author: Mr. Justice Elkin,

text:
    Adams’s Estate.

      Wills — Probate— Undue influence — Presumption—Evidence—Issue devisavit vel non.

    Where, on an application for an issue devisavit vel non, the evidence shows that the testatrix, although possessed of testamentary capacity, was aged, infirm bodily, and with mental faculties impaired, a presumption of undue influence is raised against a stranger to the blood of the testator who was instrumental in having executed a will under which he was to have an executorship, also a trusteeship of an estate of about $75,000 for a period of years, and a possible residuary interest in the whole estate.
    In such a case, if the contestant offers sufficient evidence of undue influence to support a finding of the jury to that effect, the court cannot refuse an issue devisavit vel non because of evidence offered by the proponent tending to raise the presumption against him, and to shift the onus. Such evidence is for a jury.
    Argued Jan. 20, 1908.
    Appeal, No. 127, Jan. T., 1907, by Mary A. Taylor, from decree of O. C. Phila. Co., Ocfc. T., 1905, No. 447, refusing an issue devisavit vel non in Estate of Mary E. Adams, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Appeal from register of wills' refusing to admit a will to probate.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was decree reversing the action of the register of wills.

      Alex. Simpson, Jr., with him Emanuel Furth and Jacob Singer, for appellant.
    In every aspect of the case the interest taken by Croskey, decedent’s confidential adviser, in view of the conceded facts that the decedent was old and mentally weak to such an extent as to raise a doubt as to her testamentary capacity, and that he wrote the will and suggested the gift to himself, it was “ substantial ” in every sense of the word, and raises a presumption of undue influence under the authority of Cuthbertson’s App., 97 Pa. 168 ; Wilson’s App., 99 Pa. 545 ; Armor’s Estate, 154 Pa. 517 ; Scattergood v. Kirk, 192 Pa. 263 ; Wilson v. Mitchell, 101 Pa. 495 ; Billinghurst v. Vickers, 1 Phillimore, 187 ; Tomkins v. Tomkins, 1 Bailey (S. C.), 92; In re Welsh, 1 Redfield (N. Y.), 238 ; Drake’s App., 45 Conn. 9 ; In re Cahill, 74 Cal. 52 (15 Pac. Repr. 364); Vanvalkenberg v. Vanvalkenberg, 90 Ind. 433 ; Griffin’s Est., 9 Pa. Dist. Rep. 248.

      Dimner Beeber, with him J. Levering Jones, for appellees.
    The issue was properly refused : Graham’s App., 61 Pa. 43 ; Yorke’s Est., 185 Pa. 61 ; Boyd v. Boyd, 66 Pa. 283 ; Linton’s App., 104 Pa. 228.

      April 20, 1908 :
   Opinion by

Mr. Justice Elkin,

The appellant is the only daughter and next of kin of the testatrix, the admission of whose will to probate is being contested. She filed a caveat before the register, objecting to the admission of the will to probate on the grounds of undue influence, and asked for an issue devisavit vel non in order to have the question determined in the court of common pleas. The register aftér hearing awarded the issue, and the proponents appealed to the orphans’ court where the case was heard upon the evidence submitted before the register of wills. The trial judge decided in favor of the validity of the will and reversed the register. Exceptions were then filed and the case was argued before the court in banc which dismissed the exceptions to the findings of the trial judge and a decree was entered directing the register to admit the will to probate. It is from this decree that the appeal now pending was taken. The real question involved in the case is whether the executor, Croskey, who was also made a trustee under the will, had such a substantial interest as to shift the burden of proof upon the proponents to show that the testatrix had a full understanding of the disposition made of her property by the will and of the nature and extent of the trust relation created in favor of Dr. Croskey and benefits derived by him.

It appears from the testimony that the testatrix two years prior to the making of her will had a stroke of paralysis which weakened her mentally and physically, and after being thus stricken, she became hysterical, melancholy, nervous, suspicious of her servants, fearful she might end her days in the almshouse, would cry out without reason, was peevish and childish, continually laughing and crying. An attending physician testified that “ her mind was enfeebled but not unsound.” Under these circumstances the learned trial judge was reasonably justified in reaching the conclusion “ that Mrs. Adams was possessed of testamentary capacity,” and certainly did not overstate the facts when he said, “ Her mind from June, 1902, up to the time of her death was enfeebled as a result of her illness, and in a condition easily susceptible to flattery, persuasion or influence.”

The general rule applicable to such cases is that although the evidence is not sufficient to establish testamentary incapacity, as the court below has found in the present case, but does show bodily infirmity and greatly weakened mentality, a presumption of undue influence arises where a stranger to the blood of the testator, standing in a confidential relation, is benefited by the will which he has been instrumental in having executed. We do not understand that this rule is questioned by the learned counsel for appellee, but it is argued with much force that in order to make the rule operative the confidential adviser must have benefited to a considerable extent or in a substantial manner. In other words, in order to shift the burden of proof the benefit derived from the will must be a large, or considerable, or substántial interest. It is true in some of our cases such expressions have been used, and in Linton’s Appeal, 104 Pa. 228, it was held that the appointment as executor with the right to receive the usual commissions did not constitute such an interest. In no case, however, has the court undertaken to exactly define the character of benefit or the extent of interest the confidential adviser must receive in order to shift the burden of proof, and indeed, it may be said no hard and fast rule can be laid down. Something must depend upon the circumstances of each particular case. What the law requires is that a person acting as confidential adviser to a testator, bodily infirm and mentally weak, must act in the utmost good faith, and if he is benefited in a legal sense by the will procured by him, he must assume the burden of showing deliberation, volition and understanding on the part of the maker of the will. The benefit derived by Dr. Croskey, the confidential adviser in the present case, under the will was, first, an executorship; second, a trusteeship by means of which he has the control, or partial control, of the entire estate, amounting to perhaps $75,000, for a period of years; and third, a possible residuary interest in the whole estate. Certainly all of these things gave him such a substantial interest as to bring him within the operation of the rule which provides that where a testator, although possessed of testamentary capacity is aged, infirm bodily, with mental faculties impaired, as against a confidential adviser who is a beneficiary under the will, there is a presumption of fact that undue influence was brought to bear on the mind of the testator and the burden is on the beneficiary to rebut the presumption: Wilson v. Mitchell, 101 Pa. 195; Armor’s Estate, 151 Pa. 517.

It is urged that even conceding the burden of proof was shifted in the present case, it was fully rebutted by the testimony introduced before the register, which it is alleged was not sufficient to support a- finding by a jury, even if they should so find, that the testatrix had been unduly influenced by her confidential adviser, and because the testimony must be deemed insufficient for this purpose an issue devisavit vel non should not be awarded. We do not concur in this view of the situation. In Boyd v. Boyd, 66 Pa. 283, Mr. Justice Shakswood, in discussing the rule applicable to this class of cases, said: “ Let us see, then, if there was any evidence in this case which raised this presumption and shifted the onus. If there was, it was a question for the jury.” As hereinbefore stated, we think under the facts in the present case the presumption of undue influence arose and the testimony, if believed, is sufficient to support'a finding of a jury to that effect.

Decree reversed, petition reinstated and issue devisavit vel non awarded.


source: Caselaw Access Project

author: Mr. Justice Stewart,

license: Public Domain

text:
    Metzger v. Lehigh Valley Trust & Safe Deposit Company, Appellant.

      Trusts and trustees — Contract of trustee — Wrongful use of trust money— Illegal contract — Mortgage—Unrecorded defeasance — Deed.
    A trustee not specially authorized cannot go beyond the line of duty prescribed by law, and work changes of property from money into land, or from land into money. One who does so, not only takes upon himself the hazard of loss, but to this extent he commits a breach of the trust. Neither a trustee nor any one in privity with him can acquire any right by a breach of the trust.
    Where a testatrix devises and bequeaths her estate to a trustee to convert the same into cash and to pay the income therefrom to her brother for life, and after his death the principal to his children, and the trustee uses a portion of the trust money to pay off incumbrances on the personal real estate of the brother, takes from him a straight deed of the real estate, and in an unrecorded writing agrees to reconvey it on payment of all advances with interest, such an agreement cannot be enforced, because it is an unauthorized act of the trustee.
    In such a case the trustee acquired no beneficial interest under the deed, and as a result could convey none. He took the title as trustee, that is to say, for the benefit of those he represented; and not only was it beyond his power to subject to disadvantage by his own act the parties he represented, but the actual ownership of the property having once vested in the estate, it was beyond his power to dispose of it. A purchaser under a voluntary deed from the trustee would be charged with notice of the trust and equity would fasten the original trust upon the property in his hands for the security of the real owners.
    Argued Feb. 5, 1908.
    Appeal, No. 29, Jan. T., 1908, by defendant, from judgment of C. P. Lehigh Co., Jan. T., 1907, No. 14, on case tried by the court without a jury in suit of Thomas B. Metzger v. Lehigh Valley Trust & Safe Deposit Company, Trustee of the Estate of Maria C. Grim, deceased.
    Before Fell, Brown, Mestrezat, Potter and- Stewart, JJ.
    Reversed.
    Assumpsit on a written contract.
    Before Trexler, P. J.
    The case was tried by the court without a jury.
    The facts appear by the opinion of the Supreme Court.

