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Action by William A. Matlack against Fay-, ery, it is not sufficient to prove that the maette R. Plumb, Incorporated. Judgment of chinery was guarded and then rest without ofnonsuit. Plaintiff appeals. Affirmed.

fering any competent testimony to show that Argued before BROWN, POTTER, ELKIN, the guard provided was not a proper guard STEWART, and MOSCHZISKER, JJ.

for the purpose intended. John J. McDevitt, Jr., of Philadelphia, for

Under these. circumstances we think the

learned court below properly disposed of the appellant. Henry Spalding, of Philadelphia, for appellee,

case, and that nothing contained in the present record warrants a reversal of the judg

ment. ELKIN, J. At the trial a judgment of non

Judgment affirmed. suit was entered when the plaintiff rested his case. The negligence charged was failure to

MOSCHZISKER, J. (dissenting). I cannot properly guard an emery wheel within the meaning of the act of May 2, 1905 (P. L. 352). the fact that the emery wheel was guarded.”

agree that "in chief the plaintiff established It is conceded on all sides that the require the most that the testimony shows is that ments of this act cannot be disregarded by "it had a covering over it to carry the dust an employer without making himself liable in damages to an employé for injuries re- ing to suggest that this was intended for,

away,” made of “tin"; and there was nothsulting from failure to properly guard machinery as the statute requires. The question in case the wheel should break, which was

or would serve as, a protection to an operator here is whether a prima facie case was made the contingency to be guarded against. Next, out, under the act. In his case in chief the I do not agree that the plaintiff was obliged plaintiff established the fact that the emery to produce opinion testimony to show this wheel was guarded, and the testimony ad-tin device was not a “proper guard.” In enmitted at the trial did not show that the tering the nonsuit the trial judge indicated guard' provided was not a proper guard. On tering the nonsuit the trial judge indicated this exact question there was no evidence at that, in his opinion, the plaintiff's proofs were all. The plaintiff did offer to prove by wit- lacking, because he had not produced a witnesses with more or less expert knowledge ness who "was familiar with the trade and that the guard in question was not the same customs in regard to such machinery to testikind of a guard as that used in some other fy that this guard was not a proper guard”; establishments, but the trial judge ruled that and the majority opinion seems to concur in the offers were incompetent, and refused to that view. To my mind this is clearly wrong; admit the testimony. Under the facts we for, even if it be assumed that the tin dust think this testimony was properly excluded. shield which surrounded this wheel might be It was not of the character to meet the ques- found to be a device that would serve as some tion involved under the pleadings.

protection, there was no necessity for opinion The case stands with the fact clearly es- testimony in order to determine its sufficiency tablished that the emery wheel had a guard, as a “proper guard,” and that was the issue. and no evidence to show that it was not a In other words, conceding for the purposes of

this case that the burden was upon the plainUnder these circumstances proper guard. should the case have been submitted to the tiff to show that the wheel was not properly jury? The learned court below answered guarded, the facts were susceptible of, and this question in the negative, and after con

were given, exact description, and the infersideration we have concluded that this was

ences to be drawn therefrom depended upon the proper view of the case under the facts. the application of common sense and general The present case differs from all other cases knowledge, and not upon the advice of those in which the application of the act of 1905 possessing special knowledge; hence it was was involved, because in most of those cases for the jury to take the testimony describing the machinery was not guarded at all, and the wheel and the dust shields and therefrom in those cases in which a guard had been pro- to decide for themselves whether or not the vided there was evidence that the guard re latter was a proper guard. lied on was not a proper one.

When the facts

“When all the circumstances can be fully and

adequately described to the jury, and are such show that no guard was provided for dan- that their bearing on the issue can be estimated gerous machinery, or when a guard is pro- by all men, without special knowledge or trainvided, but there is evidence to show that it ing, opinions of witnesses, expert or other, was not a proper guard, the case is clearly Pa. 371, 375, 86 Atl. 268.

are not admissible.” Ake v. Pittsburgh, 238 for the jury, and we have said so in a number of recent decisions. In no case, however, ! Mfg. Co., 244 Pa. 310, 91 Atl. 353, we decided

