she presented to the orphans' court a petition on oath, representing that she had paid all her husband's debts, and that the property left by him was insufficient to support her and the children, and praying for an order of sale of the real estate for the relief of her immediate wants, and for the support and education of the children. On that petition the orphans' court, on the same day, by an order reciting that it had heard and considered the case “on the petition, exhibits, accompanying proofs, and representation of Eliza V. Thaw in her capacity of guardian and executrix," decreed that, provided the circuit court of the United States of the District of Columbia, sitting as a court of chancery, should by proper order approve thereof, she should be authorized, as guardian of the children and for herself, to make sale and conveyance of the said real estate, first giving bond for the performance of the trust thereby imposed upon her, and immediately after the sale making report thereof to the court. On or about April 29, 1844, a copy of that petition and order, duly certified by the register of wills, was filed on the chancery side of the circuit court of the United States of the District of Columbia. On October 12, 1844, the order of the orphans' court was approved by the circuit court sitting in chancery, as is shown by the entry on its docket or minute-book, which, in the absence of any extended record, is competent and conclusive proof of its doings. Railroad Co. v. Howard, 13 How. 307, 331. On May 17, 1845, the petitioner gave bond with sureties for the performance of the trust imposed upon her by the order so approved. The dates of the sale, and of the report thereof to the orphans' court, do not appear. But it does appear by the minutes of its proceedings that on January 21, 1848, there was filed in and approved by that court a "sale of real estate of Joseph Thaw, deceased," which, in the absence of evidence of any other sale of his real estate having been ordered or made, must be inferred to have been a report of this sale. All the facts recited in the deed executed by Mrs. Thaw to Agricol Favier on March 17, 1848, are thus proved by independent evidence, the competency of which is beyond doubt.

The objection that the petition presented by Mrs. Thaw to the orphans' court was irregular and insufficient to support the jurisdiction of that court because it asked for a sale of the land for the benefit of the petitioner, as well as of her wards, is sufficiently answered by Mr. Justice Cox, delivering the judgment below, as follows: "It is true that the guardian, in her application, confused somewhat her own interests with those of the wards, and alleged the insufficiency of the property to support herself and the children as a ground for selling, and asked the sale as well to relieve her own immediate wants as for the support of the children. But it is fair to read this part of the application as referring to her own undivided interest for life in the property. It is not to be read as an application to sell the estate of the children for her support. It is also true that the court had no jurisdiction over the

wife's interest in the property, and could not pass title to it by its decree. But if the wife chose to unite in the sale, and convey her interest, which she must be held to have done, we see no reason why the court could not decree a sale of the share of the infants. # * And, if there

was error in the form of the decree because it embraced the widow's interest also, it did not affect its efficacy as to the interest of the infants, but was a harmless and in-* operative error, not to be noticed collaterally. The only question that could arise would be as to the proper apportionment of the proceeds between the mother and the wards. But this question could only arise after the sale, and would not affect the transfer of title." 5 Mackey, 227.

The petition, and the order of the orphans' court thereon, fairly and reasonably construed, show that a sale of the infants' interest in the real estate under the will of their father was prayed for and ordered as necessary for their maintenance and education. So far as concerned the interest of the infants, therefore, the court had before it everything that was necessary to support its jurisdiction. In this form of proceeding the guardian sufficiently and fully represented the infants, and no notice to them was required by the statute of Maryland, or by any general rule of law. The want of proof of such notice, or of any record of the evidence on which the orphans' court proceeded in making the order, or the chancery court in approving it, or of any subsequent accounting by the guardian for the proceeds of the sale, is immaterial. The orders of those courts, within their jurisdiction, were conclusive proof in favor of the purchaser and grantee at the sale, and cannot be collaterally impeached on any such ground. Thompson v. Tolmie, 2 Pet. 157; Grignon v. Astor, 2 How. 319; Comstock v. Crawford, 3 Wall. 396; McNitt v. Turner, 16 Wall. 352; Mohr v. Manierre, 101 U. S. 417. The cases, on which the plaintiff relies, of Bank v. Ritchie, 8 Pet. 128, and Hunter v. Hatton, 4 Gill, 115, 124, were wholly different. Both were cases of decrees in equity upon suits inter partes in the ordinary form. In the one case the decree was directly attacked by bill of review in the nature of a writ of error, and in the other case a notice required by express statute had not been given. Judgment affirmed.

(135 U. S. 554)

WASHINGTON & G. R. Co. v. MCDADE.

(May 19, 1890.)

MASTER AND SERVANT-DEFECTIVE MACHINERY— EVIDENCE-INSTRUCTIONS.

