author: Me. Justice Beown,

text:
    Diehle v. United Gas Improvement Company, Appellant.

      Negligence — Gas company — Explosion of gas — Evidence.
    Where a gas company employs a watchman to patrol a street which is being excavated for a public improvement and to report immediately to the company as to any escape of gas, and such watchman is notified by several persons of the odor of escaping gas at a particular point, but makes no report to the company, and nine hours after he was first notified an explosion occurs resulting in personal injuries to a workman employed by the contractor for the improvement, the gas company will be liable in damages for the injuries sustained by the workman.
    Argued Jan. 7, 1909.
    Appeal, No. 252, Jan. T., 1908, by defendant, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1906, No. 2,491, on verdict for plaintiff in case of Charles C. Diehle v. The United Gas Improvement Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Carr, J.
    The facts relating to the accident are stated in the opinion of the Supreme Court.
    Plaintiff presented these points:
    6. If the jury believe that injury, deterioration, settlement or misplacement of the gas mains of the defendant company, which existed at Sixth and Market streets on October 4 and 5, 1906, were a natural or probable consequence of any matter or thing, such as a sewer, a depression or a washout, which existed there in close proximity to the said mains, and that the gas company, or its agents, had knowledge, or by the exercise of reasonable care could have had knowledge of such matter or thing for a sufficient length of time to have made a proper inspection and repair, then it was the duty of the gas company and its agents to efficiently guard against any damage that was likely to result because of the presence of the said matter or thing in proximity to its said mains, and if you believe that such matter or thing existed in proximity to the defendant company’s mains at Sixth and Market streets on October 4 and 5, and that the defendant company or its agents had knowledge or ought to have had knowledge of it, and that by reason of such matter or thing the mains of the gas company were displaced and an explosion brought about which injured this plaintiff, then it is for you to say whether or not the defendant company and its agents did everything that they reasonably could have done in view of the fact that they and their agents knew of it or by the exercise of reasonable care could have known of it, and if you believe that they and their agents did not take such proper precautions, then you would be justified in finding that the defendant company was negligent. Answer: Affirmed. [2]
    7. If you believe that the defendant company, or its agents, either knew or ought to have known of any matter or thing such as a sewer, a depression or a washout, in the neighborhood of its gas- mains at Sixth and Market streets on October 4 and 5, 1906, which would weaken or have a tendency to weaken same, or which would cause or have a tendency to cause its mains to become leaky, then it was in duty bound to take cognizance of the existence of such matter or thing, and to take whatever precautions were necessary to guard against injury to its pipes, and if you believe that it failed so to do, and that because of the said matter or thing, its system of mains and pipes subsequently became impaired and leaky, and that the said impairment and leakage was brought about because the said defendant company had not taken such special precautions, then you would be justified in finding the defendant company guilty of negligence. An

      swer: That is the rule, provided you determine and find that the defendant company, or its agents, had a sufficient period of time after the discovery of the defect to make the proper repair for the protection of its mains. [3]
    Defendant presented these points:
    1. The burden of proving either the specific act of negligence that caused the explosion, or such circumstances as would justify the inference that the degree of care required by the law was not observed by the defendant is upon the plaintiff. The plaintiff has failed to prove any specific act of negligence on the part of the defendant or any circumstances justifying the inference that the defendant was negligent. Your verdict must, therefore, be for the defendant. Answer: That point is refused. [4]
    2. The plaintiff’s statement of claim alleges that the defendant allowed its gas mains to be so out of repair and to get into such a leaky and dangerous condition that the gas which was supposed to be confined therein escaped therefrom and caused an explosion. There is no evidence in the case from which the jury would be justified in finding that any of the gas mains of the defendant became out of repair and got into a leaky and dangerous condition through any neglect on the part of or act committed by the defendant; there being no proof to support the allegation contained in the statement of claim, the plaintiff cannot recover in this action. Answer: That point is refused. [5]
    3. There is no evidence in the case that the defendant or its employees had any actual knowledge that its mains were broken at the northwest corner of Sixth and Market streets prior to the explosion, nor is there any evidence of circumstances prior to the explosion which justify the inference that the defendant or its employees ought to have known that its mains were so broken. The defendant cannot be held to have been negligent in failing to repair the mains before the explosion, unless it appears that the defendant or its employees had either actual or implied knowledge of the existence of the breaks in the mains a sufficient time prior to the explosion to have had them repaired. As there is no such evidence in this case, your verdict must be for the defendant. Answer: That point is refused. [6]
    Verdict and judgment for plaintiff for $3,000. Defendant appealed.

      Errors assigned were (2-6) above instructions, quoting them.

      R. Stuart Smith and Charles E. Morgan, for appellant.
    Not a single witness went farther than to say that there was an odor, that it was reported to Leans and that Leans “did nothing." What Leans did, if such reports were made to him, no man is competent to swear, unless he was with Leans every minute of the night. The man is dead, and there is a presumption that he did whatever his duty required. This presumption has not been rebutted by the plaintiff's witnesses.
    The common-law presumption is, that every one does his duty until the contrary is proved: Penna. R. R. Co. v. Weber, 76 Pa. 157; Haughey v. Pittsburg Railways Co., 210 Pa. 363; Hanna v. P. & R. Ry. Co., 213 Pa. 157; Unger v. P. B. & W. R. R. Co., 217 Pa. 106.
    Assuming that the jury might infer from the fact that witnesses smelled illuminating gas, that the gas in some manner somewhere came from the defendant company’s system; still there can be no recovery unless the plaintiff also proves, either directly or circumstantially, that the gas escaped from the system through some negligent act or omission of the defendant. There cannot ordinarily be direct proof of negligence, but the books are full of cases where the result was accomplished by circumstantial evidence: Strawbridge v. Philadelphia, 2 Penny. 419; Morgan v. United Gas Imp. Co., 214 Pa. 109.
    In every one of the recent gas cases where a recovery was permitted, there was evidence in addition to the mere escape of gas from the main, from which an inference of negligence on the part of the defendant could fairly and reasonably be drawn by the jury: Koelsch v. Philadelphia Co., 152 Pa. 355; Heh v. Consolidated Gas Co., 201 Pa. 443; Hartman v. Gas Co., 210 Pa. 19; Olive Stove Works v. Port Pitt Gas Co., 210 Pa. 141; McCoy v. Gas Co., 213 Pa. 367; Shirey v. Gas Co., 215 Pa. 399.
    The law as applied in all these cases required the plaintiff at the trial to prove the condition of the mains, and this the plaintiff’s counsel undertook to do. .
    When there is no evidence from which a jury could reasonably find that the defendant ought to have known of a dangerous condition in time to repair it, the courts have not hesitated to enter a nonsuit or to give binding instructions for the defendant: Aument v. Penna. Telephone Co., 28 Pa. Superior Ct. 610; Garland v. City of Wilkes-Barre, 212 Pa. 151; Yeager v. Berwick Borough, 218 Pa. 265.

      William H. Wilson, with him Joseph P. Rogers and Francis M. McAdams, for appellee.
    It is a well-settled principle of law that a higher degree of care and diligence is necessary in dealing with a dangerous agency, such as gas, than in the ordinary affairs of life or business, and the dealers in such dangerous agencies must take every reasonable precaution suggested by experience to guard against the escape of their gas: Koelsch v. Philadelphia Company, 152 Pa. 355; Shafer v. Lacock, 168 Pa. 497; Fisher v. Ruch, 12 Pa. Superior Ct. 240; Matthews v. Railroad Co., 18 Pa. Superior Ct. 10; Lewin v. Pauli, 19 Pa. Superior Ct. 447; Levinson v. Myers, 24 Pa. Superior Ct. 481.
    The fact that the negligence of a third party concurs in bringing about an accident does not relieve the defendant where such negligence was a danger which he was bound to appreciate and provide against: Butterman v. McClintic-Marshall Construction Co., 206 Pa. 82; Railroad Co. v. Daugherty, 11 W. N. C. 437; Philadelphia & Reading R. R. Co. v. Anderson, 94 Pa. 351.
    The case was for the jury: Oil City Gas Co. v. Robinson, 99 Pa. 1; Heh v. Gas Co., 201 Pa. 443; Shirey v. Gas Co., 215 Pa. 399; Lewis v. Boston Gas Light Co., 165 Mass. 411 (43 N. E. Repr. 178); Koplan v. Gas Light Co., 177 Mass. 15 (58 N. E. Repr. 183); Butcher v. Gas Co., 12 R. I. 149; Hartman v. Citizens’ Nat. Gas Co., 210 Pa. 19; Lee v. Gas Light Co., 98 N. Y. 115; Ottersbach v. Philadelphia, 161 Pa. 111; Olive Stove Works v. Gas Co., 210 Pa. 141; Philadelphia Co. v. Traction Co., 165 Pa. 456; McKenna v. Gas Co., 198 Pa. 31.
    October 11, 1909:
   Opinion by

Me. Justice Beown,

On the argument of this appeal we were much impressed by what was said by the learned counsel for appellant in asking us to reverse the judgment in favor of the appellee, but our subsequent examination of the evidence has satisfied us that the single question in the case — appellant’s negligence —was for the jury.

