in the record does it appear that any witness or judge saw the name of Mr. Young upon either of these ballots, nor does it sufficiently appear that Mr. Young's name was or was not scratched from any of these tickets. It does appear that Mr. Young was a candidate for the office of county treasurer running on the Democratic ticket. Mr. Rhead says he heard Mr. Callas say when looking over the city box, "Here is another straight Democratic ticket," and the ticket was thrown away. Witness also saw one of these county tickets that was thrown out, and read it through. Saw Mr. Rawlin's name upon it, and saw there was no scratches on it, but did not notice the name of any one else on it. Did not stop to read the names of the various officers on it, but simply saw no scratches on that ticket. Mr. Ball saw Mr. Callas take out a county ticket and remark, "Here is one," rubbed it in his hands a moment, and threw it down on the floor. Witness saw no name upon it. Could not say whether Callas held it long enough to read it or not. Does not recollect Callas saying it was a Democratic ticket. Thinks six tickets were thrown out in accordance with previous arrangement. Mr. Callas, one of the judges of election, testifies that he found six straight Democratic county tickets in the city box, which were thrown out. Does not remember saying at any time when he took out the tickets that they were Democratic tickets. Saw no scratches on any of them. Has no recollection of looking at any of the names on the tickets. Does not know whether Young's name was out or in on the tickets. Would suppose it was on. Does not remember whether Young's name was scratched that day; would not say. James Salmon was one of the judges of election at poll 2. Found one county Democratic ticket in the city box. Cannot say whether it was scratched or not. Did not notice, nor read names. Cannot say whether Mr. Young's name was on it or not. Simply noticed the heading was Democratic. Cannot say what the vote was on treasurer. Mr. Dale says he saw a Democratic county ticket in the city box. Could not say whether it was scratched or not. Did not look it through. Mr. Wright saw a Democratic ticket that was thrown out. It was not scratched, to his knowledge. Mr. Salmon saw Mr. Callas pick out a ticket, but did not hear him say it was a straight Democratic ticket. Had no opportunity to see the tickets, or read them, although close by. Mr. Callas would pick them out, crumple them up, and say, "Here is another ticket in the wrong box." They were destroyed without reading. No recollection of hearing any judge say they were straight Democratic tickets. Mr. Callas would open them just far enough to see the heading, and some he did not open at all. He could not read the tickets,-not time to read them. The tickets were count

ed by candle light. Mr. Smith was present when Mr. Callas picked the county tickets out of the city box, and saw what was done with them. He could not say whether they were Democratic or Republican or Liberal tickets, although he says he had a better chance to know than any one else. That Mr. Callas took no time to read the tickets, or see anything more than the heading. That Callas doubled up the tickets, and laid them on the table, with no opportunity to read them. The other judges did not handle these county tickets. Frequently heard some one say one was a Republican ticket. Callas did not hold the tickets long enough to read the names on them. Does not think he took the pains to tell whether the names were scratched out or not. Mr. Fisher saw Callas take a county ticket from the city box, and said, "Here is one of them," and ground it up in his hand, and threw it on the floor. Callas did not take time to read the ticket. Witness thinks there were only two county tickets in the city box. There was no time to read the ticket. las only had time to look at heading. Hopkins saw Callas pick out the first county ticket, look at the heading, crumple it up, and throw it away. Could not have read the ticket through. None of these county tickets were passed to the other judges. They had no opportunity to handle or inspect these tickets to see what names were on them. Some tickets were not opened at

all.

Cal

Mr.

It will be seen from this synopsis of the testimony that there is very much uncertainty thrown around the character of these tickets. If it be conceded that they were all Democratic tickets, still it is a mere matter of conjecture as to whether Mr. Young's name was printed thereon, or whether his name was scratched or not. No witness has testified that Mr. Young's name was on these tickets, nor does it sufficiently appear that if his name was on these tickets that one or more of them may not have been scratched off. Many scratched tickets were found in the box, although the particular character of the tickets does not appear. We know from common experience that those who do vote are usually unwilling that the character of their votes be made public, and that whenever there is an investigation as to the actual vote cast it is almost certain to bring about prevarication and uncertainty as to what the truth is; and while in this case before us no special reasons exist for casting reflections upon the truth of those who participated in the election, yet it is deemed unwise to lay down any rule by which the certainty and accuracy of an election may be jeopardized by the reliance upon any proof affecting such results that is not of the most clear and conclusive charac ter. The temptation to actual fraud and corruption on the part of the candidates and their political supporters is never so

