held unconstitutional: Slocum v. Bear Valley Irr. Co., 122 Cal. 555, 68 Am. St. Rep. 68. And so has a statute prohibiting, under a penalty, persons or corporations engaged in private enterprises from paying employés in store orders not redeemable in money: State v. Missouri Tie etc. Co., 181 Mo. 536, 103 Am. St. Rep. 614. Compare, however, Harbison v. Knoxville Iron Co., 103 Tenn. 421, 76 Am. St. Rep. 682; Hancock v. Yaden, 121 Ind. 366, 16 Am. St. Rep. 396; State v. Goodwill, 33 W. Va. 179, 25 Am. St. Rep. 863.

CASES

IN THE

SUPREME COURT

OF

IOWA.

HEINMILLER v. WINSTON BROTHERS.

[131 Iowa, 32, 107 N. W. 1102.]

EVIDENCE of Other Accidents from Same Cause.-If a horse is frightened while being driven along the highway, by a steam shovel belonging to a railway company and on its right of way near a crossing, and such fright terminates in an injury to the driver, evidence that other horses were frightened by such shovel at about the same time, and while the shovel was in about the same place, is admissible and does not introduce a collateral issue. (pp. 406, 407.)

EVIDENCE-Opinions.-Horsemen may testify as to whether a steam shovel situated on a railway right of way near a highway crossing is calculated to frighten horses of ordinary gentleness while approaching such crossing. (pp. 408, 409.)

NEGLIGENCE-Operation of Steam Shovel.-A railway company operating a steam shovel on its right of way, and near a highway crossing, is bound to use the shovel, whether within the limits of the highway or not, so as not to unreasonably interfere with the rights of the traveling public. (p. 409.)

NEGLIGENCE-Operation of Steam Shovel.-If a steam shovel belonging to a railway company and operated upon its right of way near a highway crossing is naturally calculated to frighten horses of ordinary gentleness, it is the duty of the company to exercise ordinary eare in the use of the shovel so as not to unnecessarily endanger persons lawfully upon the highway. (p. 409.)

NEGLIGENCE-Operation of Steam Shovel.-The question as to whether the operation of a steam shovel owned by a railway company, and in use near a public highway, requires the company to warn travelers of the danger from its operation, is for the jury to determine under all the circumstances proved. (p. 410.)

TRIAL.--Special Interrogatories requested in a personal injury action which relate solely to the extent of the injury, and are not at all determinative of the case, are properly refused. (p. 410.)

TRIAL Excessive Verdict.-A verdict for two thousand dollars for a personal injury, in the absence of evidence of serious external injury, and almost conclusive evidence that the internal injury relied upon could not have resulted from the accident, is excessive, (pp. 410, 411.)

Hagemann & Farwell, for the appellants.

Springer, Clay & Condon and Sayer & Sweet, for the appellee.

34 SHERWIN, J. In June, 1902, the defendants were engaged in deepening a cut for the Chicago Great Western Railway Company on its line of railway which had been in use for many years. They used in said work a steam shovel described as being fifty-five feet long, twelve feet high, with a smokestack extending six feet above the car, and with a boom twenty-four or twenty-five feet high. This cut was spanned near its center by a public highway bridge, the floor of which was from twenty-eight to thirty feet above the bottom of the cut. At the precise time that the plaintiff received the injury for which she seeks recovery, the shovel was not in operation; but it was steamed up and was standing on the track on the east side of the cut and north of the highway bridge. During this time the plaintiff approached the bridge from the east in a carriage drawn by a single horse. The horse became frightened before reaching the bridge and suddenly turned around throwing the plaintiff from the carriage and, as she claims, inflicting the injury complained of. The plaintiff averred negligence in having the steam shovel where it was, and negligence in not having some one stationed on the bridge or approach thereto to "warn travelers of the danger of frightening horses and to aid persons whose horses became frightened in passing over the highway and bridge." There is a conflict in the evidence as to the exact location of the shovel with reference to the north line of the highway, some of the testimony tending to show that it was partly in the highway and other witnesses testifying that it was wholly north thereof. Its exact location, however, is not material, as we shall later point out.

The first question discussed by counsel relates to the admission of testimony showing that two other persons with 35 horses had passed over the same bridge in the forenoon in question, and while the shovel was standing in about the same place that it was when the accident in question occurred, and that their horses were frightened by the shovel. The appellants urge that the evidence was incompetent because introducing a collateral issue that they were not prepared to meet. A determination of the question thus presented involves the

consideration of the relative rights of the defendants in their work on the railway and those of the plaintiff in her use of the public highway. The plaintiff, in traveling along the highway, was exercising her lawful right and the defendants in deepening the railway cut were just as clearly within the rights conferred by law upon the railway company, and this is true whether they were operating the shovel or letting it stand idle within or without the limits of the highway. The rule that every person must so use and enjoy his own property as not to unreasonably injure another is applicable to this case, and in deepening the cut the defendants were bound to act reasonably and with due regard for the rights and safety of persons lawfully using the highway. In other words, they were bound to use reasonable care in making the improvement: Hart v. Chicago etc. R. Co., 56 Iowa, 166, 41 Am. Rep. 93, 7 N. W. 9, 9 N. W. 116; Ochiltree v. Chicago etc. Ry. Co., 93 Iowa, 628, 62 N. W. 7; Wolf v. Des Moines Elevator Co., 126 Iowa, 659, 98 N. W. 301, 102 N. W. 517.

36

There can be no liability in this case unless the steam shovel itself, located as it was at the time of the accident, was reasonably calculated to frighten horses ordinarily safe and gentle for road purposes: Wolf v. Des Moines Elevator Co., 126 Iowa, 659, 98 N. W. 301, 102 N. W. 517. The plaintiff was, therefore, bound to prove such fact, and we know of no better way of doing so than by testimony tending to show that other ordinarily gentle horses were in fact frightened by the shovel at about the same time and when it was in practically the same position. If such testimony cannot be received, the fact must be proven by the testimony of expert horsemen or the question must be left for the jury to determine from its own knowledge. Such testimony is held admissible in Bemis v. Temple, 162 Mass. 342, 38 N. E. 970, 26 L. R. A. 254, where it is said: "In the present case the only collateral inquiry which could arise is whether a horse called by a witness "an ordinarily safe and gentle horse" comes within that class. Such an inquiry is certainly simple. We think there would be no practical difficulty in receiving and weighing testimony in regard to the conduct of horses which seem to be like ordinary horses in common use. In House v. Metcalf, 27 Conn. 631, the same question arose and the court says the plaintiff "had a right,