guage of these cases, "the passenger has paid his fare to the ticket agent." Extended comment upon this line of reasoning is believed to be unnecessary.

Our conclusion upon the whole case is that the plaintiff was lawfully expelled from the train for nonpayment of fare, and that for such an expulsion no action can be maintained. The facts upon which this conclusion rests having all appeared at the close of the plaintiff's case, the motion for nonsuit then made should have been granted. The judgment must therefore be reversed.

In the preliminary statement of the plaintiff's case the limitation placed upon his ticket was said to be one that it was not lawful for the railroad company to impose. That statement embodied the decision we had reached upon a question raised by the railroad company touching the constitutionality and construction of the thirty-eighth section of the general railroad law (P. L. 1903, p. 665), which reads as follows:

"Any railroad company may demand and receive such sums of money for the transportation of persons on its railroads and connections, and for any other services connected with the business of transportation of persons on or over said railroad or to or from the same, as it shall from time to time think reasonable and proper, not exceeding in the case of railroad companies organized under this act, three cents per mile for carrying each passenger on such railroad and not exceeding in the case of railroads constructed or operated under a special charter, three and a half cents per mile for carrying each passenger on such railroad, and not exceeding the rate per mile limited by the charter, but no charge shall be required to be less than ten cents; tickets for passengers, except excursion tickets or tickets sold at reduced rates shall be good until used; tickets sold at less than the rates herein limited shall be good and shall entitle the holder to passage for a limited number of days only after the date of issue thereof, which limit shall be clearly stated and set upon the ticket; any railroad company owning or operating a railroad may collect an excess of ten cents over the established rate of fare from any passenger who pays his fare on the train, giving him a receipt therefor, which shall entitle the holder to have such excess refunded upon presentation at any ticket office of the company on the line of its railroad."

The argument for the company was that the charter of the Montclair Railway Company under which the plaintiff in error was operating authorized a charge of eight cents per mile; hence, it was contended the ticket in question was issued at a reduced rate and might lawfully be limited. This argument rests upon the contention that the foregoing section of the general railroad law is either unconstitutional or has no application to the

That the Legislature could by an appropriate enactment alter the charter of the Montclair Railway Company seems to be clear. Montclair v. New York & Greenwood Lake R. R. Co., 45 N. J. Eq. 436, 18 Atl. 242; P. L. 1885, p. 324.

This being so, we think that section 38 of the general railroad law is not rendered unconstitutional by reason of the provision that railroads constructed and operated as the plaintiff in error is under a special charter are permitted to charge one-half cent more per mile than railroads organized under the general act are permitted to charge. The argument is that this discrimination which in itself is favorable to the plaintiff in error is based upon an illusory classification. The classification is "railroad companies organized under this act, viz., the general railroad law," and "railroads constructed and operated under a special charter." The former of these classes is rendered general for purposes of railroad legislation by section 88; hence it must follow that the residue left after subtracting this general class from the entire class is also general for the like purpose. Point Breeze Ferry Co. v. Bergen Neck R. R. Co., 53 N. J. Law, 108, 20 Atl. 762.

The contention that the words "good until used" does not mean good "for passage" is in our judgment entirely untenable.

Having reached the conclusion that section 38 of the general railroad law was constitutional, that it applied to the plaintiff in error, and that its effect was to render unlawful the limitation placed on the ticket that was delivered to the plaintiff below, we embodied such result in our original statement of facts, and have throughout the discussion of the case given it consideration in so far as it bore upon the legal questions at issue.

For the reasons already stated, the judgment of the circuit court is reversed.

(74 N. J. L. 615)

ROGERS v. ROE & CONOVER. (Court of Errors and Appeals of New Jersey. March 29, 1907.)

1. MASTER AND SERVANT-INJURIES TO SERVANT-ASSUMPTION OF RISK-KNOWLEDGE of

DEFECT.

A servant, who knows that a tool or appliance furnished to him by his master is defective, does not on that account assume the risk of injury resulting from its use. It is not the obviousness of the physical condition or situation which charges the servant with the assumption of the risks that arise from it, but the obviousness of the danger which the physical condition or situation produces.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 610-620.]

there was danger of injury in the use of the tool or appliance; or (2) unless prior use of the tool or appliance, in its defective condition, had disclosed that it was dangerous, and the master knew, or ought to have known, that this was the

case.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 171-174.]

