"(1) The verdict was against the law. (2) The verdict was against the evidence. (3) The verdict was against the weight of the evidence. (4) The verdict was against the charge of the court. (5) The verdict was excessive." No complaint was made below, and none is made here, of the admission or rejection of testimony or of the charge of the court, and there is, therefore, no reason why the case should go to a second jury. Tudgment affirmed. (264 Pa. 454) SEARLES v. BOORSE. Argued before MOSCHZISKER, FRAZER, WALLING, SIMPSON, and KEPHART, JJ. M. D. Hayes, Harry P. Felger, and Francis M. McAdams, all of Philadelphia, for appellant. Samuel L. Borton, of Norristown, and E. Cooper Shapley, of Philadelphia, for appellee. SIMPSON, J. [1, 2] Plaintiff sued defendant to recover damages for personal injuries; the trial judge declined defendant's point for binding instructions, reserved another point to substantially the same effect, and submitted the case to the jury, which found a verdict for plaintiff; the court below entered judgment for defendant non obstante vere (Supreme Court of Pennsylvania. April 21, dicto; and plaintiff appeals. We must there On appeal from a judgment non obstante veredicto, unattacked court records, duly approved and admitted in evidence, must be given due weight, though appearing in defendant's testimony. 3. MASTER AND SERVANT 107(3)-IN DEMOLITION OF BUILDING, MASTER NOT REQUIRED TO FURNISH SAFE PLACE. A master is not required to furnish a safe place to work, where servant is hired to assist in the repair, demolition, or alteration of a building damaged by fire, or where he is engaged in making a dangerous place safe. 4. MASTER AND SERVANT 260(5), 265(13)— WHEN RELIANCE ON MASTER'S STATEMENT OVERCOMES ASSUMPTION OF RISK. fore assume as true all the facts and inferences from facts which the jury might have found in favor of plaintiff, and reject all those unfavorable to him which the jury might have rejected; but unattacked court records, duly proved and admitted in evidence, must be given due weight, though appearing in defendant's testimony. From the standpoint stated, the facts are as follows: Plaintiff and one Jacob Cottman, who were employés of defendant, were working for him in tearing out a portion of a building at the southwest corner of Thirtieth and Master streets in the city of Philadelphia, which had been partially destroyed by fire, and while so engaged plaintiff received the injury of which he now complains. When he first brought suit for this injury, he averred in his sworn statement of claim he was set to work "in the digging of a certain excavation in and about the said building, and while employed in digging the said exca vation close to a certain large wall, not shored, braced, or protected, said large wall collapsed and fell upon the plaintiff, throwing him to the ground and seriously injuring him about the head, neck, body, legs, and arms, and injuring him internally." The record before us fails to disclose what was done with that suit, which was in another court than the one in which this case was tried. In the present case he in-sues for the same injury, and alleges in his sworn statement of claim he was sent to work on the fifth floor of the building, and while there "the floor upon which plaintiff was standing suddenly collapsed and gave way beneath him, and he was thrown from his position, and was struck by a piece of timber which had fallen from overhead, in consequence of which he, the said plaintiff, was An employé, injured while removing secure parts of a building damaged by fire, who seeks to overcome the defense of assumed risk, because told by employer, after complaint, that the place was safe, must aver and prove in what respect it was dangerous, that he acted in reliance on the statement that it was safe, and was injured by reason of the danger. Appeal from Court of Common Pleas, Phil- seriously injured about the head, neck, legs, adelphia County. Trespass by Samuel Searles against David Boorse to recover damages for personal injuries. Verdict for plaintiff. From a judgment for defendant n. o. v., plaintiff appeals. Affirmed. body, and arms, and was injured internally." This record is barren of any explanation of these contradictory statements. The case was tried twice, and on the last trial, now being reviewed, plaintiff testified he and Cottman were engaged in getting a (107 A.) does not. Hanley v. Carnegie Steel Co., 256 Pa. 44, 47, 48, 100 Atl. 543. Apparently recognizing this fact, plaintiff seeks to avoid its effect by averring Cottman was a vice principal, and he, plaintiff, had a right to rely on the assurance given him as above quoted. There are several reasons why this contention cannot be successfully maintained. [4] In the first place he does not aver the alleged fact. In his statement of