Argued before FELL, C. J., and BROWN, POTTER, ELKIN, and MOSCHZISKER, JJ. James W. Laws, of Philadelphia, for appellant. H. Gordon McCouch, of Philadelphia, for appellee. thereon fronting on said Chester or Springfield | exceptions to the adjudication, Harriet M. avenues or on Fifty-Second street other than Rogers appeals. Reversed. dwelling houses." It appears from the bill and answer and the evidence that the defendant proposes to erect on his lot a theater, fronting on Fifty-Second street, covering the entire FiftySecond street front of the lot. This is in direct violation of the terms of the restrictions that no buildings shall be erected fronting on Fifty-Second street other than dwelling houses. The proposed building of the defendant is to extend along Chester avenue as far as Paxon POTTER, J. [1] This is an appeal from The defendant claims that the build- the decree of the orphans' court of Monting comes within the exception to the restriction which is in the following words: "This restric-gomery county, dismissing exceptions to the tion shall not apply to so much of the ground adjudication in the estate of Edward L. Rogas fronts on Chester avenue from Fifty-Second ers, deceased. In his will the testator gave street to Paxon street, where other buildings legacies of $10,000 to each of his three chilof at least the same height and similar architecture to said dwelling houses may be erected." dren and provided as follows: It is not necessary to consider whether the theater proposed to be built would be contrary to this restriction as not being of similar architecture in the dwelling houses. The theater is on the ground fronting on Fifty-Second street and therefore within the words of the restriction, and its building would be a violation of the restriction in the defendant's deed. The court awarded the relief prayed for. Argued before FELL, C. J., and MESTREZAT, POTTER, ELKIN, and MOSCHZISKER, JJ. E. Clinton Rhoads and Samuel R. Lazowick, both of Philadelphia, for appellant. John G. Johnson and Sidney E. Smith, both of Philadelphia, for appellee. "And as to all the rest, residue and remainder of my estate, real, personal or mixed, of whatever nature or kind, or wheresoever situate at the time of my decease, I do hereby give, devise and bequeath to my beloved wife, Harriet M. Rogers, for and during her natural life, with full power to sell or dispose of any of my real estate, securities of any and all kinds, in such a manner as she may desire, with the request however that care be taken in the investment or reinvestment of any money that may not be actually required for living expenses, or other necessities, with the wish that she may at any and all times be liberal in regard to her own comforts and not feel that it is so if my estate so warrants it." necessary to be unduly economical, especially There was no gift over of the estate. [2] Upon the audit of the executor's account, the widow who had elected to take un PER CURIAM. The decree is affirmed on der the will, claimed that she was entitled the opinion of Judge Ralston. (245 Pa. 206) In re ROGERS' ESTATE. (Supreme Court of Pennsylvania. May 4, 1914.) 1. WILLS (§ 612*) - CONSTRUCTION-VESTING OF ESTATE. A will giving the residue of testator's estate, real, personal, and mixed, "to my beloved wife * ** for and during her natural life, with full power to sell or dispose of any of my real estate, securities of any and all kinds, in such manner as she may desire, with the request, however, that care be taken in the investment or reinvestment of any money that may not be actually required for living expenses, or other necessities, with the wish that she may at any and all times be liberal in regard to her own comforts, and not feel that it is necessary to be unduly economical, * * *" vested the wife with an absolute estate in the personalty and not merely with an estate for life with power to consume. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1387-1392, 1608; Dec. Dig. § 612.*] 2. WILLS (8 610*) — CONSTRUCTION - GIFT OF PERSONALTY. The rule that a gift of personalty for life without gift over, passes the whole estate is a mere rule of construction in aid of discovering testator's intention, and not a rule of law. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1379-1385; Dec. Dig. § 610.