text:
    Hart’s Assigned Estate.

      Trusts and trustees—Assignment for creditors—Act of April 17, 1843, P. L. 273.
    Where a testamentary trustee who is also a beneficiary, executes an absolute conveyance of his interest in the trust estate to a third person, and the grantee immediately reconveys to the trustee the same interest in trust, to manage and sell the same for the benefit of the legatees, any balance to be for the benefit of the trustee, the transaction is not within the intent of the Act of April 17, 1843, P. L. 273, relating to preferential assignments for creditors.
    Argued Jan. 16, 1905.
    Appeal, No. 184, Jan. T., 1904, by Philadelphia Trust Safe Deposit and Insurance Company, from decree of C. P. No. 2, Phila. Co., Sept. T., 1903, No. 4147, dismissing petition for removal of trustee in Assigned Estate of Charles Henry Hart.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Petition for removal of trustee.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in dismissing the petition.

      It. L, AsMurst, for appellant.
    While a debtor may, by a direct assignment or conveyance, prefer a particular creditor by giving him certain assets, as he may also prefer him by giving him a judgment, yet, if he undertakes to accomplish the same purpose by means of an assignment to a trustee for him, his purpose will be frustrated and the assignment inure for the benefit of all creditors impartially : Watson v. Bagaley, 12 Pa. 164; Lucas v. Sunbury, etc., R. R. Co., 32 Pa. 458; Bittenbender v. Sunbury, etc., R. R. Co., 40 Pa. 269 ; Miners’ Nat. Bank’s App., 57 Pa. 193 ; Kern v. Powell, 98 Pa. 253; Fox v. Curtis, 176 Pa. 52; Thomas v. Lowber, 14 Pa. 438; Driesbach v. Becker, 34 Pa. 152; Sutton v. Ashurst, 4 Phila. 301; Hodenphul v. Hines, 160 Pa. 466; Mann v. Wakefield, 179 Pa. 398; Spackman v. Ott, 65 Pa. 131; Dickson’s Est., 166 Pa. 134; Corn Exchange Nat. Bank v. Phila. Trust, etc., Co., 11 Phila. 510; Baker’s App., 21 Pa. 76; Union Nat. Bank v. Fagan, 34 W. N. C. 20.

      Frank P. Prichard, with him Gustavus Remalc, Jr.-, for appellee.
    The transaction was not within the intent of the act of 1843: Guy v. McIlree, 26 Pa. 92; Johnson’s App., 103 Pa. 373 ; Schaefer’s Est., 194 Pa. 420.
    If it be a trust to pay a debt, it is to pay a debt due to the assignee himself: Handy’s Est., 167 Pa. 552; Penn. Plate Glass Co. v. Jones, 189 Pa. 290.
    The transaction was in its nature a pledge of the share of Charles Henry Hart, to be used only in case upon distribution of the estate the.other assets should prove insufficient to pay the shares of the other distributees: Manufacturers, etc., Bank v. Bank of Penna., 7 W. & S. 335 ; Griffin v. Rogers, 38 Pa. 382; Johnson’s App., 103 Pa. 373; Handy’s Est., 167 Pa. 552.
    As the effect of the convej'-ance by Charles Henry Hart to Reding and from Reding back to Hart was to give to the other distributees of Samuel Hart’s estate only the preference which the law would give them, the transaction did not amount to an assignment with intent to prefer within the meaning of the statute: Baker’s App., 21 Pa. 76.
    March 20, 1905:
   Opinion by

Mr. Justice Dean,

In 1897 Charles Henry Hart was insolvent.

This trust company, the appellant, had brought suit against him for borrowed money, and had obtained judgment March 11, 1898, for $72,858.19. While the suit of the trust company was pending, Hart, the insolvent, made two deeds of assignment to Walter C. Reding. By one he conveyed to Reding his undivided interest which he held under his father’s will- to the family residence on Chestnut street, Philadelphia, also his interest in the personal estate of his father; by the other he conveyed to Reding his interest in certain real estate in Montgomery county which had come to him under the will of his father. Hart was executor and trustee under his father’s will and as such was answerable to his sisters and legatees under the will for their respective legacies. On the same date as the deeds to him, Reding reconveyed the property described in the deeds to Hart in trust to manage and sell the same for the benefit of the legatees, any balance remaining to be for the benefit of Hart. All four deeds were duly recorded. Hart made additional assignments of his interest in his fathers estate as collateral security to other creditors. After the date of these deeds the orphans’ court by citation compelled Hart to file his accounts as executor and trustee under his father’s will in that court and distributed the balance among the legatees.

• A number of issues were raised by legatees and creditors under exceptions to the final decrees of that court, and several appeals taken to this court, which were disposed of in Hart’s Estate, in seven different opinions, 203 Pa. pp. 480-508. Practically the same question raised by appellant in this appeal was made by it in No. 5 of the appeals from the orphans’ court in the Hart Estate, see 203 Pa. 503. We there treated the deeds to Reding as without effect on the equitable rights of the cestui que trustent under the will of their father to the estate in the hands of the trustee at the date of the deeds to Reding, but in the concluding paragraph of the opinion we said this : “ What effect the deed would have on any surplus remaining after the trustee’s full duty to his cestui que trustent, is done, it is not necessary now to determine. We hold that nothing the trustee did or failed to do, loosened the grasp of equity on the entire estate until after final decree.”

It seems now, that after payment of all the legatees under the will, there is still, probably, an interest or surplus belonging to the trustee under the individual bequests and devises to him by his father. This surplus appellant seeks to have appropriated for the benefit of creditors under the Reding deed, averring that that assignment, under the Act of April 17, 1843, P. L. 273, operates to the benefit of all the creditors as concerns this surplus. Charles Henry Hart, the trustee under the will, having been discharged by the orphans’ court, appellant moved in the court below for the appointment of a new trustee under the Reding deed to take charge of the surplus property of the insolvent Charles Henry Hart and dispose of it for the benefit of his creditors. This the court below refused to do and the trust company brings this appeal.

The act says: “All assignments of property in trust, which. shall be made hereafter by debtors to trustees, on account of inability at the time of the assignments to pay their debts, to prefer one or more creditors (except for the payment of the wages of labor) shall be held and construed to inure to the benefit of all the creditors in proportion to their respective demands.”

Giving this act its obvious and reasonable construction in view of the expressed intention of the deed to Reding and considering the duty and obligation of the trustee under the injunctions of his father’s will, we do not think the deed constituted an assignment within the meaning of the act. True, the conveyance and reconveyance, when taken together in substance, made an assignment by a debtor to himself in trust for those to whom he was answerable for a debt, but it was not a debt of his creation; it was an obligation imposed upon him by his father’s will, and which by the acceptance of the trusteeship, as long as the assets which came to him under the will remained in his hands, he could not get clear of. The deed expressed the intention, that it was for the benefit of his sisters, naming them, to the extent of their shares in their father’s estate. We held that under the law this was their right which the deed in no way affected. It was not a benefit to one creditor which operated as a preference and therefore inured to the benefit of all creditors ; it only expressed the bounden duty of the trustee under the will and the settled law. It was of no real value to anybody, so far as concerns the intention either expressed or implied. There is no case on its facts exactly similar to the one before us, but several are cited in which the same principle is applicable. In Baker’s Appeal, 21 Pa. 76, a partnership consisted of five brothers; two of them sold out to the other three, the remaining three agreeing to pay the partnership debts; afterwards one of the remaining three sold out to the other two; then, these two made an assignment for the benefit of the creditors of the partnership. This was a preference of the partnership creditors over the general creditors; it was sought to have the assignment declared one that inured to the benefit of all the creditors under the act of 1843. This court held, that such an assignment was not within the meaning of the act, saying:

“ As the whole right of property existed in these two brothers at the time of the assignment, their right to appropriate it to the payment of the partnership debts of the firm to whom it belonged is clear and unquestionable. The act of 1843 does not stand in the way of such an assignment. That act was not intended to deprive partners of their legal and equitable right to appropriate partnership assets to the payment without preference of all the debts of the firm to whom the property belonged at the time of the assignment.”

The principle applied in that case is exactly the one invoked by appellees here: partnership assets belong to the partnership creditors; an assignment for the purpose of paying such creditors is not such preference under the act of 1843 as turns the deed into an assignment for the benefit of all the creditors, because the preference is one which the law establishes even in the absence of the assignment. The same principle is applied in Handy’s Estate, 167 Pa. 552 ; Johnson’s Appeal, 103 Pa. 373 ; Griffin v. Rogers, 38 Pa. 382, and other cases all of them, probably, within the literal wording of the act of 1843, but not within its real intent. Here the law established the preference, not the Reding deed, and the general creditors can claim no benefit from that deed. It withdrew no part of the individual share of the defaulting trustee from their reach; as concerns them, it is as much his as before the deed and any surplus is just as accessible to the demands as before the deed. But they cannot reach it under the act of 1843 through the medium of a deed which did not embrace for their benefit the property assigned.

The assignments of error are overruled and the decree of the court below is affirmed.


source: Caselaw Access Project

author: Mb Justice Fell,

license: Public Domain

text:
    Holland, Appellant, v. Hallahan.

      Equity—Jurisdiction—Accounting—Discovery—Principal and agent.

