* *

other houses, outbuildings, stables, sheds, and stated the condition upon which the gift structures of whatever kind thereon situated over depended and the time when the gift and connected with the business which I and my son have carried on there under was to take effect, by the word "then" inthe name of J. C. Philbrick & Son, and also the troducing the clause, the will proceeds, "at furniture, utensils, fixtures, and apparatus, the decease of the survivor of my said daughtogether with the personal property of every ters"-words which serve no useful purpose kind therewith connected and made use of in conducting said business, excepting the horses, and to which no particular significance could carriages, harnesses, robes, blankets, and other have been attached. The draftsman then inpersonal property connected with the stables or serts, "or at the decease of said grandchild, belonging thereto which have heretofore been Huldah Salter, should she survive them and bequeathed unto my said son, Frank A. Phil- leave no issue living at her death," following brick, by this will." with the designation of the beneficiaries, "unto my heirs."

This bequest to Frank last mentioned was made by the third item of the will, but was made upon the condition that Frank's interest in certain other personal property should be given by him to the testatrix's daughters

or the survivor of them.

Upon this clause is raised the doubt as to the title intended to be given to Huldah. It is claimed that the effect of it is to cut down the fee simple explicitly given her and to make the estate a fee determinable upon her death without issue living, in which case the gift over was to take effect. But this con

ing the distinct provision of the same clause by which the gift to the heirs is conditioned upon Huldah's failure to survive the life

This hotel business had been a family affair, carried on by the husband and father, and by his widow and son after the death of the original owner. The testatrix's pur-struction cannot be adopted without rejectpose was to keep the ownership of all the property, real and personal, so that the business might be carried on after her death in a similar manner. Having given her daughters only a life estate in the property, the testatrix provides for the remainder after the termination of those estates in the following language:

"And upon the decease of my said daughters, Fannie W. Carter and Carrie P. Philbrick, I give, devise, and bequeath the said undivided third part of the Farragut and Atlantic House property, the furniture and personal property thereto belonging, unto my grandchild, Huldah Salter, if she be then alive, or to her child or children if she should leave any surviving her then living, and to her and their heirs.'

This language explicitly, unmistakably, and technically conveys to Huldah the estate in fee simple, upon the sole condition that she survive her mother and aunt. Having so survived-performed the condition-Huldah claims the estate. Whether the testatrix intended she should have the estate so explicitly and technically given is the main question in controversy.

As the will is written to this point, the only question open was the disposition of the estate in case neither Huldah nor any child of hers survived the testatrix's daughters, who had already been made residuary legatees. The clause naturally to be expected in the will is a provision for the possible contingency of Huldah's childless death during the existence of the life estates. For this the will proceeds to provide:

tenant.

There is no language in the will which can be construed to constitute Huldah a tenant for life, or, except in case of Huldah's decease during the life tenancy, to make a devise to her children. The estate

claimed to be created is a peculiar one, if
there can be such, and the existence of a ti-
tle of such a character would be likely to
hamper the harmonious conduct of the busi-
ness as a family enterprise, as contemplated
by the testator. If there had been a purpose
to create such a title, with the wealth of
detail in technical
technical expression elsewhere
found in the will, it is probable such purpose
would have been definitely set forth at
length in the clause making the gift to
Huldah. The weight of the explicit language
giving a fee, as evidence of the testator's
purpose, is not overcome by the contradic-
tory terms of the clause whose expressed
purpose was to dispose of the estate in case
Huldah did not get it.

In support of the opposite conclusion, it is said that effect must be given to every word and clause of a will. But no construction can give effect to all the self-contradictory limiting clause, as has already been suggested. It is also suggested that:

"The last clause, or branch of a clause, is deemed to show the intention of the testator with more certainty than a prior clause in the will." Sheafe v. Cushing, 17 N. H. 508, 512.

But in this early case the rule is modified by the suggestion that:

"In construing a will which contains conflicting clauses or language, those parts expressed with technical precision may be regarded as declaring the testator's intention with greater certainty than those which are less formal.” Id. 511.

"But if my said grandchild, Huldah Salter, should die before either of my said daughters, Fannie W. Carter and Carrie P. Philbrick, and leave no issue living at the decease of the survivor of my said daughters, then I give, devise, and bequeath said property, real and personal." This condition upon which the gift over is made to depend (the prior death of Huldah without children surviving) having failed, Here the estate in fee is created with techordinarily the inquiry to whom the testator nical accuracy. A possible determinable fee intended in that event to give the property is inferable only from language inaccurately would be useless and unnecessary. Holt v. used when another subject was under conBurns, 77 N. H. 271, 90 Atl. 969. Having sideration. The value of the rule might be