Finally, in Wagner v. Standard Sanitary has it been decided, when the plaintiff proves

that: the machinery to have been guarded, and offers no evidence to show that the guard thus the kind of guards that were available to the

"It is competent to produce testimony to show provided was not a proper one, the case must defendant and regularly employed by others go to the jury. In every case of this kind using such wheels.” the burden is on the plaintiff to prove the

And under this rule the plaintiff was pernegligence charged, and if that negligence be mitted to show that it was usual to inclose failure to properly guard dangerous machin- | emery wheels in “three-sixteenth and quarter

1

inch steel guards"; further, that a guard of Peter M. MacLaren and John R. McLean, this character was "sufficient to resist a Jr., both of Philadelphia, for appellant. breaking emery wheel."

Joseph H. Taulane, Asst. Dist. Atty., and It seems to me that the evidence was am- Samuel P. Rotan, Dist. Atty., both of Philaple to take the case to the jury and that er- delphia, for the Commonwealth. ror was committed in the nonsuit; therefore I dissent.

POTTER, J. [1] It appears from this rec

ord that at a court of oyer and terminer for (245 Pa. 220)

the county of Philadelphia William Abel, the COMMONWEALTH V. ABEL

defendant, was indicted, tried, convicted of (Supreme Court of Pennsylvania. May 4, 1914.)

murder of the first degree, and sentenced. 1. CRIMINAL LAW (8 519*)-EVIDENCE-CON

The first assignment of error is that the FESSIONS.

learned court erred in admitting as evidence A statement signed by defendant setting in the case an alleged voluntary statement forth that it was made of his own free will, and made by the defendant. It is suggested in that his shooting of deceased was accidental, the argument that undue pressure was was properly admitted in evidence, where it appeared that he made it voluntarily, without be- brought to bear on the prisoner in order to ing induced by any promises, and with knowl- procure the statement. This suggestion is edge of its contents and that it would be used not strongly pressed, however, and our readagainst him. [Ed. Note.-For other cases,

other cases, see Criminal ing of the evidence has not satisfied us that Law, Cent. Dig. 88 1163–1174; Dec. Dig. § any undue pressure was brought to bear. 519.*]

The testimony shows that the statement was 2. HOMICIDE ($ 203*)-STATEMENT OF DE- made without any promises whatsoever being CEASED-COMPETENCY AS DYING DECLARA- made to the prisoner, and with the knowledge TION.

Where it appeared that deceased, a boy 12 upon his part that it would be used against years old, was taken to a hospital after being him at the trial. The defendant can read shot, and there told by a physician that his and write; and it appears that he signed the condition was serious, that he was a Catholic, and received from a priest the last rites of the statement knowing its contents, and knowing church, which are only administered when dan- that it set forth that it was made of his own ger of death is imminent, and that after he free will and accord. In the statement he was operated on he asked his father to have him admitted that he shot the boy, but claimed buried in the country in case of death, his statement made the next day, about two hours that it was accidental. In view of these before his death, and after being told by the facts, and in the absence of any denial on physician that he could not live much longer, the part of the defendant that the statewas properly admitted in evidence as a dying ment was made voluntarily, we think it was declaration.

[Ed. Note.-For other cases, see Homicide, admissible against him. Cent. Dig. $$ 430-437;, Dec. Dig. § 203.*]

[2] The second assignment relates to the 3. HOMICIDE ($ 253*)—MURDER OF FIRST DE- admission in evidence upon the trial, as a GREE-SUFFICIENCY OF EVIDENCE.

dying declaration, of a statement alleged to

of a deliberate and willful intent to take life, and have been made in the hospital by the boy, to authorize a verdict of murder of the first de Thomas King, who was shot, and who died gree and sentence of death.

as a result thereof. We think the requisites [Ed. Note.-For other cases, see Homicide, for the admission of the declaration existed Cent. Dig. 88 523-532; Dec. Dig. & 253.*]

in the present case. The testimony shows Appeal from Court of Oyer and Terminer, that after the boy was shot and was taken to Philadelphia County.

the hospital he was advised by the physician William Abel was convicted of murder of in charge that his condition was serious. the first degree, and appeals. Affirmed. That it was doubtful if they could pull him

