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In Howell v. Gifford, 64 N. J. Eq. 180, 53 Atl. 1074, which is the third case cited, there was a similar ruling where the will provided that, if a child died without living issue him surviving, the share of the deceased child was to be paid "his heirs or legal representatives"; the court plainly basing its decision upon the use of both terms "heirs" and "legal representatives." In the latter case the executors were authorized to sell the realty but were not required to do so. It is possible that other cases of this kind exist, but they are to be regarded as exceptional in face of the authorities already cited.

Hampshire, but was domiciled in Massachu- is a type is not readily obvious, unless the setts when he executed his will and thence- distinction is based on the fact that in them forth until his death in 1877, gave one-fourth the gift was substitutional or in succession part of the residue of his estate, consisting and in the latter case it was substantive. of personalty in Massachusetts and of land. in New Hampshire, to his brother's wife, who was domiciled in New Hampshire with her husband, and there died in 1894, "to have and to hold the same to her during her life and at her decease to her heirs at law and their heirs and assigns forever." The plaintiff was appointed trustee under the will in each state. There was no power to sell given in the will. By proper authority the trustee sold, in 1881, the real estate in New Hampshire for $3,000; the personal property in Massachusetts, amounting to $35,000, had never been invested in real estate; and after 1881 the whole property in question had been personal property. The question was as to who was entitled to take the property in Massachusetts under the designation "heirs at law." The court said:

"The testator has appointed a common destination for all of said fourth part of the residue of his property, whether the same is real or personal. The words should not be construed to mean that the real estate should go to one set of persons, and the personal estate to another, but the whole residue must go to the heirs, according to the meaning which that word bears at common law, namely, those who would be entitled to succeed to real estate in case of intestacy.'

The rule applicable to these cases is stated in 40 Cyc. p. 1464, as follows:

It is a well-established rule of interpretation of wills, as affected by the nature of the property, that the word "heirs," as applied to personalty primarily, means next of kin or those persons who would take under the statutes of distribution in case of intestacy. And this rule applies when the will directs realty to be sold and the proceeds paid to the heir. 40 Cyc. 1464. The reason of this rule as applicable to the proceeds of real estate sold is that the testator equitably converts the realty and plainly intends that it shall go to the beneficiaries as personalty. But this suggests a question as to what effect a power of sale given to a trustee, but optional with him as to its exercise, has upon "Where the gift consists of both real and per- the interpretation to be given the word sonal estate, the word 'heirs' will ordinarily be construed as legal heirs or heirs at law as to "heirs" when realty and personalty are inthe real estate, and as next of kin or distribu- cluded in the gift and also as to what effect tees as to the personal estate; but where the the exercise of the power converting realty gift is directly to the heirs of a certain person to personalty will have. In the five Massaas a substantive gift to them, and there is no indication that more than one class is intended, chusetts cases, supra, namely, Fabens v. Faor that the two kinds of property are to go in bens, Olney v. Lovering, Heard v. Read, Procdifferent directions, the whole property, both tor v. Clark, and Gray v. Whittemore, the real and personal, will go to the heirs at law." In the note 7 cases are cited as supportive tate but not directed to do so; and in two trustee was given power to sell real esof the statement that "heirs will ordinarily of the five cases considered, Olney v. Lovertate but not directed to do so; and in two be construed" technically as to the realty and as next of kin or distributees as to the ing and Gray v. Whittemore, the trustee personalty. A careful examination of the exercised the power to sell and converted seven cases cited shows that the decisions the realty into personalty; but in each case in four of them do not support the state- it was held that the entire property would ment of the text. Three of the four, namely, go to the heirs and not to the distributees Fabens v. Fabens, Hackney v. Griffin, and or next of kin. Allison v. Allison, are cited above. Ingram v. Smith, 1 Head (Tenn.) 411, relates only to personal property. Of the other three cases two are English cases, Wingfield v. Wingfield, 9 Ch. Div. 658, and Keay v. Boulton, 25 Ch. Div. 212, in the former of which real estate and personal property in trust was to be divided among "brothers and sisters then living or their heirs," and in the latter case among children "as may be then surviving or their heirs," in which the word "heirs" is held to have a twofold meaning, namely, "heir at law" as to real estate and "next of kin" as regards the personalty. The distinction between these cases and the and the cases of which De Beauvoir v. De Beauvoir 91 A.-6

ered in Gray v. Whittemore, supra, decided in These matters are very thoroughly consid1906. The testator gave the residue of his property, consisting of real and personal estate, to trustees, who were to pay the income thereof to beneficiaries for life, and at the expiration of the life interests they were to pay and transfer the whole property t the heirs at law of a deceased son or daugh ter. He also gave his trustees authority as follows:

"And I hereby empower my said trustees and their successors to sell and convey any or all of said trust property: discharged of the trusts, and without obligation upon the purchasers to see to the application of the purchase money: and the proceeds shall be held upon the same trusts."

In determining who were the persons en- I tor himself, or by operation of law, such real titled to take under the designation "heirs at law" of said deceased child, the court

says:

estate is converted into money for the purpose consistent with the design and purpose of the of better investment, or for any other purpose ultimate destination to which the real estate "It is necessary also to determine who are was appropriated, there the money is substitutthe persons entitled to take under the designa- ed for, and stands in the place of the devised tion 'heirs at law' of deceased children. * * *real estate, and shall go to the same persons and We think it manifest that by these words, in in the same proportions, and vest in possesthe connection in which they are used, the tes- sion and enjoyment at the same times and upon tator intended to designate those who, under the same contingencies, which would have afthe law of this commonwealth, would inherit fected the real estate, had it remained specifithe real estate of the person whom they repre- cally in real estate." sent. This case comes under the rule of Clarke

v. Cordis, 4 Allen [Mass.] 466, and Lombard v. Boyden, 5 Allen [Mass.] 249, in which it was held that where real and personal estate are included in a single provision, by which the income is to be paid to life tenants, and at the expiration of the life estates the trustees are to pay and transfer the whole property to the legal heirs either of the testator or of one of the life tenants, there being no indication that more than one class is intended or that the two kinds of property are to go in different directions, the whole property will go to those who are technically described as heirs. [Numerous cases are cited. In the cases in which, under somewhat similar circumstances, the word 'heirs' has been construed to have other than its common-law meaning, so as to include those who would take personal property, either alone or together with heirs strictly so called, it generally will be found either that the fund consisted wholly of personal property, or that any real estate included therein was directed by the testator to be converted into personal property, or that the decision turned upon what was found to be the particular intention of the testator."

Five Massachusetts cases showing this are cited, all of which are also cited in complainant's brief and in the majority opinion. The court further says:

In Holland v. Adams, supra, 3 Gray (Mass.) 191, he also says:

"As a general rule to be deduced from the cases, we think that in case of such conversion of real into personal estate, to stand in place of the real, as more beneficial to the parties, without changing the beneficial destination, the character thus impressed on the money will attach to it, until it reaches one who, if it had remained real estate, would take it beneficially." In Hovey v. Dary, supra, 154 Mass. 10, 27 N. E. 659, the court says:

"Where executors or trustees are directed to convert real estate into personal, it will more readily be inferred that the proceeds of such realty are to be held as personal property than where power and authority merely are conferred upon the executors thus to change investments. In the former case, the direction shows, or tends to show, that the testator has contemplated and understands the change that may be made in the rights of various parties by the change in the form of the property, while in the latter case it is less easy to suppose that he has confided to another the right and power to determine at his own discretion whether the descent or devolution of the property shall be changed by the new form which the property may assume by reason of the sale."

See, also, Scholle v. Scholle, 113 N. Y. 261, 21 N. E. 84.

In Rhode Island Hospital Trust Co. v. Harris, 20 R. I. 408, 39 Atl. 750, where trustees were given a general power to sell and dispose of the trust estate at public auction or private sale and exercised the power by selling real estate, the court says:

"We are of the opinion that as the real estate was sold by the trustees subsequently to the death of the widow, not in pursuance of any direction by the testator, but merely for the purposes of the trust, its proceeds are to be treated as real estate and are to be distributed among the persons who would have been interested in the real estate had it not been sold."

