practicable to guard the set screw or rollers, | acts was negligent, and alleges that by reaand that the court, therefore, should have son of his diminutive height he was comruled as a matter of law that the defend-pelled to stand on the rod to perform the ant was not negligent in failing to guard service, and that he was obeying the instructhem. It is true that the defendant called tions of the defendant's foreman when he inthree witnesses who testified that rollers on serted his hand above the rod. He also conmachines of this character could not be tends that he was performing this service in guarded and the machine operated. This tes- the usual and customary way. We have extimony, however, was opposed by testimony amined the testimony bearing on this branch on the part of the plaintiff tending to show of the case, and are not convinced that it so that it was practicable to guard machinery clearly supports the contention of the deof this kind. The plaintiff himself testified fendant that the court could have so declared that he had seen set screws guarded, and as a matter of law; on the contrary, we that flush set screws were called "guarded" think it warrants the conclusion of the jury set screws. He testified to instances where that the acts complained of by the defendant he had observed the guarded screw. Anoth- were not negligent and did not contribute to er witness was called by the plaintiff who the plaintiff's injuries. testified that "the only thing I can say to that set screw, it is not guarded properly." He also testified that it was customary to put countersunk set screws in machinery, and that a projecting set screw is not now put in any kind of machinery, because it is dangerous. He said that he had seen guards over set screws at some of the large manufactories in this vicinity. He described how the guard was put over the screw so as to protect the clothes or body of a person coming in contact with it. There was other testimony tending to show the danger from unguarded set screws, the necessity for guarding them, and that it was practicable to guard them. It is apparent, therefore, that it was for the jury, and not for the court, to determine whether it was practicable to guard the set screw in question.

[3] There is no ground for the defendant's contention that the set screw did not cause or contribute to the plaintiff's injury or was, in any way, the cause of his hand being caught in the rollers. The plaintiff testified positively that the sleeve of his coat was caught on the screw and prevented him from withdrawing his hand from the rollers and extricating it after it was caught by the rollers. He said:

"Q. Caught on what? A. On this set screw. And I could not get my hand either way at all, and it forced my hand in, and it was forcing my hand in all the time, and when I gave the first holler the man at the front stopped the machine off. * Q. How did the accident happen? A. As I was putting my arm with the end of the burlaping down between the rollers, in between the guide bar, my shirt sleeve caught on the set screw, and it fastened it tight there, and I could not move it. Q. What do you mean when you say it fastened it tight? A. I could not get my arm away to get it away, and it drawed my arm under the roller."

In other words, the set screw was the sole cause of his hand being drawn into and crushed by the rollers.

[4] It is claimed by the defendant that the plaintiff's injuries resulted from his own negligence in not standing on the floor instead of the brake rod while attempting to wrap the roller and by inserting his hand above instead of below the rod in front of the rollers. The plaintiff denies that either of these

for

[5] The accident resulting in the plaintiff's injuries occurred on the evening of September 14, 1914. Hogarth's arm was crushed and subsequently amputated. The operation was performed in the hospital on September 20th. Three days thereafter, and while Hogarth was in very poor physical condition, Joseph P. Hill, the liability adjuster of the defendant, called at the hospital to discuss terms of settlement. At this time Hill procured from Hogarth a statement as to the manner in which the accident occurred. Hogarth signed the statement by his mark, and it is witnessed by Hill. The latter saw Hogarth again before he left the hospital. On October 13th, less than a month after the man was injured, and while he was still in a suffering condition, Hill called at his residence with one Arensmeyer, defendant's superintendent, and procured a release which is in the form usually taken under such circumstances and states that it is in "full accord and satisfaction of a disputed claim growing out of bodily injury, which injury I have claimed the William H. Grundy Company to be legally liable, which liability is expressly denied," and releasing and discharging Grundy & Co. from all claims by reason of any injury or suffering which Hogarth had sustained or which thereafter he might sustain by reason of the accident. The consideration named in the release is $200. The signature of the plaintiff to the writing was witnessed by the defendant's two employés who called on Hogarth. This release was offered in evidence, and it is now claimed by the defendant's counsel that it is binding on the plaintiff and bars a recovery in this action. Hill testified that he called on the plaintiff on the morning of the day in question and they discussed a settlement, but they disagreed as to terms. Hill returned to the defendant's mill, and in the afternoon, he, accompanied by Arensmeyer, went to the plaintiff's home. They testified that Hill offered the plaintiff $200 in settlement of his claim for damages, and he accepted the money. Hill testified that he then filled in the release, read it to the plaintiff, handed it to him, and then gave him the $200. The plain

tiff read and signed the release by making his mark with his left hand to his signature, which was written by Hill. The latter further testified that he placed a red seal on the release before it was signed. Arensmeyer substantially corroborated Hill, except that he did not see the seal on the paper.