From the record it appeared that the evi- through. It appeared that the boy was a dence was not contradicted that the defend- Catholic, and that a priest was sent for, who ant had attempted to commit an unnatural administered to him the last rites of the crime upon the deceased, a boy of about church, which are only administered when 12 years; that the boy struggled to escape

the danger of death is imminent. After this from defendant; and that defendant then the boy was operated upon. The next morndrew a revolver and shot deceased in a vital ing the police came to the hospital, and the part of his body, and ran away. The deceas- physician said to the boy, who had passed ed was taken to a hospital, where he died a bad night: the next day. Other facts appear in the much longer. We want you to tell us the

"Tommy, I don't think you are going to live opinion of the Supreme Court.

truth; tell us all you know, so we can find out The jury found a verdict of guilty of who did this to you, and have them punished murder in the first degree, upon which sen

in the proper way.tence of death was passed.

The boy nodded his head and told his Argued before FELL, C. J., and MESTRÈ story. It also appeared that shortly after ZAT, POTTER, ELKIN, and MOSCHZIS- the operation the boy twice asked his father KER, JJ.

if, in case of his death, the father would

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

take him to the country and bury him. The 3. RAILROADS ($ 281*)-INJURY TO TRESPASSfather said he would. In the face of this

ER-NEGLIGENCE.

While trainmen should not intentionally testimony we do not see that it can be rea- or wantonly injure a trespasser, they need pot sonably doubted that the boy told his story hunt for concealed trespassers before starting under the impression that his death was a train. near at hand. As a matter of fact, he died cent. Dig. ss 902-909; Dec. Dig. § 281.*]

[Ed. Note. For other cases, see Railroads, within two hours thereafter. We cannot

4. APPEAL AND ERROR ($ 882*)-GIVING FULL therefore say there was error in admitting

CREDIT TO WITNESS-RIGHT TO COMPLAIN. the statement.

Plaintiffs in a negligence case could not [3] Nor do we see any merit in the assign- complain on appeal that the jury gave full credment of error which suggests that the in- it to their own witness. gredients necessary to constitute murder in Error, Cent. Dig. 88 3591-3610; Dec. Dig. 8

[Ed. Note.-For other cases, see Appeal and the first degree were not shown. It appear- 882.*] ed that the boy was first assaulted, and then was brutally shot in a vital part of the body;

Appeal from Court of Common Pleas, Philthe pistol being held so close as to singe and adelphia County. blacken the flesh. From the facts attend

Trespass by Charles Schleich and another ing the shooting, which were shown, the jury against the Baltimore & Ohio Railroad Comcould reasonably infer the existence of an in- pany for damages for death. From a judgtention to kill. Taking into account the part ment refusing to take off nonsuit, plaintiffs of the body in which the boy was shot, it is appeal. Affirmed. to be presumed that whoever fired the shot Upon a motion to take off the nonsuit, Auknew that it was likely to be fatal. No denried, J., filed the following opinion: extenuating circumstances whatever were

On the afternoon of March 8, 1912, the plainshown. We regard the evidence as suffi- tiffs' son, Raymond, a boy obout nine years old, cient to warrant the inference of a deliberate and Porter streets, in this city, and set out

met another boy of his own age at Sixteenth and willful intent to take life. Our examina- with him for the railroad tracks laid on a strip tion of the record has satisfied us that the of ground belonging to the defendant, and rundefendant received a fair and impartial trial, gon avenue; their purpose being to steal coal

ning east and west along the south side of Oreand we have no reason to doubt the justice from the coal cars there. The grade of Oreof his conviction. Neither in the charge to gon avenue at this point is six or seven feet the jury nor in the admission of evidence above that of the railroad.

The boys crossed that street and descended to do we find anything of which the defendant the defendant's tracks by a path that runs can justly complain.

south from a point opposite the mouth of BanThe assignments of error are overruled, croft street, a small thoroughfare which leads

north and south. They found standing on the and the judgment is affirmed, and it is order- northernmost track a west-bound train consisted that the record be remitted to the court ing of 45 or 50 coal cars. Its rear car was below, for the purpose of execution.

then opposite Sixteenth street, while its locomotive was about three blocks to the west of that point.

