accepts the risk, he cannot complain if he is subsequently injured.

cover for certain groceries sold by McFall, the plaintiff, to Mrs. Gould, a married woman, for the support of herself and family. They were The presumption is that iron used in the construcnecessaries, and if actually sold as alleged, the tion of a part of a brake upon a car, in the absence of plaintiff would have had a right to recover, had testimony upon the point, was of good quality. A railroad or other employer is not an insurer of the he made the necessary proof. He took a judg- lives of the employés, nor required to exercise such ment by default, and this Court decided that such exhaustive care in the constant examination and overproof has not been made and reversed the judg-hauling of its machinery and works as would be inment. We see, however, no equity which should move us to award restitution.

We see no hardship in the case, and if there were, we prefer to hold to well-established principles. This was a voluntary payment and restitution must be refused.

compatible with the proper furtherance of business.

In actions against the employer, the burden of proof is on the employé. If he undertakes to trace the injury some negligent act which was its proximate cause he to the negligence of the employer, until he can show cannot recover.

Error to the Common Pleas of Schuylkill County.

Case, by Jeremiah A. Hughes against the Philadelphia and Reading Railroad Company, to recover for damages sustained by the plaintiff while acting as a brakeman in the employ of the defendant.

The case was tried before BECHTEL, J., and resulted in a verdict for plaintiff for $2500 and judgment thereon. The facts are stated in the opinion of the Supreme Court. Defendant took this writ, filing the following assignments of er

ror:

Master and servant-Responsibilities of former as to supply and maintenance of good implements-As to competent and careful fellow(1) The Court erred in not affirming the whole servants--Servant who continues to use appli- of defendant's fifth point: "That there is no ances with knowledge of imperfections presumed evidence in the case to show that the iron in the to assume the risk of injury therefrom-Rail-pin in the brake was bad, or that it was bad when road company-Injury resulting from car it was furnished to the railroad company. The brake. law presumes that the railroad company, defendant, has furnished suitable appliances and safe tools and machinery for its employés, and has employed competent inspectors to inspect their cars and appliances, and the burden is on the plaintiff, Hughes, to prove that the railroad com

It is the duty of a railroad company to exercise ordidary care in adopting, providing, and maintaining safe cars, with suitable appliances and machinery, for the transaction of their business by their employés. This does not require the very best machinery procurable, or that combining the latest devices or improve-pany, defendant, did not furnish safe tools, maments, but such as is reasonably safe and in common

use.

The company also owes to its employé the duty to use ordinary and reasonable care in the employment of his fellow-servants or employés, and to dismiss those whom they know, or in the exercise of ordinary diligence should know, to be careless or unfit for the places assigned them.

The employé, on the other hand, undertakes not only all the risks incident to his employment, but also those arising from the negligence of his fellow-employés in the same circle of employment.

chinery, and appliances for its railroad, and did not employ competent men to inspect the cars, machinery, and appliances." Answer. "We affirm this point, except that part which requests us to say that there is no evidence to show that the iron in the pin was bad; we leave you to ascertain what the evidence in this case shows and proves without any opinion from us, and from all the testimony before you."

(2) The Court erred in not affirming the defendant's eleventh point: "There is no evidence Moreover, if he knowingly and voluntarily under- in this case that the railroad company did takes to perform a specially dangerous work, by ope- not furnish suitable tools and appliances for the rating a machine obviously wanting in suitable use of their employés, of whom Jeremiah A. appliances for safety, he cannot afterwards complain Hughes, the plaintiff, was one at the time of the in case of injury in consequence thereof, that the ma-accident, and the plaintiff cannot recover." Anchinery was of a dangerous kind.

Similarly, if after a full and fair opportunity to be

come acquainted with the risk of his situation, he makes no complaint to his employer as to machinery which he knows to be wanting in appliances for safety, and takes no precaution to guard against danger, but

swer. Refused.

(3) The Court erred in not affirming the defendant's twelfth point: "That under all the evidence in this case Hughes, the plaintiff, cannot recover." Answer. Refused.