The plaintiff and his wife tell a different story from that told by the defendant's liability adjuster and assistant superintendent. Hogarth testifies that Hill called on him at the hospital on September 23d, and he told the latter he was then suffering great pain. Hill did not make known to the plaintiff who he was, and the plaintiff did not know him. Hogarth says he has no recollection of signing the statement on September 23d, witnessed by Hill and produced by him at the trial. He denies that any such paper was read to him at the time it purports to have been signed. He testifies that when Hill called at his home on the morning of October 13th he was in a bad condition, and had been lying on a couch all morning. Hill was admitted to the house by the plaintiff's wife. After he had entered, he asked the plaintiff how he was, and was told that he felt very badly. Hill told the plaintiff that he had just come from the defendant's office on a little matter of business, and the plaintiff replied that he, the plaintiff, did not know anything about any business and did not transact business with anybody. Hill said Mr. Leach was going to give the plaintiff a little money to help him out of his expenses. The plaintiff says that is all that he remembers of what occurred on that occasion. The plaintiff testified that Hill and Arensmeyer returned, after dinner that day, that Hill took some money from his pocket and put it on the table, but did not tell the plaintiff how much it was. He told the plaintiff to count it, but the latter was unable to do so accurately.

Hill then said to him:

meyer in the afternoon and put $200 on the table. Hill said:

"Here is a small sum;' Mr. Leach had sent it to help us along until my husband got able enough to work."

She then inquired if Hogarth's work was all right, to which Hill replied that it was. She told Hill when he first came to the house that her husband was not in a fit condition to talk business of any kind. She says she did not see her husband put a red seal on the paper, nor did she see any person offer to give him a pen and ink to sign a paper. She heard nothing about a settlement of the case. She asserts positively that she understood the $200 to be a present to assist the family until her husband was able to work, and that she inquired about whether Hogarth's work was all right because she was anxious that he resume his work with the defendant as soon as he was able.

We have given substantially the material part of the testimony of both parties on this branch of the case, and it is clear, we think, that the learned court was right in submitting it to the jury for them to determine whether the alleged release was procured by fraudulent means, and was therefore void. The learned counsel for the appellant assumes that the purpose of this evidence was to reform the instrument in question, and that therefore it must fail of its purpose unless it is clear, precise, and indubitable. We concede if that had been the purpose of the testimony the standard suggested would be correct in a case to which the principle is applicable. This is shown by the numerous authorities cited in the appellant's does not attempt to reform, alter, or contraThe plaintiff here, however, paper book. dict the alleged release so as to conform to a different state of facts, but alleges that the release was obtained by misrepresentation and fraud; that he never executed the release knowing it to be such; that the paper was not read to him; and that the defendant's agent told him the money was given him to help pay expenses until he could reHogarth says that he does not remember sume his work. The question therefore was, making his mark to any paper on that occa- not whether the release should be reformed sion, that he did not give his consent to put- and whether the evidence submitted was sufting a red seal on the paper, and that he ficient for the purpose, but whether the paper never saw the paper before it was shown to was procured by fraud, and therefore was him in court. He denies that Hill came to of no binding force on plaintiff. This was the house to see him about a settlement of the issue raised by the release, and the evithe case. Mrs. Hogarth testifies that she dence was sufficient to warrant its submissaw Hill at the hospital, but he seemed to sion to the jury, and if believed by them, to say nothing except to ask her husband about sustain the finding that the paper was fraudhis arm. She was at home when Hill called ulently obtained. We have referred above to see her husband on the morning of October to the testimony, and need not repeat it here. 13th. He then asked Hogarth about his arm It shows Hill's activity in pursuing the plainand how many children he had. Mrs. Ho tiff to obtain a settlement from the time the garth was going between the two adjacent latter was injured until the release was obrooms, the door remaining open, while Hill tained. Hill's first visit to the plaintiff was was there, and says she heard nothing said in the hospital three days after his arm was about a settlement. Hogarth was sick, she amputated, and the last call was made at the says, was up and down, and was suffering plaintiff's home less than a month after the

"This is a present that Mr. Leach is giving to you to help you out of expenses, because he says that he knows you need it."

3

327 - PERSONAL CONTRIBUTORY NEGLIGENCE.

In such case deceased, as an intending passenger, might assume that defendant would perform its duty, and take reasonable precautions to protect him from danger while waiting with the crowd to board its train. [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 1363-1366.]

