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to transact such business with the Peoples' Bank was unnecessary and useless. Its insertion indicates unmistakably the understanding of the parties that the authority was not supposed to be embraced in the first clause of the instrument, and was specially required to be inserted in order to enable him to transact any banking business. Well-settled rules of construction require us to give effect to every part of the instrument, and this can be done only by holding that the last clause was intended to embrace all of the authority designed to be conferred upon Crowell to deal with banks in Dr. Sims' name. This view is also strengthened by the application of the rule requiring grants of power to be so construed as to exclude the exercise of a power in any other form or manner than that specially authorized. The clause of the power conferring authority to transact business with the Peoples' Bank, and with that bank alone, inpliedly prohibited such transactions with any other banking institution. We therefore think that the evidence in question was properly excluded.
The circumstance that it was the custom of the trust company to require the signature of a customer to accompany a deposit was one adopted for the safety and protection of the bank, which they were at liberty to enforce or omit, as it deemed best under the circumstances. It could not affect its liability to the real owner for moneys actually received by it, or the legal effect of a transaction by which it came into the possession of another's property. We think the evidence of ratification by Dr. Sims of the act of Crowell, in making the deposit in question as he did, was not sufficient to authorize the submission of that question to the jury:
On the whole case, we are of the opinion that no error was committed on the trial, and that the judgment should be affirmed. (All concur.)
PRINCIPAL AND AGENT-CONSTRUCTION OF POWER OF ATTORNEY. The extension of an outstanding mortgage upon an estate is a valid exercise of a power to incumber, by way of mortgage or otherwise, and renew the same. Warner v. Connecticut Mut. Life Ins. Co., 3 Sup. Ct. Rep. 221. A power to bargain and sell real estate is well executed by a quitclạim deed which, in effect, conveys the grantor's lien on land purchased at an invalid tax sale. Alexander v. Goodwin, (Neb.) 29 N. W. Rep. 470. A power to sell real estate was held to include authority to convey. Farnham y. Thompson, (Minn.) 26 N. W. Rep. 9. A power to change the mortgage upon a piece of land, or, on payment of a portion of the debt, to give a new note and mortgage, authorized a note and mortgage to the surety for the portion he had been compelled to pay. Barbour v. Sykes, (Ky.) 1 S. W. Rep. 600. A power of attorney to sell and convey does not imply authority to the attorney to dedicate or give away any part of the property to the public, Wirt v. McEnery, 21 Fed. Rep. 233; nor to convey it in trust for the payment of his own debts, Frink v. Roe, (Cal.) 11 Pac. Rep. 820; nor to revoke or cancel a contract of sale, Luke v. Grigg, (Dak.) 30 N. W. Rep. 170.
(143 Mass. 197)
FERREN V. OLD COLONY R. Co.
(Supreme Judicial Court of Massachusetts. Bristol. January 5, 1887.) MASTER AND SERVANT-EMPLOYE OF RAILWAY COMPANY-DUTY OF COMPANY TO PRO
VIDE SAFE PLACE-DUE CARE-QUESTION OF Fact.
The plaintiff was employed by the defendant as a blacksmith in a shop situated in its freight yard, and was crushed between the side of a flat car and a building while assisting in moving the car in obedience to the orders of his foreman. It appeared that he was not employed for this work, but was frequently called on to assist in it, with others, and never refused, although he protested. The space between the track and the building was too narrow for passage between the building and a car on the track, and, owing to a curve in the track, was.constantly narrowing; but the plaintiff had never assisted in the moving of cars on this track, did not know, and could not reasonably be expected to know, that the passage was too narrow, and, owing to his attention to his work, he did not discover it in time to save himself. Held, that a jury might find that the defendant did not provide its servants a reas. nably safe place in which to do its work, and that it could not be said, as a matter of law, that the plaintiff was not in the exercise of due care.1 Action of tort to recover for injuries sustained by the plaintiff on the defendants' premises by the crushing of the plaintiff between a coal car and the brick outer wall of a building in close proximity to the track on which the car was moving. Trial in the superior court before HAMMOND, J., where the following evidence was submitted:
Daniel M. Ferren, the plaintiff, testified: "Am 54 years old, and a blacksmith. Came to work for the defendant as a blacksmith in 1876. eral forging. My work did not include anything else. Had nothing to do with the yard work. On January 20, 1883, in the morning, I went as usual to my work. I guess about an hour, I should say, I had been at work,--I should say about 8 o'clock. About that time, Mr. Hopkins, foreman of the room of the blacksmith shop, of the forging department, came in close to my fire, and said: •All hands out to move a car.' I then had a heat on the anvil, working. The others started. The call was for all blacksmiths and helpers. There was a general start. I don't remember of any fire being idle; all were at work. I went out the outside door. They began to gather about the car to take their places. The car, at the time, was just in front of the door. It was chilly, and I went back and got my coat. George Frost, engineer, stood in the doorway at the time. I fell into line on the side of the car next to the door,-next to the building. Mr. Frost was at my right. As the car passed along-side of the building, my position was about like this, [witness here placed himself in a position as though leaning forward pushing, at the side of the car, with his face obliquely forward towards the car.] I was pushing the car. The car began to move. Of course, it moved slowly at first. We got it under pretty good headway, and going along all smoothly and nice. The first thing I observed, Mr. Dunbar, the man who was before me, drop to the ground under the car. I thought it was a kind of funny proceeding. I looked, and såw where I was. I saw the danger I was in. Like lightning it crossed my mind: I can't go under there, among those wheels; I will stop where I am; I will not go any further. I had pushed as far as I could. I thought, I will get another hold when I come back. I was leaning forward; so, when I came back, one of those stake pockets that was at my shoulder struck me on the shoulder, drove me ahead a step or two from the back, -struck this right shoulder. The stake-iron took me on my right shoulder, and knocked me ahead, and up against the side of the building. I could not recover myself readily. This shoulder caught on the rough bricks, and my coat fastened it to the wall. As I stood in this shape, bound here by the shoulder, the car waoving in this direction, it rolled me like this, (the witness here, by the motion, showed how he was rolled between the car and the building.] I was fast there. In order to get me out, they were obliged to move the car. I could hear the snapping, cracking, and grinding of the bones of my shoulder. My chest seemed to be doubling right up together,all crushed together. There was a strain on my hip, and it seenied as if it was being pulled to pieces; all at once that something gave way. I could feel that parting. My hip was between the car, these stakes, and the building. It seemed as though the pressure about my head was pulling my neck out of shape; the width of the space [between the car and the building] I have since learned was from seven to seven and a half inches. I was forced into this place. As soon as I was caught, I sung out, and think it was my helper that says: Hold on! Stop the car, for you are killing Dan. I suppose they tried to stop the car. It stopped, at any rate, immediately, whether from my resistance I don't know. The car was rolled back. I dropped to the ground. Then they came in,-four men,-and took me up. They carried me into the engine room to a settee.” Witness then testified as to the extent of his in juries, his state of health at the time of the injury, and his condition since.
1 It is the duty of the master to provide a reasonably safe working place for his seryants. Armour v. Hahn, 4 Sup. Ct. Rep. 433; Collyer v. Pennsylvania R. Co., (N. J.) 6 Atl. Rep. 437; Campbell v. Pennsylvania R. Co., (Pa.) 2 Atl. Rep. 489; Pittsburgh, c. & St. L. Ry. Co. v. Adams, (Ind.) 5 N. E. Rep. 187; Smith v. Peninsular Car-works, (Mich.) 27 N. W. Rep. 662; Trihay v. Brooklyn Lead Min. Co., (Utah,) 11 Pac. Rep. 612; St. Louis & S. F. Ry. Co. v. Weaver, (Kan.) 11 Pac. Rep. 408; Rodgers v. Central Pac. R. Co., (Cal.) 8 Pac. Rep. 377; Hannibal & St. J. R. Co. v. Fox, (Kan.) 3 Pac. Rep. 320; Wilson v. Denver, S. P. & P. R. Co., (Colo.) 2 Pac. Rep. 1; Brown v. Atchison, T. & S. F. R. Co., (Kan.) 1 Pac. Rep. 605; Gulf, C. & S. F. Ry. Co. v. Redeker, (Tex.) 2 S.W. Rep. —; Bogenschutz v. Smith, (Ky.) 1 S. W. Rep. 578.
On cross-examination, plaintiff testified: “I went out that morning because Mr. Hopkins called out for all hands to come out and move the car. It was a general call for hands, and it would look a little cheeky for me to stay in with all the rest going out; had gone out before in reply to such a call; had moved cars on another track before. I was in the shop from 1876 to 1895, -most of the time. Should say there were a dozen men pushing the car. I looked ahead when I was pushing the car. No one told me where to take hold of the car. All the direction I had was the call from Mr. Hopkins. was about these premises for seven years, and knew them pretty well.
I never refused to go out with the men, though I entered protests. I saw the wall of the building and the side of the car. I saw the space between the tw into which I was going.”
Albert Clark testified, in substance: “Am a blacksmith in the employment of defendant. He and Mr. Hopkins, on the day of the accident, called for the Hands to come out and move a car. I went out with Ferren. The firs: . heard after we began to move the car, some one cried that Ferren was hurt, and we pushed the car back. I should say the space between the car and the building, without measuring, was about six inches." Witness further test: tied to the injuries to plaintiff, and that he and plaintiff had frequently gone out to help move a car; that the car in question was a flat car.
