permitted to maintain his suit in equity, because they have instituted an action at law against him. As81ready said, the complainant has the right, un'der the statute of Iowa, to maintain a suit in equity to quiet his title as' against the defendants. This he is seeking to do. If the bill, however, should be dismissed because of the pendency of the law action, the :rlaintiffs therein can, at their pleasure, dismiss the law ao. tionj and, being non-residents of Iowa, it might thus be put out of the power of complainant to again get service upon them in this state, and the complainant would be practically defeated in his efforts to settle and quiet his title. This fact, in addition to the difference in the remedy attainable in the two proceedings, justifies the conclusion that the pendency of the action at law ought not to be deemed cause for abating the suit in equity, and the demurrer to the bill must be therefore overruled.
ENNIS ·v. T:aEldAHARAJAU.
(DIBtrIct Oourt. S. D. NBW York. November 25, 1889.)
MASTER AND SERVANT-AsSUMPTION Oll'RISL
A wor:kman employed to work a pal'ttcular machine, which he fully undentands, takes the risk of accidents that mllY happen to him while using it, so long as the machine is maintained in the same condition as by his contract he has a rigbt to expect and to rely upon. The master is not liable for accidents merely because he us not adopted recent improverpents that afford some additional protectton. 'l'he libelant, a longshore-man,was· employed to work a winch in discharging cargo. Th,e steam crank-bar, turned, by hand, came within three inches of a cogwheel. While turning the crank, the libelant's hand slipped, and his thumb and two' fingers were crushed by the cogs. The winch was 12 years old. More recent ones have the cog-wheel protected by a covering. One winch of that kind was on the ship. No previous accident from this winch was proved, except one arising from gross carelessness. Held, (1) that the old winch was not of so dangerous a character as to be unflt fOr use;, and, no weakness or disorder of the winch being shown to have contributed to the accident, held, (2) that the libelant took the risk, and could not recover of the ship, no negligence of respondent. being proved.
,In Admiralty. Libel for person81 injuries. Robert D. Benedict, for libelant. Butler, StiUman &: Hubbard, (WilhelmUB Myndme,ofoounsel,) for claimants.
, BROWN, J. On the afternoon ofSeptember 22,1883, the libelant, while oPerating a winch on board the steamer Maharajah, lost the thumb and two fingers of his right hand, which were crushed between the cogs of ihe wheel and the reverSing lever. The crank-bar, which let the steam on and offj was turned by a horizontal handle four and one-half inches long,
the end of which, when turned inwards, carne within three inches of the cog-wheel. While turning the handle, the libelant's hand accidentally slipped off, and was caught by the cogs. The libelant seeks to hold the vessel answerable for his injuries, on. the ground that the winch was an old and dangerous machine, because it had no covering or protection, like the more recent machines, and because the handle ran dangerously near the cogs. It is also alleged thllt the machinery was out of order. Thongh the evidence shows that there was some escape of steam after the libelant had asked for more steam, the weight of proof, I think, is against the contention that the machine was out of repair or out of order, orthatit had ever had any covering, or was ever in a condition substantially different from that in which the libelant was working it, and in which it had been long used. Nor does the evidence show that the I8scape of waste steam contributed to the accident. The libelant does .not testify that the steam made the handle more slippery, ·or embarrassed him in his work. The moisture, for aught I know, may have made his hold more secure, rather than weaker. The winch was put in the vessel about 12 years before. It was of the kind then in ordinary use. Soon afterwards, improvements in winches were made, and during the last few years the cog-wheels in new winches have been usually provided with coverings, and are thereby safer for use. The Maharajah had one winch of the new pattern and two of the old. Though the handle on this· machine came within three inches of the cogs, it is not shown to be different in this respect from the winches formerly in general use. The libelant was a longshore-man, employed by the day or hour. He was hired to work this winch. No skill was necessary, only care. Whatever liability there was to accident from the hand's slipping was visible and plain. It was not a concealed or unsuspected danger, but one as well known to the workmen as to the employer. The master can only be held liable on the ground of negligence, or for some breach of duty. The question, then, comes down to this: Is it negligence, or a breach of legal duty, for a master to hire men to work upon an old machine merely because there are newer and safer on(>,8 in use? As respects travel on steam railways, many of the courts of this country hold the carrier bound to keep pace with new inventions in the direction of safety. But this rule is an exceptional one, established upon grounds of public policy, and for the safety of human life. It has never been applied to the relation of master and servant. There the ordinary rule is that the workman takes the risks incidental to his employment. As regards machinery, it is the master's duty, say the supreme court in the case of Hough v. Railway Co., 100 U. S. 213-219, "to exercise due care in its purchase originally, and in keeping and maintaining it in such condition as to be reasonably and adequately safe for use by employes." The context shows, however, that this language was used in reference to the disorder, defects, or weakness which arise from the use of machinery, or from concealed dangers which the workman has no means of knowing, rather than to such liabilities to accident as belong to the nature of the machine, and are visible alld plain, and known to the workman v.40F.no.14-50
when he engages em ployment. say:
In the case just cited the supreme court
"If the engineer. after discovering orrecognizing the defective condltioD.'of the cow-catcher or pilot. hadcontinped to use the engine without giving notice thereof to the proper officer!! of the company, he would, undoubtedly, have been guilty of such contributory negligence as to bar a recovery, 80 far as such defect was found to have been the efficient cause of the death."
