under his contract, I think It can seldom be said as a matter of law that the employé | has lost his legal right to hold his employer for the consequences of his negligence on the ground of a voluntary assumption of the risk by continuing to work, unless his own conduct is such that, viewed independently, it furnishes no evidence of his due care.

In the present case it cannot be contended that there was a contractual assumption by the plaintiff of the risk of injury from the use of an unsafe and improper stirrup strap. No such risk was obvious when he entered the defendant's service. On the contrary, the defendant, by his contract, impliedly agreed to furnish safe and proper straps. There was no new contract nor any new consideration for a contract when the plain-❘ tiff obeyed the order of Abbott to use the strap which broke. The rights and obligations of both parties created by the contract of hiring remained unchanged. It may be that a jury would have found that the plaintiff was careless in consenting to use the strap; but certainly the court cannot say so as a matter of law, and the opinion does not put the decision on that ground. The ground of the decision is that the plaintiff assumed the risk. The opinion implies that it may be doubtful whether the defendant was negligent, although there can be no doubt of his duty to furnish safe and proper straps. If the jury found that the defendant was primarily responsible for the injury, as the opinion assumes that they might find, the plaintiff is cut off from recovery by a holding of the court, as matter of law, that his relation to the risk by reason of his consenting to use the strap under orders was such as necessarily to make him guilty of negligence. This seems to me to leave out of consideration the facts that the defendant was under a legal obligation to know that the strap was safe, while the plaintiff was under no such obligation, and that the plaintiff might rely to some extent upon the probable performance of duty by his employer, and upon the implied representation of his employer, as well as the express representations of Abbott, the foreman, that the strap was sufficiently strong. I think that there was evidence for the jury upon this point, but that the court could not properly say as matter of law that the proposition was established. Dealing with it as a matter of fact, I think the weight of the evidence was that he did not fully understand and appreciate the risk. He was undoubtedly influenced by the statements and representations of Abbott. He knew the strap was defective, but he did not know how strong it was. No one can accurately estimate the strength of a piece of old leather from the appearance of it. He saw Abbott pull upon it, but he did not know how much force was applied in pulling. Probably he thought it was stronger than it proved to be. If the strap was only just bad

enough to make the defendant liable for beg ligence in furnishing it, I do not think it follows as a matter of law that the plaintiff was negligent in not refusing to use it. I think the questions at issue were questions of fact for the consideration of the jury under proper instructions. Except in cases of contractual assumption of the risk, I think there is great danger of improper interference with the right of the plaintiff to a trial by jury upon questions of fact in holding as matter of law, even when the defendant might be found to be negligent, and even when it does not appear on other grounds that the plaintiff has failed to show his own due care, that the plaintiff has lost his right to recover by a voluntary assumption of the risk. I hope that this fashionable modern doctrine will not lead to a departure from the sound principles on which the law of negligence rests.

(156 N. Y. 413)

PEOPLE v. CARBONEL (Court of Appeals of New York. June 24, 1898.)

HOMICIDE-EVIDENCE-NEW TRIAL.

One C. was indicted for murder. On his trial it appeared that he was seen pursuing the deceased, and striking him with his fists, and that the deceased, who died from the effects of a stab in the abdomen, declared that C. stabbed him; but no weapon was found in C.'s possession, and the only weapon found near the scene of the crime, a small penknife, was shown by the people's witnesses to be incapable of inflicting the fatal wound. A witness also testified that he had seen one A. C. stab the deceased with a stiletto, as he ran. C. was convicted. On an appeal from the judgment of conviction, the court of appeals was informed by the district attorney that A. C. had been tried and convicted of murder in the second degree, for killing the deceased. Held, that in view of this circumstance, and the inconclusiveness of the testimony on defendant's trial, a new trial should be awarded, under Code Cr. Proc. § 528. Appeal from supreme court, trial term, New York county.

Angelo Carbone was convicted of murder in the first degree, and appeals. Reversed. Hal Bell and Ambrose H. Purdy, for appellant. James D. McClelland, for the People.