*] Appeal from Orphans' Court, Montgomery County. In the matter of the estate of Edward L. Rogers, deceased. From a decree dismissing to the residuary estate absolutely. The auditing judge, however, held that she was given only a life estate, with power of sale and the right to consume as much as may be actually required for living expenses and necessities. Exceptions filed by the widow were dismissed and the adjudication was confirmed. The widow has appealed. The general rule is that a gift for life without a gift over passes the whole estate. This is not a rule of law, but a rule of construction in aid of discovery of the testator's intention. Tyson's Estate, 191 Pa. 218, 43 Atl. 131. In that case, however, there was an absolute devise over, and the residue after the life estate passed under the will. In Brownfield's Estate, 8 Watts, 465, 469, the testator gave his wife "one-third of my personal estate, during her life, after my just debts paid," without any disposition over. Mr. Justice Kennedy said: "The widow was entitled to receive it to dispose of as she pleased, there being no limitation over of it after her death." In Diehl's Appeal, 36 Pa. 120, a testator gave to his wife a tract of land during her lifetime, "together with all my bonds and notes, to have and to hold the same. Also, all my personal estate, whatsoever will be left after my decease, to have and to hold the same during her natural lifetime"-without making any disposition over. It was held that the bonds and notes became the absolute property of the testator's widow. *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes In Shower's Estate, 211 Pa. 297, 303, 60 Atl. gard it as sufficient to overcome the estab789, 791, our Brother Mestrezat said: "We concede the rule invoked by the appellants that a gift of the income of an estate with no limitation over of the principal is an absolute gift of the property or fund itself." In Merkel's Appeal, 109 Pa. 235, a testator gave to his wife "my remaining personal property, it may be money, or whatsoever kind it will to her full ownership as long as she doth live." He also provided: "I recommend that my hereinafter named executor shall see after that her money does not become lost." lished rules of construction that would give to her the personal property, absolutely. In many of our cases language much stronger has been held not to have the effect of cutting down the wife's interest to a life estate. Thus in Follweiler's Appeal, 102 Pa. 581, testator gave and bequeathed "all the rest, residue and remainder of my goods, chattels, debts, ready money, effects and other of my estate whatsoever and wheresoever, both real and personal, every part and parcel thereof unto my wife Mary, to keep and enjoy during her lifetime, and after her death what In disposing of this case Mr. Justice Pax-shall be left shall be divided equally, my heirs son said: "The language of the will above quoted is ample to vest the personal estate of the testator absolutely in his widow. It is a gift for life, without any limitation over, and without the intervention of a trustee. **The recommendation to his executor to see that his wid ow's money 'does not become lost' are precatory words, and since Pennock's Estate, 20 Pa. 268, [59 Am. Dec. 718], have never been held suf ficient to convert a devise or bequest into a trust." In the present case the request that care be taken in the investment of the money is merely precatory, and the provision giving to the wife full power to sell or dispose of the estate is the controlling language of the residuary clause of the will. In Freeman's Estate, 220 Pa. 343, 69 Atl. 816, there was a provision which relieved the wife as life tenant from giving security, and it was held that if it had been intended to give an absolute estate, these words would be meaningless. Therefore they were regarded as sufficient to take the case out of the general rule. In the present case, in a former clause of the will, after speaking of bequests which he had made to his two daughters, the testator makes further reference to "any other interest that may eventually come to them from my estate." We do not, however, regard these words as necessarily having the effect of limiting the wife to an estate for life. They may apply to real estate of which testator died seized, which would descend to the daughters if not consumed by the wife. These words might also apply to any portion of the personal estate which the daughters might eventually receive from their mother. The testator evidently contemplated the possibility that the widow would not consume the entire principal of the estate, in which event she would naturally bequeath part of it to her children, or in the event of her dying intestate they would inherit from her. There is also a presumption of the first taker having a fee, in spite of subsequent words which appear to be repugnant. See language of Mr. Chief Justice Mitchell, in Allen v. Hirlinger, 219 Pa. 56, 58, 67 Atl. 907, 13 L. R. A. 458, 123 Am. St. Rep. 617. At any rate, we are not satisfied that the language used indicates a clear intention on the part of the testator to restrict the gift to the widow to a life estate only, nor do we re and her heirs, share and share alike." It was held that the widow would take any personal property absolutely, but took a life estate only in the realty. Mr. Justice Trunkey said (102 Pa. 583): (widow) would take it absolutely. "If there were any personalty, the appellant But the realty is not subject to the same rule." The