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guage of these cases, "the passenger has paid That the Legislature could by an appro his fare to the ticket agent.” Extended com priate enactment alter the charter of the ment upon this line of reasoning is believed Montclair Railway Company seems to be to be unnecessary.

clear. Montclair v. New York & Greenwood Our conclusion upon the whole case is Lake R. R. Co., 45 N. J. Eq. 436, 18 Atl. 242; that the plaintiff was lawfully expelled from P. L. 1885, p. 324. the train for nonpayment of fare, and that This being so, we think that section 38 of for such an expulsion no action can be main the general railroad law is not rendered untained. "The facts upon which this conclu constitutional by reason of the provision that sion rests having all appeared at the close railroads constructed and operated as the of the plaintiff's case, the motion for nonsuit plaintiff in error is under a special charter then made should have been granted. The are permitted to charge one-half cent more judgment must therefore be reversed.

per mile than railroads organized under the In the preliminary statement of the plain- general act are permitted to charge. The tiff's case the limitation placed upon his argument is that this discrimination which ticket was said to be one that it was not in itself is favorable to the plaintiff in error lawful for the railroad company to impose. is based upon an illusory classification. The That statement embodied the decision we had classification is "railroad companies organizreached upon a question raised by the rail ed under this act, viz., the general railroad road company touching the constitutionality law," and "railroads constructed and operatand construction of the thirty-eighth section ed under a special charter.” The former of of the general railroad law (P. L. 1903, p. these classes is rendered general for purposes 665), which reads as follows:

of railroad legislation by section 88; hence “Any railroad company may demand and it must follow that the residue left after receive such sums of money for the trans subtracting this general class from the enportation of persons on its railroads and con tire class is also general for the like purpose. nections, and for any other services con Point Breeze Ferry Co. v. Bergen Neck R. nected with the business of transportation of R. Co., 53 N. J. Law, 108, 20 Atl, 762. persons on or over said railroad or to or The contention that the words "good until from the same, as it shall from time to time used" does not mean good "for passage” is think reasonable and proper, not exceeding in our judgment entirely untenable. in the case of railroad companies organized Having reached the conclusion that section under this act, three cents per mile for carry. 38 of the general railroad law was constituing each passenger on such railroad and not tional, that it applied to the plaintiff in error, exceeding in the case of railroads construct. and that its effect was to render unlawful ed or operated under a special charter, three the limitation placed on the ticket that was and a half cents per mile for carrying each delivered to the plaintiff below, we embodied passenger on such railroad, and not exceed such result in our original statement of facts, ing the rate per mile limited by the charter, and have throughout the discussion of the but no charge shall be required to be less case given it consideration in so far as it than ten cents; tickets for passengers, except bore upon the legal questions at issue. excursion tickets or tickets sold at reduced For the reasons already stated, the judg. rates shall be good until used ; tickets sold ment of the circuit court is reversed. at less than the rates herein limited shall be good and shall entitle the holder to passage

(74 N. J. L, 615) for a limited number of days only after the date of issue thereof, which limit shall be

ROGERS V. ROE & CONOVER. clearly stated and set upon the ticket; any

(Court of Errors and Appeals of New Jersey. railroad company owning or operating a rail

March 29, 1907.) road may collect an excess of ten cents over

1. MASTER AND SERVANT-INJURIES TO SEBYthe established rate of fare from any passen ANT-ASSUMPTION OF RISK-KNOWLEDGE OF ger who pays his fare on the train, giving

DEFECT. him a receipt therefor, which shall entitle

A servant, who knows that a tool or appli

ance furnished to him by his master is defective, the holder to have such excess refunded upon does not on that account assume the risk of inpresentation at any ticket office of the com jury resulting from its use. It is not the obvi. pany on the line of its railroad."