"It remains to be determined whether the proceeds of real estate originally held in the trust fund, but sold and changed into personal property by the trustees before April, 1898, in accordance with the power given to them by the will, should be treated as real estate. It is to be observed that the will does not direct that the real estate be converted into personal, but simply gives the trustees power to sell and convey and to make new investments; and this has been already found to be a circumstance of weight in determining the construction of the words 'heirs at law.' If the conversion had been directed by the testator, or if he had contemplated the making of such a conversion before the taking effect of his final limitations, the proceeds of the real estate would be treated as personal property. * ** * But where, as here, there is a mere power to change invest- See Id., 20 R. I. 160, 37 Atl. 701, for terms ments, the fund resulting from a sale of real estate retains its original character until it of will and decision upholding validity of the reaches one who has the right to treat it as his sale of such real estate by the trustees. own absolutely and for all purposes. * * * All of the cases cited by the complainant Accordingly we are of opinion that the proceeds of the realty originally forming part of the trust estate are to be treated as realty in making distribution of the trust fund until the final vesting of the right to them in the parties ultimately entitled.'

See, also, Holland v. Cruft, 3 Gray (Mass.) 162; Holland v. Adams, 3 Gray (Mass.) 188; and Hovey v. Dary, 154 Mass. 7, 27 N. E. 659.

in his brief as supportive of his claim are cases where the property disposed of was either personalty or realty expressly directed by the testator to be converted into personalty, or where the intention of the testator as to such conversion for the purpose of final distribution was clear, although the conversion was not expressly ordered. No case is cited where the power to sell real estate by

In Holland v. Cruft, 3 Gray (Mass.) 180, the trustee is optional and is simply a power supra, Chief Justice Shaw says:

"The principle therefore appears to be fully settled, both upon well-considered reasons of justice and expediency, and upon a series of authorities, that where land is devised as real estate, and either by the direction of the testa

to change investment, whether the power be exercised or not, which upholds the complainant's claim, and after a somewhat diligent search I have discovered none.

I therefore find no good ground in reason

that he was not afraid of it is impeached by the fact that mankind commonly know the danger of live wires.

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 1072-1075; Dec. Dig. § 311.*] 3. TRIAL (§ 141*)-JURY QUESTION-DIRECTED

VERDICT.

The court is justified in directing a verdict only in a case of admitted or uncontroverted

facts.

Dig. & 336; Dec. Dig. § 141.*]
[Ed. Note. For other cases, see Trial, Cent.

or authority for not following the rule set forth in Gray v. Whittemore, supra. In this case there is nothing to indicate that either by giving the trustee "power," * if need be, in her opinion, to sell the same and reinvest the proceeds thereof and with power to change the investment thereof whenever in her opinion it shall seem best," or by the exercise of such powers the testator intended to change the ultimate destination of the gift or that he intended to confide in the trustee the right and power to determine, at her discretion, whether the devolution of the property should be changed as a result of changing its form by the sale thereof. [Ed. Note.-For other cases, see Trial, Cent. On the contrary, it seems the more reasona- Dig. § 336; Dec. Dig. 8 141.*1 ble to conclude that these powers "to sell and 5. ELECTRICITY (§ 19*)-ACTIONS-JURY QUESreinvest" and "to change the investment," In an action for the wrongful death of whenever it might seem best to the trustee, plaintiff's intestate, killed by defendant's live which naturally includes the power to in- wire, the question of the contributory negli vest wholly in realty or wholly in personal-gence of plaintiff's intestate held, under the evidence, for the jury.

ty, or partly in each, were given simply for the purpose of enabling the trustee to manage the trust estate in the most beneficial manner. Under these conditions, the words "persons who, by the laws of the state of Rhode Island, would inherit" should, in my judgment, be given their technical meaning as the equivalent of "heirs." To state it otherwise, the words are used in their strict sense as persona designata to point out the beneficiaries of the gift. This interpretation is strengthened by the use of the words "pay and convey the same in fee simple" and the words "and the persons dying seised and possessed thereof in fee." Of course, by "the statutes of Rhode Island," the complainant is not an heir of Helen Quinn and cannot inherit from her. Accordingly he takes nothing under the will of Hezekiah Anthony and has no interest in the property in question. On this ground, the complainant's appeal from the decree of the superior court in sustaining the respondent's demurrers and in dismissing the bill should be denied and dismissed, and the cause be remanded to the superior court for the entry of a decree in

accordance herewith.

(86 N. J. L. 144)

CLARK V. PUBLIC SERVICE ELECTRIC

CO. (No. 47.)

