such highway or bridge in repair, will be equally liable for damages to an automobile or to an ordinary vehicle, resulting from such defect.

statutory provisions imposing liability upon | hold that a town, under obligation to keep towns, and hence as to such a vehicle the town of Foster was under no obligation to maintain said bridge in a safe condition for travel. This argument presents a question of law, and as it may be regarded as inci- [4] In the matter now under consideradentally within the scope of the questions ticn we say that, subject to the ordinary certified we will pass upon it. The General rules as to negligence of the parties, and the Assembly has by elaborate regulations pro- provisions as to the obligations of towns, vided for the legal use of automobiles upon the defendant is liable for injury to the the highways within the cities and towns plaintiff's automobile resulting from a deof the state. Automobiles probably exceed fect in, or from the insufficiency of, said in number all other vehicles of private loco- bridge, provided it is found that the use of motion upon our public streets and roads. a vehicle and load of 10 tons' weight is reaThey surely come within the general designa- sonable upon the kind of bridge which the tion of carriages, though probably they defendant should maintain at said location. should be held to differ in kind from the The papers in the case will be sent back carriages contemplated in said statutory to the superior court, with this decision cerprovisions, when the same were first enact-tified thereon, ed. In many respects the liability of an automobile to injury from a defective highway or bridge does not materially differ from that of a horse-drawn vehicle of the same weight. As to such particulars the burden upon a town in maintaining its roads and bridges safe and convenient for travel with automobiles is no greater than that which arises in travel with ordinary vehicles.

(262 Pa. 405)

CARLEY v. DEXCAR COAL MINING CO. (Supreme Court of Pennsylvania. Oct. 23, 1918.)

265(14)-DEATH

OF SERVANT-CONTRIBUTORY NEGLIGENCE- ·

PRESUMPTION.

In an action for the death of a servant, the presumption of his freedom from contributory negligence always obtains. 3. MASTER AND SERVANT 233(2) PLACE OF WORK CONTRIBUTORY NEGLIGENCE CHOICE OF WAY.

1. MASTER AND SERVANT 276(4)-ACTION FOR DEATH-CAUSE OF INJURY EVIDENCE. In some other respects their liability to In action for death of a mine engineer, where injury would seem to be much greater, and statement of claim alleged that while so emthe corresponding burden upon the townployed his clothing was caught on an unguarded would be largely increased, if it should be shaft projecting outside the engine house and held that towns must, without limitation, he was killed, evidence held to require a finding keep their highways and bridges reasonably that he met his death in the way alleged. safe and convenient, not only for ordinary 2. MASTER AND SERVANT carts and carriages, but also for automobiles. It is well known. that they are propelled by complicated machinery, subject to disarrangement. The surfaces of their wheels are covered with expensive tires, which may be injured by sharp substances or by some other materials upon the surface of a highway or bridge. Their wheels are particularly liable to side-slip, or skid, with injurious results, or to be impeded in their operations by the nature and condition of the surfaces of highways or bridges; and it is not unlikely that in other ways, unknown to the court, automobiles may be the subject of injuries to which the ordinary vehicle is not exposed. In this case the question has not been argued before us as to the obligations of towns, in the absence of special statutory provisions, to keep their high-all ways and bridges in such condition that automobiles may not be exposed to injury in the particulars of which we have spoken and as to which the liability to injury is peculiar to that type of vehicles. The question does not arise in this case, and we will leave it for determination in some case in which it may be directly involved. As to a defect in a highway or bridge, which would be as likely to cause injury to an ordinary horsedrawn vehicle as to an automobile, we will

An engineer employed in coal mine and killed by having his clothing caught in a shaft projecting outside engine house and within three feet of a bank, and who knew of place of accident, where that was the only way by which he could get to his work, was not guilty of contributory negligence in taking that way. 4. MASTER AND SERVANT 204(2)-ASSUMP

TION OF RISK-BITUMINOUS MINE ACT.

Under the Bituminous Mine Act, requiring dangerous mine machinery to be properly fenced off by suitable guard railing, the defense of assumption of risk is not open to an employer.

