ner as not to cause injury to the plaintiff. And if you believe from the evidence that in July, 1891, the defendant had placed in Deep creek, above the lands of the plaintiff, a large quantity of logs to be floated down said stream to their mill, which had jammed together, forming a gorge, and such jam obstructed and retarded the natural flow of said stream, in large quantities, so that such jams or gorges were suddenly released, causing said stream to swell and raise above the level thereof, thereby submerging plaintiff's land with water, and thereby caused large quantities of water, logs, rubbish, to flow over said plaintiff's land, and his growing crops were destroyed by reason thereof, you will find for the plaintiff in whatever damages you may believe, from the evidence, he has sustained." The action of the trial court in refusing the request of appellant, and in giving the instruction quoted above, is the principal error assigned in the record.

The gist of this action is negligence, and until some negligence is shown there cannot be said to be any liability. Bielenberg v. Railway Co., 8 Mont. 271, 20 Pac. Rep. 314. We think the instruction requested by appellant correctly stated the law of the case, and should have been given. Carter v. Thurston, 58 N. H. 104; Field v. Log-Driving Co., (Wis.) 31 N. W. Rep. 19. The instruction given by the court practically ignored the question of negligence, and told the jury to find for the respondent for whatever damages he had sustained by the acts of the appellant in placing the logs in said stream, whether the appellant was guilty or not of any negligence or want of care in the conduct of its business, or whether the damage resulted from causes beyond appellant's control; and this, too, after instructing the jury that the appellant had a right to place its logs in said stream, and that it was engaged in a legitimate business. Ordinarily, if a person is engaged in a legitimate business, he is only liable to another for such injuries as result from negligence, or the want of ordinary care and prudence, in the conduct and management thereof. Tested by this rule, we think the instruction given by the court below did not correctly state the law governing the case. There are other errors assigned, but we do not deem it necessary to consider them. The order of the court below, denying a new trial, is overruled, the judgment reversed, and the cause remanded for new trial.

HARWOOD and DE WITT, JJ., concur.

YOUNG V. DEMING. (Supreme Court of Utah. June 20, 1893.) ELECTIONS AND VOTERS-CANVASS OF VOTESBALLOT PLACED IN WRONG BOX.

1. A special city election was held on the same day as the general county election, a separate box being provided for the ballots cast at each election. The judges, with the consent of

all the political parties, agreed that a ballot put into the wrong box should not be counted. Held that, in spite of the agreement, county ballots placed by mistake in the city ballot box should be counted, and not destroyed.

2. The fact that such ballots, if cast for contestant, would have changed the result of the election, is not ground for disturbing the result as returned by the inspectors, in the absence of positive evidence that they were so

cast.

Bartch, J., dissenting.

Appeal from district court, Salt Lake county; C. S. Zane, Justice.

Action by George W. Young against J. H. Deming to contest an election for county treasurer. From a judgment for plaintiff, Reversed. defendant appeals.

Brown & Henderson, for appellant. Williams & Van Cott, for appellee.

MINER, J. This is an appeal from a judgment in favor of the plaintiff and contestant against the defendant and contestee in an action brought under the special statute for contesting elections, and brought in pursuance of that statute. The facts of the case are substantially that Mr. Young, the respondent, was running upon the Democratic ticket for county treasurer of Summit county, and Mr. Deming, the appellant, was running on the Liberal ticket for the same office. Young received 665 votes and Deming received 670. Young claims and alleges that seven votes were cast in two precincts in Coalville that should have been counted for him, and that by mistake were not so counted, and that, adding that seven to his number, would have made him two majori ty. The court found some of the facts with him. On an examination of the record we find this to be the status: On the same day that the general election was held in November, 1892, a special city election was held. The special city election being distinct from the other, a separate and distinct ballot was provided at the two polls for the city election. Before the election was opened it was agreed by all the judges of election and by all of the parties that in case of a mistake in putting a ballot into the wrong box it should not be counted. This was acquiesced in by all representing the three political parties. It appears that the two boxes were placed on a table, and the tickets with the names of the candidates for the city offices on them were placed in one box. which was termed the "city box," and the other tickets with the names of the candidates for the county offices were placed in another box, designated the "county box." It appears that six votes or six county tickets were received by the judges and placed in the city box, and six city tickets were placed in the county box. After the polls were closed the judges counted the votes and found six county tickets in the city box, and six city tickets in the county box, and they were destroyed in accordance with the agreement previously entered into. The remain

ing votes were all counted and canvassed by the judges of election, and their returns made, signed, and forwarded in accordance with law. The testimony shows that all the tally sheets and ballots, including the six destroyed, exactly corresponded when the votes were counted. The number of votes cast in each box did not fall short or exceed the number found on the tally sheets.

