author: Mr. Justice Stewart,

text:
    Martin, Appellant, v. Provident Life & Trust Company.

      Will — Conversion—Blending real and personal estate — Intention — Construction.
    1. When it is manifest that each and every provision of a will can be carried out without a sale of the real estate, and an effort is made to derive an intention to convert from the fact of a blending of the real and personal estate, such inference cannot be supported, except as it rests on something more than a mere failure on part of the testator to distinguish between the two kinds of property in directing that his estate be divided into shares and so distributed.
    2. Testator devised and bequeathed his entire estate to trustees, with active duties in trust, to pay over one-third of the net income to his wife for life, and the remaining two-thirds of the net income in equal shares unto his five children. He further directed as follows: “And upon the death of my said wife I order and direct that my said trustees shall hold and dispose of the one-third part of the principal or capital of my said estate on which my said wife had been receiving the income, and apply the income and principal thereof upon the uses and trusts herein declared concerning the remaining two-thirds of my said estate directed to be held as hereinabove set forth for the use and benefit of my children.” He also provided as follows: “When and as my said children shall respectively die, I order and direct my said trustees to pay over and divide the share or shares of my estate on which said decedent or decedents shall have been receiving the income as aforesaid unto and among such persons or persons as said decedent or decedents shall by his, her or their last will or wills direct, limit and appoint,” and in default of such appointment thereof among such person or persons as would be entitled under the intestate laws “if said decedent or decedents had died intestate seized and possessed thereof absolutely and in fee.” Held, (1) that it was not the intention of the testator to convert his real and personal property into a common fund out of which distributees were to be paid, but that his intent was that the residuary beneficiaries were to receive their respective shares of the personal estate in cash, and succeed to the real estate; and (2) that upon the death of one of the children the person or persons on whom such child’s share of the real estate devolved, had a right to maintain a bill in equity for partition.
    Argued Jau. 10, 1912.
    Appeal, No. 265, Jan. T., 1911, by plaintiffs from decree of C. P. No. 1, Phila. Co., Dec. T., 1910, No. 3411, dismissing bill in equity in case of Frank P. Martin et al. v. The Provident Life & Trust Company, Trustee, under the will of Michael McCahey, deceased, et al.
    Before Fell, C. J., Brown, Mestrezat, Elkin and Stewart, JJ.
    Reversed.
    Bill in equity for partition of the real estate of which Michael McCahey died seized.
    ■ The -bill recited that Michael McCahey had died May 2nd, 1894, leaving a last will wherein he had devised and bequeathed his entire estate, real, personal and mixed, to The Provident Life and Trust Company of Philadelphia, upon the following trust: “To invest and keep invested the same in good and sufficient securities, to collect and receive the rents, issues, income, dividend and profits thereof, to manage and control the real estate thereof and keep the same in proper repair, and after paying out of the said income, the costs, charges, taxes and expenses of managing the said estate then to pay over one-third of the net income thereof unto my wife Maria McCahey for her life and the remaining twó-thirds of said net income in equal shares unto my children Rosey McCahey (wife of James McCahey), Mary McCahey, Annie McCausland (wife of Thomas McCausland), Thomas McCahey and Maggie Shallow (wife of James Shallow) for their respective lives, the shares of my said daughters to be for their sole and separate use, benefit and behoof, and when and as my said children shall respectively die, I order and direct my said trustees to pay over and divide the share or shares of my estate on which said decedent or decedents shall have been receiving the income as aforesaid unto and among such person or persons as said decedent or decedents shall by his, her or their last will or wills direct, limit and appoint, and in default of such direction, limitation or appointment then to pay over unto and divide said share or shares of my said estate among such person or persons as would have been entitled thereto under the intestate laws of Pennsylvania if said decedent or decedents had died intestate seized and possessed thereof absolutely and in fee. And upon the death of my said wife, I order and direct that my said trustees shall hold and dispose of the one-third part of the principal or capital of my said estate on which my said wife had been receiving the income and apply the income and principal thereof upon the uses and trusts herein declared concerning the remaining two-thirds of my said estate directed to be held as hereinabove set forth for the use and benefit of my children as aforesaid.” That by a subsequent clause in the will the testator directed as follows: "I authorize and empower my trustees and executors herein named, at any time in their discretion, to sell at public or private sale, for such price or prices and upon such terms as they may deem proper, all or any part of my real estate not hereinabove specially designated, and to make, execute and deliver to the purchaser or purchasers thereof good and sufficient deeds of conveyance therefor, freed and discharged of all trusts and without liability,” &c. By a later clause he directs that “During the continuance of the trusts herein created, I authorize and empower my said trustees to have all repairs to my said real estate made under the supervision of my son-in-law James McCahey, without liability,” &c.
    Maria McCahey, widow of testator died 1 January, 1897, all of the children named in the will surviving. Subsequently in 1906 Thomas McCahey, one of the children named in the will, died, having by his last will directed that his interest in the estate of his father be equally divided between his wife and his four surviving children. One of the children, Margaret E. Willis, wife of Louis E. Willis, subsequently assigned and conveyed all her interest in the estate of Michael McCahey to Marion A. Martin, who, with her husband joining, filed the present bill to enforce partition of the real estate.
    The court dismissed the bill in the following opinion: “At the argument it was agreed by counsel for the parties that the exceptions filed by plaintiff to the answer and amended answer of the defendant might be treated as a demurrer to answer, and that the matter should be disposed of as on bill, answer and demurrer, and we have therefore so considered it. We are of the opinion that the testator by his will did not intend to vest in any of the beneficiaries named therein the title to any portion of his real estate; but that the title thereto was vested in the trustee and mingled with personal estate for the purpose of raising a fund to be administered, paid out and distributed among the beneficiaries by the trustee in the manner indicated by the will; and that there was an equitable conversion of the real estate for the purposes of the trust. The plaintiffs have a complete and adequate remedy at law which may be invoked at any time for the purpose of effecting a distribution of the estate by the trustee, in accordance with the terms of the will. The demurrer of the plaintiffs is therefore overruled and the bill is dismissed at the cost of the plaintiffs.” From this decree the plaintiffs have appealed.

      Error assigned was decree dismissing the bill.

      Clarence E. Kuemmerle, with him William D. Neilson, for appellant.
    Marion A. Martin, one of the appellants, as the grantee of Louis E. Willis and Margaret E. Willis, acquired the legal title in fee simple of an undivided one-twenty-fifth of the real estate described in the bill: Bacon’s App., 57 Pa. 504; Forcey’s App., 106 Pa. 508; Seeds v. Burk, 181 Pa. 281; Rawle’s App., 119 Pa. 100; Henszey’s Estate, 220 Pa. 212; Sheridan v. Sheridan, 136 Pa. 14; Eberly v. Koller, 209 Pa. 298; Carter’s Est., 225 Pa. 355; Caldwell v. Snyder, 178 Pa. 420.
    The will of the testator did not effect an equitable conversion of his real estate: Yerkes v. Yerkes, 200 Pa. 419; Painter v. Painter, 220 Pa. 82; Hunt’s App., 105 Pa. 128; Peterson’s App., 88 Pa. 397; Perot’s App., 102 Pa. 235; Darlington v. Darlington, 160 Pa. 65; Seeds v. Burk, 181 Pa. 281.