5. CARRIERS

327- PERSONAL INJURY – CONTRIBUTORY NEGLIGENCE.

according to the testimony which was believed | 4. CARRIERS by the jury, the plaintiff was suffering from the amputation of his arm. When Hill called the last time and obtained the paper, Mrs. Hogarth told him, prior to his conversation with her husband, that he was not in a condition to talk business of any kind. The jury evidently believed this to be correct, in view of the claim that plaintiff agreed to accept $200, the sum named in the release, as the value of his right arm. Under the facts developed by the testimony, the validity of the release was clearly for the jury. Ettinger v. Jones, 139 Pa. 218, 21 Atl. 137; Gibson v. Western N. Y. & Penna. R. R. Co., 164 Pa. 142, 30 Atl. 308, 44 Am. St. Rep. 586; Julius V. Pittsburgh, Allegheny & Manchester Traction Co., 184 Pa. 19, 39 Atl. 141; Clayton v. Consolidated Traction Co., 204 Pa. 536, 54 Atl. 332; Gordon v. Great Atlantic & Pacific Tea Co., 243 Pa. 330, 90 Atl. 78; Vanormer Iv. Osborne Machine Co., 255 Pa. 47, 99 Atl. 161.

[6] There is no merit in the contention that the retention of the money received from the ■ defendant by the plaintiff barred his right of As the jury has found that the recovery. plaintiff was deceived into accepting the money by a falsehood or fraud, there is no admission that it was a consideration for a contract, and there is, consequently, no obligation on him to return it. Gibson v. Western N. Y. & Penna. R. R. Co., 164 Pa. 142, 155, 30 Atl. 308, 44 Am. St. Rep. 586. The judgment is affirmed.

2. CARRIERS 286(3) — CARE REQUIRED · BOARDING TRAINS.

A carrier, inviting the public to use its excursion trains, has notice that large crowds are likely to assemble, and must use proper care to protect them from injury from a sudden rush by the crowd to enter cars immediately on arrival of its trains.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. § 1144.]

3. CARRIERS 320(7)-PERSONAL INJURY-
NEGLIGENCE-QUESTION FOR JURY.
In an action for damages for the death of
plaintiff's husband, an excursionist, who, while
waiting for his return train, was pushed against
a moving train by the crowd attempting to
board it, held, on the evidence, that defendant's
negligence was for the jury.

[Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 1149, 1153.]

In such case deceased was warranted in assuming that defendant's train would approach the station with such care as the circumstances required, and that its employés would prevent him from being pushed against the moving train by the crowd attempting to board it. [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 1363-1366.] 6. CARRIERS

327-PASSENGER-CONTRIBU

TORY NEGLIGENCE.

An intending passenger, waiting with a crowd to board a return excursion train, was bound to exercise proper care under the circumstances to avoid injury from the moving train.

[Ed. Note. For other cases, see Carriers, Cent. Dig. 88 1363-1366.] 7. APPEAL AND ERROR -CONSIDERATION.

1078(1)—ARGUMENT

A point raised in the paper book, but not pressed in argument, need not be considered. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 4256.]

Appeal from Court of Common Pleas, Philadelphia County.

Trespass by Jennie M. Coyle against the Philadelphia & Reading Railway Company to recover damages for the death of her deceased husband, Hugh Coyle. Verdict for plaintiff for $3,000, and judgment thereon. Motion for judgment n. o. v. denied, and defendant appeals. Affirmed.

Argued before MESTREZAT, POTTER,
and FRA-
STEWART, MOSCHZISKER,
ZER, JJ.

Wm. Clarke Mason, of Philadelphia, for appellant. G. C. Ladner, of Philadelphia, for appellee.

FRAZER, J. This action was brought to recover damages for the death of plaintiff's husband, Hugh Coyle, as a result of injuries sustained by being struck by one of defendant's cars. Coyle was a member of an excursion party, carried by defendant from Philadelphia to Waldheim Park, near ReadThere was no regular station at the ing. park, but, pursuant to an arrangement with the excursionists, the train was scheduled to discharge the passengers in the morning at a point near the park entrance, and again take them on, at the same place, in the evening. There being no platform at the stopping place, a cinder fill, between the east-bound and west-bound tracks, was provided by defendant for receiving and discharging_passengers. Approximately 400 people made up the excursion party, and in the evening this large number of persons assembled along the

for the common purpose of securing passage on a public conveyance, are not within the reasoning of the line of cases which hold the carrier is relieved from liability for damages resulting from unexpected acts of rudeness or improper conduct on the part of other passengers, or intending passengers, but are such as occur so frequently that they may be properly considered as such a natural and probable result that the carrier must recog

in the case above referred to, the means to be employed to insure the safety of persons on such occasions must be left to the carrier, subject, however, to the approval or disapproval of the court as to being proper and reasonable, when the question is raised in an action for injuries alleged to be due by reason of the failure of the carrier to perform its duty in this respect. The absence of proper precaution to control the crowd, the rapid approach of the train, together with the physical condition of the immediate surroundings at the place where the train was stopped, presented a case for the jury, to determine whether defendant failed to perform its duty toward its patrons.

