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Hampshire, but was domiciled in Massachu-l 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 Howell v. Gifford, 64 N. J. Eq. 180, 53 in New Hampshire, to his brother's wife, who Atl. 1074, which is the third case cited, there was domiciled in New Hampshire with her was a similar ruling where the will provided husband, and there died in 1894, "to have that, if a child died without living issue him and to hold the same to her during her life surviving, the share of the deceased child and at her decease to her heirs at law and was to be paid "his heirs or legal representatheir heirs and assigns forever.” The plain- tives"; the court plainly basing its decision tiff was appointed trustee under the will in upon the use of both terms “heirs" and "legal each state. There was no power to sell giv- representatives." In the latter case the exen in the will. By proper authority the ecutors were authorized to sell the realty trustee sold, in 1881, the real estate in New but were not required to do so. It is possible Hampshire for $3,000; the personal proper- that other cases of this kind exist, but they ty in Massachusetts, amounting to $35,000, are to be regarded as exceptional in face of had never been invested in real estate; and the authorities already cited. after 1881 the whole property in question had It is a well-established rule of interpretabeen personal property. The question was tion of wills, as affected by the nature of as to who was entitled to take the property the property, that the word "heirs," as apin Massachusetts under the designation “heirs plied to personalty primarily, means next of at law." The court said:
kin or those persons who would take under “The testator has appointed a common des- the statutes of distribution in case of intestination for all of said fourth part of the residue of his property, whether the same is real
tacy. And this rule applies when the will or personal. The words should not be constru- directs realty to be sold and the proceeds ed to mean that the real estate should go to paid to the heir. 40 Cyc. 1464. The reason one set of persons, and the personal estate to of this rule as applicable to the proceeds of another, but the whole residue must go to the heirs, according to the meaning which that word real estate sold is that the testator equitably bears at common law, namely, those who would converts the realty and plainly intends that be entitled to succeed to real estate in case of it shall go to the beneficiaries as personalty. intestacy."
But this suggests a question as to what effect The rule applicable to these cases is stated a power of sale given to a trustee, but opin 40 Cyc. p. 1464, as follows:
tional 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 Massaindication 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 real and personal, will go to the heirs at' law." tor v. Clark, and Gray v. Whittemore, the 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. Loverbe 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
it was held that the entire property would in four of them do not support the statement of the text. Three of the four, namely, go to the heirs and not to the distributees
or next of kin. Fabens v. Fabens, Hackney V. Griffin, and Allison v. Allison, are cited above. Ingram ered in Gray v. Whittemore, supra, decided in
These matters are very thoroughly considv. Smith, 1 Head (Tenn.) 411, relates only 1906. The testator gave the residue of his to personal property. Of the other three
property, consisting of real and personal escases two are English cases, Wingfield v. Wingfield, 9 Ch. Div. 658, and Keay v. Boul- tate, to trustees, who were to pay the income
thereof to beneficiaries for life, and at the ton, 25 Ch. Div. 212, in the former of which real estate and personal property in trust expiration of the life interests they were was to be divided among “brothers and sis- to pay and transfer the whole property t) ters then living or their heirs," and in the the heirs at law of a deceased son or daugh
ter. He also gave his trustees authority as latter case among children "as may be then
follows: surviving or their heirs,” in which the word "heirs” is held to have a twofold meaning, their successors to sell and convey any er all
"And I hereby empower my said trustees and namely, “heir at law” as to real estate and of said trust property: discharged of the trusts, “next of kin” as regards the personalty. The and without obligation upon the purchasers to distinction between these cases and the
and the and the proceeds shall be held upon the same
see to the application of the purchase money : cases of which De Beauvoir v. De Beauvoir trusts."