      F. B. Bracken, with him Joseph B. Townsend and Charles C. Toionsend, for appellees.
    The provisions of testator’s will clearly indicate an intention to create a fund for ultimate distribution by the trustee, upon the termination of the life estates, respectively, and the power to sell the real estate was a necessary incident thereto: Seeds v. Burk, 181 Pa. 281; Ramsey v. Ramsey, 226 Pa. 249; Hutchison’s App., 82 Pa. 509; Heim’s Est., 201 Pa. 609.
    March 18, 1912:
   Opinion by

Mr. Justice Stewart,

The governing consideration here, as in all such cases, is the intention of the testator. If the intention was that the real estate was to be converted and the several beneficiaries were to take the proceeds as money, the bill was properly dismissed, otherwise it should have been sustained. Where the will contains a positive and unmistakable direction to sell in any event, no question can arise. Where it contains no express direction to sell, and a sale is necessary to carry out the provisions of the will, the inference arises that this is what the testator contemplated. Again, where the testator in disposing of his property blends his real and personal property and creates a single fund out of which the beneficiaries are to be paid, a like inference arises. In the present case it is not pretended that any necessity exists for a sale of the real estate in order to carry out the provisions of the will. Each and every provision can be satisfactorily administered without conversion. The dismissal of appellants’ bill was put exclusively upon the ground that by the terms of the will the real and personal estates were blended for the purpose of raising a fund to be distributed among the beneficiaries. To this construction of the will we cannot agree. When it is manifest that each and every provision of the will can be carried out without a sale of the real estate, and the effort is to derive an intention to convert from the fact of a blending of the real and personal estate, such inference cannot be supported except as it rests on something more than a mere failure on part of the testator to distinguish between the two kinds of property in directing that his estate be divided into shares and so distributed. For, as said in Seeds v. Burk, 181 Pa. 281, the general expression “divide and pay,” per se includes real and personal estate, since land as well as personalty may be the subject of division in kind. True, appellees point to other features of the will as showing a blending of the two estates, but these, as well that to which we have just adverted, are of little significance when compared with another feature which seems to have been overlooked in the discussion, and which to our mind is wholly inconsistent with the theory advanced by the appellees. That there was to be ultimately a sale of the real estate by the trustees, is the contention of the appellees; but when? The will directs that “When and as my said children shall respectively die, I order and direct my said trustees to pay over and divide the share or shares of my estate on which said decedent or decedents shall have been receiving the income as aforesaid, unto and among such person or persons as said decedent or decedents shall by his, her or their last will or wills direct, limit and appoint, and in default,” &c. It will hardly be contended that this provision was a blending of the two estates; that the testator here intended that upon the death of any one of his children an undivided one-fifth interest in his real estate was to be sold in order to pay over to the residuary beneficiaries the share on which such child had been receiving the income; and that like proceeding was to follow upon the death of each survivor. Or, take the case of the widow, who died within three years after the death of the testator. The provision as to her is “And upon the death of my said wife, I order and direct that my said trustees shall hold and dispose of the one-third part of the principal or capital of my said estate on which my said wife had been receiving the income, and apply the income and principál thereof upon the uses and trusts herein declared concerning the remaining two-thirds of my said estate directed to be held as hereinabove set forth for the use and benefit of my children as aforesaid.” It will hardly be contended that this reveals a blending of the two estates, and an intention that upon the death of the widow one undivided third interest of the real estate was to be sold in order that the trustees might apply the income upon the uses and trusts declared. Both the provisions we have quoted show unmistakably that testator clearly distinguished between the two estates; that it was no part of his intention to convert both into a common fund out of which distributees were to be paid; but on the contrary, the intention clearly was that the residuary beneficiaries were to receive their respective shares of the personal estate in cash and succeed to the real estate, as he himself expressed it elsewhere in the will, as though the first takers “had died intestate, seized and possessed thereof absolutely and in fee.” A discussion of the cases cited by counsel with a view to distinguish them, would be unprofitable. There can be no question as to the correct rule to apply when questions like this arise. Controversy only arises where, in the absence of express direction to sell, the effort is to derive an intention to convert from the provisions of the will, general or special. Since it seldom happens that two wills are exactly alike in their terms, exact precedents are correspondingly rare. We have none here; and while many inay be found bearing close resemblance to this, it will be found on examination that we are not running counter to any of these in reversing this decree.

The assignments of error are sustained; the decree is reversed, and it is ordered that plaintiffs’ bill be reinstated with a procedendo.


source: Caselaw Access Project

author: Me. Justice Bbown,

license: Public Domain

text:
    Massey’s Estate.

      Wills — Construction—Vested and contingent remainders.

    After a gift of the entire income of his estate to his wife for life testator gave one-third of the residue of his estate to his son absolutely, and the remaining two-thirds to his executors in trust to pay the net income thereof equally to his two daughters M. and H., for their respective lives, and from and after their respective deaths to assign their respective shares of the residuary estate to and among their respective child or children, or their issue, for such share interest or estate, as the respective daughters might appoint by will, and in default of such appointment to assign the shares of said daughters to their respective child or children equally. “But if my said daughters shall die without leaving any child or children living at the time of their respective decease, or, if leaving such then living, all should die during minority without leaving issue to survive them, then the share of such so respectively dying shall accrue to and belong to my other children mentioned in this my will and to the issue of any of them being then deceased, such issue to take equally the share their parent would have taken if living, the share coming to any daughter to be held by my executors upon the trusts above mentioned.” Testator’s widow died, and thereafter the son died without issue, but leaving a widow. By his will he bequeathed all of his property to his sister H. The widow elected to take against his will. Subsequently testator’s daughter M. died intestate, unmarried and without issue. Held, (1) that the testator’s son’s estate had a vested interest in one-half of the trust estate held for M. for life; (2) that one-half of this one-half should be awarded to the son’s widow, and the other one-half thereof to H. under the son’s will.
    Argued Jan. 10,1912.
    Appeal, No. 271, Jan. T., 1911 by Helen F. Massey, from decree of O. C. Phila. Co., Jan. T., 1892, No. 578, dismissing exceptions to adjudication in Estate of William Massey, deceased.
    Before Fell, C. J., Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to adjudication.