principle of this decision was recognized and followed in Cox v. Sims, 125 Pa. 522, 17 Atl. 465, and the same principle was again cited and approved in Taylor v. Bell, 158 Pa. 651, 655, 28 Atl. 208, 209 (38 Am. St. Rep. 857), where Mr. Justice Green said: "In the present case the widow has the right to use the residuary estate as she may deem best for her own advantage. This would entitle her to an absolute estate in the personalty because it includes the power of disposition." In that case, however, as to the real estate, there was no power of sale. While in the case now before us the wife was given power to dispose of the real estate, if necessary. In Boyle v. Boyle, 152 Pa. 108, 25 Atl. 494, 34 Am. St. Rep. 629, it appeared, as set forth in the syllabus, that a will provided as follows: "As to my wordly goods, after my just debts are paid, I give and bequeath to my beloved wife, all my property, real and personal, for remainder at her decease to be disposed of by her support, during her natural lifetime; any her as she may think just and right among my children." It was held that the words of the will imported an absolute gift, and gave a fee with all its incidents. In Hardaker's Estate, 201 Pa. 181, 53 Atl. 761, the wife was given the estate during her natural life with power of disposition by will. It was held that she took an absolute and not merely a life estate in all the property possessed by the husband at the time of his death. In the case now under consideration the residue of the estate was given to the wife "for and during her natural life, with full power to sell or dispose of any of my real estate, securities of any and all kinds in such a manner as she may desire." This was followed by the precatory words as to care in investment of money not actually required for living expenses or other necessities. We cannot under the authorities above cited regard these latter words, nor the words in the former clause of the will, re " ferring to any interest that may eventually come to his daughters from his estate, as expressing a clear intent upon the part of the testator to limit the interest of the wife to a life estate. We think an absolute estate in the personalty passed to the wife. The first, third, fourth, fifth, seventh, eighth, ninth, and tenth assignments of error are sustained. The decree of the orphans' court is reversed, and it is ordered that the record be remitted to the court below, that distribution may be made in accordance with this opinion. (244 Pa. 310) out a mark on the wheel, and this constituted a material part of the testimony, the counsel eliciting such testimony should have seen that a proper description was brought out in the evidence and placed in the record so that the matter could be understood by the appellate court. Error, Cent. Dig. §§ 2367-2371; Dec. Dig. § [Ed. Note.-For other cases, see Appeal and 522.*] 6. MASTER AND SERVANT (§ 270*)-INJURY TO SERVANT EVIDENCE. Where, in an employé's action for injuries tended to show that the wheel could have been from an unguarded wheel, plaintiff's evidence effectively guarded without interfering with its use, evidence of the kind of guards available and regularly employed by others using such wheels was properly admitted, though defend WAGNER v. STANDARD SANITARY MFG. ant's evidence tended to show that it was not CO. (Supreme Court of Pennsylvania. March 2, 1914.) 1. MASTER AND SERVANT (§ 121*) - SAFE APPLIANCES-PURPOSE OF STATUTE. practicable to guard the wheel. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 913-927, 932; Dec. Dig. § 270.*] 7. MASTER AND SERVANT (§ 121*) - INJURIES TO SERVANT-DEFECTIVE APPLIANCES-NOTICE. The purpose of Factory Act May 2, 1905 (P. L. 352), is to protect working people by requiring dangerous machines to be properly from a wheel at which he was working outside Where injuries resulted to an employé guarded when in operation, and not to prohibit his own department not being properly guardtheir use or to make every manufacturer an in-ed as required by Factory Act May 2, 1905 (P. surer of employés working about dangerous L. 352), it was not essential to the liability of machinery which cannot be guarded by any the company employing him that its officers have express knowledge that he was in the hab[Ed. Note.-For other cases, see Master and it of using tools and appliances outside his parServant, Cent. Dig. §§ 228-231; Dec. Dig. Sticular department; implied notice being suffi121.*] known device. 2. MASTER AND SERVANT (§ 121*)-SAFE APPLIANCES "PROPERLY GUARDED.' 99 As used in Factory Act May 2, 1905 (P. L. 352), requiring that dangerous machines be properly guarded when in operation, the phrase "properly guarded" means suitably guarded according to the circumstances and possibilities of the particular case. Hence, if a machine cannot be protected in any manner without rendering it useless, there is no suitable guard for it and it cannot be "properly guarded." [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 228-231; Dec. Dig. § 121.