4. TRIAL (§ 141*)-DIRECTED VERDICT.

A verdict should not be directed where the only person who could contradict the witness is dead.

TION.

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Where a windstorm, which preceded the breaking of defendant's electric wire, was only of a velocity of 70 miles an hour, and it was not unusual for winds to exceed that rate, defendant cannot be held free from negligence, as a matter of law, on the theory that the storm have been anticipated, particularly as it apwas an unusual occurrence which could not peared that wires, such as the one broken, would stand winds up to 135 miles an hour.

[Ed. Note.-For other cases, see Electricity, Cent. Dig. § 11; Dec. Dig. § 19.*]

7. NEGLIGENCE (§ 61*) - DEFENSES INEVITABLE ACCIDENT.

Where an act of God, such as a storm, concurs with defendant's negligence to cause an injury, defendant is liable.

[Ed. Note.-For other cases, see Negligence,

Cent. Dig. §§ 74, 75; Dec. Dig. § 61.*]
8. ELECTRICITY (§ 19*)-ACTIONS-EVIDENCE-
JURY QUESTION.

In an action for the wrongful death of plaintiff's intestate, killed by a shock from defendant's electric wire, the question of defendant's negligence in stringing the wire or in failing to inspect its insulation held, under the evidence, for the jury.

[Ed. Note.-For other cases, see Electricity, Cent. Dig. § 11; Dec. Dig. § 19.*]

Appeal from Supreme Court.

Action by William P. Clark, administrator of David T. Clark, against the Public Service

(Court of Errors and Appeals of New Jersey. Electric Company. From a judgment for de

June 15, 1914.)

1. WITNESSES (§ 317*)-IMPEACHMENT.

Where a witness is impeached as to a material part of his testimony, the jury may disregard his whole testimony.

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 1080-1083; Dec. Dig. § 317.*] 2. WITNESSES (§ 311*) IMPEACHMENT CREDIT.

fendant, affirmed by the Supreme Court, plaintiff appeals. Reversed and remanded.

Arthur T. Dear and Charles E. S. Simpson, both of Jersey City, for appellant. Edwards & Smith, of Jersey City, for respondent.

WALKER, C. This case was tried before

a direction of a verdict for the respondent, and appellant appeals from the judgment.

A witness is not entitled to credit, whose a jury in the Hudson circuit. It resulted in testimony is inconsistent with the common principles by which the conduct of mankind is governed; hence testimony that the deceased, although seeing that a live wire emitted sparks and flashed when it touched the ground, stated

The gravamen of the complaint is that respondent maintained in Jersey City certain

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

electric wires, and that on June 10, 1911, through its negligence, one of the wires carrying electric current fell, and that decedent came in contact therewith, receiving a shock from which his death resulted. Respondent answered, denying all allegations of negligence on its part, and further alleging that the falling of the wire was caused by inevitable accident, to wit, a storm of great and extraordinary violence. Appellant replied, and issued was joined.

On June 10, 1911, appellant's intestate was found, during a storm, lying dead on Clinton avenue near the southwest corner of Clinton avenue and Sackett street, Jersey City, with a broken electric light wire of respondent's on or near him and a burn on his left hand. The testimony of most importance, and which was given controlling effect on the question of decedent's negligence, was that of the witness, Michael Walsh, a letter carrier, who stated that on June 10, 1911, about 10 o'clock at night, he was going to deliver a letter; that he was on a car when a storm of lightning, thunder, heavy rain, and terrific wind started; that trees were blown down and the car was stopped in order to take trees off the track; that he got off at Monticello avenue and ran up Communipaw avenue to Sackett street, stopped a few minutes in a doorway, and started to run again along Sackett street, crossed Clinton avenue, and discovered a live wire there; that it was hanging from a pole in front of No. 103 Clinton avenue; that it broke from the pole on the southwest corner and was flashing; that he asked some women in No. 107 Clinton avenue if any one had telephoned for the police, but does not remember what was said; that he waited and saw decedent. Witness was examined as follows:

"Q. As he came over to you, did you say anything to him, and, if so, what did you say, and what did he say to you? A. I told him to look out; there was a live wire; so he says, That won't hurt; there is insulation on it.' I said, 'Don't touch it; it is dangerous;' and part of it was hanging from the fence on the sidewalk, and he went over and pulled it, and, as he pulled it, it threw him over on his back and killed him. Q. As soon as it threw him on his back, what did you do? A. I asked the ladies in the house to come over to the window, and I said, 'Give me a chair or something so I can knock it out of his hand;' and so they handed me a chair, and I tried to put it out of his hand, and could not, and I took a few pillows and tried to get it out of his hand, and could not. I was afraid I would get electrocuted myself. Q. Did you stay there? A. I stayed around for a few minutes there, and the policeman came up. Q. Then what did you do? A. I went up the street and delivered a letter. Q. Now, when you said to Mr. Clark, Look out, it is a live wire,' you say he said to you, 'It won't hurt me; it is insulated.' At the time Mr. Clark came there and you stated to him it was a live wire, was there any indication there showing it was a live wire? A. Why, yes, there was a flashing all over-all over the point that was touching the ground. Q. As I understand you, when you came there, you were there all alone at first? A. I was alone, yes. Q. Clark came along afterwards? A. Afterwards."

On cross-examination he testified that the flashing was at the end of the wire; that there was insulation on the rest; that it was all black except where it was flashing; that when he came from Communipaw avenue to Clinton avenue he was running to escape the rain; that when he came there no one was about, and he saw only the people in the house.

In the next place, Walsh says that he called the attention of two ladies in the corner house to the fact that the wires were down and asked them to telephone, and that it was while he was talking to them that the deceased came up and took hold of the wire. The appellant thereupon produced the occupants of the corner house, Miss Grace C. Baldwin and Miss Frances Baldwin. They each testified that there had been two other ladies in the house with them, one their mother, who was then dead, and the other an aunt, who was then in Washington. The Misses Baldwin each testified that neither of them spoke to any one through the window; that their mother was all of the time in the dining room, and that the windows were in the parlor; that the door between the dining room and the parlor was open; that their aunt was with them in the dining room, and that neither of them heard any one at any time talking at the front window, nor was the front window open at any time, and they were in a position whereby they could see everything that was going on. Neither of them saw the letter carrier at all.

James H. Scarr, weather expert in charge of the local office of the United States Weather Bureau in New York City, was examined and stated that there was a rain and thunder storm from 7:15 to 7:55 p. m., later from 9:55 to 11:45 p. m.; heavy rain and high wind; wind at 10:19 p. m. was 70 miles per hour. This storm was unusually severe, the fall of rain very heavy, and the wind very high, driving rain before it. On cross-examination he stated that there was wind velocity in April, 1911, of 83 miles per hour, and that there had been other winds higher than 70 miles per hour.

At the conclusion of the case a motion was made for the direction of a verdict for the respondent upon the ground that there had been no negligence shown upon its part; that the wire was blown down by an unusual and extraordinary storm, one not to be expected and guarded against by the respondent; that decedent came to his death by the assumption of a risk, and was guilty of contributory negligence, in picking up or touching a wire which he knew to be a live one, having been warned of its dangerous character.

After argument on the motion, the court directed a verdict for the respondent, making the following observations:

"Under the decisions of our highest courts, the verdict of a jury cannot stand unless there is some evidence to support it, and it is the duty of the court, unless there is some evidence

face of this warning and admonition the deceased deliberately took hold of it and was killed. Practically everybody understands the danger lurking in a live electric wire. It is to be presumed that every one warned of the existence of such a wounding and death dealing instrumentality would recoil from it. This wire was flashing fire at the time according to Walsh's statement.