      Andeeson, J., filed the following opinion:
    After a gift of the income from his entire estate for life to his wife, testator gave one-third of the residue to his son Walter S. Massey absolutely and the remaining two-thirds in trust to pay the net income therefrom in equal shares to his two daughters Margaret R. Massey and Helen F. Massey for life, and from and after their respective decease upon the further trust to “assign their respective shares of said residuary estate to and among their respective child or children or their issue for such share interest or estate as my said respective daughters whether married or single may respectively by will or writing in the nature thereof direct limit or appoint to and among their children, and in default of such appointment upon the further trust to assign and convey the shares of my said daughters'respectively to their respective child or children equally. But if my said daughters shall die without leaving any child or children living at the time of their respective diecease, or, if leaving such then living, all should die during minority without leaving issue to survive them, then the share of such so respectively dying shall accrue to and belong to my other children mentioned in this my will and to the issue of any of them being then deceased, such issue to take equally the share their parent would have taken if living, the share coming to any daughter to be held by my executors upon the trusts above mentioned.”
    Testator’s daughter Margaret R. Massey died July 13, 1910, intestate, unmarried and without issue. Walter S. Massey died May 29, 1909, without issue, leaving him surviving his wife, Harriet M. P. Massey, and by his will, made prior to his marriage, gave his estate to his sister, Helen F. Massey. His widow elected to take against his will, and therefore his estate is divisible between her and Helen F. Massey.
    Claim was made at the audit on behalf of Harriet M. P. Massey to one-quarter of the principal of the fund held in trust for Margaret, on the ground that Walter had a vested interest therein in remainder. This claim was resisted on behalf of Helen F. Massey, the surviving child of testator, on the ground that the interest of Walter was contingent upon his surviving Margaret, and having died in her lifetime he took no part thereof.
    The auditing judge held that the interest of Walter vested in him at the time of the testator’s death and therefore distributed the fund held in trust for Margaret one-half to the trustees for Helen F. Massey and the other one-half as part of Walter’s estate, one-half to his widow and one-half to his sister Helen as the sole legatee under his will, and to this distribution the present exceptions are filed.
    We are not convinced that it is necessary to decide what interest Walter Massey had during his lifetime, as the question is rather what interest passed to his estate at the time of the death of Margaret.
    This distinction is pointed out in Buzby’s Appeal, 61 Pa. 111. In that case the testator devised certain real estate in trust for the use of Ms son William for life and after his death in trust for his children then living and the issue of such of them as should be deceased, their respective heirs and assigns, in equal parts or shares, etc., and for want of such child or children or lawful issue, then in trust for the use of his (testator’s) right heirs forever. William died without issue, and the decision turned on the question as to who were the right heirs of the testator who were to succeed to the estate on the death of William without children or issue of deceased children. Mr. Justice Williams, in a clear and lucid opinion, calls attention to the fact that many cases in Pennsylvania had decided such remainder interests to be vested, and others contingent, and goes on to say: “If, then, the estate devised to the testator’s right heirs was a vested remainder, the heirs at his death took the estate, and as William, the devisee for life, was one of the testator’s heirs, it would follow that Ms devisees became entitled to his share on the termination of his life estate. But there are authorities, and among them some decisions of our own, which show that the remainder in this case is to be regarded as con- ■ tin gent rather than as vested; and the weight of the authorities seems to be in favor of this doctrine. * * * If, then, the remainder is to be regarded as contingent, in whom did it vest? In those who were heirs of the testator at the time of his death, or in those who were heirs at the death of his son William? The remainder, if contingent, did not vest till William’s death. But it does not follow that it vested in those who were the heirs at his death; if it did, then it was doubly contingent. The event upon which it was to take effect, and the persons to whom the estate was limited, were both dubious and uncertain. If there was no uncertainty as to the class, the persons composing this class could only be known and ascertained upon the death of the tenant for life. If the remainder had been expressly limited to the heirs living at the death of the testator, it would have been contingent in view of the doctrine of the cases last cited. And the question recurs, who are the testator’s right heirs? As a general rule of construction, it is well settled that a devise or bequest to heirs, or heirs at law of a testator, or to his next of kin, will be construed as referring to those who are such at the time of the testator’s decease, unless a different intent is plainly manifest .by the will;” citing numerous authorities.
    And speaking of the word “then,” which, in that case as in this, is used at the. beginning of the clause giving, the estate over, he says: “Nor will the use of the word ‘then,’ as introductory to the bequest or devise over after the death of the tenant or legatee for life, prevent the general rule from applying unless it is so used as clearly to indicate that the next of kin, or heirs living at the death of the tenant for life, are intended by the testator: Holloway v. Holloway, 5 Yes. Jun. 399; Ware v. Rowland, 2 Phillips 635; Wharton v. Barker, 4 Kay & Johns. 483. * * * The limitation in these words: ‘And for want of such child or children, or lawful issue, then in trust for the use and behoof of my right heirs for ever.’ Obviously, the word then is not used in this clause as an adverb of time, but as a conjunction, signifying in that case, in that event or contingency. If this be its meaning, there is nothing to prevent the general rule from applying, and the words must be construed as referring to the heirs of the testator at the time of his death.”
    This was followed and approved in Stewart’s Estate, 147 Pa. 383.
    These decisions show that it is not essential that the estate must vest either in possession or interest in the ultimate remainderman during his lifetime, if he fills the description as one who is to take in default of the alternative remaindermen. In the present case, as in Buzby’s Appeal, and Stewart’s Estate, the question of what interest the children of the decedent had during their lifetime is of no importance. The question before us is as to who is to take upon the contingency which has now arisen, that is, the death of Margaret intestate and without issue.
    Looking at the will to find who are named as the persons to take, we ascertain that the parties answering the description are the daughter, Helen, and the son, Walter, and no other, unless either of them should die leaving issue. Had either of them died leaving issue, the issue would have stood in the place of the parent, but neither of them having died leaving issue the vesting of the estate in them cannot be affected by the substitutionary clause; and, as far as this fund is concerned, the will is to be construed as though the substitutionary clause had never been written: Carstensen’s Estate, 196 Pa. 325.
    Walter Massey and his sister Helen answer the description of “my other children mentioned in this my will,” and the estate must pass, under the doctrine of the cases cited, to or through them, one-half going to the trustees of Helen and the other half passing to those entitled to Walter’s estate, namely, his widow and his sister.
    The exceptions are dismissed.

      Error assigned was in dismissing exceptions to adjudication.

      Eli Kirk Price for appellant.
    Walter’s remainder was not vested but contingent: Richardson’s App., 19 W. N. C. 175; Carstensen’s Est., 196 Pa. 325; Clark’s Est., 11 W. N. C. 94; Rowland’s Estate, 141 Pa. 553; Raleigh’s Estate, 206 Pa. 451; Manderson v. Lukens, 23 Pa. 31.
    If it should be held that, for want of express words of survivorship or otherwise, the trustees of Helen, as the sole survivor of testator’s “other children” are not entitled to the whole estate, formerly held in trust for Margaret, there is an intestacy as to the one-half of Margaret’s estate, which would have gone to Walter or his issue: Bell’s Estate, 147 Pa. 389.

      Alfred I. Phillips, for appellee.
    Contingent remainders have not been favored in Pennsylvania. They lead to inequality and unfairness and are capable of distorting a testator’s intention. The policy of the Pennsylvania cases has been to treat remainders as vested whenever the provisions of a will permit it: Letchworth’s App., 30 Pa. 175; Chew’s App., 37 Pa. 23; McClure’s App., 72 Pa. 414; Smith’s Estate, 226 Pa. 304.
    The objections to a contingent remainder are overcome by holding the remainder to be vested subject to being divested by an attending contingency. Remainders have been held to be vested in this manner in the following cases: Minnig v. Batdorff, 5 Pa. 503; Manderson v. Lukens, 23 Pa. 31; Chew’s Appeal, 37 Pa. 23; Womrath v. McCormick, 51 Pa. 504; Crawford v. Ford, 7 W. N. C. 532; Laguerenne’s Estate, 12 W. N. C. 110; Richardson’s Appeal, 19 W. N. C. 175; Scull’s Estate, 9 Pa. C. C. R. 347; Carstensen’s Estate, 196 Pa. C. C. R. 325; Wetherill’s Estate, 214 Pa. 150; Freeman’s Estate, 35 Pa. Superior Ct. 185; Hood v. Penna. Society, 221 Pa. 474; Long’s Estate, 228 Pa. 594.
    March 18, 1912:
   Opinion by

Me. Justice Bbown,

William Massey died testate February 18, 1891. After directing that the income from his entire estate should be paid to his widow for life, he gave one-third of his residuary estate to his son, Walter S., absolutely, and the balance was disposed of as follows: “The remaining two-thirds of my estate (subject to the said life estate of income to my said wife) I give, devise and bequeath unto my executors hereinafter mentioned and their heirs in trust to pay the net income thereof equally to my two daughters Margaret R. Massey and Helen F. Massey for their sole and separate use respectively for their respective lives so that the same shall not be liable for their debts and contracts or for the debts or contracts of any husband that they may take, and from and after their respective decease upon the further trust to assign their respective shares of said residuary estate to and among their respective child or children or their issue for such share interest or estate as my said respective daughters whether married or single may respectively by will or writing in the nature thereof direct limit or appoint to and among their children, and in default of such appointment upon the further trust to assign and convey the shares of my said daughters respectively to their respective child or children equally. But, if my said daughters shall die without leaving any child or children living at the time of their respective decease, or, if leaving such then living, all should die during minority without leaving issue to survive them, then the share of such so respectively dying shall accrue to and belong to my other children mentioned in this my will and to the issue of any of them being then deceased, such issue to take equally the share their parent would have taken if living, the share coming to any daughter to be held by my executors upon the trusts above mentioned.” The widow of the testator is long since deceased and the son Walter died May 29, 1909, without having had issue. He left a widow and a will, by the terms of which he gave all of his property to his sister Helen. His widow elected to take against the will, and, upon the audit of the account of his executors, she was awarded one-half of his estate and his sister Helen the other half. Margaret, the other daughter of the testator, died July 13, 1910, intestate, unmarried and without issue, and the question before the court below, in distributing the fund in the hands of the Philadelphia Trust, Safe Deposit and Insurance Company, substituted trustee for the two daughters of the testator, was whether the estate of Walter, who died before his sister Margaret, without leaving issue, was entitled to share in the distribution of the fund held in trust for her. Prom the decree of the court below, awarding one-half of the said trust fund to the estate of Walter, his surviving sister Helen has appealed.