Under our system of secret ballot the voter is required to place his ballot in an envelope, and thus present it to the judges of election, who shall deposit it in the ballot box in the presence of the voter. The judge of election has no right to examine the ticket or open the envelope containing it for that purpose. There being two boxes at each poll, one for county officers and one for city officers, the judges found it difficult to determine into which box to deposit the ticket, and as a consequence it was frequently announced at the polls, and by those near it, that each elector should designate to the judges of election when offering his ballot which ballot was for county and which for city officers. Notwithstanding this precaution taken by all the judges, it is apparent that six county votes were placed in the city box and six city votes were placed in the county box through the mistake of the voters, or the judges of election. It is not contended that this mistake was through the fraud of the election officers, and the testimony clearly exonerates them from all intentional wrong in the matter.

The first question to determine is whether these ballots were placed in the wrong box by the fraud of the voter or mistake of the judge in depositing the ballot. If it was done through the fraud of the voters the ballots should not be counted; if through the mistake of the judge or voter they should be counted, provided there is sufficient evidence shown to make it certain that the name of the respondent was upon those ballots when cast, and the intentions of the voter casting them can be ascertained with reasonable certainty. The statement of the facts seems to refute any presumption of fraud on the part of the electors. The poll lists corresponded with the whole vote polled at each precinct. The city votes in the county box and the county votes in the city box exactly agree with the poll lists. It is not probable that any elector would vote two city or two county tickets, and have one placed in each box, with the expectation that both would be counted for his candidate in the face of the admonition given at the polls that such ballots would be thrown out, and there was no excess or shortage of votes in either box. It is evident that the ballots were in some mistaken manner interchanged by the voter or judge. It is true that this court held in the case of Ferguson v. Allen, 26 Pac. Rep. 570, that unless a ballot is actually cast it cannot be counted in a local election contest, and we still believe that to be the settled rule of

law. In that case the votes were offered, but were rejected because the names of those of fering to vote were not upon the registration list. We also approve the decision of Mr. Justice Campbell, (People v. Cicott, 16 Mich. 311,) when that learned jurist says: "There is no case, so far as I have been able to learn, under any system of voting by close ballot, which has held that any account can be taken of rejected votes in a suit to try title for office." But these six ballots were cast by qualified electors. They were each handed to the judge, and each placed in the wrong box by him. There is nothing in the evidence that tends to show fraud by any one. In the absence of proof of fraud it is more in accordance with sound principles to account for the error on the theory of mistake than that of fraud. In the absence of circumstances to the contrary, the presumption of law is that the officers performed their duty. In the case of People v. Bates, 11 Mich. 362, it was held that where a city and state election were both held at the same time, and under charge of the same inspectors, and seven city ballots were found at the closing of the polls in the state box, and the circumstances of the case made it reasonably certain that these ballots were in good faith put in by electors who did not put in other ballots for city officers at the same election, it was held that they were properly counted by the inspector. It was also held in this case that the elector should not be deprived of his vote, either by mistake or fraud of the inspectors or by the honest mistake of the voter in depositing the ballot in the wrong box, if the intent of the voter can be ascertained with reasonable certainty. Payne, Elect. § 446.

The remaining question is one of much more difficulty than the one last under discussion. We have found that the votes cast under the circumstances shown should have been canvassed and counted, and not thrown out and destroyed under the agree ment and by mutual consent of all the po litical parties and committees represented there. The six county votes found in the city box after a canvass had been had of the county votes were not counted, but, as we have seen, were destroyed by one of the judges of election. Had these votes been cast and counted for the respondent, Young, he would have had one majority. The question is, did these six county ballots have the name of George Young upon them? If they did, and this fact is made to appear by clear proof, then Mr. Young should be declared elected to the office of county treasurer of Summit county. If this fact is left uncertain or doubtful, then the court should not disturb the result as announced by the judges of election. It appears from the testimony in the record that these six county ballots were not canvassed by the judges of election, nor were such tickets seen by all or any two of the judges. By no testimony

