Lawless was the vice president of one of the largest lumber companies in this state, yet he carried on the negotiations in his own name, with the evident intention of buying for his company if a satisfactory agreement could be reached. The correspondence does not show that a sale was consummated. Judgment affirmed. ly higher than that of his neighbor. This higher sidewalk was of concrete; the one upon which plaintiff was walking was of brick. The difference in level between the two ranged from 2 to 221⁄2 inches. But dirt had accumulated on the top of the bricks, so that the difference between the two levels was so reduced as to range from 14 inches to 1% and 2 inches, leaving an average difference PROVOSTY, J., being absent on account of of, say, 11⁄2 inches. The higher sidewalk did illness, took no part. (134 La.) No. 19,627. GOODWYN v. CITY OF SHREVEPORT. (Supreme Court of Louisiana. Jan. 19, 1914.) (Syllabus by Editorial Staff.) 1. MUNICIPAL CORPORATIONS (§ 768*) -DEFECTS IN STREETS - INEQUALITY IN SIDE WALK. In a city requiring property owners to provide a sidewalk in front of their premises at their sole expense, a difference in level ranging from 2 to 21⁄2 inches, but which, by the accumulation of dirt on the lower sidewalk, had been reduced to an average of 11⁄2 inches, and where the higher sidewalk did not end abruptly, but began 11⁄2 inches from the dividing line, and sloped at an angle of 45 degrees toward the lower sidewalk, was not such an inequality as to make the city guilty of negligence, and liable to one injured by stumbling over it in daylight. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1622, 1624, 1625; Dec. Dig. § 768.*] 2. MUNICIPAL CORPORATIONS (§ 763*)-DEFECT IN STREET-DUTY IN GENERAL. The duty of municipal corporations is to see that their sidewalks are in reasonably safe condition for persons exercising ordinary care and prudence. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1612-1615; Dec. Dig. § 763.*] Monroe, J., dissenting. Appeal from First Judicial District Court, Parish of Caddo; E. W. Sutherlin, Judge. Action by Mattie A. Goodwyn against the City of Shreveport. Judgment for plaintiff, and defendant appeals. Judgment set aside, and suit dismissed. J. M. Foster, City Atty., of Shreveport (G. W. Jack, of Shreveport, of counsel), for appellant. Edward P. Mills, of Shreveport, for appellee. not end abruptly, but sloped at an angle of 45 degrees towards the lower, beginning 1 inches from the dividing line, which further mitigated the situation, since this slope was less liable to catch the foot of the pedestrian than would have been a perpendicular obstruction. The street commissioner of the city testifies that there are a great many inequalities of this kind in the sidewalks of the city of Shreveport. And the same statement we dare say could be made with equal truth of the sidewalks of most cities; at least in the residence parts. Time was when the pedestrian was content to trudge in the mud of the unpaved street. Later, when streets came to be paved, and the dirt gravitated more or less to the gutter in the center of the street, he found better walking by keeping to the higher part of the pavement near the property line. In our day, the property owner is required to provide a sidewalk for him to walk on. All of us, however, can remember what, not so many years ago, these sidewalks were. The time may come when they will be required to be all of concrete and of uniform surface; but everyday observation in walking the streets informs us that that time has not yet arrived. We do not think that the existence of a slight inequality like this one imports negligence on the part of the city. While it be hooves the city authorities to take into consideration the convenience and safety of the pedestrian, it behooves them also to remember that the obligation imposed upon the property owner to provide a sidewalk for the public along his front at his own sole expense is a more or less invidious, and oftentimes a most heavy, tax upon him, and that this burden should not be made unnecessarily burdensome; that it is well enough to be exacting in that regard on the business streets, where the comparatively narrow frontage and great value of the property make the burden lighter, and the constant use of the street by busy people increases the necessity of guarding against every possible pitfall; but that the wide frontage and less constant use of residence. streets calls for the exercise of some discretion in compelling the reconstruction of sidewalks for correcting slight variations of level, or even for requiring the property owner, who in most cases has laid his sidewalk from levels [1] The inequality resulted from one prop- furnished him by the city, to take up and erty owner having made his sidewalk slight-relay any part of it for making a gradual PROVOSTY, J. As plaintiff was walking upon the sidewalk of one of the residence streets of the city of Shreveport in broad daylight her foot struck against an inequality in the sidewalk, and she stumbled and fell, and was seriously hurt; and she brings this suit in damages against the city, alleging that, in allowing this inequality to remain in this sidewalk, the city was guilty of negligence. Plaintiff is a trained nurse, 35 years old, and wears glasses. slope to the higher level of that of his neigh- | replacing it in the same loose fashion. It