John F. Whalen and James Ellis, for plaintiff that if the operation of this brake was peculiarly perilous, he knew, or by reason of his long expe

D. C. Henning and F. W. Bechtel, for defend-rience ought to have known, the fact. He admits ant in error.

that he made no complaint whatever, and he continued in the company's service; the inference is irresistible, therefore, that he accepted the risks incident to this particular employment. He was not bound to risk his safety in the service of the company, and if he knew the brakes to be wanting in any appliance which would be a precaution against danger, it was his duty to decline to operate them; having undertaken the performance of duties he knew to be hazardous, he assumed the risks inci

March 19, 1888. THE COURT. The plaintiff, Jeremiah A. Hughes, was, at the time he received the injury complained of, on the 29th September, 1871, a brakeman in the employ of the Philadelphia and Reading Railroad Company, and in the performance of his duty as such employé. There was therefore, in the mere fact of the injury, no presumption of negligence on the part of the company, as in the case of a passen-dent to their discharge. ger; the burden of proving negligence rested In this view of the case, the peculiar construcupon the plaintiff.

the bolts, screws, pins, or other appliances belonging to the machinery of a car, en route, in order to detect any possible imperfections. A railroad or other employer is not required to exercise that exquisite and exhaustive care in the constant examination and overhauling of its machinery and works, which would be incompatible with the proper furtherance of business. (Whar. on Neg. 213.)

said, aside from the peculiar construction of the It is absurd, however, to suppose that in these brake, that the car was imperfectly constructed. inspections the company was required to remove But the point which was refused involves also the question of proper inspection and repair. It is undoubtedly the duty of railroad companies to exercise ordinary care in the maintenance of the machinery and tools which they put into the hands of their employés, and to institute proper, reasonable regulations for the safety of their employés in this respect; but this rule of duty must be taken in a practicable and reason- But is there any evidence that the injury comable sense. The company does not insure the plained of was attributable to a negligent inlife of its employés; the servant assumes, as we spection? Was there any defect in this brake have said, the ordinary risks of his employment, which any reasonable provision for inspection and if any defect in the tools or machinery placed would have disclosed? Bearing in mind that in his hands becomes apparent in their use, it is the burden of proof rests upon the plaintiff, is the duty of the servant to observe and report to there any evidence that the pin was defective? his employers, for the servant has means of dis- It was properly constructed; it was of the size covering defects, which the master may not used in all the brakes; the proof as well as the possess. If, however, the company employs com- presumption is that the iron was good, or was petent and skilful persons for the purpose of in- believed to be good. It was properly secured by spection, and affords them reasonable opportuni- a key, and had been in use for several months. ties and facilities for the work under proper in- It is conceded that the brake was in proper constructions, the company will not ordinarily be dition on the grade above Minersville, and the liable for the negligent performance of the work accident occurred, as we understand the case, by their employés, to a fellow employé, unless the only three or four miles distant from that place; company knew, or by ordinary diligence ought whilst the next place of inspection was at Cresto have known, of the defective manner in which sona, a short distance below. But, if the iron the inspection was conducted. We are clearly of was bad, was the defect such as might have been opinion too, that a brakeman and a car inspector detected upon any reasonable inspection? Was it are in the same circle of appointment, they co- such a defect even as could have been observed operate in the same business, and the former if the pin had actually been withdrawn and exknows that the employment of the latter is one of amined; or was the defect latent, such as could the incidents of their common service. But whilst not have been observed? Did the pin break at the performance of the duty of inspection must all? If it did, was it the result of accident or necessarily be committed in detail to the em- negligence? If the pin did not break, says the ployés, the general regulation is in the hands of plaintiff, it fell out from displacement of the key. the company, and it is the duty of the company Is there any evidence that the key had fallen out to provide suitable persons, in sufficient numbers, or been removed? Was the jury to guess at the at proper places, with reasonable opportunities to real facts of the case and to determine these accomplish the work. The evidence would seem questions of fact upon mere conjecture? The to show that there were three points for the in-plaintiff undertook to trace the injury to the neg. spection of these cars within twenty miles; at ligence of the company, and until he can show Schuylkill Haven, where the empty cars were some negligent act, which was the proximate inspected on their way to the mines; on the Gor-cause of his injury, he cannot recover. We don Plane, and at Cressona, where the loaded cars know that when Hughes stepped on the brake were inspected as they came from the mines; be- with his whole weight it went down, and that he sides other alleged inspections to which the cars went with it. But whether the pin broke from were subjected at the coal chutes, and by Daniel any defect which a proper inspection would have Grimm, who, it is said, had these cars in his special disclosed, does not appear; that it broke at all is charge. The inspections at these points were not not shown; nor is there any evidence that the minute or critical, they were limited to a hurried occurrence was owing to a dislocation of the key. examination of the most exposed and important It devolved upon the plaintiff to show negligence points; the cars were subjected to a thorough of the company, and that that negligence was the examination only when turned into the shop for proximate cause of the injury. In this he has repairs. Whether this provision of the company failed, and in the absence of proof on that point in view of the heavy grades along the road, and we cannot ascribe the accident to that cause. the number of cars to be inspected, was a reason- The judgment is reversed. ably adequate one, would, if the question were Opinion by CLARK, J. material, be for the determination of the jury.