In determining who were the persons en- | tor himself, or by operation of law, such real titled to take under the designation "heirs estate is converted into money for the purpose at law" of said deceased child, the court consistent with the design and purpose of the
of better investment, or for any other purpose says:
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 In Holland v. Adams, supra, 3 Gray (Mass.) v. Cordis, 4 Allen [Mass.) 466, and Lombard v. 191, he also says: Boyden, 5 Allen [Mass.] 249, in which it was held that where real and personal estate are
“As a general rule to be deduced from the casincluded in a single provision, by which the in- es, we think that in case of such conversion of come is to be paid to life tenants, and at the real into personal estate, to stand in place of expiration of the life estates the trustees are to the real, as more beneficial to the parties, withpay and transfer the whole property to the le-out changing the beneficial destination, the gal heirs either of the testator or of one of the character thus impressed on the money will atlife tenants, there being no indication that more tach to it, until it reaches one who, if it had rethan one class is intended or that the two kinds mained real estate, would take it beneficially." of property are to go in different directions, the whole property will go to those who are tech- N. E. 659, the court says:
In Hovey y. Dary, supra, 154 Mass. 10, 27 nically described as heirs. [Numerous cases are cited.] In the cases in which, under somewhat “Where executors or trustees are directed to similar circumstances, the word 'heirs' has been convert real estate into personal, it will more construed to have other than its common-law readily be inferred that the proceeds of such meaning, so as to include those who would take realty are to be held as personal property than personal property, either alone or together with where power and authority merely are conferred heirs strictly so called, it generally will be upon the executors thus to change investments. found either that the fund consisted wholly of In the former case, the direction shows, or personal property, or that any real estate in- tends to show, that the testator has contemplatcluded therein was directed by the testator to ed and understands the change that may be he converted into personal property, or that the made in the rights of various parties by the decision turned upon what was found to be the change in the form of the property, while in the particular intention of the testator."
latter case it is less easy to suppose that he
has confided to another the right and power to Five Massachusetts cases showing this are determine at his own discretion whether the cited, all of which are also cited in complain- descent or devolution of the property shall be ant's brief and in the majority opinion. The changed by the new form which the property court further says:
may assume by reason of the sale."
See, also, Scholle v. Scholle, 113 N. Y. 261, "It remains to be determined whether the proceeds of real estate originally held in the trust 21 N. E. 84. fund, but sold and changed into personal prop- In Rhode Island Hospital Trust Co. v. erty by the trustees before April, 1898, in ac- Harris, 20 R. I. 408, 39 Atl. 750, where truscordance with the power given to them by the will, should be treated as real estate. It is to tees were given a general power to sell and be observed that the will does not direct that dispose of the trust estate at public auction the real estate be converted into personal, but or private sale and exercised the power by simply gives the trustees power to sell and con- selling real estate, the court says: vey and to make new investments; and this has been already found to be a circumstance of “We are of the opinion that as the real esweight in determining the construction of the tate was sold by the trustees subsequently to words 'heirs at law. If the conversion had been the death of the widow, not in pursuance of any directed by the testator, or if he had contem- direction by the testator, but merely for the purplated the making of such a conversion before poses of the trust, its proceeds are to be treated the taking effect of his final limitations, the as real estate and are to be distributed among proceeds of the real estate would be treated as the persons who would have been interested in personal property.
the real estate had it not been sold.” 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 of will and decision upholding validity of the estate retains its original character until it 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 in his brief as supportive of his claim are of the realty originally forming part of the trust estate are to be treated as realty in mak- cases where the property disposed of was ing distribution of the trust fund until the final either personalty or realty expressly directed vesting of the right to them in the parties ulti- by the testator to be converted into personmately entitled.
alty, or where the intention of the testator See, also, Holland v. Cruft, 3 Gray (Mass.) | as to such conversion for the purpose of final 162; Holland v. Adams, 3 Gray (Mass.) 188; distribution was clear, although the converand Hovey V. Dary, 154 Mass. 7, 27 N. E. sion was not expressly ordered. No case is 659.
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:
to change investment, whether the power be “The principle therefore appears to be fully exercised or not, which upholds the comsettled, both upon well-considered reasons of plainant's claim, and after a somewhat dilijustice and expediency, and upon a series of authorities, that where land is devised as real es- gent search I have discovered none, tate, and either by the direction of the testa- I therefore find no good ground in reason
or authority for not following the rule set, that he was not afraid of it is impeached by the forth in Gray v. Whittemore, supra. In this fact that mankind commonly know the danger case there is nothing to indicate that either of live wires.