tracks of defendant company, awaiting the arrival of the train on the west-bound track to return them to Philadelphia. They occupied the space on and along both sides of the east-bound track for a considerable distance. While the testimony is not clear as to the general physical condition of the immediate surroundings, a photograph of the locality, used on the trial of the case, and produced at the argument in this court, shows the roadbed to be slightly below the surface ad-nize and guard against them. As was said joining the tracks on each side, leaving a space about 20 feet in width between the west-bound track and the bank, in which the excursionists congregated. Before the arrival of the train Coyle was standing on the cinder fill between the two tracks. At the time it was almost dark, there were no lights at this point, and the evidence is that the train approached, without warning, at a speed estimated by one witness at 40 miles an hour, and others as "mighty fast," and "entirely too fast," and another "faster than I ever saw one come in." The train consisted of an engine and 12 coaches, and as the engine passed the excursionists, those in the rear, eager to obtain desirable seats in the cars, began pushing forward, whereupon Coyle, and others standing with him near the track, endeavored to hold the crowd back and avoid being themselves pushed against the cars. Their efforts were at least in part unsuccessful, and Coyle was pushed forward, struck by the front end of the fourth coach, and thrown to the ground, sustaining injuries resulting in his death four days later. The court below submitted to the jury the question of the negligence of defendant, and the contributory negligence of deceased. There was a verdict for plaintiff, and, from judg-of the train, and consequently, if defendment thereon, defendant appealed.

[4-6] 'Defendant also contended deceased was guilty of contributory negligence, as a matter of law, for the reason his position near the track made the accident possible. The crowd was an orderly one, and deceased had no reason to anticipate a sudden movement on its part. In considering defendant's contention that deceased was subject to the same rule as the carrier, with respect to knowledge of the tendency of a large gathering of people to rush forward to obtain entrance to cars immediately upon the approach

ant was negligent, he also was negligent, we [1-3] Defendant company had no employé must not lose sight of the fact that the duty at the station to control or warn the large imposed upon deceased was different from number of persons it knew would assemble that imposed upon the carrier. The latter there to take the train. In Muhlhause v. was bound to take such reasonable precauMonongahela St. Ry. Co., 201 Pa. 237, 50 Atl. tion to protect its patrons from danger which 937, this court held it to be the duty of the its experience as a carrier of passengers must carrier to furnish a safe and sufficient means have taught was likely to be present. Deof ingress to and egress from its trains, and to ceased, as an intending passenger, had a exercise "the strictest vigilance" in protect-right to assume that defendant would perform ing intending passengers, assembled at its its duty in this respect, and take reasonable stations, from liability to injury. Although precaution to protect him from danger. Strua carrier is not liable for mere rudeness and ble v. Pennsylvania Co., 226 Pa.. 118, 75 Atl. bad manners on the part of their passengers, 17. He was also warranted in taking for or intending passengers, and therefore not granted that defendant's train would apbound to anticipate and guard against such proach the station with such degree of care conduct, yet when it invites the public to use and caution as the circumstances required, its facilities to visit parks, or places of and that its employés would take the measamusement, it has notice that large crowds ures necessary to prevent the happening of are likely to assemble, and that proper care an accident such as occurred. Although de must be used in protecting them from in- ceased was an intending passenger, he was juries arising from such conduct as may rea-bound to exercise proper care under the cirsonably be expected to occur, such as a sudden rush on the part of the crowd to obtain entrance to cars immediately upon arrival of trains at the station. Such acts on the part of a large assemblage of people, congregated

cumstances, and whether he did or did not was properly left to the jury, in a charge of which no complaint is made.

[7] Defendant's counsel, in his paper book. also raises a question as to the sufficiency of

[Ed. Note. For other cases, see Gas, Cent.larly rendered the township, and upon failure Dig. § 3.]

[Ed. Note.-For other cases, see Gas, Cent. mitted, however, by plaintiff, was ample to Dig. § 4.]

Appeal from Court of Common Pleas, the time of trial, it is not surprising that Crawford County.