      Error assigned was in entering judgment for plaintiff in the sum of $9,900.

      Edward Harvey, with him Reuben J. Butz, for appellant.
    The unrecorded agreement was a defeasance within the meaning of the act of assembly : Payne v. Patterson, 77 Pa. 134 ; Jaques v. Weeks, 7 Watts, 261 ; Simmons v. West Virginia Ins. Co., 8 W. Va. 474 ; Lippincott v. Tilton, 14 N. J. Law, 361 ; Friedley v. Hamilton, 17 S. &. R. 70 ; Mfrs’ & Mechanics’ Bank v. Bank, of Penna., 7 W. & S. 335 ; Guthrie v. Kahle, 46 Pa. 331 ; Nugent v. Riley, 42 Mass. 117 ; Miller v. Quick, 158 Mo. 495 (59 S. W. Repr. 955); Harrison v. Trustees of Phillips’ Academy, 12 Mass. 455 ; Flagg v. Mann, Fed. Cas. No. 4,847.
    The Act of June 8, 1881, P. L. 84, relating to the recording of defeasances, applies to deeds for real estate only : Huston v. Regn, 184 Pa. 419 ; Brown v. Beecher, 120 Pa. 590 ; Goodwin v. McMinn, 193 Pa. 646 ; Molly v. Ulrich, 133 Pa. 41 ; Rathfon v. Specht, 18 Pa. C. C. Rep. 19 ; MacDonald v. Sturtevant, 195 Pa. 644 ; Whelen v. Whelen, 11 Pa. Dist. Rep. 14 ; Weil v. Scott, 12 Pa. Dist. Rep. 463 ; Sterck v. Germantown Homestead Co., 27 Pa. Superior Ct. 336 ; Lohrer v. Russell, 207 Pa. 105 ; Sankey v. Hawley, 118 Pa. 30 ; Rockhill’s Est., 29 Pa. Superior Ct. 28 ; Moorhead v. Scofield, 111 Pa. 584 ; Grove v. Kase, 195 Pa. 325 ; O’Donnell v. Vandersall, 213 Pa. 551 ; Guaranty Co. v. Linton, 213 Pa. 105 ; Crotzer v. Bittenbender, 199 Pa. 504.
    The trustee, not having sold the real estate conveyed to it as the representative of the Grim estate, could not be held liable for the difference between the original purchase price and what the plaintiff could have got from a purchaser of his own selection. The title to the property is in the Grim estate. It has not been converted. It is doubtful whether it could be, without the consent of the life tenant. All of the rents, income and profits of the whole estate are payable, under the will of Maria O. Grim, deceased, to the plaintiff for life. Merely because the trustee refuses to convey, at the request of the plaintiff, can it be possible that the estate must respond in damages for the difference between the original debt and consideration and the.sum for which the plaintiff could have sold it ? If the estate could be depleted in this manner, it might not reach the remaindermen named in the will; it would be used up in damages for breach of contract.
    There was no authority in the trustee to bind the estate in any contract sounding in damages. It did all the law required by taking a deed absolute on its face and giving the written defeasance. If that defeasance had been executed as required by .the statute, the transaction would have been clear. But the plaintiff omitted to have his paper acknowledged and recorded. Por this failure on his part he seeks to avoid the statute by suing for damages. This he cannot do: Molly v. Ulrich, 133 Pa. 41.

      Arthur G. Dewalt, for appellee.
    The contention of the appellee is that the paper of Hovember 8, 1893, is not a defeasance, but is simply an agreement to pay unto Thomas B. Metzger, any sum of money which the trust company might receive upon the sale of the property, above the sum of $7,100.
    This case is controlled by Moran v. Munhall, 204 Pa. 242.
    See also Bank of Commerce v. Peace, 27 Pa. Superior Ct. 643.
    Where the intent is merely to pass the property as a pledge for the payment of a debt, the transaction may be regarded as a mortgage; but not so when the grantee has the power to sell the premises, though the proceeds are to be applied on the indebtedness of the grantor : Danzeisen’s Appeal, 73 Pa. 65 ; Lance’s App., 112 Pa. 456.
    April 20, 1908 :
   Opinion by