    Equity will take jurisdiction on the ground of account notwithstanding that the accounting involved is on one side only if it is so complicated as seriously to embarrass the remedy at law and in cases where discovery is needed and is sought. But it will not take jurisdiction where there is no relation of trust and the accounting is not complicated and is merely a basis for ascertaining damages.
    In a bill seeking an account and discovery, the discovery is prima facie merely incidental to the account, and if a right to an account is not disclosed the bill will be held bad on demurrer.
    The plaintiff in a bill in equity averred that he had expert knowledge of the shoe business, and a control of trade acquired by his experience as a traveling salesman; that he was employed by the defendants as a general sales agent, and was discharged without sufficient reason before the end of the period of his employment; that he was to receive as compensation a fixed commission on sales made by the defendants, with some exceptions, whether made by him or not; that the defendants, in violation of their agreement, failed to render correct monthly statements of sales, and to pay him the commission due; and that they improperly claimed to recoup against the balance due him certain commission that had been allowed him on accepted orders. The bill prayed for an account and discovery. Held, that the bill was properly dismissed on demurrer on the ground that the plaintiff had an adequate remedy at law.
    Argued Jan. 16, 1905.
    Appeal, No. 239, Jan. T., 1904, by plaintiff, from decree of C. P. No. 4, Phila. Co., Sept. T., 1903, No. 813, dismissing bill in equity in case of Tbomas Holland v. Peter T., Walter J. and Charles E. Hallahan, trading as Hallahan & Sons.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Bill in equity by a salesman against his employer for an account and discovery.
    The averments of the bill are set forth in the opinion of the Supreme Court.

      Error assigned was decree dismissing the- bill.

      0. Wilson Roberts, with him George Henderson, for appellant.
    The bill may be sustained as a bill for discovery and for an accounting: Tully v. Felton, 177 Pa. 344; Shepard v. Brown, 4 Giffard’s Rep. 208; Warner v. McMullin, 131 Pa. 370 ; Oil Well Packer Co.’s Appeal, 128 Pa. 421; Johnston v. Price, 172 Pa. 427; Haught v. Irwin, 166 Pa. 548; Bank of U. S. v. Biddle, 2 Parson’s Eq. Cases, 31; Bentley v. Harris, 10 R. I. 434; Hallett v. Cumston, 110 Mass. 32; Ferry v. Henry, 21 Mass. 75; Garr v. Redman, 6 Cal. 574; Buel v. Selz, 5 Ill. Appellate Ct. 116 ; Harrington v. Churchward, 6 Jurist (N. S.), 576; Eureka Co. v. Bailey Co., 78 U. S. 488 ; Pope Mfg. Co. v. Owsley, 27 Fed. Repr. 100.
    The remedy at law is wholly inadequate: Act of May 25, 1887, P. L. 271; Act of March 21, 1806, 4 Sm. L. 326; Winkleblake v. Van Dyke, 161 Pa. 5 ; Edison General Elec. Co. v. Thackara Mfg. Co., 167 Pa. 530; Byrne v. Hayden, 124 Pa. 170 ; Fritz v. Hathaway, 135 Pa. 274; Clements v. Dempsey, 7 Pa. Superior Ct. 52; Baer v. Kuhl, 8 Pa. Dist. Rep. 389; Raub v. Van Horn, 133 Pa. 573; Thomas v. Smith, 1 Troubat & Haly’s Prac., sec. 610 ; Reed v. Stevenson, 12 Phila. 536.
    Equity may assume jurisdiction on the ground that the remedy at law is inconvenient and to avoid a multiplicity of suits : Warner v. McMullin, 131 Pa. 370 ; Johnston v. Price, 172 Pa. 427; Bald Eagle Valley R. R. Co. v. R. R. Co., 171 Pa. 284; Boyd v. American Carbon Black Co., 182 Pa. 206.

      Morton Z. Paul, with him Crawford f Loughlin, for appellee.
    Equity has no jurisdiction in the present case: Smith v. Bodine, 74 N. Y. 30 ; Badger v. McNamara, 123 Mass. 117 ; Padwick v. Stanley, 9 Hare, 627; Smith v. Leveaux, 2 DeGex. Jones & Smith, 1; Dinwiddie v. Bailey, 6 Vesey, 136; People’s Nat. Bank v. Kern, 193 Pa. 59; Everson v. Life Assurance Co., 68 Fed. Repr. 258; Gilder v. Merwin, 6 Wharton, 522; Campbell v. Knowles, 13 Phila. 163 ; Murphy v. Morris, 2 Miles, 60 ; Arrott v. Pratt, 2 Wharton, 566; Boyce v. Super, 35 W. N. C. 339; Simmons v. Hoffman, Corkran & Co., 6 Pa. Dist. Rep. 218; Pitcairn v. Pitcairn, 201 Pa. 368; Dohnert’s App., 64 Pa. 311; Bridesburg Mfg. Co.’s App., 106 Pa. 275 ; London Guarantee, etc., Co. v. Doyle, 130 Fed. Repr. 719.
    March 20, 1905:
   Opinion by

Mb Justice Fell,

Equity will take jurisdiction on the ground of account, notwithstanding that the accounting involved is on one side only, if it is so complicated as seriously to embarrass the remedy at law and in cases where discovery is needed and is sought. But it will not take jurisdiction where there is ho relation of trust and the accounting is not complicated and is merely a basis for ascertaining damages: Gloninger v. Hazard, 42 Pa. 389 ; Grubb’s Appeal, 90 Pa. 228 ; Pittsburg & Connellsville R. R. Co.’s Appeal, 99 Pa. 177; Graham v. Cummings, 208 Pa. 516. Jurisdiction has been taken in cases where the accounts were not mutual, but ascertainment of the amount due involved the examination of the whole business of the defendant, as where an agent was entitled to a share of the net profits of a business as compensation for service, or the owner of a patent was entitled to a share of the profits derived from the manufacture and sale of a patented article by his licensee. But our cases have not gone further than to hold that a bill by an agent or employee, for commissions or salary will be sustained where the amount due is uncertain and to be determined by ascertaining the profits of a business, or the accounts are so complicated as to make it impossible to obtain an intelligent result by a jury trial. If we went further than this, we should have difficulty in finding a logical stopping place.

The substance of the plaintiff’s demand as stated in his bill is that, having expert knowledge of the shoe business and a control of trade acquired by his experience as a traveling salesman, he was employed by the defendants as a general sales agent and that he was discharged without sufficient reason before the end of the period of his employment; that he was to receive as compensation a fixed commission on sales made by the defendants, with some exceptions, whether made through him or not; that the defendants, in violation of their agreement, failed to render correct monthly statements of sales and to pay him the commission due; and that they improperly claim to recoup against the balance due him certain commissions that had been allowed him on accepted orders. The bill was for an account and discovery. It was dismissed on demurrer on the ground that the plaintiff had an adequate remedy at law.

It is conceded that as there are no mutual accounts there would be no jurisdiction in equity if the prayer of the bill was for an accounting only. It is argued, however, that jurisdiction should have been taken, although the accounts are unilateral, because of the need of discovery and the prayer for it. Where there is no right to the main relief sought by a bill, and discovery is merely incidental to this relief, it will not be granted. In a bill seeking an account and discovery, the discovery is prima facie merely incidental to the account, and if a right to an account is not disclosed the bill will be held bad on demurrer: Notes to Wiggins v. Bisso, 5 Am. & Eng. Decisions in Equity, 65 ; Everson v. Equitable Life Assurance Co., 68 Fed. Repr. 258; Norwich & Worcester R. R. Co. v. Storey, 17 Conn. 364; Jewett v. Bowman, 29 N. J. Eq. Rep. 174. In Everson v. Assurance Co., 68 Fed. Repr. 258, it is said: “ It would appear, therefore, that upon demurrer to a bill seeking both discovery and relief, it is sufficient to show that the complainant is not entitled to the relief which he prays and that the addition of a prayer for relief 'to a bill seeking discovery will render such discovery dependent upon the title to relief.”

In this case there was no right to an account and the light to discovery failed. It is only where jurisdiction has properly attached for some purpose that a court of equity will retain it and dispose of connected topics of dispute. The plaintiff’s demand is simply for salary based on commission on sales, and his remedy at law is adequate. The ascertainment of the amount of sales and of the amount to which he is entitled on a fixed commission does not involve the examination of intricate and complicated accounts, and under our practice he can obtain any information necessary to enable him to prepare for trial and properly to present his case: Arrott v. Pratt, 2 Wharton, 566; Murphy v. Morris, 2 Miles, 60.

The decree is affirmed at the cost of the appellant.


author: Mb. Justice Elkin,

text:
    Cohen, Appellant, v. Philadelphia & Reading Railroad Company.

      Negligence—Evidence—Inferences from facts—Province of court and, jury.

    Where there is a doubt as to the inferences to be drawn from the facts, or where the measure of duty is ordinary and reasonable care, and the degree of care required varies with the circumstances, the question of negligence is necessarily for the jury.

      Negligence—Railroads—“ Stop, look and listen ”—Contributory negligence.

