the contributors to a fund used in the purchase of a mortgage upon the property described in the petition, and to which the trustee took title under a sale on lev. fa. to collect the mortgage debt.

Exceptions to the report of the auditor distributing the fund were dismissed on March 13, 1900. On March 30, 1900, W. J. Kountz, executor, took an appeal to the Supreme Court. On September 29, 1900, Frederick Gwinner and others took this appeal.

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

William A. Sipe, for appellants. D. F. Patterson and J. Charles Dicken, for appellee.

MESTREZAT, J. Frederick Gwinner presented his petition to the court below, and on October 11, 1896, procured an order, under the Price act, authorizing him to sell certain real estate held by him as trustee. No sale having been made on this order, an alias order was granted April 16, 1898. The property was sold on the alias order, and the sale was confirmed July 11, 1898. The trustee filed his account, and, exceptions having been filed thereto, an auditor was appointed to pass upon the exceptions and report a distribution of the proceeds of sale. The auditor made his report on October 24, 1901, to which exceptions were filed by W. J. Kountz, executor of Peninah W. Kountz, deceased, and also by Frederick Gwinner et al., creditors of W. J. Kountz. The court dismissed the exceptions and confirmed the report on February 19, 1902. W. J. Kountz, executor of Peninah W. Kountz, deceased, appealed from this decree March 10, 1902, and Frederick Gwinner et al., creditors of W. J. Kountz, appealed on September 30, 1902.

It will be observed that the appeal of Gwinner et al. was taken more than six months after the entry of the final decree in the court below. For this reason the appellee has moved this court to quash the appeal. The fourth section of the act of May 19, 1897 (P. L. 67), provides, inter alia, that "no appeal shall be allowed in any case unless taken within six calendar months from the entry of the sentence, order, judgment or decree appealed from. Appeals taken after the times herein provided for shall be quashed on motion."

*

The intention of the act of 1897 was that the six months' limitation should begin to run when a judgment or decree was entered against the party claiming the right to appeal. If, in the trial of a cause, exceptions are taken to rulings of the court by a party, but a verdict and judgment is in his favor, he need not and cannot appeal. If that judgment is reversed by this court, and a judgment is entered against him, then his right to appeal is complete, and he may exercise it within six months from that date. But, where the right to an appeal has accrued by the entry of a judgment or decree against a party, he must take his appeal within six

months from that date, notwithstanding an appeal has been taken by the other party.

We are clearly of opinion that the motion to quash this appeal must prevail. There was no reason or necessity for delay in tak ing the appeal. A final decree had been entered against Frederick Gwinner et al., and the right to appeal was thus fixed. The decision of the questions in Kountz's Appeal from the same decree (54 Atl. 316) could not determine or affect those raised on this appeal. The two appeals raise entirely separate and distinct questions, and hence there was no necessity for the appellant in either appeal to await the determination of the other appeal. The time in which the statute required the appeal to be taken, therefore, began to run from the date of the decree.

Hughes v. Miller, 192 Pa. 365, 43 Atl. 976, has no application to the case in hand. There the judgment of the trial court was in favor of the defendant, and consequently he had no occasion for taking an appeal. But on appeal by the plaintiff the case was reversed, and judgment was directed to be entered against the defendant. Then for the first time there was a judgment against him and the necessity for him to appeal. Similar facts exist in Gates v. Pennsylvania R. R. Co., 154 Pa. 566, 26 Atl. 598. Here, however, the decree was against the appellants, and it could not be affected by the result of the appeal by the other party.

The motion is allowed, and the appeal is quashed at the cost of appellants.

(204 Pa. 596)

MCNALLY v. MERCANTILE TRUST CO. (Supreme Court of Pennsylvania. Jan. 5, 1903.) BOND-CONSTRUCTION-DEFAULT-LIABILITIES. 1. A bond given by a subcontractor to a city contractor gave the surety no opportunity, on default of the subcontractor, to complete the work, but by its terms the contractor was given such right. Held, that the surety, in an action on the bond by the contractor after default by the subcontractor, could not allege as a defense that he was given no opportunity to complete the work.

2. Where a contractor, without the knowledge of the surety of his subcontractor, overpays the latter, such overpayments are in relief of the surety's liability on the bond.

Appeal from Court of Common Pleas, Allegheny County.

Action by Thomas McNally against the Mercantile Trust Company. Judgment for plaintiff, and defendant appeals. Affirmed. Defendant presented the following points: "(1) Under all the evidence in this case the verdict must be for the defendant. swer. Refused.