bor subsequently laid. Perhaps, if such work had been a pitfall to others on the same day had to be done at the expense of the city, and on other occasions. and the city were in funds for the purpose, a more stringent rule might be advisable. Until sidewalks can be made perfect the pedestrian will have to take care how he treads. That this has been the view taken by the courts in general appears from the excerpt from the brief of counsel, given in the margin.1 [2] The duty of municipal corporations is to see that their sidewalks are in reasonably safe condition for persons exercising ordinary care and prudence. In the three cases last above mentioned ordinary care and prudence would not have saved the pedestrian from the accident, and the street had not been made reasonably safe. The situation is entirely different in the present case. Side The decisions of this court are in line with walks are not as yet kept in perfect condithose found in this excerpt. In Burke v. Tricalli, 124 La. 774, 50 South. 710, where the plaintiff had stumbled upon a drain across the sidewalk, with sides sufficiently above the level of the sidewalk to catch the feet of pedestrians, the court said: "It is incumbent upon passengers upon the streets to use ordinary care, at least, in guarding against the existence of the danger of such gutters and drains." In the case of Blume v. New Orleans, 104 La. 345, 29 South. 106, relied upon by plaintiff, the accident occurred "at a place covered by a long shed, where there was little or no light," and where "between the properties the rise was abrupt," and where "there was no incline at all," and the inequality was from 5 to 6 inches. The case is not authority for the proposition that every slight inequality must be smoothed out, but only for the proposition that the city must exercise reasonable care in providing against danger. In Aucoin v. New Orleans, 105 La. 271, 29 South. 502, the plaintiff was tripped by a loose plank in a sidewalk composed of planks which, to the full knowledge of the city authorities, had long been "decayed, loose, and out of place." The case is totally different in its facts from the present one. So, in O'Neill v. New Orleans, 30 La. Ann. 220, 31 Am. Rep. 221, the facts were entirely different. The plaintiff there slipped upon a flagstone which, instead of being in its right place spanning the gutter, had one of its ends in the gutter. How long it had been in that position, the decision does not say, but it had never been securely fastened; passing vehicles would knock it out of its right place, and, whenever this happened, the city authorities would content themselves with simply tion, and such slight inequalities in them as that in the present case are known to exist, and it is for the pedestrian to be on the lookout for them. The judgment is set aside, and the suit dismissed, at the plaintiff's cost. MONROE, J., dissents. NOTE. Excerpt from Brief of Counsel of Defendant. spect to the maintenance of highways, Abbott, Speaking of the duty of municipalities in revol. 3, par. 1001, says: "It is not that of an insurer; it varies under different conditions and circumstances. It is not an absolute or an unvarying one; it is simply the duty to keep in a reasonably safe condition for ordinary travel the public way for the use of those having the right and exercising the privilege of travel." To the same effect, we quote from Elliott on Roads and Streets, par. 793: "As we have heretofore said, and as it seems necessary for the sake of clearness to here repeat, cities are not insurers of the safety of their streets and alleys. They are simply required to keep them in a reasonably safe condition for persons traveling in the usual modes by day and by night, and exercising ordinary care. Elliott on Roads and Streets, par. 791, cites Beltz v. City of Yonkers, 148 N. Y. 67, 42 N. E. 401, holding that a city is not liable to one injured by stepping into a depression of 22 inches in depth and 7 inches by 2% feet across in the center of a sidewalk. If We quote from the opinion in that case: "Assuming that the defendant's officers were could they, in the reasonable exercise of these men of reasonable prudence and judgment, qualities, have anticipated this accident or a similar one from the existence of this depression in the walk? They could undoubtedly the omission to do so does not show or tend have repaired it at very little expense; but to show that they were negligent, unless the defect was of such a character that a reasonably prudent man should anticipate some danger to travelers on the walk if not repaired. the existence of such a defect is to be deemed evidence of negligence on the part of a city, then there is scarcely any street in any city when accidents occur the municipality must be that is reasonably safe within the rule, and treated, praetically, as an insurer against accidents in its streets. The law does not prescribe a measure of duty so impossible of fulfillment, or a rule of liability so unjust and severe. It imposes upon municipal corporations the duty of guarding against such dangers as can or ought to be anticipated or foreseen in the exercise of reasonable prudence and care. But when an accident happens by reason of some slight defect from which danger was not reasonably to be anticipated, and which, pers, and for discovery by appellee of all the | control of the