was subsequently ascertained that there was no coal; also that it was the intention of the parties to the lease, and intended to be written therein, that the defendant and his assignees should have the right to prospect on the premises for coal, and, if there was no coal, then no royalty was to be paid. Defendant asks that the contract be reformed to agree with such intention. The answer also recites that it was understood between the parties that the lease should be assigned to the Novelty Coal Company; that it was given and received with that understanding, and was so assigned. Judgment for plaintiff for damages assessed at $347.40. Defendant appeals.

Mackey & Fonda, for appellant. Sampson & Brown, for appellees.

ROTHROCK, J. A question is raised as to the manner in which this cause is to be tried in this court,-whether upon errors, or de novo on the evidence, which has been reduced to writing.

It appears from the record that the whole of the evidence was reduced to writing on the hearing, which was had before the court, and, by an order entered in the case, the evidence was taken down by the official short-hand reporter, was made a part of the record, and on the evidence then introduced the case was taken under advisement to be argued in vacation, and judgment and decree entered in vacation. This order was made at the March term, 1885; both parties being present. At the September term of the same year the cause was continued by consent, for the reason, as stated in the order, that the record had not been submitted to the court. At the term held in February, 1886, the cause was resubmitted and taken under advisement, and judgment and decree to be entered in vacation. It is apparent from the record that the cause was tried below as an equitable action, and it must be so tried here. Van Orman v. Merrill, 27 Iowa, 476; Balch v. Ashton, 54 Iowa, 123; S. C. 6 N. W. Rep. 146; Richmond v. Dubuque & S. C. R. R., 33 Iowa, 422; Blough v. Van Hoorebeke, 48 Iowa, 40. The evidence having been certified as required by law, we shall therefore proceed to consider the case as triable de novo in this court.

The appellant insists that the court erred in sustaining a motion to strike out a part of an amendment to the answer, but a careful examination of the pleading convinces us that the portion struck out might be regarded as redundant; and we think the motion was properly sustained.

The first branch of the equitable defense set up by the defendant is that the contract in question does not express the true intent of the parties, but that the design was to put into the agreement "that defendant, or his assignees, should have the right to prospect said land, and see if there was any coal thereunder, and, if it was proven there was not, there should be no royalty or money paid;" that this was the intention at the time the contract was made, but that it was "omitted from the written agreement by mistake or oversight. Defendant therefore asks that the written agreement or conveyance be reformed so as to express the real intent of the parties at the time as indicated above." It is an old and well-established rule that, before a court can disturb the provisions of a written agreement for the purpose of reforming it, there should be clear and convincing evidence (1) that the written instrument did not, at the time of its execution, set forth the true intent of the parties; (2) that the failure to make the instrument express such intent arose from oversight or mistake in drafting the instrument.

It does not seem to us clear from the evidence that there was any intent, at the time of the execution of the writing, that any such provisions, as claimed by defendant, was intended to be inserted. On the contrary, all the negotiations proceeded in the belief that there was coal on the premises, and the writing was drawn in accordance with such negotiations. There was not sufficient evidence to warrant the court in disturbing the provisions of the contract.

It appears very clear, however, from the evidence, that the lease or conveyance was executed, delivered, and received under the belief that there was coal underlying the premises, and that the same could be mined. It is equally clear from the testimony that there is no coal there. The lease was therefore entered into by the parties through a material honest mistake of fact, of vital importance to the validity of the contract. Both parties were dealing in regard to something they supposed to be in existence so far as either had any knowledge. Against such a mistake equity will grant relief. 1 Story, Eq. Jur. 142-144; Allen v. Hammond, 11 Pet. 71; 2 Kent, Comm. (10th Ed.) 643. There being, therefore, a total failure of consideration arising out of mutual mistake, the plaintiff is not entitled to recover of the defendants. Reversed.

NOTE.

EQUITY-MISTAKE. The provisions of a written instrument will not be disturbed for the purpose of reforming it, unless it appear that it fails to set forth the true intent of the parties. James v. Cutler, (Wis,) 10 N. W. Rep. 147.