The auditing judge awarded to Walter’s estate one-half of the fund held in trust for his sister Margaret, on the ground that his estate had a vested interest in her trust estate under the term's of his father’s will. In overruling the exceptions to the adjudication and confirming it the court below avoided a decision as to what interest Walter had during his life in the fund held in trust for his sister, holding that the only question before it was what interest, if any, in that fund had passed to his estate upon her death.

If the testator had directed that, upon the death of his daughter Margaret without issue, the share held in trust for her should go to his heirs at law, the heirs to take would be those who were living at the time of his death, for no contrary intent appears in his will: Buzby’s Appeal, 61 Pa. 111; Stewart’s Estate, 147 Pa. 383; Fitzpatrick’s Estate, 233 Pa. 33. Walter was one of those heirs, and his estate would now take his share in his sister’s trust estate; but that there might be no doubt as to the intention of the testator as to who should take if Margaret should die without issue, he declared that the estate held in trust for her should belong to his two other children, “to my other children mentioned in this my will and to the issue of any of them being then deceased.” Walter was one of these two children, the other being the surviving daughter. The survivorship was confined to the daughters. Walter or his issue were to take one-half of the trust fund without condition upon the death of either of his sisters leaving no issue. As Walter died without leaving issue, the limitation over to his issue, if he should die leaving any, becomes utterly unimportant as a substitutionary clause and need not be considered in the distribution: Carstensen’s Est., 196 Pa. 325. The clear and well considered opinion of the court below relieves us from any further discussion of the questions raised by the appellant.

Decree affirmed, with costs to the appellee.


author: Me. Chief Justice Fell,

text:
    Faulkner, Appellant, v. McHenry.

      Mortgage — Purchase of land “under and subject” to mortgage— Indemnity — Act of June 12, 1878, P. L. 205.

      1. The words “under and subject” in a conveyance import that the grantee takes the land subject to an encumbrance, the amount of which has been deducted from the agreed price, and the covenant to be inferred from it is that of indemnity for the protection of the grantor. In such a case the grantor cannot recover on the covenant from the grantee, unless he proves actual loss.
    2. Where a grantee of land under and subject to a mortgage made by his grantor defaults, and the land is sold by the sheriff in foreclosure proceedings for an amount insufficient to pay the mortgage, and thereafter a judgment is obtained against the administrator of the mortgagor’s estate for the deficiency, the administrator cannot recover from the grantee of the land on the implied covenant of indemnity, without showing that he had paid the judgment or had sustained some loss by reason thereof.
    Argued Jan. 11, 1912.
    Appeal, No. 296, Jan. T., 1911, by plaintiff! from order of C. P. No. 3, Phila. Co., June T., 1911, No. 3774, discharging rule for judgment for want of a sufficient affidavit of defense in case of Charles A. Faulkner, Administrator of the Estate of Thomas Clements, deceased v. Hugh McHenry.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit on an implied covenant of indemnity.
    Rule for judgment for want of a sufficient affidavit of defense.
    Ferguson, J., discharged the rule on the ground that the plaintiff had disclosed no actual loss.

      Error assigned was order discharging the rule.

      M. J. McManus, of Westcott, Westcott & McManus, for appellant.
    That this action can be maintained without proof of payment of the judgment, is fully sustained by this Court, in an unbroken line of luminous decisions: McAbee v. Cribbs, 194 Pa. 94; Bamford v. Keefer, 68 Pa. 389; Carman v. Noble, 9 Pa. 366; Stroh v. Kimmel, 8 Watts 157; Miller v. Howry, 3 Penrose & Watts 374; Gardner v. Grove, 10 S. & R. 137; May’s Est., 218 Pa. 64; Green v. Rick, 121 Pa. 130; Taylor v. Preston, 79 Pa. 436; Burke v. Gummey, 49 Pa. 518; Taylor v. Mayer, 93 Pa. 42; Moore’s App., 88 Pa. 450.

      James L. Monihan, with him Robert A. Meier, for appellee.
    “The most that can be claimed for the words kinder and subject’ in a conveyance of land is, that, as between the parties, it creates a covenant of indemnity to the grantor on the part of the grantee:” Taylor v. Mayer, 93 Pa. 42; Moore’s App., 88 Pa. 450; Burke v. Gummey, 49 Pa. 518.
    This principle, that the vendor has no right of action against the vendee to recover on an implied covenant in a deed containing the “under and subject” clause until he has been forced to pay the mortgage either in whole or in part, is reaffirmed in the later cases: Blood v. Crew Levick Company, 171 Pa. 328; Kirker v. Wylie, 207 Pa. 511; May’s Estate, 218 Pa. 64.
    March 18, 1912:.
   .Opinion by

Me. Chief Justice Fell,

j This appeal is from an order discharging a rule for judgment for want of a sufficient affidavit of defense. The defendant purchased land under and subject to a mortgage made by his grantor and because of his default the land was sold by the sheriff under proceedings on the mortgage for an amount insufficient to pay the mortgage. An action was then brought on the bond of the mortgagor and a judgment was obtained against the administrator of his estate for the deficiency. This action was by the administrator against the grantee of the land on the implied covenant of indemnity.'

There is much in the facts that appear in the statement and in the averments in the affidavit of defense to give rise to the inference that the action was not brought in the interest of the estate of the grantor but to secure to the mortgagee an advantage of which the Act of June 12, 1878, P. L. 205, deprives the owner of an encumbrance unless the grantee has expressly assumed á personal liability therefor and which provides that the use of the words under and subject to the payment of an encumbrance shall not be construed to impose a personal liability on the grantee. But' the main question before the court, and that upon which its decision was based, was whether the plaintiff, who had not paid the judgment nor sustained any loss by reason thereof, could maintain the action.

Any apparent want of harmony in the decisions as to the right of a party indemnified to recover without proof of loss by the payment of the debt or otherwise, disappears when the nature of the undertaking is considered and the distinction between an obligation to do a specified thing and one of indemnity against loss resulting from non-performance is observed. Where the indemnity is against liability there is a right of recovery as soon as a liability is incurred; where it is against loss by reason of a liability there is no right of recovery until a loss occurs: Stephens v. Penna. Casualty Co., 3 Am. & Eng. Ann. Cas., 478, Note. In 16 Am. & Eng. Ency. of L. (2nd Edition), 178, the rule is thus stated, “where the contract is strictly one of indemnity the indemnitee cannot recover until he has suffered actual loss or damage; the mere incurring of liability gives him no such right; but where the contract is to protect against liability, the indemnitee may recover as soon as his liability has become fixed and established, even though he has sustained no actual loss or damage at the time he seeks to recover.”