    If a person fails to stop, look and listen before reaching the tracks of a railroad he is guilty of negligence per se, but failure to do so after getting on the tracks is not negligence per se, but may or may not be negligence according to the circumstances.
    In an action against a railroad company to recover damages for the death of plaintiff’s husband, it appeared that plaintiff’s husband and a companion were walking on a street which was crossed by the tracks of the defendant company at grade. The approaches to the crossing were protected by safety gates. When the two men were within half a square of the crossing a train was passing and the safety gates were down. By the time they reached the crossing the safety gates had been raised. Before they started over the tracks they stopped, looked and listened. Their view was obstructed by freight cars standing on the first track to the north of the street, and also by some cars to the south of the same avenue. They did not see or apprehend any danger while crossing over the first track. Before leaving the first track they stopped again near the end of the freight cars which obstructed their view and prevented them from seeing approaching trains or engines. They then started on their journey, taking a couple of steps towards the second track, when they were run into by a shifting engine, which the testimony tended to show was running at a rate of from twenty to thirty miles per hour. No bell was rung nor whistle blown as the engine approached, until about the time deceased was struck. There was testimony that the space between the first and second tracks was about eight feet wide, but allowing for the overhang of the cars and the engine there was only a space of about two and one half feet in which a person could stand. Held, that the question of defendant’s negligence and plaintiff’s contributory negligence was for the jury.
    Argued Jan. 18, 1905.
    Appeal, No. 334, Jan. T., 1904, by plaintiff, from order of C. P. No. 1, Phila. Co., Dec. T., 1901, No. 321, refusing to take off nonsuit in case of Sarah Cohen v. Philadelphia & Reading Railroad Company.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter, and Elkin, JJ.
    Reversed.
    Trespass to recover damages for death of plaintiff’s husband. Before Biddle, P. J.
    From the record it appeared that the suit was begun by Jonas Cohen, and that upon his death his administratrix was substituted as party plaintiff.
    The circumstances of the accident are set forth in the opinion of the Supreme Court.

      Error assigned was the order of the court refusing to take off nonsuit.

      Charles 3. Edmunds, with him Samuel Sooville, Jr., and John Sparhcmh, Jr., for appellant.
    The uncontradieted evidence offered in behalf of the plaintiff established the negli-r gence of the defendant: P. & R. R. R. Co. v. Killips, 88 Pa. 405; Matthews v. R. R. Co., 161 Pa. 28; Penna. R. R. Co. v. Ackerman, 74 Pa. 265; Lake Shore, etc., Ry. Co. v. Frantz, 127 Pa. 297.

      The evidence offered on behalf of the plaintiff did not show any contributory negligence on the part of the decedent: McWilliams v. Keim, 22 W. N. C. 372; Fisher v. Ry. Co., 131 Pa. 292; Smith v. R. R. Co., 158 Pa. 82; Ely v. Ry. Co., 158 Pa. 233 ; Matthews v. R. R. Co., 161 Pa. 28; Link v. R. R. Co., 165 Pa. 75; Haverstick v. R. R. Co., 171 Pa. 101; Muckinhaupt, v. R. R. Co., 196 Pa. 213; Bard v. Ry. Co., 199 Pa. 94; Ayers v. Ry. Co., 201 Pa. 124; Newman v. R. R. Co., 203 Pa. 530.
    The facts and inferences therefrom of the case on appeal are not such as to establish negligence of the decedent as a matter of law and the case on appeal is distinguishable from the cases cited in behalf of the appellee : Grand Trunk Ry. Co. v. Ives, 144 U. S. 408 (12 Sup. Ct. Repr. 679) ; Rusterholtz v. R. R. Co., 191 Pa. 390.
    The decision of this court which absolutely governs the case at bar is that of Gray v. Railroad Co., 172 Pa. 383.

      Gravin W. Hart, for appellee,
    cited: Matthews v. R. R. Co., 161 Pa. 28; Buzby v. Trac. Co., 126 Pa. 559; Keppleman v. Ry. Co., 190 Pa. 333; Baker v. R. R. Co., 182 Pa. 336; Muckinhaupt v. R. R. Co., 196 Pa. 213; Kinter v. R. R. Co., 204 Pa. 497; Canfield v. R. R. Co., 208 Pa. 372.
    March 20, 1905 :
   Opinion by

Mb. Justice Elkin,

This is an action of trespass to recover damages by reason of the injury and death of Jonas Cohen, husband of plaintiff, alleged to have been caused by the negligent act of defendant. The learned trial judge granted a nonsuit which he refused to take off on motion made, and these rulings have been assigned for error.

A motion for a nonsuit admits all the facts which the jury might have fairly inferred from the -testimony: Maynes v. Atwater, 88 Pa. 496; Miller v. Bealer, 100 Pa. 583.

As applied to negligence cases, the'rule has been stated by this court to be that where there is a doubt as to the inference to be drawn from the facts, or where the measure of duty is ordinary and reasonable care, and the degree of care required varies with the circumstances, the question of negligence is necessarily for the jury: Penna. Railroad Co. v. White, 88 Pa. 327; Pennsylvania R. R. Co. v. Peters, 116 Pa. 206; Rusterholtz v. N. Y., etc., Railroad Co., 191 Pa. 390. Here, then, is the rule which applies, and we must inquire into the facts in order to determine if the proper application of these principles has been made in this case. Is there a doubt as to the inference to be drawn from the facts? Is the measure of duty ordinary and reasonable care? Do the facts present a case where the degree of care required varies with the circumstances ? If these questions can be answered in the affirmative, then the learned court below was in error in granting the nonsuit.

On the evening of October 18, 1901, Jonas Cohen, the deceased, in company with Henry Weil, started from his home and walked down Susquehanna avenue. This avenue is crossed by the tracks of the defendant company at grade. The approaches to the crossing are protected by safety gates at both sides. When within half a square of the crossing a train was passing and the safety gates were down. By the time they reached the crossing the safety gates had been raised. Before they started over the tracks they stopped, looked and listened. Their view was obstructed by freight cars standing on the first track to the north of Susquehanna avenue, and also by some cars to the south of the same avenue. They did not see or apprehend any danger while crossing over the first track. Before leaving the first track they stopped again near the end of the freight cars which obstructed their view and prevented them from seeing approaching trains or engines. They then started on their journey, taking a couple of steps toward the second track, when they were run into by a shifting engine, which the testimony tended to show was running at a rate of from twenty to thirty miles per hour. No bell was rung nor whistle blown as the engine approached, until about the time Cohen was struck. He was severely injured, from which injuries he subsequently died. These were the facts immediately connected with the accident, as testified to by Henry Weil, who was walking with the plaintiff, and corroborated in many particulars by Glauseman and Bonner, who saw the accident from different points of view. Upon these facts the plaintiff relied to show the negligent acts of the defendant.

The plaintiff contends that these facts, having been proven by her witnesses and not contradicted, must be accepted as true, and that they show negligence on the part of the defendant in three particulars. First, in that the safety gates were raised at a time when a shifting engine was approaching the crossing; second, in permitting the freight cars to stand on the trades to the north and south of the crossing so as to obstruct the view of the deceased, and third, in permitting a shifting engine to run over the crossing at a high rate of speed when the safety gates were raised, without ringing a bell, blowing a whistle, or giving any other danger signal. If the ease rested here, it cannot be doubted that the question of negligence should have been submitted to the jury. Under these facts the plaintiff is entitled to recover damages unless the deceased contributed to the accident by his own negligence.

The learned counsel for appellee- contends that these facts show such contributory negligence on the part of the deceased as to prevent the plaintiff from recovering in this action. This brings us to the consideration of the vital question in the case. The testimony clearly shows that the deceased stopped, looked and listened before stepping upon the first track, and therefore was not guilty of negligence per se. He was upon a crossing where he had a right to be. His view northward was obstructed by a freight car or cars standing on the first track, and very near to the crossing at the point where he was walking over. He again stopped, but did or could not see or hear any danger. He then proceeded but a step or two when he received the injuries complained of.

It was the duty of the deceased, even after he was safely on the first track, to keep a lookout for trains and engines, and if he did see any danger or could have seen it by the exercise of ordinary care, it was his duty to see it and avoid it, or if he did not see it when by the exercise of reasonable- care he could have seen it, the defendant would not be liable to damages in this case. The fact that the safety gates were raised, thus inviting him to cross over, did not relieve him from the exercise of ordinary care after he got on the first track. In the application of the stop, look and listen rule the distinction has been made that if a person fails to observe it before reaching the tracks he is guilty of negligence per se, but failure to do so after getting on the tracks is not negligence per se, but may or may not be negligence according to the circumstances: Ayer v. Pittsburg, etc., Ry. Co., 201 Pa. 124. The rule in the case cited applied to the facts in this case requires the jury to determine whether under the circumstances the deceased exercised ordinary and reasonable care.

The defendant further contends that it was the duty of the deceased to have stopped in the space between the first and second tracks after he had passed beyond the freight cars that obstructed his view, and that he could have stopped at that place in safety until the shifting engine passed by. The learned counsel for appellee assumes that the space between the two tracks is eight feet, and that this was sufficient to permit the plaintiff to stand there in safety. The exact width of space between the two tracks was not proven, but it may be assumed for the purposes of this case that it is correctly stated in the argument of defendant. The plaintiff answers this contention by testimony which tends to show that the overhang of the freight cars was from two to three feet, and the overhang of the shifting engine from three to four feet, thus leaving a space of about one and one half feet in which to stand. It was not negligence per se for the deceased to have failed to stop at that point, but may or may not have been negligence according to the circumstances, and hence the case should have been submitted to the jury to determine whether there was a place of safety between the first and second tracks at which the deceased could have stopped, and whether under all the circumstances he was negligent in not so stopping. In this respect, Gray v. Penna. Railroad Company, 172 Pa. 383, rules the case. Mr. Justice Dean, delivering the opinion in that case, said: “ The exact width of space between the main and side tracks is not given, but from all the evidence the inference is, they were’ only sufficiently distant from each other to allow for safe passage of trains; that there was room for safe observation by a foot traveler outside of the projection of the freight car over the side track, and that of a coming locomotive over the main track, does not appear; whether, under the circumstances, it was the duty of the deceased to peep around the end of the freight car and look before venturing across the track, the court could not say as matter of law, for that manner of looking may have been attended with danger; this, however, appears clear, that less than two ordinary steps of a man from safety behind the box car, put him in front of death from a locomotive following sixty feet in the rear of the coal train.”