An

"(2) The burden of proof is upon the plaintiff to satisfy the jury that the work on the contract entered into between the defendant, Thomas McNally, and Gustave Kaufman, for so much of the work as was un

completed by the said Gustave Kaufman at the time he abandoned said work on August 5, 1898, the same being for the completion of part of the Beechwood Boulevard, in the city of Pittsburg, has been done as cheap by the said Thomas McNally as it could have been done by the defendant herein, the Mercantile Trust Company, by reletting the said balance of the work to be completed under said contract to some other contractor, and the plaintiff, failing to satisfy the jury that the work has been so completed, cannot recover in this action, and the verdict of the jury must therefore be for the defendant. Answer. Refused.

"(3) The plaintiff's estimate, without any evidence whatsoever of consultation with other contractors, or attempting to take bids from other contractors for the completion of the said work, is not sufficient to warrant the jury in finding that the work was completed as cheaply as it could have been done by some other contractor. Answer. Refused.

"(4) The Mercantile Trust Company, being the bondsmen, were not only entitled to notice of the fact that Gustave Kaufman had abandoned the work to be done and performed by him, under the contract referred to between him and Thomas McNally, the plaintiff herein, but an opportunity to complete the contract referred to, under such contractors as they might select, should have been given, and the plaintiff, having failed to allow the defendant herein to complete the said contract, is not entitled to recover in this case, and the verdict must therefore be for the defendant. Answer. Refused.

"(5) The plaintiff in this case, not having accorded the defendant the opportunity to complete said contract, is not entitled to recover for any expenses incurred, in the absence of proof that such expenses were directly authorized by the Mercantile Trust Company. Answer. Refused.

"(6) Under the terms and conditions of the bond sued on in this case, the defendant herein was subrogated to the rights of its principal, Gustave Kaufman, and one of those rights, being the right to complete the said contract by the said Kaufman, having been denied this defendant by the plaintiff herein, he is not entitled to recover in this action, and the verdict must therefore be for the defendant. Answer. Refused.

"(7) It appearing from the evidence that about 40 per cent. of the work had been done by the said Gustave Kaufman on his said contract with the said plaintiff herein, Thomas McNally, at the time the said Kaufman abandoned the said contract, and he had drawn from the city of Pittsburg, upon warrants indorsed and approved by the plaintiff herein, about 60 per cent. of the contract price for the completion of the entire work, the same being a contravention of the provisions of the contract, which provided that the said Kaufman was only to receive the actual value of the work done and material fur

nished, that such an act by the plaintiff, in paying to the said Kaufman more than was due under the terms and conditions of the contract, was such a material variation of the said contract as would discharge the defendant herein, the surety under the bond sued on in this case, and therefore the plaintiff cannot recover, and the verdict must be in favor of the defendant. Answer. Refused, for the reason that the point assumes a certain exact proportionate percentage, of which there is no evidence.

"(8) If the jury believe that, at the time the final estimate to Gustave Kaufman was made, the figures were made by the plaintiff personally, and these entitled Gustave Kaufman to a much less sum than the city engineer's estimate at that date, it was the duty which the plaintiff owed to the Mercantile Trust Company, as surety, to refuse to assign said estimate of the work, and, failing to do so, he released the said surety from all liability on the bond in suit. Answer. Affirmed. In the absence of fraud on the part of McNally, these estimates would be binding."

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

Homer L. Castle, William A. Stone, and Stephen Stone, for appellant. A. M. Imbrie and Leander Trautman, for appellee.

BROWN, J. The first reason given by the appellant why the appellee ought not to recover from it is that, upon the default of the subcontractor, a proffer ought to have been made to it, as the surety on his bond, of the privilege of completing the work, and, the appellee having himself proceeded to do so without such proffer, it is discharged from all liability. The default occurred on August 5, 1898. On the same day McNally notified the Mercantile Trust Company, in writing, of Kaufman's default, and that he would look to it, as his surety, for all damages he might sustain under the contract by reason of such default. A day or two afterwards he called upon E. L. Porter, vice president of the company, and talked to him about Kaufman's abandonment of the work. Porter said: "We won't admit liability;" when McNally replied: "The only thing for me to do is to go ahead on the contract." That this took place between them is not denied by Porter. Three days after the abandonment, on August 8th, McNally notified the company that be would proceed to complete the work abandoned by Kaufman, his subcontractor, and that, while he was under no obligation to consult the company, he was willing to consider any suggestions it might make, and would confine the cost of finishing the work to the lowest possible figure, that the loss might be as low as possible. To this, reply was made within a few days, stating that the company admitted no liability on the bond, but was willing to extend any cour

tesy that would facilitate the completion of the contract at the least expense.