ousness of the physical condition or situation The argument for the company was that

which charges the servant with the assumption

of the risks that arise from it, but the obviousthe charter of the Montclair Railway Com ness of the danger which the physical condition. pany under which the plaintiff in error was or situation produces. operating authorized a charge of eight cents ['Ed. Note.-For cases in point, see Cent. Dig. per mile; hence, it was contended the ticket

vol. 34, Master and Servant, $$ 610-620.) in question was issued at a reduced rate and 2. SAME — DEFECTIVE APPLIANCES – KNOWL

EDGE OF MASTER. might lawfully be limited. This argument

The fact that a master furnishes to his rests upon the contention that the foregoing

servant for use by the latter in his work a tool section of the general railroad law is either or appliance which is defective will not justify unconstitutional or has no application to the

the conclusion that the master did not use rea

sonable care to furnish a safe tool or appliance case. Neither of these claims is in our opin

unless (1) the defect was of such a character as lon well founded,

to suggest to an ordinarily prudent person that

case.

there was danger of injury in the use of the tool of the plaintiff at the trial was that the deor appliance; or (2) unless prior use of the tool

fendants were chargeable with knowledge of or appliance, in its defective condition, had dis

its defective condition, and that their failure closed that it was dangerous, and the master knew, or ought to have known, that this was the to repair it was a neglect of the duty which

they owed him of using reasonable care in (Ed. Note.-For cases in point, see Cent. Dig. furnishing him with safe appliances for his vol. 34, Master and Servant, 88 171-174.)

work. The trial judge considered that the (Syllabus by the Court.)

failure to repair the ladder was a neglect of Error to Circuit Court, Essex County.

this duty, but held that its defective condiAction by Louis H. Rogers against Roe &

tion was obvious, and that therefore the Conover. From a judgment of nonsuit, plain plaintiff assumed the risk of dangers resulttiff brings error. Reversed.

ing from the absence of the lug. For this

reason, he directed a nonsuit to be entered Samuel W. Boardman, Jr., for plaintif in against the plaintiff. The plaintiff assigns error. Sherrard Depue, for defendant in

error upon that instruction. error.

As will be perceived from the above de

scription of the construction of the ladder GUMMERE, C. J. This suit is brought to and the method of its operation, the location recover compensation for injuries received by of the lug was at its top, near the ceiling, the plaintiff through a fall while at work up and we cannot concur in the view held by the on a ladder, and in the service of the defend

trial judge, that its absence was so plainly ants, at their store in the city of Newark. apparent that every person using the ladder The defendants were engaged in the business was chargeable with notice of that fact. Takof selling plumbers' and steamfitters' sup ing into consideration its location and its plies. These supplies were kept in rows of size, the question whether its absence was bins, or pigeon holes, which had been con obvious to persons using the ladder was, in structed along the walls of their store, and our opinion, one for the determination of the which extended from the floor nearly to the jury rather than of the court. But, even if ceiling. The lower rows of bins were deeper the absence of the lug should be considered than the upper ones, and this method of con to have been obvious, it cannot be said as a struction left a ledge, or shelf, about three matter of law that its absence made it obfeet from the floor. For the purpose of af yious that the ladder was defective or out fording access to the upper rows, “trolley”. of repair in any of its parts.' To a person unleaders were provided, which were each of acquainted with the method of the constructhem suspended by two grooved wheels from tion of these ladders, it might very readily a track or iron pipe, running along the walls, appear that the ladder had been originally and fastened to them near the ceiling. To constructed with a lug under only one of the render the ladders easily movable along this trolley wheels. The question whether the abpipe or track, rubber rollers were affixed to sence of the lug was an obvious defect was their sides at the points of their contact with therefore, in our judgment, also one for the the ledge or shelf above described, and re determination of the jury. Furthermore, the volved along it as the ladders were shifted resolution of each of these questions against from place to place. As these ladders were the plaintiff is not fatal to his right to reoriginally constructed, there was below each cover. It does not necessarily follow that, of the grooved wheels by which the ladders because the absence of the lug from the were suspended a metal projection or lug, ladder was obvious, and the knowledge of the about an inch and a half long and half an defective condition of that appliance was inch wide, which extended under, and in close therefore imputable to the plaintiff, he is to proximity to, the iron pipe or track, for the be held to have assumed the risk of injury purpose of preventing the grooved wheels resulting from its use. It is not the obviousfrom leaving the track. The ladder upon ness of the physical situation or condition which the plaintiff was at work when the acci that charges the servant with the assumpdent occurred had one of these lugs broken off. tion of the risks which arise from it, but the The plaintiff had mounted it for the purpose obviousness of the dangers which the physical of taking some steamfitters' supplies from a condition or situation produces. Burns v. bin in one of the upper tiers. This bin was Delaware & Atlantic Telephone Co., 70 N. J. a little to one side of the ladder, and its posi Law, 745, 59 Atl. 220, 592, and cases cited. tion made it necessary for the plaintiff to Whether, therefore, the plaintiff assumed the lean out beyond the side of the ladder to ac risk of the ladder becoming detached from complish his purpose. The throwing of his the pipe, or track, from which it was susweight to one side caused first one of the pended, while he was using it, did not depend grooved wheels to leave the track, and then upon his knowledge of the absence of the the other, and the ladder, with the plaintiff lug, or upon his knowledge that the ladder upon it, fell to the floor. The plaintiff had was defective by reason of that absence, but no knowledge of any previous occurrence of upon whether the want of a lug rendered the the kind. This lug bad been broken from the likelihood of such an accident as happened ladder more than two years before the oc to him apparent to an ordinarily prudent percurrence of the accident, and the contention son. Viewed in the most favorable aspect