Case by Jennie S. Caverhill, as adminisAs Huldah takes an estate in fee simple, tratrix of Henry Caverhill, deceased, against nothing can pass to "my heirs" under the the Boston & Maine Railroad, for causing concluding clause of paragraph 7 of the will, the death of decedent, who was employed and it is unnecessary to consider the ques- as a section man by defendant. Plaintiff had tion, which has been elaborately argued, a verdict, and the case was transferred on whether the testatrix meant as devisees defendant's exceptions to the denial of mo. those who were her heirs at her death, or her next of kin when the event occurred. All persons claiming under those who were Mrs. Philbrick's heirs at her death and all who are now next of kin have been made *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

killed by one of two of defendant's trains | excluded as incompetent. The argument was which met and passed a spot where decedent plainly intended to mislead the jury, and to was at work, and that if the engineer of either lay before them facts which could not be in train had exercised ordinary care, the ac- evidence. cident would not have occurred. Exceptions sustained, and new trial granted.

Eastman, Scammon & Gardner, of Exeter, for plaintiff. Kelley & Hatch and Page, Bartlett & Mitchell, all of Portsmouth, for

defendant.

PARSONS, C. J. By the federal statute, whose application to the case is understood

several states,

to be conceded, the defendants, common
carriers by railroad, were made liable, "while
engaging in commerce between any of the
to any person suf-
fering injury while he is employed by such
carrier in such concern, or, in case of the
death of such employé, to his or her per-
sonal representative,
such injury
or death resulting in whole or in part from
the negligence of any of the officers, agents,
or employés of such carrier." 35 U. S. Stat.
p. 65, § 1.

*

[1] There was evidence that the intestate's death was due to the careless operation of the meeting trains by the engineers in charge of them. The federal act abolishes the defense of fellow service; and whatever risks the deceased assumed as to the defendants' method of doing business, he did not assume the risk of injury from the negligence of another employé. For an injury so caused, the statute expressly makes the employer liable. There was therefore no error in the refusal to order a nonsuit or to direct a verdict because of the absence of evidence of negligence for which the defendants were bound to respond as a cause of the injury. The contention that the deceased was not employed in commerce between the states has not been argued here, is understood to be abandoned, and has not

been considered.

[2] The argument of the plaintiff's counsel to the jury, that the verdict asked was not a very serious matter to the railroad, "taking from them a few coppers,

Whether it was easy or difficult for the defendants to pay, whether the amount claimed was to them mere loose pocket change, "a few coppers," or their entire estate, were matters foreign to the issues before the jury. The defendants protected their rights by the exception. It then rested with the plaintiff to explicitly withdraw the improper suggestion and to obtain a finding of fact from the trial court that the trial was not thereby rendered unfair. Bullard v. Railroad, 64 N. H. 27, 32, 5 Atl. 838, 10 Am. St. Rep. 367; Story v. Railroad, 70 N. H. 364, 48 Atl. 288.

Defendants' exception sustained; new trial granted.

YOUNG, J., did not sit. The others concurred.

(245 Pa. 507) COMMONWEALTH ex rel. RILEY, Burgess, v. DURKIN et al. (Supreme Court of Pennsylvania. 1914.) ELECTIONS (186*)-BALLOTS-DESIGNATION

May 22,

OF CANDIDATES FOR FULL AND FOR UNEX-
PIRED TERMS.

Where the electors at an election to choose four for full terms, failed to designate on their six councilmen, two to fill unexpired terms and ballots, as required by Act of May 22, 1895, P. L. 109, § 4, that they voted for two of the candidates for the unexpired terms, so that it was for the unexpired terms, the election was inimpossible to tell who of the six were elected effective.

[Ed. Note.-For other cases, see Elections, Cent. Dig. § 159; Dec. Dig. § 186.*]

Appeal from Court of Common Pleas, Luzerne County.

the relation of John Riley, burgess of the Quo warranto by the Commonwealth, on borough of Sugar Notch, to oust Thomas Durkin and others from the office of borough councilmen. From judgment for relator, defendants appeal. Affirmed.

At the municipal election of 1913, in the borough of Sugar Notch, there were six councilmen to be elected; two for a term of two years, to fill unexpired terms, and four for the term of four years.

The defendants demurred to the suggestion for the writ of quo warranto; the court overruled the demurrer and entered judgment for the commonwealth.

but it means a good deal to her," exceeded the limit of legitimate advocacy. Exception was duly taken. The statement, "That is another way of saying that money can never bring back her husband to her, that is all I mean by it," was not a withdrawal of the intimation that the damages asked were a small amount to the defendants. Whatever the rule of damages may be, or to what extent that rule may differ from that prescribed by New Hampshire legislation (P. S. c. 191, § 12), there is nothing in the federal statute making the defendants' Thomas F. Farrell, John McGahren, and ability to pay material upon the questions H. L. Freeman, all of Wilkes-Barre, for apof liability or amount. It does not appear pellants. Evan C. Jones, John T. Lenahan, that evidence upon this point was admitted R. B. Sheridan, and M. F. McDonald, all of or offered. If offered, it would have been Wilkes-Barre, for appellees.

and

Argued before BROWN, MESTREZAT, POTTER, STEWART, MOSCHZISKER, JJ.