[Ed. Note. For other cases, see Witnesses, by giving the trustee "power,"
Cent. Dig. 88 1072–1075; Dec. Dig. $ 311.*] need be, in her opinion, to sell the same and
3. TRIAL ($ 141*)—JURY QUESTION_DIRECTED reinvest the proceeds thereof and with pow
VERDICT. er to change the investment thereof whenev. The court is justified in directing a verdict er in her opinion it shall seem best,” or by only in a case of admitted or uncontroverted the exercise of such powers the testator in- facts. tended to change the ultimate destination of Dig. § 336; Dec. Dig. § 141.*]
[Ed. Note.-For other cases, see Trial, Cent. the gift or that he intended to confide in the
4. TRIAL (§ 141*)-DIRECTED VERDICT. trustee the right and power to determine,
A verdict should not be directed where the at her discretion, whether the devolution of only person who could contradict the witness is the property should be changed as a result dead. 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. § 141.*] ble to conclude that these powers “to sell and 5. ELECTRICITY (8 19*)—ACTIONS-JURY QUES
TION. reinvest" 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 neglivest wholly in realty or wholly in personal-gence of plaintiff's intestate held, under the evi
dence, for the jury. ty, or partly in each, were given simply for
[Ed. Note.-For other cases, see Electricity, the purpose of enabling the trustee to man- Cent. Dig. § 11; Dec. Dig. $ 19.*] age the trust estate in the most beneficial 6. ELECTRICITY (8 19*) — ACCIDENT - NEGLImanner. Under these conditions, the words GENCE. "persons who, by the laws of the state of Where a windstorm, which preceded the Rhode Island, would inherit” should, in my of a velocity of 70 miles an hour, and it was not
breaking of defendant's electric wire, was only judgment, be given their technical meaning unusual for winds to exceed that rate, defendas the equivalent of "heirs.” To state it ant cannot be held free from negligence, as a otherwise, the words are used in their strict matter of law, on the theory that the storm sense as persona designata to point out the was an unusual occurrence which could not
have been anticipated, particularly as it apbeneficiaries of the gift. This interpretation peared that wires, such as the one broken, would is strengthened by the use of the words "pay stand winds up to 135 miles an hour. and convey the same in fee simple" and the
[Ed. Note. For other cases, see Electricity, words "and the persons dying seised and pos- Cent. Dig. § 11; Dec. Dig. & 19.*] sessed thereof in fee.” Of course, by "the 7. NEGLIGENCE (8 61*) — DEFENSES INEVI
TABLE ACCIDENT. statutes of Rhode Island,” the complainant is
Where an act of God, such as a storm,' not an heir of Helen Quinn and cannot in- concurs with defendant's negligence to cause an herit from her. Accordingly he takes noth-injury, defendant is liable. ing under the will of Hezekiah Anthony and
[Ed. Note.-For other cases, see Negligence, has no interest in the property in question. Cent. Dig. $$ 74, 75; Dec. Dig. 8 61.*] On this ground, the complainant's appeal 8. ELECTRICITY ($ 19*)—ACTIONS–EVIDENCE
JURY QUESTION. from the decree of the superior court in sus
In an action for the wrongful death of taining the respondent's demurrers and in plaintiff's intestate, killed by a shock from dedismissing the bill should be denied and dis- fendant's electric wire, the question of defendmissed, and the cause be remanded to the ant's negligence in stringing the wire or in failsuperior court for the entry of a decree in ing to inspect its insulation held, under the evi
, accordance herewith.
[Ed. Note.-For other cases, see Electricity,
Cent. Dig. & 11; Dec. Dig. $ 19.*] (86 N. J. L. 144)
Appeal from Supreme Court. CLARK v. PUBLIC SERVICE ELECTRIO
Action by William P. Clark, administrator CO. (No. 47.)
of David T. Clark, against the Public Service (Court of Errors and Appeals of New Jersey. Electric Company. From a judgment for deJune 15, 1914.)
fendant, affirmed by the Supreme Court, 1. WITNESSES (8 317*)-IMPEACHMENT.
plaintiff appeals. Reversed and remanded. Where a witness is impeached as to a material part of his testimony, the jury may disre- Arthur T. Dear and Charles E. S. Simpson, gard his whole testimony.
both of Jersey City, for appellant. Edwards [Ed. Note. For other cases, _see Witnesses, & Smith, of Jersey City, for respondent. Cent. Dig. $$ 1080–1083; Dec. Dig. 8 317.*] 2. WITNESSES (8 311*) IMPEACHMENT CREDIT.
