to wit, sections 2 and 5 of No. 88, necessary to notice, provide in substance as follows: That every common carrier by railroad shall be liable for all damages to any person suffering injury while he is employed by such carrier, when such injury results in whole or in part by reason of any insufficiency of roadbed and tracks, or structures or machinery and equipment, or lights and signals in switching and terminal yards, or rules and regulations and of number of employees to perform the particular duties with safety to themselves or their coemployees, or any other insufficiency; or by reason of any defect, which defect is due to its negligence, in its cars, engines, motors, appliances, machinery, track, roadbed, boats, works, wharves, or other equipment; that if an employee of such common carrier shall receive any injury by reason of any defect in any of its cars, engines, motors, etc., such common carrier shall be deemed to have had knowledge of such defect before and at the time such injury is sustained, and, when the fact of such defect shall be made to appear in the trial of any action against any such common carrier for damages on account of such injuries so received, the same shall be prima facie evidence of negligence on the part of such common carrier. The first contention made by counsel for defendant under this assignment of error is that inasmuch as the evidence conclusively shows that motorcars, such as the one in use at the time of the accident, are designed for use during the daylight hours and are constructed originally without headlights, headlights not being essential for the purpose for which they are designed, it cannot be said that the injury suffered by the plaintiff was caused by a defect in the motorcar, or that the defect was due to the negligence of the company, within the meaning of the statute pleaded. It is quite true that cars of this class are almost exclusively used during daylight hours, and, of course, when so used a headlight is not an essential part of their equipment and its absence would not constitute a defect in the motorcar. But it seems to us a different rule ought to apply where, as in the case at bar, the defendant takes a motorcar designed for use in daylight only, and requires an employee to use it after dark, without lights, for a purpose for which it was not originally designed. The evidence shows that the plaintiff began the use of this motorcar in August, 1912; that during the month of September the days had grown so short that it was impossible for him to make his return trip with the night shift during daylight; that, realizing the danger of operating the car after dark,the plaintiff made requisition of the storekeeper for a headlight, which request was refused; that he then, in a personal conversation with Mr. French, the master mechanic and his superior officer, explained the danger and renewed his request that lights be furnished; that Mr. French promised to do his best to have the car equipped with lights and requested plaintiff to continue to operate the car in the meantime without lights. The master mechanic also testified that it was dangerous to operate this car after night without lights. It is true that the same witness testified that the plaintiff was not especially required to operate the car after dark, but this testimony is qualified by his further statement that the plaintiff was required to use the car for the particular work in which he was engaged at the time of the injury, between the hours of 6 and 7 in the morning and 6 and 7 in the evening, and that the plaintiff had no authority to change the time during which he used the car. In 2 Words and Phrases, 1931, we find that a "defect" may be the result of some inadaptation of an instrumentality to its purposes; and that when machinery was perfect of its kind and in good repair, but unsuitable for the purpose for which it was used, it was a "defect" within the meaning of a statute providing that employers shall be liable for defects, etc. Geloneck v. Dean Steam Pump Co., 165 Mass. 202, 43 N. E. 85. Similarly, we think it may be reasonably said that the plaintiff suffered his injuries by reason of a defect in the motorcar which was created by the unsuitableness of the purpose for which it was being used by the company. As the question raised by the latter part of this assignment of error is not much stressed by counsel in their brief and we are unable to perceive how any substantial right of the defendant could be unjuriously affected by the action of the trial court complained of, even if we assume that it was erroneous, we do not deem it necessary to give it extended notice [5] The next assignment of error deals with the action of the trial court in refusing to give numerous instructions requested by counsel for the defendant. Many of these requested instructions merely present for review the questions already considered herein, in somewhat different form; whilst others deal with the doctrine of assumed risk and contributory negligence as applicable to causes arising under the federal Employers' Liability Act; others raise the question of the sufficiency of the evidence to show that the loss of eyesight of the plaintiff was the result of the injury received; and others whether the action was commenced within the time prescribed by the two-year statute of limitations; and others the sufficiency of a certain release executed by the plaintiff to relieve the defendant from liability. Without noticing in detail the requested instructions falling within the first two of the foregoing classes, it is sufficient to say of them that we have examined them all very carefully and are of the opinion that, in so far as they state correct principles of law applicable to the theory of the case at bar, as hereinbefore outlined, they have been substantially covered in the