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of it When the Wagon Was Struck by the electric train coming from the south. No contention is made, and in view of the proofs none can be made, that the direction of a Verdict can be justified because of Want Of proof of negligence of the defendant. [1] The verdict for the defendant was directed upon the ground of contributory negligence. It Seems to have been rested upon the theory, and it is here contended (1) that the plaintiff started across the track While the freight train still blocked his view; or (2), if that be not so, that careful observation upon the part of the plaintiff Would have disclosed the approach of the electric train in time for him to have avoided the collision. We are of opinion that there is no View Of the evidence Which renderS the alleged contributory negligence of the plaintiff a Court question. Of course, if the evidence conclusively showed that the plaintiff attempted to CTOSS While the freight train Obstructed his view of the train approaching upon the other track, he might well have been held guilty of contributory negligence barring a recovery under the authority of West Jersey R. R. Co. v. Ewan, 55 N. J. Law, 574, 27 Atl. 1064, and Penna. R. R. Co. V. Pfuelb, 60 N. J. LaW, 278, 37 Atl. 1100, affirmed 61 N. J. Law, 2S7. 41 Atl. 1116. We agree that it was open to the jury to find from some of the evidence that the plaintiff did that thing. But it was also Open to them from other evidence, some of which we have recited, to find that, When he attempted to CrOSS, the freight train no longer obstructed his view. The evidence tends to show that he stopped when his horse’S head WaS 10 Or 12 feet from the nearest rail of the nearest track, and upon which the freight train passed, a very good place for the purpose considering conditions present; that he waited there until the freight train had gone Out of Sight behind the signboard. The plaintiff in effect so testified, and he is corroborated by a consideration of the testimony as to the relative positions of the plaintiff, the signboard, and the freight train at the moment the plaintiff started. It was therefore clearly open to the jury to find that when he started from his safe place of observation the freight train no longer obstructed his view, but was so far in the distance that a reasonably prudent person might judge that it was time to go forward. There appears to have been no evidence, and there is in this case no necessary inference, that the freight train as it disappeared in the distance made any noise which interfered with the plaintiff's hearing at the time he Started for Ward. NO Such Contention is made by the defendant. [2] We are also of opinion that it cannot be Said as a matter of law that Careful obServation upon the part of the plaintiff would

have disclosed the approach of the electric train in time for him to have avoided the collision. It was necessary for him to make his Observation once for all before entering upon the tracks, because he could not safely turn or retreat after he had once embarked upon the Crossing. These tracks Were dangerQuS places, and on both sides of the crossing were cattle guards and other dangerous equipment of the third-rail System. It Was reasonable to infer that from the place where he started his horse, after having stopped to look, to the place Where he Was When the train Struck his Wagon, he had a distance of about 60 feet to travel. Respecting his rate of Speed, he had first to start his horse, which, of course, took Some time, and then he proceeded at a walk until he got upon the middle track, when he discovered the electric train approaching, at Which juncture he urged his horse into a trot. It is not unreasonable to infer that his average speed was not more than 2% miles per hour. Now, defendant's own evidence Was to the effect that the speed of the train during the same time was about 25 miles per hour, and it was reasonable for the jury to infer from the fact of collision in connection with the plaintiff's evidence as to his having a clear view that the train must have been going faster than this, or the horse more slowly, or otherwise the train would not have caught him. The evidence on the part of the plaintiff Was that the speed of the train was “very high,” perhaps 40 or 50 miles an hour. Now, assuming that the train was going only 10 times as fast as the vehicle, it would go 600 feet While he was going 60 feet. At 20 times as fast it would go 1,200 feet. But at any point beyond G50 feet it would have been out of sight of the plaintiff if he had happened to stop when he first got a clear view. At any point beyond 1,100 feet, the train would have been on or beyond the curve, and hence more difficult, or impossible, to see. And so if he was a little nearer to the track, or at the last point at which he might reasonably decide that it Was necessary for him to give up looking to the right, and either look to the left or ahead for the footing of his horse, it is quite easy to conclude that, notwithStanding the exercise of reasonable care, he was caught at the crossing, for the collision is reasonably attributable to the high rate of speed of the train, coupled with the absence of the appropriate signals. We conclude, therefore, that the question of contributory negligence of the plaintiff Was for the jury. The judgment of the court below will be reversed, and a Venire de novo awarded.

GUMMERE, C. J., and SWAYZE, BERGEN, and VOORHEES, J.J., dissenting.