Mr. Justice Stewart,

By her last will and testament Maria C. Grim disposed of her residuary estate as follows: “ And as to the rest and residue of my said estate not otherwise disposed of, I give devise and bequeath unto the Lehigh Yalley Safe Deposit and Trust Company of Allentown, in trust nevertheless, that the interest on the principal sum after the same is converted into cash, be paid annually unto my brother, Thomas B. Metzger, during his natural life and immediately after his death, then said principal sum with accrued interest, if any, unto his surviving children share and share alike.” The entire estate having been converted by the executors, under the authority given them in the will, the funds appropriated to the residuary estate passed to the trustee. Thomas B. Metzger, the life beneficiary, was the owner of a house and lot of ground in the city of Allentown, which later on was about to be sold under adverse proceedings, in satisfaction of certain liens of record amounting to upwards of $7,000. In order to avoid a possible sacrifice of the property at such a sale, the defendant company, at the request of the plaintiff, advanced out of the trust funds in its hands sufficient money to satisfy the liens and costs incident. The understanding of the parties with respect to this transaction is fully expressed in a written article of agreement, signed and sealed by both, bearing date November 8,1893. Following a recital in the agreement of the terms of the trust created by Maria O. Grim, and the facts which induced the request to the trustee to apply the funds of the estate for the purpose indicated, Metzger covenants to sell and convey .to “The Lehigh Talley Trust and Safe Deposit Company, Trustee of the Estate of Maria O. Grim, deceased,” the premises owned by him, subject of the liens referred to, for the consideration of $7,100; the title to such property to be “ held for the uses and purposes mentioned and provided in the last will and testament of the said Maria O. Grim, deceased.” The agreement contains this further provision: And it is distinctly understood and agreed that if the said Thomas B. Metzger shall at any time during his life conclude to have the said real estate sold by the said Trustee, that the same shall be sold, and after deducting the purchase money and all claims for taxes, insurance and repairs, the said Trust Company covenants, promises and agrees to pay the surplus, if any, to the said Thomas B. Metzger absolutely. It is the purpose of this agreement to secure to the said Thomas B. Metzger any sum realized from a sale and conveyance of such real estate by the said Trustee over and beyond what is due and owing the said estate for purchase money, taxes, insurance and repairs. And the said Trust Company furthermore promises and agrees that it will sell and convey such real estate to any purchaser or purchasers obtained and secured by the said Thomas B. Metzger, and upon his request, provided always that no sale shall be consummated that will not fully indemnify and secure such Trustee for the moneys invested therein.” Contemporaneously with the agreement Metzger conveyed the property to the trust company, “ Trustee of the- estate of Maria C. Grim, deed.,” by deed in fee simple containing the usual covenants. Subsequently, in December, 1905, thirteen years after the original transaction, Metzger having obtained a bid of $17,000 for the property, and having made tender of the amount bid, demanded of the trust company a conveyance of the premises to the proposed purchaser. The trust company refused to comply on the ground that the absolute and indefeasible title to the property was in the estate of Maria C. Grim. Thereupon plaintiff brought this action to recover what would have-been due him under the agreement had the property been sold in accordance with its terms. The facts were agreed upon, and the case submitted to the court without a jury. The controlling consideration is the legal effect of the agreement and deed of November, 1893. Two conflicting views as to the nature and character of the transaction were advanced. The defense rested on the position that the agreement and deed were parts of a single transaction ; that the agreement was a defeasance and that, taken together, deed and agreement constituted a mortgage. The plaintiff’s contention was that inasmuch as it was nowhere provided that there should be a reconveyance of the property to the grantor upon performance of conditions, and no purpose of securing an indebtedness was expressed, the transaction could not be given the effect of a mortgage, and that, instead of being a defeasance, the agreement was a declaration of trust defining the uses by which the property was to be held by the grantee. If the construction insisted upon by the defendant be the correct one, clearly the plaintiff is without cause of action in any form, since, if a mortgage, the fact that the agreement of defeasance was not recorded within the statutory period leaves the deed unaffected by it, and the grantee holds absolute title. So much is conceded. If the construction advanced by plaintiff, and accepted by the learned judge on the trial of the case, be correct, we think it equally clear that it cannot support the present action. We assume its correctness only, however, to show its insufficiency for plaintiff’s purpose. The action is against the trust company as trustee of the estate of Maria O. Grim, deceased, and the effort is to charge this estate with liability. The suit is not brought to recover an indebtedness for which this estate was originally liable, or one which was properly and legally incurred as incidental to or necessary in connection with its ordinary management. The use of trust money for the purchase of plaintiff’s real estate was an unauthorized act on the part of the trustee ; it was without warrant in the instrument creating the trust, was not sanctioned by the court, and was not required by any exigency affecting the trust’s estate. Under the terms of the trust, the trustee’s duty was to invest the money that resulted from a conversion of the estate by the executors. This implied a power to reinvest as occasion might require, but only in the same class of securities. “ It is clear,” says Sargeant, J., in Kaufman v. Crawford, 9 W. & S. 131, “ that a trustee, not specially authorized, cannot go beyond the line of duty prescribed by law, and work changes of property from money into land or from land into money.” One who does so not only takes upon himself the hazard of loss, but to this extent he commits a breach of the trust. In saying this, no imputation of bad faith on the part of the trustee here is implied. “What it did in the matter was solely with the view to advance and protect the interest of the life beneficiary of the trust, with no expectation of the slightest advantage to itself; but it was nevertheless a use of trust money for a purpose wholly outside the trust, and in connection with property not part of the trust estate. The purchase being an unauthorized act, one which the cestuis que trustent upon the termination of the trust could wholly reject, the contract for the purchase could impose no liability whatever upon the trust estate in connection therewith. It is a familiar principle that neither a trustee nor any in privity with him can acquire any right by a breach of the trust. Hot only so, but the contract, so far as it called for a conveyance by the trustee of the property to any third party, was unenforcable. The offer to purchase by this third party was conditioned, of course, upon a sufficient conveyance being given, and yet it must have been known by the parties from the beginning, that it was not in the power of the trustee to make such conveyance. To the extent at least of $7,900, the entire consideration mentioned in the deed, the property was the property of the estate of Maria O. Grim, deceased. It was conveyed to the defendant as trustee of this estate. The trustee acquired no beneficial interest under the deed, and as a result could convey none. He took the title as trustee, that is to say, for the benefit of those he represented ; and not only was it beyond his power to subject to disadvantage by his own act the parties he represented, but the actual ownership of the property having once vested in the estate; it was beyond his power to convey it. A purchaser under a voluntary deed from the trustee would be charged with notice of the trust, and equity would fasten the original trust upon the property in his hands for the security of the real owners. Must the plaintiff then submit to having his property absorbed by this trust estate, of which he was the life beneficiary, at less than half its present value, and get no equivalent for that which he stipulated should be his on a resale ? This is not for us to answer, and we suggest nothing in that connection. If he be remediless, the fault is not with the law, but results from his misapprehension or disregard of what the law requires. He knew he was dealing with a trustee; it was his business to know that the trustee could impose no such liability as that he here seeks to enforce upon the trust estate in his hands ; and it was his business to know further that the trustee of itself could not convey real estate once vested in the trust. There are provisions in the agreement which quite as clearly show it to be an unauthorized undertaking on the part of the trustee as those we have referred to; but it is unnecessary to discuss them severally, since those referred to are quite sufficient to condemn it as ultra vires. Nor are we called upon to say whether the transaction between plaintiff and the trustee was in effect a declaration of trust or a mortgage. If either, it was ineffectual to charge liability upon this trust estate, in the one case because the agreement was not recorded; in the other, because it was an unauthorized act of the trustee. The effect of the judgment in the court below, if allowed to stand, would be to ratify an unauthorized purchase by the trustee, to make the house purchased by the trustee a specific item of the trust estate property, and thereby deprive the cestuis que trustent of their unquestioned right to reject and repudiate the transaction when they come into possession of their estate. This cannot be allowed.

Judgment is reversed.


text:
    Bilotta v. Media, Middleton, Aston & Chester Electric Railway Company, Appellant.

      Negligence — Street railways — Notice of danger — Individual peculiarity of plaintiff.

    Where the inability of a party injured owing to some individual peculiarity of his, unknown to the defendant, to understand what to the ordinary person would be a sufficient warning, is the. immediate and proximate cause of his injury, the accident is to be referred to the party's misfortune, and not to the negligence of the defendant simply because of failure to give effectual warning.

      In an action against a street railway company to recover damages for personal injuries it appeared that before the plaintiff was injured a tree had fallen across defendant’s tracks, and had dragged down with it a number of telephone wires. These wires had become tangled in the branches, and some of them had become charged from contact with the trolley wires. Cars were run up from both directions to the tree, and the passengers were transferred from one car to the other so as to make the continuous journey. The plaintiff, an Italian, who could not speak English, was warned by»the motorman on the car on which he was a passenger to remain seated in the car until the other car had arrived, and that it was dangerous to cross over. Plaintiff left the car and started to cross over, when he was warned by the defendant’s superintendent, both by words and movements, to stay back. He disregarded the warning and came in contact with a wire and was injured. Defendant presented this point: “ There was no obligation on the part of the defendant company to warn the plaintiff in Italian, and if the jury find that the warning was such as to indicate danger ahead to any man of ordinary intelligence, plaintiff cannot recover.” This point was answered as follows: “We will say that if from any motion or act of the defendant, he, the plaintiff, understood the warning, then he cannot recover. But we cannot say that if they warned him in a language that he did not understand, and that he did not heed it, that it would be contributory negligence for him to pay no attention to it; but we do say to you that the point is affirmed if he understood it, though he might not have understood the language, if he understood the motions and directions not to go on, understood that they were dangerous.” Held, (1) that the answer to the point was in effect a rejection; (2) that the point called for an unqualified affirmance with respect both to the question of the negligence of the defendant, and to the contributory negligence of the plaintiff.
    Argued Feb. 10, 1908.
    Appeal, No. 218, Jan. T., 1907, by defendant, from judgment of O. P. Delaware Co., June T., 1905, Ho. 94, on verdict for plaintiff in case of Guiseppe Bilotta v. Media, Middleton, Aston & Chester Electric Railway Company.
    Before Mitchell, C. J., Bkown, Mesteezat, Elkin and Stewaet, JJ.
    Reversed.
    Trespass to recover damages for personal injuries.
    Before Johnson, P. J.
    The circumstances of the accident are stated in the opinion of the Supreme Court.
    Yerdict and judgment for plaintiff for $1,548.25. Defendant appealed.

      Error assigned among others was answer to defendant’s tenth point, both point and answer being quoted in the opinion of the Supreme Court.

      David Wallerstein, with him E. A. Howell, for appellant.
    The defendant was under no duty to warn the plaintiff in Italian : Lobstein v. Sajatovich, 111 Ill. App. 654 ; R. R. Co. v. Feller, 84 Pa. 226.

      Jos. II. HmJcson, for appellee.
    When a passenger has to change cars the street railway company must furnish a safe passageway between the cars : Sowash v. Consolidated Traction Co., 188 Pa. 618.
    The answer to the tenth point was proper.
    Where the degree of care varies according to the circumstances it is a question for the jury : Gates v. Railroad Co., 154 Pa. 566 ; Schilling v. Abernethy, 112 Pa. 437.
    April 20, 1908 :
   Opinion by