That the appellee was injured by an explosion of gas which came from the pipes of the appellant was clearly established. At the time of the explosion he was in the employ of the Millard Construction Company, which was engaged in excavating the bed of Market street, between Sixth and Seventh streets, in the city of Philadelphia, for the construction of a subway. The excavation was on the north side of Market street, just west of Sixth. Its north edge was about two feet south of the north curb of Market street. The appellant, the United Gas Improvement Company, maintained certain gas mains at the corner of Sixth and Market streets. A ten-inch main ran east and west on Market street, between the north curb of that street and the north line of the excavation. A six-inch main ran north and south on Sixth street, three feet and ten inches east of the west curb of that street. It crossed and connected with the ten-inch main on Market street through an appliance called a “ cross,” which was also north of the subway excavation. To guard against any injury which might result from the escape of gas from its pipes at Sixth and Market streets, where the excavation for the subway was in progress, the appellant had employed a man named Leans, whose duty it was to patrol both sides of the street that was being excavated for the purpose of detecting the odor of escaping gas, and, if the same was detected, to report the escape at once to the company’s office. William H. Smith, a superintendent of the defendant company, testified as follows: “We had a man named Frank Leans that we called a watchman. His duties were to patrol both sides of the street that was excavated looking for any defects so far as the odor of gas was concerned and report to our office. . . . Q. Was Mr. Leans the only man there in the employ of the United Gas Improvement Company, and was he stationed at that very section at night on the night of October 4th? A. He was the only man under instruction to patrol. Q. And to report any trouble? A. Yes, sir. . . . Q. What was your system at night when no work was being done by the construction company? A. We simply kept the watchman for to patrol in case there would be any settlement and bring about a rupture of the pipe and, consequently, the odor of gas, and he would notify us. . . . Q. You said that it was a part of Mr. Leans’ duty if there was an unusual odor of gas there to report it to the office, is that so? A. Yes, sir.” The following is from the testimony of Samuel B. Turnier, a foreman employed by the appellant and called as a witness by it: “Q. Leans was the only night man you had there that night? A. Yes, sir. Q. He was under your control; you were his boss?. A. To start him in at night. He had a paper where he had to go around — he would leave the box, you see, and he would go around and come down to Broad and Arch, and he would ’phone and keep going all the time. Q. He made all his reports by ’phone there at Broad and Arch? A. Yes, sir; and if anything happened, and he had ’phones all around the neighborhood. Q. He had ’phones all around the neighborhood which were there for his use? A. No, not only for his use. Q. But he was instructed to use them in case there was anything wrong? A. Yes, sir.” After stating that the duty of his men was to notify him at once if there was any faint smell of gas, no matter where it was, this witness further testified as follows: “ Q. That was also Leans’ duty was it, the night man? A. He was to report right to the office. Q. It was his duty if there was a faint odor of any gas to make a report? A. Not to go near it himself but to call the office. Q. To call whoever were in charge of the office and notify them to that effect? A. Yes, sir; he was in my charge when I started in at night. To be sure there was a man there at night. Q. And you told him when he started in that if he smelled any gas he should report it to the office? A. Not only that, but the next morning he should give me a note of what happened. . . . Q. Your men, that is, the employees of the United Gas Improvement Company, were the only men who were permitted to make any repairs or have anything to do with your gas mains? A. Yes, sir. Q. You would not permit anyone else to have anything to do with it? A. Yes, sir, even if there was a dead main along there we would not allow anyone else to break it out.”

Leans was on duty on the night of October 4,1906, and was told by the appellee, between nine and ten o’clock, that there was an “awful leak” of gas at Sixth and Market streets. The appellee had noticed the odor of gas throughout the entire day, which seemed to grow stronger towards evening. Other witnesses testified that they noticed this odor during the night and, as the night wore on, it became heavier. The reply of Leans to the appellee, when told of the escaping gas, was, “Go on back, that is all right, there is no danger there.” This, without more, was sufficient to submit to the jury the question of the appellant’s negligence. The explosion occurred at 6:30 on the morning of October 5, and the appellant had received actual notice of the escaping gas nine hours before. Well knowing the duty that rested upon it of exercising a high degree of care to prevent the escape of the dangerous substance under its exclusive control, and of promptly staying such escape when notified of it, the appellant had employed a watchman to give it instant notice of any escape of its gas; but he was faithless, and the law charges his infidelity to it. Notice to him of the escaping gas was notice to his employer, and, no matter how it escaped, the company could not permit the escape to go on imperiling life and property. Its unquestioned duty was to act the instant the escape was brought to its attention. Much more, however, was proved than the notice to Leans between nine and ten o’clock of the night of October 4th that the gas was escaping. At about two o’clock on the morning of the 5th Diehle hunted him up and told him that the gas was so strong he could not work. Leans walked up with him to the hole at Sixth and Market streets where he had been working, but declined to do anything. For an hour or two before this there had been a heavy rainfall, and there were holes and depressions in the street, to which the attention of Leans was called, but again he did nothing. His reports to his company throughout the night were that everything was “O. K.” That he failed in the discharge of the duty which had been imposed upon him by his employer was a fact that the jury were bound to find. As stated, nine hours before the explosion occurred he was first told of the escaping gas, and continually afterwards by several persons, but he paid no heed to it. If he had reported promptly, as was his duty, the cause of the escaping gas might have been discovered and the flow stopped. If the escape of gas was due to the fracture of the pipes, caused by their sinking after having been undermined by the rain or by water from a broken sewer, the gradual sinking might have been stayed within the time that elapsed between the discovery of the holes and the depression in the street and the explosion, and the fracture might have been prevented. Without taking from the jury the question of a leak from a defective joint, the court expressed the opinion that the weight of the evidence was that the gas had not so escaped. The finding of the jury evidently was that the escape was due to a fracture in the pipe, but, be this as it may, under the evidence there were three questions of fact for their determination, which were resolved against the defendant: First, was the gas escaping from the pipes of the defendant company for nine hours before the explosion occurred? Second, did the employee of that company, whose special duty it was to be on the watch for escaping gas, know that it was escaping and fail to give notice to the company? And, third, was there sufficient time after he knew the gas was escaping to have stayed the further escape before the explosion occurred?

The answers to the points, which are assigned as error, were correct, and, as the case could not have been taken from the jury, the judgment is affirmed.


source: Caselaw Access Project

author: Mb. Justice Bbown,

license: Public Domain

text:
    Gochnauer, Appellant, v. Union Trust Company.

      Contract — Option to sell real estate — Deed—Escrow.
    Where an owner of a mill property gives an option to a promoter for the purchase of the same in consideration of stock of a company to be organized by the promoter, and as a part of the option agrees to sell, if he so desired, the grain and flour on hand to the new company, and thereafter the owner deposits his deed for the mill with a trust company, in escrow, to be delivered to the new corporation on receipt of the stock of the company, and about a month after the stock is delivered to him, he sells his grain to the new company, and receives cash therefor, he cannot in an action against the trust company complain that certain promises of the promoter to himself had not been carried out, and that the trust company, knowing this, had delivered the deed for stock which turned out to be worthless, where it appears that prior to the sale of the grain he knew that the promises had not been kept.
    Argued Jan. 12, 1909.
    Appeal, No. 256, Jan. T., 1908, by plaintiff, from order of C. P. No. 2, Phila. Co., Sept. T., 1905, No. 1,725, refusing to take off nonsuit in case of George C. Gochnauer v. The Union Trust Company.
    Before Mitchell, C. J., Fell, Brown, ' Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit for breach of an agreement relating to the deposit of a deed in escrow. Before Sulzberger, P. J.
    At the trial it appeared that the plaintiff had deposited with the defendant in escrow a deed for a flour mill owned by himself. The consideration for the deed was stock in a corporation about to be organized. When the trust company received the stock for the plaintiff it was to deliver the deed to the new corporation. This arrangement was carried out and-the plaintiff received his stock. About a month after-wards the plaintiff in pursuance of an arrangement which he had with the promoter of the new corporation made prior to the deposit of the deed in escrow, sold his stock of grain on hand to the new company, and received cash therefor. He complained that certain promises made to him by the promoter had not been kept, and that the trust company had delivered the deed knowing of these promises and that they had not been kept. When the plaintiff was on the stand, his counsel made the following offer:
    Mr. Schoch: I propose to show by the witness upon the stand that at the time of, and prior to, the signing of the agreement between Mr. Jackson and himself, there was an understanding with Mr. Jackson that of the two mortgages upon Mr. Gochnauer’s property, one thereof for $4,000, afterwards reduced to $3,500, was to be paid by Mr. Jackson, for which Mr. Jackson was to receive preferred and common stock of the same company, to which the plaintiff was to be entitled, and that this was an inducing cause to this plaintiff to sign his agreement, and that this was one of the representations which induced him to sign the agreement.
    Objected to by defendant on the ground that it is nothing to do with the case. Objection sustained. Exception to plaintiff. [5]
    I propose to show by this witness that Mr. Locker, the then president of the Eastern Milling and Export Company, gave to the witness on the stand a statement of the assets and liabilities of the Eastern Milling and Export Company, dated as of December 31, 1901, and that following some correspondence with the plaintiff, Mr. Locker said that the $3,500 which should have been paid, in our view of the case, by Mr. Jackson on the plaintiff’s property, was paid by the Union Trust Company out of the bond issue.
    Objected to by defendant. Objection sustained. Exception to plaintiff. [6]
    Mr. Schoch: I propose to prove by the witness on the stand that on May 15, 1901, at the time Mr. Henry C. Niles delivered to the witness the certificates of the stock in suit, he said to the witness that he was acting for the Union Trust Company and that he knew that the conditions of the witness’s agreement with Mr. Jackson had been complied with, and also that it was upon this condition and upon this inducement that the witness transferred his receipt to Mr. Niles and took from him the two certificates of stock.