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

PER CURIAM. At the election held in | amount of smoke and soot, and there was no the borough of Sugar Notch on November 4, evidence that would sustain a finding of neg1913, two of the councilmen to be elected ligent or unskillful operation. An adjoining were to fill unexpired terms caused by death. landowner cannot recover for inconvenience By section 4 of the act of May 22, 1895 (P. or loss occasioned by smoke, noise, or viL. 109) it was necessary for the qualified brations, which result from the operation of electors to designate on their ballots that a railroad in a lawful manner without negthey voted for two persons named thereon ligence, unskillfulness or malice. Penna. to fill unexpired terms. This was not done, Railroad v. Marchant, 119 Pa. 541, 13 Atl. and it was impossible to tell from the ballots 690, 4 Am. St. Rep. 659. cast who of the six receiving the majority of the votes cast had been elected for the unexpired terms. These were to be filled in accordance with the provisions of the act of 1895. The act of June 19, 1911 (P. L. 1047) makes none for them. This was the correct view of the learned court below, and the judgment of ouster is affirmed.

PER CURIAM. This appeal is from the refusal of the court to take off a nonsuit, entered in an action to recover damages alleged to have been caused to plants in plaintiff's greenhouses by the emission of smoke, soot, and gas from the defendant's engines. On the line of a branch road, and in front of plaintiff's houses, the defendant maintained a siding, on which engines at times stood while the engineers were awaiting orders. The smoke and soot, especially when the standing engines were coaled, was deposited on the glass of the houses, and obstructed the light and interfered with the growth of plants. It was conceded at the trial that the engines were equipped with all the known appliances in general use to reduce the

The judgment is affirmed.

(245 Pa. 551)

YOUNG v. PENNSYLVANIA R. CO.
(Supreme Court of Pennsylvania. May 22,
1914.)

APPEAL AND ERROR (§ 1064*)-HARMLESS ER-
ROR-INSTRUCTIONS AMOUNT OF RECOVERY.

A plaintiff, dissatisfied with the amount of a verdict in his favor, could not complain on appeal that the instructions directed the jury that plaintiff could not recover more than the amount of damages claimed in the declaration.

[Ed. Note.-For other cases, see Appeal and Dig. & 1064;* Fraudulent Conveyances. Cent. Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. & 1002; Trial, Cent. Dig. §§ 475, 525, 528, 553.]

Appeal from Court of Common Pleas, Blair County.

Trespass by Blair B. Young against the Pennsylvania Railroad Company to recover damages to growing timber by fire. From a judgment for plaintiff for less than claimed, he appeals. Affirmed.

Argued before FELL, C. J., and BROWN, ELKIN, and MOSCHZISKER, JJ.

Marion D. Patterson, of Hollidaysburg, for appellant. Daniel J. Neff, A. J. Riley, and J. D. Hicks, all of Altoona, for appellee.

PER CURIAM. The plaintiff is dissatisfled with the amount of the verdict which he obtained in an action for damages for injury to growing timber by fire, and has assigned as error the instruction by the court that the verdict should not exceed the amount of loss claimed in the declaration. It is not urged in support of the assignment that a recovery could have been sustained for an amount larger than that claimed in the declaration, but that any reference to the amount was prejudicial to the plaintiff and ground for reversal. This view is based on a misconception of the reasons for reversals on appeals by defendants in cases where the plaintiff's counsel or the court has directed the attention of the jury to the amount of damages claimed in the declaration, and in which it has been said that such claims do not furnish a proper measure of damages, and the statement of them tends to mislead the jury by suggesting an amount not supported by the evidence. These decisions have no application to this case. The judgment is affirmed.

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

(245 Pa. 501)

PODONA v. LEHIGH VALLEY COAL CO. (Supreme Court of Pennsylvania. May 22, 1914.)

1. APPEAL AND ERROR (§ 1039*)-HARMLESS ERROR-STATEMENT OF CLAIM.

That plaintiff's statement of claim alleged that defendant was negligent in failing to provide a safe place of ingress and egress to and from the mine where plaintiff, the employé of an independent contractor, was injured did not require a reversal, where defendant's counsel understood that by the word "safe" was meant "practical reasonably safe," and the case was tried on the theory of the furnishing of a reasonably safe place.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 4075-4088; Dec. Dig. § 1039.*]

2. MASTER AND SERVANT (§ 332*)-EMPLOYÉ OF INDEPENDENT CONTRACTOR-NEGLIGENCE -EVIDENCE-QUESTION FOR JURY.

Where, in an action by the employé of an independent contractor for injuries from his head coming in contact with the low frame of a door in a mine while he was being brought from his work on defendant's car, there was evidence that frequently the doorframe could not be seen because of smoke, and plaintiff testified that because of smoke and steam he had never seen it, the question whether defendant was negligent in respect to the construction of the doorframe, was for the jury.

ligence in raising his head to a dangerous point was for the jury.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1274-1277; Dec. Dig. § 332.*]

Appeal from Court of Common Pleas, Luzerne County.