PER CURIAM. The defendant was charged in the indictment with the crime of murder in the first degree, committed upon one Natele Brogno, in the evening of September 12, 1897, in the city of New York. Upon his arraignment he pleaded not guilty. A trial being had, he was found guilty, as charged in the indictment, upon the verdict of a jury. The evidence adduced by the people showed that, upon the evening in question, the defendant was first seen pursuing the deceased upon Leonard street, in the direction of Center street. He was seen to strike at the deceased with his fist, and the latter fell to the ground upon his face. The de

fendant then jumped upon his back with his feet, and, bending down, again struck him several times with his clenched hand. Several police officers came up, and the defendant was seized. The deceased, being raised from the ground, was seen to have been stabbed in the abdomen, and to have been cut upon one of his wrists. He died within a very few minutes after the occurrence. Prior to his death, upon being asked, in the presence of the defendant, if he was the man who stabbed him, the deceased answered, "Yes." When further asked what the defendant had stabbed him for, he had already become unconscious, and was unable to answer. The defendant was searched, but no weapon was found upon him. Some time afterwards, however, a small penknife, with an open blade, was found at or near the spot where the deceased had fallen. After the deceased had stated that it was the defendant who had stabbed him, the latter was asked why he had done so, and he replied, denying the stabbing, and denying that he had any knife. The examination of the body of the deceased, made by the ambulance surgeon and by the coroner's physician, who made the autopsy, showed the existence of two incised wounds, one upon the forearm, and the other in the abdomen, the latter of which was the cause of the death. On the part of the defense, a nephew of the defendant, a boy 12 years of age, testified that, upon the evening in question, he saw his uncle fighting with the deceased, and using his fists; that the latter ran away; and that, while he was so running, one Alexander Ciarmello came up with a knife in his hand, appearing to be a stiletto of six or seven inches in length, and, while the deceased was looking back over his shoulder, struck at him twice with the weapon. The witness said that Ciarmello then put the weapon in his pocket, and walked away, and that the deceased, after running some 200 or 300 feet further, with the defendant in pursuit, fell down. The coroner's physician, upon being recalled on behalf of the defense, testified, upon being shown the knife which was picked up at or near the place where the deceased fell, that it was absolutely impossible for it to have caused the wound in the abdomen; that it was too short. The district attorney states in his brief, and it was admitted by him in open court, with commendable fairness, to be the fact, that, since the trial and conviction of the defendant, Alexander Ciarmello was indicted and arrested for the killing of the deceased, and has been tried and convicted of murder in the second degree upon the charge, and has been sentenced to imprisonment for life.

We are satisfied that this is a case where justice requires a new trial, and that we should exercise the power conferred upon us for that purpose by section 528 of the Code of Criminal Procedure. While the pe

culiar situation which is presented moves us to exercise this power, we also think that the case of the people cannot be said to have demonstrated the fact of the killing of the deceased by the defendant beyond a reasonable doubt. That fact and the fact of the death of the person alleged to have been killed are essential to be established by the people upon such an issue,-the latter by direct proof, and the former beyond a reasonable doubt. Pen. Code, § 181. None of the witnesses for the people saw a knife or any weapon in the hands of the defendant, and none was found as the result of a search upon his person; while the small knife which was found upon the spot could not possibly have inflicted the wound, according to the testimony of the people's witness, the coroner's physician, who performed the autopsy. There was nothing in the evidence adduced on behalf of the prosecution, showing what had occurred prior to the moment when the deceased was seen running in Leonard street, pursued by the defendant; and while, from the statement of the deceased and the other circumstances, an inference was possible that he had come to his death by a wound intentionally inflicted by the defendant, yet the evidence is not of such a nature as to preclude us from holding that it was lacking in conclusiveness. Therefore, under the circumstances, and in view of the admission of the district attorney, we think that the case is one for the exercise of our power to order a new trial, and that it is required in the interest of justice. The judgment of conviction should be reversed, and a new trial ordered. All concur, except O'BRIEN, J., absent. Judgment reversed, etc.

(156 N. Y. 399)

PAGET et al. v. MELCHER et al. (Court of Appeals of New York. June 21, 1898.)

TRUST DEED-CONSTRUCTION-WILLS.

1. One S. conveyed certain real estate to a trustee, upon trust to pay the rents and profits to S.'s wife during her life, and upon the death of the survivor of S. and his wife to convey the land to the children of S. in fee,-the issue of any child who should have died, leaving issue, to take the share the parent would have taken if living, and in default of issue of S., living at the time of the death of the survivor of himself and his wife, to convey the land to the heirs at law of S. Held, that the interests of the children of S. were not vested, but contingent, and upon the death of one of them, without issue, during the life of the widow of S., no interest passed under his will, or descended to his heirs at law.

2. By his will, S. left certain personal property to his wife for life, and provided that on her death the same should belong to his children, the descendants of any deceased child to take the share the parent would have taken if living, and, if no descendants of his should survive his wife, then the property should go to his residuary legatees. Held, that no interest in such personal property passed under the will of a child of S. who died without issue during the life of the widow.

