could not reasonably be supposed to have been in the mind of the party, is the only way in which the presumption of fraud, arising from the fact that the conveyance is without a valuable consideration, can be repelled or overcome." In harmony with this opinion are Sexton v. Wheaton, 8 Wheat. 229; Kehr v. Smith, 20 Wall. 31; Jones v. Clifton, 101 U. S. 225, and many other authorities. The 5. His train being late, a freight conductor, after three unsuccessful attempts by his brakemen to couple on a car, tried it himself. He failed the first time, and a brakeman testified that he then had his foot in the frog, and he told him to take it out. On going in again, he caught his foot in a fireman, it appeared that the cars were moved each frog, and was killed. From the testimony of the time, making it doubtful whether there was a frog at the place of the first attempt. Held, that a verdict for plaintiff would not be set aside on the ground of contributory negligence, though all the frogs were open ones, and known to be so by deceased. Appeal from district court; H. P. HENDERSON, Judge. Marshall & Royle, for appellant. E. M. Allison, Jr., and Kimball & White, for respondent. ZANE, C. J. This action was instituted by the administratrix of the estate of the late William H. Seley, to recover damages to his widow and children in consequence of his death, occasioned, as alleged, by the negiigence of the appellant. The deceased was employed by the appellant as a conductor on its freight train, and while endeavoring to make a coupling at Wells, a station in Nevada, one of his feet became fastened in an open frog, and he was run over by a car and killed. On the trial below the defendants made no attempt to rebut the presumption of fraud. Indeed, it cannot be considered a remark unfortified by the record, that it was not possible for them, or either of them, to repel the presumption. Their entire testimony on the subject of their business was confused, unsatisfactory, and characterized by a strange lack of knowledge of their own affairs. conclusion is irresistible that they are both shown to have conveyed property to their relatives which their creditors had a right to look to as security for their debt. No satisfactory explanation of this is given, or attempted to be given. Such conduct the law denounces as fraud, and it furnishes ground for attachment. It is unnecessary to discuss other questions which are relied upon by plaintiff in error, as the judgment of the lower court must be reversed on its ruling as to these voluntary conveyances. The chief justice, having been of counsel in the court below, does not sit in the hearing or participate in the decision of the case. Justice CORN does not commit himself as to the sufficiency of the affidavit of plaintiff, but concurs in the residue of the opinion. Therefore the judgment of the district court discharging the attachment is reversed, and the cause remanded, with directions to vacate the order of discharge, and to enter an order sustaining the ground of attachment, as herein indicat-clusive attention is necessarily directed to the ed, and for such further proceedings as may be proper, either in the subsequent prosecution or administration of the cause. 1. It is negligence to use, at a station where there are several tracks, and where couplings are required to be made promptly, open instead of blocked frogs, whereby the feet of employes making couplings are liable to be caught. 2. Risks of employment do not include risks arising from neglect to use safety blocks in frogs, on the employer's railroad track; that being a reasonable means to prevent injury to employes making couplings. 3. The duties of a conductor of a freight train being somewhat general, one who has been conductor seven years, and brakeman for several years previously, is authorized, when his train is late, and the brakemen have made unsuccessful attempts to couple a car, to try to couple it himself. 4. It was not necessary that a freight conductor, killed by catching his foot in an open frog while making a coupling, should have given the company notice of the danger from open frogs, nor did he assume the risk of danger therefrom by continuing in his employment after knowing that a safety block would remove its perils. It appears from the evidence that blocked or cast-iron frogs are used in many tracks. In these the point of the space between the rails is filled with wood or other material, so that the foot will not be held. This block is a simple device, practicable and inexpensive, and prevents the danger. It is called a "safety block." There were six or seven tracks at Wells, and three frogs, and at such a place couplings are required to be made promptly, at all times of the day and night, and the ex coupling. The individual, at such times, cannot act with deliberation, and his eye, as well as his attention, is necessarily drawn to the coupling. Open frogs, in which the foot is liable to be caught, and from which a release is difficult without more time than a man has when making a coupling, necessarily add to his hazards. The safety block has been in use for years past. It is a simple device for the protection of employés engaged in a very hazardous employment. It is no longer an experiment. It is said that the employer is not bound to employ the latest improvements in machinery; that he is only required to see that the instrumentalities he does use are safe and suitable. An old machine or device may have been considered safe and suitable, as compared with old machines or devices, but, as compared with newer and more perfect ones, it may not be considered safe or suitable for the human mind is ever engaged with new inventions, and human ingenuity, with wider experience, additional skill, and with ceaseless energy, removes old impediments and