Mr. Justice Stewart,

The plaintiff boarded a car of the defendant company at Chester to go to a point on its Media line beyond the intersection at Folsom. It so happened that about an hour before, a large tree, uprooted by a storm, had fallen across the track and the public road alongside, at a point between Chester and Folsom, temporarily preventing through travel in the same car. To meet conditions existing while the work of removal was going on, the company ran its cars from Chester to the place of obstruction, then back again to Chester; and in the same way ran the cars from Folsom to the place of obstruction, and then back, permitting an exchange and transfer of passengers at the place of interruption. The fallen tree had stood north of the track, and beyond two telephone lines, one of which belonged to the defendant company and the other to an independent company. In its fall the tree carried the wires of these lines down with it and across the trolley wire. Some of the wires thus thrown down were broken, some were tangled in the branches of the trees, and all to greater or less extent were carried over the whole space covered by the debris. When the car in which the plaintiff was traveling had reached the point of obstruction, plaintiff alighted, and while attempting to cross over to where the other car was, or where it was expected, a distance of about seventy-five feet, he encountered a broken wire, which he says was concealed from his view, and received the shock which occasioned his injury. On the trial of the case the effort was to show negligence on the part of the defendant, in failing to adopt proper measures to secure the safety of its passengers, in connection with their transfer from one car to the other beyond the obstruction upon the track and road. True, this is not the negligence charged in the statement of the cause of action, but it is what was set up on the trial, what was defended against there, and what is insisted upon here. The situation occasioned by the falling of the tree was unusual and unexpected, but with electric wires scattered in such confusion, in the branches of the trees, upon the ground, and in some places imbedded in the ground, it was a situation that manifestly exposed to danger anyone attempting to cross over the debris, and it became the plain duty of the company not only to see that there was a safe way of transfer from one car to the other, since it had invited such transfer, but it was clearly its duty to warn passengers of the danger of attempting to pass over or through the obstruction before the wires had been disconnected or removed. Conceding that a safe way did exist by avoiding entirely the obstruction and passing around it — a condition which must have been obvious — the question remained, did the company do what it should have done by way of warning the passengers of the danger of attempting to cross over through the brush ? The brush itself, on that part of the public road where plaintiff met his injury, offered no serious impediment to travel, and the only source of danger there was from the scattered wires. Of this danger it was the duty of defendant to give warning ; its employees there engaged were fully informed as to the situation, for several of them testified that they had seen sparks of fire shooting from the debris, smoke and flame. It is not a question of what the defendant did, or what it failed to do, in giving warning to other passengers ; in this matter the plaintiff stands in a class by himself, since it is in evidence that special effort was made to caution and warn him, even to the extent of directing him to desist from his efforts to cross over when he attempted so to do. If the warning was given him in such a way that he must have understood it, and he gave it no heed, he alone would be responsible for the consequences of his daring. The motorman testified that when he, the plaintiff, was about to leave the car, then about twelve feet from the fallen tree, to cross over, he told him to remain seated, that the car he intended to take on the other side had not yet arrived, and that it was dangerous to cross over there. Defendant’s superintendent was the first to alight from the car, and the plaintiff followed next. The former proceeded to where the workmen were employed in cutting the tree, and upon looking around saw the plaintiff approaching directly at a distance of about five yards. He testified that he called to the plaintiff to stay back, and indicated like direction by movements. Had these warnings been heeded, the accident most likely would have been avoided. To escape the effect of this-testimony it was argued that plaintiff, being an Italian, unfamiliar with our language, did not understand the warning given. The purpose of defendant’s tenth point was to meet this aspect of the ease. It was as follows : “ There was no obligation on the part of defendant company to warn the plaintiff in Italian, and if the jury find that the warning was such as to indicate danger ahead to any man of ordinary intelligence, the plaintiff cannot recover.” This point called for an unqualified affirmance with respect to both questions raised, the negligence of the defendant and the contributory negligence of the plaintiff. If the warning was such as would indicate danger ahead to anyone of ordinary intelligence, a disregard of it would unquestionably convict the party disregarding it of contributory negligence. If the defendant’s servants knew, or had reason to believe, that the person they were attempting to warn in English was ignorant of that language, they would have come short of their duty had they done nothing more; but without anything to indicate peculiarity in the plaintiff, distinguishing him from the ordinary traveler, defendant’s servants had a right to presume that what would be notice to the ordinary traveler would be notice to him. His inability to understand English required greater caution on his part in advancing, but added nothing to the duty of the defendant, except as such fact was brought to its notice. Had the plaintiff been deaf, it would hardly be contended that failure to spell out danger to him. according to the manual of mutes would have been negligence. With no greater reason can the failure to address the plaintiff in his own language be accounted negligence. While the learned trial judge in terms affirmed the point presented, he so qualified it that his answer was in effect a rejection of the point. His language was : “ We will say that if from any motion or act of the defendant he, the plaintiff, understood the warning, then he cannot recover. B ut we cannot say that if they warned him in a language that he did not understand, and that he did not heed it, that it would be contributory negligence for him to pay no attention to it; but we do say to you that the point is affirmed if he understood it, though he might not have understood the language, if he understood the motions and directions not to go on, understood that they were dangerous.” The point was directed to both questions in the case — the negligence of the defendant and the contributory negligence of the plaintiff. We have considered it mainly in connection with the first, upon which it had immediate and direct bearing. Where the inability of the party injured, owing to some individual peculiarity of his, unknown to the defendant, to understand what to the ordinary person would be a sufficient warning, is the immediate and approximate cause of his injury, the accident is to be referred to the party’s misfortune, and not to the negligence of the defendant, simply because of failure to give effectual warning. How far the jury was influenced by the court’s ruling in this peculiar manner of course we cannot say. It is enough to know that the point had a direct bearing upon a material question in the case, and should have received an unqualified affirmance. Apart from this the record shows no error. The case was one for the jury on both questions raised, because of conflicting evidence. The tenth assignment of error is sustained ; the other assignments are overruled.

The judgment is reversed and a venire facias de novo awarded.


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    Schneider, Appellant, v. Philadelphia Quartz Company.

      Negligence — Master and servant — Fellow servant — Bisk of employment —Danger as work progresses — Scaffold.
    When the work of a servant is of such a character that the environment of the servant as the work progresses necessarily undergoes frequent changes, the m'aster is not bound to protect the servant engaged in it against dangers resulting from such changes. It is sufficient if he provide against such dangers as may possibly or probably arise and give the workmen the means of protecting themselves.
    A servant who has had full opportunity of knowing the danger and risk of his ^employment, and makes no complaint to his employer as to the danger to which he is exposed, but continues to work voluntarily notwithstanding, assumes the risk of injury from the dangers to which he is exposed.
    In an action by a man employed to carry bricks and mortar to masons on a scaffolding, against his employer, to recover damages for personal injuries, a nonsuit is properly entered, where the plaintiff testifies that the scaffolding where he had been at work was of a width of five or six boards each a foot wide; that about an hour before the accident occurred a fellow workman removed three of the boards, and carried them to the other end of the scaffold; that he saw him do it, and that for an hour thereafter he worked on two boards instead of the five or six on which he had been working; and that as a result of the insufficiency of the space he fell in the course of his work, and was injured.
    In such a case the defendant was under no obligation to meet the changing conditions of danger as the work progressed; and the plaintiff assumed the risk in continuing the work without complaint, after he knew of the obvious danger.
    Argued Feb. 10, 1908.
    Appeal, No. 344, Jan. T., 1908, by plaintiff, from order of O. F. Delaware Co., June T., 1906, No. 195, refusing to take off nonsuit in case of Joseph Schneider v. Philadelphia Quartz Company.
    Before Mitchell, C. J., Bbown, Mestbezat, Elkin and Stewabt, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    The opinion of the Supreme Court states the facts.
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was refusal to take off nonsuit.

      John Dell. White, for appellant.
    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: Schiglizzo v. Dunn, 211 Pa. 253 ; Lillie v. American Car & Foundry Co., 209 Pa. 161 ; Garrity v. Penna. Casting, etc., Co., 17 Pa. Superior Ct. 623.
    An employee must not only know the circumstances, but he must also appreciate the risk, before he will be held to have assumed it: Doyle v. Pittsburg Waste Co., 204 Pa. 618 ; Cole v. Wehn, 6 W. N. C. 408 ; Schall v. Cole, 107 Pa. 1 ; Cougle v. McKee, 151 Pa. 602.

      J. B. Rcurmum, for appellee.
    While it is the duty of the employer to provide a reasonably safe place to work, and to maintain it in a reasonably safe condition, still, it is the law that if the employee knows the place is unsafe and continues at his work without objection, he assumes the risk and cannot recover if he is injured by reason of a defect of which he has knowledge : Talbot v. Sims, 213 Pa. 1 ; Brownfield v. Hughes, 128 Pa. 194 ; Nuss v. Rafsnyder, 178 Pa. 397 ; Vant v. Roelofs, 217 Pa. 535 ; Miller v. American Bridge Co., 216 Pa. 559.
    April 20, 1908 :
   Opinion by

