(altercation between passengers and fellow-passenger assaulted, railroad not liable).

In Felton v. Chicago, R. I. & P. R'y Co., 69 Iowa, 577, 8 Am. Neg. Cas. 251, an action to recover damages for injuries sustained by plaintiff's intestate who was assaulted by other passengers, judgment for plaintiff was reversed, defendant not being liable if it was without reasonable ground to believe that such an assault would be made, and the conduct of the assailants was unknown to defendant's employees.

Intoxicated passengers. — In Putnam v. Broadway & Seventh Ave. R. R. Co., 55 N. Y. 108, 8 Am. Neg. Cas. 553n, reversing 36 N. Y. Super. Ct. 195 (one of the leading cases on the subject), it appeared that an intoxicated passenger annoyed and insulted a female passenger on defendant's street car. The lady's escort appealed to the conductor to keep the intoxicated person quiet, which the conductor did, and the offending passenger, after threatening the conductor, went on the front platform of the car, where he rode for some distance, until the female passenger and her escort left the car by the rear platform, when the intoxicated person got off the front platform, ran around to the rear of the car, struck the lady's escort with a car hook and killed him. Held, that the railway company was not liable for the killing, there being no evidence of want of care on part of its servants in protecting the passenger.

In Galveston, Harrisburg & San Ant. R'y Co. v. Long, 13 Tex. Civ. App 485, 8 Am. Neg. Cas. 643, where a passenger, who was intoxicated, while walking through the ladies' car, stumbled against some baggage on the floor of the car, and a pistol fell from his pocket and was discharged, the ball entering the foot of another passenger, severely injuring him, it was held that the railroad company was not liable, as the injury to the passenger was the result of an accident which could not have been foreseen by the company's servants, and judgment for plaintiff was reversed.

In Illinois Central R. R. Co. v. Minor, 69 Miss. 710, passenger assaulted by drunken and disorderly passengers on a Sunday excursion train, judgment for plaintiff was reversed for erroneous instruction that " railroad companies are bound to exercise very great vigilance and care in maintaining order, guarding passengers against violence, from whatever source, arising," etc., notwith. standing that other instructions correctly stated that reasonable care and diligence was the measure of the carrier's responsibility.

In Illinois Central R. R. Co. v. Minor, supra, the court reaffirmed the rule laid down in New Orleans, St. L. & C. R. R. Co. v. Burke, 53 Miss. 200 (supra), as to the liability of a railroad company for assaults upon passengers by fellow. passengers.

Kinney v. Louisville & Nashville R. R. Co., (Ky.) 8 Am. Neg. Cas. 295n, 34 S. W. 1066 (abusive language by intoxicated passenger; railroad not liable where conductor used reasonable efforts to protect passenger).

Hessian v. Ferguson, 7 La. Ann. 532, 8 Am. Neg. Cas. 309n (drunken passenger made sport of by other passengers; carrier not liable).

In Spade v. Lynn & Boston R. R. Co. (Mass.), 5 Am. Neg. Rep. 367, it was held that a carrier is not liable to a passenger who was injured by another passenger being thrown against her, in the effort of the conductor, acting in due care, to remove a drunken passenger from the car. See also former decision in the Spade case, 168 Mass. 285, 2 Am. Neg. Rep. 566.

Train robber. - Connell's Ex'rs v. R'y Co. 93 Va. 44 (passenger killed by train robber; railroad not liable).

Rape. In Sira v. Wabash R. R. Co., 115 Mo. 128, 8 Am. Neg. Cas. 477n, railroad company was not liable for rape committed upon a female passenger by a male passenger after the female passenger had been wrongfully ejected from train, as the assault was not the direct consequence of wrongful act of conductor in ejecting the female passenger from train.

Colored passenger assaulted. In Royston v. Illinois Central R. R. Co., 67 Miss. 376, 8 Am. Neg. Cas. 453, where a colored passenger entered a ladies' car, but, because of his boisterous conduct, he was invited by the conductor to go to another car, which he refused to enter and stood upon the platform of the car, and while upon the platform he was assaulted by a passenger, the railroad company was not liable for the plaintiff's injuries, as the conductor was attending to his duties in another part of the train and was without knowledge of the assault, or threat to assault the plaintiff.