in the record does it appear that any witness or judge saw the name of Mr. Young upon either of these ballots, nor does it sufficiently appear that Mr. Young's name was or was not scratched from any of these tickets. It does appear that Mr. Young was a candidate for the office of county treasurer running on the Democratic ticket. Mr. Rhead says he heard Mr. Callas say when looking over the city box, "Here is another straight Democratic ticket," and the ticket was thrown away. Witness also saw one of these county tickets that was thrown out, and read it through. Saw Mr. Rawlin's name upon it, and saw there was no scratches on it, but did not notice the name of any one else on it. Did not stop to read the names of the various officers on it, but simply saw no scratches on that ticket. Mr. Ball saw Mr. Callas take out a county ticket and remark, "Here is one," rubbed it in his hands a moment, and threw it down on the floor. Witness saw no name upon it. Could not say whether Callas held it long enough to read it or not. Does not recollect Callas saying it was a Democratic ticket. Thinks six tickets were thrown out in accordance with previous arrangement. Mr. Callas, one of the judges of election, testifies that he found six straight Democratic county tickets in the city box, which were thrown out. Does not remember saying at any time when he took out the tickets that they were Democratic tickets. Saw no scratches on any of them. Has no recollection of looking at any of the names on the tickets. Does not know whether Young's name was out or in on the tickets. Would suppose it was on. Does not remember whether Young's name was scratched that day; would not say. James Salmon was one of the judges of election at poll 2. Found one county Democratic ticket in the city box. Cannot say whether it was scratched or not. Did not notice, nor read names. Cannot say whether Mr. Young's name was on it or not. Simply noticed the heading was Democratic. Cannot say what the vote was on treasurer. Mr. Dale says he saw a Democratic county ticket in the city box. Could not say whether it was scratched or not. Did not look it through. Mr. Wright saw a Democratic ticket that was thrown out. It was not scratched, to his knowledge. Mr. Salmon saw Mr. Callas pick out a ticket, but did not hear him say it was a straight Democratic ticket. Had no opportunity to see the tickets, or read them, although close by. Mr. Callas would pick them out, crumple them up, and say, "Here is another ticket in the wrong box." They were destroyed without reading. No recollection of hearing any judge say they were straight Democratic tickets. Mr. Callas would open them just far enough to see the heading, and some he did not open at all. He could not read the tickets,--not time to read them. The tickets were count

ed by candle light. when Mr. Callas picked the county tickets out of the city box, and saw what was done with them. He could not say whether they were Democratic or Republican or Liberal tickets, although he says he had a better chance to know than any one else. That Mr. Callas took no time to read the tickets, or see anything more than the heading. That Callas doubled up the tickets, and laid them on the table, with no opportunity to read them. The other judges did not handle these county tickets. Frequently heard some one say one was a Republican ticket. Callas did not hold the tickets long enough to read the names on them. Does not think he took the pains to tell whether the names were scratched out or not. Mr. Fisher saw Callas take a county ticket from the city box, and said, "Here is one of them," and ground it up in his hand, and threw it on the floor. Callas did not take time to read the ticket. Witness thinks there were only two county tickets in the city box. There was no time to read the ticket. Callas only had time to look at heading. Hopkins saw Callas pick out the first county ticket, look at the heading, crumple it up, and throw it away. Could not have read the ticket through. None of these county tickets were passed to the other judges. They had no opportunity to handle or inspect these tickets to see what names were on them. Some tickets were not opened at all.

Mr. Smith was present

Mr.

It will be seen from this synopsis of the testimony that there is very much uncertainty thrown around the character of these tickets. If it be conceded that they were all Democratic tickets, still it is a mere matter of conjecture as to whether Mr. Young's name was printed thereon, or whether his name was scratched or not. No witness has testified that Mr. Young's name was on these tickets, nor does it sufficiently appear that if his name was on these tickets that one or more of them may not have been scratched off. Many scratched tickets were found in the box, although the particular character of the tickets does not appear. We know from common experience that those who do vote are usually unwilling that the character of their votes be made public, and that whenever there is an investigation as to the actual vote cast it is almost certain to bring about prevarication and uncertainty as to what the truth is; and while in this case before us no special reasons exist for casting reflections upon the truth of those who participated in the election, yet it is deemed unwise to lay down any rule by which the certainty and accuracy of an elec tion may be jeopardized by the reliance upon any proof affecting such results that is not of the most clear and conclusive charac ter. The temptation to actual fraud and corruption on the part of the candidates and their political supporters is never so