Cross appeals from supreme court, appellate division, First department.

Action by Mary Paget and others against Ellen S. Melcher and others. From an interlocutory judgment (49 N. Y. Supp. 922) modifying the judgment entered on the decision of the special term, both parties appeal. Reversed.

Flamen B. Candler, for Mary Paget and William Jay. Wheeler H. Peckham, for Union Trust Co. George Hoadly and Ferdinand R. Minrath, for plaintiffs. John A. Lane, guardian ad litem. George Zabriskie, for defendant Melcher.

HAIGHT, J. This action was brought for the partition of real property, and for a division of certain personal property which Paran Stevens had bequeathed to his wife for life. With reference to the real estate sought to be partitioned, it appears that it was conveyed on the 29th day of April, 1863, by Paran Stevens to Charles G. Stevens, upon the trust, however, that Charles was to receive the rents and profits, and, after paying the taxes and repairs, "to pay over the balance to Marietta Stevens, wife of the said Paran Stevens, during her life, * * and upon the death of the said Marietta Stevens, during the life of the said Paran Stevens, to pay over the balance of income thereof to the said Paran during his life, and upon the death of the survivor of said Paran Stevens and Marietta Stevens to convey the said lands and premises to the children of said Paran Stevens, in fee,-the issue of any child of said Paran who shall have died, leaving issue living at the death of the survivor of the said Paran and Marietta,-to take the same share that the parent would if living, and, in default of issue of the said Paran living at the time of decease of the survivor of the said Paran and Marietta, then to convey the same to the heirs at law of the said Paran Stevens." Paran Stevens died on the 25th day of April, 1872, leaving, him surviving, his widow, Marietta Stevens, and three children,-Ellen S. Melcher, the wife of John L. Melcher, Mary Fiske Stevens, who afterwards intermarried with Arthur H. F. Paget, and is known in this action as Mary Paget, and Henry Leiden Stevens, who died on the 18th day of July, 1885, unmarried and leaving no issue, but leaving a last will and testament, in which he disposed of all his real and personal estate. Marietta Stevens departed this life on the 3d day of April, 1895.

The first question presented for our determination is as follows: "Upon the death of the widow (Marietta Stevens), did the devisees of the son (Henry Leiden Stevens) take an undivided third part of the said real property?" In answering this question, we shall not attempt an extended review of the authorities. Very much has been written upon the subject, and we have quite recently,

in several cases, discussed the legal propositions involved. Townshend v. Frommer, 125 N. Y. 446, 26 N. E. 805; Campbell v. Stokes, 142 N. Y. 23, 36 N. E. 811; In re Baer, 147 N. Y. 348, 41 N. E. 702; In re Brown, 154 N. Y. 313, 48 N. E. 537; In re Young, 145 N. Y. 535, 40 N. E. 226; McGillis v. McGillis, 154 N. Y. 532, 49 N. E. 145; Hersee v. Simpson, 154 N. Y. 496, 48 N. E. 890. The opinion below, delivered by Rumsey, J., is in accord with our views, and we shall only supplement it with an additional point.

The contention on one side is that under the deed of trust the children of Paran Stevens took a vested remainder. On the other side it is claimed that the future estate was contingent. Under the Revised Statutes, "future estates are either vested or contingent. They are vested, when there is a person in being, who would have an immediate right to the possession of the lands, upon the ceasing of the intermediate or precedent estate. They are contingent, whilst the person to whom, or the event upon which they are limited to take effect, remains uncertain." 1 Rev. St. p. 723, § 13. If the estate is vested, it is descendible, devisable, and alienable in the same manner as an estate in possession. Id. p. 725, § 35. Upon referring to the deed, it will be observed that there is no provision in which the estate is granted to the children of Paran Stevens. It only contains a direction to the trustee to convey the premises to the children or their descendants upon the termination of the lives of the persons for whose benefit the trust was created. Upon the happening of that event the trustee is directed to convey the premises to the children in fee; the issue of any child who shall have died leaving issue at the death of the survivor of Paran and Marietta to take the same share the parent would if living. Had the provisions of the deed stopped at this point, there might possibly be found some ground for the contention that a vested remainder was intended, notwithstanding the absence of a provision expressly granting the estate to the children; but that which follows we regard as decisive against that contention,-"and, in default of issue of the said Paran living at the time of decease of the survivor of the said Paran and Marietta, then to convey the same to the heirs at law of the said Paran Stevens." Here we have an express provision in the deed disposing of the fee to the heirs at law of Paran Stevens in case none of his children, or of their issue, survive himself and his wife. If each of his children took a vested remainder in one-third of the real estate, as it is contended, then such estate would have been descendible and devisable, and, upon the death of a child, it would pass under his will, or, in default thereof, descend to his heirs at law. It could not pass to the heirs at law of Paran Stevens. We consequently conclude that the provisions of the deed direct