Trespass by John Podona against the Lehigh Valley Coal Company, for personal injuries. From judgment for plaintiff, defendant appeals. Affirmed.

The facts appear in the following opinion of Garman, J., sur defendant's motion for a new trial and for judgment n. o. v.:

The plaintiff, John Podona, was employed, on 29th March, 1909, for the Portland Contracting Company, in a gangway of the defendant's mine. He worked at loading rock and had been employed there for about three weeks.

To get to his place of work, he was taken into the mine down a slope in a car, and when going home from work was taken up the slope in the car. On said date when he was being taken up the slope, his head collided with the doorframe and he sustained very serious injuries. He claims that he never saw the doorway because at all times when he had passed it, it was full of smoke.

The motion for new trial is based on the following reasons: First, the verdict is against the law; second, the verdict is against the evidence; third, the court erred in refusing to affirm defendant's points. The motion for judg8ment non obstante veredicto is based upon our refusal to give binding instructions.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 1274-1277; Dec. Dig. 332.*]

3. PLEADING (§ 317*)-BILL OF PARTICULARSACTION FOR INJURIES FROM NEGLIGENCE.

Where plaintiff's statement of claim does not sufficiently specify the particulars relating to the negligence complained of as the cause of his injury, the defendant should demand a bill of particulars setting forth the information desired.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 954-962; Dec. Dig. § 317.*] 4. MASTER AND SERVANT (§ 321*)-EMPLOYÉ OF INDEPENDENT CONTRACTOR.

Where a mining company undertakes to convey the employé of an independent contractor to and from his work in a mine, it owes him the same duty to furnish a reasonably safe means of ingress and egress that it owes to its own employés.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 1262; Dec. Dig. § 321.*] 5. TRIAL (§ 191*) — INSTRUCTIONS - ASSUMPTION OF FACTS.

The defense relies upon certain propositions. [1] First. "No negligence was alleged or shown." The objection that no negligence was alleged is based upon the language of plaintiff's statement which, in so far as it relates to defendant's negligence is as follows: "That it became and was the duty of the said defendant company to provide a safe ingress and egress for all who were lawfully employed in the said mine." "The said company was negligent in not so constructing the said door that the frame thereof would not injure one lawfully ascending or descending the said slope." "The plaintiff alleges that the defendant was negligent in not furnishing a proper car for persons lawfully ascending and descending the said slope."

While the language of the statement is undoubtedly too broad, still it was not submitted to the jury and the case was tried on the theory of the master furnishing to the servant a reasonably safe place. As counsel for defendant understood that the legal "safe place" is the practical reasonably safe place, no harm could be done to the defendant by the breadth of the claim. The cases cited to sustain defendant's contention are where the trial court submitted to the jury the question of safety without qualification. The difference is wide; in such cases the jury might infer absolute safety to be the rule; here counsel for both plaintiff and defendant knew otherwise. It would be the excess of technicality and a practical denial of justice to deprive plaintiff of his action merely because his counsel in his statement used the language quoted, when the language included plaintiff's claim and no one was injured by the form of expression.

Where, in an action for injuries to an employé of an independent contractor from his head striking against a doorframe while he was being brought from work in a mine on defendant's car, the plaintiff testified that by reason of smoke and steam in the passageway he had no opportunity to observe the height of the doorframe, an instruction which assumed that he had such opportunity was properly refused. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 420-431, 435; Dec. Dig. § 191.*] 6. MASTER AND SERVANT (§ 332*)-EMPLOYÉ OF INDEPENDENT CONTRACTOR CONTRIBU- [2] As to the allegation that proper car was TORY NEGLIGENCE-QUESTION FOR JURY. not furnished by defendant to the persons lawWhere, in an action for injuries to an em- fully ascending and descending the slope, we ployé of an independent contractor from strik- find that on the trial no evidence was offered to ing his head against a doorframe while he was sustain the allegation, and it cannot be seriousbeing brought from work in a mine in defend- ly argued that because it was alleged and not ant's car, plaintiff testified that he had no proved the plaintiff is out of court. But, deknowledge of the height of the frame, the ques- fendant argues that, even conceding, "for the tion whether he was guilty of contributory neg-sake of argument only, that the declaration aver*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes