Where a young man shortly after becoming of age conveyed his property for a grossly inadequate sum, while so ill that it was not believed that he could recover, to a woman who had been a member of the household since the grantor was four months old, who had always been his nurse, instructor, and manager of his property, and in whom he confided, the burden of proof is upon the grantee to show that the transaction was fair and honest, and that the deed was not procured by undue influence: Worrall's Appeal, 110 Pa. St. 349. A conveyance by a nephew, a simple, ignorant, young man, to his uncle, an attorney at law, for an inadequate consideration, is presumptively obtained by undue influence: Hall v. Perkins, 3 Wend. 626. In Pressley v. Kemp, 16 S. C. 334, 42 Am. Rep. 635, it was held, however, that a voluntary conveyance by an aged, feeble, and unmarried woman of her property which she had previously willed to charities, to a young unmarried man, twelve days before her death, in whose family she was living and to whom she was strongly attached, and who had acted as her agent, is not presumptively void as having been obtained through undue influence.

Generally, whenever there is great weakness of mind in a person execut ing a conveyance of land, arising from age, sickness, intoxication, or any other cause, although not amounting to absolute disqualification, and an inadequate consideration, imposition or undue influence will be presumed: Moore v. Moore, 56 Cal 89; Allore v. Jewell, 94 U. S. 506; Fishburne v. Ferguson, 84 Va. 87. So when a note is taken from an habitual drunkard of weak intellect, the burden of proof is upon the person taking it to show a fair case, good consideration, and lack of undue influence: Hale v. Brown, 11 Ala. 87. When a person who is imbecile from habitual intoxication executes a voluntary and absolute deed of gift of all his property to his cousin, to the exclusion of his half-sisters, a presumption of undue influence arises, which must be rebutted by clear proof by the grantee before the deed will be allowed to stand: Samuel v. Marshall, 3 Leigh, 567.

SMITHWICK V. HALL AND UPSON COMPANY.

[59 CONNECTICUT, 261.]

NEGLIGENCE PRESUPPOSES A Duty of Taking CARE, and this, in turn, presupposes knowledge or its legal equivalent.

MASTER AND SERVANT-CONTRIBUTORY NEGLIGENCE — DANGEROUS POSITION. — A servant by changing his position at work, contrary to orders and after a warning of danger, voluntarily takes the risks of all perile which a man of ordinary care in his place ought to have known or could reasonably have anticipated; but as to dangers arising through the master's negligence from other sources, dangers which the servant was not bound to anticipate, and of whose existence he had no knowledge, he takes no risk and assumes no duty of taking care; and if injury results to him from such dangers, he is not guilty of contributory negligence. CONTRIBUTORY NEGLIGENCE, WHAT CONSTITUTES. — An act or omission of a party injured, to amount to contributory negligence, must be negligent, and in the production of the injury, it must operate as a proximate cause or one of the proximate causes, and not merely as a condition. MASTER AND SERVANT-RISK ASSUMED. Where a servant has full knowledge of, and is abundantly cautioned against certain sources of, danger, and voluntarily neglects such warnings, and takes the risk of such per

ils and dangers, and is then injured through the negligence of the master, from an entirely different source of danger, of which he knew and could know nothing, and of whose existence it was the duty of the master to warn him, his failure to heed the warning given does not constitute contributory negligence as to the injury received. CONTRIBUTORY NEGLIGENCE, WHAT CONSTITUTES. -An act or omission must contribute to the happening of the act or event causing the injury, to constitute contributory negligence; and if the act or omission merely increases or adds to the extent of the loss or injury, it will not have that effect, though it may affect the amount of damages to be recovered. J. O'Neill and G. H. Cowell, for the plaintiff.

G. E. Terry, for the defendants.

TORRANCE, J. The general question reserved for our advice in this case is, whether the plaintiff, upon the facts, found is entitled to the substantial damages, or only to the nominal damages found by the court below.

Inasmuch as that court has expressly found that the negligence of the defendant caused or contributed to the injury for which the plaintiff seeks to recover, the decision of the above general question depends upon this single point, namely, whether the acts and conduct of the plaintiff as set forth upon the record constitute or amount to such contributory negligence on his part as will bar his right to substantial damages. The facts found, so far as they bear upon the question for decision, are, in substance, the following:

The plaintiff was a workman in the service of the defendant, and at the time of the injury complained of was engaged in helping to store ice for the defendant in a certain brick building. In doing this work the plaintiff stood upon a plat form about five feet wide and seventeen feet long, raised fifteen feet above the ground, and extending from the west side of the building easterly to a point about two feet east of the door or aperture through which the ice was taken into the building. A stout plank of suitable height and strength extended along the outer side of the platform as far as the west side of the door, and served as a protective railing or guard to that portion of the platform. In front of the door, and east of it the platform was without guard or railing of any kind. A short time prior to the injury, the foreman of the defendant stationed the plaintiff on the platform just west of the door and inside the railing, and showed him what his duties were there, and told him "not to go upon the east end of the platform east of the slide and door, as it was not safe to stand

there." He did not tell the plaintiff why it was not safe, but the danger which he had in mind was the narrowness and un' railed condition of the platform and the liability by inadvertence to mistep or fall or slip off, the latter being aggravated by the liability of the platform to become slippery from broken ice. These dangers were all manifest. The peril resulting from the accident which happened to the building was not in contemplation.