There is nothing in the contract or the bond providing that, upon the default of Kaufman, McNally was to give the surety an opportunity to complete the work. The bond was executed by the Mercantile Trust Company with the terms of McNally's contract, as the original contractor with the city of Pittsburg, as well as his contract with Kaufman, before it. Both contracts entered into the bond, for Kaufman's with McNally expressly provided that certain portions of the latter's contract with the city were made parts of it. Among the terms of McNally's contract with the city there was one providing that at any time the director of the department of public works should be of opinion that the said work, or any part of it, was unnecessarily delayed, or that the contractor was willfully violating any conditions or covenants of his agreement, or executing the same in bad faith, he should have power to notify the contractor to discontinue all work under the contract, and that thereupon the contractor should cease, and the director himself have the power to complete the work at the expense of the contractor. In Kaufman's contract with McNally there is a stipulation that nothing contained in it "shall limit or modify the right of said McNally to discontinue work by said Kaufman upon said Beechwood avenue, and prosecute the same to completion, under the provisions of said original contract, in the same manner as the director of the department of public works has power to do, upon the condition there made." The condition of the obligation was that Kaufman would be bound by the terms of the contracts.

Though McNally had the clearly reserved right under the contract "to discontinue work by said Kaufman," he did not attempt to do so. He took it up and carried it on to completion, under his obligation to the city of Pittsburg, only after the subcontractor had absolutely defaulted by abandoning the contract. If he had not done so, heavy penalties awaited him. He did all he was required to do, so far as this surety is concerned, when he notified it of the default of the principal in the bond. It might, as a matter of grace, but not of right, in view of what it knew was in the two contracts, have asked to be allowed to complete the work, but it did not do even that. sistently denied all liability, and now inconsistently complains that the opportunity was not given it of completing the work. Under the circumstances, there was nothing for McNally to do except to go on and complete it himself in accordance with the terms of his contract with the city. If he had waited on the arbitrary will and pleasure of the appellant, very serious consequences would have awaited him, which, it is very plain, the trust company would not have

It per

assumed for him. The jury were instructed that "he was to complete his contract, paying for labor the ruling prices in the market at the time, paying for material the market prices which were ruling in this district at that time, and to use every economy that was possible to do this work in a reasonable and careful manner, in order to carry out the contract with the city of Pittsburg, under which he was primarily bound. He must convince you by the weight of the evidence that he did complete this contract practically as cheaply as it could have been done, acting in good faith towards this surety." By their verdict the jury found that he had fully discharged the duty that was upon him. This disposes of the first reason given for reversing the judgment.

*

Appellant's second ground of complaint is that Kaufman had been overpaid, and that the overpayments, having been in excess of the claim made upon it, were to its prejudice, and it is therefore discharged from all liability on the bond. If McNally did overpay Kaufman, without the knowledge or consent of the surety on his bond, such overpayments were in relief of it. General Steam-Navigation Co. v. Rolt, 6 C. B. (N. S.) 550; Calvert v. London Dock Co., 2 Keen, 638. The answer to this is that Kaufman's contract with McNally provided that, for material and labor furnished, he should be paid "in certificates issued by the department of public works of the city of Pittsburg, as from time to time received therefrom by said McNally, and as from time to time made upon estimates calculated on measurements taken by the city's engineer," and "such certificates, when delivered by McNally to Kaufman, shall be accepted to the amount thereof for work done and material furnished under this contract." The city did not know Kaufman. It paid McNally, its contractor, in the mode just indicated, and he in turn gave to Kaufman, out of what he received, what was coming to him under the terms of the contract. Kaufman was to receive full payment, not only for all the work he had done, but for all material furnished. The estimates included not only the work actually done on the ground, but material as well that had been furnished, but not used, at the time of the abandonment. Measurements were to be made by the engineer of the city of Pittsburg, and, on estimates based upon them, payments were made from time to time to McNally, and by him to Kaufman. These estimates were given to McNally by the city engineer. In one or two instances McNally may have helped to make the measurements, but the city engineer went over them to see that they were all right. He testifies that all of the certificates that had been issued were based on measurements made by the city force, with the possible exception of two that were based on measurements made by

We

McNally, but that the city had not issued the certificates until these two measurements had been checked up and found to be satisfactory. The court submitted to the jury, for their determination, whether McNally, by anything he had done, had participated in overpayments, to the prejudice of the surety, and whether, if Kaufman actually was being overpaid, he knew it, and assisted in deceiving the city authorities, under whose estimates the payments were made. have carefully scanned all the testimony, and nothing can be found in it that would have justified a finding that McNally had been unfaithful to this appellant. There is not a line in it even showing that the measurements made were inaccurate, or that the estimates were for amounts which exceeded the work actually done and the value of the material on the ground. A finding by the jury that overpayments had been made to Kaufman, to the prejudice of the trust company, could not be sustained.