This train had become stalled for want of (245 Pa. 184)

steam. Its crew consisted of an engineer, a SCHLEICH et al. v. BALTIMORE & 0. R. fireman, a brakeman, a conductor, and a flag

man. When the two boys arrived on the CO.

scene, all of the crew except the flagman were

on or about the engine or its tender. The (Supreme Court of Pennsylvania. April 27,

flagman had been stationed one block to the 1914.)

east of the rear end of the train. The train 1. RAILROADS ($ 281*)-INJURY TO TRESPASS- had lain at this point for 20 minutes, and the ER-NEGLIGENCE-LIABILITY.

engineer, having at last succeeded in getting up The fact that a flagman is negligent in enough steam to start with, had given the sigstarting a train without making sure that boys nal recalling the flagman. who have been playing about in plain view are

Five minutes elapsed before the latter regainnot still on the cars will not render the rail- ed the train.. During that time Raymond sucroad company liable for injuries to a boy who ceeded in climbing upon a car which stood has hidden himself in a car, and was not one fourth or fifth from the rear end of the train, of those playing about the train.

and got down inside of it. Here he was com[Ed. Note. For other cases, see Railroads, mounting the car and peering over its side, or

pletely hidden.

Nobody could see him without Cent. Dig. $S 902-909; Dec. Dig. & 281.*] getting up on top of the adjoining cars and 2. RAILROADS ($ 281*)—INJURY TO TRESPASS - looking down. No one saw him board the train

except his companion, and the latter seems to ER-NEGLIGENCE. Where a boy hid himself in a car, and was

be the only person who knew that Raymond injured from the starting of the train at the

was anywhere near it. signal of a flagman who did not know of the boarded it, the flagman reached the rear car

Within a minute or two after the boy had boy's presence, the fact that the boy was of and from 'its platform gave the engineer the tender years did not render negligent the flag: signal to start. The train immediately began man's failure to discover him; the standard of to move. As the flagman signaled the engineer duty in case of concealed trespassers being the he had looked along first one side of the train same whether the person injured be an adult and then the other, but had observed none or a child.

near it who could be hurt by its motion. A [Ed. Note.-For other cases, see Railroads, number of boys had been playing on the cars beCent. Dig. $8.902–909; Dec. Dig. § 281.*] fore this, but they had been called away by a *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. ies & Rep'r Indexes

woman at the window of a neighboring house be- dence showed that the man by whose negligence fore the train started, and they did not approach the plaintiff was injured had the fullest opporit again until it got under way.

tunity to see her, to observe where she was, The plaintiffs' son was not with those boys. and to realize the consequence that would probThe first person to see him after he passed from ably result from his act. The presence of this the sight of his comrade into the coal car person could not be secured by either party at was the flagman. When the train had moved the trial, and the jury was left to inference as about five car lengths the latter, who was on to his actual knowledge of the circumstances the back platform of the last car, noticed him under which he committed the act that did the sitting on the north side of the ditch between injury. the railroad tracks and the Oregon avenue em [4] In the case at bar the man whose alleged bankment. His attention had been arrested by negligence is pointed to as the cause of the. the child's call; but until the latter called a accident appeared on the witness stand at the second time the man thought that he was play- call of the plaintiffs and swore that he did ing, and did not observe that he had been hurt. not see their son on the train. If that eviThe rear end of the train was then a car's dence be accepted as true, and the plaintiffs length to the west of where the boy was sit- who put him on the stand cannot complain ting. As soon as he realized that something if fulĩ credit be accorded to their own witwas wrong the brakeman jumped from the ness, no room was left for conjecture on this car and, finding that the child's leg had been subject. cut almost off, carried him up the bank to Ore

The court dismissed the motion to take off gon avenue. Subsequently the boy was carried by an ambulance to the hospital. There he the nonsuit. died the next day. How he came to be injured, Argued before FELL, C. J., and BROWN, nobody knows. Presumably the wheels of the train passed over his leg; but no one saw this ELKIN, STEWART, and MOSCHŽISKER, happen.