*] 3. MASTER AND SERVANT (§ 264*)-INJURY TO SERVANT-PLEADING-VARIANCE. In an employé's action for injuries due to an unguarded wheel, there was no material variance between an allegation in plaintiff's statement that the wheel was revolving from 1,800 to 2,000 revolutions per minute, whereas it should not have been operated more than 1,200 revolutions, and proof that it was being operated at the rate of 1,912 revolutions per minute and that it could not be safely driven in excess of 1,175 revolutions. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 861-876; Dec. Dig. § 264.*] 4. MASTER AND SERVANT (§§ 285, 286*)-INJURIES TO SERVANT-QUESTIONS FOR JURYCONFLICTING EVIDENCE. Under conflicting evidence in an employé's action for injuries from an unguarded wheel, the questions whether the wheel was run at an excessive speed and whether its speed contributed to the accident were for the jury. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1001-1003, 1006-1008, 1010-1033. 1035-1044, 1046-1050, 1053; Dec. Dig. §§ 285, 286.*] cient. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 228-231; Dec. Dig. § 121.*] 8. JUDGMENT (§ 199*)-NON OBSTANTE VEREDICTO EVIDENCE. from an unguarded wheel, the evidence, though Where, in an employé's action for injuries conflicting, did not establish contributory negligence as a matter of law, but presented a case for the jury, which was submitted under proper instructions, the court properly refused to enter judgment non obstante veredicto for defendant. [Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 367-375; Dec. Dig. § 199.*] Brown, J., dissenting. Appeal from Court of Common Pleas, Allegheny County. Trespass by Frank Wagner against the Standard Sanitary Manufacturing Company, for personal injuries. From judgment for plaintiff, defendant appeals. Affirmed. Argued before BROWN, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ. Walter Lyon, of Pittsburgh, for appellant. Thomas M. Marshall, Jr., A. H. & H. H. Rowand, and Thomas M. Marshall, all of Pittsburgh, for appellee. MOSCHZISKER, J. The defendant company is a manufacturer of tubs and bathroom utensils. The plaintiff had been in the defendant's employ for nine years, and during the last five months of that period acted as foreman of its enameling department; on 5. APPEAL AND ERROR (§ 522*) - PRESENTA- November 1, 1909, he was severely and perTION FOR REVIEW-RECORD-EVIDence. Where a witness in an employé's action manently injured by the breaking of a swiftly for injuries from an unguarded wheel, pointed moving, unguarded emery wheel, technically For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 91 A.-23 called a carborundum wheel, at which he was working; he sued and recovered a verdict, upon which judgment was entered, and the defendant has appealed. [1] The controlling facts in the case and the view of the court below upon the applicable rules of law are tersely and plainly stated in the following excerpts from its opinion refusing a new trial: would practically prohibit the use of machinery possessing unavoidable elements of danger. "The phrase, 'properly guarded,' is a relative term or expression, and whether the statutory requirement in that respect has been complied with necessarily depends upon the facts of the particular case. * The necessity for an artificial guard depends upon the existence of certain conditions, and is a question of fact for the jury." Booth v. Stokes, 241 Pa. 349, 351, 88 Atl. 490; Izzo v. Finn, 238 Pa. 602, 604, 86 Atl. 486; McCoy v. Wolf, 235 Pa. 571, 574, 84 Atl. 581. "Plaintiff's contention was that he was directed by the assistant manager to make repairs to an appliance used in defendant's department for enameling bathtubs and other fixtures, known as a hammer, that to do so he was obligWe interpret the words "properly guarded" ed to go to the cleaning department, where to mean suitably guarded, and if a piece of carborundum wheels were used, to grind down machinery cannot be protected in any mana brass rod, and that while engaged in reducing gence * * When a departure of the size of the rod the wheel exploded, result-ner whatsoever, without rendering it useless ing in the injury complained of. The negli- for the service which it usually performs, upon which the plaintiff based then it is plain that there is no guard suithis right to recover was: (1) Defendant's fail- able to that particular machine, and thereure properly to guard the carborundum wheel at which plaintiff was working; (2) that the fore it cannot be "properly guarded"; for a wheel was being driven, without plaintiff's guard which would prevent a machine from knowledge, at an excessive speed. The eleventh performing its functions is not in any sense a section of the Factory Act of May 2, 1905 (P proper guard. The apparent purpose of the L. 352), requires that, ** all * grindstones, emery wheels, flywheels and ma- act in question is to protect working people chinery of every description shall be properly by requiring dangerous mechanical appliancguarded.' * Any failure to comply with es to be properly guarded when in operation, the requirements of the statute on the part of not to prohibit their use altogether, or to the employer is negligence from which he cannot be excused unless the employé was guilty make every manufacturer in this great inof contributory negligence. Lanahan v. Ara- dustrial state an insurer of all persons ensapha Mfg. Co., 240 Pa. 292 [87 Atl. 286]. gaged around machinery which possesses inWhether the employé is chargeable with contributory negligence is a question always for herent possibilities of danger, against which, the jury where the testimony, as in this case, owing to the nature of the work to be peris conflicting. The question of plaintiff's con- formed, an operator cannot be protected by tributory negligence was fairly submitted, and the jury told that if he was assuming to do work any known device. that he had no right to do and was not ordered to do, he was guilty of contributory negligence and could not recover. This question we think was fully and fairly discussed in our charge. Whether or not the carborundum wheel should have been guarded, in our opinion, depends upon whether or not it was practicable to do so, considering the purpose for which it was installed and used. In view of the conflicting testimony upon this point the question, in our opinion, was for the determination of the jury. In our instructions the jury were told that the statute was not intended to prohibit the use of dangerous machinery, and that it did not require carborundum wheels to be guarded if it was not reasonably practicable to guard them, considering the purpose for which they were being used; and as to whether it was practicable to do so the testimony was conflicting. * * * The testimony being conflicting as to whether or not the carborundum wheel could be guarded and used for the purposes for which it was intended, the speed at which it was being revolved, and also if plaintiff was directed by the assistant manager to make repairs to the hammer, these questions were for the jury." [2] So far as the construction of the stat- [3] The first specification complains beute is concerned, this case might well be af- cause the trial judge refused to give binding firmed on the views of the court below, with- instructions for the defendant. The appellant out more, for we agree with the learned contends that the allegata and probata did trial judge that under the act of 1905, supra, not agree, in that the declaration stated the it was for the jury to say whether or not it wheel was revolving "from 1,800 to 2,000 revwas reasonably possible properly to guard olutions per minute, whereas it should not the wheel which caused the injury to the have been run or operated more than 1,200 plaintiff. Statutes of this character ought revolutions per minute," while the proofs to be given a reasonable construction (Honor fail to show more than 956 revolutions per v. Albrighton, 93 Pa. 475, 478), and the present minute, and in that the declaration averred act does not require an interpretation which a wheel of slightly larger dimensions than * * that character is intended the Legislature will, no doubt, express it in unmistakable language; we do not conceive that the lawmakers contemplated such an idea in the act before us, nor do we feel that the language there employed calls for or warrants that construction. If, however, a machine can be guarded and used, then the act requires that proper protection shall be provided. In connection with some of the assignments of error, it is important to keep in mind that the case at bar was tried upon the view of the act here indicated, and that the trial judge instructed the jury accordingly. The question of the sufficiency of the evidence to sustain a finding that in this particular case it was reasonably possible to protect the operator of the machine by a proper guard is a point which will be duly considered when reached in turn; but we shall dispose of the several assignments in their order. the proofs actually showed the one that caused the injury to be. This point does not seem to have been pressed at trial, and we feel that it is without substantial merit. The jury could justifiably have found from the testimony of the plaintiff concerning the wheel and its appliances, as supplemented by his experts, that it was operated at the rate of 1,912 revolutions per minute, and that an unguarded wheel of the character of the one in question could not safely be driven above 1,175 revolutions per minute. The difference in the dimensions averred and those proved caused the defendant no apparent embarrassment, and, under the circumstances of this case, constituted no such departure from the declaration