claim, aft piece of burnt timber out of a shaft into, and the requisite of a safe place to work which it had fallen; plaintiff going to the fifth story and pulling a rope attached to the timber, and Cottman pushing from below. Before going there, he said to Cottman, "Jake, I don't think it's very safe, because you know how that floor is up there; I think it's pretty dangerous." And the latter said in reply, "Yes; everything up there is perfectly safe and sound." No reason was given by plaintiff why he did not think the floor was safe, but his remark implies he was well acquaint-er setting forth every imaginable character ed with the situation. He says he found the of duty which defendant could owe to him, "fifth floor was nothing but lumber that had he says the accident happened "because of fallen down from the house when the fire the improper method and system of said was-rubbish, and half brickbats, and one work, and of the dangerous condition of said stuff and another like that"; and while he building, and of the incompetent foreman was standing cater-cornered across the shaft and fellow workmen, and of the fact that the and pulling and Cottman was pushing, and tools and appliances were not proper, and the timber was part way up, the floor at the because the place in which the plaintiff was edge of the shaft gave way, his foot slipped set to work was dangerous and unsafe." into the shaft, he threw himself backward, There was no proof of any of those matters, his back struck another piece of timber which except the alleged "improper method and syswas lying on the floor, and he was injured. tem of said work," which has already been This is his whole account of the accident. disposed of, and "the dangerous condition of He admits nothing fell from above and said building," and "the place in which the struck him, and that at the first trial he tes-plaintiff was set to work was dangerous and tified he was injured by his back striking unsafe." As already pointed out, his knowlagainst the side of the shaft. edge of the alleged "dangerous condition of At this trial he called two witnesses, who said building" precludes him from complaintestified the best way to do this kind of working of the alleged unsafe place to work, so would be to use a block and tackle; but as that there was nothing in his statement of their answers related rather to convenience claim upon which he could recover. in doing the work, and as one of them said a block and tackle would not be needed unless the timber was wedged in, which this one was not, and the other that they were not needed until the timber got to the top of the shaft, which plaintiff says this piece did not, we may dismiss their testimony from further consideration. There is no other evidence antagonistic to the method used in getting out the timber. Moreover he was bound to aver and prove that in reliance upon Cottman's statement he proceeded with the work. 4 Labatt on Master and Servant, § 1370a. Therein also, in section 1376, it is said the same rule applies in this class of cases as in "those in which there had been an explicit assertion by the master, or some agent for whose statements he was responsible, that certain conditions of which the servant had acquired knowledge, had been remedied, or that certain precautions to secure his safety would be taken." As regards this latter we said, in Dobra v. Lehigh Valley Coal Co., 250 Pa. 313, 317, 95 Atl. 465, 467: "He did not, however, say that he relied on the alleged promise in continuing his work. In order to overcome the defense of assumption of risk, in an action under the common law, the employé must show affirmatively, not only that he complained of the danger, and that the employer promised to correct it, but that in continuing to work he relied on that proinise. Otherwise, he must be held to have assumed the risk." [3] In 3 Labatt on Master and Servant, & 924, it is said the duty to furnish a safe place to work does not apply "where the injured servant was hired for the express purpose of assisting in the repair, demolition, or alteration of some instrumentality, and the unsafe conditions from which the injury resulted arose from or were incidental to the work, or where the servant is engaged for the very purpose of making a dangerous place safe." In our own reports there does not appear to be any case identical with the present; but the principle above quoted is sound, and has been applied in the case of work being done, in Mansfield Coal & Coke Co. v. McEnery, 91 Pa. 185, 36 Am. Rep. 662, The same rule is laid down in Ellett v. Lit Wannamaker v. Burke, 111 Pa. 423, 2 Atl. Brothers, Incorporated, 107 Atl. 718, not yet 500, and Walton v. Bryn Mawr Hotel Co., officially reported. In the present case there 160 Pa. 3, 28 Atl. 438. Everybody knows a was no such