investment thereof. It is imestate, real and personal, owned by Strau- material in this case whether we call the ther. She also prays that a commissioner may be appointed to state an account of the moneys collected and invested for her benefit, and her share of the profits of the business and the investment thereof, and that she may be decreed owner of such property to the extent of the investment of her funds, that appellee may be required to pay over to appellant the full amount shown to be due her from the estate upon an accounting, and that a lien may be fixed upon all interests inherited by appellee from her husband, John W. Strauther, for the payment thereof. The bill concludes with a prayer for general relief. trust a resulting trust or constructive trust. In Hawley & McGregor on Real Property, p. 367, we find this statement of the law touching a trust such as in this case: "An implied trust in land arises when the holder of the legal title to the land owes such a duty to another to use that particular land for the benefit of the other as a court of equity will enforce." And following this the same authors, in showing the distinction between resulting trusts and constructive trusts, give the following definitions: "A resulting trust is raised by equity to carry out the presumed intention of the party as a result of whose act the trust arises." "A constructive trust is raised by equity to effect the ends of justice and to frustrate a possibly fraudulent intention of the parties whom equity makes trustees against their will." We take the following definition for constructive trusts from Black's Law Diction It is assigned as a ground of demurrer, and argued in the brief for appellee, that the property and money turned over by appellant to John W. Strauther, her son, were only a gift, and that he could not, therefore, be deemed her trustee for the handling thereof; that because of the relationship of the par-ary: "A trust raised by construction of law, ties such a disposition of the property would be presumed to be a gift. This contention is fully answered by the allegations of the bill. It is therein clearly alleged that the money and property was delivered to him for investment for appellant's benefit. [1] It is also argued that the demurrer should be sustained on the ground that the bill in this case is a fishing bill. We do not see that this is so. We understand that a bill in equity is a fishing bill when it seeks a disclosure upon "general, loose, and vague allegations." Black's Law Dictionary. In the bill before us we find the allegations to be clearly and definitely stated. In the material allegations there is no uncertainty. The bill sets forth the facts with such particularity as the circumstances of the case permit. We deem this a proper case for discovery. In order to maintain her rights and her title to property, appellant seeks a disclosure of facts resting in the knowledge of appellee and the production of deeds and writings in her possession. This should entitle appellant to discovery. [2] It is contended that the facts in this case are not sufficient to show a trust, and that, therefore, there was no relation of trustee between Strauther, the son, and appellant, his mother. It will be seen that it is definitely alleged in the bill that Strauther received from appellant personal property, proceeds of rents and other funds, for the purpose of use and investment for the benefit of appellant, and that by the agreement under which he received such property and funds for such investment he was to manage and control the investments for her benefit, and account to her therefor. Certainly, in equity, this constitutes Strauther a trustee of appellant. The facts in this bill show a trust. This trust is implied from the delivery, receipt, or arising by operation of law, as distinguished from an express trust. Wherever the circumstances of a transaction are such that the person who takes the legal estate in property cannot also enjoy the beneficial interest without necessarily violating some established principle of equity, the court will immediately raise a constructive trust, and fasten it upon the conscience of the legal owner, so as to convert him into a trustee for the parties who in equity are entitled to the beneficial enjoyment"-citing Hill, Trustees, 116; 1 Spence, Eq. Jur. 511; Nester v. Gross, 66 Minn. 371, 69 N. W. 39; Jewelry Co. v. Volfer, 106 Ala. 205, 17 South. 525, 28 L. R. A. 707, 54 Am. St. Rep. 31. Perry on Trusts & Trustees (6th Ed.) § 27, says: "A constructive trust is one that arises when a person, clothed with some fiduciary character, by fraud or otherwise gains some advantage to himself. Courts construe this to be an advantage for the cestui que trust or a constructive trust." It is stated in Words and Phrases, vol. 2, p. 1476, that "constructive trusts are raised by equity for the purpose of working out right and justice." It is further stated in Words and Phrases, vol. 2, p. 1477: "Constructive trusts are of three kinds, or arise from one or the other of three conditions of fact: First, trusts arising from actual fraud; second, trusts which arise from a constructive fraud; and, third, trusts which arise from some equitable principle independent of the existence of fraud"-citing O'Bear Jewelry Co. v. Volfer, 106 Ala. 205, 17 South. 