instructions given by the court upon its own motion. This is all that is required. [6, 7] The most serious question raised presented by this assignment is the sufficiency of the evidence to show that the injuries received by the plaintiff were the cause of his subsequent total loss of sight. Of necessity, opinion evidence was largely resorted to upon this point, and, as usual, there was a sharp conficit in the testimony of the experts for the respective sides. This evidence as it appears in the record is quite voluminous, and no useful purpose could be served by setting it out in detail in this opinion or commenting on it at any great length. It is sufficient to say of it that we have examined it all very carefully and are satisfied that the finding of the jury in favor of the plaintiff is reasonably sustained by the evidence. The plaintiff in a civil action is not required to prove his cause beyond any reasonable doubt; if he makes it appear to be more probable that the injury came in whole or in part from the negligence alleged than from any other cause, that is sufficient. St. Louis & S. F. Co. v. Rushing, 31 Okl. 231, 120 Pac. 973; St. Louis & S. F. Co. v. Hart, 45 Okl. 659, 146 Pac. 436. [8, 9] Instruction No. 22 requested by the defendant and refused by the court relates to the applicability of the two-year statute of limitations. The record shows that the accident occurred on September 28, 1912, and that the action was commenced on the 28th day of September, 1914. The calendar introduced in evidence shows that September 27, 1914, fell on Sunday. Section 5341, Revised Laws 1910, provides: "The time within which an act is to be done shall be commputed by excluding the first day, and including the last; if the last day be Sunday, it shall be excluded." In view of this statute, it seems quite clear that the action was commenced within two years, and therefore was not barred by the statute of limita tions. [10,11] Requested instruction No. 23 relates to the sufficiency of the release executed by the plaintiff to exonerate the plaintiff from liability The undisputed evidence shows that, after an absence from work of four or five days on account of his injuries, the plaintiff resumed his former employment, without any protest from defendant and without signing a release or a contract of re-employment. After the plaintiff had been at work for about six weeks, the defendant presented a release, which he was required to sign on pain of being discharged from its services. This release recited, in substance, that the plaintiff had received certain injuries, and that, in consideration of re-employment for such time only as may be satisfactory to the company, he releases said company from all claims for damages for said injuries. It is true that there is considerable conflict in the authorities as to whether or not re-employment constitutes sufficient consideration to support a release of this character Many respectable authorities hold that in the absence of fraud, duress, or mistake, re-employment is a sufficient consideration to support such a contract. But that is not the precise question presented by the facts in the case at bar. Although the release herein was designated a contract of re-employment, it was not so in fact. The plaintiff, as we have seen, had not been discharged from the services of the company, nor had he quit work voluntarily except for a temporary absence of five or six days immediately after the injury, after which he voluntarily returned and continued his work for a period of six weeks before he was required to sign the release. In these circumstances the courts seem quite uniformly to hold that such a contract, not being a contract of re-employment, is void for want of consideration Purdy v. Rome W. & R. Co., 125 N. Y. 209, 26 N. E. 255, Am. St. Rep. 736; M., K. & T. Ry.Co. v. Smith, 98 Tex. 47, 81 S. W. 23, 66 L. R. A. 741, 107 Am. Am. St. 607; Potter v. Detroit, G. H. & M. Ry. Ry. Co., 122 Mich. 179, 81 N. W. 80, 82 N. W. 245. On the next assignment of error it is only necessary to say that we have examined the instructions given by the court to which counsel made objections, and find that, when they are considered together with all the other instructions given, they state the law applicable to the case with substantial accuracy. Finding no reversible error in the actions of the trial court hereinbefore considered, and observing nothing in the record indicating that the verdict rendered was induced by passion or prejudice, we are unable to say that it is excessive solely on account of the amount of recovery allowed. [12] The evidence showed the plaintiff to be a young man, 26 years of age, and an expert mechanic who at the time of his injury was receiving $135 per month. The mortuary table introduced in evidence shows his expectancy of life to be 38 years. During that period he would earn at his then rate of wages alone $68,400. This would be sufficient to support the verdict rendered on a compensatory basis alone. But when, in addition to this, the pain endured by the plaintiff and the inconvenience and humiliation he will necessarly suffer from going through life totally blind is considered, it cannot be said that the verdict returned is excessive. Section 6005, Revised Laws 1910, provides: "No judgment shall be set aside or new trial granted by any appellate court of this state in any case, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence, or as to error in any matter of pleading or procedure, unless, in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right." And, of the errors assigned of the class mentioned in the statute which we have not specifically noticed it is sufficient to say that, after a careful examination of the entire record, it does not appear to the court that there were any errors of this sort which have probably resulted in a misscarriage of justice or which constitute a substantial violation of any constitutional or statutory right of the defendant. For the reasons stated, the judgment of the court below is affirmed. All the Justices concur, except Turner, J., who was absent and not participating. SUPREME COURT OF PENNSYLVANIA. SMITH STATE WORKMEN'S INS. FUND.