as calls for relief at our hands. [4, 5] The second assignment complains of the refusal of a point for charge to the effect that there was "no evidence" that the wheel was run at an excessive rate of speed, or that its rapidity in any wise contributed to the accident. In view of the proofs, the matters covered by this request were issues for the jury, and they were properly submitted. Under this specification, the appellant contends that the testimony of one of the experts called by the plaintiff shows that the accident was caused by the latter's permitting the piece of brass he was grinding to come between the wheel and the rest upon which he was holding it, thus causing the space to be clogged and the wheel to break; the contention is based on a reference in the testimony to a mark upon the wheel, and a statement by the witness that the mark and the accident might have been caused in that way. Should we accept the defendant's construction of this item of testimony, it would not be sufficient, in view of the other proofs, to take the case from the jury; but the real value of the evidence does not appear, for the notes fail to show what particular mark the expert referred to, and counsel, at argument, disagreed as to this The transcript of the testimony simply gives the question, "Show where the mark is?" and the reply, "Here's the mark, here [indicating]." When a witness indicates anything that is important to the decision of an issue, counsel should see that a proper description is placed upon the record at the time, showing not merely the bare fact that the witness indicated something, but exactly what he pointed out, so that the notes may he properly understood by one not present at the trial. For instance, in this case, instead of simply the word "indicating," the notes ought to have been made to read, "indicating a mark on the wheel (giving its location as nearly and clearly as possible)." When this course is not pursued, we must always assume the fact indicated most strongly against the appellant; that is that the matter undisclosed was such as to support the verdict rather than otherwise. [6] The next two specifications complain of the admission of testimony concerning the propriety of safety guards and showing the kind that could be applied to the wheel in question. The appellant contends that, owing to the use made of the wheel, external guards of any character were impracticable, and that to sustain this verdict would in effect be to rule that the wheels employed by the defendant must be abandoned and a different kind installed. If the testimony of the witnesses for the defendant be accepted as verity, the verdict is susceptible of that construction; but when one looks at the proofs as a whole, it is apparent that, under the testimony of the plaintiff and some of his witnesses, the use made of the wheel was not as contended by defendant, and, further, that it was perfectly practicable to guard the wheel, without changing its character or construction, and at the same time to continue its regular, customary use. In other words, according to the testimony presented by the plaintiff, the defendant could put effective guards on this wheel, and it would continue to perform the same service as theretofore. If the customary use made of the wheel permitted guarding, it was competent to introduce testimony to show the kind of guards that were available to the defendant and regularly employed by others using such wheels; and this was the character of evidence objected to. The issues were for the jury, and the proofs were relevant and competent. [7] The fifth assignment complains of the refusal to charge that there was "no evidence" of knowledge on the part of the officers of defendant company that the plaintiff was in the habit of using tools and appliances outside of his particular department. Express knowledge on this point was not necessary, and the proofs were sufficient to show implied notice. [8] The last assignment complains of the refusal to enter judgment n. o. v. for the defendant. In view of what we have already written, this alleged error does not require any special consideration. From no aspect is this an instance where the possible danger from the breaking of the wheel was so obvious and imminent that the rule of assumption of risk could properly be applied by the court, or where it could be said as a matter of law that the plaintiff was guilty of contributory negligence, any more than under the evidence it could be ruled that the defendant was per se negligent; the testimony as to many of the controlling facts was conflicting, and the inferences to be drawn therefrom were not always certainall of which tended to make the case one for the jury. The issues were submitted in a charge which fairly marshaled the evidence and stated the questions involved with clearness and absolute impartiality. It may be that we should not have found some of the |