5. PLEADING

406(6) WAIVER OF DEFECTS-TRIAL ON STATEMENT OF CLAIM. Where statement of claim in action for death of a mine engineer sets forth facts bringAct, but does not specify the act, and defendant ing case within purview of Bituminous Mine takes no steps to have statement made more specific, he cannot object to trial of case in accordance with provisions of the act.

6. MASTER AND SERVANT 101, 102(10), [ dent; that as a result thereof his clothing 105(2)-FAILURE TO GUARD MACHINERY- was badly damaged, his shoes and socks torn

DEFENSE.

Under Bituminous Mine Act, requiring all dangerous mining machinery to be properly fenced off by suitable guard railing, neither the obviousness of the danger nor a usage of the business is a defense if the machinery causing the injury was in fact left unguarded.

off his feet, and blood and finger marks appeared under the shaft and on the ground around it; that from their location it was er ident he had been caught by and whirled around the shaft, striking the ground in the various places where the blood and marks appeared. One of the witnesses said they ap

Appeal from Court of Common Pleas, Cam-peared "where it [the shaft] twirled him bria County.

Trespass by Emma Carley against the Dexcar Coal Mining Company to recover damages for the death of plaintiff's husband. Verdict for plaintiff for $5,014, and judgment thereon, and defendant appeals. Affirmed.

Argued before BROWN, C. J., and STEWART, FRAZER, WALLING, SIMPSON, and FOX, JJ.

Philip N. Shettig and John H. McCann, both of Ebensburg, Michael J. McCann, and M. D. Kittell, of Ebensburgh, for appellant. J. J. Kinter, Leach & Leach, and Harvey Roland, of Ebensburg, for appellee.

down on the ground." The shaft had been revolving that morning, but at the time de ceased was discovered the belt had been thrown off the flywheel, and the shaft was not revolving, though the engine itself was still running. The space between the end of the shaft and the opposite bank was about three feet, but it was partially obstructed at that time by fallen earth and other débris. Deceased had to pass through this space in order to get to his place of work. After he was injured he was taken to his home, and thence to a hospital, where he died as a result of his injuries.

guarded; but, on defendant's objection that this evidence was incompetent, it was er cluded.

In addition to the foregoing, there was evidence relating to his earning power, his expectancy of life, his family relations, the extent of his injuries, and the cost of his SIMPSON, J. The statement of claim in burial. Plaintiff also offered to prove that it was dangerous to leave the shaft unguard this case averred that William Carley was an engineer employed by defendant in its bitu-ed, and that it was feasible to have had it minous coal mine; that while so employed his clothing was caught by a shaft projecting outside of the engine house, and he was whirled around the shaft and received injuries from which he died; that there was no covering, protection, or guard over said shaft; that, in addition to the duty to supply him with a safe place in which to work, it was defendant's duty under the act of assembly to provide belts, shifters, and other machinery and appliances and to guard dangerous machinery; that if the shaft had been properly guarded the accident would not have happened; that plaintiff is his widow; and that she, and their four named children, are entitled to recover damages from defendant for its negligence as aforesaid.

The act of assembly referred to is not named by date or otherwise, and no motion was made by defendant to have it definitely specified.

At the trial plaintiff's evidence tended to show that William Carley always had been a well man; that he was an engineer in defendant's bituminous coal mine; that he left his home on the day of the accident to continue his work for defendant; that no one saw the accident happen, but when he was found he was in the mine lying under an unguarded shaft which projected about 22 feet outside of the engine house; that he was fully acquainted with the place of the accí

Defendant thereupon moved for a nonsuit upon the ground, inter alia, that it had not been shown that it was negligent, either is not providing a safe place to work "or under the provisions of any statute of the commonwealth of Pennsylvania." The motion was denied, whereupon it offered no evidence. but submitted a point for binding instrue tions, "for the same reasons as set forth in the motion for a compulsory nonsuit." The point was refused, and the case submitted to the jury in a charge to which no exception was taken. The jury found for plaintif. A motion for judgment non obstante vere dicto was thereafter made and overruled, judgment entered on the verdict, and this appeal taken.

