MASTER AND SERVANT-Continued.
cars to make the coupling, and plaintiff was directed by the
conductor, whom he was under duty to obey, to couple the
cars, and he was compelled to go between the cars to
couple, and it was dangerous, and more probable that it
could not be safely done than that it could, plaintiff would
be guilty of contributory negligence, was sufficiently favor-
able to defendant. Elmore v. Railroad, 865.
In an action for personal injuries, the plaintiff cannot recover
where it appears that there was no omission or breach of
duty on the part of the defendant and that the injury was
an accident. Alexander v. Mfg. Co., 428.
Where the negligence of an employer is a continuing one, as
the failure to furnish safe appliances in general use, there
can be no contributory negligence by the employee which
discharges the liability of the employer. Orr v. Telegraph
Co., 691.
MENTAL ANGUISH. See "Damages;" "Telegraphs;" "Negli-
MESSAGES.
MERGER.
Where the owner of a part of the servient estate becomes the
owner of an easement thereon, there was a merger only
to the extent of his interest. Barringer v. Trust Co., 409.
MINOR. See "Contracts"; "Infants." "Parent and Child.”
MISTAKE.
That the title of land attempted to be conveyed by a mortgage
is a failure, is not such a mistake as to prevent the run-
ning of statute of limitation. Barden v. Stickney, 416.
MORTGAGES. See "Chattel Mortgages."
The power of sale in a deed of trust or mortgage is not barred
by the statute of limitations though an action for fore-
closure thereon is barred. Cone v. Hyatt, 810.
Where the insured fails to state that the property was mort-
gaged, when in fact it was mortgaged, the policy providing
that the contract of insurance would be void if the insured
property was mortgaged, invalidates the policy, though the
omission was made without the intent to deceive. Hayes
v. Ins. Co., 702.
The transfer of a note and mortgage by a mortgagee does not
divest him of the legal title. Collins v. Davis, 106.
MORTGAGES-Continued.
A person who purchases land with notice of an uncancelled
mortgage thereon is charged with notice of all rights of the
mortgagee and those claiming under him. Collins v. Davis,
106.
The substitution of one note and mortgage for another will not
constitute payment of the original note and mortgage unless
they are surrendered to the mortgagor. Collins v. Davis,
106.
In replevin by a mortgagee for a safe where defendant did not
allege ownership of the safe, nor was there any testimony
that he had purchased it from the mortgagor, a judgment
for the mortgagee in a former suit between the mortgagee
and mortgagor, to recover the safe and other property cov-
ered by the mortgage, reciting that the cause came on to be
heard on the admission of the mortgagor, was conclusive
against defendant's rights in the safe. Graves v. Currie, 307.
When a trustee in a deed of trust sells property, the fees of an
auctioneer must be paid by the trustee out of his own
commissions. Duffy v. Smith, 38.
When there is no evidence that counsel was necessary in a
sale under a trust deed no allowance therefor should be
made from the proceeds of such sale. Duffy v. Smith, 38.
Where a minor, after attaining his majority, accepts the pro-
ceeds of a sale under a deed of trust, he is estopped from
disputing the validity of the sale on the ground that the
trustee sold without a previous request from the creditor
as required by the trust deed. Norwood v. Lassiter, 52.
Where the plaintiff in a foreclosure or ejectment action dies
his heirs at law must be made parties. Hughes v. Gay, 50.
Acts 1887, ch. 147, as amended by acts 1901, ch. 186, provides
that a personal representative can sell under a mortgage,
but does not confer any right to maintain an action of
ejectment nor for foreclosure. Hughes v. Gay, 50.
A statement by a trustee in a deed of trust that the amount
due thereunder is the principal and interest does not estop
him from afterwards receiving the commissions stipulated
in the deed of trust. Duffy v. Smith, 38.
A judgment creditor of a mortgagor cannot maintain impsit
against a mortgagee for a surplus arising from a sale under
the mortgage and paid to the mortgagor. Norman v.
Hallsey, 6.
MORTGAGES-Continued.
Á mortgagee, who sells under the mortgage, is not liable to a
subsequent mortgagee or judgment creditor for the surplus
unless he has actual notice thereof. Norman v. Hallsey, 6.
The time within which a sale must be made under a power of
sale in a mortgage is not limited and is not affected by the
fact that the right to sue on the debt is barred. Menzel v.
Hinton, 660.
MOTIONS.
A motion for an injunction to prevent a multiplicity of suits
is properly made in the action pending and a new action
for that purpose would not be proper. Featherstone v. Carr,
800.
MULTIPLICITY OF ACTIONS. See "Actions;" "Injunctions."
MUNICIPAL CORPORATIONS. See "Towns and Cities;"
MURDER. See "Homicide "
NAVIGABLE WATERS.
A grant to a riparian owner of land covered by navigable water
conveys only an easement therein and a deed of the land
adjoining the navigable water conveys the easement in the
land covered by the water. Land Co. v. Hotel, 517.