It has been held that relief will be granted where mistake may fairly be inferred from the nature of the transaction. Geib v. Reynolds, (Minn.) 28 N. W. Rep. 923. When a contract is made under the honest belief of both parties in the existence of something which does not exist, and which is a matter of importance to the transaction, equity will grant relief. Geib v. Reynolds, (Minn.) 28 N. W. Rep. 923; Fleetwood v. Brown, (Ind.) 9 N. E. Rep. 352. The non-existence of such fact causes a failure of consideration, which is a good defense to an action on the contract. Fleetwood v. Brown, (Ind.) 9 N. E. Rep. 354; Appeal of People's Sav. Bank, (Pa.) 3 Atl. Rep. 821.

Where a material mutual mistake is made by the parties, the defendant in an action on the contract may deny its existence, and thereby present an issue at law. Carey v. Gunnison, (Iowa,) 22 N. W. Rep. 934; S. C. 17 N. W. Rep. 881.

STROBLE v. CHICAGO, M. & ST. P. Ry. Co.

(Supreme Court of Iowa. December 23, 1886.)

1. MASTER And Servant-Negligence of Master-RAILROAD COMPANY-CONTRIBUTORY NEGLIGENCE OF SERVANT-ERRONEOUS INSTRUCTION.

In an action by an employe against a railroad company for damages resulting from the giving way of certain steps, leading up to a platform for loading coal, where the evidence shows that the steps were constantly used by him in his work, and they were not under the special care of any other employe except plaintiff and a fellow-workman, plaintiff will be charged with negligence for not seeing that the steps were in order; and an instruction to the jury that if they found plaintiff was employed to handle coal at the coal-house and platform, and nothing was said to him by his employer in regard to looking after the safety of the steps, then it was not a part of plaintiff's duty to see that the steps were kept in a reasonably safe condition, is error; and another instruction to the effect that plaintiff was bound to use ordinary care to avoid injury does not take the place of a proper instruction presenting the subject of plaintiff's duty to the jury.1

2. SAME-Negligence of Fellow-SERVANT-RAILROAD COMPANY-INSTRUCTION-CODE 1307.

IOWA,

In such a case, an instruction that the defendant was liable to plaintiff for the negligence of his co-employes is not applicable to the facts, as a railroad company is not so liable except under Code Iowa, 1307, which holds a railroad company liable for the negligence of a co-employe which "is in any manner connected with the use and operation of any railway," and the terms "use and operation" refer only to the movement of trains, of which there is no question in the case.2

Appeal from district court, Winneshiek county.

It is the duty of the employe to observe and report defects in the machinery used in the especial field of his employment, and the master is not chargeable for injuries resulting from the neglect of such duty. Chicago & A. R. Co. v. Bragonier, (Ill.) 7 N. E. Rep. 688; Wanamaker v. Burke, (Pa.) 2 Atl. Rep. 500.

'See Hawley v. Chicago, B. & Q. R. Co., (Iowa,) 29 N. W. Rep. 787, and note.

Action to recover damages resulting from personal injuries sustained by plaintiff while in the employment of defendant, on the ground that the injuries were caused by the negligence of defendant. There was a judgment upon a verdict for plaintiff. Defendant appeals.

Noble & Updegraff, for appellant. L. Bullis, for appellee.

BECK, J. 1. There was evidence tending to establish the following facts: Plaintiff, with another, was employed to elevate coal to a platform or other place convenient for delivering it to the tenders of engines. It was often necessary for plaintiff and his co-employe working with him to pass to and from the platform to the floor upon which the coal was first deposited. Stairs or steps constructed of planks were provided for the use of these men and others who had occasion to ascend to or descend from the platform. While plaintiff was descending these stairs at the time of the accident, they gave way, and he fell to the floor below, receiving the injuries which constitute the cause of this action. The accident resulted from a defect in the stairs, caused from a break in one of the planks used in their construction, which had been repaired. The defect could have been readily discovered by inspection, if, indeed, it was not apparent to any one using the stairs. There was no officer or employe of defendant charged with the special duty of inspecting these stairs, to the end that repairs could be made when required. Plaintiff and the man working with him were continuously employed, either in the room where the stairs were, or upon the platform above. There appears to have been no other employes of defendant continuously at work at the same place who were required to use these stairs in the discharge of their duty.