This indicates that no recovery could be had where the workman voluntarily takes work upon machinery knowing it!! dangers, and not expecting or relying upon any change to be made in it. This is very clearly stated by CoCKBURN, C. J., in the case of Clarke v. Holmes, 7 Hurl. & N. 937-943, a Case cited at length by the supreme court in Hough v. RailWQlY Co., referred to above. ".No doubt," he says, "when a servant enters on an emploYlIlentfrom its nature necessarily hazardous, he accept!! the service subject to the incidental to it, or, if he thinks proper to employment on machinery defective from its construction Qr · from the want of proper repair, and with knowledge of the facts enters on the service. the master cannot,be held liable for injury to the servant, within the scope of the danger'which both the contracting parties CO.ntemplate IS incidental to the elPployment. The rule I am laying down goes only totpis,. that the. qanger contemplated on entering. into the contract not be aggravated by any omission on the part of. the master to keep the maQhhlery in the in which, from the, terms ,of the contract:or the nature Qfthe the servant had a right to expectthat:it,wQuld bekept.".If in any case the master could be held for accidents happening. tQ,a workman whom he had hired to work ,upon a well-known its usual condition, it could only be, I. think, when it might. fll.irlybe said that, hal'ing referen.ce to other machines, tqe machine in question was so hazardous as not to be fit for use, and when the employe must be deemed to. have been ignorant oOts dangers. See, also, Railway v. Herbert, 116 U.S. 642,647,652,6 Sup. ·Ct. Rep. 590. . I cannot find that this machine was not reasonably fit for use, though it had less protection· to the. workman than newer forms. It was of.a kind long used,and the only previous accident shown to have happened in with it arose from gross carelessness. There is some evidence to the effect that the. libelant was sitting at the time of this acci· dent. Ue denies this, and I make no further l,'eference to it. Buthe does not claim to have ,bE)enunacquainted with the machine, or its possible danger from the hand'll.slipping. Whatever danger there was, as ,I have said, was plain. There. was no promise to afford further protection against this danger; and the libelant did not expectit, or rely upon ,. it, .as the plaintiff did in Hough v. Railway Co., in continuing his: work. There was Jloconcealment.: lIe w&s' in no way misled.. The language oethe cO\1rtin the case ,last cited does not apply to cases like tbis. It does not,abridge the liberty ofcl)ntracLbetween employer and employed, newer ones as respect!! work upon old and well-known, machines, Il.ddition».l . ,;nor does it change the 'burden ,of , '
the risk. ofll.ccident, where the nature and danger of the machine are known to the employe, and where the USe of the machine is not unreasonable, and it is kept, as this was kept, in the condition in which the employe agreed to work it. Though the accident was a severe one, entitling the libelant to much sympathy, I cannot hold that the law affords him any redress. The libel is therefore dismissed.
(Cfrcuit Court, D. Co1mado. December 26,1889.)
It is requisite to a valid looation and to the ownership of the title to a valid lode mining claim, that there should be a discovery of oret gold or silver bearing mineral in rook in place, showing. aweli-deflned orevice, a aiscovery at least10 feet deep from the lowest rim rook thereof, which discovery of mineral must be at the point claimed and designated, or made the point of discovery by the locators of said claim1 and 80 designated in the location certifl.cate relied upon by them in the making 01 said location.
.. BAME-LooATION BTAKES.
A location stake must be ereoted at the discovery of said claim, with a plain siRD or notice thereon, oontaining the name of the lode, the name of the looator, and tlie date of the discovery.
SAME-MARKED BOUNDARY ON SURPAOB.
The claim must have its boundaries 80 marked upon the surface as to be easily traced by means of six substantial stakes, one set at each oorner of said olaim, one at the center of each side line thereof; whioh said stakes shall be of suhstantial charaoter, and sunk in the ground, hewed on the two sides of the oorner stakes which are in towards the claim, and the side stakes hewed on the side which Is in towards the claim. There must be made and flIed by the looators of said claim a looatlon certlfloate whioh shall oontain the naI;Des of the looators,.the date of the looation, and suoh a desoriptlon of the olaim by reference to some natural objeot or permanent monument as will identifl the claim; also, tile number of feet in length claimed on each side of the center 0 the disoovery shaft, and·the general course of the lode.
In a suit for trespass, defendants cannot, after suit brought, unite several olaims, each having a portion of the outcrop, for the purpose of asserting the right to folIowa vein upon its dip, when liaid right dlles not exist within the said claims, oonsidered separately.
SAME-AoTION POR TRESPASs-JOINDER OP CLAIMS.
SAME-ABANDONMENT AND RELOOATION.
If ground once included within the location of a lode mininll: olaim be abandoned, and. a new location made thereon, as abandoned ground, sald location dates only from the relooation thereof as abandoned ground, and does not relate back to or obtain any rights on aocount of the looation whioh has been abandoned.
BAMB-VEIN OR LODB.
A vein or lode is a body of mineral or of mineralized rock in place, within deAned boundades, in the general mass of the mountain. Ore disseminated at intervals? or found in channels, chutes, oavltles, pookets, or other irregular ocourrences at ntervals in quartzite, without ore connections between the'same, is not a iode, ledge, or veinhwithin the meaning of Rev. St. U. S. § 2329. allowing the owner thereof to follow t e beyond his aide lines upon .its dip. . )
tbrough the lurrounding rock&.
The vein must be continuous only in the. sense that it can be traced by the miner Slight interruptions of the mineral·bearing rock