Mr. Justice Stewart,

The plaintiff’s statement charged, in very general terms, a negligent, unsafe and unworkmanlike construction of the scaffolding from which the plaintiff fell. What it was that actually occasioned the fall from which plaintiff’s injuries resulted, can be gathered only from the evidence. The defendant company, for the purpose of building higher the brick walls of its manufacturing plant, had constructed a scaffolding about the building for the use of the workmen thus employed. The plaintiff had been engaged for ordinary labor, but, three days before the accident occurred, he had been directed to attend the masons in their work, as carrier of bricks and mortar. This required him, to carry these materials from the point where they were delivered on the scaffold, to the place where the masons were engaged on the wall, wherever this might be at the time. At*the point where the masons happened to be then engaged, the flooring of the scaffold was allowed a width, of five or six boards, each a foot wide, unfastened ; and at the point where the mortar and bricks were delivered on the scaffold, the flooring was allowed to be of corresponding width, while between these points, for a distance of about sixteen feet, the run-way connecting was of a width of three boards. This was the situation when the plaintiff entered upon his work, and it was continued until the afternoon of the third day, when, about an hour before the accident, a fellow workman with the plaintiff removed from the end of the scaffold at the point where the masons were at work on the walls, three of the floor boards, and placed these at the other end of the run-way. This left a platform but two boards in width at the point where the plaintiff delivered the bricks and mortar. "With no more standing room at that point, where freedom of movement was required in delivering the bricks and mortar upon the wall above, and receiving back the empty bucket, the insufficiency of the floor space at that point is obvious. What happened is just what might have been expected. Plaintiff had discharged his load on the wall, and was in the act of receiving his bucket back from the masons, when the board on which his right foot rested sagged, and the one upon which his other rested, slipped from its place, with the result that the plaintiff fell outside the flooring to the ground below, a distance of twenty-five feet. Manifestly the place where the plaintiff was working at the time of the accident was an unsafe one, and someone was guilty of negligence in leaving it in that condition in view of the kind' of work that was required of one occupying it. But how can such negligence be attributed to the defendant company ? It is not a question of defective or negligent construction of the scaffolding, except in connection with that part of it that occasioned plaintiff’s fall; and the inquiry must be confined to the insufficiency of the floor at that particular point. That it was reasonably safe until the width had been reduced by the removal of three boards at that point is admitted by the plaintiff. There can be no question as to his testimony in regard to the fact that the change was made, or the effect produced. Tie testified distinctly that Bruner, a fellow workman, about one hour before the accident occurred, removed the three boards and carried them to the other end of the scaffold; that he saw him do it, and that for an hour thereafter he worked on two boards instead of the five on which he had been working. In answer to a question as to when the boards were removed he said: “ I say that on the days that the boards were there, I was all right, and that day when I started on two boards I was hurt.” And again, when asked how long he continued to work on two boards, he replied that he had generally worked on six boards, but had continued working on two for an hour after the others had been removed. To the question, “You say there ought to have been five boards there to make it safe ? Is that right ? ” the answer was: “ Yes.” It is not complained that a run-way three feet in width was inadequate, and it would come to nothing if it were, for it was not from the run-way that plaintiff fell. It cannot be complained that a floor of five or six feet in width at the point where the materials were received, and one of like width at the point where they were delivered, would not have been adequate for the avoidance of this particular accident. Plaintiff’s injuries resulted from his fall to the ground, a distance of twenty-five feet. This could hardly have occurred had he been standing on a platform of five or six feet in width: standing on one only two feet in width any other result would have been a surprise. That plaintiff company had supplied sufficient boards to meet these requirements for safety is a fact clearly established; but how and where to place them to meet changing conditions as the work progressed, was a matter committed to the workmen themselves. It was not required that the entire scaffold should be floored, but only so much of it as was being used. When the work is of such character that the environment of the servant as the work progresses necessarily undergoes frequent changes, the master is not bound to protect the servant engaged in it against dangers resulting from such changes: Labatt, Master & Servant, p. 1772. This doctrine results from the fact that the prosecution of the work does make the place dangerous; but it is not the duty in such case for the master to follow up the servants every moment to see that they make the place safe. Our own cases are directly in line. It is only necessary to cite Durst v. Carnegie Steel Company, 173 Pa. 162, where we held that when danger can only arise as the work progresses, it is not the duty of the employer to stand by during the progress of the work to see when danger arises; that it is sufficient if he provide against such dangers as may possibly or probably arise, and to give the workmen the means of protecting themselves.

But the case has another aspect equally fatal to plaintiff’s right of recovery. lie saw a fellow workman remove the boards, and continued thereafter to work on a place which had thus been made dangerous, without complaint or remonstrance. Neither employer nor anyone representing him had ordered the change, or had any knowledge that it had been made. It is idle to say by way of excuse that defendant, because of inexperience in such work, did not know that work under such conditions was not attended with risk. He knew that he had but two feet of standing room, whereas before he had six, and with his three days’ experience, he must have known what standing room was required for safety. He admits that he knew greater width was deemed necessary at the two ends than for the run-way over which he was to carry his load, and yet he continued his work at a point where the greater width was required, after it had been reduced by the width of a board below that of the run-way. The case called for the application of the rule we have so often declared, that a servant who has had full opportunity of knowing the danger and risk and makes no complaint to his employer as to the danger to which he is exposed, but continues to work voluntarily notwithstanding, assumes the risk of injury from the danger to which he is exposed. The assignments of error are overruled.

Judgment is affirmed.


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    Ginn, Appellant, v. Pennsylvania Railroad Company.

      Negligence — Railroads—Passenger—Presumption—Burden of proof— Evidence — N onsuit.

    In an action by a passenger against a railroad company to recover damages for personal injuries, the plaintiff in order to cast upon the defendant the burden of disproving negligence, must show that the injury complained of resulted from the breaking of machinery, collision, derailment of cars, or something improper or unsafe in the conduct of the business or in the appliances of transportation.
    Where a passenger on a railroad train while sitting at the window of a car is injured by a missile, the nature and origin of which are unknown, and there is nothing to connect the accident with a defect in any of the appliances of transportation or any negligence on the part of the company or its employees, there can be no recovery against the company.
    In an action by a passenger against a railroad company to recover damages for personal injuries by the breaking of a window pane of a car in which he was seated, a nonsuit is properly entered where the only evidence as to the cause of the accident is that of the plaintiff himself who said that immediately before the window was struck and broken, he heard two sharp reports like the explosion of a torpedo, and that an engine of a train on the track adjoining was just opposite his window.
    Argued Feb. 11, 1908.
    Appeal, No. 13, Jan. T., 1908, by plaintiff, from order of C. P. Chester Co., Aug. T., 1906, No. 9, refusing to take off nonsuit in case of James N. Ginn v. Pennsylvania Railroad Company.
    Before Mitchell, C. J., Brown, Mestrbzat, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    Before Butler, J.
    At the trial it appeared that on December 1, 1905, plaintiff was a passenger on one of the defendant’s trains from Philadelphia to Coatesville. While he was occupying a seat in a car next to a window, which was closed, the window pane was suddenly broken, and plaintiff’s eyes were cut by particles of glass. Plaintiff testified that immediately before the accident he heard a train on the next track, and as he turned to look out the window he heard two explosions, and an object flew up and hit the window, and that the object looked like a piece of tin, and resembled a torpedo.
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was refusal to take off nonsuit.

      Robert S. Gcmthrop, with him Walter E. Greenwood, for appellant.
    Under the established facts the jury should have i been permitted to draw the inference of the company’s connection with the cause of the accident, which would raise a prima facia presumption of negligence and throw upon it the burden of proving that it did not exist: Stager v. Pass. Ry. Co., 119 Pa. 70 ; Penna. R. R. Co. v. Mackinney, 124 Pa. 462 ; Thomas v. R. R. Co., 148 Pa. 180 ; Ault v. Cowan, 20 Pa. Superior Ct. 616 ; Fleming v. Ry. Co., 158 Pa. 130 ; Bernhardt v. R. R. Co., 159 Pa. 360 ; Fredericks v. R. R. Co., 157 Pa. 103 ; Hayman v. R. R. Co., 118 Pa. 508 ; Herstine v. R. R. Co., 151 Pa. 244.