for the defendants, this was a doubtful ques sum paid by him in discharging a mortgage tion of fact to be settled by the jury. But given by testatrix on property belonging to the

estate, was properly allowed on the passing of it does not necessarily result from the conclu

his account. sion which we have reached upon this point

[Ed. Note.-For cases in point, see Cent. Dig. that the judgment of nonsuit was erroneous ; vol. 22, Executors and Administrators, $ 548.] for the plaintiff was not entitled to go to the 3. SAME-REPAIRS. jury unless the case made by him sustained Where an executor and his two children his contention that the defendants failed in

were equally interested as devisees in the estate,

he was properly allowed on the passing of his their duty to use reasonable care to furnish

account expenditures for repairs on a house behim with safe appliances for his work, by longing to the estate in which he and the chilpermitting this ladder to remain in use with

dren resided. out the lug. If-instead of its being obvious

[Ed. Note.-For cases in point, see Cent. Dig.

vol. 22, Executors and Administrators, $ 545.) that the absence of one of the lugs made it

4. SAME-INSURANCE. probable that the ladder would become de

The fact that testatrix had been unwilling tached from the track upon which it ran, pro to insure certain buildings did not excuse the exvided a person standing upon it should throw ecutor from insuring the building so as to rehis weight over to one side no one would

lieve him from liability for loss by fire. reasonably anticipate such an occurrence,

[Ed. Note.-For cases in point, see Cent. Dig.

vol. 22, Executors and Administrators, $ 440.) then, not only would the plaintiff be absolved

5. SAYE-COUNSEL FEES. from the assumption of the risk of such an

An executor is not entitled to an allowance accident as befell him, but the defendants for the services of counsel in making up his acwould be guilty of no failure in the discharge

count. of the duty which they owed him. It seems

(Ed. Note.-For cases in point, see Cent. Dig.

vol. 22, Executors and Administrators, $$ 449, to us entirely plain, however, that whether

455.] the absence of the lug did or did not afford

6. APPEAL-FAILURE TO RAISE QUESTION BEreasonable ground for anticipation that such

LOW. a result would follow was (as we have al Where no exception was taken to an execuready stated) not so free from doubt as to

tor's account as to a certain item in the or

phans' court, it cannot be considered on appeal. make it a question for the court rather than for the jury.