2. The district court gave the jury the following instruction, introducing the direction given by a question, the answer to which announces the rule of law recognized by the court below: "Was it the plaintiff's duty, under his contract of employment, to see that the stairs in question were kept in a reasonably safe condition?" "If you find from the evidence that such was the plaintiff's duty under his contract of employment, the case is at an end, and your verdict will be for the defendant. In deciding this question, you will notice particularly what the plaintiff was employed to do, as shown by the evidence,—what duties were assigned to him. If he was employed to handle coal at the coal-house, and nothing was said to him by his employer in regard to looking after the safety of the coal-house, or the stairs belonging to the same, then it was not a part of plaintiff's duty to see that the stairs were kept in a reasonably safe condition. You will not construe this instruction to mean that, if plaintiff was not employed to look after the safety of the stairs, he was therefore necessarily relieved from all obligation to notice the stairs. Another instruction upon this point will show you the extent of his duty in this regard."

The instruction referred to in the last paragraph of the foregoing is as follows: "(7) The next question to which I call your attention is this: Did the plaintiff use ordinary care, on his part, to avoid or prevent the injuries of which he complains? If he did not, he cannot recover anything. By ordinary care is here meant that reasonable degree of care which a person of ordinary prudence and caution would use for his own safety, in the situation of the plaintiff, and under circumstances such as surrounded him. The plaintiff was not at liberty, simply because he was a servant not charged with the duty of looking after the stairs, if such was the fact, to shut his eyes to the condition of the stairs that he was himself using. He was required to use ordinary care, in the sense just defined, in observing their condition while using them; and if plaintiff knew of defects in the stairs which would indicate to the ordinary mind that they were unsafe for use, and if he continued to use them in that condition, without reporting their condition to his employer, he was guilty of negligence, and cannot recover. So if, for the want of ordi

nary care and observation, he failed to discover the unsafe condition of the stairs, and for this reason continued to use them until he was injured, he was negligent, and cannot recover."

In the first of these instructions, (the fifth,) the district court held that the plaintiff, in the absence of express instructions or requirements, was charged with no duty to look after the safety of the stairs, or to see that they were kept in a reasonably safe condition. In our opinion, the instruction, so far as it announces this rule, is erroneous. A workman who has charge of or uses implements or appliances in the performance of his work is required by the law to exercise proper watchfulness in order to presume them in a condition which will render them fit for the purposes to which they are devoted; and, if they are exposed to wear or destruction from use, he must see that repairs are made; or, if he may properly restore them to a fit condition for use, he must do it himself. If such repairs may not be done by him, he must make report of the fact to his employer or other person having charge of the repairs of the thing. The interest of the employer demands the recognition of this rule; and, indeed, we think it is recognized by all employers and employes, and is discovered instinctively,-certainly by the exercise of the common sense shared by all men. And, surely, this duty rests with greater weight upon the employe when personal danger to himself or others follows from the use of appliances when out of repair. The instinct of self-preservation and of humanity not only reveals the duty, but prompts to its faithful discharge. This most beneficient rule of the law extends to all affairs of life wherein the relation of employer and employe exists, and enforces alike the protection of property and of life. The farmer who commits to the charge of his employe implements, machinery, and teams for the prosecution of his farm work, the mechanic, the housekeeper, all rely upon the rule for the safety of their property, and the preservation of human life. The facts of the case show that the stairs, the defects of which caused the injury to plaintiff, were an appliance frequently used by him in the prosecution of his work, and they were not under the special care of any employe except plaintiff and his fellow-workman. They were subject to the rule we have stated. These views are supported by the following cases: Lumley v. Caswell, 47 Iowa, 159; Baker v. Allegheny V. R. Co., 95 Pa. St. 211; S. C. 8 Amer. & Eng. R. Cas. 142; Ballou v. Chicago, M. & St. P. Ry. Co., 54 Wis. 257; S. C. 5 Amer. & Eng. R. Cas. 480, and 11 N. W. Rep. 559; Mad River & L. E. Ry. Co. v. Barber, 5 Ohio St. 541; Toledo, W. & W. Ry. Co. v. Eddy, 72 Ill. 138; Chicago ) & A. R. Co. v. Bragonier, 7 N. E. Rep. 688. Probably, in each of these cases, the question of the negligence of the employe was considered and passed upon by the court; but in each of the respective opinions the rule that he owes the duty to inspect the appliance with which he works, and see that it is not out of order, is recognized.