1. In an action for personal injuries, while employed by defendant, in placing a belt on a pulley attached to a shaft in defendant's blacksmith shop, there was evidence that the machinery was unsafe, and not such as was generally used in such shops; that the only way of putting the belt on the pulley was by hand, instead of by means of a loose pulley and lever or shifter, as was usual; that plaintiff was unaware of any danger, and supposed that, in putting it on so, he was doing his duty. There was evidence that plaintiff had been in its employ for nearly 18 months, during which he had before performed the same duties as when injured, and tending to

he bought a large blower, and supplied | the air by means of a fan propelled by machinery; that he had placed a loose pulley at the fan, and another on the countershaft, both next to the fixed pulleys, shifting the belt, when necessary, onto those loose pulleys by means of a lever near the floor; that he had never seen such a contrivance anywhere else, although he had been a blacksmith 25 years; and that such a contrivance for shifting belts was considered safe, while to put them on and take them off by hand was considered dangerous. Robert Thompson, a witness for the plaintiff, testified that he had had a large experience in machinery and belting, having worked for 25 years in planingmills and sash factories, and that loose pulleys for placing and removing belts on and off fixed pulleys had been in common and general use for over 25 years; that they can be used wherever there is room to place them, and are generally placed on the counter-shaft immediately adjoining the fixed pulley, the fixed pulley at the machine being as wide as both pulleys on the counter-shaft; that the belt is removed from one pulley to the other by means of a lever called a "shifter," which can be operated very easily with one hand without any danger, thus stopping and starting the particular part of the machine while the rest of the machinery is in motion; and that it is dangerous to put belts on pulleys by hand while they are in motion, and he would not do it without the shifter, which renders such work perfectly safe. Smith Pettit and John B. Randolph, witnesses for the plaintiff,-the former a machinist of 30 years' experience, and the latter the machinist at the state, war, and navy department for a number of years, both testified substantially to the same effect as the preceding witness in respect to the long use of loose pulleys and a shifter for the purpose of removing belts in all well-regulated machine-shops, and to the danger of putting them on in any other manner. John W. Eckrit, who had worked with the plaintiff in the shop at one time, as before testified to, a witness for the plaintiff, stated that he put the belt on the pulley three or four times after the plaintiff came there, but that no one directed him to do so, and he did not know whether or not Hawk was aware of such fact, and that he had put on belts before by hand.

The plaintiff thereupon rested his case, and the defendant moved the court to instruct the jury to return a verdict in its favor upon the aforesaid evidence, which the court declined to do; and the defendant thereupon excepted.

The defendant then gave evidence tending to prove that the machinery in its carshops was of the most approved character, there being none better or more suitable to be found in the country; that loose pulleys and a shifter were not used in blacksmith shops like its own, but were used only when the machine required the power to be quickly thrown off or put on, or where the work to be done was very heavy, and the belt not easily managed by hand; that the belt in question could be shifted very easily by hand, without dan

ger, by a person of ordinary intelligence who had seen it done a few times; that there was a loose pulley on the drill-press in the blacksmith shop; that Hawk, the foreman, a carpenter by trade, had charge of all the men in the shops, and gave orders and directions to all of them, being perfectly competent to fill the position which he held, no one else having any authority to give orders to any of the men employed in the shop as regards the belting; that the engineer's duties were only such as pertained to running the engine, which fact was known to the plaintiff; that the duties of Moore extended not only to taking off and putting on the belts when they needed repairs, but consisted in his having general charge of the belts in the shops, putting them on and taking them off whenever such work was necessary, which fact was known to all the men in the shops, including the plaintiff; and that both Morgan, who worked in the blacksmith shop, and the predecessor of the plaintiff, always called on Moore whenever the belt was off. Hawk, the foreman, testified that on the Saturday preceding the accident, at about 4 o'clock in the afternoon, when work in the blacksmith shop was about to cease, he went there, and, standing about 25 feet from the plaintiff and his helper, Parsons, since deceased, addressed them both, saying that the engine would be run after working hours, and the belt would be thrown off, and that Monday, when the bell rang to go to work, Moore should be called to put the belt on. He said that he gave that order because the belt had been repaired on the Friday preceding, but that he was not sure that either the plaintiff or Parsons he heard him, as the machinery was in motion, and was making considerable noise, and neither made any response. He said he was a carpenter, and had no special knowledge of machinery; that the belt was not taken off more than 12 or 15 times while the plaintiff was there; that when the belt was repaired, on the preceding Friday, it was made a little too short, which probably caused it to slip off when the plaintiff attempted to put it on; and that he never gave the plaintiff any instructions about his work at any time. George E. Noyes, a witness for the defendant, a machinist of experience, testified that he had never examined the machinery of the defendant carefully, but that it seemed to him that its general plan was good; that fast and loose pulleys are generally used where any part of the machinery is stopped periodically, and are sometimes, but not always, connected with forges; that it is always dangerous to put on a belt by hand when the machinery is in motion, and no one likes to do it, the only preventive being a loose pulley; but that in his shop he usually had boys to put on the belts by hand, and thought an ordinarily bright boy could learn to do such work in a day, by being shown how a few times. Moore gave testimony to the effect that on two occasions he was sent for to put on the plaintiff's belt,-once by the plaintiff, and the other time by Parsons; that it was his duty to attend to the belts generally; and that he always