TRUNKEY and GREEN, JJ., absent.

J. D. B., Jr.

Partition-Order of sale therein-Right of executor to execute When the Orphans' Court may appoint a trustee to conduct sale.

Under the Act of March 29, 1832, § 42 (P. L. 203),

the personal representative alone has the right to execute an order of the Court to sell real estate in partition, and he can only be deprived of this right by his own default, by refusal or neglect to act.

The authority given to the Orphans' Court by the Act of February 24, 1834, § 44 (P. L. 81), to appoint a trustee to conduct the sale, only arises where there is no legal representative, or where such representative is in default.

Although it is in the discretion of the Orphans' Court what amount of neglect on the part of the legal representative will forfeit his right to execute the order of sale, where the record shows a total absence of any neglect at all, it is error for the Court to pass him by and appoint a trustee.

Appeal of John F. Taylor, surviving executor of the last will and testament of Rebecca Fawkes, deceased, of Ann Dickinson, one of the heirs and legal representatives of the said decedent, and of John F. Taylor, guardian, from a decree of the Orphans' Court of Delaware County, appointing a trustee, to make sale of certain real estate in partition.

March 19, 1888. THE COURT. The 44th section of the Act of 1834 (Purd. 546, pl. 186) provides as follows: "Whenever any real estate The facts were substantially as follows: Pro- shall be ordered to be sold under proceedings in ceedings in partition were begun in the Orphans' partition, the Orphans' Court are hereby authorCourt of Delaware County, of the real estate of ized and required, in case of the neglect or reRebecca Fawkes, who died in March, 1855, hav-fusal of the executors or administrators to exeing first made and executed her last will and testament whereby she appointed John F. Taylor and James Lewis her executors, the last of whom was since deceased, leaving John F. Tay- By the 42d section of the Act of 1832 (Purd. lor sole surviving executor. The proceedings 545, pl. 185) it was provided that the Court may were begun by Ann Dickinson, one of the testa- on due proof of notice "to all persons interested tor's daughters, and had proceeded to the return make a decree authorizing and requiring the exof the rule upon the heirs, and the neglect or re-ecutors or administrators, as the case may be, to fusal of all to accept any part of the real estate expose such real estate to public sale at such time at the valuation or bid for the same. Whereupon and place and on such terms as the Court may the counsel conducting the proceeding asked that decree." an order of sale be issued to John F. Taylor, the surviving executor of Rebecca Fawkes. Some of the respondents in the partition, being of the heirs of testator, protested against this, assigning as their reason that the said John F. Taylor had on three separate occasions, on which he had acted as executor or administrator, failed and neglected to file his accounts, and praying the appointment of a trustee to make sale. John F. Taylor, the executor, thereupon presented a petition, stating that in the three instances alluded to by the respondents, he himself was the sole distributee of the estates, and that he had acted under the advice of counsel in omitting to file an

cute such order, or in case there be no executors or administrators, to appoint some suitable person trustee for the purpose of making such sale."

It is perfectly clear that in the first instance if there are either executors or administrators, in cases of proceedings in partition in the Orphans' Court, it is the duty of the Court to appoint them to execute the order of sale. As the Act of 1832 made no provision for the cases in which there were no executors or administrators, or in case of their neglect or refusal, the 44th section of the Act of 1834 was passed to correct the deficiency in the legislation. Under these Acts it is not to be questioned that if there were either executors or administrators they were entitled to the appointment, and such has been the uniform practice and the clear understanding of the bench and

The decree of the Court below, appointing Milton Lewis trustee to execute the order of sale, is reversed at the cost of the appellees, and it is ordered that the order of sale be granted to the appellant upon his filing the proper bond. Opinion by GREEN, J. TRUNKEY, J., absent.