The deceased was invited upon the tracks by the raised safety gates. He was not warned of the approach of the shifting engine, and did not see any danger. The raised gates had “ dulled the edge of his caution,” but the testimony shows that he was proceeding cautiously even after getting on the first track, and up to the very moment when he was run down by the engine. We cannot say as a matter of law it was his duty to have looked around the overhang of the freight cars to see the approach of the shifting engine or any other danger under the circumstances. These facts should have been submitted to the jury to determine whether the deceased had exercised that ordinary and reasonable care under the circumstances which the law requires. This is clearly a case for the jury, and the court erred in granting the nonsuit.

Judgment reversed and a procedendo awarded.


author: Mb. Justice Mestbezat,

text:
    Powell, Appellant, v. Perkins.

      Infants—Capias ad respondendum—Arrest—Bail—Act of July 9, 1901, P. L. 614.
    Where a writ of capias ad respondendum against a minor for assault and battery is regularly issued by a court of competent jurisdiction, the writ cannot be quashed because the plaintiff instead of having the writ served as a summons, fixes an amount of bail, and notifies the father of the infant of his action, and the father under fear of his child’s arrest enters the bail demanded.
    An original writ can be quashed only where it is irregular, defective or improper.

      Actions—Process Service.

    Unless the statutory mode of service of a writ is observed it is not a service and the defendant is not compelled to obey its command.
    Argued Jan. 23, 1905.
    Appeal, No. 156, Jan. T., 1904, by plaintiffs, from order of C. P. No. 5, Phila. Co., Sept. T., 1903, No. 3229, quashing a writ of capias ad respondendum in case of Robert Hare Powell and John Hare Powell, by his father and next friend, v. Mary Paul and Polly Perkins.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Elkin, JJ.
    Reversed.
    Trespass to recover damages for assault and battery. Before Ralston, J.
    In addition to the facts stated in the opinion of the Supreme Court, it appeared that Mr. Perkins was led to enter bail for his daughter by reason of the following letter :
    “ Philadelphia, November 7th, 1903.
    “ Robert Hare Powell et al., v. Polly Perkins.
    “ Sussex D. Davis, Esq., Attorney at Law, 217 South Sixth Street.
    “ Dear Sir :—My client instructed me to issue a capias in the above matter, which I have done, and the bail has been fixed at $1,200. In order to avoid unnecessary publicity and annoyance to your client I write this note so that your client may have the opportunity to enter bail at her early convenience.
    “Yours respectfully, etc.,
    “ A. S. L. Shields,
    “ Attorney for Plaintiffs.”

      Error assigned was the order quashing the writ.

      A. S. L. Shields, for appellant.
    The learned court below erred in quashing the writ because the voluntary entry of bail amounted to a voluntary appearance to the action, and this appearance made service of process unnecessary: Wright v. Millikin, 152 Pa. 507; Jeannette Borough v. Roehme, 9 Pa. Superior Ct. 33; Pixley v. Winchell, 7 Cowen (N. Y.), 366 ; Vanderpoel v. Wright, 1 Cowen (N. Y.), 209.
    The learned court below undoubtedly erred in quashing the capias. The only change in the common law made by the act of 1901 gives to minors the privilege of exemption from arrest, but leaves the capias, as at common law, a proper writ in certain forms of action in tort. The failure to serve a capias like a summons in trespass or the defective service of a capias could not make the writ void when once properly issued, or justify an order quashing the writ. Since the only irregularity was in the service the only proper judgment would be one setting that service aside: Dumont v. Wright, 6 Blackf. (Ind.) 540; Jacobs v. Stevens, 57 N. H. 610.

      Charles Biddle, with him Sussex D. Davis, for appellee.
    The writ was properly quashed: Gosline v. Place, 32 Pa. 520; Williamson v. McCormick, 126 Pa. 274 ; Crawford v. Stewart, 38 Pa. 34; Mayer v. Walter, 64 Pa. 283 ; Penmann v. Wayne, 1 Dallas, 348; Whalen v. Gabell, 20 W. N. C. 274; Vocht v. Kuklence, 119 Pa. 365; Dobson v. Fitzpatrick, 2 W. N. C. 186; Desuian v. Zefcak, 22 Pa. C. C. Rep. 77; Becker v. Goldschild, 9 Pa. Superior Ct. 50; Hevener v. Heist, 9 Phila. 274; Dunton v. Halstead, 2 Clark, 450; Steinmetz v. Wade, 3 W. N. C. 187; Wilson v. Byrd, 14 W. N. C. 438; In re Anfrye, 3 W. N. C. 188; Barnard v. Field, 1 Dallas, 348; Sliver v. Shelback, 1 Dall. 165; Moore v. McEwen, 5 S. & R. 373 ; Parks v. Watts, 112 Pa. 4.
    March 20, 1905:
   Opinion by

Mb. Justice Mestbezat,

This was an action of trespass, commenced by capias ad respondendum, against Mary Paul and Polly Perkins, two minors, to recover damages for an alleged assault and battery. No service was made on either of the defendants. On the suggestion of plaintiffs’ counsel, Charles P. Perkins entered bail for his daughter, Polly Perkins. Subsequently, Polly Perkins, “by her next friend, Charles P. Perkins,” obtained a rule to quash the capias issued against her, alleging, inter alia, in her affidavit in support of the rule the following: “ That she has been unlawfully arrested and held to bail in the sum of twelve hundred dollars under a capias ad respondendum issued in the above case. That the said defendant being a minor, the said capias has been unlawfully and improperly executed and the said minqr’s arrest is contrary to the act of assembly regulating the service of said capias.” The learned judge of the court below quashed the writ, saying in his opinion: “ The defendant must be regarded as having been arrested and held to bail, and as she was not liable to arrest the writ should be quashed: Vocht v. Kuklence, 119 Pa. 365; Whalen v. Gabell, 120 Pa. 284.”

It is elementary law that an infant is liable in an action ex delicto for injuries inflicted by him upon the person or property of another. He cannot appear and defend in person or by attorney, but only by guardian, general or ad litem. The Act of June 13, 1836, P. L. 568, Purd. Dig. 63, provided the form of the writ of capias ad respondendum, and it commands the sheriff to take the defendant in the writ “ and him safely keep, until he shall have given bail, or made deposit according to law, so that he be and appear in our court.” Under this act the writ was served on an infant by arresting him. The service of the writ is now regulated by the Act of July 9,1901, P. L. 614. It is entitled “ An act relating to the service of certain process in actions at law, and the effect thereof, and providing who shall be made parties to certain writs.” It provides, inter alia, as follows: “ Tlie writ of capias ad respondendum may be served by the sheriff of the county in which it is issued in any one of the following methods: (a) By arresting the defendant, other than a minor or married woman, and holding,him to bail or committing him to jail for want thereof; or, (5) if the defendant be a minor or married woman, or if from any cause the defendant is liable to arrest but is not arrested, then by serving tbe writ as in case of a summons; in which event the cause shall proceed with the same effect as if a summons in trespass had been duly served, and in that case, if the defendant was liable to arrest on the original writ but was not arrested, alias and pluries writs may issue at any time prior to final judgment in the cause, and the defendant may be arrested by virtue thereof, with the same effect as if arrested on the original writ.”

This act made no change in the form of the writ provided by the act of 1836, nor prevented the issuing of the writ in proper cases against an infant. It simply provides the manner in which a writ of capias ad respondendum shall be served on an infant. The writ cannot be served as formerly by arresting and taking him into custody and requiring him to find security for his appearance, but the service is made “by serving the writ as in case of a summons.”

In the case in hand the writ itself was good. It was in proper form; was issued by the proper officer of a court of competent jurisdiction, and against a party subject to its command. It was in all respects formal and legal, and, if properly served, the defendant was required to answer. It was, therefore, manifest error to quash the writ. In the very recent case of Bruner v. Finley, ante p. 74, we had occasion to consider and review the action of the trial court in quashing an original writ, and in the opinion it is said: “ An original writ can be quashed only where it is irregular, defective or improper. It is not alleged that either of these reasons for quashing the writ obtain in this case. The writ was issued by a court of competent jurisdiction, by a proper officer of the court under his seal of office on precipe of counsel, and was not defective .or irregular in any respect. There was, therefore, no ground for quashing the writ.”

The writ in this case was not served on Polly Perkins “ as in ease of a summons,” and hence there was no service on her at all. Unless the statutory mode of service of a writ is observed, it is not a service, and the defendant is not compelled to obey the command of the writ. The defendant was not required, either in person, by guardian or by next friend, to enter security for her appearance, and her father’s action in giving bail was in no sense an appearance by her.

In their printed argument the learned counsel for the appellee say: “ The only question before the court was the illegal and improper use of the writ after it had been issued, and this, it was decided, warranted the quashing of the writ, no matter how regular its issue originally may have been.” But this position is clearly untenable. The writ being regular and proper, it was the duty of the sheriff to serve it in the manner pointed out by the statute. If he or the plaintiffs’ counsel made an illegal and improper use of the writ, they may be responsible to the defendant for their act, but it did not invalidate the writ itself or the act of the court in issuing it. The cause of action, set forth in the statement justified the issuance of the writ, and if the sheriff or the plaintiffs’ counsel, through inadvertence or for any reason, caused it to be served improperly, it is not a sufficient reason for quashing it. If there has heen injury resulting from an abuse of the writ, it must be redressed in the usual and orderly way, and not summarily by quashing a writ regularly issued to enforce a demand which the pleadings disclose to be legal.