(Syllabus by the Court.)

Error to Circuit Court, Essex County. Action by Louis H. Rogers against Roe & Conover. From a judgment of nonsuit, plaintiff brings error. Reversed.

Samuel W. Boardman, Jr., for plaintiff in error. Sherrard Depue, for defendant in

error.

GUMMERE, C. J. This suit is brought to recover compensation for injuries received by the plaintiff through a fall while at work upon a ladder, and in the service of the defendants, at their store in the city of Newark. The defendants were engaged in the business of selling plumbers' and steamfitters' supplies. These supplies were kept in rows of bins, or pigeon holes, which had been constructed along the walls of their store, and which extended from the floor nearly to the ceiling. The lower rows of bins were deeper than the upper ones, and this method of construction left a ledge, or shelf, about three feet from the floor. For the purpose of affording access to the upper rows, "trolley" leaders were provided, which were each of them suspended by two grooved wheels from a track or iron pipe, running along the walls, and fastened to them near the ceiling. To render the ladders easily movable along this pipe or track, rubber rollers were affixed to their sides at the points of their contact with the ledge or shelf above described, and revolved along it as the ladders were shifted from place to place. As these ladders were originally constructed, there was below each of the grooved wheels by which the ladders were suspended a metal projection or lug, about an inch and a half long and half an inch wide, which extended under, and in close proximity to, the iron pipe or track, for the purpose of preventing the grooved wheels from leaving the track. The ladder upon which the plaintiff was at work when the accident occurred had one of these lugs broken off. The plaintiff had mounted it for the purpose of taking some steamfitters' supplies from a bin in one of the upper tiers. This bin was a little to one side of the ladder, and its position made it necessary for the plaintiff to lean out beyond the side of the ladder to accomplish his purpose. The throwing of his weight to one side caused first one of the grooved wheels to leave the track, and then the other, and the ladder, with the plaintiff upon it, fell to the floor. The plaintiff had no knowledge of any previous occurrence of the kind. This lug had been broken from the ladder more than two years before the occurrence of the accident, and the contention

of the plaintiff at the trial was that the defendants were chargeable with knowledge of its defective condition, and that their failure to repair it was a neglect of the duty which they owed him of using reasonable care in furnishing him with safe appliances for his work. The trial judge considered that the failure to repair the ladder was a neglect of this duty, but held that its defective condition was obvious, and that therefore the plaintiff assumed the risk of dangers resultFor this ing from the absence of the lug. reason, he directed a nonsuit to be entered against the plaintiff. The plaintiff assigns error upon that instruction.

As will be perceived from the above description of the construction of the ladder and the method of its operation, the location of the lug was at its top, near the ceiling, and we cannot concur in the view held by the trial judge, that its absence was so plainly apparent that every person using the ladder was chargeable with notice of that fact. Taking into consideration its location and its size, the question whether its absence was obvious to persons using the ladder was, in our opinion, one for the determination of the jury rather than of the court. But, even if the absence of the lug should be considered to have been obvious, it cannot be said as a matter of law that its absence made it obvious that the ladder was defective or out of repair in any of its parts. To a person unacquainted with the method of the construction of these ladders, it might very readily appear that the ladder had been originally constructed with a lug under only one of the trolley wheels. The question whether the absence of the lug was an obvious defect was therefore, in our judgment, also one for the determination of the jury. Furthermore, the resolution of each of these questions against the plaintiff is not fatal to his right to recover. It does not necessarily follow that, because the absence of the lug from the ladder was obvious, and the knowledge of the defective condition of that appliance was therefore imputable to the plaintiff, he is to be held to have assumed the risk of injury resulting from its use. It is not the obvious. ness of the physical situation or condition that charges the servant with the assumption of the risks which arise from it, but the obviousness of the dangers which the physical condition or situation produces. Burns v. Delaware & Atlantic Telephone Co., 70 N. J. Law, 745, 59 Atl. 220, 592, and cases cited. Whether, therefore, the plaintiff assumed the risk of the ladder becoming detached from the pipe, or track, from which it was suspended, while he was using it, did not depend upon his knowledge of the absence of the lug, or upon his knowledge that the ladder was defective by reason of that absence, but upon whether the want of a lug rendered the likelihood of such an accident as happened to him apparent to an ordinarily prudent person. Viewed in the most favorable aspect