George H. Frost, the engineer at the works, testified: "I was assisting ir. pushing the car, and came near getting caught between the car and the building; jumped back. I suppose the iron stakes on the car caught Ferren, and roiled him in. Since the accident the track has been moved away from the building six inches further.”
There was other evidence tending to show that it was customary for the men to come out and help move the cars, and that the space between the car track and the building was so narrow that a person could not pass when a car was on the track; that the space between the car track and the building narrowed about 38-100 of an inch in a foot, by a curve in the track; and that the track was laid with the proper curve for the situation of the buildings about it. Inere was also evidence that the car in question was not one of the defendant company's, but a car of another company.
It was not claimed by the plaintiff that the tracks or buildings were in any other way unsafe or dangerous except in their relation to each other and to other permanent objects of the yard. It was not claimed that the car was unsafe or dangerous except in its relation to the building, yard, and the track upon which it was moving. Upon this evidence the court ruled that the plaintiff could not recover, and directed a verdict for the defendant, to which ruling and direction the plaintiff excepted, and the presiding judge reported the case for the determination of the supreme judicial court.
Reed & Dean, for plaintiff.
It is well settled that an employer is under an implied contract with those he employs to furnish suitable and safe means for carrying on his business, and this includes an obligation to provide a suitable place where the servant may, in the exercise of due care, safely perform his duty; and if special dangers, unseen, hidden, unappreciable to the employe, exist, the employer is bound to warn the employe against them. Coombs v. New Bedford Cordage Co., 102 Mass. 572; Snow v. Housatonic Ry. Co., 8 Allen, 445; Sullivan v. India Manuf'g Co., 113 Mass. 397; Holden v. Fitchburg Ry. Co., 129 Mass. 268. This principle is not inconsistent with the rule of law that the employe assumes those obvious risks inherent in the service he contracts to do, of which he is presumed to have knowledge. Lovejoy v. Boston & L. Ry. Co., 125 Mass. 79; Yeaton v. Boston & L. Ry. Co., 135 Mass. 418; Leary v. Boston & A. Ry. Co., 139 Mass. 580; S. C. 2 N. E. Rep. 115; Russell v. Tillotson, 140 Mass. 201; S. C. 4 N. E. Rep. 231; Chicago, B. & Q. Ry. Co. v. Gregory, 58 Ill. 272; Chicago & R.I.Ry.Co. v. Clark, 11 Bradw. 104; Walsh v. Oregon Ry. & Nav. Co., 10 Or. 250; Farlow v. Kelly, 108 U. S. 288; S. C. 2 Sup. Ct. Rep. 555; McDermott v. New York Cent. Ry. Co., 28 Hun, 325; Hall v. Union Pac. Ry. Co., 16 Fed. Rep. 744; Baxter v. Roberts, 44 Cal. 187.
It cannot be held, as a matter of law, that the defendant was not negligent in thus setting to work the plaintiff in this place of danger without any warning or notice of the danger. This is a question of fact for the jury upon the evidence and the view. Snow v. Housatonic Ry. Co., 8 Allen, 441; Coombs v. New Bedford Cordage Co., 102 Mass. 572; Chicago, B. & Q.R. Co. v. Gregory, 58 Ill. 272; Chicago & R. I. Ry. Co. v. Clark, 11 Bradw. 104. The danger was not obvious. Lovejoy v. Boston & L. Ry.Co., ubi supra; Leary v. Boston & A. Ry. Co., ubi supra.
It cannot be held, as matter of law, that the plaintiff was not in the exercise of due care. This is also clearly a question of fact for the jury. Coombs v. New Bedford Cordage Co., 102 Mass. 572. Under the facts as shown, the plaintiff cannot be held to be negligent. Ford v. Fitchburg Ry. Co., 110 Mass. 240; Lawless v. Connecticut R. Ry. Co., 136 Mass. 1; Snow v. Housatonic Ry. Co., 8 Allen, 441; Greenleaf v. Illinois Cent. Ry. Co., 29 Iowa, 47; Cayzer v. Taylor, 10 Gray, 275; Warden v. Old Colony Ry. Co., 137 Mass. 204; Sweeny v. Old Colony Ry. Co., 10 Allen, 373; Elliott v. Pray, Id. 378.