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TRENCHARD, J. The declaration demurred to avers, in effect, that the plaintiff was employed by the defendant at its plant as a common laborer; that the defendant placed upon its floor a bar of iron, and directed the plaintiff to stand on One side thereof and hold against it a tool for the purpose of resisting blows struck by another person on the opposite side of the bar of iron; that the defendant gave another of its employés a hammer with which to Strike the iron; that it became the duty of the defendant to furnish the employé Whose duty it was to strike the iron a hammer reasonably safe in its construction and condition;

PUSHCART V. NEW YORK SHIPBUILDING CO.

113

respect and furnished such employé an old, defective, dangerous, and unsuitable hammer; that because thereof, When it Was struck against the iron, it glanced and struck the plaintiff, whereby he was injured, etc. The first ground of demurrer requiring COnSideration is that the declaration fails to apprise the defendant of any negligence on itS part. [1] It is the duty of the master to furnish for the use of the servant tools which are reasonably Safe and fit for the purpose to Which they are to be applied. Tompkins V. Machine Company, 70 N. J. Law, 330, 58 Atl. 393; McDonald V. Standard Oil Company, 69 N. J. Law, 445, 55 Atl. 289; Campbell V. Gillespie Company, 69 N. J. Law, 279, 55 Atl. 276. [2] We have pointed out that the declaration charges that the tool furnished WaS dangerous and unsuitable, or, synonymously, unsafe and unfit. Further, the respects in Which the t00l furniShed WaS unSafe and unfit are alleged, namely, that it was old and defective. Of course, good pleading requires that the declaration Should SO Specify the character of the defect as to reasonably apprise the master of the case to be made against him. But such lack of certainty cannot be taken advantage of on general demurrer. It constitutes a formal defect, and the remedy is a motion to strike out the pleading. Van Horn V. Central R. R. Co., 38 N. J. Law, 133; Race V. Easton & Amboy R. R. Co., 62 N. J. Law, 536, 41 Atl. 710; Minnuci V. Philadelphia & Reading R. R. Co., 68 N. J. LaW, 432, 53 Atl. 229; ESSlinger V. Boehm, 79 Atl. 267. The only other ground of demurrer requiring consideration is this: That the risk of injury suffered by the plaintiff was assumed by him. [3] When the defect in the tool used by the servant is obvious, the servant who uses it

Self; but he cannot assume an obvious risk in Such case for a fellow Servant Who does not know of the defect or danger. Campbell v. Gillespie Co., 69 N. J. Law, 279, 55 Atl. 276. See, also, 26 Cyc. 1204. The plaintiff declares that he Was Ordered to Stand and hold a tool against the iron bar opposite the point at Which his fellow Servant Was to stand and strike With a hammer. From a consideration of the allegations of the declaration alone, it cannot be said as a matter of law that the plaintiff could observe, or Ought in the exercise of reaSonable care to have observed, the condition of the hammer in the hands of his fellow Servant, and so be deemed to have aSSumed the risk.

The plaintiff is entitled to judgment on the demurrer.

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

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that the defendant neglected its duty in this

assumes the obvious risk of danger to him(81 N. J. L. 268) TISCHMAN v. ERIE R. CO. (Supreme Court of New Jersey. Oct. 3, 1911.)

(Syllabus by the Court.)

1. RAILRoADs (§ 350*)—ACCIDENT AT CRoss

ING—SIGNALS-QUESTION FOR JURY.

The question being whether or not a bell

on a locomotive engine was rung in approaching a grade crossing, testimony of the plaintiff that he stopped 10 or 15 feet from the tracks and looked and listened for the train, and that he did not hear any bell, and that no bell was rung, justifies the submission of the question to the jury, though the defendant company’s engineer and fireman testified that it was rung.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1152–1192; Dec. Dig. § 350.*] 2. RAILROADs (§ 350*)—ACCIDENT AT CRoss

ING—CONTRIBUTORY NEGLIGENCE.

When, from the evidence, the jury might

have legitimately found that the plaintiff, who stopped his heavily loaded team and made careful observations 10 or 15 feet from the defendant's railroad tracks at a grade crossing, could not see more than 200 feet in the distance. because of the darkness of the night and a “very heavy” Snowstorm, though on a clear day there was a clear view of the tracks for 1,200 feet from that point, it was a question for the jury Whether he was guilty of contributory negligence in going forward, when the testimony tended to Show that the crossing gates were open, that the automatic crossing gong was silent, and that the train which, unknown to him, was approaching at a speed of 35 miles an hour, and which struck his wagon, gave no statutory signals.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1165–1172; Dec. Dig. § 350.*]

Error to Circuit Court, Hudson County.

