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the contributors to a fund used in the pur months from that date, notwithstanding an chase of a mortgage upon the property de appeal has been taken by the other party. scribed in the petition, and to which the trus We are clearly of opinion that the motion tee took title under a sale on lev. fa, to col to quash this appeal must prevail. There lect the mortgage debt.

was no reason or necessity for delay in tak. Exceptions to the report of the auditor dis ing the appeal. A final decree had been entributing the fund were dismissed on March tered against Frederick Gwinner et al., and 13, 1900. On March 30, 1900, W. J. Kountz, the right to appeal was thus fixed. The deexecutor, took an appeal to the Supreme cision of the questions in Kountz's Appeal Court. On September 29, 1900, Frederick from the same decree (54 Atl. 316) could not Gwinner and others took this appeal.

determine or affect those raised on this apArgued before MITCHELL, DEAN, FELL, peal. The two appeals raise entirely sepaBROWN, MESTREZAT, and POTTER, JJ. rate and distinct questions, and hence there William A. Sipe, for appellants. D. F.

was no necessity for the appellant in either Patterson and J. Charles Dicken, for appellee.

appeal to await the determination of the oth

er appeal. The time in which the statute reMESTREZAT, J. Frederick Gwinner pre quired the peal to be taken, therefore, besented his petition to the court below, and on gan to run from the date of the decree. October 11, 1896, procured an order, under Hughes v. Miller, 192 Pa. 365, 43 Atl. 976, the Price act, authorizing him to sell certain has no application to the case in hand. There real estate held by him as trustee. No sale the judgment of the trial court was in favor having been made on this order, an alias or of the defendant, and consequently he had der was granted April 16, 1898. The proper no occasion for taking an appeal. But on apty was sold on the alias order, and the sale peal by the plaintiff the case was reversed, was confirmed July 11, 1898. The trustee and judgment was directed to be entered filed his account, and, exceptions having been against the defendant. Then for the first filed thereto, an auditor was appointed to time there was a judgment against him and pass upon the exceptions and report a distri the necessity for him to appeal. Similar bution of the proceeds of sale. The auditor facts exist in Gates v. Pennsylvania R. R. made his report on October 24, 1901, to Co., 154 Pa. 566, 26 Atl. 598. Here, howwhich exceptions were filed by W. J. Kountz, ever, the decree was against the appellants, executor of Peninah W. Kountz, deceased, and it could not be affected by the result of and also by Frederick Gwinner et al., credit the appeal by the other party. ors of W. J. Kountz. The court dismissed The motion is allowed, and the appeal is the exceptions and confirmed the report on quashed at the cost of appellants. February 19, 1902. W. J. Kountz, executor of Peninah W. Kountz, deceased, appealed from this decree March 10, 1902, and Freder

(204 Pa. 596) ick G uner et al., cre ors of W. J. Kountz, MCNALLY V. MERCANTILE TRUST CO. appealed on September 30, 1902. It will be observed that the appeal of

(Supreme Court of Pennsylvania. Jan. 5,

1903.) Gwinner et al. was taken more than six months after the entry of the final decree in

BOND-CONSTRUCTION-DEFAULT-LIABILITIES. the court below. For this reason the appellee 1. A bond given by a subcontractor to a city has moved this court to quash the appeal.

contractor gave the surety no opportunity, on

default of the subcontractor, to complete the The fourth section of the act of May 19, 1897

work, but by its terms the contractor was given (P. L. 67), provides, inter alia, that “no ap such right. Held, that the surety, in an action on peal shall be allowed in any case unless tak

the bond by the contractor after default by the en within six calendar months from the en

subcontractor, could not allege as a defense that

he was given no opportunity to complete the try of the sentence, order, judgment or de work. cree appealed from.

Appeals taken 2. Where a contractor, without the knowledge after the times herein provided for shall be

of the surety of his subcontractor, overpays the

latter, such overpayments are in relief of the quashed on motion.”

surety's liability on the bond. The intention of the act of 1897 was that the six months' limitation should begin to

Appeal from Court of Common Pleas, Alrun when a judgment or decree was entered

legheny County. against the party claiming the right to ap

Action by Thomas McNally against the peal. If, in the trial of a cause, exceptions

Mercantile Trust Company. Judgment for are taken to rulings of the court by a party,

plaintiff, and defendant appeals. Affirmed. but a verdict and judgment is in his favor, Defendant presented the following points: he need not and cannot appeal. If that judg "(1) Under all the evidence in this case ment is reversed by this court, and a judg the verdict must be for the defendant. An. ment is entered against him, then his right swer. Refused. to appeal is complete, and he may exercise “(2) The burden of proof is upon the plainit within six months from that date. But, tiff to satisfy the jury that the work on the where the right to an appeal has accrued by contract entered into between the defendthe entry of a judgment or decree against a ant, Thomas McNally, and Gustave Kaufparty, he must take his appeal within six man, for so much of the work as was un.