ing the trustee to convey to the heirs at law of Paran Stevens in case none of his children or of their issue survive, of necessity, indicate that it was not intended that the children should take a vested remainder. It follows that their estates were contingent. Henry Leiden having died during the pendency of the trust, leaving no issue him surviving, no interest in the real estate in question passed under his will, or descended to his heirs at law, and upon the death of Mrs. Stevens the entire real estate passed to the surviving daughters.

The

Paran Stevens died, leaving a last will and testament, which has been proved and admitted to probate. In it he gave and bequeathed to his wife, during her natural life, the use of a large quantity of personal property, which he specifically described, and then provided: "Upon the decease of my said wife, the property by this and the preceding clause devised shall belong to my children,the descendants of any deceased child to take the share their parent would have taken if living; and, if no descendants of mine survive my said wife, then said property shall belong, and be delivered over by my executors, to the same persons named as residuary legatees in case of such failure of descendants in the next clause of this will, and in the same proportion." The same contention is made with reference to the construction of this clause that was made with reference to the provisions of the deed. question certified is as follows: "Upon the death of the widow, did the personal representatives of the son take an undivided third part of the personal property bequeathed by the third and fourth clauses of the will of Paran Stevens?" It is claimed that onethird of this property vested in Henry Leiden Stevens, and that it, upon his death, passed under his will to his personal representatives. We, however, are of the opinion that this construction cannot be sustained. If it belonged to the children of Paran Stevens, subject only to the life use of their mother, or if their interest in the estate had vested, then upon their death it would go to their legatees, or, in default of a will, to their next of kin. It could not possibly go to the residuary legatees named in the will of their father. It is therefore apparent that the concluding clause of the will of the father, providing that, if no descendants of his survive his wife, the property shall belong, and be delivered over by his executors, to the persons named by him, of necessity shows that he did not intend that his children should have such a vested interest in the property during the lifetime of his wife as to make it pass under their wills, or go to their next of kin. We therefore conclude that none of this property passed under the will of Henry Leiden Stevens, but that upon the death of Mrs. Stevens it passed to the surviving daughters of the testator, in equal shares. The judgment of the appellate di

vision, so far as it reverses and modifies the judgment of the special term, should be reversed, and that of the special term affirmed, and the questions certified answered in the negative, with costs of this appeal to abide the final award of costs upon the application for final judgment herein. All concur (BARTLETT, J., in result). Judgment accordingly.

(58 Ohio St. 426)

LAKE SHORE & M. S. RY. CO. v.
ANDREWS.

(Supreme Court of Ohio. May 10, 1898.) INJURY TO EMPLOYE-NEGLIGENCE OF MASTER EVIDENCE.

In the absence of direct evidence in its support, an allegation that one sustained injuries by reason of the negligence of the defendant is not sustained by proof of circumstances from which the fact that his injuries were so sustained is not a more natural inference than any other.

(Syllabus by the Court.)

Error to circuit court, Lucas county.

Action by Andrews, administrator, against the Lake Shore & Michigan Southern Railway Company. A judgment for plaintiff was affirmed, and defendant brings error. Reversed.

This is a petition in error to reverse a judgment of the circuit court affirming a judgment of the court of common pleas awarding damages to Andrews, as administrator, for negligently causing the death of his intestate. The substance of the original petition of the administrator is that Barton was a brakeman in the service of the company, and upon the night of his death was head brakeman on a freight train; that it was his duty to be upon the front end of the train, or in the cab, and from that position to keep a constant lookout for the rear end of the train during the passing of a grade which the train had just completed; that the night was dark and stormy, and that the observation of the light, at the rear end of the train, was rendered more difficult because, in making up the train, passenger cars of greater width than the freight cars had been placed between the locomotive and the caboose; that while, in the discharge of his duty, he was leaning out of the gangway between the engine and tender, to see the lights on the side of the caboose, his head struck the casing of the bridge which the company negligently maintained at a height of eight or nine feet above the level of the bridge, and so near to the train as to be a source of danger, of which the deceased had no knowledge. The answer admitted that the deceased sustained fatal injuries at the time and place alleged, but denied all allegations of negligence, and averred that the injuries were sustained by reason of the want of care on the part of the decedent. The allegation that the deceased was negligent was denied by reply. The facts clearly established by the evidence are