This distinction was pointed out in the recent cases of Wheeler v. Equitable Trust Co., 206 Pa. 428; Weightman v. Union Trust Co., 208 Pa. 449; Equitable Trust Co. v. Surety Co., 214 Pa. 159. In the opinion in Weightman v. Union Trust Co., supra, it was said by our brother Potter in speaking of an agreement to do a particular thing and an agreement to save the plaintiff harmless from loss occasioned by the failure to carry out a contract, “The distinction between the two agreements is simply that between an affirmative covenant for a specific thing and one of indemnity against damages by reason of the non-performance of the thing specified. The object of both agreements may have been substantially the same, in that both were intended to save the plaintiff from loss, but the legal effect of the two agreements is essentially different.” In the cases in which a recovery has been had without proof of loss or damage, there was a general indemnity, an indemnity against claims or a covenant to do a particular thing. In McAbee v. Cribbs, 194 Pa. 94, mainly relied upon by the appellant, the obligation was not one arising from a purchase of land under and subject to a mortgage, but an express covenant, made after the sale for the purpose of adjusting disputes, to assume the payment of a mortgage.

i The words “under and subject” in a conveyance, import that the grantee takes the land subject to an encumbrance, the amount of which has been deducted from the agreed price, and the covenant to be inferred fi’om it is that of indemnity for the protection of the grantor: Moore’s Appeal, 88 Pa. 450; Merriman v. Moore, 90 Pa. 78; May’s Estate, 218 Pa. 64. This is the doctrine of all our cases on the subject. The contract on which this action was brought being one of indemnity to the grantor, a recovery could not be had without proof of loss. The statement of claim did not show a loss, and it is averred in the affidavit of defense that no loss had been sustained. .

The order discharging the rule is affirmed.


author: Peb Ctjbiam,

text:
    Helfenbein, Appellant, v. Wohlfeld.

      Negligence — Master and servant — Assumption of rislc.

    1. In an action by an employee against his employer to recover damages for an injury to his hand sustained while he was working at a machine in defendant’s factory, a non-suit is properly entered where the evidence shows that the plaintiff was thirty-seven years old, that he had worked at the machine for fifteen months, that at the time of the accident he was instructing an apprentice in its use; that the machine was of the kind in ordinary use; that it was in proper condition; and that any danger in its use was exceedingly remote and was fully understood by plaintiff.
    2. In such a case the risk to which the plaintiff was exposed was incident to the business and was obvious, and consequently assumed by him.
    Argued Jan. 11,1912.
    Appeal, No. 245, Jan. T., 1911, by plaintiff from order of C. P. No. 2, March T., 1908, No. 2714, refusing to take off non-suit in case of Israel Helfenbein v. Samuel Wohlfeld, trading as The American Novelty Manufacturing Company.
    Before Fell, C. J., Brown, Mestrezat, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to. recover damages for personal injuries. Before Wiltbank, J.
    The circumstances of the accident are stated in the opinion of the Superior Court.
    At the trial the court entered a compulsory non-suit which it subsequently refused to take off.

      Error assigned was order refusing to take off non-suit.

      Bernard Harris, for appellant.

      Ira Jewell Williams, of Simpson, Brown & Williams, for appellee.

      March 18, 1912:
   Peb Ctjbiam,

The plaintiff’s hand was injured while he was engaged in operating a machine in the defendant’s factory, by which small sheets of flexible fibre board were creased to adapt them to use in the manufacture of small boxes. The machine consisted of an iron table over the middle of which, and seven-eights of an inch above its surface was a frame in which the blade which produced a crease worked up and down. In operating the machine the boards were fed into the narrow space under the frame and pressed by the blade. The operator handled the boards from the edge nearest himself and had no occasion to place his hands within several inches of the blade. Back of the blade there was a movable gauge against which, when the machine was fed from the front, the boards were pressed in order that * they should be uniformly creased. A crease nearer than two inches from the edge of a board could not be made when the operator stood at the front of the machine and when a narrower margin was desired, he went to the back of the machine, adjusted the gauge at the right distance and placed the edge of the board nearest him against it. The gauge was not intended as a protection for the operator but only to secure uniformity in creasing.

The plaintiff was thirty-seven years old, he was familiar with the operation of the machine and had worked at it fifteen months. At the time he was injured he was at the back of the machine instructing an apprentice in its use.

It appeared from the plaintiff’s testimony that the machine was of the kind in ordinary use, that it was in proper condition and that any danger in its use was exceedingly remote and was fully understood by him. We find no evidence of negligence on the part of the defendant. The risk to which the plaintiff was exposed was incident to the business and was obvious and consequently assumed by Mm. It follows that the nonsuit was properly entered.

The judgment is affirmed.


author: Mr. Justice Stewaet,

text:
    Kayley v. McCourt, Appellant.

      Beneficial associations — Subordinate division — Property rights— Dissolution of lodge — Withdrawal to another association.

    The majority of the members of a subordinate division of a beneficial association have no power to carry the division and its property over to another society with which it has sustained no relations whatever, against the will of the minority.
    Gorman v. O’Connor, 155 Pa. 239 and State Oounc. Jr. Order of United Am. Mechanics of Pa. v. Emery, 219 Pa. 461, distinguished and explained.
    Argued Jan. 11,1912.
    Appeal, No. 199, Jan. T., 1911, by defendants from decree of C. P. No. 3, Phila. Co., Sept. T., 1909, No. 773, on bill in equity in case of Henry Kayiey, President, Patrick Dugan, Treasurer, on behalf of themselves and the other Officers and Members of Division No. 3 of the Ancient Order of Hibernians v. Anthony MeCourt et al., Officers and Members of an Alleged Division No. 3, Ancient Order of Hibernians, Beneficial Savings Fund Society and The Sterling Building and Loan Association.
    Before Fell, C. J., Brown, Mestrezat, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Ferguson, J., found the facts and law as follows:
    FINDINGS OF FACTS.
    1. The Ancient Order of Hibernians is a beneficial order duly incorporated under the laws of the State of Pennsylvania.

      2. Division No. 3, of the Ancient Order of Hibernians, a subordinate branch or division of the incorporated body, was organized by the authority of the main body in the year 1872.
    3. From the year 1872 the said Division No. 3 has been known and recognized by the parent or main body and at the time of the filing of the bill in this case there had accumulated from dues, fines, etc., contributed by its members, the sum of $1066, then on deposit in the Beneficial Savings Fund Society, and the additional sum of $468 in the Sterling Building & Loan Association, represented by shares of stock. The sum on deposit and the shares of stock were in the name of the Division No. 8, Ancient Order of Hibernians, and by the rules of the division could be withdrawn only upon resolution of the division authorizing the president or secretary so to do.
    4. The purpose for which the Ancient Order of Hibernians was organized as expressed in its Constitution and By-Laws was: “To promote friendship, unity and Christian charity among its members by raising and supporting a fund of money for maintaining the aged, sick, blind and infirm members; for the payment of funeral benefits; for the advancement of the principles of Irish nationality; for the legitimate expenses of the order and for no other purpose whatsoever.”
    5. In July, 1909, the membership of Division No. 3, Ancient Order of Hibernians, numbered about one hundred and seventeen.
    6. On July 11, 1909, the regular stated meeting was held at St. Michael’s Hall, Germantown avenue and Jefferson street, Philadelphia. About thirty-eight members were present. The then president, Anthony McCourt, one of the defendants, presided. Thomas Cassidy, the then recording secretary; Joseph McGuckin, the then vice-president; Joseph Woods, the then financial secretary, and Michael McNamee, Jr., the then acting treasurer, were present.

      7. At the meeting a resolution was offered by a member named Burns, to the effect that the division sever its connection with the Ancient Order of Hibernians in America and affiliate with the Ancient Order of Hibernians, Board of Erin in Ireland. The motion was debated and the minutes show that the motion was carried unanimously. In point of fact, the motion was not carried unanimously, for Henry Kayley, one of the complainants, voted in the negative. There had been offered previously a motion condemning certain conduct , on the part of the national president, which was adopted by a vote of 31 to 7, and although the vote on the motion to secede was called for and one man voted in the negative, the actual count of the vote was not announced. After further business the meeting adjourned.
    8. On August 8,1909, another meeting was held, 40 to 45 members being present, at which time a dispute arose over the approval of the minutes of the meeting of July 11th. The minutes of the August meeting show that Kayley moved to lay the minutes on the table, which was lost by a vote of one to twenty-nine. In point of fact, the actual motion that was put was this: “All those in favor of reading the minutes to suit Kayley” which was apparently voted down. There was much confusion, in the course of which Kayley was fined. Subsequently a motion was passed to adjourn the meeting sine die, after which the president requested all present to take the obligation as members of the Board of Erin.
    9. After the meeting adjourned as a division of the Ancient Order of Hibernians in America, the president and most of those present adjourned to an ante-room and organized as a division of the Board of Erin. Kayley, on behalf of himself and several other members who refused to leave the room, demanded the money, books and papers of the organization which were refused.
    10. At the time of the meetings in July and August, 1909, Kayley was a member and in good standing.