JJ. The plaintiffs' evidence at the trial disclosed the facts above outlined. The court on motion

Henry B. Hodge, T. Truxton Hare, and of the defendant entered a nonsuit, which we Paul Reilly, all of Philadelphia, for appelare now asked to take off.

lants. W. B. Linn and H. B. Gill, both of [1] The plaintiffs contend that the jury should Philadelphia, for appellee. have been allowed to say whether or not the flagman was negligent in failing to observe the presence of their son on the train before PER CURIAM. Nothing can be added to starting it, and in starting the train without the clear and concise statement of the facts making sure that there was nobody on it who and the law applicable thereto by Judge Auwanted to get off. This proposition is based on the fact that a dozen or more boys had been denried, and on his opinion we affirm the playing about the train in plain view of every- judgment appealed from. body, and the assumption that it might have been expected that some of them were still on the cars when the flagman was called in.

(245 Pa. 107) The answer to this argument is that all the boys whom the flagman saw or might have seen Appeal of CUMBERLAND VALLEY R. CO. without extraordinary effort had actually left (Supreme Court of Pennsylvania. April 20, the train before he signaled the engineer to

1914.) start it, and none of them were injured. 1. RAILROADS ($ 99*)—GRADE CROSSINGS-PEEven if it could fairly be said that with re

TITION FOR LEAVE TO ESTABLISH-BURDEN spect to these boys he was guilty of negligence,

OF PROOF. it does not follow that such negligence imade

In view of the fact that Act June 7, 1901 bim responsible for the death of the boy who (P. L. 531), forbidding public authorities, exwas hurt. To fix responsibility on the flagman cept in cities of the first and second classes, for the death of the latter, it must be shown that to construct grade highway crossings without the death resulted from negligence as to him.

permission of court, is not an enabling act to [2, 3] As to the Schleich boy, however, there facilitate the building of highways over railwas no negligence on the part of the

flagman. roads at grade, but is prohibitory, a heavy burHe was hidden in one of the cars. . There he den of proof to establish the necessity rests had no right to be. The car was private prop-on public authorities petitioning for leave to erty. It was standing on private land. Neither establish a grade crossing. the flagman nor the other men on the train were bound to hunt for concealed trespassers. It was cent. Dig. ss 293–295, 297–304; Dec. Dig. ģ

[Ed. Note.-For other cases, see Railroads, their duty, it is true, not to injure him inten

99.*] tionally or wantonly. Had the flagman seen him in the act of climbing down from the car, 2. RAILROADS (8 99*) - GRADE CROSSINGS he would have been negligent if he signaled for PETITION FOR LEAVE TO ESTABLISH. the engineer to start the train before the boy Where, on a petition by township superreached a place of safety. Even trespassers visors for leave to establish a grade crossing, are entitled to humane consideration. But the the court found that between 50 and 60 trains flagman did not see the boy at all, and he was daily passed over the proposed crossing, some no more bound to take notice of his presence at a speed of from 40 to 45 miles an hour and on the train, because the trespasser happened others from 65 to 70 miles an hour, that the to be of tender years, than he would have been railroad traffic was increasing and the view had the latter been a man. The standard of of the track obstructed by growing corn at cerduty in a case like this is the same whether tain seasons, though the smoke from the enthe person injured is an adult or a child. gines could be seen above the corn, and that Thompson v. Railroad Co., 218 Pa. 444, 67 Atl. the cost of constructing an overhead crossing 768, 19 L. R. A. (N. S.) 1162, 120 Am. St. would be $20,000, half of which would be borne Rep. 897, 11 Ann. Cas. 894.

by the railroad company, and there was no · The correctness of this view was recognized finding as to the probable amount of travel on in Walsh v. Pittsburgh Rys. Co., 221 Pa. 463, the highway, but the petition for opening same 70 Atl. 826, 32 L. R. A. (N. S.) 559, the case had been signed by 150 residents of the townon which counsel for the plaintiffs principally ship, it was error to grant the petition in conrelies. The sending of that case to the jury sequence of a conclusion of law that the highwas held to be warranted only because the evi- way traffic would be small, and that the cost of *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

constructing an overhead crossing would be ex- | act of 1901, asking permission to construct cessive.

the road at grade over the tracks of the ap[Ed. Note-For other cases, see Railroads, pellant. Between 50 and 60 trains pass daily Cent. Dig. $8 293–295, 297–304; Dec. Dig. $ 99.*]

at the point where the proposed public road

crosses the tracks of the railroad company. Appeal from Court of Common Pleas, Most of these are fast freight and passenger Franklin County.

