to connect its system at the times mentioned, but provision is made for its protection in case of strikes or inability to secure employés, and also in other cases expressly mentioned in the application and the conditions thereto. There was no error, therefore, in the rejection of the defendant's second prayer.

The defendant's third prayer was also properly rejected. The balance remaining unpaid of the total amount was an amount due by specific terms of the contract. The guaranty was "the payment of all bills payable by this contract," and therefore, if any part of the $470 was due and unpaid, it was clearly within the legal obligation of the guaranty to have it paid.

The fourth prayer of the defendant states the proposition that, if the contract had been signed by the parties in duplicate, and the secretary and treasurer of the coliseum company had possession of a duplicate copy thereof, and that "after the execution of said contract" the defendant guarantied in writing the payment of all bills, etc., then the verdict must be for the defendant. This instruction does not submit to the jury to find whether or not the guaranty was made after the contract had been executed and delivered. The correct principle may be stated as follows: If the original debt or obligation be founded upon a good consideration, and at the time when it is incurred or undertaken or before that time the guaranty is given or received, the consideration for the original contract is taken as the consideration of the guaranty; otherwise the consideration for the guaranty must be expressed. Nabb v. Koontz, 17 Md. 288. In order, therefore, to render this instruction unobjectionable, there should have been submitted for the consideration of the jury whether the guaranty was entered into after the making and delivery of the contract. In all cases it is not necessary that the consideration for a guaranty should be stated in express terms, provided it can be collected or implied with certainty from the instrument itself. Hutton v. Padgett, 26 Md. 231; Roberts v. Woven Wire, 46 Md. 374. But must be collected "with certainty"; "not as a mere conjecture, however plausible"; but "a well-grounded inference to be necessarily collected from the terms of the memorandum." Per Denman, C. J., 35 E. C. R. R. 551. This court said in Hutton v. Padgett, supra, "If the consideration can be clearly inferred or gathered from the writing, the statute is gratified." Deutsch v. Bond, 46 Md. 169. Here the guaranty is indorsed on the same paper, and refers expressly to the contract. The two together show clearly that the consideration was the connection of the electric system with the premises of the coliseum. The guaranty must be regarded as a part of the original contract made with the same understanding, even though the contract may have been signed

prior in time to the guaranty. The fourth prayer was therefore properly rejected.

There being no error in the rulings of the court below the judgment will be affirmed. Judgment affirmed.

(210 Pa. 565)

SWEIGERT v. KLINGENSMITH et al. (Supreme Court of Pennsylvania. Dec. 31, 1904.)

DUTY OF MASTER-NEGLIGENCE-FAILURE TO

INSTRUCT.

1. A master must furnish an employé a safe place in which to work, and provide him with suitable appliances.

2. An employé sued for injuries sustained while throwing off a belt from a pulley by means of a stick. The evidence showed, on the part of defendant, that such was the usual method, while the evidence for plaintiff tended to show that the general usage was to have a shifter to throw off the belt. Held, that where the employer had instructed plaintiff to follow the orders of the head miller, and the latter directed plaintiff to throw off the belt with a stick, but gave him no instructions, and plaintiff had no experience, the question of negligence in failing to properly instruct was for the jury.

[Ed. Note. For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 1046-1050.] Appeal from Court of Common Pleas, Armstrong County.

Action by Harry E. Sweigert against Samuel Klingensmith and others. Judgment for plaintiff, and defendants appeal. Affirmed.