(Ed. Note.-For cases in point, see Cent. Dig.

vol. 2, Appeal and Error, 8 1079.] Moreover, a witness called by the plaintiff, who had formerly been in the employ of the

Appeal from Orphans' Court, Bergen Coundefendants, testified that during the time

ty. when he worked in their store the ladder

Judicial proceedings on the passing of the “used to come off the track once in a while,

account of George W. Jersey, as executor of when you got on it sideways. If you went up

the will of Hannah R. Ramsey, deceased. sideways it might go off. If you went up in

From the decree of the orphans' court, the the middle it was all right." The fact that

executor appeals. Reversed. the ladder did become detached from the Peter W. Stagg, for appellant. Clarence track when used in the manner described Mabie, for respondents. overcame the presumption (assuming it to have existed) that the absence of the lug did BERGEN, V. 0. The Bergen county ornot render it unsafe for use; and it was for phans' court in passing the account of George the jury to determine whether the defendants W. Jersey, as executor of Hannah R. Jersey, as employers were not chargeable with knowl. deceased, surcharged him with $1,150 wasted edge of that fact.

by his coexecutor, and also refused him allowThe nonsuit cannot be supported either up ance on the disbursing side of his account of on the ground of assumed risk on the part certain items as follows: $1,000 paid by the of the plaintiff, or on the ground of lack of executor on the principal of a bond secured by proof of failure of duty on the part of the a mortgage on real estate of the deceased; defendants.

$56.58, the sum of two items paid for reThe judgment must therefore be reversed. pairs to testatrix's house in Hackensack ; $77.

03 for repairs to property in Oradell; $400.96 for the cost of building a barn on the Oradell

property; $17 paid for nursing the deceased; In re RAMSEY'S ESTATE,

$2,100 charged for board of two children of (Prerogative Court of New Jersey. April 4, the accountant by his deceased wife; $810 1907.)

paid for interest on bond and mortgage of the 1. EXECUTORS AND ADMINISTRATORS AC- | deceased; $937.50 paid for interest on anothCOUNTING–CHARGES AND CREDITS. Where an executor by signing checks in

er bond and mortgage made by the deceased; blank enabled his coexecutor to draw and mis $100 paid counsel for services in making up appropriate the funds of the estate, be was the account of the executor; $50 for painting chargeable with the amount misappropriated.

the house in Oradell. In addition to the (Ed. Note.-For cases in point, see Cent. Dig.

above there is an item of $150 claimed to vol. 22, Executors and Administrators, $ 511.)

have been paid to R. W. Johnston on account 2. SAME-MORTGAGED PROPERTY_PAYMENT OF

of contract work on decedent's property, but MORTGAGE. Where an executor and his children were

this item was abandoned. equally interested as devisees in the estate, a By the last will and testament of the de

ceased the accountant was appointed testa says he used for replacing the building. My mentary guardian of the two children of the conclusion is that the accountant is not enaccountant and the deceased and to him was titled to a credit for this item. The item of bequeathed $2,000, to be held in trust with $17 paid for nursing the deceased should, so the accumulations until their son Alfred far as this testimony discloses, be credited to should arrive at the age of 21 years, when the the executor. principal and all accumulations of interest The accountant next prays allowance for was to be paid over to him. A similar be $2,100 for the board of his children. There quest was made to the executor of $2,000 up is nothing in the evidence brought up with on the same trust for the benefit of their this record that justifies this charge. On the daughter, Helen, and the rest, residue, and contrary, it is quite clear that the accountant remainder of the estate was devised and be never intended to charge for the board of his queathed to the husband and the two children children, and the item should be disallowed. in equal shares. At the time of the death of The next two items, $810 and $937.50, are the testatrix she owned two properties, one for interest paid by the accountant on mortin Hackensack and the other in Oradell, in gages given by the testatrix in ber lifetime which the accountant and his two children which incumbered the decedent's real estate, have lived. The Hackensack property, it was and were paid to protect the property, and in admitted on the argument, has been sold un my judgment the executor is entitled to a der foreclosure proceedings. The first item credit therefor. The item of $100 paid to subject to this appeal is the surcharge of counsel for services in making up the disput$1,150. The evidence relating to this item ed account was properly disallowed, for the was that the accountant and his coexecutor, making up of an account is a part of the duty Washington I. Kidd, collected moneys which of the executor. If he chose to employ counwere placed in the bank to their joint cred sel to do so, he must pay for such services it, and that this accountant by signing checks out of his own funds. The last item of $50 in blank enabled his coexecutor to draw from was expended by the accountant in painting this fund and misappropriate $1,150. As this the homestead house in Oradell. This I think fund was within the control and charge of was a proper charge, and ought not to have the accountant, and he by bis act made it pos been disallowed. The item for $150 contained sible for his coexecutor to obtain the money, in the petition of appeal was abandoned on there can be no doubt about the liability of the argument. the accountant for this money, and the or When this case was submitted, the counsel phans' court correctly surcharged bim with for the respondents insisted that the interest that amount.