WALKER, C. This case was tried before A witness is not entitled to credit, whose a jury in the Hudson circuit. It resulted in testimony is inconsistent with the common a direction of a verdict for the respondent, principles by which the conduct of mankind is and appellant appeals from the judgment. governed; hence testimony that the deceased, although seeing that a live wire emitted sparks
The gravamen of the complaint is that reand flashed when it touched the ground, stated spondent maintained in Jersey City certain
•For other cases see samo topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes
electric wires, and that on June 10, 1911, On cross-examination he testified that the through its negligence, one of the wires car- flashing was at the end of the wire; that rying electric current fell, and that decedent there was insulation on the rest; that it was came in contact therewith, receiving a shock all black except where it was flashing; that from which his death resulted. Respondent when he came from Communipa w avenue to answered, denying all allegations of negli- Clinton avenue he was running to escape the gence on its part, and further alleging that rain; that when he came there no one was the falling of the wire was caused by inevit- about, and he saw only the people in the able accident, to wit, a storm of great and ex- house. traordinary violence. Appellant replied, and In the next place, Walsh says that he called issued was joined.
the attention of two ladies in the corner On June 10, 1911, appellant's intestate was house to the fact that the wires were down found, during a storm, lying dead on Clinton and asked them to telephone, and that it was avenue near the southwest corner of Clinton while he was talking to them that the deavenue and Sackett street, Jersey City, with ceased came up and took hold of the wire. a broken electric light wire of respondent's on The appellant thereupon produced the occuor near him and a burn on his left hand. The pants of the corner house, Miss Grace C. testimony of most importance, and which was Baldwin and Miss Frances Baldwin. They given controlling effect on the question of de- each testified that there had been two other cedent's negligence, was that of the witness, ladies in the house with them, one their Michael Walsh, a letter carrier, who stated mother, who was then dead, and the other an that on June 10, 1911, about 10 o'clock at aunt, who was then in Washington. The night, he was going to deliver a letter; that Misses Baldwin each testified that neither of he was on a car when a storm of lightning, them spoke to any one through the window; thunder, heavy rain, and terrific wind start that their mother was all of the time in the ed; that trees were blown down and the car dining room, and that the windows were in was stopped in order to take trees off the the parlor; that the door between the dining track; that he got off at Monticello avenue room and the parlor was open; that their and ran up Communipaw avenue to Sackett aunt was with them in the dining room, and street, stopped a few minutes in a doorway, that neither of them heard any one at any and started to run again along Sackett street, time talking at the front window, nor was crossed Clinton avenue, and discovered a live the front window open at any time, and they wire there; that it was hanging from a pole were in a position whereby they could see in front of No. 103 Clinton avenue; that it everything that was going on. Neither of broke from the pole on the southwest corner them saw the letter carrier at all. and was flashing; that he asked some wo- James H. Scarr, weather expert in charge men in No. 107 Clinton avenue if any one had of the local office of the United States Weathtelephoned for the police, but does not re- er Bureau in New York City, was examined member what was said; that he waited and and stated that there was a rain and thunder saw decedent. Witness was examined as fol- storm from 7:15 to 7:55 p. m., later from lows:
9:55 to 11:45 p. m.; heavy rain and high “Q. As he came over to you, did you say wind; wind at 10:19 p. m. was 70 miles per anything to him, and, if so, what did you say, hour. This storm was unusually severe, the and what did he say to you? A. I told him to fall of rain very heavy, and the wind very look out; there was a live wire; so he says, *That won't hurt; there is insulation on it. high, driving rain before it. On cross-examI said, 'Don't touch it; it is dangerous;' and ination he stated that there was wind velocipart of it was hanging from the fence on the ty in April, 1911, of 83 miles per hour, and sidewalk, and he went over and pulled it, and, as he pulled it, it threw him over on his' back that there had been other winds higher than and killed him. Q. As soon as it threw him 70 miles per hour. on his back, what did you do? A. I asked the
At the conclusion of the case a motion was ladies in the house to come over to the window, and I said, "Give me a chair or something so i made for the direction of a verdict for the recan knock it out of his hand;' and so they spondent upon the ground that there had handed me a chair, and I tried to put it out been no negligence shown upon its part; that of his hand, and could not, and I took a few the wire was blown down by an unusual and pillows and tried to get it out of his hand, and could not. I was afraid I would get electrocut- extraordinary storm, one not to be expected ed myself. Q. Did you stay there? A. I stay- and guarded against by the respondent; that ed around for a few minutes there, and the decedent came to his death by the assumppoliceman came up. Q. Then what did you do? A. I went up the street and delivered a letter. tion of a risk, and was guilty of contributory Q. Now, when you said to Mr. Clark, 'Look negligence, in picking up or touching a wire out, it is a live wire,' you say he said to you, which he knew to be a livé one, having been 'It won't hurt me; it is insulated.' At the time Mr. Clark came there and you stated to warned of its dangerous character. him it was a live wire, was there any indica- After argument on the motion, the court tion there showing it was a live wire ? A. Why, directed a verdict for the respondent, making yes, there was a flashing all over-all over the the following observations: point that was touching the ground. Q. As I understand you, when you came there, you
"Under the decisions of our highest courts, were there all alone at first? A. I was alone, the verdict of a jury cannot stand unless there yes. Q. Clark came along afterwards? A. is some evidence to support it, and it is the Afterwards."