The charge of the court below was in part as follows:

"That is the question for this jury to pass upon. Did Samuel Klingensmith furnish to Harry Sweigert such appliances and machinery to work with as were in ordinary use in this vicinity in mills of the character in which he worked? If he did, then the plaintiff cannot recover. On the part of the plaintiff it is alleged that Mr. Klingensmith did not do that. He says that Mr. Klingensmith was negligent in this: that in ordinary mills a guard is erected between the buckwheat shucker belt and the corn-meal bolt belt; that that is the ordinary appliance used in such mills; and that none was used in this mill. He also says that in ordinary mills a shifter is used to throw these belts off the pulley, and not a stick, as was used in the Klingensmith mill. He also complains that this ladder which he had to stand upon was broken, and was tied together with rope, and that it was not a suitable appliance for such work in such a mill. How is that, gentlemen? Did Mr. Klingensmith provide and use the ordinary safety appliances that are used in mills of ordinary character? In regard to that, the first witness called was J. R. Young. His testimony in regard to that was rather unsatisfactory, as he concluded by saying that he saw more mills without these appliances than with them. The next witness was H. L. Pond, who stated that he had experience for thirty-four years, erecting mills

all over the country, and that the way the Klingensmith mill was set up was not the safe way to set up machinery, as shown by the model; and he explained to you that there should have been a guard there between those two belts, or some appliance to keep the upper belt from falling down on the lower belt, and he says that there should be a shifter there to throw the belt, and he says that that is the way ordinary mills are built. D. H. Boarts, who is a miller here in Kittanning, testified that he had about twentyfive years' experience, and that the usual method in setting up such machinery was to put guards between the belts. That is substantially the testimony on part of the plaintiff. If you believe that the ordinary method of setting up this kind of machinery in this class of mills is by having safety appliances, and that they should have a guard between those belts, and should have a shifter to throw the belt, and that this was not done or used in the Klingensmith mill, then the defendant is bound to respond in damages, because, as we have instructed you, it was the defendant's duty to furnish its workmen with ordinary safe appliances-not the best safety appliances nor the best machinery, but just such as is generally used in ordinary mills of a like character.

"Now, gentlemen, there is a serious discrepancy or contradiction in the evidence of these witnesses on the part of the plaintiff and on the part of the defendant. You will have to reconcile that as best you can.

"In regard to the stepladder, which Mr. Sweigert said was broken and tied with a rope, Charles Klingensmith and Samuel Klingensmith and Mr. Hepler and Mr. Hays are called, and they say that there were ropes on the ladder, but that the ropes were not used to tie the ladder up, but to keep it from spreading apart, and that the use of the ropes was a safety, and not a dangerous, appliance on that ladder; and they also testify that the stepladder in no way contributed to the injury. If that is true-if the stepladder did not contribute to the injury— then it is not material in this case.

"So you have one set of witnesses who testify that in the ordinary mills of this character the method of removing the belts from the pulleys is by the use of a stick. If that is correct, then the plaintiff is not entitled to recover. If you find the contrary to be true, and that in ordinary mills the general usage is to have a shifter to throw the belt off the pulley, and to have guards between moving belts, then the plaintiff is entitled to recover, because it was the duty of the defendant to furnish the plaintiff with the ordinary safe appliances.

"There is another principle, gentlemen, upon which the plaintiff expects to recover, and that is this: The law says that, if an inexperienced person is put in charge of dangerous machinery, it is the duty of the employer to give him proper instructions in regard to

running it. That suggests the first inquiry in this case: Was Harry E. Sweigert, the plaintiff, an inexperienced person? If you find that he was an experienced person, then this principle does not apply. Mr. Sweigert admits that he had worked about this mill a number of years, but he says it was as a common laborer. He says he had no knowledge of this machinery, and that he never threw off that pulley but once; that he had no knowledge or experience in regard to that. Then comes the next question, was that machinery dangerous? That testimony is contradicted. The defendant's witnesses swear that Mr. Sweigert was an experienced man, while Mr. Sweigert himself swears that he was not. That is a question for you to determine. If you believe he was an experienced man, then this principle does not apply; but, if you believe he was not an experienced man, it was the duty of the defendant, before it required him to throw that belt off the pulley, to have instructed him as to the duties of his employment. So far as the court recalls the testimony-but we say the testimony is entirely for the jury-he was not instructed how to throw the belt off the pulley, except that Mr. Sweigert says Mr. Hepler held the stepladder for him, and directed him where to go, and to pull the pulley towards him. Mr. Hepler denies that, and says that he did not instruct Mr. Sweigert how to pull the pulley. There is another principle involved, even if that is true. Mr. Sweigert had no right to go into a place of obvious danger. If the instrumentality by which he is required to perform the service is so obviously and immediately dangerous that a man of common prudence would refuse to use it, the master cannot be held liable for the resulting damages. In such case the law adjudges the servant guilty of concurrent negligence, and will refuse to give him that aid which otherwise he would be entitled to."