great as when it is known precisely how many votes it will take to change the result, and men who are willing to sell their votes before election will quite as readily sell their testimony afterwards, especially as the means of detecting perjury and falsehood is not always at hand until after the wrong sought to be accomplished by it has become successful, and the honest will of the people has been thwarted. In People v. Sackett, 14 Mich. 320, the court holds that the returns of the inspectors is prima facie evidence of the result of an election, and that, where the ballots have not been preserved in the manner required by law, but have been left in an exposed condition, or destroyed, the presumption that would otherwise exist of their correctness is not raised, and the court may properly be governed by the returns, unless fully convinced by proof of the integrity of the ballot. These ballots having been improperly destroyed, and the judges not having certified that they were cast for Mr. Young, we think the evidence that these six ballots were cast for Mr. Young is insufficient to justify that finding, and that the judgment entered in favor of the plaintiff and contestant should be reversed, with costs, and the case remanded for further proceedings.

SMITH, J. I concur in the judgment of reversal.

BARTCH, J. I dissent.

MCGILL v. SOUTHERN PAC. CU. (Supreme Court of Arizona. May 3, 1893.) FELLOW SERVANTS--WHAT CONSTITUTES RELATION -RAILROAD EMPLOYES.

A section foreman is not a fellow servant of the conductor of a train on which he is being carried to and from the point on the road at which he is working.

Appeal from district court, Grabam county; R. E. Sloan, Judge.

Action by William McGill against the Southern Pacific Company. From a verdict for plaintiff, defendant appeals. Affirmed.

J. A. Zabriskie and Maxwell & Satterwhite, for appellant. F. J. Heney and G. C. Israel, for appellee.

WELLS, J. This action was brought by plaintiff, who was in the employment of defendant as a section foreman on its railway, for injuries sustained by him in a collision between two railway trains, caused by the alleged negligence of the conductor of the train in which he was at the time of the injury. At the trial below several questions were asked, to the ruling of the court on which the defendant took exceptions and assigned as error, as well as exceptions to the charge of the court to the jury. The part of the charge of the court of which the defend

ant most particularly complains reads as follows: "The court instructs the jury that a conductor of a railway train, who commands its movements, directs when it shall start, at what station it shall stop, and has the general management of it, and control over the persons employed upon it, represents the railway company, and is not a fellow servant with a section foreman in the employ of said company; and if the jury believes from the evidence that John Barrett was the conductor of the train upon which plaintiff was, and had the powers just stated regarding such train, the court instructs the jury that Barrett was not a fellow servant with the plaintiff." The disposition of this assignment principally settles the rights of the parties in the case, for if the defendant is liable for the injury sustained by the plaintiff, (which the jury has so found,) we regard it unnecessary to consider whether many of the other points or rulings of the court were correct or erroneous, for we think the general result would have been unchanged.

Is the defendant liable for the negligence (conceding there was negligence) of John Barrett in causing the injury to plaintiff complained of? From the evidence we gather that plaintiff was in the employment of the defendant, who is a railway corporation, as a section foreman, and whose duty it was to repair all injuries to the roadbed and track of defendant's railway, and to perform such other work of like character as the defendant should direct him to do. On the 23d day of August, 1890, he was ordered by the road master acting for the defendant to go to a certain point on the line of defendant's railway in the county of Pima, Ariz., taking with him his working force, and grade and lay a temporary track for the purpose of raising an engine. John Barrett was the conductor of the train which was furnished by defendant to take the plaintiff and his working force to and from the place of work. The plaintiff was by Barrett carried to the working point, at which place he and his working men worked until about 3 o'clock, when he was told by Mr. Loyd, the civil engineer, foreman, and acting road master, as well as by Barrett, the conductor, to get aboard the work train, when they would work their way back home. The plaintiff and his men got on the train, and were being carried by it, backing up the track, when the collision with another train occurred, in which the plaintiff sustained the alleged injury. Both Barrett and the plaintiff were in the employment of the same company, and the question whether they were fellow servants within the reason of the law, and engaged in the same common employment, so as to exempt the company from liability from personal injury caused by the negligence 'of a coservant, is the controlling point in the

case.