      A. M. Holding, with him John J. Pinkerton, for appellee.
    There was no evidence in this case to establish the fact that the accident complained of was the result of the explosion of a torpedo. A mere scintilla of evidence, or a mere surmise that the carrier may have been guilty of negligence, will not justify a verdict against him : Thomas v. R. R. Co., 148 Pa. 180 ; Ault v. Cowan, 20 Pa. Superior Ct. 616 ; Spencer v. Ry. Co., 105 Wis. 311 (81 N. W. Repr. 407); Savitz v. R. R. Co., 199 Pa. 218 ; Alexander v. Water Co., 201 Pa. 252 ; Toomey v. Ry. Co., 3 Common Bench (N. S.), 146 ; Cotton v. Wood, 8 C. B. (N. S.) 568 ; Hammack v. White, 11 C. B. (N. S.) 558 ; Curtis v. R. R. Co., 18 N. Y. 534 ; LeBarron v. Ferry Co., 93 Mass. 312 ; Joy v. Winnisimmet Co., 114 Mass. 63 ; Kendall v. Boston, 118 Mass. 234 ; Edgerton v. Railroad Co., 39 N. Y. 227.
    April 20, 1908 :
   Opinion by-

Mr. Justice Elkin,

This appeal raises primarily the question of burden of proof. Under the facts proven at the trial, was the burden of proof on the defendant company to show that the injury for which appellant claims damages was in no way the result of its negligence, or was the burden on appellant to establish the negligence of the defendant company. In order to cast this burden on the defendant company it was necessary for appellant to establish that the injury complained of resulted from the breaking of machinery, collision, derailment of cars, or something improper or unsafe in the conduct of the business or in the appliances of transportation: Thomas v. Railroad Company, 148 Pa. 180. This case is also authority for the rule that where a passenger on a railroad train while sitting at the window of a car was injured by a missile, the nature and origin of which were unknown, and there was nothing to connect the accident with a defect in any of the appliances of. transportation or any negligence on the part of the company or its employees, there can be no recovery against the company. These principles rule the present case. The evidence produced at the trial was not sufficient to establish the fact that the injury complained of resulted from the breaking of machinery, collision, derailment of cars or anything improper or unsafe in the conduct of the business of the railroad or in the appliances of transportation. The evidence was not sufficient to establish the fact that the accident complained of was the result of the explosion of a torpedo. The case of Ault v. Cowan, 20 Pa. Superior Ct. 616, is in point. In that case the allegation was that the injury had been occasioned by the explosion of a torpedo, and it was held that there can be no recovery unless the plaintiff prove by affirmative evidence that the cause of the explosion was one for which defendant was liable. The only evidence in the present case on the question of the explosion of a torpedo was that of the plaintiff himself who said that immediately before the window was struck he heard two sharp reports like the explosion of a torpedo and that an engine of a train on the track adjoining was just opposite his window, and from these facts the appellant contends that the jury should have been permitted to infer that the accident was occasioned bj^ the explosion of a torpedo. We think the evidence was not sufficient for this purpose. At most it was a mere guess or conjecture, and something more definite must be established as the foundation of an action for damages.

Judgment affirmed.


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    Lebanon National Bank v. Long, Appellant.

      Promissory notes — Renewal note — Novation—Evidence.
    In an action by a bank against one of two makers of a promissory note, the makers of the note testified in substance that they took to the bank a renewal note of the note in suit, handed it to the teller, saying, in substance, there is a renewal, and immediately left without having ascertained whether it was satisfactory to the bank, and without demanding the old note. The teller testified that when the note was handed to him he informed the makers that he would present it to the proper officer of the bank, who was then absent, and see whether it was satisfactory to have the loan renewed. He did so and was informed by the proper officer of the bank that it was not satisfactory to renew the loan and that the new note was not accepted by the bank, and the old note was never marked satisfied nor surrendered, but had always been held by the bank as security for the loan. Held, that the evidence was not sufficient to establish a contract of renewal.

      Promissory notes — Accommodation of maker — Consideration—Parol evidence.

    In an action by a bank against one of two brothers who were joint makers of a promissory note, the defendant cannot be relieved from liability on the note by parol evidence to the effect that he signed the note as an accommodation to his brother with the understanding that the signing of his name was a mere matter of form to comply with the provisions of the national banking laws and that he would not subject himself to any liability by signing it, and that the' cashier of the bank had made these representations to the brother at the time the loan was made and afterwards said the same thing to defendant.
    Argued Feb. 18, 1908.
    Appeal, No. 181, Jan. T., 1907, by defendant, from judgment of O. P. Lebanon Co., Sept. T., 1898, No. 41, on verdict for plaintiff in case of Lebanon National Bank v. George B. Long.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Assumpsit on a promissory note.
    Before Ehrgood, P. J.
    The opinion of the Supreme Court states the case.
    The court gave binding instructions for plaintiff.
    Yerdict and judgment for plaintiff for $4,824.50. Defendant appealed.

      Error assigned was in giving binding instructions for plaintiff.

      Edward 8. Eremp, with him William W. Walter, for appellant.
    The acts of the cashier or other officer of a bank within the scope of the general usage, practice and course of business of banking institutions, is binding on the corporation in favor of third persons transacting business with it, and who did not know, at the time, the officer was transcending his authority : Bissell v. First Nat. Bank of Franklin, 69 Pa. 415 ; Wheeler, etc., Mfg. Co. v. Aughey, 144 Pa. 398 ; Mundorff v. Wickersham, 63 Pa. 87; Bank Commissioners v. Buffalo Bank, 6 Paige, 497.
    The defendant had a right to presume, and the law so declares, that the cashier acted within his authority, and in-the abseuce of proof to the contrary this is conclusive, and the case should have gone to the jury: Miller v. Henderson, 10 S. & R. 290.
    The signature of George B. Long having been obtained by a fraudulent representation, the bank cannot take advantage of the fraud of its officer Steckel v. First Nat. Bank of Allentown, 93 Pa. 376 ; Resh v. Bank, 93 Pa. 397 ; Nat. Bank of Bedford v. Stever, 169 Pa. 574 ; Fegley v. McDonald, 89 Pa. 128.

      C. V. Henry, with him Howard O. Shwh, for appellee.
    Unless the cashier had authority, or apparent authority, to make the alleged oral agreement, the bank is not bound thereby: Bank of U. S. v. Dunn, 31 U. S. 51 ; Bank of the Metropolis v. Jones, 33 U. S. 12 ; First Nat. Bank of Whitehall v. Tisdale, 84 N. Y. 655 ; Wyman v. Bank, 14 Mass. 58 ; Lloyd v. West Branch Bank, 15 Pa. 172 ; Bissell v. Bank, 69 Pa. 415.
    April 20, 1908 :
   Opinion by

Mr. Justice Elkin,

This is a suit on a joint and several promissory note dated August 24, 1896, and due in thirty days. On June 23, 1898, the praecipe and statement of claim, and on July 14, 1898, affidavit of defense, were filed. On August 2, 1898, the defendant was ruled to plead, and on August 10, 1898, the plea was entered. Thus it appears the case has been at issue since August, 1898, and was only called for trial November 12, 1906. There is nothing in the record to explain the long delay in bringing the suit to trial, and it is only proper to suggest that the practice of prolonging litigation so as to extend over a long period of years is not to be commended, and should not be favored. Parties may die, or the memory of witnesses fail, or the recollection of facts become inaccurate and uncertain by the lapse of time, so that it is difficult to definitely ascertain the legal rights involved in the controversy. However, we must take the record as we find it and determine the questions raised by it. The execution of the note not being denied, the bank having possession of it at the time of trial, payment in point of fact not being alleged, and the pleadings only raising the special defenses set out in the affidavit of defense, a prima facie case was made out when the plaintiff rested, although it would have been better and safer in the case in chief to have offered substantive evidence to show nonpayment. The note being a joint and several obligation, the bank could elect to sue both or either of the makers and did so elect in this case by bringing suit against appellant. The assignments of error only raise two questions which require consideration. The first is as to the contention that the note sued on was paid at maturity by another note given by the same parties, delivered to and accepted by the bank in consideration of the cancellation and surrender of the old note now in suit. In other words, that a renewal note was given for the old one and that the bank should have proceeded on the new note. This position is technical and does not go to the merits of the case. The debt still remained and the note is only evidence of it. However, the defense would be good if the facts warranted it. The two brothers, signers of the note, testified in substance that they took a renewal note to the bank, handed it to the teller saying, in substance, there is a renewal, and immediately left without having ascertained whether it was satisfactory to the bank and without demanding the old note. The teller testified that when the note was handed him he informed the appellant and his brother that he would present it to the proper officer of the bank, who was then absent, and see whether it was satisfactory to have the loan renewed. He did so and was informed by the proper officer of the bank that it was not satisfactory to renew the loan and that the new note was not accepted by the bank, and the old note ivas never marked satisfied nor surrendered, but had always been held by the bank as security for the loan. Under these circumstances the evidence was not sufficient to establish a contract of renewal. That the appellant and his brother intended to make a renewal there can be no question, but it is equally clear that the bank refused to renew the loan and stood upon its rights under the old note. The transaction did not, therefore, become a contract inter partes and this defense cannot prevail.