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completed by the said Gustave Kaufman at , nished, that such an act by the plaintiff, in the time he abandoned said work on August paying to the said Kaufman more than was 5, 1898, the same being for the completion of due under the terms and conditions of the part of the Beechwood Boulevard, in the city contract, was such a material variation of of Pittsburg, has been done as cheap by the the said contract as would discharge the desaid Thomas McNally as it could have been fendant herein, the surety under the bond done by the defendant herein, the Mercantile sued on in this case, and therefore the plainTrust Company, by reletting the said balance tiff cannot recover, and the verdict must be of the work to be completed under said con in favor of the defendant. Answer. Refustract to some other contractor, and the plain-ed, for the reason that the point assumes a tiff, failing to satisfy the jury that the work certain exact proportionate percentage, of has been so completed, cannot recover in this which there is no evidence. action, and the verdict of the jury must "(8) If the jury believe that, at the time therefore be for the defendant. Answer. the final estimate to Gustave Kaufman was Refused.

made, the figures were made by the plain"(3) The plaintiff's estimate, without any tiff personally, and these entitled Gustave evidence whatsoever of consultation with Kaufman to a much less sum than the city other contractors, or attempting to take bids engineer's estimate at that date, it was the from other contractors for the completion of duty which the plaintiff owed to the Merthe said work, is not sufficient to warrant cantile Trust Company, as surety, to refuse the jury in finding that the work was com to assign said estimate of the work, and, pleted as cheaply as it could have been done failing to do so, he released the said surety by some other contractor. Answer. Refused. from all liability on the bond in suit. An

"14) The Mercantile Trust Company, being swer. Affirmed. In the absence of fraud on the bondsmen, were not only entitled to no the part of McNally, these estimates would tice of the fact that Gustave Kaufman had be binding." abandoned the work to be done and perform Argued before MITCHELL, DEAN, FELL, ed by him, under the contract referred to BROWN, MESTREZAT, and POTTER, JJ. between him and Thomas McNally, the plain

Homer L. Castle, William A. Stone, and tiff herein, but an opportunity to complete

Stephen Stone, for appellant. A. M. Imbrie the contract referred to, under such con

and Leander Trautman, for appellee. tractors as they might select, should have been given, and the plaintiff, having failed to allow the defendant herein to complete the BROWN, J. The first reason given by the said contract, is not entitled to recover in appellant why the appellee ought not to rethis case, and the verdict must therefore be cover from it is that, upon the default of the for the defendant. Answer. Refused.

subcontractor, a proffer ought to have been "(5) The plaintiff in this case, not having made to it, as the surety on his bond, of the accorded the defendant the opportunity to privilege of completing the work, and, the complete said contract, is not entitled to re appellee having himself proceeded to do so cover for any expenses incurred, in the ab without such proffer, it is discharged from sence of proof that such expenses were di all liability. The default occurred on August rectly authorized by the Mercantile Trust 5, 1898. On the same day McNally notified Company. Answer. Refused.

the Mercantile Trust Company, in writing, of "16) Under the terms and conditions of the Kaufman's default, and that he would look bond sued on in this case, the defendant here to it, as his surety, for all damages he might in was subrogated to the rights of its prin sustain under the contract by reason of such cipal, Gustave Kaufman, and one of those default. A day or two afterwards he called rights, being the right to complete the said upon E. L. Porter, vice president of the comcontract by the said Kaufman, having been pany, and talked to him about Kaufman's denied this defendant by the plaintiff here abandonment of the work. Porter said: in, he is not entitled to recover in this action, "We won't admit liability;" when McNally and the verdict must therefore be for the de replied: "The only thing for me to do is to fendant. Answer. Refused.

go ahead on the contract." That this took "(7) It appearing from the evidence that place between them is not denied by Porter. about 40 per cent. of the work had been done Three days after the abandonment, on Auby the said Gustave Kaufman on his said gust 8th, McNally notified the company that contract with the said plaintiff herein, Thom he would proceed to complete the work abanas McNally, at the time the said Kaufman doned by Kaufman, bis subcontractor, and abandoned the said contract, and he had that, while he was under no obligation to drawn from the city of Pittsburg, upon war consult the company, he was willing to conrants indorsed and approved by the plaintiff sider any suggestions it might make, and herein, about 60 per cent of the contract would confine the cost of finishing the work price for the completion of the entire work, to the lowest possible figure, that the loss the same being a contravention of the provi might be as low as possible. To this, reply sions of the contract, which provided that the was made within a few days, stating that said Kaufman was only to receive the actual the company admitted no liability on the value of the work done and material fur bond, but was willing to extend any cour

tesy that would facilitate the completion of assumed for him. The jury were instructed the contract at the least expense.