Argued before MITCHELL, C. J., and DEAN, FELL, BROWN, POTTER, and THOMPSON, JJ.

M. F. Leason, Calvin Rayburn, and S. H. McCain, for appellants. R. A. McCullough and H. A. Heilman, for appellee.

THOMPSON, J. The failure of appellants to supply proper appliances with which to do the work, and to give proper instructions to appellee, alleged to be inexperienced as to the use of machinery, were the grounds of negligence upon which appellee based his right to recover. The accident occurred in appellants' gristmill, and in its second story, in which were located a buckwheat shucker and a corn-meal bolt, run by a power shaft. The former, placed above the latter, was run by a pulley attached to the end of its shaft by a belt extending from that pulley to another, on the power shaft. These belts started side by side from the power shaft, but, diverging, the buckwheat shucker belt.

ran horizontal, while the corn-meal bolt belt ran somewhat beneath the shucker belt. In throwing off this latter belt, the accident resulting in the injury to appellee occurred. In describing how it occurred, he testified that he got upon a stepladder, taking a stick about three feet in length, and with it threw the belt off the line shaft; that at the time the other end of the belt also came off the pulley there, and it fell upon the underlying belt which ran the corn-meal bolt. This latter belt, running with great rapidity, caught the falling one, threw it back upon the power shafting, and, winding around the hand and arm of appellee drove them against the shafting, and broke his arm. The throwing off the belt in the manner indicated, and its falling upon an exposed and rapidly moving belt lying beneath, caused the accident; and necessarily, in determining the question of negligence on the part of the appellants, the initial question was whether the appliances furnished were such as were in ordinary use in mills such as that of appellants. On the part of the appellee the proofs were that the appliances used ordinarily in such mills were shifters and guarded belts; and on the part of appellants, that those used in this mill were such as were customary and ordinarily used. The question, therefore, was one of fact, and for the jury to determine. The learned trial judge said: "So you have one set of witnesses who testify that in the ordinary mills of this character the method of removing the belts from the pulleys is by the use of a stick. If that is correct, then the plaintiff is not entitled to recover. If you

find the contrary to be true, and that in ordinary mills the general usage is to have a shifter to throw the belt off the pulley, and to have guards between moving belts, then the plaintiff is entitled to recover, because it was the duty of the defendants to furnish the plaintiff with the ordinary safe appliances." These instructions are fully sustained by Ross v. Walker, 139 Pa. 42, 21 Atl. 157, 159, 23 Am. St. Rep. 160, and Ricks v. Flynn, 196 Pa. 263, 46 Atl. 360. The learned trial judge was not guilty of error in so submitting this question of fact to the jury, nor was he so in that part of his charge which related to the instructions required by law to be given to appellee, as he was inexperienced and needed instructions. As to his inexperience, his testimony shows that he had been employed by the appellants in their mill as a driver of a wagon for the delivery of goods, subsequently as a common laborer, and later as an employé in packing flour, filling flour sacks, and delivering flour and feed. These employments do not import knowledge of machinery or of its operation, or information as to the danger incident to the use of machinery. He testifies that he had no experience running machinery, and had never run buckwheat burrs or a buckwheat shucker. the danger of the work about the belts and machinery was not obvious his inexperience,