payments ought not to be allowed because The next item in dispute is the payment of the accountant had received the rents from $1,000 on account of the principal sum of a the property and should have applied such mortgage given by the testatrix to Elbert S. rents towards the payment of the interest, Carman on the Hackensack property. As to and, not having charged himself with any this item, I am of opinion that the executor rents in his account, he ought not to be alwas justified in making the payment. The lowed for payments made on account of indebt was created by the testatrix, it was her terest. It is sufficient to say in reply to this bond, and the payment made was for the that the respondents have taken no exception benefit of her estate, in which he and her two to the account in that regard, nor is there any children were equally interested. The next appeal from the decree of the orphans' court item of $56.58 was paid by the executor for regarding any portion of the charging part painting the Hackensack house, an outlay of the account other than the item of $1,150. which it would seem, under the circumstances, If he should have accounted for rents, the the executor was justified in making, and he account should have been excepted to in the should be entitled to a credit for that amount. court below for that reason, and no satisThe next item of $77.03 is an expenditure for factory proof is here presented as to the repairs on the Oradell property, where the amount received for rents; and the presumpaccountant and his two children resided. It tion must be that the orphans' court was satwas a payment made out of a fund belonging isfied that he ought not to be charged with to the three persons who were the owners of rents. The only question presented to me is the property, and is a payment for which the whether the items to which I have referred, executor should be credited. The item of and which are the subject of this appeal, $400.96 is an allowance prayed for erecting were under this record either improperly a barn on the Oradell property in the place charged or disallowed. This record is so imof one destroyed by fire. The evidence shows perfect that it is impossible to do more than that the executor neglected to insure the correct the manifest errors. It would seem building; his excuse being that his wife in from the little that appears in the record her lifetime was unwilling to have it insured, that the accountant should have in some way and he had followed the course pursued by accounted for the rents both as to receipts her. This I do not consider to be a justifica and disbursements thereof, but no offer was tion. It was his duty to insure the property. made to supply the deficiency in this testiHe did insure the contents which belonged mony by the taking of additional evidence in to bim, and collected the insurance, which he this court, and the appeal does not question

ihe decree of the orphans' court on the charg along Cooper street, in the town of Beverly, ing side of the account beyond the single in attempting to cross the tracks of the de. item to which I have referred. The presump fendant company in front of an approaching, tion, therefore, is that the judgment of the train. The sole ground averred in the declacourt below as to the amount chargeable to ration for charging the defendant company the accountant is correct, and that he has aç with responsibility for his death is the fail, counted for all of the estate that has come ure to use reasonable care in the operation to his hands for which he is accountable. of its train as it approached the crossing Assuming that to be the situation, then, the at which he was struck down. Upon the items which he has paid in the way of debts trial of the cause the plaintiff attempted to and interest on mortgages would appear to support the averment of negligence by proof be allowable to him.

that the statutory provision requiring a bell The respondents insisted that the account to be rung, or a whistle to be blown, when a ant being a life tenant was required to keep train approaches a highway crossing, was down the incumbrances and to keep the prop not complied with by the employés in charge erty in repair, but, as I understand this will, of the defendant company's train. Two withis estate is not that of a life tenant, but he nesses were called on behalf of the plainig vested with the absolute title to the prop tiff to testify to that fact. The first was ery, together with his two children, in equal Samuel Wickward, who testified that he was shares. If as a tenant in common with them following Holmes along Cooper street, and he is accountable for rents, issues, and prof heard the crash when the collision occurred. its, that is a question which cannot be passed He was asked on his direct examination: upon under this record.