*567

*564

took the belt off and put it on again when he repaired it, but never at any other time unless he was sent for. The engineer, Kline, a witness for the defendant, in describing the manner in which the plaintiff received his injury, stated that on the morning of the accident, after the machinery had been running four or five minutes, the plaintiff came into the engine-room, and said, "I wish you would come and help me with my belt," and that, after they got into the blacksmith shop, the plaintiff said, "How am I to get that belt back on this side of the pulley?" He said he then ascended the ladder, and threw the belt back on the right side, but could not put it on, and then came down the ladder, and said to McDade, "Hold up until I shut down." He then went into the engine-room, and shut off the steam, but the engine did not stop immediately; the momentum being sufficient to carry the fly-wheels around 8 or 12 times before the speed was checked. In the mean time, standing by his engine, he heard McDade scream, and went to see what the matter was. He stated that from the time he came down the ladder until the engine stopped was not greater than threequarters of a minute.

The plaintiff, on his cross-examination in rebuttal, testified to the following effect: He did not know whether putting on the belt was a part of his duty, but supposed it was, and acted accordingly. He again asserted that he had no idea of there being any serious danger in putting the belt on the pulley by hand,-not any more than in picking up a hammer from the floor. Speaking of the accident, he said that when Kline had attempted to put the belt on, and had failed, he came down the ladder, and said to him, "Go up and put it on whilst I slow up the engine," or, Go up the ladder, put the belt on, and I will slow the engine. He further stated that he did not attempt to put the belt on until the engine was slowed,-whether it was sufficiently slowed or not he did not know; but that he understood the engine was to be slowed up in order to enable him to put the belt on.

At the conclusion of the testimony the defendant renewed its motion for a verdict, which motion the court overruled, and an exception was duly taken. Counsel for the defendant asked the court to grant 20 separate prayers for instructions to the jury, three of which the court granted in the language in which they were presented, ten were slightly modified, and seven were denied. The court, upon its own motion, gave one instruction. Under these instructions, verdict and judgment were rendered for the plaintiff for $6,195. The supreme court in general term affirmed that judgment. 5 Mackey, 144. Hence this writ of error.

Enoch Totten and W. D. Davidge, for plaintiff in error. W. A. Cook, C. C. Cole, and W. L. Cole, for defendant in error.

the general term of the court below never acquired jurisdiction of the case, and that as a consequence thereof this court is also without jurisdiction. In connection with the motion to dismiss, there is also a motion to strike out the bill of exceptions. The argument urged by the plaintiff ing support of both motions is that the rules and statutes prescribing the practice*and* proceedings for the supreme court of the District of Columbia in securing the review in a general term of that court of a judgment at a special term have not been complied with in this case. Neither of these motions can be sustained. We think the court in general term acquired jurisdiction of the case; and, as it comes here regularly from that court we shall proceed to consider it upon its merits.

There are seven assignments of error, which we will consider, not seriatim, but with reference to their relevancy to the issues presented by the record. These issues are: (1) Was the machinery with which the defendant worked defective and unsafe for the purpose for which it was used; and, more particularly, was the putting the belt on the large pulley by hand dangerous; or should there have been a loose pulley, upon which the belt could have been safely shifted by means of a lever? (2) Assuming that there was this defect in the machinery which made it dangerous, was the plaintiff ignorant of the defect, or of the danger connected with it? (3) Did the defendant, in failing to notify the plaintiff of the danger, have reason to believe the plaintiff was ignorant either of the nature of the machinery, or of the danger incident to its use? (4) Was the plaintiff guilty of such contributory negligence as as precluded a recovery?

The three instructions given by the court to the jury as requested by the counsel for the defendant were to the effect that, if the jury believed from the evidence that any one of the three following conditions or state of facts existed, the plaintiff could not recover: (1) That the accident would not have occurred but for the negligence or want of ordinary care and caution on the part of the plaintiff; (2) that the foreman of the shops, on the Saturday evening preceding the accident, ordered and directed the plaintiff to take the belt off the pulley, and to send on Monday morning for Moore to put it on, he was bound to obey the order directing him to send for Moore, and his not obeying it was such negligence as would prevent a recovery in this action; and (3) assuming that putting on the belt was attended with dan ger, the question to be determined by the jury was not whether the plaintiff knew of such danger, but whether a man of ordinary care and observation, in his situation, would have known it, as he must be presumed to possess that degree of intelligence, and that if, with such observation and care, he would have known the danger, then, in putting on the belt, he assumed all the risks incident thereto. instruction given by the court on its own motion was as follows: "If the jury find from the evidence that, after he was employed by the defendant, the plaintiff voluntarily, and without being required so

The