* 1. MASTER AND SERVANT-RELATION-INDEPENDENT CONTRACTOR. Where a person lets out work to another, and the contractee reserves the control over the work of workmen, the relation of contractor and contractee exists, and not that of master and servant. (For other cases, see Master and Servant, Dec. Dig. § 367.) 2. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT-RIGHT TO COMPENSATION "INDEPENDENT CON- One contracting to transfer freight between cars at stipulated price and having control of the method of work and employment and payment of necessary labor, is not an employee, but an "independent contractor" whose widow is not entitled to compensation under Workmen's Compensation Act for his death in the course of such work. (For other cases, see Master and Seravnt, Dec. Dig. § 367.) (For other definitions, see Words and Phrases, First and Second Series, Independent Contractor.) Appeal from Court of Common Pleas, Lycoming County. Jennie V. Smith appeals from the Workmen's Compensation Board's dismissal of appeal from the report of a referee. From a judgment reversing inc decision of the Board, the State Workmen's Insurance Fund appeals. Reversed. JI. Argued before Brown, C. J., and Potter, Stewart, Frazer, and Walling, Samuel I Spyker, of Huntingdon, and Francis H. Bohlen, of Philadelphia, for appellant. Otto G. Kaupp, of Williamsport, for appellee STEWART, J. The complainant is the widow of John V. Smith, who died at Masten, in this state, the place of his residence, on the 30th of September, 1916, as the result of an accident occurring in the course of his employment a few days prior. At the time of the accident the husband was engaged in transferring freight, including raw hides, in * Decision rendered, Oct. 7, 1918. 105 Atl. Rep. 90. carlroad lots, from standard gauge cars belonging to the Susquehanna & New York Railroad, over whose lines such freight had been transported, to narrow gauge cars for transshipment over a narrow gauge logging road operated by Charles W. Sones, to a station on said road known as Hillsgrove. The accident he sustained, resulting in his death, was the introduction into his system through a superficial external excoriation on his person of anthrax germs latent in the hides handled. The answer filed to the complaint denied that anthrax is an injury as defined in the Workmen's Compensation Act of 1915 Act June 2, 1915 [P. L. 736])—a question which, as we view the case, calls for no discussion here, and we therefore omit any discussion of it-and further, alleged that the deceased husband was not the employee of the party complained against, C. W. Sones, the party owning and operating the narrow gauge road at the time the infection was contracted; the allegation in support of this proposition being that the husband was an independent contractor for the transfer of freight between the broad and narrow gauge roads at the time of the occurrence. The complaint and answer were referred. In the testimony taken before the referee it was developed that the employment of the complainant's husband in the transferring of freight at Masten was the subject of a written contract between himself and C. W. Sones, and that this contract was governing at the time the injury was received. In a written communication signed by Sones addressed to John V. Smith, the husband, under date of 1st of June, 1913, this appears: "This will confirm our understanding relative to transferring. Our understanding and agreement is that you are to transfer all inbound and outgoing freight in car lots at Masten, with the exception of lumber, from narrow gauge to standard gauge and from standard gauge to narrow gauge cars, all freight received there, at the following prices, namely: "Bituminous coal at five cents per ton; leather, hides, and oats at twenty-five cents per ton; hair in bales and bark in bags at fifteen cents per ton; boxes and bales at eight cents per ton; empty carboys and empty barrels, one cent each. Lime and Fleshings, 25c. "Our understanding is that this transferring is to be done in a good and workmanlike manner; leather cars to be loaded in accordance with instructions from the Elk Tanning Company. "You are to load or unload each standard gauge car within the time limit in order that no demurrage charges may accrue; you are to be responsible for any breakage that may occur while transferring. "Settlement to be made in cash, on or about the 15th of each month. for the amount transferred during the preceding calendar month. "This contract to be in full force and effect unless revoked by either party by thirty days' notice in writing. "Your acceptance of this will be sufficient contract betweens us. [Signed] C. W. Sones." Appended to this communication is the following acceptance addressed to said Sones: "The above is in accordance with understanding we have had in regard to transferring at Masten. I hereby accept the terms and conditions as set forth. The finding of the referee was: [Signed] John V. Smith." "That under and by virtue of the above contract the deceased at various times employed divers persons or laborers who assisted him in the work he had contracted to do in about the said transfer, hiring and discharging such employees, and paying them such wage as might be agreed upon between him and them; that the work of transferring was solely under the charge and care of the said deceased, who was responsible to the defendant for all breakage that might occur in the transferring, and for the demurrage that might arise by reason of any |