averment or proof. True, plainfire weakens a building, and the work to be tiff went upstairs to do the work, shortly aftperformed is to remove the insecure parts of er the conversation with Cottman, but a rethe building, that it may thereafter be reliance upon the statement can no more be stored and made safe. In such cases the inferred therefrom in this class of cases than rule of assumption of risk peculiarly applies, upon the promise in the other, and in Dobra v. Lehigh Valley Coal Co., supra, no such in- | Graham, auditor, in the matter of the Pennference was allowed. So, too, this record is barren of proof showing in what respect plaintiff thought the floor was dangerous, and in what respect, if any it in fact was dangerous. All we are told is that it "gave way" at the edge, and plaintiff's foot and leg went into the shaft. There is no evidence that it was burned at the edge, or as to what caused it to give way or how it "gave way." It certainly did not collapse, as plaintiff averred in his statement, for he does not allege it fell, or there was a hole in it, and says he knows nothing about anything being wrong with the joists, which were under the floor all around the shaft. His evidence is a conclusion, and not the facts upon which the conclusion is founded. In order to base a recovery upon the statement of Cottman, plaintiff was bound to aver and prove in what respect the floor was "pretty dangerous," that he relied upon the statement that it was "perfectly safe and sound," and was injured by reason of the danger to which he had called attention. The judgment of the court below is affirmed. (264 Pa. 433) In re PENNSYLVANIA CO. FOR INSUR- ANNUITIES. sylvania Company for Insurances on Lives WALLING, SIMPSON, and KEPHART, JJ. W. B. Linn, J. Rech Guckes, and H. B. Gill, SIMPSON, J. By her will dated March 5, 1890, Sarah E. Snare directed all her just debts and funeral expenses to be paid, and gave the rest, residue, and remainder of her estate to her husband, John T. Snare, absolutely, but, in case she survived him, to any children or issue of children who should be living at the time of her decease. On June 25, 1908, Deborah A. Gay executed a deed of trust to the Pennsylvania Company for Insurances on Lives and Granting Annuities, directing the income of the property thereby transferred to be paid to her daughter, Sarah E. Snare, during her natural life, and upon her decease the principal to be conveyed "to such person or persons and for such estate or estates as the said Sarah E Snare shall by her last will and testament or instrument in writing in the nature thereof, duly executed under the laws of the state of Pennsylvania, select or appoint," and in de (Supreme Court of Pennsylvania. April 21, fault of such appointment "to any child or 1919.) 1. POWERS 34(1)-POWER CONTAINED IN A DEED EXECUTED BY WILL OF EARLIER DATE. Under Act June 4, 1879 (P. L. 88) §§ 1, 3, a power contained in a deed is executed by a will of earlier date than the deed, unless a contrary intention appears by the will. 2. WILLS 75-POWER IN DEED EXECUTED BY WILL APPOINTING TRUST PROPERTY TO PAY DEBTS. Where a deed of trust directed the income of the property to be paid to a daughter for life, and that on her decease the principal be conveyed to such persons and estates as she should by will appoint, her will directing payment of her debts and giving residue to her husband absolutely, and on his death to any children or issue of children, operated to appoint the trust property to pay her debts, as she might do under the general power. Ichildren of the said Sarah E. Snare (if one, solely; if more than one, in equal parts, share and share alike), the issue of any deceased child or children taking the same share that his or her parent would have taken if living." There were spendthrift and separate use trusts as to the gift of the income, but the power of appointment of the principal was general and unhampered. John T. Snare predeceased his wife, who died January 28, 1917, leaving as her only child George W. Snare, the appellant, and no issue of deceased children. Her will as above set forth was duly probated by the register of wills of Philadelphia county. The trustee thereupon filed its account, which embraced personal property only, and appellant, George W. Snare, claimed the balance appearing thereby upon two grounds: (1) The will of his mother, having been executed prior to the 3. APPEAL AND ERROR ~877(2)—ONE HAV- deed of trust, cannot be considered as an exeING NO INTEREST IN FUND INVOLVED CAN-cution of the power contained therein; and NOT COMPLAIN. An appellant, who has no interest in a fund arising under a will, cannot complain that fund was not awarded to the right party. Appeal from Court of Common Pleas, Philadelphia County. George W. Snare appeals from a decree dismissing