After the foreman went away, the plaintiff, in spite of the orders so given to him, and for reasons of his own apparently, went over to the east end of the platform and worked there. It is found that there was no sufficient reason or excuse for the change of position. One of his fellow-workmen, seeing the plaintiff in that place, told him that "it was not safe, and to stand on the other side"; but the plaintiff, notwithstanding such warning, remained at work there.

While so at work the brick wall of the building above the platform, in consequence of the negligence of the defendant, gave way, the brick falling upon the platform, and thence to the ground. The plaintiff was struck by portions of the descending mass, and fell to the earth. He was either knocked off, or his fall, in the condition in which he stood, was inevitable; indeed, had he not fallen when he did, his injuries, which were very serious, would have been worse. Most of the injuries which he actually sustained were occasioned by the fall.

The plaintiff had no knowledge that the wall would be likely to fall or was in any way unsafe, and it is found that 66 no fault or negligence can be imputed to him in this regard."

In contemplation of the peril from the falling wall, it is found that "the spot where the plaintiff stood could not have been considered more dangerous than the place where he was directed to stand, though in fact most of the brick fell upon the side where he stood, and the result demonstrated, therefore, that the other side would have been safer in the event which occurred."

Upon these facts the defendant contends that the plaintiff, in going to and remaining on the east end of the platform, contrary to the orders and in spite of the warning given him, and in view of the obvious and manifest danger in so doing, was guilty of such contributory negligence as bars him of his right to recover more than nominal damages.

If the plaintiff's injuries had resulted from any of the perils

and dangers attendant upon the mere fact of his standing and working on the east end of the platform, which were obvious and manifest to any one in his place, which were in the mind of the foreman when he told the plaintiff not to go there, and in view of which his fellow-work man warned him, then this claim of the defendant would be a valid one. But, upon the facts found, it is without foundation.

The injury to the plaintiff was not the result of any such dangers, but was caused through the negligence of the defendant by the falling walls. This was a source of danger of which he had no knowledge whatever. He was justified in supposing that the wall was safe, and would not be likely to fall upon him, no matter where he stood on the platform. He had no reason to anticipate even the slightest danger from that source before or after he changed his position. This being so, he could be guilty of no negligence with respect to this source of danger by changing his position contrary to orders; for negligence presupposes a duty of taking care, and this, in turn, presupposes knowledge, or its legal equivalent.

In

With respect to that danger, the plaintiff, upon the facts found, must be held to have acted as any reasonably careful man would have acted under the same circumstances. changing his position contrary to orders, he voluntarily took the risk of all perils and dangers which a man of ordinary care in his place ought to have known or could reasonably have anticipated; but as to dangers arising through the defendant's negligence from other sources,-dangers which he was not bound to anticipate, and of whose existence he had no knowledge, he took no risk, and assumed no duty of taking care. It was the duty of the defendant, on the facts found, to warn the plaintiff against the danger from the falling wall.

Now, the act or omission of a party injured which amounts to what is called contributory negligence must be a negligent act or omission, and in the production of the injury it must operate as a proximate cause, or one of the proximate causes, and not merely as a condition.

In the case at bar the conduct of the plaintiff, as we have seen, was, with respect to the danger from the falling wall, not negligent for the want of knowledge or its equivalent on the part of the plaintiff.

Nor was his conduct, legally considered, a cause of the injury. It was a condition rather.

If he had not changed his position he might not have been hurt. And so, too, if he had never been born, or had remained at home on the day of the injury, it would not have happened; yet no one would claim that his birth or his not remaining at home that day can in any just or legal sense be deemed a cause of the injury.

The court below has found that the plaintiff's fall in the position in which he stood was due to the giving way of the wall, and that most of his injuries were occasioned by the fall. His position there, upon the facts found, can no more be considered as a cause of the injury, than it could be in a case where the defendant, in doing some act near the platform without the plaintiff's knowledge, had negligently knocked him to the ground, or had negligently hit him with a stone. Had the injury been occasioned by a misstep or slip from the platform by the carelessness of the plaintiff, or for the want of a railing, the causal connection between the change of position and the injury would, legally speaking, be quite obvious; but from a legal point of view no such connection exists between the change of position and the giving way of the wall.

The plaintiff had full knowledge of and was abundantly cautioned against certain particular sources of peril and danger, and he voluntarily neglected the warnings and took the risk of those perils and dangers. He was injured through the negligence of the defendant from an entirely different source of danger, of which he knew and could know nothing, and of whose existence it was the duty of the defendant to warn him.

Under these circumstances, the failure or neglect to heed the warning does not constitute contributory negligence: Gray v. Scott, 66 Pa. St. 345; 5 Am. Rep. 371.

In the case cited, certain boys had been warned not to play at a certain point, because of some particular and obvious dangers existing there. They failed to heed the warning, and one of them, playing at that place, was killed. His death was caused by the negligence of another, and came from a source of danger not obvious, and entirely different from any the boys had been warned against.

In answering the argument that the boy's failure to heed the warnings was a cause of his death, and contributory negligence, the court say: "But because he was under the tramway in the passage below it is thought he was guilty of contributory negligence. He could De guilty of negli

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