for the defendants, this was a doubtful question of fact to be settled by the jury. But it does not necessarily result from the conclusion which we have reached upon this point that the judgment of nonsuit was erroneous; for the plaintiff was not entitled to go to the jury unless the case made by him sustained his contention that the defendants failed in their duty to use reasonable care to furnish him with safe appliances for his work, by permitting this ladder to remain in use without the lug. If instead of its being obvious that the absence of one of the lugs made it probable that the ladder would become detached from the track upon which it ran, provided a person standing upon it should throw his weight over to one side no one would reasonably anticipate such an occurrence, then, not only would the plaintiff be absolved from the assumption of the risk of such an accident as befell him, but the defendants would be guilty of no failure in the discharge of the duty which they owed him. It seems to us entirely plain, however, that whether the absence of the lug did or did not afford reasonable ground for anticipation that such a result would follow was (as we have already stated) not so free from doubt as to make it a question for the court rather than for the jury.

Moreover, a witness called by the plaintiff, who had formerly been in the employ of the defendants, testified that during the time when he worked in their store the ladder "used to come off the track once in a while, when you got on it sideways. If you went up sideways it might go off. If you went up in the middle it was all right." The fact that the ladder did become detached from the track when used in the manner described overcame the presumption (assuming it to have existed) that the absence of the lug did not render it unsafe for use; and it was for the jury to determine whether the defendants as employers were not chargeable with knowledge of that fact.

The nonsuit cannot be supported either upon the ground of assumed risk on the part of the plaintiff, or on the ground of lack of proof of failure of duty on the part of the defendants.

The judgment must therefore be reversed.

sum paid by him in discharging a mortgage given by testatrix on property belonging to the estate, was properly allowed on the passing of his account.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 22, Executors and Administrators, § 548.] 3. SAME-REPAIRS.

Where an executor and his two children were equally interested as devisees in the estate, he was properly allowed on the passing of his account expenditures for repairs on a house belonging to the estate in which he and the children resided.

[Ed. Note. For cases in point, see Cent. Dig. vol. 22, Executors and Administrators, § 545.] 4. SAME-INSURANCE.

The fact that testatrix had been unwilling to insure certain buildings did not excuse the executor from insuring the building so as to relieve him from liability for loss by fire.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 22, Executors and Administrators, § 440.] 5. SAME-COUNSEL FEES.

An executor is not entitled to an allowance for the services of counsel in making up his account.

[Ed. Note. For cases in point, see Cent. Dig. vol. 22, Executors and Administrators, §§ 449, 455.]

6. APPEAL-FAILURE TO RAISE QUESTION BE

LOW.

Where no exception was taken to an executor's account as to a certain item in the orphans' court, it cannot be considered on appeal. [Ed. Note. For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 1079.]

Appeal from Orphans' Court, Bergen County.

Judicial proceedings on the passing of the account of George W. Jersey, as executor of the will of Hannah R. Ramsey, deceased. From the decree of the orphans' court, the executor appeals. Reversed.

Peter W. Stagg, for appellant. Clarence Mabie, for respondents.

BERGEN, V. O. The Bergen county orphans' court in passing the account of George W. Jersey, as executor of Hannah R. Jersey, deceased, surcharged him with $1,150 wasted by his coexecutor, and also refused him allowance on the disbursing side of his account of certain items as follows: $1,000 paid by the executor on the principal of a bond secured by a mortgage on real estate of the deceased; $56.58, the sum of two items paid for repairs 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; $2,100 charged for board of two children of the accountant by his deceased wife; $810 paid for interest on bond and mortgage of the deceased; $937.50 paid for interest on another bond and mortgage made by the deceased; $100 paid counsel for services in making up the account of the executor; $50 for painting the house in Oradell. In addition to the above there is an item of $150 claimed to have been paid to R. W. Johnston on account of contract work on decedent's property, but this item was abandoned.