If

thus shown, cast upon appellants the duty of giving him proper instructions. Such danger was not clearly obvious. It appears that one of his employers inquired why he had not thrown off the belt, and he replied that he was going to get the head miller to come and see what was the matter with it, and his employer's reply was that he did not think anything was the matter with it. He also told him in case of difficulty to call upon the head miller, who had charge of the general machinery, and to do whatever he directed him to do. He sought the head miller, and requested him to look at the buckwheat shucker belt, and he directed him to throw it off. As the danger was not so obvious as to justify him in refusing to do the work in question, he was fully warranted in obeying the order; but, in doing so, he was entitled to proper instructions, in view of the character of the appliances. His testimony shows that neither the member of the appellant firm who was in charge of the mill, nor the head miller referred to, gave him any instructions whatever; and, accordingly, standing upon a stepladder with a stick, he threw the belt off, and the result was the accident.

The learned trial judge left to the jury the determination of the questions of appellee's experience and the sufficiency of the instructions, in view of the character of the appliances used. These questions were peculiarly within the province of the jury. The duty of an employer is to provide an employé a safe place in which to work, and to furnish him with suitable appliances, and, if inexperienced, to make known to him any danger peculiar to their use. This is well settled, and needs no iteration of authority to establish it. Doyle v. Pittsburg Waste Company, 204 Pa. 618, 54 Atl. 363. Appellee's injury was the probable and natural result of appellants' negligence. Its cause was a connected one, and the chain establishing the proximate cause was unbroken. The judgment is affirmed.

(210 Pa. 604)

In re SMITH'S ESTATE. (Supreme Court of Pennsylvania. Feb. 13, 1905.)

WILLS-NATURE OF ESTATE-VESTED INTEREST

-PERPETUITIES-INTESTACY.

1. Testator devised his estate in trust to pay so much of the income as was necessary for her support to his widow; the rest to his five children, and the issue of any who had died leaving issue; after the death of the widow, the income to be paid to the then living children and the issue of any who should have died. After the death of the children the income was to be paid to their children until they arrived at the age of 21 years, when the principal was to be divided in accordance with the intestate laws of the state. One child died in the lifetime of the widow, leaving children, and two died after the widow, without issue. Held, that by the will a vested interest was created in the issue of the children.

2. Where testator devised his estate in trust, so much of the income as was necessary to be

paid to his wife for life; the balance to be devised among his children; and after death of the widow the income to be divided among his children then living, or the issue of any who had died; the gift of the income being limited to the respective lives of the children, and after their death the income to be paid to their children until they arrived at the age of 21, when the principal was to be divided-it was not invalid as bringing the gift within the rule as to perpetuities.

[Ed. Note.-For cases in point, see vol. 39, Cent. Dig. Perpetuities, §§ 42, 49, 50.]

3. Where testator devised his estate in trust, so much of the income as might be necessary for her support to be paid to his widow for life; the balance to his five children, and on her death the entire income to the children then living and the issue of any who should die; and one of the children died in the lifetime of the widow, leaving children, and two of testator's children died after the widow, without leaving issue, and the will provided that after the death of the children the principal should be divided among the grandchildren after they arrived at the age of 21-on the death of the two children without issue there was an intestacy as to twofifths of the estate.

Appeal from Orphans' Court, Philadelphia County.

In the matter of the estate of Nathan Smith, deceased. From a decree dismissing exceptions to adjudication, Mary E. Smith appeals. Affirmed.