that "he was to complete his contract, pay. There is nothing in the contract or the ing for labor the ruling prices in the market bond providing that, upon the default of at the time, paying for material the marKaufman, McNally was to give the sure ket prices which were ruling in this district ty an opportunity to complete the work. at that time, and to use every economy that The bond was executed by the Mercantile was possible to do this work in a reasonTrust Company with the terms of McNally's able and careful manner, in order to carry contract, as the original contractor with the out the contract with the city of Pittsburg, city of Pittsburg, as well as his contract under which he was primarily bound. He with Kaufman, before it. Both contracts en must convince you by the weight of the evitered into the bond, for Kaufman's with MC dence that he did complete this contract Nally expressly provided that certain por practically as cheaply as it could have been tions of the latter's contract with the city done,

acting in good faith towards were made parts of it. Among the terms this surety.” By their verdict the jury of McNally's contract with the city there found that he had fully discharged the duty was one providing that at any time the di that was upon him. This disposes of the rector of the department of public works first reason given for reversing the judgshould be of opinion that the said work, or ment. any part of it, was unnecessarily delayed, or Appellant's second ground of complaint is that the contractor was willfully violating that Kaufman had been overpaid, and that any conditions or covenants of his agree the overpayments, having been in excess of ment, or executing the same in bad faith, he the claim made upon it, were to its prejushould have power to notify the contractor dice, and it is therefore discharged from all to discontinue all work under the contract, liability on the bond. If McNally did overand that thereupon the contractor should pay Kaufman, without the knowledge or concease, and the director himself have the sent of the surety on his bond, such overpower to complete the work at the expense payments were in relief of it. General of the contractor. In Kaufman's contract Steam-Navigation Co. v. Rolt, 6 C. B. (N. S.) with McNally there is a stipulation that 550; Calvert v. London Dock Co., 2 Keen, nothing contained in it "shall limit or modi 638. The answer to this is that Kauffy the right of said McNally to discontinue man's contract with McNally provided that, work by said Kaufman upon said Beech for material and labor furnished, he should wood avenue, and prosecute the same to be paid "in certificates issued by the decompletion, under the provisions of said orig. partment of public works of the city of Pittsinal contract, in the same manner as the burg, as from time to time received theredirector of the department of public works from by said McNally, and as from time to has power to do, upon the condition there time made upon estimates calculated on made.” The condition of the obligation was measurements taken by the city's engineer,” that Kaufman would be bound by the terms and “such certificates, when delivered by of the contracts.

McNally to Kaufman, shall be accepted to Though McNally had the clearly reserved the amount thereof for work done and maright under the contract "to discontinue terial furnished under this contract." The work by said Kaufman," he did not attempt city did not know Kaufman. It paid Mcto do so. He took it up and carried it on Nally, its contractor, in the mode just indito completion, under his obligation to the cated, and he in turn gave to Kaufman, out city of Pittsburg, only after the subcontract of what he received, what was coming to or had absolutely defaulted by abandoning him under the terms of the contract. Kaufthe contract. If he had not done so, heavy man was to receive full payment, not only penalties awaited him. He did all he was for all the work he had done, but for all required to do, so far as this surety is con material furnished. The estimates included cerned, when he notified it of the default of not only the work actually done on the the principal in the bond. It might, as a ground, but material as well that had been matter of grace, but not of right, in view furnished, but not used, at the time of of what it knew was in the two contracts, the abandonment. Measurements were to be have asked to be allowed to complete the made by the engineer of the city of Pittswork, but it did not do even that.

burg, and, on estimates based upon them, sistently denied all liability, and now in payments were made from time to time to consistently complains that the opportunity McNally, and by him to Kaufman. These was not given it of completing the work. estimates were given to McNally by the city Under the circumstances, there was nothing engineer. In one or two instances McNally for McNally to do except to go on and com may have helped to make the measurements, plete it himself in accordance with the terms but the city engineer went over them to see of his contract with the city. If he had that they were all right. He testifies that waited on the arbitrary will and pleasure all of the certificates that had been issued of the appellant, very serious consequences were based on measurements made by the would have awaited him, which, it is very city force, with the possible exception of two plain, the trust company would not have that were based on measurements made by