dangers in perfecting the While old, as well as by inventing the new. a railway company is not required to experiment with novel inventions alleged to be safer and more suitable, yet, when experience has demonstrated that their use does remove hazards, and preserves the lives of their employes engaged in dangerous employments, prudence, as well as humanity, demands that such new agencies shall be used. Such companies have no right to continue to employ such dangerous and destructive agencies as wound and kill their employes, when safer and better ones are in use. We are of the opinion that the appellant was guilty of negligence in using the open frog. | pellant's employ. No notice was necessary, because the deceased had no right to assume that his employer was ignorant of the open frogs in its track. He must have known that the company had failed to employ the safety block for 15 or 20 years. He had been brakeman and conductor on its road for the greater part of that time. Nor do we think that the deceased assumed the risk from the open frog by entering the defendant's employ with it in use, or by continuing in such employ after he knew the use of the safety block would remove its perils. Imminent danger from a defect in a machine or other instrumentalities, which could be remedied or removed by reasonable and practicable means, is not like those dangers that are less threatening, and which a reasonable man might think he could avoid injury from by a high degree of care. Ordinarily, the duties of a conductor do not expose him to the perils from open frogs. In the discharge of the duties of his employment he does not usually feel called upon to assist in switching or coupling cars, and, if his attention should be directed to the dangers from the open frog, he might reasonably conclude that he would not very often, if ever, be exposed to its hazards in making a coupling over it. In the case of Patterson v. Railroad Co., 76 Pa. St. 389, the court said: "If the instrumentality by which he is required to perform his serv It is said that the defendant did not insure the deceased against injury from the dangerous agencies which it necessarily employed, and that he assumed the ordinary risks incident to his employment. While this is so, the deceased did not assume the risks from defendant's negligence. Ordinary risks are such as remain after the employer has used all reasonable means to prevent them. The ordinary risks of an employment differ from the risks from the employer's negligence. The injuries resulting to the employe from the ordinary risks of his employment he must bear, but those that come to him alone from the employer's negligence the latter must bear. In not using the safety block, the appellant, neglected a reasonable means to prevent injury to its employes in making couplings, and if the deceased, without his fault, lost his life from that neglect, the defendant must pay his wife and children their loss; the de-ice is so obviously and immediately dangerfendant must bear it. It is claimed that the deceased, as conductor, was not authorized to couple cars, and that, therefore, the defendant is not liable. It appears from the evidence that the conductor of a freight train is expected to use all reasonable diligence to get his train through on time, and that in so doing he assists in switching and making couplings, if he deems it necessary. His duties are somewhat general. It appears from the evidence that Seley's train had come into the station late, and that one of the brakemen had made two attempts to couple a car on, and had failed, and that the other brakeman had failed once; that five or ten minutes had been lost in these attempts; and that the deceased, who had been conductor about seven years, and brakeman a number of years before that, then said he believed he could make it, and then made the effort. Under these circumstances, as a diligent and faithful freight conductor, we think he was authorized by the terms of his employment to make the effort. To have stood by under such circumstances, without bringing to bear his experience and skill, might have been regarded as an indication of indifference, and a lack of zeal in his employer's business. It is also said that the deceased ought to have informed his employer of the open fro ́s in use in its track, and that they were da. gerous, and to have exacted a promise to repair in a reasonable time; and without such a promise, or in case of a failure to comply with it if made, he should have left the ap ous that a man of common prudence would refuse to use it, the master cannot be held liable for the resulting damage. ** * But where the servant, in obedience to the requirement of the master, incurs the risk of machinery which, though dangerous, is not so much so as to threaten immediate injury, or where it is reasonably probable it may be safely used by extraordinary caution or skill, the rule is different. In such case the master is liable for a resulting accident." It is also claimed that the negligence of the deceased caused or contributed to his death, and that, therefore, the defendant is not liable. One of the brakemen testified that they came into Wells behind time, and that he made two attempts to couple the car onto the train, and the other brakeman made one; that the deceased then said that he believed he could make it, and went in, and failed; that the link was too short; that he said to the deceased that his foot was in the frog; the deceased then took it out, and stepped out beside the track; that witness then got a longer link, and the deceased again went in to make the coupling, and the toe of his shoe caught in a frog, and the deceased was run over and killed. Witness further said there were about five minutes between the time the deceased came out and the time he went in again