exceptions to report of Warren C. (2) even if it be held otherwise, a proper construction of the will, as an execution of the power, would give him the property. The auditor and the court below decided both those contentions against appellant, and inasmuch as it was admitted that under the deed of trust Mrs. Snare had the power to appoint for the payment of her debts, and the whole balance of the fund, together with Mrs. (107 A.) Snare's individual estate, will be insufficient no distinction between the two classes of for their payment, awarded the balance property was adverted to by counsel, auditor, shown by the audit of the trustees' account or either court, because the case was decided to the administrator c. t. a. of her estate, upon a principle applicable to both. At that whereupon this appeal was taken. We have, time the rule was that the question was one of therefore, two plain legal questions, interest- intention to be gathered from the language ing and important, not only to the parties to of the will, and unless it either referred to this controversy, but to all others who are or the power, or the property which was the may be in like situation. subject of power, or it would have no opera-' [1] By section 1 of the act of June 4, 1879 tion except as an execution of the power, the (P. L. 88), it is provided: Snare's will. The will, taken in connection with the above-quoted provisions of the act of 1879, must be construed, therefore, as if made after the deed of trust and as if it read substantially as follows: "Out of my own estate and the estate derived under the deed of trust executed by my mother Deborah A. Gay, over which I have the power of appointment, I direct that my just debts and funeral expenses be paid,' and all the rest, residue and remainder' thereof 'I give, devise and bequeath' to my son George W. Snare." As thus stated it is clear, notwithstanding the very able argument of appellant's counsel, appellant can get nothing until his mother's debts are paid; and we need only inquire whether or not our prior decisions compel us, under the doctrine of stare decisis, to reach an opposite conclusion. In Dunn and Biddle's Appeal, 85 Pa. 94, strongly relied on by appellant, both the will and the deed of trust were executed before the act of 1879, the former being dated June 18, 1869, and the latter June 10, 1875; but it is averred the same rule must be applied here as there, because at common law, as under the act of 1879, a will of personalty was to "be construed as if executed immediately before the death of the testator unless the contrary intention appears." In that case both personalty and realty were involved, and will would not be treated as an execution thereof. Wetherill v. Wetherill, 18 Pa. 265, 271; Bingham's Appeal, 64 Pa. 345, 349; Neill's Estate, 222 Pa. 142, 145, 70 Atl. 942. As none of those elements appeared in the will in that case, it was held not to operate as an execution of the power. The act of 1879, however, changes the rule of law so far as wills are concerned, and instead of a will tion to execute the power, the act asserts it as being required to show on its face an intena matter of law, "unless a contrary intention shall appear by the will." In the present instance no such "contrary intention" appears thereby. Neale's Appeal, 104 Pa. 214, Quin's Estate, 144 Pa. 444, 22 Atl. 965, and Dallett v. Taggart, 223 Pa. 180, 72 Atl. 380, were all decided upon the ground that, as a separate use trust cannot be created unless the donee is either married or in immediate contempla tion of marriage at the time the trust is created, the question in such cases is one of power and not of construction, and hence the act of 1879 does not apply. In Edwards' Estate, 254 Pa. 159, 98 Atl. 879, it was held the act of 1879 did not apply, because a "contrary intention" appeared from the will, and hence a large loan made after the date of the will was held not covered by a clause, "I leave no large debts and any indebtedness to me is hereby canceled." As shown by the opinion, the same conclusion would have been reached, had the loan been made before the date of the will. Peterson's Estate, 242 Pa. 330, 89 Atl. 126, so far as it applies at all is against appellant. There testatrix had an estate of her own, and had the power of appointment over certain property held in trust. By her will she provided: erty and estate which I hold in my own right "Whereas, I am the owner of certain propfree from any trust, now I hereby give, devise and bequeath the same to my husband, Arthur Peterson, absolutely." Afterwards she became possessed of a considerable estate, accruing as income from the property held in trust, which accrued estate was transferred to the executors and trustees of the will, to be held by them until it could be disposed of in