      Objected to by defendant. Objection sustained. Exception to plaintiff. [7]
    Mr. Schoch: I offer to prove by this witness on the stand that at the time he took his deed to the office of the Union Trust Company, together with the receipt which he had prepared, and met Mr. Harper there; that they had a conversation, wherein the so-called preferred stock clause of the Jackson agreement was discussed and its meaning and intent arrived at; that the conclusion on both sides was that the intent and meaning of that clause was that the properties were to be purchased solely with preferred stock; that nothing else was to be paid for the properties going into the consolidation; that the mortgage which was to be placed upon the combined working mills was to be for a sum approximating $800,000; that the proceeds thereof were solely to be used as working capital; that not one cent of it should be paid for profits, expense or anything of that nature; and that upon this understanding of that clause of the agreement, with Mr. Harper, the gentleman left his deed to be delivered when the Jackson agreement was carried out in accordance with its terms and with the understanding.
    Objected to by. defendant. Objection sustained. Exception to plaintiff. [8]
    The court entered a compulsory nonsuit which it subsequently refused to take off.

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

      R. W. Woods, with him L. M. Schoch, for appellant.
    Waiver is a question of fact for the jury: Collins v. Houston, 138 Pa. 481; Richardson v. Moyer, 155 Pa. 174; Chalfant v. Goldbeck, 173 Pa. 354.
    The alleged waiver did not induce the breach complained of, and therefore could not act as an estoppel, if the same had been found by the jury: Waters v. Wolf, 2 Pa. Superior Ct. 200; Sensinger v. Boyer, 153 Pa. 628.

      James Collins Jones, for appellee.

      October 11, 1909:
   Opinion by

Mb. Justice Bbown,

On. February 28, 1901, the appellant gave to Newton Jackson a written option to purchase his mill, situated in Cumberland county, subject to a mortgage of $3,500. Jackson was the promoter of an enterprise for the consolidation of a number of mills in eastern Pennsylvania. By the terms of the option the appellant agreed to execute a deed to him, or to a corporation to be designated by him, and to accept as payment for his property $10,500 in six per cent preferred stock of the Eastern Milling and Export Company, or such other company as might be organized by Jackson to acquire the said property, and, in addition, $10,500 in common stock of such company. The option provided that the deed should be deposited in escrow with the Union Trust Company of Philadelphia on or before March 15,1901, and, upon Jackson’s delivery to the appellant of the said preferred and common stock, the deed was to be recorded in the office for the recording of deeds at Carlisle and the mill was to become the property of Jackson or of some company to be 'designated by him. The option further provided that the preferred stock issued by the Eastern Milling and Export Company should be limited to such an amount as might be necessary to purchase milling properties; that no preferred stock should be issued for profit to any attorney, underwriter, promoter or trust company; that Jackson or the purchasing company should pay to the appellant cash for his stock of grain, flour and feed on hand at the time of the transfer, and that if Jackson should fail to comply with the terms and conditions of the option, as above set forth, on or before June 1, 1901, the said trust company was to return the deed to the appellant. He executed a deed for his property to one Murphy, a grantee substituted with his consent, and took it to the trust company, with a receipt for the same prepared by his attorney, setting forth certain terms and conditions in addition to those appearing in the option under which the deed was to be deposited in escrow. The president of the trust company refused to sign this receipt, but gave one in the following form:

“No. 1901.
“Received of George C. Gochnauer, depositor, deed dated March 25th, 1901, from George C. Gochnauer and wife to Joseph C. Murphy for property situated in Monroe Township, Cumberland County, Pa., to be held in escrow under terms of agreement dated February 28th, 1901, between the depositor and Newton Jackson.
“The Union Trust Company.”

Having been notified that the stock which he had agreed to take for his property was ready for him, the appellant accepted the same on May 15, 1901, and surrendered the receipt which had been given to him by the trust company. The enterprise which Jackson had undertaken to promote met the common fate of most of such ventures, and the appellant in time became dissatisfied with the stock which he had taken in exchange for his property. Having ultimately found it to be worthless, he brought this suit against the Union Trust Company to recover $10,500, the supposed cash value of the stock at the time he accepted it. His allegation is that his loss is due to the failure of the trust company to perform its duty to him. In support of his claim he insists that certain promises were made to him by Jackson as the inducements to him to give the option; that these promises were that there would be placed on the consolidated mills a mortgage securing bonds, the proceeds of which would be used solely for working capital; that whenever it might become necessary to furnish money to pay off the indebtedness on mills, Jackson and those interested with him would furnish the money and take preferred and common stock in place of the mill owners, that the scheme of consolidation might not be interfered with; that the deeds for all of the properties would be deposited in a trust company which would hold the same until Jackson and those interested with him would carry out their part of the plan, in which event the deeds would be delivered and recorded, but if the plan was not carried out, they would be returned to the owners; that the foregoing promises, which did not appear in the option, were made known to the president of the trust company at the time the deed was deposited with it in escrow, and he agreed, on behalf of the company, that they should be performed. ■

The appellant admits that when he took the deed to the trust company he had with him a receipt prepared by his attorney, which set forth terms and conditions in addition to those in the option, upon which the trust company was to accept the deed in escrow. These differed materially from those appearing in the option, and.the president of the trust company not only refused to sign the receipt, but declined to give one in any other form than the one which the appellant accepted. It recites that the deed would be held in escrow under the terms of the agreement with Jackson of February 28, 1901. By that agreement no duty was imposed upon the trust company in connection with the issuing of the stock of the Eastern Milling and Export Company, or to supervise in any manner the management of its finances. The duty of the trust company was to hand over the deed whenever the appellant received the stock which he had agreed to take for his property. There was no attempt to prove that the stock which was given to him had not been regularly issued, but, whether it had been or not, it was his duty to see that it had been so issued at the time he accepted it. His acceptance ended the escrow tested by the written option.

At a meeting of the stockholders of the Eastern Milling and Export Company held in July, 1901 — early in July is the time fixed by the appellant — he heard from a written report read by C. L. Harper, a director of the company and the president of the Union Trust Company, the appellee, that the promises of Jackson, which had induced the execution of the option, had not been kept. The learned trial judge was of opinion that there was proof of a failure on the part of the appellee to keep its promise to have Jackson’s agreements carried out, and that but for what the appellant did after he learned that this promise had not been kept, the question of the appellee’s liability would be for the jury. We express no opinion as to the sufficiency of any legal .proof of any duty imposed upon the appellee to the appellant which it failed to perform, but are of one mind that, for the reason given for entering the nonsuit, it cannot be taken off. With full knowledge obtained by the appellant in the early part of July, 1901, that the appellee had not done what he alleges it had agreed to do as a protection to him, on the last day of that month he availed himself of one of the terms of the option, and, in doing so, affirmed the delivery of the deed to the Eastern .Milling and Export Company and estopped himself from thereafter questioning the performance of any duty to him on the part of the appellee. Jackson or the milling company was to pay him the cost value for his stock of grain, flour and feed on hand at the time of the transfer. On July 31,1901— nearly a month after he knew the matters of which he now complains — he sold, in accordance with the terms of his contract with Jackson, his stock of grain on hand to the milling company and received the money for it from the funds of that company. Instead of repudiating his contract with Jackson and insisting upon the return of his property or the payment of its value, he reaffirmed the agreement under which his deed had passed and tacitly approved all that had been done. He evidently thought that the combination of the mills would still prove to be a financial success, making his stock valuable, and when, two years later, bankruptcy overtook it and disappointment came to him, his loss resulted from the risk that he continued to take for a consideration paid to him after full knowledge of the facts which he now alleges give him a cause of action against the appellee. The law will not permit him thus to play fast and loose. Nothing in the excluded offers, if admitted, would change the situation. The assignments of error are overruled and the judgment is affirmed.


author: Mr. Justice Brown,

text:
    Girvin, Appellant, v. Union Trust Company.

      Contract — Deed—Escrow.
    Where a trust company receives a deed in escrow to deliver it upon the receipt of a portion of the stock of a new corporation, which stock is the consideration for the deed, and the trust company assumes no responsibility as to the organization of the new corporation, and the grantor accepts the stock and gives a receipt in full settlement of the consideration named in his agreement with the promoter of the corporation, and the trust company is guilty of no neglect or fraud, it cannot be held liable to the grantor for a loss resulting from the depreciation in the value of the stock for which the deed was delivered.
    Argued Jan. 12, 1909.
    Appeal, No. 257, Jan. T., 1908, by plaintiff, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1905, No. 2,257, on verdict for defendant in case of John E. Girvin and Charles R. Koch, copartners trading -under the firm name of P. B. Mingle & Company, v. The Union Trust Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit for breach of an agreement. Before McMichael, P. J.
    At the trial it appeared that the defendant received from the plaintiff the deed of a mill property to be held in escrow until a new corporation was organized, when the deed was to be delivered to the new company upon receipt from it for a portion of its stock. The transaction was completed and the defendant received from the plaintiff the following receipt:
    “Received April 20, 1901, certificate No. 14 for 400 shares of common stock and number 49 for 500 shares of preferred stock of the Eastern Milling & Export Company in full settlement of consideration named in above agreement.”
    There was no evidence that the company had assumed any responsibility for the organization of the new corporation, or that it had been guilty of any neglect or fraud.
    The court gave binding instructions for defendant.

      October 11, 1909:

      Error assigned among others was in giving binding instructions for defendant.

      R. W. Woods, with him L. M. Schoch, for appellant.

      James Collins Jones, for appellee.
   Opinion by

Mr. Justice Brown,

These appellants were caught in the same net that enmeshed the appellant in the preceding case. When they received the stock which they had agreed to accept for their property they gave a receipt for the same as being in full settlement of the consideration named in their agreement with Jackson. In the judgment of the learned trial judge there was no sufficient evidence offered to set aside this receipt, nor was there proof of the failure of the appellee to perform any duty which it owed to the appellants. Our examination of the evidence has led us to the same conclusion, which would not be changed if any of the excluded offers had been admitted. The details of the case are of interest only to the parties to it, and a recital of them here is not needed. The twenty-nine assignments of error are overruled, and, for the reasons given by the court in directing a verdict for the defendant, the judgment on it is affirmed.


text:
    Richie, Appellant, v. Philadelphia.