The learned judge of the court below cites in support of his ruling the cases of Vocht v. Kuklence, 119 Pa. 365, and Whalen v. Gabell, 120 Pa. 284. He misapprehends the effect of those decisions. In the first, the question was “ whether a wife may be arrested in satisfaction of a judgment for defamatory words, spoken by her during coverture, in which her husband is not implicated.” In answering the question this court said: “ If the time-honored principle of the common law, exempting married women from arrest and imprisonment in civil actions for torts committed during coverture, is still in force here, this question must be answered in the negative.” The opinion then proceeds to say that “ the time-honored principle ” was still the law of this commonwealth, notwithstanding the legislation for the protection of married women, and it was therefore held, that a capias ad satisfaciendum could not issue against a married woman on a judgment in an action upon a tort, committed by her during coverture. The opinion quotes from 3 Bl. Comm. 414, as follows: “ If judgment be recovered against husband and wife for the contract, nay, even for the personal misbehavior of the wife during her coverture, the capias shall issue against the husband only, which is one of the many great privileges of English wives.” In Whalen v. Gabell, the defendant, a married woman, was arrested upon a capias ad respondendum in slander. She took a rule to quash the writ, which was made absolute, on the ground that a capias ad respondendum could not issue for the arrest of a married woman in a civil action of tort committed by her during coverture. In both cases, it will be observed,. the writ was quashed because it would not lie against the defendant and, hence, was improperly and illegally issued. In the case at bar, it is conceded that the writ will lie against the defendant, and is in regular and proper form. The distinction between the cases cited and the one at bar is too apparent to require further comment.

The cases cited by the appellee from the reports of this court to sustain the court in quashing the writ in this case are all cases in which the defendant was not subject to arrest, and hence the writ was improper and could not legally be issued against him. In Barnard v. Field, 1 Dall. 348, the capias was quashed on the ground that the defendant was a freeholder and exempt from arrest under the act of assembly. It was held that the writ could not issue against him, even though the plaintiff directed the sheriff to accept his appearance. The same principle is recognized in Farmers’ Bank v. McKinney, 7 Watts, 214. The writ was quashed in Dupont v. Pichon, 4 Dall. 324, on the ground that the defendant, being the accredited chargé d’affaires of the French Republic to this country, was exempt from arrest on a capias. It is apparent that none of these cases supports the contention that a capias may be quashed when it is authorized by an act of assembly and is regularly issued by a court of competent jurisdiction against a defendant who is amenable to the process, but which is required to be served upon him in the manner provided for the service of a summons.

The first assignment of error is sustained, the order quashing the writ is reversed, the writ is reinstated, and a procedendo is awarded.


author: Mb,. Justice Elkin,

text:
    Thirsk, Appellant, v. Evans.

      Mechanic’s lien—Subcontractor—Copy of contract—Plans and specifications.

    Where an agreement between a contractor and subcontractor refers to the original building contract between the owner and the contractor, and in relation thereto provides “which articles, plans and specifications are to be considered as if hereto attached all information concerning the same being known to the subcontractor,” and it appears that the subcontractor has not in his possession the “articles, plans and specifications,” and cannot secure them, he sufficiently complies with clause 4 of sec. 11 of the Act of June 4, 1901, P. L. 431, if he files a copy of his contract with the contractor without annexing to it the “articles, plans and specifications,” to which reference is made in the body of the contract.

      Mechanic’s liens—Amendment—Plans and specifications—Act of June 4, 1901, sec. 51, P. L. 431.
    Amendments to mechanic’s liens are of right saving intervening rights and excepting as otherwise provided in the act can be made at any time during the existence of the lien.
    Where a subcontractor in filing a mechanic’s lien has filed a copy of his contract with the contractor, and it appears that the contract contains a reference to the articles, plans and specifications of the original building contract to the effect that they “are to be considered as if hereto attached,” the subcontractor may after the expiration of the statutory period amend Ms claim by adding an averment that he had made a demand upon the owner for a copy of the “articles, plans and specifications,” and that the demand had been refused, and that he was thereby prevented from attaching the same to the copy of his own contract.

      Mechanic’s lien—Notice by subcontractor—Act of June 4, 1901, P. L. 431.
    Where a subcontractor avers in his statement of claim that a “written notice of intention to file this claim duly prepared, filed and sworn to was served upon E., owner, on February 13, 1903, by delivery to him personally by the claimant," he has sufficiently complied with clause 11 of sec. 11 of the Act of June 4, 1901, P. L. 431, relating to averment of notice. A copy of the notice need not be set out in the lien.
    Argued Jan. 24, 1905.
    Appeal, No. 196, Jan. T., 1904, by plaintiff, from order of C. P. No. 5, Phila. Co., March T., 1903, M. L. D. No. 3564, making absolute rule to strike off mechanic’s lien in case of George H. Thirst v. Samuel W. Evans, Owner, and George W. Pierson, Contractor.
    Before Mitchell, C. J., Fell, -Brown, Mestrezat and Elkin, JJ.
    Reversed.
    Rule to strike off mechanic’s lien.
    The facts appear by the opinion of the Supreme Court.

      Error assigned was the refusal of permission to amend the mechanic’s lien.

      Charles L. Lockwood, for appellant.
    The claim as filed complied with the requirements of the act of 1901: Knelly v. Horwath, 208 Pa. 487; McCristal v. Cochran, 147 Pa. 225.
    The claimant should have been allowed to amend.

      William W. Porter, for appellee.
    The claim was properly
    stricken off: Knelly v. Horwath, 208 Pa. 487 ; Acme Mfg. Co. v. Reed, 181 Pa. 382; Finch v. White, 190 Pa. 86; Lee v. Exeter Club, 9 Pa. Superior Ct. 581; Bohem v. Seabury, 141 Pa. 594; Blaisdell v. Dean, 9 Pa. Superior Ct. 639.
    The claim does not comply with the requirements of section 11, paragraph 6 of the act of 1901: Murphy v. Cappeau, 147 Pa. 45 ; Fenner v. Real Est. Trust Co., 13 Pa. Dist. Rep. 47.
    The claim does not meet the requirements of section 11, clause 11 of the act of 1901, as to setting forth the service of notice to the owner of the intention to file a claim, as required by section 8 of the act: Maddocks v. McGann, 12 Pa. Dist. Rep. 701; Stoner v. Hileman, 12 Pa. Dist. Rep. 525; Fenner v. Real Estate Trust Co., 13 Pa. Dist. Rep. 47; Howard v. Allison, 12 Pa. Dist. Rep. 117.
    The court properly discharged the petition to amend the claim: Grier v. Northern Assurance Co., 183 Pa. 334; Knox v. Hilty, 118 Pa. 430; Nolan Bros. v. Warren, 11 Pa. Dist. Rep. 561; McFarland v. Schultz, 168 Pa. 634; Meadville City v. Mahoney, 28 Pa. C. C. Rep. 474; Philadelphia v. Kehoe, 22 Pa. Superior Ct. 320; McKeesport Boro. v. Busch, 166 Pa. 46; Grier v. Assurance Co., 183 Pa. 334; Smith’s App., 108 Pa. 508; Wrought Iron Bridge Co. v. York Mfg. Co., 11 York Legal Record, 45; Phila. v. Hestonville, etc., Pass. Ry. Co., 203 Pa. 38; Wright v. Copper Co., 11 Pa. Dist. Rep. 452; Kaul v. Lawrence, 73 Pa. 410; Kille v. Ege, 82 Pa. 102 ; Trego v. Lewis, 58 Pa. 463.
    March 20, 1905:
   Opinion by

Mb,. Justice Elkin,

The questions involved in this case arise on a scire facias sur mechanic’s lien under the Act of June 4, 1901, P. L. 431. Evans is the owner; Pierson the contractor; Thirsk the subcontractor. _ Evans and Pierson entered into a contract in writing, providing for the construction of a building according to the plans and specifications made part of the contract and remaining in their possession. Subsequently, Pierson by written agreement, sublet certain portions of the work to be done and materials to be furnished, to Thirsk. The agreement between Pierson and Thirsk contained a reference to the original agreement between Evans and Pierson, and in relation thereto provided “ which articles, plans and specifications are to be considered as if hereto attached, all information concerning same being known to the subcontractor.” The learned, counsel for appellee contends that the words “which articles, plans and specifications are to be considered as if hereto attached,” must be construed to mean that the entire original agreement, including the plans and specifications, is a part of the later contract, and in order to give validity to the claim it was necessary to include therein a copy thereof. Clause four of section eleven of said act provides that the claimant shall file as part of his statement of claim “ a copy of his contract or contracts if in writing.” It is contended that this requirement of the act has been met by including in the claim a copy of the written contract between Pierson and Thirsk. The claim as filed does not contain a copy of the original article of agreement, plans and specifications between Evans and Pierson. The question therefore arises whether the reference in the later contract to the original agreement, plans and specifications make them such a part of the contract between Pierson and Thirsk as to require that a copy of the same must be filed with the claim. We have held that as between the owner and contractor, specifications made part of the contract and essential to it, must be included in statement of claim: Knelly v. Horwath, 208 Pa. 487. This case holds, however, that the plans, while a part of the contract and material as between the parties, are not essential to and need not be included in the claim. Mr. Justice Fell, writing the opinion of the court, said: “ The purpose of the eleventh section of the act is to require the claimant to state the nature and extent of the lien claimed and the grounds on which the demand is based. Full effect may be given to the part of this section that provides for the filing of a written contract without adopting a construction that would require the filing of building plans.” In other words, these provisions will be so construed as to give proper effect to the spirit and purpose of the act. In this case the claimant was not a party to the original contract, and did not have the possession of the plans and specifications. In his agreement with the contractor, Thirsk in effect says : “ I do not own or have possession of the plans and specifications, but I have looked them over and agree to do the work and furnish the materials as therein provided.” The only contract made by the claimant is the one a copy of which is set out in full in his claim. Does the act of 1901, because of the reference in the later contract to the original agreement, plans and specifications of the former one, make it an essential requirement to the validity of this claim that a copy of all these things should be therein set out ? This claimant is without authority to enforce a demand for a copy thereof. It is true Thirsk used the plans and specifications in ascertaining the kind and character of the work to be done and the quantity and quality of the materials to be furnished, but they were not his property. He did not have the possession of them for purposes of his own, and was refused a copy when he requested the same. These facts clearly distinguish this case from Knelly v. Horwath, 208 Pa. 487. This act should not be construed to require a claimant to do an impossible thing.

Another important question must be considered. When the motion to strike off in the court below was made, the claimant moved to amend the claim as filed by stating therein reasons for his failure to attach a copy of the original agreement, plans and specifications. The amendment was refused. The court did not file an opinion, but inasmuch as the statutory period for filing the claim had expired we must conclude that this was the reason for the refusal. The petition for the amendment substantially set out that the article of agreement between the owner and contractor, together with the plans and specifications, belonged to and remained in their possession, or in the possession of the architect representing them ; that the claimant by application and request endeavored to procure copies thereof for the purpose of including them in his claim, but was refused and thereby prevented from attaching the same thereto. It cannot be doubted that if these facts had been stated in the original claim, the court would hold that the claimant had done all the acts reasonably required of him in reference to copies of contracts, and that the validity of the claim could not be attacked on this account. We therefore come to the question whether the claim can be amended in this respect after the statutory period for filing the same has expired. We think it can. Section fifty-one of said act expressly authorizes amendments in very general terms, and provides, inter alia, “ Such amendment shall be of right, saving intervening rights ; except that no amendment of the claim shall be allowed, after the time for its filing has expired, which undertakes to substitute an entirely different property from that originally described in the claim, or a wholly different party as the defendant with whom the claimant contracted.”

This provision of said act has not received interpretation by this court. It becomes necessary to consider it now. It will be noticed that the amendments shall be of right, saving intervening rights. There is no limitation as to the time of making amendments, and the reasonable presumption is the act intended that proper amendments can be made at any time during the existence of the lien or course of the trial. There can be no doubt that the amendment asked for in the court below was a proper one, and within the provisions of said act relating to amendments. The claim contained the only copy of a contract the claimant entered into and had possession of. The plans and specifications belonged to and were in the possession of the owner, contractor or architect. The claimant made application to these parties for copies, which they refused. If, as the learned counsel for appellee contends, the plans and specifications are an essential part of the contract necessary to be filed with the claim, then certainly the claimant should be permitted to show why he had not been able to file copies thereof. It will not be seriously contended that the owner, having the possession of the article of agreement, plans and specifications and refusing to give copies to the claimant, will be permitted to come into court and defeat the claim because copies of these contracts which he withholds have not been filed. Such a doctrine would permit the owner by taking advantage of his wrongful act, to invalidate the lien and render the law inoperative. He is estopped from so doing: McCormick v. Lawton, 3 Neb. 449. The court was in error in refusing to allow the amendment.

Two reasons presented in the court below on the motion for a rule to strike off, raise the question as to what the act requires to be stated in the claim in reference to notice to the owner of an intention to file the same. As such notice is an essential prerequisite, and cannot be amended, it becomes necessary to consider whether the statutory requirements have been complied with. It is provided in clause eleven of section eleven of said act that the statement of claim must set out “ when and how notice was given to the owner of an intention to file a claim.” The claimant has met this requirement by an averment that “ a written notice of intention to file this claim, duly prepared, filed and sworn to, was served upon Samuel W. Evans, owner, on February 19, 1903, by delivery to him personally by the claimant.” This is the date when, and the manner how, the notice of intention to file was served. The act requires no more to be included in the claim. A copy of the notice need not be set out in the lien. Whether the form and substance of the notice are in compliance with the provisions of section eight, are matters to be determined at the trial. The object of this notice is to inform the owner of the demand and the nature thereof, in order that he may require payment by the contractor, or in default thereof withhold the amount from the contract price.

Judgment reversed, lien reinstated, amendment allowed and procedendo awarded.


text:
    Laven, Appellant, v. Moore.

      Negligence—Fall of brick—Construction of building—Evidence—Nonsuit.

    In an action to recover damages for personal injuries it appeared that the plaintiff, a plumber’s employee, was struck by a falling brick in a building in the course of erection, where he was at work on the second floor. Plaintiff claimed that the brick was precipitated from the fifth floor by an employee of the defendant, a bricklayer. There was no direct evidence to show how the brick came to fall, nor from whence it started. No one saw the brick near the defendant’s employee at any time; nor did anyone see the brick start from a point near him. The evidence did not show that there were any bricks at or near the place where the defendant’s employees were working; nor that there were no bricks on other floors or places from which the brick wKieh caused the injury might have fallen. Held, that a nonsuit was properly entered.
    Argued Jan. 24, 1905.
    Appeal, No. 236, Jan. T., 1904, by plaintiff, from order of C. P. No. 1, Phila. Co., Dec. T., 1908, No. 916, refusing to take off nonsuit in case of William Laven v. Samuel E. Moore.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Elkin, J J.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Bettlbr, J.
    From the record it appeared that on October 23,1903, plaintiff, a plumber’s assistant, was injured by a brick falling upon him while he was at work in an eight-story building known as the Perry building at the corner of Sixteenth and Chestnut streets in the city of Philadelphia. Plaintiff alleged that the brick which hit him was precipitated from the fifth floor by two of defendant’s employees who were working there at the time. An analysis of the testimony is given in the opinion of the Supreme Court.

      The trial judge entered a nonsuit which the court subsequently refused to take off.

      Error assigned was refusal to take off nonsuit.

      Frederick II. Warner, with him Arthur B. Houseman, for appellant,
    cited: Huey v. Gahlenbeck, 121 Pa. 238 ; Stringert v. Ross Twp., 179 Pa. 614; Lyons v. Rosenthal, 11 Hun (N. Y.), 46; Sheridan v. Foley, 58 N. J. 230 (33 Atl. Repr. 484); Booth v. Dorsey, 208 Pa. 276 ; Ahern v. Melvin, 21 Pa. Superior Ct. 462; Penn. R. R. Co. v. MacKinney, 124 Pa. 462 ; Koelsch v. Phila. Co., 152 Pa. 355.

      M. Hampton Todd, with him Charles F. Van Horn, for appellee,
    cited: Reese v. Clark, 146 Pa. 465; Alexander v. Penna. Water Co., 201 Pa. 252; Pittsburg Southern Ry. Co. v. Taylor, 104 Pa. 306; Frazier Bros. v. Lloyd, 23 W. N. C. 178 ; Stearns v. Ontario Spinning Co., 184 Pa. 519.
    March 20, 1905:
   Opinion by

Mb. Justice Elkin,

There is no rule of law nor any decision of this court that would sustain a jury in finding by imaginary inference that a brick which struck a plumber’s employee while working on the second story of a building in course of construction, was negligently thrown down, or knocked off, or tumbled over, or caused to fall, by two employees of a different contractor engaged in building scaffolding for brick layers on the fifth floor, no testimony having been offered to show that there were any bricks at or near the place where the scaffold builders were working. There is no doubt that if defendant or his employees caused the brick to fall which struck the plaintiff, inflicting the injuries complained of, an action in trespass would lie to recover damages. In order, however, to sustain this action the plaintiff must affirmatively show that the employees of defendant caused the brick to fall. He can do this by direct and positive testimony or by showing that defendant’s employees were in position to have caused the accident, and by the exclusion of all other causes, make out a prima facie case for the jury. The difficulty with this case is that plaintiff has not met either requirement. No direct evidence was produced to show how the brick came to fall, nor from whence it started. Neither was there sufficient testimony from which a jury might draw an inference that defendant’s employees were the only persons in position to have caused the accident. The testimony did not exclude all other causes. It did not show that there were any bricks at or near the place where scaffold builders were working. It did not show that there were no bricks on other floors or places from which this particular brick might have fallen. The testimony does not show that anyone saw the brick near the scaffold builders at any time, nor did anyone see the brick start from that point. It is probable that the brick may have fallen from some other floor, and the jury cannot be left to guess where the brick came from and who caused it to fall. These facts clearly distinguish this case from Booth v. Dorsey, 208 Pa. 276, relied on by appellant. The plaintiff failed to show by direct testimony or by facts from which the inference might be drawn, any negligent act of the defendant’s employees, and, therefore, cannot recover in this action. The nonsuit was properly granted.

Judgment affirmed.


author: Me. Justice Beown,

text:
    Ogden’s Estate.

      Will—Testamentary gift—Advancement—Settlement—Intestacy—Trust and trustees—Act of April 8, 1833, P. L. 315.
    A testamentary trustee was authorized in his sole and absolute discretion, to give a portion, or all, of one third of the principal of the estate to the surviving husband of the testatrix, or either of her two sons while the three lived. Upon the death of one, the authority was to give, in the exercise of such discretion, one half of the principal to either of the two surviving, and upon the death of one of them, there was authority to pay the survivor the whole of what remained. The trustee gave to one of the sons a portion of the principal. The father survived the two sons, and upon his death there was an intestacy as to a portion of the estate of testatrix. Held, that the only child of the son to whom a portion of the principal had been given by the trustee was entitled to a full share of the portion of the estate of her grandmother passing under the intestate laws, without any deduction for the sums paid to her father.
    In such a case the sums paid to the father were neither advancements nor settlements within the meaning of the Act of April 8, 1833, P. L. 315, but were testamentary gifts from the testatrix.

      Argued Jan. 25, 1905.
    Appeal, No. 347, Jan. T., 1904, by Marie Ogden Embree, from decree of O. C. Phila. Co., April T., 1888, No. 239 dismissing exceptions to adjudication in estate of Emma C. Ogden, deceased.
    Before Mitchell, C. J., Fell, Beown, Mesteezat and Elkin, JJ.
    Reversed.
    Exceptions to adjudication.
    The facts appear by the opinion of the Supreme Court.

      Error assigned was in not awarding the appellant an entire one third portion of the estate of which her grandmother,. Emma C. Ogden, died intestate.

      Thos. Raeburn White and George Henderson, for appellant.
    The amount given to Henry Corbit Ogden was a gift and not a “settlement ” or an “ advancement.”
    The word “settlement ” as used in the act of 1833 means a settlement made in the lifetime of the intestate: Oyster v. Oyster, 1 S. & R. 422; Lentz v. Hertzog, 4 Wharton, 520; Miner v. Atherton, 35 Pa. 528; Wagner’s App., 38 Pa. 122; Dutch’s App., 57 Pa. 461.
    A gift by will cannot be construed to be a “ settlement ” within the meaning of the act of 1833: Hitchcock v. Hitchcock, 35 Pa. 893; Hand v. Hand, 60 N. J. Eq. 518 (46 Atl. Repr. 770) ; O’Hearn v. O’Hearn, 58 Lawyers’ Rep. Ann. 105; Edwards v. Freeman, 2 Peere Wms. 435 ; Twisden v. Twisden, 9 Ves. 425; Nettleton v. Nettleton, 17 Conn. 542; Snelgrove v. Snelgrove, 4 Desaussure, 274.
    The gift made to Henry Corbit Ogden was not intended as a portion of his distributive share.

      W. M. Lansdale, for- appellee.
    The provision in the will worked a “ settlement ” in favor of H. Corbit Ogden : Onslow v. Michell, 18 Ves. 490; Taylor v. Taylor, L. R. 20 Eq. 155; Patterson’s App., 128 Pa. 269.
    March 20, 1905:
   Opinion by

Me. Justice Beown,

On the distribution of the estate of Emma C. Ogden, the appellant, a grandchild, was charged with moneys which had been paid to her father, Henry Corbit Ogden, in pursuance of the testamentary directions of his mother. By her will, dated June 1, 1866, she made the following disposition of her estate: “ 1 give and bequeath all my said estate and property to my executors hereinafter named in trust to keep the same securely invested to collect and receive the income, interest and profits thereof, and to pay the one equal third part thereof to my beloved husband, Charles S. Ogden, so, however, that neither the principal nor income thereof shall in any wise be liable for his debts, contracts and engagements, whether now existing or hereafter to be incurred, nor shall the same be capable-of or liable to any assignment, alienation, pledge or mortgage thereof, or be in any wise anticipated by him but his receipt alone for the income thereof shall be a sufficient discharge to the trustee and in trust to pay and appropriate the other two equal third parts thereof for the maintenance and support of my children in equal proportions during their respective minorities, and upon their arrival at full age then to pay the same directly to and equally between them respectively during their respective lives, provided, however, that it shall and may be lawful for the said trustee (at any time so far as regards the shares given in trust for my husband, and as far as regards the share given in trust for my children at any time after their arrival at full age respectively) in his sole and absolute discretion, but not otherwise, whenever he may think it prudent and discreet so to do, to advance and pay over to either of the said cestui que trust any part of the shares of said principal fund so given in trust for them as a capital for business for the purchase of a farm or other real estate or as an outfit in life ; but of the expediency or propriety of making such advances and payments out of the principal the said trustee is to be the sole and absolute judge. And upon the death of either of said cestui que trust his share of said principal fund shall be held by said trustee upon the same trusts and with the same powers as are-above set forth for the benefit of the survivor or survivors of, said cestui que trust with full power to said trustee in his discretion to keep the said trusts alive or to terminate the same as in his best judgment the interests of the said cestui que trust may require.”

The testatrix died January 22, 1874, and was survived by her husband and two sons, Middléton and Henry Corbit. The latter died June 29,1891, and, having received from the trustee named in his mother’s will 14,194.43, his daughter was charged with the same as a settlement upon him by his mother within the meaning of the Act of April 8, 1833, P. L. 315, which provides : “ If any child of an intestate shall have any estate by settlement of such intestate or shall have been advanced by him in his lifetime, either in real or personal estate to an amount or value equal to the share which shall be allotted to each of the other children of such intestate, such child shall have no share of the real or personal estate of such intestate, and if such settlement or advancement be to an amount or value less than the share to which he would otherwise be entitled, if no such advancement had been made, then so much only of the real and personal estate of such intestate shall be allotted to such child, as shall make the estate of all the children to be equal as near as can be estimated.” The learned court below was of opinion “ that the moneys received by Henry C. Ogden under the provisions of his mother’s will are to be regarded as an ‘ estate by settlement of an intestate ’ in the distribution of that part of her estate of which she died intestate.”

The testatrix died intestate as to such portion of her estate as remained in the hands of the trustee at the time of the death of her husband, who survived the two sons. In the language of the court below: “ There was no disposition of the principal, except so far as it might be advanced by the trustee under his discretionary power, and her estate, as to any excess, passed under the intestate laws to her husband and children.

The meaning of the directions given by the testatrix to the trustee is unmistakable. It is that the trustee, in his sole and absolute discretion, was authorized to give a portion, or all, of one third of the principal to the father or either of the sons while the three lived. Upon the death of one, the authority was to give, in the exercise of such discretion, one half of the principal to either of the two surviving, and upon the death of one of them, there was authority to pay the survivor the whole of what remained. The testatrix was not contemplating equality by her will, which is the purpose of the act of 1833, under which the appellant was charged with what had been paid to her father.

When, in pursuance of the explicit directions to and the clearly defined power of the trustee, lie paid Henry Corbit Ogden moneys from bis mother’s estate, what was the latter receiving ? It is admitted that the payments were not advancements, for, under the statute, they must be made in the lifetime of the intestate; but it is contended that they were settlements contemplated by the act. In answer to this the appellant replies that under the literal meaning of the language of the act of 1833, settlements with which a child can be charged must also be made by the intestate in his lifetime. Which of these positions is correct is not important, if what the son received from his mother’s estate was a testamentary gift to him, for the act of 1833 applies only to intestacy. She did not name any specific sum that should be paid to him by the trustee, but in the latter’s discretion he was authorized to pay the son the whole of one third of the estate during’ the lifetime of the father and the brother, Middleton; one half upon the death of Middleton, who died first, and to the father all that remained after the death of the two sons. When the trustee paid the son he paid what he had been directed by the will to pay, and he paid it as he would have paid a legacy of a certain sum, if the payment of the same had been contingent upon the exercise of a discretion given him by the will. What the son received must, therefore, he regarded as a gift to him by his mother under her will, and in effect it is the same as if there had been a specific sum named by the testatrix which she authorized the trustee to pay in his discretion. This being so, and she having died intestate as to that portion of her estate remaining in the hands of the trustee at the death of her husband, the appellant, claiming through her son, Henry Corbit, cannot be charged with the gift to him on the distribution of the estate as to which she died intestate. In addition to the gift to her father, she, as his child is entitled to a full distributive share of the estate of her grandmother distributed under the intestate laws.

In Hitchcock v. Hitchcock, 35 Pa. 393, the testator gave |2,000 to his granddaughter, saying: “I bequeath to my said granddaughter, Celinda Ann, only the said two thousand dollars and interest, not because of unkindness towards her, but because I know that she is the only child of my deceased son, and as such inherits all his estate, while my other grandchildren, who may be left orphans, may not be so well off.” As to the bulk of his estate he died intestate, and it was held that the granddaughter was, notwithstanding the bequest" to her, entitled to participate equally with the other heirs in the distribution of it. The same rule was followed in Hancock’s Appeal, 112 Pa. 532. By the English Statute of Distributions, 22 & 23 Car. 2, c. 10, it is provided that after the widow’s portion has been deducted, the remainder of the estate shall be distributed “ by equal portions to and amongst the children of such persons dying intestate, and such persons as legally represent such children in ease any of the said children be then dead, other than such child or children .... who shall have any estate by the settlement of the intestate, or shall be advanced by the intestate in his lifetime by portion or portions equal to the share which shall by such distribution be allotted to the other children to whom such distribution is to be made.” Of this, Lord E'LDON said: “Nor am I aware, that any provision by will of either land or money has been within the statute considered a portion advanced in the life. It means, not a person making no will, but a person dying intestate as to the subject to be distributed by the statute. There is no instance of real estate, given to a younger child, or a particular part of the personal estate, given to any child, by the testator, and where executors have been held trustees of the residue, which therefore as undisposed of, was to go under the statute, where in the division of that residue this court ever brought into hotch-pot what the particular child took under the will of that person, dying partly testate, partly intestate: ” Twisden v. Twisden, 9 Vesey, Jr. 413.

The decree of the court below is reversed and the record remitted, with directions to distribute the estate in accordance with this opinion, the costs on this appeal to be paid out of the estate.


text:
    Schiglizzo, Appellant, v. Dunn.