Action by Otto Tischman against the Erie Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Argued February term, 1911, before GUMMERE, C. J., and REED and TRENCHARD, J.J.

Collins & Corbin, for plaintiff in error. Weller & Lichtenstein, for defendant in error.

TRENCHARD, J. This action was brought to recover damages for personal injuries Sustained by the plaintiff in a collision with the defendant's train at the “County Road” crossing of the defendant's tracks on the outskirts of Jersey City. The trial resulted in a Verdict for the plaintiff, and the judgment entered thereon is now here for review.

The proofs at the trial tended to show the following matters of fact: The plaintiff, a man 26 years old, approached the doubletrack grade crossing in question at 6:30 o’clock on the evening of January 16, 1909, driving in a loaded garbage wagon drawn by two horses. The night was dark and stormy. At the time it Was Snowing “Very heavily.” The plaintiff was quite familiar with the crossing at which the defendant maintained gates, an automatic gong, and also a signboard upon Which was printed, “Watchman on duty from 7 a.m. to 7 p.m.” When the plaintiff reached a point 10 or 15

feet from the tracks he stopped, looked both ways and listened, but neither saw nor heard the train Which, unknoWn to him, Was approaching at a speed of 35 miles an hour. He testified that he did not hear any bell or Whistle, and that no bell Was rung and no whistle blown. The gates at the crossing were open, and the automatic gong was silent. The plaintiff then went forward, his horses on a Walk, still looking and listening, and his wagon was struck by the engine Coming upon the first track, and he WaS thereby injured. According to the testimony upon the part of the plaintiff, it was imposSible on account of the Severity of the SnowStorm to See more than 200 feet. It further appeared that from the point where the plaintiff stopped there Was a clear View. On a clear day 1,200 feet up the track in the direction from which the train approached. According to the testimony upon the part of the plaintiff, the automatic gong at the CrOSSing Was Out Of Order. It is now contended (1) that there was no evidence from which the jury could legitimately find that the bell On the engine had not been rung as directed by the statute, and hence that the trial judge erred in Submitting that question to the jury; and (2) that contributory negligence upon the part of the plaintiff conclusively appeared. These questions, and only these, are raised by asSignments of error based upon exceptions. [1] We are of opinion that the state of the testimony justified the trial judge in submitting to the jury the question whether or not the bell on the engine was rung as directed by the statute. The accident having Occurred Within the corporate limits of a City, the trial judge in his charge limited the negligence of the defendant to a finding by the jury that the defendant failed to ring a bell upon the engine as directed by section 35 of “an act concerning railroads.” P. L. 1903, p. 663. We are not concerned with the legal proprietW Of Such instruction, because the defendant did not object to it at the trial, and does not complain of it here. Passing, then, to the question raised and argued, We think that the testimony of the plaintiff that he stopped 10 or 15 feet from the tracks, and looked and listened for a train, and that he did not hear any bell and that no bell was rung, fully justified the submission of the question whether the bell was rung to the jury, though the defendant's engineer and fireman testified that it was rung. Rogers v. West Jersey R. R. Co., 75 N. J. Law, 568, 68 Atl. 148. The cases of Eissing W. Erie Railroad CO., 73 N. J. LaW, 343, 63 Atl. 856, and Holmes V. Pennsylvania Railroad Co., 74 N. J. Law, 469, 66 Atl. 412, are not parallel. [2] We are also of opinion that the question of the alleged contributory negligence of the plaintiff was for the jury. This quesN.J.) SMITH V. tion must be determined Without reference to chapter 35, P. L. 1909, p. 54, or chapter 96, P. L. 1909, p. 137, because the accident in the present case occurred before such statutes took effect. The argument of the defendant seems to be that if the plaintiff had exercised due care in making his observation, When he Stopped for that purpose 10 Or 15 feet from the tracks, he would have seen the approaching train. It is predicated upon the undisputed fact that On a clear day he would have had an unobstructed view of the track for 1,200 feet. But that contention ignores the fact that it was a dark and stormy night and that it was open to the jury to find that the snowstorm was so severe that the plaintiff Could not See more than 200 feet. The testimony upon the part Of the defendant tends to show that, in fact, because of the Snow the lights on the train could not be seen more than 100 feet away. It was also open to the jury to find from the evidence that from the point where the plaintiff stopped to make his Observations to the point at Which he Was struck he had to travel about 30 feet, that his average speed, considering that he had first to Start his heavily loaded team, was 21% miles an hour, and that the Speed of the train was 35 miles an hour. It is Seen, therefore, that the jury might legitimately infer that When he started the train was at least 420 feet away. In going forWard he had to look not only in the direction from. Which the train Came, but the Other way, and also ahead for the footing of his horses. Taking into consideration the fact that the gateS Were Open, that the automatic gong at the crossing Was Silent, and the evidence that the statutory signals were not given, it cannot be said as a matter of law that the plaintiff Was guilty of COntributory negligence. On the contrary, the inference is clearly permissible that he was struck at the crossing notWithStanding due Care upon his part.