It per

McNally, but that the city had not issued MESTREZAT, J. William T. Doyle, the the certificates until these two measurements plaintiff, a minor of the age of 16 years and had been checked up and found to be satis 4 months, was engaged by the defendant factory. The court submitted to the jury, company to work on a baling machine in for their determination, whether McNally, the yard of its manufactory in the city of by anything he had done, had participated in Pittsburg. After he had been thus employed overpayments, to the prejudice of the sure for a week he was put to work by the forety, and whether, if Kaufman actually was man on a rag-cutting machine in the manubeing overpaid, he knew it, and assisted in factory. He had worked at this employ. deceiving the city authorities, under whose ment four hours, when, in attempting to estimates the payments were made. We clean the fan--a part of the machine-his have carefully scanned all the testimony, hand was caught in the revolving cylinder, and nothing can be found in it that would and so badly injured that the amputation of have justified a finding that McNally had his arm became necessary. It is claimed been unfaithful to this appellant. There that the machine was dangerous, and that is not a line in it even showing that the the plaintiff's injuries resulted from the negmeasurements made were inaccurate, or that ligence of the defendant company in not givthe estimates were for amounts which ex. ing him adequate instructions as to the mode ceeded the work actually done and the value of operating the machine. of the material on the ground. A finding by The learned trial judge granted a nonsuit the jury that overpayments had been made on the ground that the plaintiff was guilty to Kaufman, to the prejudice of the trust of negligence which barred a recovery. In company, could not be sustained.

his opinion refusing to take off the nonsuit, Under the assignments of error, no other he says: “The cylinder was in full view question remains to be considered.

and revolving when he started to clean out Judgment affirmed.

the waste, and, although he had only been working at the machine about four hours,

he knew the danger to him of any part of (204 Pa. 618)

his person coming in contact with the reDOYLE V. PITTSBURG WASTE CO. volving cylinder, as though he had been an (Supreme Court of Pennsylvania. Jan. 5,

adult, or the danger fully explained to him.

For four hours he had seen the cylinder grind- . 1903.)

ing the rags which he was feeding it, and, INJURY TO EMPLOYE-ASSUMPTION OF RISK

of course, he knew its danger.” In addition WARNING TO MINOR-CONTRIBUTORY NEGLIGENCE.

to the defense of contributory negligence, 1. An employé does not assume the risk in

the learned counsel for the defendant comthe use of tools and machinery, but has a right pany alleges that “when he [the plaintiff) to suppose that they are provided with such attempted to clean the fan he was simply guards and protection from injury as are usual,

volunteer, working not only outside the scope unless the absence is apparent, or his attention has been called thereto.

of his employment, but in reality violating 2. An employer should take notice of the age his orders." The position of the defendant and ability of an employé, and use proper company is that Doyle was properly instructmeans to protect him from a danger which he cannot appreciate.

ed in regard to the work he was employed to 3. Plaintiff, a boy about 16 years old, was perform, and that he was injured by his placed at a rag-cutting machine in defendant's negligent conduct in the performance of work factory. He received no instructions as to the manner of cleaning waste from the fan of

outside of his employment, and in violation the machine, nor how to stop a revolving cylin

of his instructions. der connected with it. In attempting to clean The dangerous character of the machine, the fan, his hand was hurt in the cylinder. It

and the consequent necessity for instructing was conceded that the machine was a dangerous one. Held, that the question whether the man

the employés engaged in operating it, seem ner in which he attempted to clean the fan was to be conceded. Doyle and at least one othso manifestly dangerous as to convict him of er person previously employed in operating negligence was for the jury.

the machine were instructed as to their duAppeal from Court of Common Pleas, Al ties, and how to perform them. The issue, legheny County; Evans, Judge.

therefore, raises the question whether Doyle's Action by William T. Doyle, by his next employment required him to clean the fan, friend, Walter Sullivan, against the Pitts and, if so, whether the manner in which he burg Waste Company. From an order re attempted to do so was so clearly dangerous fusing to take off a nonsuit, plaintiff appeals. as to convict him of negligence. Reversed.

