he may have sold it for what he may have regarded as a valuable consideration.

But without regard to the date of the subscription of the appellant for the 10 shares of stock, was the agreement of June 16, 1896, unlawful, and can it be regarded as the means of perpetrating any fraud upon the appellant? As already stated, it was proper and lawful for the company to agree to transfer 290 shares of the capital stock to Weatherly. After he received it-on the very day he received it-he could do as he pleased with it. He saw fit, in the exercise of his best judgment, to transfer 210 shares to the defendants, in consideration of their identifying themselves with the company organized for the very purpose of putting into practical use the patents and processes owned and controlled by him. He doubtless felt that without such identification and the active co-operation of the defendants, no matter how much stock might be issued to him, there would be no value or profit in it for him. He may have regarded, and apparently did so regard, such identification and cooperation as imparting a value to the 80 shares he retained equal to the 210 shares given in exchange for them. At any rate, it was for him, and him alone, to put whatever value he chose upon the whole or any portion of the stock so lawfully issued to him, and in doing so no one was or could have been injured. The plaintiff admits he knew the stock was to be so issued to Weatherly, and for the remaining $31,000 it is to be assumed he knew treasury stock would be issued for cash, or the equivalent. It is not pretended that any misrepresentation was made as to the actual cash to be invested in the enterprise, or that anything improper was done with what the appellant knew was to be the cash capital, upon which alone the company would have to depend for its operations; and it does not lie in his mouth to complain of the disposition Weatherly saw fit to make of the stock issued to him.

As to the 80 shares purchased by the appellant from Weatherly, nothing more need be said than that it was an ordinary, everyday business transaction, on which, according to his own admission, he hoped to profit. but was disappointed. The judgment of nonsuit could not have been properly withheld, and ought not to have been taken off. Judgment affirmed.

(204 Pa. 444)

GILES V. JONES & LAUGHLINS, Limited. (Supreme Court of Pennsylvania. Jan. 5, 1903.)

INJURY TO SERVANT-ASSUMPTION OF RISK. 1. Plaintiff had been in defendant's employ as a carpenter for about a month, and was sent to work at a sheave block near the top of a blast furnace, and stood on a narrow platform near the top of the stack. Explosions were thrown from the top of the stack at irregular intervals, sometimes 24 to 36 hours apart, and

sometimes several times a day. The stack was furnished with fire doors, usually kept closed. but which opened on an explosion, giving vent to the burning gas. Plaintiff was burned in such an explosion. The evidence was conflicting as to any warning given him. Held. that the question of the assumption of the risk was for the jury.

Appeal from Court of Common Pleas, Allegheny County.

Action by James H. Giles against Jones & Laughlins, Limited. Judgment for plaintiff. Defendant appeals. Affirmed.

The plaintiff, a carpenter, was injured by a burst of burning gas from a blast furnace, while at work near the top of a stack of the furnace. Defendant presented these points: "(1) That under all the evidence in the case the verdict must be for the defendant. Answer: Refused. (2) That while it appears that the place in which the plaintiff was at work at the time of the accident was dangerous, the uncontradicted evidence is that it was an obvious apparent danger, and the plaintiff, being of full age and of ordinary intelligence, must be held to have known of such danger, and in going to work there to have assumed the risk of injury, and therefore cannot recover in this action. The verdict must, therefore, be for the defendant. Answer: Refused. The place was clearly a dangerous place to work. If plaintiff had actual knowledge of the nature and character of the danger, either by being informed of it, or, as a man of ordinary intelligence, knew or should have known and anticipated the fact that an explosion such as occurred would probably happen, and that he might be hurt by it, he is, under the law, not entitled to recover in this suit. But this is matter of fact for the jury to determine under the evidence bearing upon that question and not a matter of law for the court." Verdict and judgment for plaintiff for $4,493. Defendant appealed.

Argued before MITCHELL, DEAN, FELL, BROWN, MESTREZAT, and POTTER, JJ.

William S. Dalzell and John D. McKennan, for appellant. W. H. McGary and Thomas L. Kerin, for appellee.

MITCHELL, J. This case involves but a single question-was the risk of injury such as plaintiff received so far patent and manifest that plaintiff must be held as a matter of law to have assumed it as a risk of the employment? Plaintiff was sent to work in a dangerous place, on a narrow platform near the top of the stack, at considerable height from the ground. It is conceded that this involved certain dangers, such as a misstep and fall, and the jury were clearly instructed that these were incident to the situation, and the plaintiff could not recover for any injury resulting from them. But there were other dangers specially incident to the furnace stack. These were a "slip" and a "gas puff." The former was caused by part

of the materials with which the furnace was charged adhering to the sides, called a "hang," until the molten mass below it had settled down, and then making a "slip" or fall, so as to produce an explosion, by which gas, ore, limestone, and other materials in the furnace were blown out of the openings at the top. A "gas puff" was caused by an accumulation of gas near the top of the stack, mixing with the air, taking fire, and exploding. The two kinds of explosion differed mainly in that a slip threw out quantities of materials from the stack, while a puff was merely a flame from the lighted gas. To lessen, as far as practicable, the damage from such explosions, the stack was furnished near the top with "fire doors" that hung upon hinges at the top, and were usually kept closed by their own weight, but opened on an explosion and gave vent to the burning gas.

Plaintiff was at work in the line of his trade as a carpenter, at a sheave block near the top of the stack, when an explosion occurred, whether from a "slip" or a "puff" was not clear, and he was burned by the flames of the escaping gas. There was some conflict of testimony whether he had been warned to look out for such danger, and this, of course, went to the jury. But defendants contended then, as now, that the danger was so manifest that any man in the proper exercise of his senses must have known of it. This, as already said, was the pinch of the case.

The testimony in regard to these explosions was that they occurred at frequent, but irregular, intervals, sometimes 24 to 36 hours apart, and again several times a day. They could be heard and seen for a considerable distance. There being a number of blast furnaces close together in that neighborhood, appellants argue that the explosions were so frequent as necessarily to compel notice of them. Plaintiff had been in employment at that place about a month, but testified that his work was inside the carpenter shop, except on two days, and that he had no knowledge of the danger from the explosions. There was nothing in the ordinary course of his trade as a carpenter to charge him with such knowledge, or even to put him upon inquiry. If he had come that day for the first time from a different place, where there were no furnaces in operation, it is plain that he could not be deemed to have knowingly assumed such risk. He had been there a month, and while it is difficult to see how he could have failed to notice and be informed about the explosions, yet, on the other hand, it may be that a burst of flame, apparently from the top of a high stack, did not convey to an ordinary observer from the ground the idea of danger to a workman on a platform several feet below the top. Taking the case on the whole evidence, it was for the jury, and was properly submitted to them. Judgment affirmed.

(204 Pa. 501)

JUERGEN v. ALLEGHENY COUNTY. (Supreme Court of Pennsylvania. Jan. 5, 1903.)

LANDLORD AND TENANT-UNLAWFUL EVIC

TION.

1. A tenant was evicted by the sheriff in proceedings under Act March 21, 1772 (1 Smith's Laws. p. 370), authorizing the recovery of possession of property after a finding by a justice and 12 freeholders that the term had been fully ended. Held, that the tenant could not thereafter maintain an action for damages for unlawful eviction.

Appeal from Court of Common Pleas, Allegheny County.

Action by Henry S. Juergen against Allegheny county. Judgment of nonsuit, and plaintiff appeals. Affirmed.

Argued before MITCHELL, DEAN, FELL, BROWN, MESTREZAT, and POTTER, JJ.

J. S. Ferguson, John F. Cox, and E. G. Ferguson, for appellant. A. C. Johnson and George P. Murray, for appellee.

BROWN, J. On March 30, 1891, the county of Allegheny leased a property in the city of Pittsburg to H. W. Juergen and George B. Smith. The latter, sometime during the term, assigned his interest to his co-lessee. The clause in the lease involved in this controversy is: "The said party of the first part do hereby lease and let unto the said parties of the second part from the first day of April, A. D. 1891, for and during the term of five years, and the privilege of re-leasing at an increased annual rental, for the annual rent of $3,000." The contention of the appellant is that there ought to have been inserted in the foregoing clause, after the word "re-leasing," a stipulation that the renewal of the lease should be at a rental of $3,500 per year for ten years, and at a rental of $4,000 for five years thereafter, and that, by accident or mistake, the intention and agreement of the parties were not so expressed in the lease. On December 31, 1895, the county of Allegheny notified the appellant to vacate the premises on April 1, 1896, on the ground that the term would then end. This notice was disregarded. On April 2, 1896, proceed. ings were instituted, under the provisions of the act of March 21, 1772, 1 Smith's Laws. p. 370, to recover possession of the property. and, after a finding by the justices and the 12 freeholders, summoned in pursuance of the act, that the term had fully ended, the appellant was evicted by the sheriff of the county.

This is an action of trespass by the lessee against the lessor for alleged unlawful eviction from the leased premises. It is not an action for damages resulting from an alleged breach of a contract or agreement by the county of Allegheny to re-lease the premises to the lessor after the expiration of the period of five years. After notice had been served upon him to vacate them on April 1,

1896, he made demand on the commissioners of the county that the lease be renewed in accordance with the terms which he alleged were omitted from the agreement of March 30, 1891. This was refused, and the eviction followed. The ground of the lessee's complaint, as set forth in the statement of his cause of action, is that this eviction was unlawful; but his own proof is otherwise. He was ejected from the premises by the sheriff of the county in the execution of a warrant to dispossess him, issued on the judgment of the tribunal created by the act of 1772, that the term of his lease had fully ended. If the term for which he had leased had ended, the eviction by proceedings regularly conducted under the act of assembly could not be unlawful. On the contrary, it was for the court to declare it lawful, and, if so, no wrong was done by it to the lessee for which he can recover damages from his lessor. Whether the term had fully ended was for the determination of the justices and 12 freeholders. They found that it had ended, and in so doing they may or may not have considered the alleged breach by the county commissioners of their agreement to renew the tease for ten years and to extend the term for that period. But our concern is only with what they found, not with what they may have considered; and their finding simply was that the term had fully ended and had not been extended. It was their duty to pass upon this very question, and from their finding there was no appeal.

Two reasons were assigned in the court below in support of the motion for the judgment of nonsuit: First, that the plaintiff had failed to prove by the testimony that the agreement to extend the lease had been omitted from the contract of March 30, 1891, by fraud, accident or mistake; and, second, that he was barred by the finding of the justices and freeholders in the landlord and ten

ant proceedings. It is conceded that the judgment complained of was entered on the second ground. This was clearly right, on the authority of De Coursey v. Guarantee Trust & Safe-Deposit Company, 81 Pa. 217, where it was held that one of the questions which the act of 1772, by its express terms requires a jury of freeholders to determine is whether the term had expired. Speaking of that act, we there said: "In no form of summary proceedings known to the law is so much care exercised to guard the rights of the parties and secure a fair trial as under the act of 1772. The provision for a freehold qualification for the jurors was intended, at least, to secure a jury of more than the average grade. If such juries are not composed generally of as good material as they ought to be, it is no fault of the law, but of its officers charged with its execution. In such proceedings the tenant has a fair trial before a jury of his peers, and it is no hardship to him to allow the judgment of such a tribunal upon so simple a question as

whether his term is fully ended, to be enforced."

We need not consider the question whether the appellant had shown by the kind of proof required that the terms upon which he leased from the county commissioners had been omitted by accident or mistake from his written agreement with them. Judgment affirmed.

(204 Pa 474) POWELSON v. UNITED TRACTION CO. (Supreme Court of Pennsylvania. Jan. 5, 1903.)

STREET RAILROADS-INJURIES TO PASSENGER.

1. The evidence for plaintiff showed that he attempted to board a summer car, and waved his hand when he saw it coming about 100 feet distant; that when it reached plaintiff it had almost stopped, and he stepped on the running board, and was about to go into the car, when the conductor rang the bell, and the car started, and threw him off. Held, that the negligence of defendant was for the jury.

Appeal from Court of Common Pleas, Allegheny County.

Action by James Powelson against the United Traction Company. Judgment for defendant, and plaintiff appeals. Reversed.

Argued before MITCHELL, DEAN, FELL, BROWN, MESTREZAT, and POTTER, JJ.

Rody P. Marshall and John C. Haymaker, for appellant. William A. Challener, Clarence Burleigh, and James C. Gray, for appellee.

DEAN, J. The plaintiff is 58 years of age. On June 25, 1900, he boarded a summer car in Allegheny City. When he saw the car coming about 100 feet distant, he waved his hand to the motorman to stop, who at once put on the brakes, so that when it reached plaintiff it had almost stopped, and he stepped up on the running board, and was about to go into the body of the car, when the conductor rang the bell for the car to start. It was instantly started with a jerk, which threw the plaintiff off, ran over his leg, so crushing it that amputation followed. We do not find these to be the undisputed facts, but only that there was some evidence tending to establish them. The learned judge of the court below, being of opinion that there was no sufficient evidence of negligence on the part of defendant, and that there clearly was contributory negligence on the part of the plaintiff, peremptorily instructed the jury to

find for the defendant. We now have this appeal by plaintiff, who alleged error in the instruction, arguing that the case was for the jury on both questions.

To step on or off a moving car, whether the power which propels the car be steam or electricity, is per se negligence, and, if injury results to the passenger, he cannot recover

1. See Carriers, vol. 9, Cent. Dig. § 1161.

damages. To this rule, as in all rules, there are some rare exceptions. As to steam cars -such as Johnson v. West Chester, etc., R. R. Co., 70 Pa. 357, where plaintiff had a ticket, and, while incumbered with bundles and a coil of pipe, attempted to get on a car just beginning to move, although the motion was just perceptible, fell, and had his arm crushed under the wheels-this court, speaking by Agnew, J., says: "There cannot be an inexorable rule so unbending that no circumstances begotten by the railroad company can change it. Even when a train is distinctly under way, there are cases (and this was one) where it must be left to the jury to say whether the danger of going aboard was so apparent that it would be culpable negligence in the passenger." This was the case of a passenger getting on a moving train under peculiar circumstances. Penna. R. R. Co. v. Peters, 116 Pa. 206, 9 Atl. 317, is a case of a passenger getting off a moving train under peculiar circumstances; and so there are a very few other cases reported as exceptions to the general rule.

The exceptional cases as to electrical cars, on one ground and another, are perhaps more numerous on account of the entirely different use made of them. They carry passengers, it is true, but generally only for short distances. Instead of fixed stations at comparatively long distances, they stop at every street corner, and often, when signaled, between. They accommodate their traveling public only, because they stop often. To see that they stop at the proper place for passengers to get off and on, and then start at the right time, is the principal duty of the employés in charge of the car. It necessarily follows that accidents to passengers in getting on and off are more numerous than on steam cars; and, while the same rule is applicable to both steam and electric cars, the exceptional cases are more in number in the latter than in the former. But the case cited and relied on by appellant, Walters v. Phila. Traction Co., 161 Pa. 36, 28 Atl. 941, is not an exception to the general rule. In that case this language of the court below was held not to be error: "If you should arrive at the conclusion that the car was in motion, and was not in that condition of motion which would induce any reasonable man to get on, then the plaintiff cannot recover. If, however, you should come to the conclusion that it had stopped, or was in the act of stopping, or was in such a condition of running or stopping as induced the plaintiff to think it was about to stop, then he had a right to get on, and, if the car started before he was safely seated in the car, and an injury resulted therefrom, then your verdict should be for the plaintiff." In this case plaintiff testified the car had actually stopped when he attempted to get on, and after he was safely on the platform the car started, as here, by a sudden jerk, and he was thrown off. There was evidence for the defendant that the car

was actually moving-that is, had not stopped-when he was thrown off. The charge must be taken in its application to the peculiar facts as averred in plaintiff's testimony. If the car had not come to a full stop, and plaintiff negligently got on, yet, when safely on, by the negligent jerk of the motorman he was thrown from the platform, it cannot be said that plaintiff's negligence contributed to the accident. It was not his negligence in getting on a moving car that brought about the result, for he, by good fortune, although not by the exercise of care, escaped any injury. But, being on safely, at once commenced the duty of defendant to carry him safely. In this, according to plaintiff's testimony, defendant failed. There was no relaxation of the rule, in the case cited, that to get on a moving car is negligence. The language quoted was affirmed in a per curiam opinion. It was not intended by this court to say that in that case, under the circumstances, it was not negligence in defendant to get on a moving car; but that, even if plaintiff got on a moving car, if it was moving, and then he was jerked off by the negligence of the motorman, the charge of the court did not harm defendant's case. None of the other cases cited by appellant are in point on the facts before us.

It is argued that slowing up on plaintiff's signal was an invitation to him to get on while in that condition of motion. This is a mistake. It at most was an invitation to get on when the car stopped, not sooner. But it still remains to say whether, on this evidence, there was a question for the jury. The plaintiff testifies: "When I put up my hand, the motorman saw me, and he turned the brake.

*

When I held up my hand, the car slowed up. When it got to me it was about stopping, and I got on the car, and just as I got on the car the conductor rang the bell. I was about to take my seat, as the car gave a jerk. And the conductor was on the board at the time. He tried to hold me on, and I fell over, and had my foot taken off. * Q. What do you mean by saying that you were going to take your seat? A. Why, step up on the other. You know the footboard is down below, and then you have to step to get on to the seat, and I was just about in the act of doing that when he rang the bell, and it started, and knocked me off. I had stepped on the footboard." The evidence of defendant tends to contradict this statement but the credibility of the witnesses was for the jury. If they had believed defendant's witnesses, then plaintiff had got on a moving car; but, if they also believed plaintiff, then his negligence was not followed by the penalty of injury. He had escaped that, and was safe. Being on, it was the duty of the company to exercise care in carrying him. If it negligently started up the car with a jerk, that negligence was not excused by his, and the company would be answerable. There was conflicting evidence as to his negligence

INSURANCE-ARBITRATION CLAUSE-WAIVERDENIAL OF LIABILITY-JURISDICTION-RECORD ON APPEAL-PRESUMPTIONS.

1. Where, in an action against a foreign corporation, which has pleaded the general issue, the record does not contain a complete transcript, and does not show how the summons was served, or that defendant was not doing business in the state, and had not complied with V. S. 4165, 4166, by appointing the secretary of state its attorney to receive service of process, an exception to a refusal at the close of plaintiff's testimony to direct a verdict for defendant, on the ground that the evidence showed the court had no jurisdiction, cannot be sustained.

2. A motion for judgment non obstante veredicto is not granted in favor of a defendant.

3. Where an insurance policy provides that if the parties fail to agree as to the amount of the loss, the question should be submitted to arbitrators, and that such reference, unless waived, should be a condition precedent to a right to sue, a denial of liability by the insurer is a waiver of such reference.

4. In an action against an insurance company in which it denied liability it excepted to the submission of the case to the jury, on the ground that there had been no arbitration, as the policy required as a condition precedent to a right to sue, and claimed that there was nothing to show that it denied liability before suit, while plaintiff claimed there was evidence of such denial from the first. The record did not contain a full transcript. Held, that it must be presumed there was evidence of waiver of the arbitration clause, and that the question was submitted with proper instructions.

Exceptions from Windham County Court; Tyler, Judge.

Action by Clarence G. Stoddard against the Cambridge Mutual Fire Insurance Company. The plaintiff recovered judgment, and defendant brings exceptions. Affirmed.

Argued before MUNSON, START, WATSON, STAFFORD, and HASELTON, JJ. Waterman

Clarke C. Fitts, for plaintiff.

& Martin and Gilbert A. A. Perry, for defendant.

STAFFORD, J. The defendant insured the plaintiff's buildings against loss by fire. The buildings were burned, and this action is to recover the insurance. The property was situated in Massachusetts, and there the plaintiff resided both when the contract was made and when the loss occurred. The defendant is a Massachusetts corporation, hav

2. See Judgment, vol. 30, Cent. Dig. § 372.

ing its place of business in that state. When this action was brought the plaintiff had become a resident of Vermont. The defendant appeared and pleaded the general issue, and the trial proceeded until the close of the plaintiff's testimony, when the defendant moved for a verdict, on the ground that the evidence showed that the court had no jurisdiction. The motion was overruled, and the defendant excepted, but proceeded with its defense, introducing, however, no evidence affecting the question of jurisdiction. There was a verdict for the plaintiff, after which, and before judgment the defendant moved for judgment notwithstanding the verdict. This motion likewise was overruled, and the defendant excepted. We are now asked to sustain these exceptions. The claim is that the defendant was a foreign corporation, and was not shown to have been doing any business in this state, nor to have any place of business therein. Assuming, without deciding, that the defendant did not waive the first of these exceptions by proceeding with its defense and omitting to renew its motion, and also that its course did not amount to a waiver of the objection itself, it will be sufficient to observe that the whole testimony is referred to in the bill, whereas we have not been furnished with a complete transcript, and are therefore unable to say what did and what did not appear in these respects, beyond the facts already recited, which are not shown by the exceptions to be all the facts bearing upon the question. It is admitted that if the defendant was doing business in this state, and had complied with our statute requiring it to make the secretary of state its attorney to receive service of process, such service would give the court jurisdiction. V. S. 4165, 4166.

We have not been furnished with a copy of the return, and are not informed what the service was. Evidently there is nothing before us from which we can say that the court erred in assuming jurisdiction. The motion for a judgment non obstante veredicto was properly overruled, if for no other reason, because it is not granted in favor of a defendant-certainly not when the pleadings are as they were here. Trow v. Thomas, 70 Vt. 580, 41 Atl. 652; Davis v. Streeter, 75 Vt. --, 54 Atl. 185.

The policy provided that in case of loss thereunder and failure of the parties to agree as to the amount that question should be referred to arbitrators, whose award should be final, and that such reference, unless waived, should be a condition precedent to the right to sue. "The defendant contend.. ed that the plaintiff was not entitled to recover until the amount of damages had been fixed by arbitration, and on that ground excepted to the charge of the court in submitting the case to the jury." "There was nev er any arbitration, or any attempt on the part of the plaintiff to procure an arbitration, as