The judgment of the court below Will be affirmed.

(79 N. J. E. 117) SMITH et al. W. ABBOTT.

(Court of Chancery of New Jersey. Sept. 22, 1911.)

EXECUTORS AND ADMINISTRATORS ($ 519")ADMINISTRATOR WITH WILL ANNEXED-ANCILLARY ADMINISTRATOR. 2 Gen. St. 1895, p. 1429, $ 21, provides that any deed by an administrator with the will annexed, for land sold pursuant to a power or. direction in the Will Vested in the executor, shall be as Valid as if it had been executed by the executor named in the Will; and such administrator shall have the same powers as to the sale of testator's land as were vested in the executor. Orphans’ Court Act (P. L. 1898, p. 725) $29, £ that if any nonresident die possessed of lands within the state, the surro

gate of the county shall, upon proof of death,

ABBOTT 115

issue letters of administration; and if any executor or administrator of a nonresident neglects for 60 days to apply for letters testamentary, or of administration, the surrogate may issue letters of administration to any person he Selects, either with the will annexed or otherWise. Held that, while a testamentary power of Sale given an executor does not cease upon the death or removal of the executor, as at common law, but now passes to an administrator with the Will annexed, a power of sale of realty situated in New Jersey, given to foreign executors named in a nonresident's will, cannot be exercised by an ancillary administrator with the will annexed, appointed by the orphans' court of the county in which the realty is situate, where the executors are acting as such in the jurisdiction of testator's domicile.

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LEAMING, V. C. The bill is filed for the purpose, ostensibly, of procuring the conStruction of a will. I am unable to find any provision of the Will Which needs construction. The power of sale given by the will to the executors, to which the bill especially refers, is susceptible of but one meaning, and does not admit of construction; it specifically directs the executors to make sale Of the real estate therein referred to. I apprehend, however, that the real purpose of the bill is to have this court determine whether, as a matter of law, a power of Sale Of real estate situate in New Jersey, by which power is given to executors named in the Will of a nonresident, can be exercised by an ancillary administrator cum testamento annexo appointed by the Orphans’ court of the county in Which the real estate is Situate, in a case in which the executors named in the will, or the survivors of them, are acting as such in the jurisdiction of the domicile of the testator. While the anSWer to this inquiry would seem to belong to the orphans' court, on application for confirmation of any Sale Which may be made, I am not entirely clear but that, under the issues as framed, this court should give the matter its consideration pursuant to the prayer Of the bill.

Section 24 of the Orphans' court act (P. L. 1898, p. 722) expressly authorizes an executor of the domicile of a nonresident to make sale of land in this state pursuant to a power contained in the Will of testator for that purpose, providing the will has been executed in accordance with the laws of this state, and an exemplified copy of the Will and foreign letters have been duly filed and recorded in this state. Under the facts stated in the bill, and admitted in the answer, a power of sale clearly resides in the surviving Pennsylvania executors. At common law a testamentary power of Sale of an executor was treated as a personal trust; with the death, resignation, or re

