is in the first class, can the proviso be construed according to the obvioul intent, to save the act from being a nullity?

Among the rules for interpretation of statutes are the following: The interpretation which renders a statute null and void cannot be admitted; it is an absurdity to suppose that, after it is reduced to terms, it means nothing. It ought to be interpreted in such a manner as that it may have effect, and not to be found vain and illusive. That tends to render an act null and without effect, either in whole or in part, and consequently everything that introduces any change already agreed upon, is odious. A thing within the intention is within the statute, though not within the letter; and a thing within the letter is not within the statute unless within the intention.

If such rules may be applied in the interpretation of a statute as respects its subject, with stronger reason should they apply to a clause respecting its territorial operation. Restricting the application of the proviso to the only city in the first class existing at the date of the act, or now, the act is not a nullity. We are of opinion that the act, so far as relates to the jurisdiction of aldermen and justices of the peace, il constitutional.

This case will not often be a precedent to save statutes drawn in like manner. Were it not for the provision in the constitution for magistrates in Philadelphia, it would be impossible to hold that the phrase “cities of the first class” means only Philadelphia. Judgment reversed.

FIRE INSURANCE—POLICY—COVENANT—BREACH—“ PETROLEUM. ”

A policy of fire insurance contained a covenant that “if, in said premises, there be kept gunpowder, fire-works, nitro-glycerine, phosphorus, saltpeter, nitrate of soda, petroleum,” etc., “then, and in every such case, this policy

' shall become void. ” The insured kept on his premises a barrel of petroleum, which he used for fuel to generate steam. Held, that the covenant was broken thereby, and that the policy was void.

Error to common pleas, Warren county.

Covenant by William White against the Western Assurance Company. The facts of the case are fully set forth in the opinion of the supreme court. At the conclusion of the trial, the court (BROWN, P. J .) directed the jury to render a verdict for defendant; which was accordingly done, and judgment entered thereon, whereupon plaintiff took this writ.

Wilbur (it Schnu-r, for plaintiff in error.

The use of petroleum, and storage absolutely necessary to its use, is not prohibited. Mears v. Insurance 00., 92 Pa. St. 15; Insurance Co. v. Kroegher, 83 Pa. St. 66; Grandin v. Insurance 00., 107 Pa. St. 26; Insurance Co. v. McLaughlin, 53 Pa. St. 485.

This case is rulel by Birmingham Fire Ins. Co. v. K roegher, 83 Pa. St. 64; Lancaster Fire I us. Co. v. Lenheim, 89 Pa. St. 497; Steinbach v. Fire Ins. 00., 13v Wall. 183; Whitman-sh v. Charter Oak Fire Ins. 00., 2 Allen, 581; Westfall v. Hudson River Fire I as. 00., 12 N. Y. 289.

GORDON, J. This was an action of covenant on a policy of insurance dated April 12, 1883, by which the defendant undertook to insure against loss by fire the machinery, tools, patterns, etc., belonging to the plaintiff in and about an iron foundry which was held under a lease from one James Lighty. The assured property, together with the foundry, was destroyed by fire on the twelfth of May, just one month after the date of the policy. The defense was that this policy became and was made null and void in consequence of a breach by the assured of the following condition: “If, in said premises, there be kept gunpowder, fireworks, nitro-glycerine, phosphorus, saltpeter, nitrate of soda, petrolewm,” etc., “then, and in every such case, this policy shall become void.” The admitted facts are that petroleum was used as fuel for the engine by which the machinery of the foundry was driven, which fuel was drawn from a tank or barrel kept in a shed united with, and so made to form part of, the main building, and, as one of the witnesses says, some five or six feet from the furnace. The oil was conducted from the barrel by a half-inch pipe to the place of consumption, an iron pan in or under the boiler; and, as this fuel was drawn from the barrel, a fresh supply was furnished as necessity required.