conjunction with the trust property. It was held this after-acquired property passed under her will. The above are the only authorities relied on by appellant on his first contention. They do not prevent our applying the act of 1879, and we therefore decide the first point against him. [2] Upon the second point, also, no decision has been cited to us, nor have we found any, which sustains appellant's view. In Dunglison's Estate, 201 Pa. 592, 51 Atl. 356, it was simply held that the sums embezzled by a defaulting trustee could not be charged against an estate over which he had, but had not exercised, power of appointment. In Terppe's Estate, 224 Pa. 482, 487, 73 Atl. 922, there was a direction to pay debts; but we held the will showed it did not apply to the property over which testatrix had a power of appointment. We said: "In exercising the power and devising the property she did not charge it with the payment of her debts, and it is therefore not liable for their payment. * * Our construction of the eleventh clause of the will of the testatrix, guided by her intention as we there read it, is that she gave the residue of her own estate to Frederick William Terppe, and exercising her power of appointment, devised the real estate of her husband to the same devisee, subject only to the payment of certain legacies and of incumbrances which she had not placed upon it. The court, therefore, was without jurisdiction to direct this property to be sold for the payment of her debts." In Huddy's Estate, 236 Pa. 276, 280, 84 Atl. 909, 910, we said: * fact paid. Testatrix's intention is therefore clear, and the second point must also be decided against appellant. [3] It is not necessary to decide whether or not appellant is correct in his final contention that "the fund should not in any event have been awarded to Mrs. Snare's administrator," but should have been awarded directly to those entitled thereto. As already stated, the joint funds are not sufficient to pay Mrs. Snare's debts, and hence appellant has no interest entitling him to complain of the person to whom the award is made. If the question was one now to be decided, we would be inclined to agree with what was said by Judge Penrose in Stokes' Estate, 20 Wkly. Notes Cas. 48: "The estate passing under the power has been blended with that belonging to the donee in his own right. This implies a previous administration of the fund, and the payment thereout of debts, etc.," and hence, "the award must be to the executrix of the will of the donee, and not directly to the ultimate appointee" -as in Huddy's Estate, supra, we intimated should be done under like circumstances. This would be the best way to assure the carrying out of testatrix's wishes but, as stated above, it is not necessary to decide the question on this appeal. The decree of the court below is affirmed, and the appeal dismissed, at the costs of appellant. "She did not direct the payment of her debts, nor did she expressly exercise or refer to the power given her by the will of Emma Huddy. * It is not an instance where the donee of the power either expressly or by implication appointed the fund for the payment of her debts, nor did she so blend the fund with her own assets that it is impracticable to pay (Supreme Court of Pennsylvania. April 28, directly to her appointees." And in Cox v. Dickson, 256 Pa. 510, 100 Atl. 947, the question decided was that the gift made by the donee must be considered as having been made at the time of the creation of the power, in order to determine whether or not the statute against perpetuities had been violated. In the present case it is admitted Mrs. Snare could have appointed the trust property for payment of her debts, the power being general, and so we held in South's Estate, 248 Pa. 165, 93 Atl. 954; and the sole question on this branch of the case is did she do so? The question of the relative dates of the will and of the deed of trust being out of the way, admittedly the will is an execution of the power, and the rights of appellant and appellee must be determined by a construction of its provisions. Upon this point we are left in no doubt. Thereby it appears testatrix's debts must be paid in any event, and appellant is given nothing until they are in HEALY v. SHEDAKER. 1913.) (264 Pa. 512) 1. MUNICIPAL CORPORATIONS 706(7)-CONTRIBUTORY NEGLIGENCE OF PEDESTRIAN STRUCK BY AUTOMOBILE QUESTION FOR JURY. Where pedestrian, crossing street on dark night, reaches an island safety zone, and after looking in direction in which travel is coming, and seeing no vehicle approaching, proceeds without continuously looking in that direction for a distance of 20 feet, when she is struck by an automobile, carrying no light, giving no warning, and running at 20 to 30 miles an hour, she is not negligent as matter of law. |