      11. On August 21, 1909, Kayley and thirteen other members who declined to join the division as a member of the Board of Erin, reorganized by the election of the following officers: President, Henry Kayley; Vice-President, James Bigley; Recording Secretary, Thomas Bros-man; Financial Secretary, Hugh Doyle; Treasurer, Patrick Dugan; Stewards, Patrick Hughes, Michael Daley; Trustees, Thomas Murphy, James Davis and John Carroll. The division as thus reorganized was recognized by the State President of the Ancient Order of Hibernians in America as Division No. 3 of the order.
    12. The Board of Erin is an organization having its original foundation in Great Britain and Ireland, with some divisions in America. It has no organic connection with the Ancient Order of Hibernians in America, but a system of comity and fraternity has for years existed between the two orders, as a result of which members sometimes were enabled to transfer their allegiance from one body to the other without the formality required of new members not affiliated with either body, but this facility of securing entrance to membership was not obligatory, but was optional with the members of the different divisions.
    From these facts the following conclusions of law are made:
    CONCLUSIONS OF LAW.
    1. The majority of the members of the Division No. 3, Ancient Order of Hibernians in America, were without power to remove the organization bodily from one order into another without the unanimous consent of the members. From the facts as found it follows that when a majority of the members present at the meetings in July and August, 1909, decided to secede and to join the Board of Erin their act was the act of individuals and not of the division itself.
    2. The members of the Division No. 3 who refused to secede and who perfected an organization after the secession, which was recognized by the State body, continued and maintained the existence of the division.
    3. The act of secession was not an act of dissolution of Division No. 3, but was a voluntary withdrawal from its membership. These members who remained and preserved the organization are entitled to the possession of the books, papers and other property of the organization and the seceding members are ehtitled to no part or portion thereof.
    4. An injunction should issue restraining the defendants from withdrawing or transferring or in any wise interfering with the funds of the division now on deposit in the Beneficial Savings Fund Society or to its credit in the Sterling Building and Loan Association.
    5. That an injunction should issue restraining the Beneficial Savings Fund Society and the Sterling Building and Loan Association from paying any of the funds in their hands to the credit of Division No. 3, Ancient Order of Hibernians in America, to the defendants, or to any one else other than the properly constituted and authorized officers of Division No. 3, Ancient Order of Hibernians in America, as represented by the complainants herein.

      Error assigned was decree awarding injunction.

      E. Spencer Miller, for appellants.
    This case is ruled by State Council J. O. U. A. M. of Pa. v. Emery, 219 Pa. 461.

      Frank Rogers Donahue, for appellees.
    The proceedings at the July and August meetings were, insofar as they affect the funds and assets of the organization, and the rights of the non-seceding members, illegal and void: Gorman v. O’Connor, 155 Pa. 239; Sutter v. First Dutch Reformed Church, 42 Pa. 511; Manning v. Shoemaker, 7 Pa. Super. Ct. 375; Bose v. Christ, 193 Pa. 13; Garrett v. Nace, 5 Pa. Super. Ct. 475; McFadden v. Murphy, 149 Mass. 341 (21 N. E. Repr. 868).

      March 18, 1912:
   Opinion by

Mr. Justice Stewaet,

This appeal raises no question that was not distinctly ruled in Gorman v. O’Connor, 155 Pa. 239. We do not understand from the argument of the learned counsel for appellant that he entertains any different view. His reliance is upon the later case of State Council Jr. Order United Am. Mechanics of Pa. v. Emery, 219 Pa. 461, which he regards as irreconcilable with that of Gorman v. O’Connor; and his contention is that the later case is to be taken as the controlling authority rather than the earlier. We meet and dispose of the only issue therefore when we settle the question of conflict between the two cases. A brief statement of the facts in each will show how widely dissimilar they are, both with respect to their facts and the questions of law involved. The earlier case presents little to distinguish it from the present one. There, as here, a majority of 'the members of a subordinate division of this same order, acting under the supposed authority of a resolution which had been adopted by a majority vote, undertook to carry the division and its property over to another society with which it had sustained no relations whatever, against the will of a minority, who, adhering to the original order, at once reorganized the division, and re-established it in its relations with the original order. Two contending divisions resulted, each claiming title to the property that had been acquired before the separation. The court held that neither the majority vote, nor the withdrawal of the majority and their uniting with a division of another body, nor both together, had worked a dissolution of the original division, or divested it of any of its rights or powers; but upon the re-organization by those of the minority, immediate resumption of all its functions followed. The governing consideration upon which the determination rested, was the continued existence of the division from which the majority had separated. This fixed its legal status as the rightful owner of the property. In the latter case of State Council Jr. Order United Am. Mechanics of Pa. v. Emery, the State Council of the society, in the exercise of proper authority, revoked and annulled the charter of a subordinate council. This of necessity dissolved the subordinate council, and it at once ceased to exist. The controversy that arose was between the State Council and the persons who had composed the subordinate council, with respect to the moneys which had been collected and had been held by the subordinate council during its existence as a sick and beneficial benefit fund. The subordinate council having ceased to exist, the individuals who, as members of the subordinate council, had contributed the fund, denied the right of the State Council to any part of it or to the control, contending that notwithstanding the dissolution of the council the funds should still be appropriated to the uses for which it had been set apart, that is to say, for the benefit of the sick and families of the dead of those who were members; and the court sustained their contention. To state briefly the distinction between the two cases: Gorman v. O’Connor decides that under the facts of that case there had been no dissolution of division No. 3, but that the division remained in proper exercise of its rights and functions, and consequently that no one was in position to dispute its right to possession and control of its own property. State Counc. Jr. Order United Am. Mechanics of Pa. v. Emery decided that a fund collected by an existing council through voluntary contribution for a specific charitable use, in relief of its own members, was in the nature of a trust fund, and could not be appropriated by State Council upon the dissolution of the subordinate council, but that it remained for the benefit of those for whose relief it was donated. The cases are wholly unalike; indeed, so far apart removed from each other that conflict is impossible. Each is authority for what it decides. The opinion in the later case affords no suggestion that any possible conflict with the earlier was in the mind of the court; and certainly there is none. The contention that the earlier case allowed a diversion of the assets of the society has nothing to support it. The fund there accumulated remained to be employed under the laws and regulations of the society in relief of its members. If in that case some of those who contributed were denied all benefit of the fund accumulated, it was in consequence of their voluntary withdrawal from the society. Ceasing to be members, they had no right to participate.

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


author: Mr. Justice Moschziskeb,

text:
    Stewart v. Central Railroad Company of New Jersey, Appellant.

      Negligence — Railroads—Master and servant — Bralceman—Falling in trestle — Contributory negligence — Question for jv/ry.