Nathan Smith died on May 17, 1875, leaving a will, which, after providing for the appointment of trustees, directed that the trustees so appointed should "hold in trust all my estate, real and personal, to pay to my beloved wife all the money she, may need if it should take the whole net income of my estate; and such net income as is not needed for the support of my dear wife, I direct to be paid halfyearly or oftener at the discretion of the trustees in equal portions to my five children, Martha H. Bonsall, Charles E. Smith, Abram H. Smith, Sarah A. Smith, and Walter B. Smith. Should either of them have died and left issue, if one, solely, if more than one in equal parts, to take the parent's share of income during all the period of my dear wife's lifetime. After her decease the entire net income of my estate to be equally divided among all the children then living (the issue of any who may have previously died to take the parent's share) during all the period of their natural lives; after their death the income to be paid to their children until they attain the age of twenty-one years when each shall receive his or her share of the principal thereof in the proportion he or she received or were entitled to the income agreeably with the intestate laws of the state of Pennsylvania." Martha H. Bonsall died on January 29, 1889, leaving, surviving her, three children. The decedent's widow died on December 31, 1891. Some years after the death of the widow, Sarah Ann Smith and Charles Eber Smith died, leaving no issue. Charles Eber Smith left a widow, and his sole legatee, Mary E. Smith, the appellant, surviving. On February 16, 1893, an adjudi

cation was filed, awarding one-fifth of the personal estate to the children of Mrs. Bonsall.

The opinion of the court below (Penrose, J.) was in part as follows:

*

"After the award by the adjudication of February, 1893, of one-fifth of the personal estate then in the hands of the trustees to the children of Mrs. Bonsall, absolutely, it was agreed by all of the parties in interest that they should receive not only the share of personal estate liberated from the trust, but one-fifth of the appraised value of the real estate still remaining unsold, viz., $5,500, 'in lieu of distribution in kind,' to Helen Bonsall; $5,500 to Laura Bonsall; and $5,500 to C. Stevenson Gatchel, assignee of Charles S. Bonsall; and a schedule of distribution, awarding such sums, and leaving $24,525.28 of personal estate in the hands of trustees, signed by all of the parties, was presented to the auditing judge, and, with his approval, dated October 17, 1893, annexed to and made a part of the adjudication; and by deed dated October 23, 1893, Helen Bonsall, Laura Bonsall, and C. Stevenson Gatchel, assignee of Charles S. Bonsall, in consideration of the sum of $5,500 to each of them, after reciting that they had bargained and agreed to sell, for the consideration mentioned, to Walter B. Smith, trustee, all 'their estate, right, title and interest, share, dividend, claim, and demand whatsoever which they have or of right ought to have, claim, and demand of, in, and out of all the estate, real and personal and mixed, whatsoever and wheresoever of the said Nathan Smith, deceased, whether as devisees under his said will or as devisees and heirs at law of the said Martha A. Bonsall, deceased, and to which the said C. Stevenson Gatchel is entitled as assignee as aforesaid, or in any other way or manner whatsoever,' and further reciting the adjudication and schedule, and the award to them respectively, of $5,500, each, 'in lieu of distribution in kind,' etc.. granted, bargained and sold, etc., to Walter B. Smith, trustee as aforesaid,' all their right, title, etc., in the various pieces of real estate there particularly described, and ‘of, in, and to all the real and personal estate, stocks, bonds, mortgages, securities, moneys and effects whatsoever whereof the said Nathan Smith died seized and possessed, and the rents, issues, income, dividends and profits thereof, accrued, accruing and to accrue therefrom, to which the said Helen Bonsall and Laura Bonsall are now or may or can be in any wise entitled either as devisees or heirs at law of their deceased grandfather, the said Nathan Smith, deceased, or as daughers and heirs at law or devisees of the said Martha H. Bonsall, deceased, and to which the said C. Stevenson Gatchel is entitled as assignee as aforesaid or in any other way or manner whatsoever.'

"It is now claimed that this deed conveyed to the trustee not only the interest of the