“Q. Did you hear any bell rung or whistle The decree of the orphans' court will be blown for the train? A. No whistle at all. reversed in order that the account may be Q. Nor bell? A. I don't know. I wouldn't corrected in the particulars stated, but, as like to say whether I heard any bell or not.” each party has succeeded in part, costs will On his cross-examination he affirmed the not be allowed to either party in this court. statement made by him in his testimony in

chief. The other witness was a Mrs. Wil

merton, who lived about half a square from (74 N. J. L. 469)

the scene of the accident. She testified that HOLMES v. PENNSYLVANIA R. CO. she had occasion to get up about 2 o'clock (Court of Errors and Appeals of New Jersey. in the morning of November 4th, and that March 7, 1907.)

about 10 minutes afterward, and before she 1. RAILROADS - CROSSING ACCIDENTS - SIG had returned to her bed, she heard a heavy NALS-EVIDENCE-WEIGHT-QUESTIONS FOR

crash coming from the direction of the crossJURY. In an action for death at a railroad cross

ing. She was asked but a single question ing evidence that the bell was not rung held upon the point in controversy, viz., "Did you insufficient to require submission of such issue hear the whistle blow or the hell ring?" Her to the jury.

answer was: “No, sir.” On the part of the (Ed. Note.-For cases in point, see Cent. Dig. vol. 41, Railroads, $ 1161.)

defense the proof was plenary that the bell

was rung, if the witnesses who were called 2. SAME-ISSUES AND PROOF-INSTRUCTIONS. Where, in an action for death at a railroad

to prove that fact were entitled to credit. crossing the only negligence charged in the They were the engineer, the fireman, and one pleadings was the failure to ring a bell or blow of the brakemen of the train; and they all a whistle as the train approached the crossing, plaintiff was not entitled to have the question

swore positively that the bell was rung in a whether defendant was bound to use extra pre

way which showed full compliance with the cautions for safety of travelers on the crossing statute. This was the state of the proofs because of its unusually dangerous character

when the case was rested; and upon applicasubmitted to the jury. (Ed. Note.-For cases in point, see Cent, Dig.

tion made by the defendant, the trial judge vol. 41, Railroads, $ 1195.)

directed a verdict in its favor.

The plaintiff now assig s error upon this Error to Supreme Court.

direction. In our opinion the proofs in the Action by Anna K. Holmes, as administra

cause afforded no support whatever for the trix of the estate of Joseph J. Holmes, de

conclusion that the bell was not rung in the ceased, against the Pennsylvania Railroad

manner required by the statute. The tesCompany. From a judgment dismissing the

timony of Wickward did not even tend to suit, plaintiff brings error. Affirmed.

prove that fact, for it will equally justify George Gilbert, for plaintiff in error. Thom. a finding that he heard the bell as that he as L. Gaskill, for defendant in error.

did not. The statement of Mrs. Wilmertop

that she did not hear the l'ell rung may be GUMMERE, C. J. This suit is brought by conceded to have be'n sufficient to call for the administratrix of Joseph J. Holmes, de proof upon the subject by the defendant, notceased, to recover from the defendant cor. withstanding that, for aught that appears to poration the pecuniary loss sustained by his the contrary, her failure to do so may have widow and next of kin through his death, been due to the fact that her attention at He was killed about 2 o'clock in the morning the time was entirely fixed upon some other of the 4th of November, 1902, while driving matter. The testimony which was offered

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