the

great as when it is known precisely how many votes it will take to change the result, and men who are willing to sell their votes before election will quite as readily sell their testimony afterwards, especially as means of detecting perjury and falsehood is not always at hand until after the wrong sought to be accomplished by it has become successful, and the honest will of the people has been thwarted. In People v. Sackett, 14 Mich. 320, the court holds that the returns of the inspectors is prima facie evidence of the result of an election, and that, where the ballots have not been preserved in the manner required by law, but have been left in an exposed condition, or destroyed, the presumption that would otherwise exist of their correctness is not raised, and the court may properly be governed by the returns, unless fully convinced by proof of the integrity of the ballot. These ballots having been improperly destroyed, and the judges not having certified that they were cast for Mr. Young, we think the evidence that these six ballots were cast for Mr. Young is insufficient to justify that finding, and that the judgment entered in favor of the plaintiff and contestant should be reversed, with costs, and the case remanded for further proceedings.

SMITH, J. I concur in the judgment of reversal.

BARTCH, J. I dissent.

(4 Ariz. 116)

MCGILL v. SOUTHERN PAC. CO. (Supreme Court of Arizona. May 3, 1893.) FELLOW SERVANTS--WHAT CONSTITUTES RELATION -RAILROAD EMPLOYES.

A section foreman is not a fellow servant of the conductor of a train on which he is being carried to and from the point on the road at which he is working.

Appeal from district court, Graham county; R. E. Sloan, Judge.

Action by William McGill against the Southern Pacific Company. From a verdict for plaintiff, defendant appeals. Affirmed.

J. A. Zabriskie and Maxwell & Satterwhite, for appellant. F. J. Heney and G. C. Israel, for appellee.

WELLS, J. This action was brought by plaintiff, who was in the employment of defendant as a section foreman on its railway, for injuries sustained by him in a collision between two railway trains, caused by the alleged negligence of the conductor of the train in which he was at the time of the injury.

At the trial below several questions were asked, to the ruling of the court on which the defendant took exceptions and assigned as error, as well as exceptions to the charge of the court to the jury. The part of the charge of the court of which the defend

ant most particularly complains reads as follows: "The court instructs the jury that a conductor of a railway train, who commands its movements, directs when it shall start, at what station it shall stop, and has the gener al management of it, and control over the persons employed upon it, represents the railway company, and is not a fellow servant with a section foreman in the employ of said company; and if the jury believes from the evidence that John Barrett was the conductor of the train upon which plaintiff was, and had the powers just stated regarding such train, the court instructs the jury that Barrett was not a fellow servant with the plaintiff." The disposition of this assignment principally settles the rights of the parties in the case, for if the defendant is liable for the injury sustained by the plaintiff, (which the jury has so found,) we regard it unnecessary to consider whether many of the other points or rulings of the court were correct or erroneous, for we think the general result would have been, unchanged.

Is the defendant liable for the negligence (conceding there was negligence) of John Barrett in causing the injury to plaintiff complained of? From the evidence we gather that plaintiff was in the employment of the defendant, who is a railway corporation, as a section foreman, and whose duty it was to repair all injuries to the roadbed and track of defendant's railway, and to perform such other work of like character as the defendant should direct him to do. On the 23d day of August, 1890, he was ordered by the road master acting for the defendant to go to a certain point on the line of defendant's railway in the county of Pima, Ariz., taking with him his working force, and grade and lay a temporary track for the purpose of raising an engine. John Barrett was the conductor of the train which was furnished by defendant to take the plaintiff and his working force to and from the place of work. The plaintiff was by Barrett carried to the working point, at which place he and his working men worked until about 3 o'clock, when he was told by Mr. Loyd, the civil engineer, foreman, and acting road master, as well as by Barrett, the conductor, to get aboard the work train, when they would work their way back home. The plaintiff and his men got on the train, and were being carried by it, backing up the track, when the collision with another train occurred, in which the plaintiff sustained the alleged injury. Both Barrett and the plaintiff were in the employment of the same company, and the question whether they were fellow servants within the reason of the law, and engaged in the same common employment, so as to exempt the company from liability from personal injury caused by the negligence of a coservant, is the controlling point in the

case.