and was killed. The fireman who was managing the engine at the time testified that, when the train backed down to couple onto the cars, one of the brakeman tried to make the coupling, but failed; then the other brakeman stepped in, and he failed, but He still signaled to back up, and went in a second time, and as he came out the conductor come up, and the signal was given again to back up, and he stepped in between the cars, and then stepped out, and walked down in the same direction the train was moving, giving signals all the time to come back. walked 15 feet probably, and stepped in again, and the witness saw no more of him till after he was run over. It would seem from the brakeman's testimony that the deceased made his second attempt at the same place he made the first, and that the toe of his shoe caught in the same frog that the brakeman told him to take his foot out of. He says about five minutes intervened between the two attempts, and it appears that the cars to be coupled were moved at each attempt, and the inference from the fireman's testimony is that the place of the second attempt of the deceased was about 15 feet from the place of the first. If so, the statement of the brakeman that the deceased placed his foot in a frog when making his first attempt may not be correct. The evidence shows but three frogs,-two at one place, and one at another, and their distance apart does not correspond with the distance between the places where the two attempts were made. This evidence presented a conflict for the jurors to consider, and reconcile if they could, and, in case they could not, to determine whom they would believe. The deceased had been conductor seven years, and before that he was a brakeman. He had experience, and probably possessed skill, as a car-coupler, and it was his duty to get his train through, and he was be- | hind time, and was still delayed with the coupling. Under these circumstances, he made his last effort. At the time, his attention must have been directed to the link he was endeavoring to manipulate, and to the movement of the cars, not to where he was stepping. In moving his feet, under these circumstances, he did not raise one of them high enough, and the toe of the shoe caught in the frog. The jury must have found that he used due care, and that his negligence did not contribute to the fatal injury. The jury were not required to test the conduct of the deceased by some imaginary standard requiring unusual care. He was only required to exercise ordinary care, such as might be reasonably expected of experienced brakemen under similar circumstances. The court below overruled the defendant's motion for a new trial, and entered judgment on the verdict. It was within the province of the jury to reconcile the statements of the witnesses, so far as they could on any reasonable hypothesis, and to judge of their credibility, to draw all reasonable inferences from the facts in evidence, and to determine what the conduct of the deceased was, and the circumstances surrounding him, and how his mind was occupied at the time of the fatal injury. When there is any evidence in support of a v.23r.no.12-48 verdict, it will not be set aside because it is against the weight of the evidence, unless it is so clearly wrong as to authorize the court to believe it was the result of a mistake, or that the jurors acted from passion or prejudice, or some other improper motive. Kane v. Railway Co., 128 U.S. 91, 9 Sup. Ct. Rep. 16, was an action to recover damages in consequence of an injury to a brakeman from a missing step which he knew was gone, but failed to think of at the time of the injury. The court said, in the conclusion of its opinion: "We are of opinion that the court erred in not submitting to the jury to determine whether the plaintiff in forgetting or not recalling, at the precise moment, the fact that the car from which he attempted to let himself down was the one from which a step was missing, was in the exercise of the degree of care and caution which was incumbent upon a man of ordinary prudence in the same calling, and under the circumstances in which he was placed. If he was, then he was not guilty of contributory negligence that would defeat his right of recovery." The following cases we regard as analogous in principle to the case in hand, and support this decision. Snow v. Railroad Co., 8 Allen, 441; Plank v. Railroad Co., 60 N. Y. 607; Devlin v. Railway Co., 87 Mo. 545; Railway Co. v. Bayfield, 37 Mich. 205; Fernandes v. Railway Co., 52 Cal. 45. The case of Snow v. Railroad Co., supra, was instituted to recover damages for an injury in consequence of stepping into a hole in a plank between the rails of the track. This language appears in the opinion: "Nor do we think it was any the less a question of fact to be decided by the jury because it appeared that the plaintiff had previous knowledge of the defect in the road which caused the accident. This certainly was a circumstance to be taken into consideration, but by no means a decisive one. If the service to be performed by the plaintiff was of a character to require that his exclusive attention should be fixed upon it, and that he should act with rapidity and promptness, it could hardly be expected that he should always bear in mind the existence of the defect, or be prepared at all times to avoid it." The danger causing the injury complained of in the cases cited was the only one shown of the same character, while in this case the frogs in the defendant's track were all open and dangerous. And this is urged as a material distinction. But we incline to the opinion that a careful man, informed of a number of open frogs, would be as likely to overlook one happening in his way, when making a coupling, as he would with knowledge of but the one causing the injury. Whether the