duty of the court, unless there is some evidence
which would support a verdict, to direct the face of this warning and admonition the dejury to bring in a verdict for the defendant. If ceased deliberately took hold of it and was the testimony of Walsh given in this case be
killed. true, the plaintiff has no case whatever. There
Practically everybody understands is nothing that I can see that would justify the danger lurking in a live electric wire. you any way in discrediting. Walsh's testimony. It is to be presumed that every one warned He was a government official; he was in the of the existence of such a wounding and performance of his duty that night; and he says he warned this man who was killed not death dealing instrumentality would recoil to touch that wire, and that after he received from it. This wire was flashing fire at the the warning he took hold of it, perhaps inno- time according to Walsh's statement. cently, thinking he could do so in safety, but
Vice Chancellor Van Fleet in Earl y. 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 åt page 194, that 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 saying 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."
preservation, quite appropriately called the
first law of nature. Appellant's counsel thereupon objected to
In the recent case of Dickinson v. Erie R. the direction of a verdict for the respondent. R. Co., 90 Atl. 305, this court held that a and afterwards appealed to this court from trial judge was only justified in directing a the judgment entered upon the verdict of the verdict upon a court question arising from jury rendered in conformity with the trial the admitted or uncontroverted facts of a judge's instruction.
case, and that conflicting testimony, and its [1-5] On behalf of appellant many grounds weight, must always be submitted to the jury for reversal were assigned, which were argued for their consideration and determination. under two points: (1) That the learned trial See, also, Fulton v. Grieb Rubber Co., 72 N. court erred in directing a verdict for the re- J. Law, 35, 60 Atl. 37. spondent upon the ground that the deceased
The rule seems to be, as stated in 38 Cyc. was guilty of contributory negligence; and, p. 1570, namely, that a verdict will not be (2) that respondent could be relieved from directed where the only person who could responsibility for the accident only upon have contradicted the witness is dead. proof that it was caused solely by an act of
The respondent relies upon Anderson v. God, and that, as respondent's negligence Jersey City Elec. Light Co., 64 N. J. Law, contributed to the accident, the trial court 664, 46 Atl. 593, and Brooks v. Consolidated erred in directing a verdict. Respondent's Gas Co., 70 N. J. Law, 211, 57 Atl. 396, as counsel argued only the first point raised by justifying the trial judge in directing a verthe appellant, asserting that, no matter what dict in its favor. In Anderson v. Jersey City caused the fall of the wire, that fact was not Elec. Light Co., 64 N. J. Law, at page 665, 46 of importance in the case, because the undis- Atl. at page 593, there was a nonsuit at the puted evidence demonstrated that decedent's circuit, and this court, in reviewing the judgdeath was caused by his deliberate and inten- ment entered thereon, said: tional act.
"We find nothing in the facts which would Now, if the witnesses, the Misses Baldwin, justify us in reversing the action of the trial are to be believed, and the jury would have a alleges in his declaration, by unwittingly, but
court. Instead of receiving his injuries, as he right to believe them, the letter carrier was without any fault or lack of care on his part, either in error or was falsifying as to what coming in contact with this wire while engaged occurred between him and them, and, if he at his work (Anderson v. Jersey City Electric was in error in this respect, the jury would they are the result of his deliberately touching
Light Co., 63 N. J. Law, 387 [43 Atl. 654]), have a right to believe that he was in error this wire, not in the performance of the work in other respects; and, if falsifying in any about which he was employed, but simply for respect, they would have a right to believe of his judgment as to its harmlessness. He
the purpose of demonstrating the correctness that he was falsifying in all other respects, knew that the wire might be dangerous if the applying the maxim, “Falsus in uno, falsus insulation was not perfect, and, having volunin omnibus." Addis v. Rushmore, 74 N. J. tarily assumed the risk of injury in order to
vindicate the soundness of his judgment, he has Law, 649, 65 Atl. 1036.
no one but himself to blame for the consequence It will be remembered that the letter car- which followed." rier Walsh testified that he warned the de- There is no suggestion of conflicting eviceased that the wire was a live one and ad-dence in this Anderson Case as to what monished him not to touch it; that in the took place, nor concerning the plaintiff's neg