pearee in a court of general jurisdiction, and formally submitted to that oourt the question whether Taber was such an agent as that service of citation upon him would bring it into court, and that court having decided against it the issue thus raised by itself, I am bound to consider the defendant estopped by the Louisiana judgment from retrying that question here. On the whole case, in conclusion, I concur in the view taken of it by plaintiff's counsel in Louisiana, expressed in the language quoted in the brief of plaintiff's counsel here:
"It appears to me that the appearance, called an exception, put at issue the agency of Taber. The plaintiff had broadly averred in her peti tion that Taber was the agent of the defendant; that her contract was made with Taber as the agent of the defendant; that she paid the premiums to him as agent of the defendant; and that the defendant had ratified and confirmed the contract made by Taber, by accepting and using the premiums paid. These facts alleged by the plaintiff were the material substance of her 'case; and the paper called an exception was I'i.:lthing more than an answer and denial of these material facts alleged by the plaintiff. 'fhat issue was tried, and proof made, that Taber did make the contract, and no one else did, and the premiums did go to the defendant. It is true that no certificate was shown from the secretary of state, under the statute of 1877; but the defendant is always presumed to have complied with the law, and cannot be heard to say that he violated our laws by taking risks or transacting business so positively forbidden by law, in order to reap a reward or to avoid an obligation based upon his own wrong and turpitude."
The defendant's demurrer to the plaintiff's replication must be overruled.
and another v.
(Circuit Court, E. D. Virginia.
March 18, 1882.)
BOND, C. J. This cause having been heard in the circuit court, then presided over by the district judge, has been submitted to me, with his consent, as if on motion for a new trial. I have carefully read the elaborate briefs of the parties, and fully concur in the opinion and judgment of the district judge.
GRAVELLE V. )lINNEAl'OLlS &
f.i'f. LOUIS UY.
(Oircuit OOU1·t, D. Minnesota.) 1.
Negligence is the failure to exercise that degree of caution which a of ordinary intelligence would exercise under the circuIDtitauces of a particular case.
CONTRIBUTORY NEGLIGENCE-AcTION DEFEATED.
In case of personal injuries inflictcd .by railroad cars in motion, where the plaintiff's negligence contributed to his injuries, he cannot recover.
INJURIES THROUGH NEGLIGENCE OJj' ..i.. FELLOW-SEHVANT.
A railroaq company is not liahle for injuries inflicted on a person through the negligence of a fe1l0w-servant of such person. Fellow-servants or co-servants, within this rule, are persons engaged in the same ,COffill}.On service under the same general control. . Where one servant is invllsted with control or superiority over another with respect to any partkular part of the business, they are not, with respect to such business,fcllow-servants within the meaning of the law. 4.
EMPLOYER AND EMPLOYE-CoNTRACT-LEGAL IMPLICATIONS.
When a person enters into the service of another he assumes all the ordinary risks incident to the employment, and the employer agrees, by implication of law, not to suhject the servant he employs to extraordinary or unusual perils or dangers, and that he will fnrnish the employe with reasonably safe and convenient machinery with which to perform his duties.
RAILUOAD COMPANIES-PRESUMPTIONS AS 'fO EMPLOYES AND MACHINEUY.
The law presumes that railroad companies employ for their service persons of reasonable competency and fitness for their duties; and this presumption exists till the company is notified of their incompetency and unfitness, 'rhe same rule substantially applies to the question of the sufficiency of the machinery employed.
At Law· . Action for dam'1ges for personal injuries sustaineL1 by an employe through alleged negligence of a railroad company. Pending on motion for new trial. C. K. Davis and A. B. Jackson, for plaintiff. J. D. Springer, for defendant. MCCRARY, C. J., (charging jury.) The case which you are now called apon to consider, so far as the facts are concerned, is one in which Mr. Jeremiah Gravelle, the plaintiff, alleges that he has been injured in his person by the negligence of the defendant. You will see at a glance that the main question isa question of negligence. and that question you are to consider in the light of what I shall say to you concerning the law. The plaintiff claims that he was employed as a laborer in the yards of the defendant, the Minneapolis & St. Louis Railway Company, at