The only assignment of error is to the refusal to enter judgment non obstante veredic to, and the bases of the appeal are said to be three:

[1] 1. Can plaintiff recover in view of the fact that the circumstances of the case “leave the cause of the injuries open to one or more explanations consistent with the exercise of proper care on the part of the defendant." If there are such other explanations, they have not been made to appear either in the argument or the evidence. If there were such, the jury would have been the tribunal to decide the matter, for the alleged cause

Those de-

is fairly deducible from the facts presented. | fense under such circumstances.
Indeed, it is difficult, if not impossible, to un-
derstand how, under the evidence, the jury
could have reached any other conclusion than
that deceased met his death in the way plain-
tiff claimed he had.

cisions apply as well under the act of 1911
as under the act of 1905.
The judgment is affirmed.

(90 N. J. Eq. 37)

In re OWENS. (No. 45/466.)

1918.)

[2-4] 2. In view of plaintiff's knowledge of
the place of the accident, and his connection
with the work done there, "does the presump-
tion of freedom from contributory negligence
obtain"? It may be said that in case of (Court of Chancery of New Jersey. Nov. 29,
death that presumption always obtains.
Schæfer v. Consolidated Ice Co., 238 Pa. 367, 1. INSANE PERSONS 8-RESIDENCE.
370, 86 Atl. 193. If, however, appellant
means, does the fact of that knowledge con-
clusively establish contributory negligence,
then we answer that, as that was the only
way by which he could get to his work, he
was not contributorily negligent in taking
that way. Fortney v. Breon, 245 Pa. 47, 91
Atl. 925. And under the Bituminous Mine
Act of June 9, 1911, P. L. 756, the defense of
assumption of risk is not open to defendant.
Valjago v. Carnegie Steel Co., 226 Pa. 514,
75 Atl. 728; Fegley v. Lycoming Rubber Co.,
231 Pa. 446. 80 Atl. 870.

[5, 6] 3. When plaintiff declares under an
inapplicable statute, can she recover under
the applicable one after the statute of limi-
tations has run, and without even amending
her declaration? It is a complete answer to
this objection that it was not made a basis
for the request for binding instructions. The
allegation there was that no act of assembly
justified a recovery. Moreover, the state-
ment did not specifically refer to any act of
assembly, and defendant did not ask that it
be made more specific. Probably this was
due to the fact that the liability of defend-
ant was exactly the same under section 11
of the Factory Act of May 2, 1905, P. L. 352,
in reliance upon which it claims the state-
ment was drawn, and under article 8, § 4,
of the Bituminous Mine Act of June 9, 1911,
P. L. 756, to which the language used was
equally applicable, and under which the re-
covery was had. The former act provides
that-

"All
shafting
and ma-
chinery of every description shall be properly
guarded."

The latter act provides that-

"All machinery in and about the mines, from
which any accident would be likely to occur,
shall be properly fenced off by suitable guard
railing."

Under the former we held, in Jones v.
American Caramel Co., 225 Pa. 644, 74 Atl.
613, that neither the obviousness of the dan-
ger, nor a usage of the business, was a de-
fense if the machinery was in fact left un-
guarded. In Valjago v. Carnegie Steel Co.
and Fegley v. Lycoming Rubber Co., supra,
we held that assumption of risk was no de-

Although alleged lunatic may have had no
fixed purpose to remain in neighboring state
when she went there, her continuous residence
for four years, accompanied by statements that
it was her permanent home, renders it impos-
sible to regard her as a resident of this state.
2. INSANE PERSONS 58-LUNACY PROCEED-
ING-JURISDICTION.

Although Chancery Court may possess ju-
risdiction to entertain lunacy proceedings in
case of nonresident lunatic, who owns proper-
ty within the state, that jurisdiction should not
be exercised, unless some unsurmountable ob-
stacle exists, preventing the procedure contem-
plated by 2 Comp. St. 1910, pp. 2781, 2783, as
to appointment of guardians for resident or
nonresident lunatic by orphans' court.

LEAMING, V. C. October 2, 1918, a peti-
tion was presented to this court, alleging
that Anna M. Owens had become so far de-
prived of her reason as to render her unable
to care for herself or her property, and pray-
ing for the appointment of a commission in
the nature of a writ de lunatico inquirendo.
Pursuant to the prayer of the petition com-
missioners were appointed, and the writ was
ordered issued on that day. October 18, 1918,
was designated by the commissioners for the
hearing, and a precept was delivered to the
sheriff for that purpose. October 14, 1918,
a petition was presented to this court, signed