We think both of these questions were for Argued before MITCHELL, DEAN, FELL, the jury. On this appeal the testimony, as BROWN, MESTREZAT, and POTTER, JJ. introduced by the plaintiff, must be regard.

ed as true. The only instructions given Rody P. Marshall and Thomas M. Mar

Doyle, as appears by his own testimony, are shall, for appellant. Clarence Burleigh, for

the following: “When I was put on that appellee.

machine to work, the instructions that was

given me was to keep the rags straight on 1. See Master and Servant, vol. 34, Cent. Dig. $$ 547, 615.

this belt; and there is a place around in

here to put oil in, and to watch for fire; and, pect that its dangers will be pointed out to if it would catch fire, put the water in, and him, and that he will be instructed in those put the fire out, and start the machine, and things necessary for him to know in order to just go to work again.” It thus appears his own safety. He cannot be held to asthat he was not instructed as to the manner sume the risk of dangers of the existence of of cleaning the waste from the fan, nor as which he has no knowledge. In the case of to the proper way of stopping the motion of young persons, it is the duty of the employer the revolving cylinder. The waste frequent to take notice of their age and ability, and to ly caught fire in passing through the ma use ordinary care to protect them from risks chine, and after the fire was extinguished it which they cannot properly appreciate, and was necessary to remove the burnt waste to which they should not be exposed." In that had accumulated in the fan before the Grizzle v. Frost, 3 Fost. & Finl. 622, the inmachine could be started again. The man jured person was 16 years old, and the re who operated the machine removed the volving rollers, the cause of the injury, and waste. A former employé engaged on the the manner in which they were worked, were machine did this with a small hook which visible. Chief Justice Cockburn, delivering he used for the purpose, and while the cylin the opinion, says: “If the owners of dangerder was not revolving. Prior to this employ. ous machinery, by their foreman, employ a ment Doyle had not worked on a cutting young person about it, quite inexperienced in machine, and was ignorant of the manner of its use, either without proper directions as to operating it.

its use, or with directions which are impropWhile Doyle was running the machine, the er, and which are likely to lead to danger, of waste took fire, and, pursuant to his instruc- which the young person is not aware, as it is tions, he threw water into the machine and their duty to take unusual care to avert such extinguished the fire. He then threw off the danger, they are responsible for any injury small belt and stopped the fan, which he at which may ensue from the use of such matempted to clean while the cylinder was in chinery.” motion. His hand slipped, and was caught In support of the contention that Doyle in the teeth of the cylinder, injuring it very was guilty of negligence, it is claimed that severely. It is contended on the part of the the danger in attempting to clean the fan plaintiff that his instructions necessarily im with his hand was obvious to any person plied that he should remove the waste. It with ordinary intelligence, and that there. was his duty to put out the fire, and the tes. fore he knew he would be injured when he timony shows that the waste had to be re inserted his hand in the machine. If the moved before the machine was started again. danger was obvious and apparent, and Doyle Doyle's instructions, while not directing him had the capacity to comprehend and appreci. to do so, did not inform him who would clean ate it, it would be negligence in him to asthe fan; and, as he was required to put the sume the risk. The mere fact that he was a machine again in motion, it was impliedly minor would not, under these circumstances, his duty, the plaintiff claims, to remove the relieve him from the duty of protecting himwaste after the fire. It is contended the self by the exercise of care. But whether facts disclosed by the testimony in the case the facts necessary to charge him with neg. convict the defendant company of negligence ligence exist, and whether, with a due apfor which it is liable in this action.

preciation of those facts, he acted in defiance If Doyle's employment included the clean of them, cannot be determined by the court ing of the fan, and it involved a hazardous as a matter of law, but are questions for the risk, not reasonably incident thereto, and re consideration of the jury. It may be obseryquiring instruction to the employé to perform ed in this connection that, conceding Doyle it in safety to himself, the failure to give knew he would be injured by the contact of the cmployé the necessary adequate instruc his hand with the cylinder, it does not neces. tions to enable him to safely perform the sarily follow that he knew his hand would service would be negligence on the part of come in contact with the cylinder when he the defendant company.

In Rummel v. Dil attempted to remove the waste from the fan. worth, 131 Pa. 509, 19 Atl. 345, 346, 17 Am. The nonsuit was granted, as we understand St. Rep. 827, the injured boy was of the age from the language of the learned trial judge, of 17 years.

In that case, speaking of the because Doyle knew that contact with the reduty of the employer and the risks assumed volving cylinder was dangerous, and not beby the employé, Mr. Justice Williams says: cause he also knew that in attempting to re"He (employé] has the right to suppose that move the waste his hand would necessarily his employer has provided such guards and be cut by the cylinder. A knowledge or reameans of protection from injury, in the use sonable belief of the latter fact would be of the machinery, tools, and appliances, as necessary to convict him of negligence. are usual and reasonably necessary for his Under the testimony submitted by the safety; and he cannot be held to assume the plaintiff, we think the case was for the jury, risks attendant on their absence, unless such and the nonsuit was therefore improperly absence is apparent, or his attention has been granted. The assignment of error is sustaincalled to it. If the business is one with ed, and the judgment is reversed, with a prowhich he is not familiar, he has a right to ex cedendo.

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