By the last will and testament of the de

ceased the accountant was appointed testamentary guardian of the two children of the accountant and the deceased and to him was bequeathed $2,000, to be held in trust with the accumulations until their son Alfred should arrive at the age of 21 years, when the principal and all accumulations of interest was to be paid over to him. A similar bequest was made to the executor of $2,000 upon the same trust for the benefit of their daughter, Helen, and the rest, residue, and remainder of the estate was devised and bequeathed to the husband and the two children in equal shares. At the time of the death of the testatrix she owned two properties, one in Hackensack and the other in Oradell, in which the accountant and his two children have lived. The Hackensack property, it was admitted on the argument, has been sold under foreclosure proceedings. The first item subject to this appeal is the surcharge of $1,150. The evidence relating to this item was that the accountant and his coexecutor, Washington I. Kidd, collected moneys which were placed in the bank to their joint credit, and that this accountant by signing checks in blank enabled his coexecutor to draw from this fund and misappropriate $1,150. As this fund was within the control and charge of the accountant, and he by his act made it possible for his coexecutor to obtain the money, there can be no doubt about the liability of the accountant for this money, and the orphans' court correctly surcharged him with that amount.

The next item in dispute is the payment of $1,000 on account of the principal sum of a mortgage given by the testatrix to Elbert S. Carman on the Hackensack property. As to this item, I am of opinion that the executor was justified in making the payment. The debt was created by the testatrix, it was her bond, and the payment made was for the benefit of her estate, in which he and her two children were equally interested. The next item of $56.58 was paid by the executor for painting the Hackensack house, an outlay which it would seem, under the circumstances, the executor was justified in making, and he should be entitled to a credit for that amount. The next item of $77.03 is an expenditure for repairs on the Oradell property, where the accountant and his two children resided. It was a payment made out of a fund belonging to the three persons who were the owners of the property, and is a payment for which the executor should be credited. The item of $400.96 is an allowance prayed for erecting a barn on the Oradell property in the place of one destroyed by fire. The evidence shows that the executor neglected to insure the building; his excuse being that his wife in her lifetime was unwilling to have it insured, and he had followed the course pursued by her. This I do not consider to be a justification. It was his duty to insure the property. He did insure the contents which belonged to him, and collected the insurance, which he

says he used for replacing the building. My conclusion is that the accountant is not entitled to a credit for this item. The item of $17 paid for nursing the deceased should, so far as this testimony discloses, be credited to the executor.

The accountant next prays allowance for $2,100 for the board of his children. There is nothing in the evidence brought up with this record that justifies this charge. On the contrary, it is quite clear that the accountant never intended to charge for the board of his children, and the item should be disallowed. The next two items, $810 and $937.50, are for interest paid by the accountant on mortgages given by the testatrix in her lifetime which incumbered the decedent's real estate, and were paid to protect the property, and in my judgment the executor is entitled to a credit therefor. The item of $100 paid to counsel for services in making up the disputed account was properly disallowed, for the making up of an account is a part of the duty of the executor. If he chose to employ counsel to do so, he must pay for such services out of his own funds. The last item of $50 was expended by the accountant in painting the homestead house in Oradell. This I think was a proper charge, and ought not to have been disallowed. The item for $150 contained in the petition of appeal was abandoned on the argument.

When this case was submitted, the counsel for the respondents insisted that the interest payments ought not to be allowed because the accountant had received the rents from the property and should have applied such rents towards the payment of the interest, and, not having charged himself with any rents in his account, he ought not to be allowed for payments made on account of interest. It is sufficient to say in reply to this that the respondents have taken no exception to the account in that regard, nor is there any appeal from the decree of the orphans' court regarding any portion of the charging part of the account other than the item of $1,150. If he should have accounted for rents, the account should have been excepted to in the court below for that reason, and no satisfactory proof is here presented as to the amount received for rents; and the presumption must be that the orphans' court was satisfied that he ought not to be charged with rents. The only question presented to me is whether the items to which I have referred, and which are the subject of this appeal, were under this record either improperly charged or disallowed. This record is so imperfect that it is impossible to do more than correct the manifest errors. It would seem from the little that appears in the record that the accountant should have in some way accounted for the rents both as to receipts and disbursements thereof, but no offer was made to supply the deficiency in this testimony by the taking of additional evidence in this court, and the appeal does not question