A person making an entry of land covered by navigable waters
is confined to straight lines, including only the fronts of
his own land. Holleq v. Smith, 36.
NEGLIGENCE. See
"Contributory Negligence;"
"Master and Servant;" "Railroads."
The editor of a newspaper riding on a pass issued contrary to
the law cannot recover for injuries received through the
negligence of the carrier. He can recover only for injuries
which are inflicted wilfully and wantonly. McNeill v. Rail-
road Co, 510.
Where an employee of a railroad company rides on the steps of
a shanty car against the rules of the company, which rules
he had seen, and is injured, the company is not liable, there
being room for him inside the car and his duty not requiring
him to be on the steps. Howard v. Railroad, 709.
In an action for a servant's injuries, an instruction that if
plaintiff knew that the coupler was out of order, and that
it was too dangerous to go between the cars to couple, and
that plaintiff used his foot to make the coupling, and that
by reason of his position he acted foolishly and without
prudence with reference to the character of the work, and
that this act was carelessness, the chances of safety being
less in favor of him than against him, he would be guilty
of contributory negligence, even if defendant knew of the
defective condition of the coupler, was sufficiently favorable
to the defendant. Elmore v. Railroad, 865.
An employee will not be held to have assumed the risk in under-
taking to perform a dangerous work unless the act itself
is obviously so dangrous that in its careful performance
the inherent probabilities of injury are greater than those
of safety. Orr v. Telegraph Co., 691.
Where the negligence of an employer is a continuing one, as
the failure to furnish safe appliances in general use, there
can be no contributory negligence by the employee which
discharges the liability of the employer. Orr v. Telegraph
Co., 691.
The fact that an employee remains in the service of a railroad
company, knowing that its cars are not equipped with self-
couplers, does not excuse the railroad from liability to such
employee, if injured while coupling its cars by hand. El-
more v. Railroad, 865.
In an action by a brakeman for damages for personal injuries,
there can be no recovery where the injury was caused, not
by a defective coupler, but because plaintiff negligently
used his foot to push the bumper in place. Elmore v. Rail-
road, 865.
In an action for a servant's injuries, a charge that if a coupler
was out of order, so that it was necessary to go between the
cars to make the coupling, and plaintiff was directed by the
conductor, whom he was under duty to obey, to couple the
cars, and he was compelled to go between the cars to couple
and it was dangerous and more probable that it could not be
safely done than that it could, plaintiff would be guilty
of contributory negligence, was sufficiently favorable to de-
fendant. Elmore v. Railroad, 865.
In an action for a servant's injuries, an instruction that if
plaintiff knew that the coupler was out of order, and that
it was too dangerous to go between the cars to couple, and
that plaintiff used his foot to make the coupling, and that
by reason of his position he acted foolishly and without
prudence with reference to the character of the work, and
that this act was carelessness, the chances of safety being
less in favor of him than against him, he would be guilty
of contributory negligence, even if defendant knew of the
defective condition of the coupler, was sufficiently favorable
to the defendant. Elmore v. Railway Co., 865.
The failure on the part of a railroad company to keep auto-
matic couplers in proper condition and repair is negligence,
as much as if the cars had never been equipped with
such couplers. Elmore v. Railroad, 865.
The plaintiff, attempting to alight from defendant's train had
reached the second step of the platform, when a heavy man
caught hold of the car rail, swung himself on the step,
his valise striking plaintiff on the knee and injuring her.
The conductor and plaintiff's father were both standing
near by. Plaintiff testified it could not reasonably have
been anticipated the man was going to hit her. The con-
ductor could have seen the man coming if he had been
attending to his business. The rules of the company
required conductors to give particular attention to women
and children. Under these facts a motion for non-suit was
properly granted. Fritz v. Railroad, 829.
The plaintiff's intestate was walking along a railroad track with
a companion in the day time, which was commonly used by
the people in that vicinity as a footpath, was warned of a
train approaching from the rear, which she could have
seen and heard, and answered the warning indicating that
she knew of its approach. The whistle was blown and the
bell rung, but intestate failed to leave the track, where-
upon she was struck and killed. Upon which testimony a
nonsuit was properly granted. Bessent v. Railroad 934.
The failure of a street railway company to use fenders in front
of its cars, if required by statute or ordinance, is evidence
of negligence. Henderson v. Traction Co., 779.
Where the trial judge is requested to instruct that one who is
killed is presumed to have exercised due care, it is error
to refuse the same and substitute therefor the instruction
that an inference arises from the instinct of self-preserva-
tion that the person killed used due care. Cogdell v. Rail
road, 852.
It is the duty of an engineer of a railroad company to use all
proper and reasonable efforts to avoid injuring other ser-
vants of the company engaged in their work and to observe
the rules laid down by the company. Smith v. Railroad 819.
Vol. 132-78
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