The case of Railroad Co. v. Ross, 112 U. S. 377, 5 Sup. Ct. Rep. 184, upon which plaintiff

seems chiefly to rely, sustains the above charge of the court. The court there clearly makes a distinction in their relation to their common principal between servants of a corporation exercising no supervision over others engaged with them in the same employment and agents of the corporation clothed with the control and management of a distinct department, in which their duty is entirely that of direction and superintendence. "A conductor, having the entire control and management of a railway train, occupies a very different position from the brakemen, the porter, and other subordinate employes. He is in fact, and should be treated as, the personal representative of the corporation, for whose negligence it is responsible to subordinate servants. * We know from the manner in which railroads are operated that, subject to the general rules and orders' of the directors of the companies, the conductor has the entire control and management of the train to which he is assigned. He directs when it shall start, at what speed it shall run, at what stations it shall stop, and for what length of time, and everything essential to its successful movements. In no proper sense of the term is he a fellow servant with the fireman, the brakemen, the porters, and the engineer. The latter are fellow servants in the running of the train under his direction. As to them and the train he stands in the place of and represents the corporation." The above doctrine is sustained by very respectable authorities cited in the opinion of the court in the case, and, if correct, is decisive of the question under consideration. In the case at bar it was the duty of the conductor of the train to convey the plaintiff and his workmen to and from the place where they were to perform their work or duties, which were entirely distinct and different from that of Barrett, the conductor. The plaintiff's duties were in no wise connected with or relating to the train, its working or management, nor was he in such a position that he could in any degree control or influence the conductor in starting, handling, or managing the train. His work was not upon the train, nor about it, nor had he any connection with it except to be conveyed by it to and from the place of his work, and while being so conducted he was injured. We think there can be no question of Barrett's being the conductor of the train. That fact was submitted to the jury by the above charge, and the jury found in the affirmative. He answered the requirements defined in the case of Railroad Co. v. Ross, supra, and represented the company; and under the rule of that case, for personal injuries resulting from his negligent acts, if any, the company is responsible. The supreme court of this territory has similarly held in a case where the facts were much like those in this case. Hobson v. Railroad Co., 11 Pac. Rep. 545. The defendant, questioning the soundness of this doctrine, refers us to the case of Tuttle

v. Railway Co., 122 U. S. 189, 7 Sup. Ct. Rep. 1166. The principle announced in that case, "that, in general, when a servant, in the execution of his master's business, receives an injury which befalls him from one of the risks incident to the business, he cannot hold the master responsible, but must bear the consequences himself," has no direct bearing upon the questions just being considered, viz. whether the conductor, Barrett, and the track foreman, McGill, were fellow servants within the reason of the law, and engaged in the same employment, so as to exempt the company from injury caused by the negligence of a coservant. The former announces a general principle, recognized everywhere, and questioned by none, and applies in a general sense to every case of personal injury; while the latter invokes an additional rule in cases where the injury is caused by the negligence of a fellow servant. The case of Randall v. Railroad Co., 109 U. S. 478, 3 Sup. Ct. Rep. 322, is very similar to the case of Tuttle v. Railway Co., supra, where a switchman was injured by a train where there was a "network of tracks." There was no evidence that the track was improperly constructed, or that the engine driver was unfit for his duty. The court there says that the general rule of law is well established that one who enters into the service of another takes upon himself the ordinary risks of the negligence of his fellow servant in the course of his employment. There the plaintiff was in attendance upon his switches, and must have known all the dangers attendant thereupon, and could look out for the consequences. The law of the case is in perfect harmony with that of Railroad Co. v. Ross, supra. In the former, a brakeman working a switch for his train on one track in a railroad yard is a fellow servant with the engineer of another train of the same corporation upon an adjacent track. In the latter case the court held that the conductor of a train is not a fellow servant with the brakemen, engineer, and fireman, but that the brakemen, engineer and fireman were fellow servants in the running of the train. In the case at bar there were no such conditions as in the case of Randall v. Railroad Co., supra. The conductor, with his train, was taking the plaintiff from his work, which was entirely separate and distinct from the work or employment of the conductor. The case of Armour v. Hahn, 111 U. S. 313, 4 Sup. Ct. Rep. 433, is not an analogous case. A carpenter with years of experience, with one of his comrades, was directed by the foreman to push the joist out on some projecting sticks of timber, but he did not direct him to go out. If the carpenter had kept both feet inside the wall he could have pushed the joist as directed without danger, but he got out onto the projecting sticks, which gave way. There was no evidence tending to prove negligence on the part of the defendant or his superintendent or foreman. The plaintiff,

McGill, was upon the train, not in the discharge of any duty connected with the running or management of it, but was there being carried from his work to another point on the line. The conductor hurriedly directed him and his men to get on the train, so as to get his train out of the reach of an approaching train, which was due and on time. The plaintiff had no choice in the matter. He considered, and he had a right so to do, that if he did not comply with the direction of the conductor he would be left at a long distance from the station, to find his way there as best he could.