failure to recall the danger at the time of injury in either case could be consistent with common prudence would be a question for the jury to determine. The judgment of the district court is affirmed. ANDERSON and BLACKBURN, JJ., concur. (6 Utah, 327) MAXFIELD v. WEST et al. A parol sale of land without delivery of possession is void, though part of the price was paid; and it is immaterial that the contract was a renewal of one under which possession had been delivered to the purchaser, the former contract having been mutually abandoned. Appeal from district court, first district; H. P. HENDERSON, Judge. Action by John W. Maxfield against Joseph A. West, Sarah Kershaw, A. J. Kershaw, A. C. McKinney, R. C. Landy, and Fred. J. Kiesel to enforce a contract for the sale of land. Decree was rendered for defendants, and plaintiff appeals. as to fit the description in the mortgage which had not been receipted on the record, and paid Grant $400, which was credited on the same. In the mean time, before he had any notice of the sale to appellant, West bargained the property to the respondent Fred J. Kiesel, but both he and Kiesel had notice of the sale to the appellant before this trade was consummated; but West had gone from home, and had left a deed duly executed by himself and wife, to be delivered to Kiesel on payment of the purchase money. When West learned the facts, he refused to carry out either trade, and did not deliver the deed to Kiesel, and take the purchase money, although tendered to him. Appellant then commenced this suit against West alone, alleging he had Sutherland & Judd, for appellant. A. R. paid for the property, and was entitled to a Heywood, for respondents. BLACKBURN, J. Heber J. Grant, for himself et al., loaned to Straub $2,000, and took a trust-deed to secure the same. The money was not paid, and the property in controversy was sold to pay the same. The respondent West was a part owner of the money loaned. At the sale the property was bid off for $2,000 by West for the appellant, in pursuance of a previous arrangement between appellant and Grant, which was that appellant was to take the property at that sum, and pay for the same in installments. West took the deed in his own name, and requested Straub in writing to deliver the possession of the property to appellant, as he had bid it off for him. Appellant took possession of the property, and left it with West to rent for him. The property was in the city of Ogden. West lived in Ogden, and appellant and Grant lived in Salt Lake City. Afterwards appellant paid to Grant $600 on the property, and gave a note and mortgage to secure the balance. West leased the property for six months, the title still remaining in him, and executed a deed, subject to the lease, and tendered the same to appellant, and appellant refused to accept it with the clause subject to the lease, and thereupon he complained to Grant, and he and Grant mutually agreed, that the trade should be declared off, and Grant paid him back his $600, with interest, and the note given was canceled. It seems the property did not sell for enough to pay off the whole debt to Grant and the parties interested, and West testifies appellant agreed, in order to make up some of the loss they had suffered, that he (West) might have the rent on the property for six months. This appellant denied, and on account of this disagreement the trade was declared off. The sale was in May, 1887. Afterwards, in August, Grant and West having failed to sell the property, West informed Grant that he was willing to allow appellant to have the six months rent if he would now take property on the original agreement, and Grant and appellant met in Salt Lake City, and renewed the old agreement, and appellant gave his note to Grant for $2,000, dated of the same date as the one that was canceled, so deed therefor. A few minutes afterwards Kiesel commenced a suit claiming substantially the same thing. Kiesel's suit went to judgment, and a decree was made giving him the property. It is not necessary to go into the details of the suit of Kiesel, as we think that suit in no way determines the rights of the parties to this suit, as appellant was not a party to it. When his suit was commenced appellant had paid on the purchase money of the property to Grant something over $1,000. As to whether the agreement about the rent for six months, as stated by West, was true or not, we will not decide, for it was a controverted fact, and about it there was conflicting evidence, and the court below found the fact to be with West. There was evidence enough to support that finding, if not a preponderence in its favor, and the rule is the same as in reference to the finding of a jury that the appellate court will not disturb it unless it is clearly wrong. But we think that fact wholly immaterial, for the parties disagreed about it, and mutually agreed the trade was off, and the appellant took back the money that was paid and his note, and that ended the whole matter up to that time, and neither party could claim anything on account of the canceled agreement. We have nothing to do with the question whether the decree against West in favor of Kiesel was correct or not; for, if the appellant could enforce his claim against West, he could also against Kiesel, as Kiesel had notice of appellant's rights before he paid for the property, or tendered payment, and was made a party to this suit, by an amended complaint. The question then is, can the appellant enforce his agreement with Grant of the date of August 19th, against the respondent West and his grantees? We think not. The property had been left on West's hands as the owner, and the appellant had no more claim upon it than a stranger, assuming that Grant had had authority to sell it to the appellant, and that he did bargain it to him, the new contract would require the same solemnity and the same requisites to make it valid under the statute of frauds as if made with a stranger under the statute. 