525, 529, 28 L. R. A. 707, 54 Am. St. Rep. 31. While it appears to us that the trust arising in this case comes within the definition of a constructive trust, still, as we have said, we deem it immaterial whether we call the trust a resulting or constructive trust, because we conclude that it is clear death resulted from injury from a collision in In such action, evidence held to show that the operation of defendant's cars. [Ed. Note.-For other cases, see Death, Cent. Dig. § 94; Dec. Dig. § 76.*] 3. MASTER AND SERVANT (§ 180*)-ABOLITION OF FELLOW SERVANT RULE-APPLICATION OF STATUTE. implied trust. Touching this we commend | 2. DEATH (§ 76*)-SUFFICIENCY OF EVIDENCE the following, taken from Hawley & Mc- -CAUSE OF INJURY. Gregor on Real Property, page 369: "And whether a particular trust is to be classed as a resulting or constructive trust is of no possible consequence. But it is of consequence that a lawyer should have clear notions of the principles on which equity raises an implied trust, whether it is called a resulting or a constructive trust, because it is the underlying and fundamental principles by which the result of any particular litigation is finally determined. It is a too frequent error to suppose that our law is a correctly articulated skeleton, rather than a living, breathing, growing body. As is luminously explained by Blackstone, decided cases are evidence of what the law is, but the evidence of any particular case is not conclusive. The law itself is a current flowing with the stream of human life, and the | decisions can only be considered as straws and driftwood tending to show in which direction the current is flowing." In the case of Patton v. Pinkston, 86 Miss. 651, 38 South. 500, it was decided that "a defendant who, having received money from a testator in his lifetime to invest for his benefit, invested it in lands for defendant's own benefit, without the testator's knowledge, holds the lands as a constructive trustee for the legatees to whom the right was bequeathed, and a suit to enforce the trust will not be barred until the ten-year statute of limitations applicable to trusts (Code 1892, § 2763) shall have fully run." Appellant is in the right court. It is the province of equity to intervene and aid a party in the recovery of property in which he has a beneficial interest and to which he is in justice entitled. [3] The statute of limitations applicable in this case is contained in section 3125 of the Code of 1906. Patton v. Pinkston, supra. The demurrer should have been overruled. Reversed and remanded. SMITH, C. J., expressed no opinion. MYERS et al. v. LAMB-FISH LUMBER CO. (No. 16,788.) (Supreme Court of Mississippi. March 30, 1914.) 1. MASTER AND SERVANT (§ 286*)-QUESTION FOR JURY-SAFE PLACE OF WORK. On evidence in an action for wrongful death while endeavoring to make a coupling of cars on defendant's logging railroad, held, that the question whether the roadbed was in a safe condition, involving the negligence of defendant, was for the jury. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010 1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. § 286.*] Laws 1908, c. 194, providing that an employé's knowledge of the unsafe condition of any ways or appliances, or of the improper loading of cars, shall not be a defense to an action for injury therefrom, but excepting condangerous or unsafe cars, did not apply in a ductors and engineers voluntarily in charge of case where the cars were not defective, but the danger arose from coupling cars whose drawheads and couplers were of different heights upon a track which was soft and would sink under their weight. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. 88 359-361, 363-368; Dec. Dig. § 180.*] RETROACTIVE OPERA 4. STATUTES (§ 267*) Laws 1912, c. 215, providing that proof of injury from the running of engines or cars shall be prima facie evidence of the want of reasonable skill and care, provides only a rule of evidence, and does not deal with substantive rights, and is applicable in the trial of all cases after its enactment, though the injury occurred before. [Ed. Note.-For other cases, see Statutes, Cent. Dig. §§ 350-359; Dec. Dig. § 267.*] Appeal from Circuit Court, Tallahatchie County; N. A. Taylor, Judge. Action by F. J. Myers and another against the Lamb-Fish Lumber Company. Judgment for defendant, and plaintiffs appeal. Reversed and remanded. Wells, May & Sanders, of Jackson, and C. E. Harris, of Charleston, for appellants. Dinkins & Caldwell, of Charleston, for appel lee. REED, J. This is an action brought by appellants, the father and brothers of Earl S. Myers, against appellee, to recover for alleged wrongful death of Myers, resulting from injuries suffered by him while endeavoring to make a coupling of cars on appellee's logging railroad. After all of the testimony had been introduced and both sides had rested, the court granted an instruction directing a verdict for appellee. [1] Earl S. Myers was employed by appellee, and was at work on a logging train. It is in testimony that he was a brakeman or flagman. Some of the witnesses say that he was a conductor. In discharging the duties of his employment, he undertook to couple a log car to an Illinois Central standard coal car, known as a "gondola," and was crushed between the cars. He died in about 30 minutes after he was injured. Appellants contend that appellee company was negligent in failing to provide a safe