Upon the question of negligence of Conductor Barrett resulting in the injury of plaintiff the testimony is conflicting. The jury found that there was negligence, and, further, that plaintiff was not at fault. We cannot disturb the verdict on that ground.

A further consideration of the other assignments would lengthen the discussion without any beneficial results. We are inclined to the opinion that no error was committed by the lower court which could justify a reversal of the case.

The jury returned a verdict of $25,000 in favor of the plaintiff. We infer that this amount was rendered upon the theory that the plaintiff was permanently injured, so as to incapacitate him from earning a livelihood for himself and family. We do not think the testimony warrants such a conclusion, or that the plaintiff's injury amounted to that sum, and therefore consider the verdict excessive, and are of the opinion that the judgment should be reduced to the sum of $15,000. The district court is therefore hereby directed to modify its judgment by rendering judgment against the defendant and in favor of the plaintiff for the sum of $15,000, provided the plaintiff shall elect to remit the sum of $10,000 from his former judgment; and in case he does not so elect a new trial of the whole case is ordered.

GOODING, C. J., and KIBBEY, J., concurring.

(4 Ariz. 102)

CITY OF TOMBSTONE v. REILLY. (Supreme Court of Arizona. April 15, 1893.) APPEAL-RECORD-STIPULATION AS TO APPROVAL.

Under Rev. St. par. 843, providing that if the parties or their attorneys agree upon a statement of facts on appeal they shall sign it, and submit it to the judge for his approval and signature, such approval and signature are indispensable, and in their absence a stipulation that the judge approved and signed the statement is insufficient to justify its consideration as part of the record.

Appeal from district court, Cochise county; Richard E. Sloan, Judge.

Appeal by the city of Tombstone from a judgment in favor of James Reilly. firmed.

Af

Allen R. English, for appellant. James Reilly, in pro. per.

WELLS, J. As appears from the record the bill of exceptions was not allowed by the judge of the court, as required by paragraph 82S, Rev. St. Nor is there any statement of facts approved and signed by the judge. There is a stipulation by the parties "that the statement of facts herein shown to have been agreed to by respective counsel was thereafter settled, found correct, and signed as such by the judge, and by him approved, as prescribed by paragraph 843." Paragraph 843 provides that if the parties or their attorneys agree upon a statement of facts, they shall sign the same, and it shall be submitted to the judge, who shall, if he finds it correct, approve and sign it. True, the parties or their attorneys may agree what the facts are as proved upon the trial; but when that is done it is still essential that the statement should be submitted to the judge for his examination, approval, and signature. If the agreement or stipulation of the parties or their counsel is all that is required, why impose upon the judge the task of ascertaining its correctness before approving and signing it? The trial court is so far interested in the matter that it should see the record presents to the supreme court the case as tried in the court below. The stipulation may, through inadvertence or otherwise, present a case upon an entirely different theory from the one on which it was tried, or may present an entirely different record from the one made below, and it is due to the court and to the parties to the action that the statement of facts be a correct one, and that he have an opportunity of examining it, to ascertain if it is correct. The statutes require that the statement of facts shall be submitted to him, even when agreed to by the parties or their counsel. The purported statement of facts in this case was not submitted to the judge, and he had no opportunity to examine it to ascertain its correctness. The parties stipulating that it was found correct and signed does not make it so, when in fact the statement was neither submitted to the judge nor approved or signed by him. No agreement of counsel can take away the right, nor make it any less the duty, of the judge, under the statute, to approve and sign the statement, before it becomes a part of this record. It is entitled to become a part of the record only by virtue of the allowance and signature of the judge, and if these are wanting in any agreed statement attempted to be made and filed under the statute it must be rejected as improperly in the record. Smith v. Blackmore, (Ariz.) 29 Pac. Rep. 15. The purported statement of facts is therefore not considered as a part of the record. There appearing no error in the judgment roll, the judgment of the lower court is affirmed.