trains, the former running at a speed of Petition of the Board of Township Super- from 40 to 45 miles an hour, and the latter at visors of Antrim Township, Franklin Coun- a speed of from 65 to 70 miles an hour. The ty, for permission to establish a grade cross-traffic of the railroad company is rapidly ining in Antrim Township over the Cumber-creasing. The land on each side of its tracks land Valley Railroad. From a decree grant- where the new public road will cross them is ing the petition, the Cumberland Valley Rail- cultivated by farmers, and a finding of the road Company appeals. Reversed.

court below is that, when corn grows high in Argued before FELL, C. J., and BROWN, the fields at the point of the proposed grade ELKIN, STEWART, and MOSCHZIS- crossing, the roadbed of the company cannot KER, JJ.

be seen in approaching the tracks, though Walter 'K. Sharpe and 0. C. Bowers, both smoke from the engines can be seen above the of Chambersburg, for appellant. A. J. W. corn. In this latter part of the finding the Hutton and W. J. Patton, both of Chambers-court below seems to have forgotten that burg, for appellee.

smoke is not visible in darkness or in fog.

Though the learned judge failed to find as BROWN, J. [1] The settled policy of the a fact that the proposed grade crossing will state—no longer merely judicial—is against be dangerous, one of his legal conclusions, ingrade crossings over railroad tracks.

consistent with the facts which he found, is

By the act of June 7, 1901 (P. L. 531), public au- that the crossing will not be a dangerous thorities, except in cities of the first and sec

one. We are unable to understand how such ond classes, are forbidden to construct a pub- a conclusion could have been reached in view lic highway at grade over the tracks of a rails of the facts to which we have referred. Our road company, unless permission to do so be conclusion, from a review of what has been obtained from the court of common pleas of brought up on the record, is that the prothe district in which the crossing is situated; posed grade crossing will be dangerous, and and such permission must be obtained in the that the court below erred in concluding manner provided by the fourth section of the

otherwise. act. It is not an enabling act to facilitate

The act of 1901 provides that a grade grade crossings of railroads by highways; on crossing may be constructed if the court the contrary, it is a prohibitory one, and, having jurisdiction of the matter shall be satwhen public authorities petition for a grade isfied that such a construction is reasoncrossing under the provisions of its fourth ably required to avoid excessive expense, in section, they come into court with a heavy view of the small amount of traffic on the burden of proof resting upon them. Mifflin highway. Among the court's findings there is ville Bridge, 206 Pa. 420, 55 Atl. 1122.

none that the amount of traffic on the high[2] This appeal is from permission granted way will be small. True, there is a finding by the court below to the supervisors of An- that it is likely to be used only for neightrim township, Franklin county, to construct borhood travel, but how extensive that may a public highway at grade over the double be does not appear. It does appear, however, tracks of the Cumberland Valley Railroad that more than 150 residents of Antrim townCompany. In view of the facts found by the ship petitioned for the road, which connects court and of an unchallenged averment in the two public highways running parallel to each sixth paragraph of the answer of the appel- other, east and west of the railroad, and it lant to the petition of the appellees for per- may be in view of this that the court below mission to construct the crossing, the order could not have found as a fact that the authorizing it ought not to have been made. "amount of trafne" over the road would be In 1912 a petition, signed by more than 150 small. One of its legal conclusions was that, residents of Antrim township, was presented as the amount of travel on the highway to the court of quarter sessions of the coun-was likely to be small, the expense which ty, asking for the appointment of viewers to would be incurred in constructing an overview and lay out a public road to run from head structure would be excessive and almost the Hagerstown road to the Williamsport prohibitory. As just stated, there was no turnpike, two public thoroughfares in the finding as to the probable amount of travel township. The viewers reported in favor of on the highway. It may be large, even if it the proposed road, and, after their report be likely that the highway will be used only had been absolutely confirmed by the court, for the neighborhood travel; for many people and an order made for the opening of the may live there. More than 150 of them set road, the supervisors of the township present forth in their petition for the road that it ed their petition, under the provisions of the was necessary for the accommodation of the

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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