2 Comp. Laws Utah, 153, 154. A person acquires no equity in law that can be enforced in a court of equity by a parol purchase, with a part payment of the purchase money. This is a parol transfer of land, with a part payment of the purchase money, no possession passing under the contract; for, if the appellant had possession under the first contract, he had completely abandoned it by a cancellation of that contract. The fact that a part of the purchase money had been paid was not of itself sufficient in equity to take the parol contract out of the statute. 3 Pom. Eq. Jur. § 1409. Much is said in the briefs of counsel about the findings of fact and conclusions of law made by the court below. It makes no difference how erroneous these may be, if the decree is right. The decree is affirmed. GARNER v. A. FISHER BREWING Co. Where there is evidence that a saloon was conducted by plaintiff's employer, as manager, in the name of defendant, with the latter's knowledge and without objection, a verdict for plaintiff for his wages as bar-tender will not be set aside, though the evidence as to the representations of defendant to him is conflicting. E. M. Allison, Jr., for appellant. James N. Kimball, for respondent. ZANE, C. J. This is an appeal from a judgment of the district court of the first judicial district against the A. Fisher Brewing Company, for the sum of $190.20. It appears from the evidence in the record that about April 1, 1885, one J. W. Browning negotiated the purchase of a saloon owned by Livingston & Co., in Ogden City, Utah, for the sum of $750; that the appellant advanced $300 of that amount, and, to secure the same, took the bill of sale from that company to itself; that this bill of sale was to be transferred to Browning when he should pay the sum secured; that immediately thereafter Browning took actual possession, and placed a sign on the saloon as follows: "Depot of the A. Fisher Brewing Co., J. W. Browning, Manager,”—and under that name continued the business until June 23, 1886, when A. Fisher, on behalf of the appellant, took possession of the saloon and charge of the business, and dismissed Browning, and put one Whetstone in as manager; that, immediately after Browning commenced business, he employed the plaintiff as a bar-tender at $50 per month; that the latter continued as such bar-tender until June 23, 1886; that during the time of his employment the respondent's wages were paid from time to time out of the proceeds of the business, but that there was a balance due when Browning was turned out, for which the judgment appealed from was rendered. It also appears that Browning, during the time he was nominal manager for ap pellant, had letter-heads printed as follows, "Depot of A. Fisher Brewing Company, Ogden," and used them in his correspondence with the appellant and others; that the brewery was at Salt Lake, where Fisher resided, but that he visited the saloon in Ogden two or three times per month, and saw the sign at such times, and that he knew that the United States and city licenses were taken out in the name of A. Fisher Brewing Company. The respondent testified that, "The first time Fisher came to the saloon after Browning became manager, he said: Well, Fred, I see you are working for me, selling Fisher beer.' I said: Yes.' He then said: 'If you do as well for me as you did for old George Bruesch, I will be satisfied."" Fisher testified that he said, "Hello, Fred! now you are selling Fisher beer," and that he did not say, "I see you are at work for me, and I hope you will do as well for me as you did for Bruesch," or that in substance. At the time Whetstone was made manager, respondent testified that he asked Fisher about the balance due him, and that Fisher then said: "I will see you paid. I want you to keep right on as you have done. I will raise your wages to $2 per day." J. W. Browning testified that the business was conducted in the name of the A. Fisher Brewing Company. The respondent also testified that he did not know on what terms Browning was conducting the business until after he was put out. There is evidence supporting the view that Browning conducted the business, with the knowledge of the appellant and without objection, so as to indicate to the world that he was simply the manager and agent of the appellant, and that the appellant was the actual proprietor of the saloon, and responsible for the indebtedness incurred in carrying it on, and also tending to prove that respondent was led to believe that such was the fact. If a person, in conducting a business, represents that he is the agent of another, with the other's knowledge and acquiescence, the latter will be liable for indebtedness incurred in such business to third parties dealing with the agent in good faith upon such representations. Such representations may be made by signs on the business house, or by advertisements or correspondence, or other representations, verbal or written. Nevertheless, the person giving the credit must exercise reasonable diligence to prevent imposition. As to what the representations of Fisher were to the respondent, the evidence is conflicting, and it was the province of the jury to draw inferences from the evidentiary facts. The jury found the issue for the plaintiff, and the court overruled the defendant's motion for a new trial. The court will not set aside the verdict, when the evidence is conflicting, unless it is clearly against the weight of the evidence. The court must believe the verdict to be palpably wrong. We have examined the charge of the court, and find no substantial error in it. We find no error in this record sufficient to authorize |