WELLS and KIBBEY, JJ., concur.

GOODING, C. J. I concur in the decision.

(6 Wash. 494)

FIRST NAT. BANK OF ABERDEEN v. CARTER.

(Supreme Court of Washington.

1893.)

June 10,

CHATTEL MORTGAGE ENFORCEMENT AGAINST LEVYING CREDITOR-PRIORITIES.

A creditor, on receiving a mortgage on his debtor's stock of goods, immediately went to the latter's store, and told the clerks and others present that he had taken possession under the mortgage, putting one of the clerks in charge, and he proceeded forthwith to the county seat to record the mortgage. Before the mortgage was recorded, an attachment was levied on the goods, though the officer making such levy was informed at the time that the property was in plaintiff's possession under his mortgage. Held, that plaintiff's mortgage was good as against the attachment, though the attaching creditor had no notice of the mortgage at the time the writ was issued.

Appeal from superior court, Cheholis county; Mason Irwin, Judge.

Action by the First National Bank of Aberdeen against H. H. Carter. From a judgment for defendant, plaintiff appeals. Reversed.

Linn, Bridges & McKinley, for appellant. Doolittle & Fogg and J. C. Cross, (Jabez Dickey, of counsel,) for respondent.

SCOTT, J. Plaintiff brought this action to recover possession of certain personal property of the defendant which had been seized by him as sheriff under writs of attachment issued against the property of one David E. Dunbar. Said Dunbar had been carrying on a grocery business at Aberdeen, and had become indebted to various parties, among whom were the plaintiffs in the suits wherein said writs of attachment were issued and the plaintiff in this action. The plaintiff had loaned money to said Dunbar at various times while he was conducting said business, with the understanding that Dunbar would give the bank security therefor whenever called upon to do so. The plaintiff's rights in this action are based upon a chattel mortgage given by Dunbar to secure said indebtedness. This mortgage was executed upon the 21st day of September, 1891, and it was provided therein that the mortgagee should take immediate possession of the property and sell the same, and apply the proceeds in payment of the mortgagor's Indebtedness to the plaintiff. The mortgage was executed at 7:45 o'clock Monday morning. One Hays, the plaintiff's cashier, went with Dunbar, immediately, to the store where the property was situated, where, in the presence of the clerks, the property was turned over to Hays, and said Hays placed one Warren, one of the clerks, in charge of the store temporarily, while Hays proceeded Immediately to Montesano, the county seat, to put the mortgage upon record. The mortgage was filed for record at 10:10 in the forenoon of the same day. A levy was made under the writs in question after said chattel mortgage had been executed, and after Hays

had so taken possession of the property for the bank, but before the mortgage was filed for record. There was some testimony to show that, when the officer who made the seizure under the writs of attachment entered the store with the writs to make the levy, he was informed that the property was then in the possession of the plaintiff, and that said plaintiff claimed the same under and by virtue of a chattel mortgage given by Dunbar to the plaintiff. A verdict was rendered for the defendant, and the plaintiff appealed.

We are of the opinion that if Hays, the plaintiff's cashier, upon receiving the mortgage, did go to the store, and announce to the clerks and such other persons as were present that he had taken possession thereof for the plaintiff under the mortgage, and put one of the clerks in charge of said property temporarily, while he proceeded with dillgence to place the mortgage upon record, and if, when the officer appeared, and announced his intention of taking the goods under the writs of attachment against Dunbar, he was then and there informed that said property was in the plaintiff's possession, under and by virtue of such chattel mortgage, such acts were sufficient to maintain the plaintiff's rights, at least temporarily, while it was proceeding diligently in the premises; and consequently the court was in error in instructing the jury that the notice to the sheriff was not sufficient, but that there must have been a notice given to the attachment creditors prior to the time the writs of attachment were issued and placed in the hands of the sheriff. Stewart v. Smith, 60 Iowa, 275, 14 N. W. Rep. 310; Tucker v. Tilton, 55 N. H. 223; Young v. Walker, 12 N. H. 502. Under the plaintiff's proof, its claim was a meritorious one, as much so as were the claims of the plaintiffs in the attachment suits, and it had a right to obtain security therefor, and Dunbar had a right to prefer the bank in giving security, the claim being a bona fide one, and the parties acting in good faith. For these reasons the judgment of the superior court must be reversed, and the cause remanded.