which would support a verdict, to direct the jury to bring in a verdict for the defendant. If the testimony of Walsh given in this case be true, the plaintiff has no case whatever. There is nothing that I can see that would justify you any way in discrediting Walsh's testimony. He was a government official; he was in the performance of his duty that night; and he says he warned this man who was killed not to touch that wire, and that after he received the warning he took hold of it, perhaps innocently, thinking he could do so in safety, but Vice Chancellor Van Fleet in Earl v. Norit turned out he was mistaken, and our courts have held, if a man sees fit to take risks of folk & New Brunswick Hosiery Co., 36 N. that sort, why he must take the risk, and he J. Eq. 188, said at page 194, that a witness is cannot charge the effect of his own careless- not entitled to credit, whose testimony is inness upon anybody else. Then, too, there is undisputed evidence that this was an unusual consistent with the common principles by storm that night, and the courts do not hold which the conduct of mankind is naturally people responsible for the effect of storms un- governed. This judicial observation has less they have good reason to anticipate them. You cannot anticipate unusual storms. It ap- pointed application to the testimony to which pears from the evidence that that was an un- reference has just been made. Surely it was usual storm, not only in itself, but in its ef- for the jury to say, in respect to the situafect, because it carried down a large number tion just adverted to, whether the deceased of trees and a large number of wires. Upon both grounds I have no hesitation in saving to would have been likely to act as Walsh said you that, if a verdict should pass in favor of he did, or whether he would have been likely the plaintiff, it would not be sustained, and, to shrink from contact with the flashing under the circumstances, I am constrained un-wire upon the well-known principle of selfder the law to say to you that your verdict must be for the defendant."

Appellant's counsel thereupon objected to the direction of a verdict for the respondent. and afterwards appealed to this court from the judgment entered upon the verdict of the jury rendered in conformity with the trial judge's instruction.

[1-5] On behalf of appellant many grounds for reversal were assigned, which were argued under two points: (1) That the learned trial court erred in directing a verdict for the respondent upon the ground that the deceased was guilty of contributory negligence; and, (2) that respondent could be relieved from responsibility for the accident only upon proof that it was caused solely by an act of God, and that, as respondent's negligence contributed to the accident, the trial court erred in directing a verdict. Respondent's counsel argued only the first point raised by the appellant, asserting that, no matter what caused the fall of the wire, that fact was not of importance in the case, because the undisputed evidence demonstrated that decedent's death was caused by his deliberate and intentional act.

Now, if the witnesses, the Misses Baldwin, are to be believed, and the jury would have a right to believe them, the letter carrier was either in error or was falsifying as to what occurred between him and them, and, if he was in error in this respect, the jury would have a right to believe that he was in error in other respects; and, if falsifying in any respect, they would have a right to believe that he was falsifying in all other respects, applying the maxim, "Falsus in uno, falsus in omnibus." Addis v. Rushmore, 74 N. J. Law, 649, 65 Atl. 1036.

It will be remembered that the letter carrier Walsh testified that he warned the deceased that the wire was a live one and admonished him not to touch it; that in the

preservation, quite appropriately called the first law of nature.

In the recent case of Dickinson v. Erie R.

R. Co., 90 Atl. 305, this court held that a trial judge was only justified in directing a verdict upon a court question arising from the admitted or uncontroverted facts of a case, and that conflicting testimony, and its weight, must always be submitted to the jury for their consideration and determination. See, also, Fulton v. Grieb Rubber Co., 72 N. J. Law, 35, 60 Atl. 37.

The rule seems to be, as stated in 38 Cyc. p. 1570, namely, that a verdict will not be directed where the only person who could have contradicted the witness is dead.

The respondent relies upon Anderson v. Jersey City Elec. Light Co., 64 N. J. Law, 664, 46 Atl. 593, and Brooks v. Consolidated Gas Co., 70 N. J. Law, 211, 57 Atl. 396, as justifying the trial judge in directing a verdict in its favor. In Anderson v. Jersey City Elec. Light Co., 64 N. J. Law, at page 665, 46 Atl. at page 593, there was a nonsuit at the circuit, and this court, in reviewing the judgment entered thereon, said:

"We find nothing in the facts which would justify us in reversing the action of the trial alleges in his declaration, by unwittingly, but court. Instead of receiving his injuries, as he without any fault or lack of care on his part, coming in contact with this wire while engaged at his work (Anderson v. Jersey City Electric Light Co., 63 N. J. Law, 387 [43 Atl. 654]), they are the result of his deliberately touching this wire, not in the performance of the work about which he was employed, but simply for the purpose of demonstrating the correctness of his judgment as to its harmlessness. knew that the wire might be dangerous if the insulation was not perfect, and, having voluntarily assumed the risk of injury in order to vindicate the soundness of his judgment, he has no one but himself to blame for the consequence which followed."

He

There is no suggestion of conflicting evidence in this Anderson Case as to what took place, nor concerning the plaintiff's neg

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