      Public officers — Increase of salary — :Constitutional officers — Legislative officers — Real estate assessors.

    1. Real estate assessors in counties having a population of 1,000,000 or over are public officers within the meaning of sec. 13, art. Ill, of the constitution of Pennsylvania, which provides that: “No law shall extend the term of any public officer, or increase or diminish his salary or emoluments, after his election or appointment.” Such officers are not entitled to the benefit of the Act of May 31, 1907, P. L. 329, which increases the salaries of real estate assessors in counties having a population of 1,000,000 or over from $2,000 to $3,000.

      October 11, 1909:
    2. An office is a public one within the meaning of the constitution if the holder of it exercises grave public functions and is clothed at the time being with some of the powers of sovereignty.
    3. The term “public officers” is not restricted merely to officers created by constitutional provisions, but applies to officers who exercise important public duties, have delegated to them some of the functions of government, and whose offices axe for a fixed term and whose powers, duties and emoluments become vested in a successor, when the offices become vacant.
    4. A consideration of the duties imposed upon real estate assessors leaves no doubt that the relation which they sustain to the maintenance of government is of such consequence that they should be considered public officers. The functions which they perform are of prime importance. Their duties are designated by statute; they serve for a fixed period; act under oath, the duties they perform are semi-judicial in character and their services are indispensable in the fiscal system as established by the state.
    Argued Jan. 15, 1909.
    Appeal, No. 329, Jan. T., 1908, by plaintiff, from judgment of Superior Court, Oct. T., 1907, No. 235, affirming judgment of C. P. No. 4, Phila. Co., June T., 1907, No. 3,823, for defendant on case stated in suit of James E. Richie v. Philadelphia.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Appeal from Superior Court.
    The facts appear from the report of Richie v. Philadelphia, 37 Pa. Superior Ct. 190, and the opinion of the Supreme Court.

      Error assigned was the judgment of the Superior Court affirming the judgment of the lower court on case stated.

      John C. Bell and John G. Johnson, with them Chester N. Farr, Jr., and Charles L. Brown, for appellant.

      Ernest Lowengrund, assistant city solicitor, with him J. Howard Gendell, city solicitor, for appellee.
   Opinion by

Mr. Justice Brown,

By the Act of May 31, 1907, P. L. 329, the salaries of real estate assessors in counties having a population of 1,000,000 or over were fixed at $3,000 per annum. At the time of the approval of this act the appellant was one of the real estate assessors of the county of Philadelphia, to which the act applied, having been appointed on December 31, 1903, to serve for a period of five years from the date of his appointment. His salary, as fixed by the act of April 12, 1873, was $2,000 per annum, and the court of common pleas, sustained by the Superior Court (Richie v. Philadelphia, 37 Pa. Superior Ct. 190), denied him the increase claimed under the act of May 31, 1907, on the ground that its provisions did not extend to him in view of sec. 13, art. Ill, of the constitution, which prohibits the increase of the salary or emoluments of any public officer after his election or appointment.

Two reasons are assigned why the judgment of the Superior Court should not be sustained. The first is that the clause in the constitution prohibiting the increase of the salary of a public officer after his election or appointment applies only to public officers who hold constitutional offices. A real estate assessor is not such an officer, for his office is not one of those named in the constitution, and a clear distinction is recognized by our cases between a constitutional office enjoying exemption from legislative interference and control and one wholly legislative, created and abolished at the legislative will. This distinction, however, is not the real question before us. What we are again called upon to decide is whether the thirteenth section of the third article of the constitution is broad enough, and was so intended by the framers of the constitution, to extend to all public officers (except those saved by the constitution itself) upon whom grave and important duties are imposed for a fixed term, and who, for the proper performance of the same, have, during the term of their election or appointment, delegated to them some of the functions of government. The third article of the constitution is, throughout its thirty-three sections, a restraint upon the powers of the general assembly, and if its thirteenth section was intended to apply only to the comparatively few offices created by the constitution, with which alone state, county and municipal government could not be administered, such intention- would certainly have found expression somewhere in the article upon legislation. That the narrow construction for which the learned counsel for the appellant contend is not to be placed upon the thirteenth section we have distinctly ruled in two cases, and substantially so in others. In Brooke v. Commonwealth, 86 Pa. 163, the suggestion upon which the writ of quo warranto issued averred that on July 8, 1875, Downing, a member of select council from one of the wards of Philadelphia, had resigned; that by the laws in existence at the time of his election his term of office would have expired on the first Monday of January, 1877; that by virtue of the act of March 10, 1875, passed after his election, his term of office had been extended to the first Monday of April, 1877. The answer of respondent was that Downing’s term had not been affected by the act of March 10, 1875, because of the constitutional provision that no law shall extend the term of any public officer after his election. The demurrer to the answer having been overruled by the court below and a writ of error taken to this court, we said in sustaining the demurrer: “Under the law in force at his election, Downing’s term expired in January, 1877. The constitution of 1874 forbade his extension by legislative enactment.” Subsequently, in Houseman v. The Commonwealth, 100 Pa. 222, in answer to the contention that municipal officers were not intended to be embraced in the term “officer” as used in sec. 4, art. VI, of the constitution, which provides that all officers shall hold their offices during good behavior, and appointed officers, other than judges of the courts of record and the superintendent of public instruction, may be removed at the pleasure of the power by which they are appointed, we said, through Green, J., that the words “office,” “officers” and “any public officer” mentioned in sec. 13, art. Ill, of the constitution, “are used with a generality of expression which plainly includes those of the state, county and municipality;” and it is to be regarded as settled that an office is a public one within the meaning of the constitution if the holder of it exercises grave public functions and is clothed at the time being with some of the powers of sovereignty.

The second reason urged why the appellant should have judgment is that, even if the constitutional prohibition is not limited to constitutional officers, he is not a public officer. In every case in which the question arises whether the holder of an office is to be regarded as a public officer within the meaning of the constitution, that question must be determined by a consideration of the nature of the service to be performed for the incumbent and of the duties imposed upon him, and whenever it appears that those duties are of a grave and important character, involving in the proper performance of them some of the functions- of government, the officer charged with them is clearly to be regarded as a public one. In the performance of his statutory duties this appellant fixed, in the first instance, the values of properties as the basis upon which they were to be assessed for the purpose of raising revenues for the maintenance of the city and county governments and the support of the public schools. In passing judgment upon these values it may be said that he exercised semi-judicial functions, the proper exercise of which was of the gravest importance to the entire community. By the proper test he was held by both the common pleas and Superior Court to have been a public officer in commission at the time of the passage of the act of 1907, and, in vindication of the judgment of the Superior Court nothing is to be added to the following from its opinion: “The second contention is that even if the constitutional prohibition is applicable to legislative as well as constitutional officers, nevertheless, a real estate assessor cannot be properly considered a public officer. It is no doubt true that there are many persons engaged in the public service in subordinate positions exercising functions of such an inferior character that they could not be properly considered public officers within the meaning of the constitution; this much is indicated in Com. v. Black, 201 Pa. 433, and Houseman v. Com., 100 Pa. 222, in the latter of which the court expressed the opinion that policemen, firemen, watchmen and superintendents of public property under the orders of the municipal department were subordinate ministerial agents or employees, at the most, petty officers not intended to be embraced in the constitutional provision, and, therefore, subject to appointment and removal according to legislative regulation. Where, however, the officer exercises important public duties and has delegated to him some of the functions of government and his office is for a fixed term and the powers, duties and emoluments become vested in a successor when the office becomes vacant, such an official may properly be called a public officer. The powers and duties attached to the position manifest its character. A consideration of the duties imposed upon real estate assessors leaves no doubt in our minds that the relation which they sustain to the maintenance of government is of such consequence that they should be considered public officers. The functions which they perform are of prime importance. Their duties are designated by statute; they serve for a fixed period; act under oath, the duties they perform are semi-judicial in character and theii; services are indispensable in the fiscal system as established by the state. It was decided in Williamson’s Est., 153 Pa. 508, that assessment is primarily the work of the assessors, axxd the powers of the board of x’e vision extend only to the work of revision. If the assessor neglect to put a valuation on any property he has listed the board may supply the omission, and where property that should have been assessed has been overlooked by the assessor the boai’d may place it on the list and fix its value. Their only authority, to make a valuation exists where the assessors have omitted to make it. The assessors alone are invested with power to list the property and fix its value in the first instance. A proper discharge of their duties is a matter of great consequence to the taxable inhabitants and involves judgment, intelligence, integrity and a wide knowledge of values. That the office was considered important is shown by the limited number of such officials in the city of Philadelphia and the considerable compensation accorded, to them. The duties imposed place them in a position of such dignity and responsibility that they may well be considered public officers and as such subject to the operation of sec. 13 of art. III of the constitution.”