grantors in the estate distributable, so far as it was then distributable, at the date of the adjudication and the approval of the schedule, but all right which they subsequently acquired by reason of the death of Sarah A. Smith, without issue, in August, 1903, and the death without issue of Charles Eber Smith in November, 1903, when additional interests passed to them under the intestate laws. It may be that the language of the grant is sufficiently comprehensive to have this effect, though the recital sets forth that the intention is to convey only the interests of the grantors as 'devisees' of Nathan Smith; but the obvious purpose of the deed was to carry out the distribution awarded by the adjudication, and to give to the grantors, also, their shares of the real estate at its appraised value; and it was not intended to include anything not at that time belonging to them, viz., interests which might come, by reason of the subsequent deaths, without issue, of persons then living. The maxim, 'Verba generalia restringuntur ad habilitatem rei vel personæ,' applies to such a grant, and the generality of the language used will be restrained according to the subject-matter to which they relate. This principle was adopted in Case v. Cushman, 3 Watts & S. 544, 39 Am. Dec. 47, where it was said by Gibson, C. J.: 'It is one of Pothier's rules of interpretation, which have been deemed consonant to the rules of the common law, that, "however general the terms may be in which an agreement is conceived, it only comprehends those things in respect to which it appears that the contracting parties proposed to contract, and not to others they never thought of."' See, also, Erwin's Appeal, 20 Wkly. Notes Cas. 278; Rapp v. Rapp, 6 Pa. 45; McLarren v. Robertson, 20 Pa. 125; Codding v. Wood, 112 Pa. 371, 3 Atl. 455, etc."

No question was raised between Charles S. Bonsall and C. Stevenson Gatchel with regard to the deed of August 4, 1892, for the interest of the grantor in the estate of the decedent. The auditing judge decided that the will created a vested interest in the issue of the children, and did not violate the rule against perpetuities; that as to twofifths of the estate there was an intestacy created upon the death of the two children without issue; and that the deeds did not include the portion of the estate covered by the intestacy. Exceptions to the adjudication were dismissed by the court.

Argued before MITCHELL, C. J., and DEAN, FELL, BROWN, MESTREZAT, POTTER, and ELKIN, JJ.

L. W. Baxter, for appellant. Franklin S. Edmonds and Edward H. Bonsall, for appellees.

PER CURIAM. The testator's will did not create a perpetuity. In brief, it gave his estate to trustees, to pay to his widow so much of the income as she might need for her support; the rest of the income to his

60 A.-17

five children, naming them, and the issue of any who had died leaving issue; and after the death of the widow the entire income to the children then living, and the issue of any who should have died. The gift of the income to the children was expressly limited to their respective lives, and "after their death the income to be paid to their children until they attain the age of twenty-one years, when each shall receive his or her share of the principal thereof in the proportion he or she received or were entitled to the income agreeably with the intestate laws of the state of Pennsylvania." This created a vested interest in the issue of the children, and the continuance of the trust during their minority did not bring the gift within the rule as to perpetuities. One of the children (Mrs. Bonsall) died during the lifetime of the widow, and upon the latter's death the court, in accordance with the view above expressed, awarded one-fifth of the estate to Mrs. Bonsall's children.

After the widow's death, two of the children died without issue. Their interests in the estate were for life only, and the court rightly held that, the contingency not having been provided for, there was an intestacy as to those two fifths of testator's estate.

After the award of their shares to the children of Mrs. Bonsall, they entered into a family arrangement under which they made conveyance of their interest. The construction and scope of this deed raised one of the questions in this appeal. On this branch of the case the decree is affirmed on the opinion of Judge Penrose. Decree affirmed.

An order by the court of common pleas, making absolute a rule granted under Act March 8, 1889 (P. L. 10), as amended by Act May 25, 1893 (P. L. 131), to bring an action of ejectment within six months, is interlocutory, and no appeal lies therefrom.

Appeal from Court of Common Pleas, Greene County.

Action by Benjamin F. Gabler and Thomas C. Gabler against James A. Black and others. From an order making absolute rule to bring ejectment, defendants appeal. Appeal quashed.

Argued before MITCHELL, C. J., and DEAN, FELL, BROWN, MESTREZAT, POTTER, and ELKIN, JJ.

MESTREZAT, J. The motion to quash this appeal must prevail. This is a proceeding instituted by the plaintiffs under the act of March 8, 1889 (P. L. 10), entitled "An act to settle title to real estate," as amended by the act of May 25, 1893 (P. L. 131), to compel the defendants to bring an action of