We may here observe, obiter, that, while there are devices by which petroleum can be and is used as a fuel for raising steam with perfect safety, that above described is certainly not one of them. Nevertheless, it is not for us to determine whether-a fuel of this kind, and so used, was more or less dangerous than wood or coal. The only question for us is whether the keeping of a barrel of petroleum in the insured premises was such a breach of the condition in the policy as released the company from its obligation. We are always unwilling to enforce a forfeiture when such result can be avoided. Nevertheless, when the intention of the parties is plainly expressed, that intention must be regarded as the law of the contract, and we cannot lawfully ignore it, even to prevent a forfeiture. But, as to the parties before us, the unequivocal agreement, as found in the policy, is that the keeping of petroleum in the premises insured shall "render that policy null and void. That petroleum was so kept is not denied; and’ this, not, as in the case of Mears v. Humbolt Ins. 00., 92 Pa. St. 15, temporarily and for casual use, but habitually and for constant use. Nor was it, as in Gitizens’ Ins. Co. v. McLaughlin, 53 Pa. St. 485, an article of such vital necessity in the conduct of the business of the insured that its use could not be ignored, and therefore must have been recognized as a matter not subject to the condition. Petroleum, however convenient and economical, was certainly not a fuel without which the foundry could not have been run, since its place could well have been supplied by wood or coal. What shall we say then? That the contract of the parties shall not stand? But on what ground can we justify a conclusion such as this? The parties were swijaris. No fraud is alleged, nor is the condition even unreasonable. The company was not willing to insure against so dangerous a commodity as petroleum, and therefore expressly forbade, not only its use, but even its presence on the property; and, under and subject to this condition, the plaintiff accepted the policy. Under such circumstances, were we to reverse the court below, we must not only disregard the contract of the parties, but also overrule our own cases of Birmingham Fire Ins. Co. v. Kroegher, 83 Pa. St. 64, and Lancaster Fire Ins. Co. v. Lenheim, 89 Pa. St. 497, which, in principle, rule the case in hand.

The judgment is affirmed.

TOWNSHIP OF KINGSTON v. GIBBONS and Wife.1
(Supreme Court of Pennsylvania. October 4, 1886.)

MUNICIPAL _CORPORATIONS—DEFEOT IN ROAD—KNOWLEDGE.

A drain or culvert crossed a roadway, and one of the planks covering it, for about three_months before the accident, was warped. so that it was dangerous to walk on It. Plaintiff knew of this; She living but about 100 feet from the culvert. Aweek after She last noticed it, (when it appeared safe,) plaintiff and another woman attempted to cross the culvert,~ and. as plaintiff was walking over It, the plank turned, and she was injured. the other woman having crossed .in safety. There was no other way by which plaintifi could reach plpr destination. Held, the question of negligence was properly submitted to

e jury.

Error to common pleas, Luzcrne county.

Case by Patrick Gibbons and Ellen Gibbons, his wife, in right, etc., against the township of Kingston.

At the junction of a road called “Blindtown Road,” with a cross-street, in Kingston township, was a drain or culvert across the road, about 18 inches wide by 12 or 15 feet long, covered by three planks. For about three months, in the spring of 1882, these planks were loose, and the middle one was warped and twisted so as to be easily knocked out of place by a passing wagon, or turned over by a person or horse stepping on the Side of it. During this time plaintiff resided in the house next to this culvert, about 100 feet away from it, and frequently noticed its defective condition. Previous to the accident she repeatedly saw it in a bad condition. Then again she saw passers pull the plank back in place, when it looked all right. The last time She noticed it was a week or 10 days before the accident, when it appeared safe. On the morning of June 19, 1882, plaintiff and Mrs. Mulligan started to go up the road. When they reached the culvert, Mrs. Mulligan stepped over in safety, but, plaintiff stepping on the plank with her right foot, it turned or sunk, and She fell and was injured. There was a gutter on each side of the culvert. One gutter, however, was damp. Verdict and judgment for plaintiffs for $1,500. Defendant thereupon took this writ.

Dickson do Atherton, for plaintiff in error.

Previous knowledge of a defect in a highway, coupled with evidence of no greater caution than in ordinary circumstances, is fatal to plaintiff’s case. Crafts v. Boston, 109 Mass. 519; Ooates v. Burlington, etc., R. 00., 62 Iowa, 486; S. C. 17 N. W. Rep. 760; Adams v. Carlisle, 21 Pick. 146; Merrill v. Hampden, 26 Me. 234; Farnum v. Concord, 2 N. H. 393; Butterfield v. Forrester, 11 East, 60; Bunker v. Conington, 69 Ind. 33; Mt. Vernon v. Dusouchett, 2 Ind. 586; Fleming v. Lock Haven, 15 Wkly. Notes Gas. 216; Pennsylvania R. 00. v. Taylor, Id. 37; Erie v. Magill, 101 Pa. St. 616; Forks v. King, 84 Pa. St. 230; Wanamaker v. Burke, 17 Wkly. Notes Gas. 225; S. C. 2 At]. Rep. 500; Lancaster v. Kissinger, 11 Wkly. Notes Gas. 151; King v. Thompson, 90 Pa. St. 369; Pennsylvania R. Co. v. Beale, 73 Pa. St. 509; Hays v. Paul, 51 Pa. St. 134; Folsom v. Underhill, 36 Vt. 591.

James L. Lenahan and John T. Lenahan, for defendant in error.