that the bridge was in no respect out of repair, but was in the condition in which it had been from the time of its erection, about eight years before. The train on which Barton was head brakeman passed over it very rapidly, and while it was passing he came in collision with the casing which inclosed the truss, receiving injuries which were immediately fatal. The fact of such collision was shown by marks upon the casing commencing near the end at which the train entered the bridge, and about two feet from the top of the casing, the marks descending from that point to the further end of the bridge, near which the body was found. Barton had been employed by the company as brakeman about six months on this and another division, and had passed over the bridge something over 20 times. On the night of his death the engineer and fireman saw him standing in the gangway between the locomotive and tender shortly before they reached the bridge, but he was not seen by any one thereafter until he was found dead. The casing was something more than two feet from the train. At the conclusion of the plaintiff's evidence the court was requested to direct a verdict for the company, which was denied. After a verdict in favor of the administrator, the company moved for a new trial, on the ground, among others, that the verdict was not sustained by the evidence, and was contrary to law, and this motion was overruled.

Potter & Emery, for plaintiff in error. George B. Boone and J. K. Hamilton, for defendant in error.

SHAUCK, J. (after stating the facts). It is not believed to be necessary to repeat here the familiar rules of law concerning liability for negligence. The case is susceptible of clear solution by the application of one of those rules to the evidence in the record. To reach at once the point on which our decision is to be based, it is assumed that the company was negligent in maintaining the bridge with the casing so near the train, and that the deceased did not, with knowledge, acquiesce in such negligence so as to defeat the action. The theory presented in the original petition and in the argument of counsel is that Barton was in the discharge of his duty to watch the rear end of the train to see if it had parted while descending the grade, and while so engaged was leaning from the side of the tender, looking for the light on the side of the caboose, in the, rear of the wider coaches, and while so engaged he was killed. The theory is not supported by any evidence whatever. Barton was last seen alive shortly before the locomotive reached the bridge, when he was standing on the gangway or platform between the engine and tender, with his lantern on the floor by his side. After the train had passed the bridge it was noticed that,

while his lantern was still there, he had disappeared. No one saw him leaning over the engine or make any effort to see the rear of the train. No other evidence in the case suggests the manner of his death except the marks on the casing. Certainly an allegation of fact may be established by circumstantial evidence, but the circumstances, to have that effect, must be such as to make the fact alleged appear more probable than any other. The fact in issue must be the most natural inference from the facts proved. Not only did the circumstances here disclosed fail to make it appear that Barton's death occurred in the manner alleged, but, since the point at which his head struck the casing was certainly not more-it seems to have been less-than two feet above the level of the platform upon which he was standing when last seen, the natural inference is that he fell from the train. The circumstances fail to show that the death of Barton was due to the negligence alleged against the company. A recovery upon such evidence cannot be sustained while it is held that the employer is not the insurer of the safety of the employé. A verdict for the defendant should have been directed as requested. Judgments of the circuit court and court of common pleas reversed.

(58 Ohio St. 347)

FIRST NAT. BANK OF FINDLAY v. TROUT et al.

(Supreme Court of Ohio. April 19, 1898.) PROMISSORY NOTE-WARRANT OF ATTORNEY-CONFESSION OF JUDGMENT-FAILURE TO FILL

BLANKS-JURisdiction.

A promissory note with warrant of attorney to confess judgment thereon should be so interpreted as to give effect to the intention of the parties; and a judgment thereon confessed against the makers is not void for want of jurisdiction of their persons if the terms of the warrant indicate an intention to authorize it, notwithstanding a failure to fill blanks intended to be filled with words giving fuller expression to that intention.

(Syllabus by the Court.)

Error to circuit court, Hancock county. The First National Bank of Findlay brought suit in the court of common pleas to subject real estate of J. S. Trout, in Hancock county, to the payment of liens. The Farmers' National Bank filed cross petition. The cause was appealed to the circuit court, where it was tried upon issues joined by the several pleadings of the plaintiff in error and Laura D. Trout. In its cross petition the plaintiff in error asserted the lien of two judgments rendered by the common pleas court of said county in its favor, and against John S. Trout and one I. N. Smith, on the 15th day of June, 1893, each for the sum of $216 and costs, and of another judgment rendered by said court in its favor, and against J. S. Trout, December 18, 1893, for $288 and costs. Laura D. Trout asserted the lien of a mortgage ex