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

moval of the executor, the power died. . An:

administrator cum testamento annexo could not, in consequence, exercise the power. Denn ex dem. McDonald v. King, 1 N. J. Law, 432. This has been changed by our statute; the power now passes to an administrator cum testamento annexo, except in certain cases specifically referred to in the statute. 2 Gen. St. 1895, p. 1429, § 21. But this statute clearly has reference to the Survival of the power of sale where the executorship has become vacant, and an administrator cum testamento annexo has been appointed as the successor in office of the person or persons named in the will; it does not relate to an ancillary administrator in this state, where the executor named in the will of a nonresident is acting as such in the State of the domicile of the testator. This is manifest, not only from the language, but also from the general purpose, of the act. The only other statute which has been brought to my attention which could possibly confer the power on an ancillary administrator With the will annexed, in a case of the nature already stated, is section 29 of our orphans' court act, under which section letters cum testamento annexo may be issued on the estate of a deceased nonresident on the application of a creditor of the teStator. An examination of this Section Will disclose that it nowhere confers upon the administrator cum testamento annexo so appointed, either expressly or by implication, the power of sale which the will gives to the executors of the foreign jurisdiction. In the absence of a statute conferring the power, the commonlaw rule must be recognized.

I am convinced that under the facts Stated in the bill the local administrator cannot exercise the power Of Sale Contained in the Will.

(79 N. J. E. 150)
ALLMAN et al. v. UNITED BROTHER-
HOOD OF CARPENTERS AND JOIN-
ERS OF AMERICA et al.

(Court of Chancery of New Jersey. Sept. 15, 1911.)

(Syllabus by the Court.)

1. INJUNCTION (§ 163*)—PRELIMINARY WRITSUBPCENA AD RESPONDENDUM – D1ssoluTION. When a preliminary writ of injunction issues, a subpoena ad respondendum must be taken out with it, and returned into court within the time prescribed by rule for the return of service of the injunction, or, in default, the injunction will be dissolved on defendant's motion. [Ed. Note.—For other cases, see Injunction, Cent. Dig. § 368; Dec. Dig. § 163.*]

2. INJUNCTION (§ 169*)—DIssoLUTION-SPECIAL APPEARANCE-LEAVE OF COURT. To make such motion, the defendant, not being in court by plea, answer, or demurrer, would have to appear formally for the purpose. And if he desires to appear specially for that purpose only, and not have his appearance operate to clothe the court with jurisdiction over him generally in the suit, it seems he must obtain leave of the court to enter such an appearance. [Ed. Note.—For other cases, see Injunction, Cent. Dig. § 372; Dec. Dig. § 169.*]

3. INJUNCTION (§ 132*) – “PRELIMINARY INJUNCTION’’ - “AD INTERIM RESTRAINING ORDER.” There is a material distinction between a preliminary writ of injunction and an ad interim restraining order. The injunction runs, to use its language, until the defendant “shall have fully answered the bill of complaint and our said court shall make other order to the contrary.” An ad interim restraining order always commands the defendant to show cause on a certain day why an injunction should not issue, and he is thereby brought into court for the purpose of that motion only, and thus afforded an opportunity to litigate with the complainant as to the propriety of the issuance of an interlocutory injunction, without the filing of an answer and without appearing generally in the cause. [Ed. Note.—For other cases, see Injunction, Cent. Dig. § 302; Dec. Dig. § 132.* For other definitions, see Words and Phrases, vol. 6, pp. 5502, 5503.]

4. INJUNCTION (§ 133*)—MANDATORY INJUNCTION-W HEN ISSUES. Mandatory injunctions are rarely granted before final hearing, and are, as a general rule, strictly confined to cases where the remedy at law is plainly inadequate. [Ed. Note.—For other cases, see Cent. Dig. § 302; Dec. Dig. § 133.*] 5. INJUNCTION (§ 137*)—INTERLocIITORY INJUNCTION.—WHEN ISSUES. To justify the issuing of an interlocutory injunction, the case made by the complainant must exhibit a right free from doubt or reasonable dispute; and the writ will not issue where the complainant's case is doubtful on the law or the facts. To doubt is to deny. [Ed. Note.—For other cases, see Injunction, Cent. Dig. § 309; Lec. Dig. § 137.*]

injunction,

Bill by Michael Allman and others against the United Brotherhood of Carpenters and Joiners of America and others. Application for preliminary injunction denied.

Samuel F. Leber, for complainants. Henry Carless, for defendants.

WALKER, W. C. This is an application for a preliminary injunction, the complainants being all of the members of Local Union 1787 of the United Brotherhood of Carpenters and Joiners of America, and the suit is brought against the United Brotherhood of Carpenters and Joiners of America, a national union of Carpenters and joiners, and, SuCCinctly stated, the bill prays for a decree restoring the complainants to full membership rights in the defendant association, alleging an illegal Suspension therefrom, and also prays an injunction restraining the defendants from boycotting any of the complainants

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