It was the duty of the town to give notice of the dangerous condition of this bridge, by a barrier, or in some other reasonable way. Erie v. Schwingle, 22 Pa. St. 384; Township, etc., v. Merkhofi‘er, 71 Pa. St. 276; Humphrey v. Armstrong, 56 Pa. St. 204; Hays v. Paul, 51 Pa. St. 135; K illion v. Power, Id. 429; Kibele v. Philadelphia, 105 Pa. St. 41; Fritsch v.Allegheny, 91 Pa. St. 226; Farley v. City, etc., 11 Wkly. Notes Gas. 136.

TRUNKEY, J. For about three months before the accident the planks on the culvert were loose, and one was warped and twisted so as to be easily displaced by a passing wagon, or turned over by a person or horse stepping on the side of it. The plaintiff resided near the culvert, and had frequently noticed its defective and dangerous eondition. Travelers were sometimes compelled to stop, and put the planks in place, before they could drive over. When the planks were placed, the culvert often appeared safe, but they were liable to be thrown out at any time by use of the highway. The plaintiff had not noticed the culvert for a week or 10 days prior to the accident. At that time it appeared safe. Mrs. Mulligan, who was with her, safely passed, and the plaintiff, following, was caught as if by a trap, and seriously injured. There was no other way for the plaintiff to go on her errand, unless over the gutter, which was unsafe for a woman in her condition, and over the gutter was a way which nobody was likely to take when traveling in the same direction.

The supervisors, during all the spring, had not seen the culvert, and had neglected to ascertain whether the road, one much traveled, was in repair. Soon after the accident one of the supervisors was notified. He says he Went, found the culvert in bad repair, and built a new one.

These are the facts which the jury were warranted in finding,——most of them uncontroverted; and as to those which were controverted the situation was to be settled by the jury. This case is not like Crafts v. City of Boston, 109 Mass. 519, where a man having knowledge of an open ditch by the side of the way, and of ample room in the way, drove into the ditch, and there was no evidence of care on his part. But in Pennsylvania the rule has not been adopted that the burden of proof is on the plaintiff to show absence of contributory negligence.

Where the gravamen of the action is the alleged negligence of the de

fendant, it is incumbent on the laintiff to show a case clear of contributory negligence on his part. (lily of Lancaster v. Kissinger, 11 Wkly. Notes Gas. 151. It is enough that he makes out a case against the defendant, without showing that his own want of due care, under the circumstances, also contributed to the injury. The burden of proving want of ordinary care rests upon the party alleging it, and ordinarily the burden of showing contributory negligence is on the defendant. Mallory v. Grifiey, 85 Pa. St. 275; Brown v. Gilmore, 92 Pa. St. 40.

A week or 10 days had elapsed from the time the plaintiff had seen the culvert in bad condition. She might have presumed that the defect previously observed by her had been removed. Aside from that, she may have forgotten, and the jury might impute her forgetfulness to other causes than negligence. The culvert was safe in appearance. As she testified, she was walking with a neighbor, who passed before her, and if she thought about it at all she probably thought it had been repaired. Where the traveler, from mere fool-hardiness, knowing a defect exists, rushes against it, when he also knows it can be avoided by taking another way which is safe and convenient, he has no case for damages. Whart. Neg. par. 403.

In City of Erie v. Magill, 101 Pa. St. 616, the majority of the court believing that the plaintiff not only had knowledge of the dangerous ob~ struction before the day of the accident, but also that she actually saw it at and immediately before her attempt to walk over it, as shown by her own testimony, held that it was error to submit the question of contributory negligence to the jury. Had the danger not been plainly visible, and her own testimony not have shown she saw it when she began the attempt to cross it, the facts would have been for the jury. Fleming v. Lockham, 15 Wkly. Notes Gas. 216, is a case where the plaintiff unequivocally testified that, at the instant of her attempt to cross the danger, as well as when she left her house, she both knew the danger and a safe way around it. In the pending case the plaintiff saw that the culvertlooked all right. She is corroborated by a witness who was with her, and at least a week had passed since the plaintiff had noticed the defect.

Clearly, the defendant’s first point, namely, “that under all the evidence the verdict should be for the defendant,” was rightly refused. Nor are we convinced that the court erred in the instructions to the jury. Few, if any, of the assignments present even the appearance of error when the matter complained of is read with the context.

The defendant’s sixth point ought to have been refused. Its affirmance with qualification was not harmful to defendant. The point did not fairly state the whole pith of McGuire’s testimony. He plainly said that the split plank was laid level sometimes, and then it looked all right; also that “when this plank was laid in place there was no hole there;” and “the bridge looked all right.” Had this fact been inserted in the point, the court would not have affirmed it.

Nor was it error to refuse the defendant’s seventh point. Lehman said the plank was covered up sometimes, and then it looked all right. His last answer was, “a. board was over it sometimes, so that it was pass