J. H. Benton, Jr., for defendant and J. M. Morton.
The plaintiff had, by assisting in moving cars whenever called upon, assumed this additional service as a part of his employment. He had, “by so doing, ingrafted this duty on his original contract, of which he made it a part. Leary v. Boston & A. R. R., 139 Mass. 580; S. C. 2 N. E. Rep. 115. It is immaterial upon this point that the plaintiff had not assisted in moving cars at the particular spot where he was called upon to move this car. Yeaton v. Boston & L. Ry., 135 Mass. 418. There is no evidence that the plaintiff was injured by the carelessness of anybody except himself. The plaintiff claims, and this is the main part of his case, that the track was laid so near and in such a position as to the wall of the building that the use of the track, by propelling cars upon it, was dangerous, because the space between the car upon the track and the building was not sufficient to enable a man to pass through, pushing the car from the side next the building, and that, therefore, the defendant is liable. The defendant had a right to construct its track and engine-house in the proximity to each other which it did, and to move its cars in and out as it did, although it might be dangerous. Ladd v. New Bedford R. R., 119 Mass. 412; Lovejoy v. Boston & L. R. R., 125 Mass. 79. The case is more than carried for the defendant by the case of Lovejoy v. Boston & L. R. R., ubi supra. See, also, Brown v. Chicago & R. I. Ry. Co., (supreme court of Iowa,) 28 N. W. Rep. 487; where Lovejoy v. Boston & L. R. R. is cited and followed. See, also, Marsh v. Chickering, (New York court of appeals,) 5 N. E. Rep. 56; Taylor y. Carew Manuf'g Co., 140 Mass. 150; S. C. 3 N. É. Rep. 21; Russell v. Tillotson, 140 Mass. 201; S. C. 4N. E. Rep. 231; Moulton v. Gage, 138 Mass. 390; Baltimore & 0. Ry. V. Stricker, 51 Md. 47.
C. ALLEN, J. The evidence would warrant a jury in finding that the defendant did not provide for its servants a reasonably safe place in which to do its work, and that there was danger in moving a car by van-power in the place where this car was, by reason of its proxiinity to the building, and of the gradually lessening distance between the track and the building.
But the more difficult question is whether, under the circumstances disclosed, and assuming all facts as favorably to the plaintiff as the evidence warrants, we can say, as matter of law, that the plaintiff, by voluntarily entering upon the work, should be held to take the risks. There is no doubt of the general rule that one who, knowing and appreciating the danger, enters upon a perilous work, even though he does so unwillingly and by order of his superior officer, must bear the risk; but where he is not aware of the danger, and such ignorance is consistent with due precaution, it is different. In the present case it appears that the plaintiff had a general knowledge of the position of the track and of the buildings, with reference to each other, and that he also knew that cars were sometimes moved along there. But there was evidence tending to show that it was not a part of the business for which he was employed to assist in moving cars in the yard, though he was liable to be called on, when necessity required, to render such assistance; and he testified that when so called on he never refused, though he entered protests. He also testified that he had never before been called on to help in moving a car in the place where the accident occurred, and that he had never before been through that particular space between the car and that of the building. Of course, he could see that this space was narrow; but it would seem that neither he nor the others who were pushing on the same side of the car with himself, understood that it was too narrow to allow them to pass through in safety. This was his mistake. Seeing the situation in a general way, he took hold, among others, and tried to pass through what proved to be too narrow a place for him. He did not rightly estimate the probability or extent of the peril to which he was exposing himself. Though he could see the position of the car and of the building, it might nevertheless be found by a jury that ne did not appreciate, and, in the exercise of due care was not bound to appreciate, the danger. If, under the circumstances stated, he was called on by his foreman to assist in this work, which was outside of the work which he was employed to do, and in a place where he had not before done such work, and if the peril was not obvious to him, and he failed to take notice that the space between the cars and the building was too narrow for him to pass through with safety, and if his attention was so given to the work which he was doing that he did not discover the danger till it was too late to save himself, we cannot say, as a matter of law, that he must be held to have examined the risk. The case is close; but the evidence is sufficient to be submitted to the jury upon the question whether he was in the exercise of due care.
The material point of distinction between this case and many others is that here it is open to the jury to find that the plaintiff did not know or appreciate the risk of the work upon which he was engaged, and that in the exercise of due care he was not, ás matter of law, bound to know or appreciate the same. Haley v. Case, 142 Mass. —; S.C.7 N. E. Rep. 877; Russell v. Tillotson, 140 Mass. 201; S. C. 4 N. E. Rep. 231; Taylor v. Carew Manuf'g Co., 140 Mass. 150; S.C.3 N. E. Rep. 21; Leary v. Boston & A. R. Co., 139 Mass. 580; S. C. 2 N. E. Rep. 115; Lawless v. Connecticut R. R. Co., 136 Mass. 1.
For these reasons, in the opinion of a majority of the court, the entry must be, new trial ordered.