No one of the cases cited in support of appellant’s contentions conflicts with the foregoing views. It may be proper to refer to two of them upon which great reliance seems to be placed. In Kilgore v. Magee, 85 Pa. 401, the question whether the appellant was a public officer within the meaning of sec. 13, art. III, of the constitution was not discussed in the opinion of the court overruling the five specific objections to the constitutionality of the act under consideration. The decrees were on demurrers to the bills, from the face of which it evidently did not appear to the court that Kilgore was a public officer. At all events, it was said of him that he was filling the place of a mere public servant of the municipality. In the very next volume of the reports, Brooke v. Commonwealth, supra, a member of council — a municipal officer, but one clothed with legislative functions — was held to be a public officer within the terms of the constitution. The question in Com. v. Weir, 165 Pa. 284, was not as to the extension of the term of the chief burgess, but as to its curtailment. The constitutional restriction is not upon the abridgment or abrogation of a non-constitutional public office, but upon the extension of the same. Weir’s office was abridged, and, in abridging, it, the legislature violated no constitutional prohibition. “If the provision were 'no law shall abridge the term of any public officer,’ it might well be contended that what cannot be curtailed cannot be abrogated, but the instrument contains no such language. The salary 'may not be increased or diminished,’ but what is declared of the term is simply that it 'shall not be extended.’ To say that this means that the office shall not be abolished, or its duration shortened, would be to wrest the words of the organic law to a purpose which it does not disclose: Hare, J., in Donohugh v. Roberts, 11 W. N. C. 186. For the reason thus given by this very learned judge the constitutional prohibition was not violated in the Weir case.

The assignment of error is overruled and the judgment for the appellee is affirmed.


author: Mr. Justice Mestrezat, Mr. Justice Stewart,

text:
    Powell’s Estate.

      Decedents’ estates — Husband and wife — Widow’s election — Conditional election.

    1. While the privilege or right of election, of a widow between a
    provision made for her in her husband's will, and her statutory interest in his estate is conferred upon the widow, she is limited to a choice between the two provisions; she cannot accept a part of the devise or bequest in her favor and demand a part of the statutory provision made in her behalf; nor can she accept the provisions of the will on any condition which would change its terms. Thus she cannot elect to accept the provisions of the will on condition that she shall receive a portion of the testator’s estate different from that devised or bequeathed her in the will. She has but one choice between the two alternatives; neither does her right of election depend upon the quantum of the estate which she may receive under the will or under the statute, and it is not affected by the interest which the other beneficiaries of the estate may receive. ^
    2. Where a testator by his will divides his estate into six equal parts and gives one part to his second wife, and divides the other five parts among his five children by his first wife, and thereafter two children are born to him by his second wife, but he dies without changing his will, an election by the widow to take an eighth part on condition that the estate shall be divided into eight parts of which her own children shall each receive an eighth, is an invalid election, and may be subsequently disregarded by her. If, in such a case, the invalid election is addressed in writing to the executor and signed by the widow alone, and not by any of the other parties in interest, the writing will not be construed as a family agreement, and the widow may elect to take her statutory interest in tlie estate against the will, as if no such paper were in existence.
    Argued Feb. 1, 1909.
    Appeal, No. 325, Jan. T., 1908, by William S. Powell, from order of O. C. Lehigh Co., June T., 1902, No. 14, dismissing exceptions to auditor’s report in Estate of John M. Powell, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to report of Samuel A. Butz, Esq., auditor.
    From the record it appeared that John M. Powell died on April 19, 1901, leaving to survive him a widow, Elizabeth A. Powell, and seven children, five of whom were by a former wife, and two, Helen and Ruth, by the second marriage. On July 24, 1901, a will was probated, the date of which was April 5, 1895, which was before the birth of Helen and Ruth. By this will testator divided his entire estate into six equal shares, giving one share to his wife and the remaining five to each of his five children. Testator died without making any change in his will. On July 24, 1901, the widow delivered to the executor the following paper:
    “Allentown, Pa., July 24, 1901.
    “I, Elizabeth Ann Powell, widow of John M. Powell, deceased, do hereby signify my desire and intention to accept under the provisions of the will of John M. Powell as probated July 24, 1901. It being understood that all the children, including Helen and Ruth are to share equally with me in the estate, each to receive one-eighth of the estate being convinced that this was the desire of my husband, I hereby now accept the provisions of the will instead of my share under the intestate laws of Penna. subject to the including of Helen and Ruth, my daughters, and understanding that the estate is to be divided into eight shares instead of six shares.
    “[Signed] Elizabeth A. Powell.
    “[Signed] O. R. B. Leidy,
    “A. G. Dewalt."
    On October 23, 1901, the widow addressed to the executor the following paper:
    “Thomas M. Powell, Esq., Executor of the last will and testament of John M. Powell, deceased.
    “Sir:
    “Take notice that I, Elizabeth A. Powell, widow of John M. Powell, late of the City of Allentown, Pennsylvania, deceased, decline to take under the will of my deceased husband, notwithstanding the paper signed by me on July 24, 1901, electing to take under the same. At the time of signing said paper I was wholly ignorant of my rights under the law, and-I was in no way conscious of my legal rights and the rights of my two children.
    “[Signed] Elizabeth Ann Powell.
    “Witnesses present:
    “ Edward Harvey,
    “Calvin E. Arner.
    “Allentown, Pa., Oct. 23, 1901.”
    The auditor found that the widow was bound by the paper. dated October 23, 1901, and therefore reported in favor of dividing the estate into eight equal shares, and distributing it between the seven children and the widow.
    Exceptions to the auditor's report were sustained in an opinion by Trexler, P. J., and the account was referred back to the auditor. In a supplemental report the auditor allowed the widow one-third of the estate, and distributed the remainder amongst the seven children, share and share alike.

      Errors assigned were in dismissing exceptions to the auditor’s supplemental report.

      Arthur G. Dewalt, for appellant.
    The learned court ignored the fact that the act of assembly read into the will the names of both Ruth and Helen, after-born children, and that the law made the will not only one which included the five children then born, but the two after-born children. Mrs. Powell was fully informed of that fact, if this testimony can be believed, and therefore she was, in matter of law and in matter of fact, receiving just what the will gave her, if she signed the paper, namely, one-eighth. She was not adopting a dual course, or a mixed course, as suggested by the court below: Cunningham’s Est., 137 Pa. 621; Light v. Light, 21 Pa. 407.
    It must be remembered that in this case there was not an implied election, but as we contend, an express election, evidenced by a writing under the hand of the widow. There is a difference, we think, in the power of retraction, where the election is explicit and express, provided it is fairly and properly made, and where the election is to be inferred from acts done. In the latter case every act depended upon must show a clear intention to elect; so clearly that it is inconsistent with any other honest intent: Butricke v. Broadhurst, 1 Ves. Jr. 171; Anderson’s App., 36 Pa. 476.
    October 11, 1909:

      Edward Harvey, for appellee.
    The paper of July 24, 1901, is not an election to take under the will, either in form or substance; and it is not an election in law or fact: Bliss v. Geer, 7 Ill. App. 612; Almy v. Harris, 5 Johns. 175; Norwood v. Lassiter, 132 N. C. 52 (43 S. E. Repr. 509); Priest v. Foster, 69 Vt. 417 (38 Atl. Repr. 78); Cunningham’s Est., 137 Pa. 621; Newman v. Newman, 1 Bro. C. C. 186; Chalmers v. Storil, 2 Ves. & B. 222; Kidney v. Coussmaker, 12 Ves. Jr. 136; Woodurn’s Est., 138 Pa. 606; Miller’s Est., 159 Pa. 562; Bierer’s App., 92 Pa. 265; Elbert v. O’Neil, 102 Pa. 302; Bradfords v. Kents, 43 Pa. 474; Anderson’s App., 36 Pa. 476; Cox v. Rogers, 77 Pa. 160; Kreiser’s App., 69 Pa. 194.
    A widow having given notice of her intention to take against the will, it is still within the discretion of the auditing judge up to the time of adjudication to permit her to withdraw her election: Barry’s Est., 13 Phila. 310; Maffet’s Est., 6 Kulp, 452; Toomey’s Est., 2 W. N. C. 682; White’s Est., 23 Pa. Superior Ct. 552.
   Opinion by

Mr. Justice Mestrezat,

The facts material to our disposition of the case may be briefly stated. John M. Powell died April 19, 1901, testate, leaving a widow, five children by his first wife, and two children by the last wife. In his will, probated July 24, 1901, he disposes of his residuary estate as follows: “ On my death it is my will expressly declared that all of my estate then remaining be divided into six equal shares or parts, and I hereby give devise and bequeath to my beloved wife Elizabeth A. Powéll one of those equal shares or parts being one-sixth of my estate.” The other five-sixths of his residuary estate he divides equally among his five children by his first wife. At the date of the will, April 5, 1895, Helen and Ruth, the two children by his last wife, had not been born and no provision was made for them therein.

The decedent was at first supposed to have died intestate, and letters of administration on his estate were granted to his brother. About three months after his death, the will was discovered and probated. On the day of the probate, the widow executed the following paper: “I, Elizabeth Ann Powell, widow of John M. Powell, deceased, do hereby signify my desire and intention to accept under the provisions of the will of John M. Powell as probated July 24, 1901. It being understood that all the children, including Helen and Ruth, are to share equally with me in the estate each to receive one-eighth of the estate being convinced that this was the desire of my husband, I hereby now accept the provisions of the will instead of my share under the intestate laws of Perm a., subject to the including of Helen and Ruth, my daughters, and understanding that the estate is to be divided into eight shares instead of six shares.” Notwithstanding this paper, the widow on October 23, 1901, gave the executor notice that she declined to take under the will. The auditor appointed to distribute the estate found that the widow “signed the paper with a full understanding of all her legal rights as the widow of John M. Powell, and that she was fully informed as to the nature, kind and amount of the estate, real and personal, of John M. Powell, deceased.” The auditor held that the widow was, therefore, bound by her election and awarded her one-eighth of the fund for distribution. The orphans’ court reversed the auditor, holding that the widow was not bound by the election made by the paper of July 24, 1901, because it was made under a misapprehension of her rights.