Assaults on Passengers by fellow-passengers. — For actions relating to this topic, see vol. 8 Am. Neg. Cas., where the same are chronologically grouped from the earliest period to 1897, and arranged in alphabetical order of States. Subsequent actions to date are reported in vols. 1-10 Am. Neg. REP., and the cur rent numbers of that series of Reports.

SLATTERY v. WALKER AND PRATT MANUFACTURING COMPANY.

Supreme Judicial Court, Massachusetts, June, 1901.

DEFECTIVE CHECK VALVE IN AIR HOIST

BURSTING OF VALVEFAILURE OF MASTER TO FURNISH SAFE APPLIANCE-LIABILITY FOR INJURY TO EMPLOYEE. — In an action to recover damages for injuries sustained by plaintiff, an employee of defendant, caused by the bursting of a check valve in an air hoist, it appeared that the person in charge of the machine who was in charge of the mechanical department of the defendant's works," and who was not a mechanical engineer, undertook to improve the hoist by substituting a three-quarter inch check valve for the one-half inch check valve used in the original construction of the hoist; that such person did not know what pressure the substituted valve would stand, and did not make any test of such valve; that another person had tested six similar valves, two of which had not stood the pressure to which they had been subjected; that these three-quarter inch valves were only guaranteed to stand a pressure of 300 or 400 pounds to the square inch, while they might be subjected to 2,700 or 2,800 pounds per square inch. Held, that defendant was liable for it's servant's negligence, if any, in making the change in the hoist, and that the evidence warranted a finding that defendant did not use due care in furnishing a safe hoist (1). ASSUMPTION OF RISK.-In such action it was also held that plaintiff did not assume the risk of the accident, as he was not chargeable with knowl. edge that defendant's superintendent had substituted a three-quarter inch check valve, which was not designed to stand the pressure to which it might be subjected in the use of the hoist in question (2).

1. See note on LIABILITY FOR EXPLOSIONS, at end of this case.

2. See note on ASSUMPTION of Risk, in 7 AM. NEG. REP. 97-11I.

FURNISHING PROPER APPLIANCE - PROOF. Where plaintiff was

injured by the bursting of a check valve in an air hoist, defendant's plea that it performed its duty to plaintiff when it purchased a check valve from a reputable manufacturer could not be sustained where it was not shown that the valve was made for the use to which it had been put (1).

EXCEPTIONS from Superior Court, Middlesex County.

Action by Daniel F. Slattery against the Walker & Pratt Manufacturing Company. From judgment in favor of plaintiff, defendant brings exceptions. Exceptions overruled.

GEO. L. MAYBERRY and THOMAS F. CAREY, for plaintiff.
CONRAD RENO, for defendant.

LORING, J. — There was evidence that the defendant was negligent in undertaking to improve the hoist by substituting a threequarter-inch check valve for the one-half-inch check valve used in the original construction of the hoist. The defendant had put one Inslee "in charge of the mechanical department of the defendant's works," including the machine in question. Inslee testified that he noticed that this hoist would sometimes give a jerk when the piston rod was being lowered with the load attached, and that, "in order to prevent or remedy this jerking," he had ordered the onehalf-inch Pratt & Cady check valve which came with the hoist removed from the hoist, and had had inserted in its place a three-quarterinch Pratt & Cady check valve; that, after this substitution was made, the hoist ran "more smoothly, and without such jerks as it had previously given," for about two weeks, when one morning "he heard a report," and the piston went up, and struck the top of the cylinder. It was found that the three-quarter-inch valve was split. It appeared that at this time the air pressure was turned on, and that there was no load on the hoist. Inslee then put a new valve of the same kind and size on the hoist, and ten weeks later, the accident in question happened. It is plain that the defendant company is liable for Inslee's negligence, if he was negligent, in making this change in the hoist. Ford v. Railroad Co., 110 Mass. 240, 14 Am. Rep. 598; Moynihan v. Hills Co., 146 Mass. 586, 16 N. E. Rep.

1. On this point, see Reynolds v. Merchants' Woolen Co., 168 Mass. 501, 3 Am. Neg. Rep. 180, it being held that "where an employee was injured by the flying apart of the cylinder of a machine recently purchased, and the evidence tended to show that the cause of the accident was the existence of blow-holes, and that no inspection

could have detected their presence, it was not error to charge that the fact that the accident occurred did not show negligence, as, though the machine may have been defective, due care may have been exercised by the defendant by purchasing the machine from a reputable manufacturer."

