70 F. 15 -

MITCHELL V.NORTHERN PAC. R. CO.

15

that court, and the appellant's remedy for the correction of any error in the ruling thereon being by appeal to the court exercising appel· late and supervisory jurisdiction over the court that denied the mo· tion. . When the bill in this case was fiIed the court granted a temporary injunction against enforcing the judgment at law. This injunction was afterwards dissolved, and the bill dismissed, and a judgment reno dered in favor of the appellees for the damages sustained by reaSon of the issuance of the injunction. Much of the brief filed on behalf of the appellant is taken up with discussing the alleged elTor of the court below in rendering judgment for the damages on the dissolution of the injunction, but this alleged error is. n0t found in the assignment of errors, and cannot, therefore, be noticed. The onlyer· 1'01'13 assigned are (1) that the court erred in dissolving theinjunction; and (2) that it erred in sustaining the demurrer to the bill. These two assignments are, in effect, one. If the demurrer to the bill was pronerly sustained,thetemporary injunction issued in the case was, of course,properly dissolved. The decree of the United States court in the Indian Territory is affirmed.

MITCHE'LL v.NORTHERN PAC. R. CO. (Circuit Court, D. IYIinnesota, Fifth Division. October 31, 1895.)
. MASTER AND SERVANT-RAILROAD EMPLOYES-NEGLI6ENCE OF FELLOW SERVo

A car cleaner, while work inside a coach on a side track, Wll.,El by another coach being kicked against it at an unusual arid'iiangerous rate of speed. Held, that he was exposed to the hazards and dangers of railroading, and could recover under the doctrine laid down in Pear· son v. Railroad Co., 49 N. W. 302, 47 Minn. 9.

'

This was an action by Charles Mitchell against the Northern Pa· cific Company to recover damages for personal injuries. William R. Spencer, for plaintiff. J. H. Mitchell, J. L. Washburn, and J. C. BuIlitt, for defendant. NELSON, District Judge. By consent of parties, this case was submitted to a referee to report findings of fact and conclusions of law; and, upon confirmation thereof by the court, judgment to be 'entered accordingly. The referee reported, in substance, that plain. tiff, on the 25th day of February, 1893, wa,s employed as' a car deaner for defendant at Staples, Minn., and, while so engaged in· side a passenger coach on a side track, another coach was kicked in against it at a and unusual rate (if speed by a' . crew, consisting of a lo<;omotive engineer, fireman, foremah,: and nelpers; that, by reasontliereof, plaintiff was injured, without, negligence on his partjand damages were awarded him in the sum of Exceptions were filed to the report by defendant's cO\lnsel,and, upon' due consideration of the case, I am of opinion that tbere is suf· :ticient evidence to warrant the findings of fact andconelusions ot
$1,500. " , , .

ftDJil,Q.A.L BlllPOR'l'EB,

vol.

a,rvjvf3dat by thereferee,and the amount awarded is not exrep.Qrt of the referee is therefore confirmed, and judgmentwmbeentered accordingly. , The general rule, in the absence of a controlling statute, is that an employ.e,,in the. performance of certain specified duties, assumes all tbe ,natural and ordinary' risks and hazards incident thereto, . and thQseatising from the negligence or carelessness of his fellow servants are no exception. Mitchell and those composing the switching crew were fellow sen"ants, and defendant! would not be liable unless plaintiff comes within the provisions of the statute of Minnesota modifying,the common-law rule, which reads as follows:
"Every rallroad corporation owning or operating a railroad in this state shall be liable for all damages sustained by any agent or servant thereof, by reason of the negligence of any other agent or servant'thereof, without contributory D;egligence on his part, when sustained within this state."

This, statute, hM been' construed to apply, not to all railroad employes, but only to those exposed to and injured by the dangers peculiar tp the use· and operation of railroads. Pearson v. Railroad Co., 49 N. W. 302, 47 Minn. 9, and cases cited. The question, then, is, does the plaintiff come within this rule? It has been held that a car repairer or section man injured by the act of a fellow servant in . carelessly and negligently running him down with a cM can recover for such injury, as being exposed to the hazards' and dangers incident to railroading; and I see no reason why this plaintiff, under the circumstances, was not exposed in like manner. I hold that the plaintiff is within the terms of the Minnesota .and. therefore can recover in this action.

ODD FELLOWS FRATERNAL ACCIDENT ASS'N OF AMERICA v. , 'EARL. (OircuitCourt of Appeals, Seventh Circuit. NO. 215.
ACCIDENT INSURANCE-NoTICE TO INSURER.

October 16, 1&)5.)

The 0., F., Ace,. Ass'n issued to one E. an "accident certificate," by It agreed to pay to him, or to a beneficiary, named therein, certain ,sul11sof mOhey as compensation for injuries of death 'resulting from bodily oinjury, effected, through external, violent, and accfdental means, causing :visible, mark upon tbebody. It was provided that, for sucp)njury, effected during the life of the certificate,which should Immediately'dil;lable E.from pursuing his occupation, a weekly indemnity should'btqYaid, for certain specified mutilations certain sums should be paid, ·and, if death, should result from such injuries alone, within 90 ofcthe accidl!I;lt,$5,OOO shoul,d be paid to the bene'1iciary. 'It wits. also provided that written notice should be given to the irisui-er,wittliI;l iOdays. of the date of the. accident ,and injury for which' claiIi1'sho.l1ld be made, stating the circumstances of the accident "an(! nlttllre ;of .the injury, that. there should be rnYcIaim to indemnity for disability unless disability occurred within 30 days from the date of ,of whichtM insurer should ,have had notice within.the 10 dlJ-Ys, , Iipr'Rny cla,im to death benefits ,lJ,nless death resulted within 90 days from the accident, bf which accident 'the insurer should M;ve had the certificate was in force; E.'stepped on