The case of Railroad Co. v. Ross, 112 U. S. 377, 5 Sup. Ct. Rep. 184, upon which plaintiff

seems chiefly to rely, sustains the above charge of the court. The court there clearly makes a distinction in their relation to their common principal between servants of a corporation exercising no supervision over others engaged with them in the same employment and agents of the corporation clothed with the control and management of a distinct department, in which their duty is entirely that of direction and superintendence. "A conductor, having the entire control and management of a railway train, occupies a very different position from the brakemen, the porter, and other subordinate employes. He is in fact, and should be treated as, the personal representative of the corporation, for whose negligence it is responsible to subordinate servants. * * * We know from the manner in which railroads are operated that, subject to the general rules and orders of the directors of the companies, the conductor has the entire control and management of the train to which he is assigned. He directs when it shall start, at what speed it shall run, at what stations it shall stop, and for what length of time, and everything essential to its successful movements. In no proper sense of the term is he a fellow servant with the fireman, the brakemen, the porters, and the engineer. The latter are fellow servants in the running of the train under his direction. As to them and the train he stands in the place of and represents the corporation." The above doctrine is sustained by very respectable authorities cited in the opinion of the court in the case, and, if correct, is decisive of the question under consideration. In the case at bar it was the duty of the conductor of the train to convey the plaintiff and his workmen to and from the place where they were to perform their work or duties, which were entirely distinct and different from that of Barrett, the conductor. The plaintiff's duties were in no wise connected with or relating to the train, its working or management, nor was he in such a position that he could in any degree control or influence the conductor in starting, handling, or managing the train. His work was not upon the train, nor about it, nor had he any connection with it except to be conveyed by it to and from the place of his work, and while being so conducted he was injured. We think there can be no question of Barrett's being the conductor of the train. That fact was submitted to the jury by the above charge, and the jury found in the affirmative. He answered the requirements defined in the case of Railroad Co. v. Ross, supra, and represented the company; and under the rule of that case, for personal injuries resulting from his negligent acts, if any, the company is responsible. The supreme court of this territory has similarly held in a case where the facts were much like those in this case. Hobson v. Railroad Co., 11 Pac. Rep. 545. The defendant, questioning the soundness of this doctrine, refers us to the case of Tuttle

v. Railway Co., 122 U. S. 189, 7 Sup. Ct. Rep. 1166. The principle announced in that case, "that, in general, when a servant, in the execution of his master's business, receives an injury which befalls him from one of the risks incident to the business, he cannot hold the master responsible, but must bear the consequences himself," has no direct bearing upon the questions just being considered, viz. whether the conductor, Barrett, and the track foreman, McGill, were fellow servants within the reason of the law, and engaged in the same employment, so as to exert the company from injury caused by the negligence of a coservant. The former announces a general principle, recognized everywhere, and questioned by none, and applies in a general sense to every case of personal injury; while the latter invokes an additional rule in cases. where the injury is caused by the negligence of a fellow servant. The case of Randall v. Railroad Co., 109 U. S. 478, 3 Sup. Ct. Rep. 322, is very similar to the case of Tuttle v. Railway Co., supra, where a switchman was injured by a train where there was a "network of tracks." There was no evidence that the track was improperly constructed, or that the engine driver was unfit for his duty. The court there says that the general rule of law is well established that one who enters into the service of another takes upon himself the ordinary risks of the negligence of his fellow servant in the course of his employment. There the plaintiff was in attendance upon his switches, and must have known all the dangers attendant thereupon, and could look out for the consequences. The law of the case is in perfect harmony with that of Railroad Co. v. Ross, supra. In the former, a brakeman working a switch for his train on one track in a railroad yard is a fellow servant with the engineer of another train of the same corporation upon an adjacent track. In the latter case the court held that the conductor of a train is not a fellow servant with the brakemen, engineer. and fireman, but that the brakemen, engineer and fireman were fellow servants in the running of the train. In the case at bar there were no such conditions as in the case of Randall v. Railroad Co., supra. The conductor, with his train, was taking the plaintiff from his work, which was entirely separate and distinct from the work or employment of the conductor. The case of Armour v. Hahn, 111 U. S. 313, 4 Sup. Ct. Rep. 433, is not an analogous case. A carpenter with years of experience, with one of his comrades, was directed by the foreman to push the joist out on some projecting sticks of timber, but he did not direct him to go out. If the carpenter had kept both feet inside the wall he could have pushed the joist as directed without danger, but he got out onto the projecting sticks, which gave way. There was no evidence tending to prove negligence on the part of the defendant or his superintendent or foreman. The plaintiff,