S. H. T.

bar throughout the Commonwealth. That such | declares to whom the order shall be granted, and has been the understanding of this Court is quite he therefore had a statutory title to the appointplain. Thus we said in Snyder's Appeal (12 ment. The circumstances did not exist which Cas. on p. 169), STRONG, J., "And if the prop- would authorize the Court to go outside the pererty be not accepted at the valuation, to whom is sonal representatives of the decedent in appointthe order of sale to be committed, to the personal ing a trustee, and hence the appointment of such representatives of the father or mother? To one a person was without legal authority. or the other it must be, for it can only be made to a trustee where there is no executor or administrator or when such personal representative refuses to act." And in Neeld's Appeal (20 P. F. S. on p. 117) SHARSWOOD, J., said: "Whether the executor or administrator of the estate of a decedent has neglected or refused to execute the order of sale in partition so as to authorize the Court, under the 44th section of the Act of February 24, 1834, to appoint some suitable person as trustee for the purpose of making such sale, Jan. '87, 156. evidently falls within this category." In this latter case we held that the appointment was largely within the discretion of the Orphans' Court, and that we would not interfere with that discretion unless in case of its palpable violation. In the present case the appellant, by his counsel, applied, at the return of the rule on the heirs While the prohibition of the Act of February 19, and the refusal of all to accept, to have the order 1849, § 10 (P. L. 83), forbidding railroad companies of sale issued to him. Some of the heirs opposed from "passing through any dwelling-house in the occupancy of the owner or owners thereof, without his, the granting of the order to him, and filed a her, or their consent," embraces some of the curtilage paper presenting certain objections to the ap- connected therewith; how much of the curtilage is expointment of the appellant. Thereupon the ap-empted must be determined in each case by a considpellant filed an answer fully responding to the objections and showing them to be without the slightest merit.

The appellant was then clearly entitled to the appointment, as he was the sole executor of the last will of the decedent, there being no cause for his rejection. The appellant presented a petition to the Court setting forth the facts of the partition proceedings, and that it had become necessary to issue an order of sale, and praying that such order might be issued to him, he being the sole surviving executor of the decedent and having his sureties ready in Court to enter into a bond for the full amount required. But the Court refused to grant him the order, and appointed a stranger whose appointment was not asked for by any of the heirs.

In this situation of the record all the facts appear before us and we are not obliged to concede anything to the undisclosed discretion of the Court. The appointment of any person other than the appellant, in the circumstances which appear of record, was a clear disregard of a positive statutory provision, and it must therefore be treated as a palpable and gross violation of the discretion intrusted to the Court, within the meaning of our decisions on that subject. There was no reason whatever why the order of sale should not be issued to the appellant. He came clearly within the provisions of the law which

February 7, 1888.

Damon's Appeal.

Railroad law-Construction of railroads—Prohibition to take dwelling-houses-Curtilage— Act of February 19, 1849.

eration of what is necessary for a reasonable and
proper enjoyment of the house as a residence in view
of its location and surroundings.

tion of it which is necessary to the enjoyment
of the
The amount of such curtilage is limited to that por-
house, not to that which was desirable, or convenient,
or which depended alone upon the will of the owner.

un

The route of a railroad company passed through ground adjoining, but not within the same inclosure as a dwelling-house. The owner asked an injunction to restrain the construction of the road. The Master found that the route of the carriage-way was changed, that the railroad at the nearest point was more than a hundred feet from the house and did not interfere with access thereto, nor with access and use of a spring-house, which was separated from the house by the railroad. No outbuilding was taken, and the railroad was not between the house and the barn: barn was fifty feet distant from the railroad, and the

Held, that upon the above facts the Court below properly refused to grant the injunction.

Appeal of Albert F. Damon from a decree of the Common Pleas of Delaware County, dismissing a bill in equity filed by him for a perpetual injunction.

Bill in equity, between Albert F. Damon, complainant, and the Baltimore and Philadelphia Railroad Company, defendant.

The bill alleged that the complainant is the owner and occupant of a mansion, dwellinghouse, and tract of land situate in Darby Township, and has been for the past twenty-five years.