We are satisfied, after an examination of the testimony, that the learned counsel for the estate advised the widow fully as to her rights and the amount of her deceased husband’s estate prior to her signing the paper of July 24, 1901. We do not, however, regard the fact whether she was so advised or not as material to the disposition of this appeal. In our judgment, the paper in question is not an election to take under or against the will as contemplated by the statute, and hence does not prevent her from asserting her statutory rights in her deceased husband’s estate.

A married woman has an interest in the estate, real and personal, of her husband of which she cannot be deprived except by her own act. While he may dispose of his property by will, his wife’s interest therein cannot be defeated by such testamentary disposition. On the death of the husband, intestate, the statute gives a specific portion of his estate, after the payment of debts, to his widow. If he die testate, his widow may accept the provisions made for her in his will or she may renounce them and elect to take her statutory share or portion of his estate. Her right of election is personal and can be exercised only by herself. If she fail to make an election within twelve months after her husband’s death, she may be cited by the court to do so. While the privilege or right of election between a testamentary prolusion and her statutory interest in her deceased husband’s estate is conferred upon the widow, she is limited to a choice between the two provisions. She may acquiesce in or consent to the provision made by her husband for her and receive such provision in lieu of her statutory interest in the estate; or she may renounce the testamentary disposition and assert her right to the interest in the estate given her by the law. There is no other or middle course for her to pursue. She cannot accept a part of the devise or bequest in her favor and demand a part of the statutory provision made in her behalf. She cannot accept the provisions of the will on any condition which would change its terms. She cannot elect to accept the provisions of the will on condition that she shall receive a portion of the testator’s estate different from that devised or bequeathed her in the will. She has but one choice between the two alternatives: the provisions of the will or her statutory interest in the estate. Neither does her right of election depend upon the quantum of the estate which she may receive under the will or under the statute, and it is not affected by the interests which the other beneficiaries of the estate may receive. As said in Cunningham’s Est., 137 Pa. 621, 628: “She must make her choice, and it is will or no will. . . . The election which the widow is required to make is between rights, not between benefits. She has the right to abide by her husband’s disposition of his property, or the right to override it and claim under the intestate law. These rights are inconsistent, and cannot coexist. She has always the choice which she will assert, but the choice is of one or the other, not both, and does not legally depend in any degree on the mention or omission of her in the will, or on the quantum of benefits she receives or renounces under it.”

In the present case, it is conceded that there was no implied election, but it is contended that the paper of July 24, 1901, signed by the widow, was an express election to take under her husband’s will. If, therefore, this paper is not effective as an election to take under the will, the widow is entitled under her election of October, 1901, to her statutory interest in her husband’s estate.. As to Helen and Ruth, the children born after the date of the will, the testator died intestate: Grosvenor v. Fogg, 81 Pa. 400; Wilson v. Ott, 160 Pa. 433; and they are “entitled to such purparts, shares and dividends of the estate, real and personal, of the deceased, as if he (the testator) had actually died without any will:” Act of April 8, 1833, sec. 15, P. L. 249. So far, therefore, as those two children and their interests in the estate are concerned, the testator died intestate and they are each entitled to the one-seventh of his personal property absolutely and to the one-seventh of his realty, subject to the widow’s dower. The failure to provide for the pretermitted children revokes the will pro tanto. They do not take by virtue of its provisions, and their statutory interest in the estate is not affected by it.

Turning now to the testator’s will it will be observed that he made no provision for his after-born children, but divided his residuary estate into six equal parts, giving one of those parts to his widow and the other five parts to the five children by his first wife. Owing to the fact that the residuary estate' will be diminished to the extent of the interest of the after-born children therein, it is apparent that the widow cannot receive the one-sixth of the whole estate given her in the will. As suggested above, each of those two children take one-seventh of the personalty and one-seventh of the realty, subject to the widow’s dower. The residuary estate, therefore, is diminished to that extent; and the amount received by the widow will necessarily be less than that given her by the will. If, therefore, she had accepted unconditionally the provisions of the will in lieu of her statutory interest in her husband’s estate, she could not receive absolutely the one-sixth of her husband’s entire estate given her by the will.

But aside from other considerations, the paper of July 24, 1901, is not an election to take under the testator’s will. This is apparent on the face of the paper itself. Referring to its contents it will be observed that in the first part the widow signifies her “desire and intention to accept under the provisions of the will.” This is not an absolute, positive election, but a simple declaration of a desire and an intention to accept' the testamentary provisions made for her. The next sentence in the paper discloses a conditional acceptance, viz.: that if her two daughters are permitted to share equally with her and the other children in the estate she will accept the provisions of the will. That is, if her daughters, Helen and Ruth, each receive one-eighth of the estate, she will likewise accept one-eighth of the estate “instead of my share under the intestate laws of Penna.” The last clause of the paper makes her acceptance of the provisions of the will distinctly “subject to the including of Helen and Ruth, my daughters, and understanding that the estate is to be divided into eight shares instead of six shares.” The effect of the paper, therefore, is that the widow will accept one-eighth of the. residue of her husband’s estate, provided her two daughters, Helen and Ruth, each receives a like share. This is a condition which cannot be attached to a valid acceptance. Beyond that, and absolutely destructive of the acceptance, is, as shown by the paper itself, that she does not accept the one-sixth of the residue of the testator’s estate which is given her by the will, but the one-eighth of the estate which is not given her by the will. Whether she receives more or less by accepting the one-eighth instead of one-sixth share of the estate is wholly immaterial so far as the validity of her acceptance of the provisions of the will is concerned. The statute does not give her the right to change the distribution made by the testator nor to make a new or other will for him. It confers upon her simply the right to say “yea” or “nay,” when called upon to elect whether she will accept the provisions of the will or her statutory interest in the decedent’s estate. In the paper of July 24, 1901, she has not exercised her election as permitted by the statute, but attempts to distribute the estate in equal shares between herself and the seven children of her husband, thereby giving each the undivided one-eighth part of the estate, instead of accepting the provisions of the will which gives her the one-sixth part of the estate. That this cannot be done is clear on reason, and is distinctly ruled in Cunningham’s Est., 137 Pa. 621.

The paper signed by the widow is not a family arrangement, nor an agreement of any kind between the widow and other parties, as no other party is named in it or consents to it by attaching his signature. It cannot be considered a family agreement in any aspect of the case, but must be accepted simply as an abortive attempt on the part of the widow to accept the testamentary disposition made for her in her husband’s will. Unless we hold that a widow may, by her acceptance, make a distribution of her husband’s estate contrary to and different from that made in his will, we must declare the paper of July 24, 1901, inoperative and ineffective as an acceptance by his widow of the provisions of John M. Powell’s will. If the paper had been intended as a family agreement, it should have so declared, and should have been signed by all the interested parties. The widow then, like the other beneficiaries, would have been bound by its terms, and the estate would be distributed in accordance therewith.

From what has been said it follows that the attempted acceptance by the widow in the paper of July 24, 1901, is inoperative, and that her election on October 23, 1901, entitled her to her statutory interest in her husband’s estate.

The decree of the court below is affirmed.

Mr. Justice Stewart,

concurring:

I concur in this affirmance; but I would rest the decision on the broader, and, as I think, the more certain ground, that where a widow makes a voluntary election to take under or against her husband’s will, the way is open to her to retract so long as nothing has been done under her election to alter the condition of the estate. She is concluded by her election made in court after twelve months from her husband’s death, because the act of assembly expressly so declares; but the case is totally different where the election is voluntary. We have no act of assembly providing for or even recognizing a voluntary election; nevertheless, it is entirely competent for a widow, in order to expedite a settlement of the estate, to make her election in advance of the period fixed by the statute when she may be required to do so. When she makes such an election, however attested, it is simply a declaration of a purpose which she is entirety free to retract, except as it has induced action upon the part of others which would 'make it inequitable to allow her to choose differently. I know of no legal ground on which a denial of such right can rest, except as the election is shown to establish some contract relation. This may be the case where the election enters into and is part of a family settlement; but where, as here, it is a matter simply between the widow and the executor of the will, intended to serve no other purpose than to guide the executor in the settlement and distribution of the estate, it has not the first element of contract until acted upon. Cases abound where the widow has been held to an election voluntarily made, but always on equitable considerations. If nothing has been done under her election, no part of the estate converted or distributed, and no one prejudiced, there can be no ground for equitable interference by way of restraint. In this case the retraction came within a few months after the election had been made. During the interval not a single step had been taken in the settlement of the estate, and it is not pretended that the situation had changed with resp'ect to the estate or the situation of the parties interested therein. I would rest the decision on the sufficiency both in law and equity of the widow’s retraction.


author: Mr. Justice Potter,

text:
    Anspach v. Philadelphia & Reading Railway Company, Appellant.

      Negligence — Railroads—Crossing—“Stop, look and listen” — Ignorance of crossing — Signals—Speed of train.

    1. Where a man is killed in the darkness of night by a railroad train while driving a wagon across a grade crossing, it cannot be set up as an excuse for his not stopping, looking and listening before going upon the crossing that he was ignorant of the country, and was unaware of the existence of the crossing.
    2. The negative testimony of witnesses in a grade crossing accident case that they did not hear a whistle blown, or a bell rung is not enough to make out a charge of negligence against the railroad company, as against the positive affirmative testimony of witnesses who did hear the signals, and who were in a position to know.
    3. In such a case the railroad company cannot be convicted of negligence in running a train at an excessive speed over a country crossing in the nighttime, where the uncontradicted testimony is that the train was not running at a rate of more than twelve miles per hour, and was under such control that it was brought to a standstill at the crossing when not more than half of the train had passed.
    Argued Feb. 16, 1909.
    Appeal, No. 319, Jan. T., 1908, by defendant, from judgment of C. P. Schuylkill Co., March T., 1904, No. 233, on verdict for plaintiff in case of Julia Anspach v. Philadelphia & Reading Railway Company.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for death of plaintiff’s husband. Before Marr, J.
    The circumstances of the accident are stated in the opinion of the Supreme Court.

      October 11, 1909:
    The court refused binding instructions for defendant.
    Verdict and judgment for plaintiff for $7,000. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      John F. Whalen, for appellant.
    Appellant contends that the imperative rule of “stop, look and listen” applies to Anspach under all the facts of the case: Baker v. Penna. R. R. Co., 182 Pa. 336; Garlich v. Ry. Co., 131 Fed. Repr. 837; Wade v. Western Maryland R. R. Co., 220 Pa. 578.
    The court should have given binding instructions for the defendant on the ground that ample notice of the approach of the train was given, and that deceased negligently placed himself in a position of obvious danger: Baker v. R. R. Co., 182 Pa. 336; Hess v. R. R. Co., 181 Pa. 492; Gleim v. Harris, 181 Pa. 387; Gangawer v. R. R. Co., 168 Pa. 265; Mulvaney v. Ry. Co., 213 Pa. 343; Blotz v. R. R. Co., 212 Pa. 154; Dryden v. R. R. Co., 211 Pa. 620; Wade v. R. R. Co., 220 Pa. 578; Yevsack v. R. R. Co., 221 Pa. 493.

      James B. Reilly and W. J. Whitehouse, with them C. A. Whitehouse, for appellee.
    Where there is any uncertainty as to the facts or the inferences to be drawn from them, the case is necessarily for the jury: Unger v. R. R. Co., 217 Pa. 106; Longenecker v. R. R. Co., 105 Pa. 328; Bard v. Ry. Co., 199 Pa. 94; Seifred v. R. R. Co., 206 Pa. 399; Kuntz v. R. R. Co., 206 Pa. 162.
   Opinion by

Mr. Justice Potter,

In this action, Julia Anspach seeks to recover damages for the death of her husband, alleged to have been caused by the negligence of the defendant.

The plaintiff’s husband, John Anspach, resided at New Philadelphia, Schuylkill county. He was a miner by occupation and was also constable of the borough. On the morning of November 19, 1903, at an early hour, he left his home to join two neighbors, for the purpose of going on a hunting trip to the eastern part of the county. They rode in a buggy, Anspach and one of his companions upon the seat, and the other, who was driving, seated on their laps. On the way they were joined by four other men, who rode behind them in another conveyance. In order to reach the hunting grounds, they passed through the borough of New Ringgold, about ten miles southeast of New Philadelphia. At this point the road upon which they were traveling, crossed at grade, and at right angles, the track of the Little Schuylkill Railroad, a branch of the Philadelphia and Reading, which runs from Port Clinton to Tamaqua, the crossing being seventy feet south of a railroad station, and being that of an ordinary country road. According to the testimony of the companions of Anspach, they were not aware of the location of the railroad, and were not on the lookout, but drove straight to the crossing, without stopping, or looking or listening for the approach of a train. Just as the horse reached the track, a freight train going south reached the crossing. The horse was turned by the driver, or veered to one side of its own accord, and sustained little injury; but the buggy was struck and demolished, its occupants were thrown out, and Anspach fell under the wheels of the train, and received injuries from which he died in a few hours. The train was made up of an engine and forty-two freight cars and was running down grade, by gravity, at a speed, according to the engineer, of ten or twelve miles an hour. It carried a burning headlight, and two other lights on the engine, and approached the crossing on a straight track from a point 2,000 feet distant. There is ample evidence to show that the whistle was blown several times before the train reached the crossing, and that the bell was rung continuously from a point about 1,200 feet above the crossing down-to the moment of the collision. The usual station equipment of lamps for a country station was in place and burning, such as a large lamp in front, semaphore lights a short distance from, and opposite the station, and a light in the operator’s office. Yet Anspach and his companions apparently neither heard nor saw anything to indicate danger to them, until they drove almost into the approaching engine. The accident occurred about six o’clock in the morning of a November day, while it was yet dark. Not so dark, however, but that the travelers could, as they testified, distinguish teams and vehicles which they met upon the road.

The first question which, arises in the consideration of this case, is whether there is any evidence of any neglect, by the defendant company, of any duty which it owed Anspach. Whether or not he was acquainted with the locality, was not definitely shown. His companions testified that they did not know the location of the railroad, and for that reason they did not stop, look or listen, as they approached the track. But the defendant company was not to blame for any ignorance in this respect upon the part of Anspach. It was not its duty to hunt him up and inform him of the location of its line. Had the approach of these parties been made in daylight, no excuse could have been offered for their failure to observe the railroad and take the usual precautions against danger. Nor can anything be fairly predicated in favor of Anspach and his companions because they were traveling in the darkness. If they chose to use the highway at night they incurred the risk of encountering such obstacles as might lawfully be found along the line of travel. The railroad was where it had the lawful right to be, either by day or by night. It is plainly the duty of parties wishing to travel over an unknown road at night, to inform themselves in advance of possible dangers that may beset their way. Certainly in the present case, the defendant company cannot justly be held responsible for the results of the ignorance of Anspach and his companions. The increased risk of traveling by night was one which they assumed, and it is not to be cast upon the defendant company.

Undoubtedly it is the duty of a railroad company in approaching a crossing in a rural community to run at a reasonable rate of speed, and to give proper warning by means of signal, or the blowing of a whistle or the ringing of the bell. In this respect the evidence is clear and convincing that every reasonable requirement was met. The evidence of the train crew is that the whistle was blown several times, and at three distinct places, as the train slowly approached the station and the crossing. The bell was also rung continuously for quite a distance, and for some time before the collision. There was no testimony on the part of the plaintiff that the whistle was not blown or the bell rung. The witnesses on that point for plaintiff, merely said they did not hear the whistle or bell. Negative testimony of this character, by those who did not hear, as against the positive, affirmative testimony of witnesses who did hear, and who were in a position to know, is not enough to make out a charge of negligence: Hauser v. Central R. R. Co., 147 Pa. 440. We held in Newhard v. Penna. R. R. Co., 153 Pa. 417, where eleven witnesses testified that they heard the whistle, as against plaintiff's testimony that he did not hear it, that the court must treat the allegation that the whistle was blown as a fact, “because of proof that convinces an unprejudiced mind beyond a reasonable doubt.”

In Knox v. P. & R. Ry. Co., 202 Pa. 504, we held as set forth in the syllabus that: “The testimony of one witness, a passenger, that a train approached a crossing without ringing a bell or sounding a whistle, contradicted by the engineer, fireman, conductor and brakeman, is insufficient to carry a case to the jury on the question of the railroad company's negligence.”, And in Keiser v. Lehigh Val. R. R. Co., 212 Pa. 409, we again held as summed up in the syllabus, that: “In a railroad grade crossing accident case, the negative testimony of nine witnesses that they did not hear the whistle blown nor the bell rung on a stormy and windy night, amounting only to a scintilla, cannot prevail against the overwhelming and positive testimony of fourteen witnesses, which conclusively established the fact that these duties were performed. In such a case the trial judge is warranted in giving binding instructions to the jury to return a verdict in favor of the defendant.” It further appears definitely that the train was not running at a rate of more than twelve miles per hour, and was under such good control, that it was brought to a standstill at the crossing, when not more than half of the train had passed. So that in none of these things does it appear from the evidence that there was any neglect of duty upon the part of the defendant company. The trial judge would have been justified in taking the case from the jury, for want of sufficient evidence to justify a verdict against the defendant.

In addition to this, we can find nothing in the evidence to show any reasonable excuse for the neglect of Anspach and his companions to take notice of the approach of the train, as they drove to meet it, at the crossing. If they did not see the signal lights at the station, the headlight of the approaching locomotive, and on'e upon an engine standing near by; nor hear the repeated blasts of the whistle, and the ringing of the bell, and the rumbling of a long train of freight cars, then indeed must they have made but little use of their senses.

A careful examination of the evidence in this case leads us to the irresistible conclusion that no negligence upon the part of the defendant company was shown, and that the unfortunate accident which occurred resulted from the heedlessness of the parties who suffered from it. The responsibility for disposing of this case should have been assumed by the court.

The assignments of error are sustained, and the judgment is reversed.


text:
    Izydorczyk v. Reading Car Wheel Company, Appellant.

      Negligence — Master and servant — Dangerous machine — Failure to instruct.

    1. Where two inexperienced workmen in a manufacturing establishment are directed to work at a dangerous machine without any instruction as- to how to operate the apparatus, or as to how to use without danger a portion of the machine which had worn smooth or shiny, and one of the men is injured while the two are jointly operating the machine, the question of the employer’s liability for the injuries sustained is for the jury.
    2. In such a case a workman who had left the establishment ten or eleven months before the accident may testify, not as to the smooth and shiny condition of the particular device at the time of the accident, but that such part grew smooth and shiny through use, and that in that condition it became dangerous, and that he had frequently reported this to the superintendent.
    Argued March 1, 1909.
    Appeal, No. 297, Jan. T., 1908, by-defendant, from judgment of C. P. Berks Co., Aug. T., 1907, No. 44J, on verdict for plaintiff in case of Thomas Izydorczyk v. Reading Car Wheel Company.
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Endlich, P. J.
    The facts are stated in the opinion of the Supreme Court.
    When John Schultz was on the stand the following offer was made:
    Mr. Nicolls: Plaintiff offers to prove by the witness on the stand that when the hook by which this hammer was lifted had been used for some time it became worn and that a slight touch or pulling of the rope attached to the hook would catch it. Also that after it had become worn the hammer would, when lifted, fall, either without any known cause or from the touching of the machinery for lifting the hammer or from the touching of the rope attached to the hook. That this happened on numerous occasions to the witness’s knowledge and that he had reported the matter to the superintendent in charge of the works and the superintendent had done nothing to remedy it. To be followed by evidence that the machinery and apparatus for breaking car wheels was in the same condition as to operation at the time that this man worked at it and at the time that Izydorczyk was injured. This for the purpose of showing negligence on the part of the defendant.
    The Court: You mean that the hook was the same hook?
    Mr. Nicolls: Not the same hook. But we have already shown that the hook was worn: now we will show by this that if it was worn it was very liable to slip.
    Mr. Derr: As of what time do you propose to have the witness say that?
    Mr. Nicolls: The whole period he was there.
    Mr. Derr: That is, to May, 1905?
    Mr: Nicolls: Yes, sir.
    Mr. Derr: We object to that, because the witness left there in May, 1905, which is perhaps ten or eleven months before the happening of the accident; it is too remote from the time of the happening of the accident, to be pertinent for the showing of the condition of the apparatus at the time of the accident. And, moreover, the offer itself shows that there is better evidence, because the. offer contemplates a showing that the apparatus remained in that condition up to the time of the accident; so the plaintiff has witnesses who can show the condition of that apparatus at the time of the accident and just before. It is therefore not the best evidence.
    Mr. Nicolls: I think the offer shows that the operation was the same, the method of operation was the same at the time that this man was there and at the time that the accident happened to Izydorczyk.
    Mr. Derr: With that explanation, the offer is open to another objection, and that is, that the smoothness of the hook which it is proposed to show by this witness was a smoothness that existed ten or eleven months before, and it is not proposed to show that there was that smoothness or any similar condition at the time of the happening of the accident.
    The Court: I take it that the offer is to prove in substance by a man who has had six years’ experience in the handling of this machine that one of the results of the use of it was that from time to time the hook that held this hammer became smooth and that when that was the case the hammer was more apt to fall and became more dangerous, of course, to anybody working under it or in the neighborhood of it than when the hook was in a new condition?
    Mr. Nicolls: Yes, sir.
    The Court: That the defendant had been notified of that fact and omitted to renew the hook which was in place at the time when this plaintiff’s injury occurred; is that the idea?
    Mr. Nicolls: That is about it.
    Mr. Derr: I want to add to my objections that the testimony is generally irrelevant and incompetent.
    The Court: Admitted, as bearing upon the duty of the defendant. Exception for defendant. [1]
    The court instructed the jury in part as follows:
    [In the first place as to the defective machine. You have seen this apparatus and you know all about it from what you have yourselves seen and from the testimony. The question for you to determine will be, Was there anything wrong with it that caused the hammer to fall? You understand that a defect in a machine which does not produce the injury is of no consequence in the case. The question is, Was there anything wrong with this machinery that made the hammer fall when it fell and injured the plaintiff?] [2]
    [When we come to the allegation that this machine was defective, I don’t recall anything in the case except the claim that this particular hook had been in use for a considerable length of time and that it had worn, and so had the eye into which it was inserted holding the hammer — that the defendant company had notice of this — and that the tendency of this was to cause the hammer to drop even when the hook was properly inserted, without the agency of the pulling of the releasing rope or cord. That will be a question for you to determine. Was that true? Was there anything in this hook and in the eye that was out of repair? Was there any knowledge of that on the part of the defendant company? Was it their business to change that, to make any different arrangement about that than what they had? Was there anything wrong, in short, with this machinery, and if there was anything wrong with it, did that or did that not cause the dropping of the hammer.] [3] '
    Verdict and judgment for plaintiff for $2,660. Defendant appealed.

      October 11, 1909:

      Errors assigned were (1) rulings on evidence, quoting the bill of exceptions; (2, 3) above instructions, quoting them, and (6) in refusing binding instructions for defendant.

      Cyrus G. Derr, with him James B. Mercer, for appellant.—
    The court below should have given the jury binding instructions to find for the appellant: Wojciechowski v. Sugar Refining Co., 177 Pa. 57; Reese v. Clark, 146 Pa. 465.

      Frederick Nicolls, of Rick & Nicolls, with him Stevens & Stevens, for appellee.
    The case was for the jury: Lebbering v. Struthers, 157 Pa. 312; Zearfoss v. Norway Iron, etc., Co., 218 Pa. 594; Oil Co. v. Torpedo Co., 190 Pa. 350; Folk v. Schaeffer, 186 Pa. 253; Hughes v. Fayette Mfg. Co., 214 Pa. 282; Bardsley v. Gill, 218 Pa. 56; Sopherstein v. Bertels, 178 Pa. 401.
   Opinion by

Mr. Justice Potter,

The plaintiff in this case sought to recover damages for personal injuries, resulting from the alleged negligence of his employer. The trial in the court below resulted in a verdict and judgment for the plaintiff, and the defendant has appealed. It appears from the evidence, that at the time of the accident, plaintiff had been working for seven months, as a laborer, for the defendant. Upon the day in question, the superintendent came to plaintiff and ordered him to go to work upon the “drop.” Another laborer, Nowartarski, who had been employed by defendant about five months, was also sent to work at the “drop.” This was an apparatus used to break car wheels. It was located in a shed, over forty feet high, and consisted of a lump or ball of iron, weighing about 1,800 pounds, called the hammer. There was a ring or eye on the upper side of the hammer, into which fitted an iron hook suspended from the roof of the shed by a wire rope. There was a rope that startled an electric motor by which the hammer could be raised to the roof, and another, attached to the hook, by which the latter might be released from the eye upon the hammer. It was the duty of the workmen to place the hook in the eye, as the hammer lay on the floor, then to raise it about six feet and while holding it stationary at that point, to place two car wheels beneath it, one upon the other, then to raise it to the roof and, pulling the rope which released the hook, permit the hammer to fall upon, and break the wheels underneath. After the fragments of the broken wheels had been removed, the process was repeated. When the hammer was properly hooked, two iron fingers held the hook in place by force of gravity, until it was released by pulling the release cord.

Both plaintiff and Nowartarski testified that no instructions were given them by the superintendent, or by anyone else, as to how the work should be done, and they were not warned of any danger connected with it. They had seen the device being operated by others. The evidence further shows that after plaintiff and Nowartarski went to work on the drop, they operated it five or six times, breaking up ten or twelve wheels. Sometimes they had difficulty in hooking the ball properly, and had to make several attempts to hook it. About an hour after they began work, it seems that Nowartarski hooked the hammer, and plaintiff started the motor and lifted the hammer six feet. Nowartarski put a wheel under it, and then took the elevator cord and began to lift the hammer towards the roof, while plaintiff was putting the second wheel in position. Nowartarski was holding one of the cords, and pulling the other up, when the hammer fell prematurely, rolled upon plaintiff and injured him. Nowartarski, who was called as plaintiff’s witness, denied positively that he had made any mistake or pulled the wrong cord, and claimed that he could not have released the hammer by pulling the release cord at the height at which it was when it fell. Plaintiff said that he noticed that the hook was old, because it was shiny.

The first assignment of error is based on an exception to the admission of testimony of plaintiff’s witness, John Schultz, who had worked upon the drop for a period of six years, ending some ten or eleven months before the accident. The offer was to show that the hook, when worn, was easily detached from the hammer, and that he had frequently reported this to the superintendent. The object of this testimony was not to show that the particular hook used at the time of the accident was worn, but that any hook grew smooth and shiny through use, and when in that condition a light pull, or a mere touch on the releasing rope would cause the hammer to fall. For this purpose the testimony was admissible. There was other evidence sufficient to go to the jury, as to the actual condition of the hook, and as to whether it was at the time of the accident worn smooth and shiny. The superintendent testified that he could not remember that the hook was ever changed during the three or four years prior to the accident. We find nothing in the evidence to show that the hook was changed, after complaint in regard to it was made by Schultz. There was no break in the apparatus, and no visible defect in the hook, but the danger in its use apparently arose from its smooth and slippery condition. Under such circumstances, it was a question for the jury, as to whether proper warning as to the use of the apparatus was given to the plaintiff, and to his companion who worked with him. It was necessary, owing to the manner in which they were required to work, that each should understand the condition of the appliance. As the learned trial judge says, the hook had to be inserted by one or the other, or by both together, according to circumstances.

Both of the men were inexperienced, and were taken from ordinary day labor, and set to work with a device, which according to the testimony of the superintendent, was dangerous in operation, if not handled correctly. The evidence upon the part of the plaintiff is, that no instructions were given, and that nothing was said to the two green men, about the danger of touching the pulling ropes while the hammer was suspended, or in using a hook worn smooth or shiny. They were contradicted as to this by the foreman, who said he showed them how to work the apparatus; so that it became a disputed question of fact, as to whether instructions were given.

We agree with the court below that under the charge, and upon the evidence in this case, the verdict of the jury must mean that “the occurrence is to be explained on the ground of a mistake in the operation of the apparatus by both employees, due to their uninstructed ignorance of its proper manipulation, i. e., by a defective insertion of the hook, and the raising of the hammer thus imperfectly secured, neither plaintiff nor his companion being qualified by instruction or experience to discern the mistake made by either.” There was enough in the evidence to support such a finding.

It was for the jury to determine the disputed questions of fact, and to draw therefrom the necessary and reasonable inferences. The assignments of error are overruled, and the judgment is affirmed.