roadbed and track for the use of its trains. It was shown that the roadbed at the place where the coupling was attempted was soft and soggy, as the | gerous or unsafe cars or engines voluntarily result of water flowing from an artesian well operated by them from the other provision in near by and seeping into the track; that the statute that "knowledge by any employé certain of the cross-ties at the same place injured of the defective or unsafe character had been burned from dumping hot cinders or condition of any machinery, ways or apfrom locomotives on them; and that by rea-pliances, or of the improper loading of cars, son of the condition of the roadbed from the shall not be a defense for an action for inwater being on it and the cross-ties being jury caused thereby," is applicable to this burned the track would sink beneath the case. weight of a locomotive or car and render the coupling of cars uncertain and unsafe. Testimony was introduced by appellee to show that the track of its railroad was in general good condition. There was a clear conflict of the testimony on the question of whether or not the roadbed was in a safe condition and this question, involving the negligence of appellee, should have been submitted to the jury. We also find evidence pro and con on the questions of negligence by the appellee (1) in its failure to properly load the log cars, and (2) in using cars whose drawheads and couplers were of different heights. We find in the record a clear conflict in the evidence relative to the employment by Myers at the time he was killed. Some of the witnesses call him a flagman or brakeman, and others say that he was a conductor. Some testify that he exercised the authority of a conductor. The proof shows that he was doing the work of a brakeman, coupling cars, when he was injured. Even if the statute excepting conductors should apply in this case, it cannot be said that the proof of his occupying such position is beyond conflict, and that it was unnecessary to submit it to a jury. We do not see, however, that the statute is applicable to the facts of this case. The exception is as to conductors or engineers operating dangerous or unsafe cars or engines. It is not claimed here that the cars causing the injury were unsafe in themselves, or when used for the purpose for which they were constructed. There were no defects in the cars. They were each good for the purpose for which they were intended. The danger arose from the wrong use of the cars by appellee; that is, in moving and coupling cars whose drawheads and couplers were of different heights, upon a track which was soft and sodden and would sink under the weight of the cars. It is claimed that the roadbed was in an unsafe and defective condition. [2] Counsel for appellee claim that it is not known how Myers was injured, that only two small bruises were shown on his body, that no surgeon examined him, and that he should have been more crushed or cut by the collision of the cars. The facts to us clearly show the cause of the injury. Myers, a young man, having just reached majority, in sound health, vigorous and strong, stepped between two cars to make a coupling. When the cars came together they did not meet and couple. On one car was a projecting log. A witness, who was employed on the same train and was at the time near him, saw him go in between the cars. When the cars failed to couple, the witness saw him come out and lie down on a log. The witness went to him immediately, and found Myers in great distress and pain, and heard him say he was hurt and was going to die. Myers was carried to a house near by and there in a very short time did die. These facts are too plain to admit a question as to how deceased was injured. True, the outward show-ply in this case, because the law was passed ing of the fatal injury was slight; and true, no one saw him at the very moment he was struck. Nevertheless, it is beyond dispute that his death resulted from injury inflicted by collision in the running of appellee company's cars. [3] It is contended by the appellee that Earl S. Myers was a conductor, having the direction and control of the train which caused the injury resulting in his death; that it was his duty to couple the cars; and that, even if the coupling was unsafe, there should be no recovery for injury sustained by reason thereof. Appellee asserts that the provision in chapter 194 of the Laws of 1908, excepting conductors and engineers in charge of dan [4] Appellee's counsel, in their brief, argue that chapter 215 of the Laws of 1912, providing that the proof of injury inflicted by the running of engines, locomotives, or cars shall be prima facie evidence of the want of reasonable skill and care, etc., should not ap after the injury, which was on November 5, 1910. The statute was in effect when this case was tried. We have held recently, and since the case at bar was appealed, that chapter 215 provides only a rule of evidence, and does not deal with substantive rights, and is applicable in the trial of all cases after its enactment. Easterling Lumber Co. v. S. W. Pierce, 64 South. 461. We gather from counsel's brief that the trial court did not apply this statute upon the hearing of this case. This should have been done. It was error to give the peremptory instruction for appellee. The case should have been submitted to the jury. Reversed and remanded. |