The other defense is that the original note was without consideration as to appellant who signed it as an accommodation to his brother with the understanding that the signing of his name was a mere matter of form to comply with the provisions of the national banking laws and that he would not subject himself to any liability by signing it, and that the cashier of the bank had made these representations to the brother at the time the loan was made and afterwards said the same thing to appellant. In support of this position the appellant and his brother both testified in effect as above indicated. It is now earnestly contended that this parol testimony was sufficient to take the case to the jury and that the learned trial judge was in error in directing a verdict for plaintiff. The effort here made is to bring this case within the line of cases which holds that parol evidence is admissible to alter, vary or contradict a written instrument where such evidence is sufficient to establish an oral agreement contemporaneous with the execution of the writing, and as an inducement to its execution, and on the faith of which it was signed, and without which inducement it would not have been executed. But the rule of these cases must be carefully applied so as not to defeat the purpose and effect of written instruments, and -when such parol contracts are set up they must be established by evidence that is clear, precise and indubitable. In the present case this measure of proof has not been met. At the time the appellant signed the note he had not seen any officer of the bank and the only representations made to him before signing were those made by his brother, and it cannot be seriously contended that representations made by his brother, either as to what the bank officer might have said or the understanding of the brother about his liability in signing the paper, could be considered such an inducement as would excuse his liability on the note under any rule of law, nor is his position materially strengthened by the fact that he subsequently met the bank officer who said to him that the matter was as his brother had stated. It is very doubtful if the bank officer had any authority to make such an arrangement, even if such a parol agreement had been clearly established, but aside from all this, it would do violence to the well-understood rules of law relating to commercial paper to hold that one who signed a note could be excused from liability thereon by such loose, vague and indefinite declarations as those set up by appellant on this branch of the case.

The fourth assignment of error is without merit under the facts of the case, and need not be given further consideration.

Judgment affirmed.


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    Tatarewicz v. United Traction Company, Appellant.

      Negligence — Street railways — Infant—Duty of motorman.

    If a motorman sees a child in a place of danger, or has reason to apprehend that the child may run into a place of danger, and there is sufficient time to stop the car if under proper control, it is his duty to do so, and if the car is not under proper control, or if the motorman neglects to stop it in time if under control, and the child is injured, the railway company will be liable.
    In an action against a street railway company to recover damages for injuries to a child of tender years, the case is for the jury, where the evidence shows that the motorman saw the child running towards the tracks when the car was from forty to sixty feet away from the point of the accident, and that the car, if it had been traveling at an ordinary rate of speed, could have been stopped within twenty to twenty-five feet.
    Argued March 2, 1908.
    Appeal, No. 197, Jan. T., 1907, by defendant, from judgment of O. P. Berks Co., Aug. T., 1906, No. 21, on verdict for plaintiff in case of Simon Tatarewicz and Julia Tatarewicz, by her next friend and father, Simon Tatarewicz, v. The United Traction Company.
    Before Mitchell, C. J., Fell, Brown, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for injuries to a child about nine years old.
    Before Endlich, J.
    At the trial it appeared that Julia Tatarewicz, a, child nine and half years of age, was injured on November 18, 1905, by being run down by one of the defendant’s cars. The evidence tended to show that the motorman saw-the child running towards the track when the car was within forty to sixty feet from the point of the accident. There was also evidence that if the car had been running at an ordinary rate of speed it could have been stopped from within twenty to twenty-five feet.
    The court refused binding instructions for defendant.
    Verdict and judgment for Simon Tatarewicz for $200 and Julia Tatarewicz for $1,800. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant, and in refusing to render judgment for defendant non obstante veredicto.

      Jefferson Snyder, of Snyder & Zeiber, with him E. L. Jones and J. Milton Miller, for appellant,
    cited : Thomas v. Pass. Ry. Co., 132 Pa. 504 ; Pass. Ry. Co. v. Connell, 88 Pa. 520 ; Hestonville, etc., Pass. R. R. Co. v. Kelley, 102 Pa. 115 ; Sekerak v. Jutte, 153 Pa. 117 ; Phillips v. People’s Pass. Ry. Co., 190 Pa. 222 Ackerman v. Traction Co., 205 Pa. 477 ; McKee v. Traction Co., 211 Pa. 47 ; Funk v. Traction Co., 175 Pa. 559 ; Kline v. Traction Co., 181 Pa. 276 ; Pletcher v. Traction Co., 185 Pa. 147 ; Chilton v. Central Traction Co., 152 Pa. 425 ; Flanagan v. Ry. Co., 163 Pa. 102 ; R. R. Co. v. Spearen, 47 Pa. 300.

      Frederick W. Uicolls, for appellee,
    cited : Evers v. Traction Co., 176 Pa. 376 ; Weeckner v. Erie Electric Motor Co., 176 Pa. 451 ; Jones v. Traction Co., 201 Pa. 344 ; Iaquinta v. Traction Co., 166 Pa. 63 ; Beard v. Ry. Co., 3 Pa. Superior Ct. 171 ; Conner v. Rys. Co., 216 Pa. 609 ; Karahuta v. Traction Co., 6 Pa. Superior Ct. 319 ; McCullough v. Traction Co., 183 Pa. 241; Hooper v. Traction Co., 17 Pa. Superior Ct. 638 ; Harkins v. Traction Co., 173 Pa. 146 ; Schnur v. Traction Co., 153 Pa. 29 ; Dunseath v. Traction Co., 161 Pa. 124.
    April 20, 1908 :
   Opinion by

Mr. Justice Elkin,

The negligence alleged in the statement of claim is that the agents and employees of the defendant company ran the car which caused the accident along the street carelessly and inattentively at an undue and unusual rate of speed, without giving any signal or warning of its approach. The answer of appellant is that the accident did not occur at a street crossing, and hence ordinarily there was no duty to give signals, and that the evidence of undue speed only amounted to a scintilla, and should not have been submitted to the jury, and that there was not sufficient testimony produced at the trial from which the jury should be permitted to infer that the motorman had been careless or inattentive in the performance of his duties. It is contended for appellant that the present case comes within the rule of those cases which hold that a street railway company is not liable for damages in an action for personal injuries where a child unexpectedly leaves a place of safety and suddenly darts in front of a running car. Sontgen v. Street Railway Co., 213 Pa. 114, and the cases there cited belong to this class. The reason for the application of the rule is that it is not the duty of a street railway company to anticipate and provide against every exigency or possible contingency that may suddenly arise in the operation of its lines, but that it performs its whole duty by the exercise of care according to the circumstances. Hence, when a child standing in a place of safety at the curb or elsewhere, even if seen by the motorman, gives no notice of an intention to cross the street, nor makes any movement to indicate such a purpose until the car is so near that it cannot be stopped, when the child suddenly darts in front of it and is injured, the law says there can be no recovery because, under such circumstances, failure to stop the car in time to avoid the accident is not negligence. It must be borne in mind, ho we ver, that in this line of cases lack of notice to put the motorman on guard so as to appreciate the danger, and want of time to avoid it, are of the essence of the rule. But in no case has it ever been held that if the motorman saw the child in a place of danger, or had reason to apprehend that it might run into a place of danger, and there was sufficient time to stop the car if under proper control, a duty resting on him at all times, it was not his duty to do so, or that the company was relieved from liability in such a case. In many cases the evidence was conflicting as to these material circumstances, and did not so clearly establish the facts as to warrant a court in deciding as a matter of law that there was no failure of duty in not stopping the car in time, and in such cases it was left to the jury to determine the question under proper instructions by the trial judge. The case at bar beloiigs to this class. It is the duty of a motorman to keep a constant lookout ahead, and to' have such control of his car as to avoid dangers ordinarily incident to its operation, and also to avoid such unusual and unexpected dangers as he saw in time to avoid. The testimony in the present case, even that of the motorman himself, clearly shows that he saw the child running toward the tracks when the car was from forty to sixty feet away from the point of accident, and it was also proven as a fact that vrhen traveling at an ordinary rate -of speed it could be stopped within twenty to twenty-five feet. It necessarily follows that if the motorman had proper control of his car under this state of facts he should have stopped it in time to avoid the accident. He testified that as soon as he saw that the child expected to cross the street he threw off the current, put on the brake, and did everything possible for him to do to avoid the collision. But this testimony, in connection with the other proven facts, was for the jury, where the learned trial judge left it in a painstaking charge, carefully and properly defining the rights and liabilities of the parties.

After a careful examination of the whole record, the charge and opinion of the learned trial judge and the very able briefs submitted for our consideration, we have concluded that the case was properly disposed of in the court below on the authority of Evers v. Traction Co., 176 Pa. 376 ; Woeckner v. Erie Electric Motor Co., 176 Pa. 451 ; Jones v. Traction Co., 201 Pa. 344, and Conner v. Rys. Co., 216 Pa. 609, and that line of cases.

Judgment affirmed.


text:
    Stitzel v. A. Wilhelm Company, Appellant.

      Negligence — Master and servant — Safe machinery and appliances — Instructions to employee — Risk of employment.