    1. In an action by a brakeman against a railroad company, his employer, to recover for personal injuries, tbe case is for the jury, and a verdict and judgment for plaintiff will be sustained, where tbe evidence tends to show that immediately before the accident tbe plaintiff in tbe performance of bis duty descended from tbe train as it stopped, and after tbe train bad started again, ran along a cinder track to make tbe mount, when be tripped and fell on an unplanked trestle which began where tbe cinder path ended, and tbe character of which was unknown to plaintiff.
    2. In such a case the trial judge could not rule as a matter of law that tbe unplanked condition of tbe trestle was an assumed risk of tbe plaintiff’s employment, where the evidence shows that tbe unplanked trestle was, “not only unusual,” but that its condition made it “more dangerous in itself than tbe ordinary one” so situated.
    3. While 'an employee is deemed to assume tbe risks ordinarily and reasonably connected with bis employment, and is presumed to have notice of those which are obvious, tbe employer is fixed with tbe duty to maintain instruments, appliances and conditions which do not expose his employee to dangers not ordinarily or reasonably incident to the employment; the latter has the right to presume that his employer has performed this duty, and he does not assume risks growing out of unusually dangerous conditions not to be reasonably anticipated by him.
    4. Where the measure of duty is a standard of ordinary and reasonable care, the degree' of which varies according to the circumstances, and where the facts are disputed or there is any reasonable doubt as to the inferences to be drawn from them, the issues must be submitted to the jury.
    Argued Jan. 12, 1912.
    Appeal, No. 297, Jan. T., 1911, by defendant from judgment of C. P. No. 4, Phila. Co., Dec. T., 1907, No. 2523, on verdict for plaintiff in case of Harrison H. Stewart v. Central Railroad Company of New Jersey.
    Before Fell, C. J., Brown, Mestrezat, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Carr, J.
    • The facts are stated in the opinion of the Supreme Court.
    At the trial the jury returned a verdict for the plaintiff for $20,000, upon which judgment was entered for $15,000, all above that sum having been remitted. Defendant appealed.

      Errors assigned were in refusing binding instructions for defendant, and in dismissing defendant’s motion for judgment non obstante veredicto.

      Arthur G. Dickson, of Dickson, Beitler & McCouch, for appellant.
    The unplanked condition of the trestle on which the plaintiff tripped was an assumed risk of his employment: Sykes v. Packer, 99 Pa. 465; Brossman v. R. C. Co., 113 Pa. 490; Trainor v. R. R. Co., 137 Pa. 148; Boyd v. Harris, 176 Pa. 484; West v. Southern Pacific Co., 85 Fed. Repr. 392; Narramore v. Ry. Co., 96 Fed. Repr. 298; Tuttle v. Detroit, etc. Ry. Co., 122 U. S. 189 (7 Sup. Ct. Repr. 1166); Southern Pacific Co. v. Seley, 152 U. S. 145 (14 Sup. Ct. Repr. 530); Goldthwait v. Ry. Co., 160 Mass. 554 (36 N. E. Repr. 486); Goodes v. R. R. Co., 162 Mass. 287 (38 N. E. Repr. 500); Ragon v. Ry. Co., 97 Mich. 265 (56 N. W. Repr. 612); Henderson v. Coons, 31 Ill. App. 75.
    The plaintiff was guilty of contributory negligence: Pittsburgh & Connellsville R. R. Co. v. Sentmeyer, 92 Pa. 276; N. Y., L. E. & W. R. R. Co. v. Lyons, 119 Pa. 324; Dooner v. Canal Co., 171 Pa. 581; Gibson v. Ry. Co., 63 N. Y. 449; Finnell v. R. R. Co., 129 N. Y. 669 (29 N. E. Repr. 825); Kansas & T. Coal Co. v. Reid, 85 Fed. Repr. 914.
    The defendant was not negligent: Cunningham v. Bridge Works, 197 Pa. 625; Boyd y. Harris, 176 Pa. 484; Tuttle v. Ry. Co., 122 U. S. 189 (7 Sup. Ct. Repr. 1166); Ragon v. Ry. Co., 97 Mich 265 (56 N. W. Repr. 612); Kerrigan y. R. R. Co., 194 Pa. 98; Batterson v. Ry. Co., 53 Mich. 125 (18 N. W. Repr. 584); Koontz v. Ry. Co., 65 Iowa 224 (21 N. W. Repr. 577); Maue v. R. R. Co., 198 N. Y. 221 (91 N. E. Repr. 629) ; Graham v. Ry. Co., 62 Fed. Repr. 896; West v. Southern Pacific Co., 85 Fed. Repr. 392.

      Francis Shunk Brown, of Simpson, Brown and Williams, for appellee.

    Where the measure of duty is ordinary and reasonable care, and the degree of care varies with the circumstances, the question of defendant’s negligence should be left to the jury: Cohen v. R. R. Co., 211 Pa. 227; Esher v. R. R. & Mining Co., 28 Pa. Super. Ct. 387; McMahen v. White, 30 Pa. Super. Ct. 169; Colorado Midland Ry. Co. v. Brady, 45 Colo. 203 (101 Pac. Repr. 62).
    In many cases it has been held that mere proof of the dangerous obstruction on, or defect in the railroad track, will without more, impute negligence to the railroad company: Choctaw, Oklahoma & Gulf R. R. Co., v. McDade, 191 U. S. 64 (24 Sup. Ct. Repr. 24); Galveston, H. &. S. A. Ry. Co. v. Slinkard, 17 Texas Civ. App. 585 (44 S. W. Repr. 35).
    In the following cases it was held that where ditches, cattle guards, etc., in a yard, or at any point on the roadbed where employees are apt to go in switching and coupling cars, are left uncovered, and the employees fall into them, negligence will be imputed to the defendant: Plank v. N. Y. C. & H. R. R. R. Co., 60 N. Y. 607; (Sliceway under track two feet wide and two feet deep). Franklin v. Winona & St. H. R. Co., 37 Minn. 409 (34 N. W. Repr. 898); Millen v. N. Y. C. & H. R. R. Co., 20 N. Y. App. Div. 92 (46 N. Y. Supp. 748) (ditch 8 to 10 inches deep and 4 inches wide); Hollenbeck v. Missouri Pacific Ry. Co., 141 Mo. 97 (38 S. W. Repr. 723, 41 S. W. Repr. 887) (open ditch 10 inches wide and 8 inches deep; Hennesey v. Chicago & N. W. Co., 99 Wis. 109 (74 N. W. Repr. 554), (ditch from 4 to 6 inches in depth; Davidson v. So. Pacific Co., 44 Federal Repr. 476, (ditch extending across track); Peoria, Decatur & Evansville Ry. Co. v. Puckett, 42 Ill. App. 642, (unnecessary cattle guard caused accident); Korah v. Chicago, etc., Ry. Co., 128 N. W. Repr. 529; Ford v. Ry. Co., 106 Iowa 85 (75 N. W. Repr. 650; Fredenburg v. Ry. Co., 114 N. Y. 582 (21 N. E. Repr. 149); Bird v. R. R. Co., 11 N. Y. App. Div. 134 (42 N. Y. Supp. 888).
    The unplanked trestle, which caused the injury here, was not the usual and customary form of trestle maintained by railroads within yard limits, and was very much more dangerous than the ordinary planked trestle : Cunningham v. Bridge Works, 197 Pa. 625; R. R. Co. v. Hughes, 119 Pa. 307; Vorhees v. Ry. Co., 193 Pa. 115; Whitcher v. R. R. Co., 70 N. H. 242 (46 Atl. Repr. 740); Louisville & Nashville R. R. Co. v. Johnson, 81 Fed. Repr. 679; St. Louis & San Francisco R. R. Co. v. Keller, 62 Pac. Repr. 905; Hannah v. R. R. Co., 154 Mass. 529 (28 N. E. Repr. 682); Ross v. Ry. Co., 101 Minn. 122 (111 N. W. Repr. 951); Sturgeon v. R. R. Co., 93 Pac. Repr. 526; Northern Pac. R. R. v. Teeter, 63 Fed. Repr. 527; Sutherland v. R. R. Co., 43 Fed. Repr. 646; Vaillancourt v. Ry. Co., 82 Vt. 416 (74 Atl. Repr. 99); Plank v. R. R. Co., 60 N. Y. 607.
    The custom of railroads as to planking their trestles was properly submitted to the jury: Kaylor v. R. R. Co., 216 Pa. 134; Bardsley v. Gill, 218 Pa. 56; Pauza v. Coal Co., 231 Pa. 577; Penna. R. R. Co. v. Jones, 123 Fed. Repr. 753.
    If the risk arising from the presence of the unplanked trestle within yard limits was the result of defendant’s negligence, it is not a risk which was assumed by the plaintiff unless it is shown that the plaintiff knew of the danger and disregarded same: Choctaw, Oklahoma & Gulf R. R. Co. v. McDade, 191 U. S. 64 (24 Sup. Ct. Repr. 24); Colorado Midland Ry. Co. v. Brady, 45 Colo. 203 (101 Pacific Repr. 62).
    The plaintiff was not guilty of contributory negligence: Esher v. R. R. & Mining Co., 28 Pa. Super. Ct. 387.
    March 18, 1912:
   Opinion by