3. The district court, in the seventh instruction above quoted, presented the question of the case of plaintiff to the jury, and held that negligence in failing to discover the defect of the stairs would defeat recovery. But the requirement of care and obligations of duty are very different. An employe is required to exercise care for his own protection. At least the cases only treat of it in that light. Duty demands that he should observe and inspect the condition of the appliances used by him, not only for his own protection, but to promote the interest of his employer. This duty imposes an obligation for greater watchfulness than the requirement that he should exercise care. The instructions upon the subject of care do not take the place of proper directions presenting the subject of duty to the consideration of the jury.

4. The court, in an instruction, held that defendant is liable to the plaintiff for the negligence of his co-employes. Under Code, § 1307, railroad corporations are liable to an employe for the negligence of a co-employe when it is "in any manner connected with the use and operation of any railway, or on v.31N.w.no.1-5

or about which they shall be employed." It will be remembered that, in the absence of such a statutory provision, such liability does not exist, under prior decisions of this court. We think that the evidence fails to show that plaintiff and any co-employe whose duty could have required him to keep the stairs in repair had anything to do with the use and operation of the railroad, and that the injury resulting from any negligence connected with the stairs was not, therefore, connected with such use and operation. The coal-house and stairs were a part of the contrivances for placing fuel within easy reach of defendants' locomotives, and employes charged with any duty pertaining thereto had no connection with the use and operation of the railroad which is contemplated by the statute. It is true, there is a remote connection, as there is in the case of the coal miner or teamster who hauls the coal,-all being employed in work which in the end will supply the coal to the locomotive; but this is not the connection contemplated by the statute. This negligence, to render the corporation liable, must be of an employe, and affect a co-employe, who are in some manner performing work for the purpose of moving a train, as loading or unloading it, superintending, directing, or aiding its movement. The persons must be connected in some manner with the moving of trains. Work preparatory thereto, which may be done away from a train, is not connected with its movement.

use.

The statute, it will be observed, holds the corporation liable for the negligence of a co-employe which is "in any manner connected with the use and operation of any railway." What is the use and operation of a railway? It is constructed for the sole purpose of the movement of trains. That is its sole What is the operation of a railway? They can be operated in no other way than by the movements of trains. See, in support of these views, Foley v. Chicago, R. I. & P. Ry. Co., 64 Iowa, 644; S. C. 21 N. W. Rep. 124; Malone v. Burlington, C. R. & N. Ry. Co., 65 Iowa, 417; S. C. 21 N. W. Rep. 756. The instruction considered in this point of our opinion was not applicable to the facts of the case, and ought not to have been given.

Other questions discussed by counsel need not be considered. For the errors pointed out the judgment of the district court is reversed.

STATE v. ELSHAM.

(Supreme Court of Iowa. December 22, 1886.)

1. LARCENY AND RECEIVING STOLEN GOODS FROM A DWELLING INDICTMENT-TIME AND PLACE-CODE IOWA, 2 4300.

Under Code Iowa, 2 4300, the indictment must charge but one offense, but the offense may be charged in different forms to meet the testimony; and an indictment for larceny in two counts, the first count charging that the offense was committed in a dwelling-house in the night-time, and the second count charging that it was committed in a dwelling-house in the day-time, and containing also an averment that the matters and things charged in the second count are the same transactions alleged in the first count, does not charge two offenses.

2. SAME-CODE IOWA, ?? 3903, 3904.

Under Code Iowa, 22 3903, 3904, the time and place of the larceny affect only the degree of the punishment. The crime denounced in both sections is larceny. 3. CRIMINAL LAW-REASONABLE DOUBT-WEIGHT OF EVIDENCE.

In the trial of an indictment for larceny, the court instructed the jury "that no mere weight of evidence will warrant a conviction, unless it be so strong and satisfactory as to remove from your minds all reasonable doubt of the guilt of the accused. You are not to go beyond the evidence to hunt for doubts; nor should you entertain such doubts as are merely chimerical, or are based upon groundless conjecture. A doubt, to justify an acquittal, must be reasonable, and arise from a candid and impartial consideration of all the evidence in the case, and then it must be such a doubt as would cause a reasonable, prudent, and considerate man to hesitate and pause before acting in the grave and more important affairs of life. If, after a careful and impartial consideration of all the evidence, you can say and