574- It appeared that Inslee "had no degree as a mechanical engineer," and did not claim to be one, but had done the work of superintending and looking after machinery at three different places where he had been employed before he entered the defendant's employment. He testified that "he did not consider himself to be an expert mechanic; that he had never made machinery, and had never made a hoist, nor seen one made." He further testified that when he substituted the three-quarter inch for the one-half inch valve he did not know how much pressure would come on the valve, but "had learned since the accident that it was 2,700 to 2,800 pounds per square inch;" and that "before putting on the valve in question he did not take any steps to ascertain what pressure it would have to stand, and did not make any test of this valve;" and that "he had heard that the manufacturers of these valves only guaranteed them to stand a pressure of 300 or 400 pounds per square inch." It appeared from the testimony of another witness that he had tested six three-quarter inch check valves of the same make as that in question, and that two of the six had not stood the pressure of 2,700 to 2,800 pounds per square inch; that one of the six split when subjected to a pressure of 2,275 pounds, and the other when subjected to a pressure of 2,600 pounds. There was also evidence that the three-quarter inch valve which was in the hoist at the time of the accident in question was split in the same way that the first three-quarter inch valve was split ten weeks before. It is manifest that the larger the diameter of the check valve, the less the pressure it would resist, unless it was made proportionately stronger, and there was no evidence that the three-quarter inch check valve was made stronger in proportion than the one-half inch check valve. This, then, was a case where the superintendent undertook to substitute a three-quarter inch check valve for the one-half inch check valve used in the original construction of the hoist, without ascertaining how much pressure the new valve would stand, or how much it would or might be subjected to when the hoist was in use, and where the new valve split when the air was turned on without a load being attached, and thereupon a second three-quarter inch. valve of the same kind was put in, without inquiry being made as to the pressure it would stand, or as to the pressure it would be subjected to, and the second valve split as the first did; and, finally, where it turns out that these three-quarter inch valves were only guaranteed to stand a pressure of 300 or 400 pounds to the square inch, while they might be subjected to 2,700 or 2,800 pounds per square inch in the hoist where they were put by the defendant, if it happened that the whole air pressure was

turned on without the load being attached; and where it also turns out that two of six similar valves, when tested, did not stand that pressure. This would warrant a finding that the defendant did not use due care in furnishing a safe hoist. See, in this connection, Moynihan v. Hills Co., 146 Mass. 586, 16 N. E. Rep. 574. The defendant seeks to meet this by showing that the plaintiff had been told never to turn on the whole air pressure when no load was attached, and not to turn on any air pressure at all until the load had been attached. But it appeared that in the case of a Ridgway oil-governing air hoist, "even if the air valve was left open only a little way, the full head of pressure would accumulate in the hoist in a very short time; that the amount of pressure exerted by the compressed air upon the piston depended upon how long the air valve was left open, and upon how wide it was open, and that the piston would receive the full pressure from a small opening in the air valve, if this valve was left open long enough." And the plaintiff testified that the only practical way of hooking on the load to the hoist was to start the hoist rising slowly, and to hook the hooks on the "trunnions" of the box containing the load as it ascended.

We are of opinion that the plaintiff did not assume the risk of the accident which happened to him. He was not chargeable with knowledge that the defendant's superintendent had substituted a three-quarter inch check valve, which was not designed to stand the pressure to which it might be subjected in the use of the hoist; and he had never taken the risk of such a hoist. We also think that the jury were warranted in finding that the plaintiff was in the exercise of due care. There was evidence that the only practical way of hooking the hoist onto the trunnions was to start the hoist up; and that an oil-governed hoist does not respond directly, and in proportion to the amount to which the air valve is opened, but that the amount of pressure may also depend upon the length of time the air valve has been partially open. This, coupled with the plaintiff's testimony that he did not know whether he had the full head of air pressure on at the time or not, though he "probably" did have it on, warranted a finding that he was in the exercise of due care. The case does not come within the doctrine applied in Coleman v. Mechanics' Iron Foundry Co., 168 Mass. 254, 257, 2 Am. Neg. Rep. 374, 46 N. E. Rep. 1065 — that an employer is "not obliged to provide an implement for improper or unreasonable use." It is evident, from what has been said, that the apparatus in a Ridgway oilgoverned air hoist prevents the operator's knowing, immediately on opening the air valve, how much air pressure has been turned on; and for that reason we think it possible that in operating such a