      Negligence—Master and servant—Safe place to work—Contributory negligence—Province of court and jury.

    The duty to provide a safe place to work and to maintain it in a reasonably safe condition by inspection and repair is a direct, personal and absolute obligation from which nothing but performance can relieve an employer, and the person to whom it is delegated becomes a vice principal whose neglect is the neglect of the employer.
    In an action by an employee against his employer to recover damages for personal injuries, the case is for the jury where the evidence shows that the plaintiff was at work on a dangerous pile of stones, that he had protested to defendant’s superintendent of the dangerous condition of the place where he was working and refused to work, that the superintendent had reprimanded him for his refusal to work, and had ordered him to go on, promising him to remove the danger.
    Argued Feb. 6, 1905.
    Appeal, No. 234, Jan. T., 1904, by plaintiff, from order of C. P. Del. Co., March T., 1908, No. 4, refusing to take off nonsuit in case of Nichola Schiglizzo v. William A. Dunn and William R. Richards, trading as William A. Dunn & Company.
    Before Mitchell, C. J., Dean, Brown, Mestrezat and Potter, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Hemphill, P. J., specially presiding.
    The facts appear by the opinion of the Supreme Court.

      Error assigned was in refusing to take off nonsuit.

      O. B. Dickinson, with him J. 11. Hinkson, for appellant.
    The case was for the jury: Settle v. R. R. Co., 127 Mo. 336 (30 S. W. Repr. 125) ; Lucey v. Oil Co., 129 Mo. 32 (31 S. W. Repr. 340) ; Shearman and Redfield on Negligence, 112, sec. 96 ; Clarke v. Holmes, 7 Hurlst. & N. 937 ; Holmes v. Worthington, 2 Fost. & F. 533; Reese v. Clark, 198 Pa. 312; Williams v. Clark, 204 Pa. 416; Webster v. Coal & Coke Co., 201 Pa. 278; Brownfield v. Hughes, 128 Pa. 194; Patterson v. R. R. Co., 76 Pa. 389 ; Garrity v. Penna. Casting & Machine Co., 17 Pa. Superior Ct. 623; Lillie v. American Car & Foundry Co., 209 Pa. 161.

      W. Roger Eronefield, with him Andrew O. Wylie, for ap-
    pellees.
    The defendant was not negligent: O’Neal v. Clydesdale Stone Co., 207 Pa. 378; Durst v. Carnegie Steel Co., 173 Pa. 162; Garrity v. Casting & Machine Co., 17 Pa. Superior Ct. 623 ; Lillie v. Car & Foundry Co., 209 Pa. 161.
    The appellant assumed the risk of injury in going on the pile of stone : Bemisch v. Roberts, 143 Pa. 1; Lineoski v. Coal Co., 157 Pa. 153 ; Pittsburg, etc., R. R. Co. v. Sentmeyer, 92 Pa. 276; Fricker v. Bridge Co., 197 Pa. 442; Nuss v. Rafsnyder, 178 Pa. 397 ; Fletcher v. Traction Co., 190 Pa. 117 ; Moore v. Penna. R. R. Co., 167 Pa. 495.
    The appellant was guilty of contributory negligence, in going on the only dangerous part of the pile to get a stone, when the other part of the pile was safe : Cisney v. Sewer Pipe Co., 199 Pa. 519; Collins v. Second Ave. Traction Co., 7 Pa. Superior Ct. 318.
    March 20, 1905:
   Opinion by

Mb. Justice Mestbezat,

The learned trial judge in granting the nonsuit correctly said that “ the difficulty in this case is not in ascertaining the rules of law, because they are well established, but it is the application of the rules.” We will repeat, however, as applicable to the facts of this case, what is said in the very recent case of Lillie v. Am. Car and Foundry Co., 209 Pa. 161, that, “ The duty to provide a safe place to work and to maintain it in a reasonably safe condition by inspection and repair is a direct, personal and absolute obligation from which nothing but perfmymance can relieve an employer and the person to whom it is delegated becomes a vice principal whose neglect is the neglect of the employer.”

The defendants’ negligence should have been submitted to the jury. A side track was used in delivering stone and other material for the construction of the wall. The stone was unloaded and piled in the narrow space between the main track of the railroad and the side track. A car standing on the side track was so close to the stone pile that a man could not pass between them. The wall was near the side track and just beyond it was the derrick used in removing the stone from the car after it had been placed on the side track. At the time the plaintiff was injured, the stone pile was from forty to sixty feet long, eight to ten feet wide and about thirteen feet high. The empty car was then standing on the side track and was near the stone pile. These were the conditions with which the defendants had surrounded the place at which they expected the plaintiff to perform the services for which he was employed. The evidence shows that the height of the stone pile, as well as its proximity to the car, made the place unsafe for the plaintiff to perform his duties. If the pile fell, when he was on it, his only means of escape, according to the testimony, was across the siding. The defendants are presumed to have known these facts and hence it was their duty, if they permitted these conditions to exist, to keep the side track clear of empty cars, or of anything else that might endanger the plaintiff while engaged at his work on the stone pile. If in carrying out their contract to construct the wall of the elevated railway, the defendants erected and used any structure, or located the side track or so used it or directed the stone to be piled so near it as to endanger the safety of their employees while in the discharge of their duties, it was the act of the defendants and they are responsible to an employee, without fault himself, for any injury he may sustain.

But aside from these considerations, Watson had full knowledge of the unsafe condition of the stone pile when he directed the plaintiff to go on it and select stones for the masons. It is true that the plaintiff did not tell him the pile was shaky, and this seems to have been the controlling reason of the court for holding that "Watson was ignorant of its condition. The plaintiff’s testimony, which for the purposes of this case must be taken to be true, shows what occurred between him and Watson immediately before the pile of stone fell. The plaintiff testified: “ I saw the pile of stone was not very safe. Mr. Watson came and says, ‘ Why ain’t you fellows working there ? ’ The stonemason talked to Mr. Watson and he says, ‘ Why, we ain’t gpt no stone.’ So Mr. Watson came to me and says, ‘ What are you doing, Nick ? ’ Kind of real sharp, ‘Why don’t you get stone for the stonemasons, Nick? ’ I says,‘Mr. Watson, that pile of stone looks to me not very safe.’ He says, ‘ The pile of stones is all right, Nick, go get another stone.’ I says, ‘ If you want me to go on that pile of stones I want that car out of my way.’ He says, ‘ Go on, Nick, go and get another stone, never mind the car. The engine will come and take that car out of your way.’ I went on the stones. Mr. Watson gave me the order to go on the pile and walked away.” Two of the masons employed on the wall at the time of the accident, and called as witnesses, corroborated the plaintiff as to what occurred at the interview between him and Watson, and testified that the height of the stone pile made it unsafe and that the plaintiff wanted to move the car with a bar and that Watson told him to let it alone, “that the shifter would move it directly.” They further testified that if the pile became dangerous, the only thing the plaintiff could do would be to jump toward the siding. Watson, therefore, was fully advised as to the dangerous condition of the stone pile, and observation should have disclosed to him the danger of permitting the car to stand on the track.

Nor do we agree with the learned trial judge that the facts of the case are such as to warrant him in holding the plaintiff guilty of contributory negligence as a matter of law. The learned judge’s reasons for declaring the plaintiff guilty of negligence are stated by him as follows : “ He (plaintiff) had knowledge, therefore, that the oar was in his way in case he had to make his escape. He knew also that the pile was shaky. Yet with that knowledge, which was not conveyed to Mr. Watson at all, with a pile of stone sixty or sixty-five feet long, as he testified, and eight or ten feet wide, he selected the most dangerous part to go and look for the stone, without any orders to do so by Mr. Watson—lie went in on that long pile just at the point where the ear was standing, and with knowledge that the pile was shaky.” The plaintiff’s duties required him to go on and over the stone pile until he found a stone of the right dimensions for use of the mason who asked for and was to lay it. Before finding the proper stone, he might be compelled to walk over the entire pile. Nothing short of doing so, would excuse him for not getting a stone for the masons engaged in the construction of the wall. As one of the witnesses testified the plaintiff had to go up on the pile, or on the slant of it, wherever he could get a stone of the dimensions wanted. He, therefore, would not have been justified in confining his labors to any part of the pile in order that he might escape the dangers possibly attendant upon selecting a stone in another part of it. Hence, at the time he was injured, he was where the performance of his duties required him to be. The orders of Watson did not command him to go to the safe part of the pile and select a stone, as the learned judge seems to think. On the contrary, they directed him to go to any part of the pile, including that in front of and near the car. Watson said : “ Go on, Nick, go on and get another stone, never mind the car. The engine will come and take that car out of your way.”

We do not think it can be held as a matter of law that the danger to the plaintiff was so obvious and imminent that he should have refused to obéy the instructions of Mr. Watson and declined to perform the service. Watson assured the plaintiff the stone pile was all right and “that the shifter would move it (car) directly.” From this language he had the right to infer that Watson would act promptly and have the car removed and relieve him from the danger of it being on the side track. The plaintiff had been engaged on the stone pile for some time prior to the accident, and having so far escaped injury, he doubtless believed that by the exercise of extraordinary precaution he might be safe until the car was removed. It was, therefore, for the jury to determine whether under the facts disclosed by the evidence the danger was so evident and imminent that he should have refused to obey the orders of his employer and have declined to continue his work, or whether he was justified in relying upon the judgment of his employer as to the safety of the stone pile and the promise to remove the car.

The judgment of the court below is reversed and a procedendo is awarded.