Mr. Justice Moschziskeb,

The plaintiff, a freight brakeman in the employ of the defendant Company, had his feet crushed by one of its trains on the night of August 6, 1910, at about 10.30 o’clock, which necessitated the amputation of both legs a few inches below the knee. The train, which consisted of fifty-two loaded cars and a caboose, had been brought to a stand-still by the breaking of an air-hose, at a bridge or unplanked trestle across a creek within the limits of a railroad yard of the defendant Company.

The plaintiff’s testimony shows that, when the train stopped, in the performance of his duties he descended to the ground and started ahead on the right-hand side; after going a short distance he found the walk too narrow, and crossed over to the left-hand side of the train, advancing between the east and west bound tracks. In the meantime the fault had been located and remedied, and the train started. The plaintiff stood and watched “to see that everything was all right;” which he said he understood the rules of the Company and the proper performance of his duties required. He then testified, “Everything seemed to be all right..... I ran along a few steps with the train and got hold of the grab-iron..... as anyone would with anything in motion, and I came on this trestle and my toes went down between the ties, and that threw me off my balance. I still held on the grab-iron, trying to catch myself, so that I could get on the train, but I went down, and that is the last thing I remember.” It appears that the plaintiff ran along a cinderpath that could be used with safety, that this path at the point where the accident happened suddenly terminated at the unplanked trestle which caused him to trip and fall. The plaintiff stated that although he had previously ridden in the cars over this part of the road, his train had never stopped there before and he had no knowledge concerning the condition of the trestle prior to the happening of the accident; further, that in the regular performance of his duties a freight brakeman was obliged to get on and off moving trains; “that it would be impossible to railroad without doing it.” This statement was not denied, and one of the principal witnesses for the defense admitted the custom, stating as to “the ordinary way of mounting a freight train” that “the greater the speed the longer the run you have until you get on. You get the swing of the train, the speed of the train,...... If it is speeding up pretty well you have to run longer until you get the speed of the train to make the mount.” Upon the testimony produced the jury had the right to find that the unplanked trestle in the railroad yard at the point where the accident happened presented an unusual, unsafe and dangerous condition which could easily have been remedied by the use of due and customary care on the part of the defendant company.

All the issues involved were clearly presented by the learned trial judge. The jury were instructed that the plaintiff had to be absolutely free from contributory negligence; that it was for them to say whether or not he was at fault in any of his conduct immediately prior to or at the time of the accident, and if such fault contributed to the happening of the accident, he could not recover; they were also told that it was for them to say whether they would believe the plaintiff’s story, or the version of the defense, as to the accident and certain statements alleged to have been made by the plaintiff which were inconsistent with his testimony; and if they believed the defendant’s version the plaintiff could not recover; and, further, that if the plaintiff’s duties did not require him to act as he did in watching the train and mounting it while it was in motion, he had no right to do so and could not recover. More than this, the court charged that the burden was upon the plaintiff to show the negligence of the defendant; that if the accident happened from any other cause than that alleged by the plaintiff, the verdict would have to be for the defendant; and if the injuries did befall the plaintiff at the place and under the circumstances detailed by him and without any fault on his part, before the jury could bring in a verdict in his favor, they must find that it was the absence of the planking on the trestle that caused the accident and that the condition there was an unusually dangerous one, to be “determined by what is the common use of such planking in connection with railroad management, or maintenance or construction;” that the defendant was only obliged to provide for contingencies that could be ordinarily anticipated, and that it was not bound to keep its entire line of road “as smooth as a floor;” but that if the jury believe under the circumstances of this case “that it was the duty of the defendant reasonably to expect or anticipate that the trestle would be crossed in the way and under the conditions in which the plaintiff crossed it, then it may be negligence not to cover it with planks.” The issues were found in favor of the plaintiff and judgment was entered upon the verdict. The defendant has appealed and assigns for error the refusal of binding instructions and judgment non obstante veredicto in its favor.

While an employee is deemed to assume the risks ordinarily and reasonably connected with his employment, and is presumed to have notice of those which are obvious, the employer is fixed with the duty to maintain instruments, appliances and conditions which do not expose his employee to dangers not ordinarily or reasonably incident to the employment; the latter has the right to presume that his employer has performed this duty, and he does not assume risks growing out of unusually dangerous conditions not to be reasonably anticipated by him. Where the measure of duty is a standard of ordinary and reasonable care, the degree of which varies according to the circumstances, and where the facts are disputed or there is any reasonable doubt as to the inferences to be drawn from them, the issues must be submitted to the jury. Under the peculiar circumstances of the present case the trial judge could not have ruled as a matter of law that the unplanked condition of the trestle which caused the plaintiff to trip was an assumed risk of his employment. A review of the evidence introduced by the plaintiff satisfies us that it could justifiably be found, considering the location, that the unplanked trestle in question was “not only unusual,” but that its condition made it “more dangerous in itself than the ordinary one” so situated; under such circumstances the testimony in relation thereto was proper for the consideration of the jury: Cunningham v. Bridge Works, 197 Pa. 625, 631; Bardsley v. Gill, 218 Pa. 56, 61.

This is not a case involving nice questions of the proper exercise of engineering skill and judgment which certain authorities hold should not he submitted to the varying and uncertain opinions of juries, but falls rather within the line of cases represented by Vorhees v. Lake Shore & M. S. Ry. Co., 193 Pa. 115, and Kaylor v. Cornwall R. R. Co., 216 Pa. 134. In connection with these cases, it may be noted that the present defendant could have anticipated just as readily that the contingency might arise where a brakeman in the performance of his duties would run from the cinder-path on to this unplanked trestle, as the defendant in the Vorhees case could have foreseen the probability that its brakeman would descend from the top of a car at a particular point where there was insufficient space between its tracks, or, in the Kaylor case, that he would do so in the immediate locality of the telegraph pole which caused the injury.

Whether or not the written rules of the company required the plaintiff to stand by and watch for possible defects in the train after it had made a start, it is not necessary to decide; it clearly appeared that the plaintiff, in so doing, and in subsequently mounting the train while in motion, was only acting in a manner usual to railroad men so employed. All of the questions concerning the alleged negligence of the defendant and the contributory negligence of the plaintiff were for the jury and were properly submitted.

Kerrigan v. Penna. Railroad Co., 194 Pa. 98, does not govern the present case. There, “no custom of common carriers was shown from which a reasonable inference of negligence could be drawn from its (the defendant company’s) not ballasting full between the ties; the proof was the other way;” here, there was evidence from which the jury could have found that it was customary for railroads to plank trestles within yards, and, as before stated, the testimony tended to show that the condition of the defendant’s trestle under the surrounding circumstances was unusual and dangerous beyond the ordinary.

The assignments of error are overruled and the judgment is affirmed.