    In an action by a young man about eighteen years of age against his employer, a company engaged in the manufacture of paints, and operating a cooperage department in connection with its business, it appeared that the plaintiff was injured by the explosion of a barrel which he was swelling in the cooperage department. At the time of the accident the barrel had been filled with water, and it was the duty of the plaintiff to introduce steam into it through an iron pipe one inch in diameter inserted in the bung. Plaintiff could control the flow of the steam by means of a valve, and the accident was caused by his allowing too much steam to flow into the barrel. Plaintiff had been employed in this work for about a year, but there was evidence that until two or three weeks before the accident steam had been introduced through the open end of the barrel, and not through the bunghole. Held, (1) that the defendant could not be charged, under the circumstances, with a failure to provide the plaintiff with reasonably safe machinery and appliances with which to work; (2) that the defendant was not required to point out to the plaintiff the danger that might result by turning on too much steam into the barrel filled with water, and (3) that the plaintiff had enough experience in the work and a sufficient' knowledge of the use of the appliances with which he worked to charge him with the assumption of the risks and dangers incident thereto.
    A master is not answerable as a rule for an injury to adults with experience, nor for an injury to young persons who have had experience from which a knowledge of danger may reasonably be presumed, and to have that discretion which prompts one to take care of himself.
    Argued March 2, 1908.
    Appeal, No. 384, Jan. T., 1907, by defendant, from judgment of O. P. Berks Co., Feb. T., 1906, No. 62, on verdict for plaintiffs in case of William H. Stitzel and John H. Stitzel, by his next friend and father, William H. Stitzel, v. A. Wilhelm Company.
    Before Mitchell, C. J., Fell, Brown, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries.
    Before Ermentrout, P. J.
    The circumstances of the accident are detailed in the opinion of the Supreme Court.

      Yerdict for Wm. H. Stitzel for $575 and for John H. Stitzel for $4,750.

      Error assigned was in refusing binding instructions for defendant, and in refusing judgment for defendant non obstante veredicto.

      Jefferson Snyder, of Snyder dh Ziebe/r, with him Wm. J. Rourke, for appellant.
    The danger to which the plaintiff was exposed was one entirely and in every respect of his own making: Pittsburg, etc., R. R. Co. v. Sentmeyer, 92 Pa. 276 ; Ragle v. R. R. Co., 88 Pa. 35 ; West Phila., etc., Ry. Co. v. Gallagher, 108 Pa. 524 ; Strawbridge v. Bradford, 128 Pa. 200 ; Kelly v. Traction Co., 204 Pa. 623 ; Kirchner v. Oil City St. Ry. Co., 210 Pa. 45 ; Frick v. Jackson, 3 Pa. Superior Ct. 378 ; Phillips v. Traction Co., 8 Pa. Superior Ct. 210 ; Hunt v. Graham, 15 Pa. Superior Ct. 42 ; Melchert v. Brewing Co., 140 Pa. 448 ; Tagg v. McGeorge, 155 Pa. 368.

      C. H. Ruhl, for appellees,
    cited : Rummel v. Dilworth, 131 Pa. 509 ; Kehler v. Schwenk, 151 Pa. 505 ; Fisher v. Canal Co., 153 Pa. 379 ; Lebbering v. Struthers, 157 Pa. 312 ; Sheetran v. Trexler Stave & Lumber Co., 13 Pa. Superior Ct. 219 ; Greenan v. Eggeling, 30 Pa. Superior Ct. 253 ; Sweigert v. Klingensmith, 210 Pa. 565 ; Wessel v. Jones & Laughlin Steel Co., 28 Pa. Superior Ct. 332 ; Doyle v. Waste Co., 204 Pa. 618.
    April 20, 1908 :
   Opinion by

Mr. Justice Elkin,

The negligence charged in the statement of claim is that the defendant failed to provide safe appliances and apparatus with which to work and did not give proper instructions to the employee who was injured. The plaintiff, a young man, something over eighteen years of age, had been employed in the cooperage department of the appellant company, a manufacturer of paints, since March, 1904. One of his duties was to clean casks and swell barrels so as to prepare them to be filled with paint. The process for doing this work was simple and the apparatus used in itself was neither complicated nor dangerous. The casks with one end removed were filled with water and boiled out with steam introduced through the open end of the cask. In barrels the water and steam were both introduced through the bunghole. The steam was generated by boilers used in the operation of the plant and located in another department. An inch pipe connected with the boiler carried the steam into the cooperage department where it was shut off or turned on. by means of a valve operated by the employee having charge of the cleaning and swelling process. The vessel was then filled with water, and the flow of steam, being regulated by the valve, was necessarily under the control of the person in charge of that particular work. The accident occurred February 10, 1905, and was the result of allowing too much steam to flow into the barrel and an explosion occurred, causing the injuries for which damages are sought to be recovered in this action. Under these circumstances it cannot be seriously contended that the furnishing of steam through an iron pipe one inch in diameter and introducing the same into a wooden cask or barrel, filled with water, was such a neglect of duty as to convict the defendant company of negligence for failure to provide reasonably safe tools and appliances with which to work. Steam is in ordinary and every day use in our manufacturing establishments, and that the use of steam is attended with some danger is known to every person with ordinary intelligence who is connected either as an employer or as an employee with such an agency. The furnishing of steam properly generated, through an iron pipe, not defective, into a vessel filled with water for a proper business purpose can in no legal sense be considered such a failure in the performance of a duty as to warrant an action by an employee against an employer on the- ground of not providing reasonably safe machinery and appliances with which to work.

It now remains to be determined whether the appellant company failed to give proper instructions to the injured employee, or to warn him of the danger incident to the use of steam in the manner hereinbefore set out. In this state the law is settled that an employee in accepting employment assumes all risks ordinarily incident thereto, and all other risks open and obvious, the dangerous character of which, he has had an opportunity to observe : Dooner v. Canal Co., 171 Pa. 581; Boyd v. Harris, 176 Pa. 484; Nuss v. Rafsnyder, 178 Pa. 397; Fulford v. Railroad Co., 185 Pa. 329. The authority of this rule is not questioned, but it is contended for appellees that the risk or danger in the present case was not open and obvious, and, therefore, the employer is not protected on the ground of assumption of risk. It is also argued that it was a latent danger with which the employee was not familiar, and that it was not of such a character as could be observed by a person of ordinary intelligence, even though the employee had several months’ experience in doing this kind of work. This position is strongly urged because, as contended, the plaintiff here, while he had been employed for about one year in cleaning casks and swelling barrels by using steam and water, the greater part of that time the steam was introduced-through an open end so that no danger could result from an explosion, and that the new process of introducing the steam through the bunghole had only been in use two or three- weeks when the accident occurred. This view is more particularly pressed in the present case because the injured employee was a young man and, as it is contended, could not, by reason of his inexperience, properly appreciate the dangers to which he might be exposed, and that, under these circumstances, it became the duty of the employer to point out the dangers to which he might be subjected. It is true in many of our cases where children or young persons, without experience, have been employed to work in places of great danger, or with complicated or dangerous machinery, the employer has been held to a very high standard of care in giving proper instructions in the use of machinery and the dangers incident thereto. We are not convinced, however, that the rule of those cases can have any controlling weight in the decision of the case at bar. It cannot be said in any proper sense that the plaintiff here is a young person without experience in the work in which he was engaged, or that the tools and appliances with which he worked, were either complicated or dangerous. He had been working in the department for almost a year at the time of the accident. He was familiar with his work and with all the appliances connected therewith. He knew how the steam was furnished and how it was introduced into the cask, because he had charge of this work. He regulated the flow of steam into the barrel by means of the valve which controlled it. He could turn the steam on with greater or less force as he might choose to do. If he had turned it on with less force the explosion would not have occurred, even though the steam had been admitted through a bunghole an inch and a half in diameter. Certainly it would be holding the employer to a very high standard of care, more than the law requires, to compel him to supervise every detail of his business and to point out to an employee with a year’s experience the danger that might result by turning on too much steam in a cask filled Avith water. This case comes more nearly within the rule of those cases which holds that a master is not answerable as a rule for an injury to adults with experience, nor for an injury to young persons who have had experience from which a knowledge of danger may reasonably be presumed, and to have that discretion which prompts one to take care of himself. We think the plaintiff in this case had sufficient experience in the work in which he was engaged, and had sufficient knowledge of the tools and appliances with which he worked to charge him with the assumption of the risks and dangers incident thereto. The accident was an unusual one, could not have been reasonably anticipated, and resulted from the employee turning on a higher pressure of steam than the cask would stand. We aré not convinced that the appellant company failed in the performance of any duty it owed its employee, and, there being no failure of duty amounting to negligence, there can be no recovery in this case.

Judgment reversed and is here entered for defendant.