Under the assignments of error, no other question remains to be considered. Judgment affirmed.

INJURY TO EMPLOYÉ-ASSUMPTION OF RISK-
WARNING TO MINOR-CONTRIBU-
TORY NEGLIGENCE.

1. An employé does not assume the risk in the use of tools and machinery, but has a right to suppose that they are provided with such guards and protection from injury as are usual, unless the absence is apparent, or his attention has been called thereto.

2. An employer should take notice of the age and ability of an employé, and use proper means to protect him from a danger which he cannot appreciate.

3. Plaintiff, a boy about 16 years old, was placed at a rag-cutting machine in defendant's factory. He received no instructions as to the manner of cleaning waste from the fan of the machine, nor how to stop a revolving cylinder connected with it. In attempting to clean the fan, his hand was hurt in the cylinder. It was conceded that the machine was a dangerous one. Held, that the question whether the manner in which he attempted to clean the fan was so manifestly dangerous as to convict him of negligence was for the jury.

Appeal from Court of Common Pleas, Allegheny County; Evans, Judge.

Action by William T. Doyle, by his next friend, Walter Sullivan, against the Pittsburg Waste Company. From an order refusing to take off a nonsuit, plaintiff appeals. Reversed.

Argued before MITCHELL, DEAN, FELL, BROWN, MESTREZAT, and POTTER, JJ. Rody P. Marshall and Thomas M. Marshall, for appellant. Clarence Burleigh, for appellee.

1. See Master and Servant, vol. 34, Cent. Dig. §§ 347, 615.

MESTREZAT, J. William T. Doyle, the plaintiff, a minor of the age of 16 years and 4 months, was engaged by the defendant company to work on a baling machine in the yard of its manufactory in the city of Pittsburg. After he had been thus employed for a week he was put to work by the foreman on a rag-cutting machine in the manufactory. He had worked at this employment four hours, when, in attempting to clean the fan-a part of the machine-his hand was caught in the revolving cylinder, and so badly injured that the amputation of his arm became necessary. It is claimed that the machine was dangerous, and that the plaintiff's injuries resulted from the negligence of the defendant company in not giving him adequate instructions as to the mode of operating the machine.

The learned trial judge granted a nonsuit on the ground that the plaintiff was guilty of negligence which barred a recovery. In his opinion refusing to take off the nonsuit, he says: "The cylinder was in full view and revolving when he started to clean out 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 his person coming in contact with the revolving cylinder, as though he had been an adult, or the danger fully explained to him. For four hours he had seen the cylinder grind. . ing the rags which he was feeding it, and. of course, he knew its danger." In addition to the defense of contributory negligence, the learned counsel for the defendant company alleges that "when he [the plaintiff] attempted to clean the fan he was simply a volunteer, working not only outside the scope of his employment, but in reality violating his orders." The position of the defendant company is that Doyle was properly instructed in regard to the work he was employed to perform, and that he was injured by his negligent conduct in the performance of work outside of his employment, and in violation of his instructions.

The dangerous character of the machine, and the consequent necessity for instructing the employés engaged in operating it, seem to be conceded. Doyle and at least one other person previously employed in operating the machine were instructed as to their duties, and how to perform them. The issue, therefore, raises the question whether Doyle's employment required him to clean the fan, and, if so, whether the manner in which he attempted to do so was so clearly dangerous as to convict him of negligence.

We think both of these questions were for the jury. On this appeal the testimony, as introduced by the plaintiff, must be regarded as true. The only instructions given Doyle, as appears by his own testimony, are the following: "When I was put on that machine to work, the instructions that was given me was to keep the rags straight on this belt; and there is a place around in

here to put oil in, and to watch for fire; and, if it would catch fire, put the water in, and put the fire out, and start the machine, and just go to work again." It thus appears that he was not instructed as to the manner of cleaning the waste from the fan, nor as to the proper way of stopping the motion of the revolving cylinder. The waste frequently caught fire in passing through the machine, and after the fire was extinguished it was necessary to remove the burnt waste that had accumulated in the fan before the machine could be started again. The man who operated the machine removed the waste. A former employé engaged on the machine did this with a small hook which he used for the purpose, and while the cylinder was not revolving. Prior to this employment Doyle had not worked on a cutting machine, and was ignorant of the manner of operating it.

It

While Doyle was running the machine, the waste took fire, and, pursuant to his instruc-tions, he threw water into the machine and extinguished the fire. He then threw off the small belt and stopped the fan, which he attempted to clean while the cylinder was in motion. His hand slipped, and was caught in the teeth of the cylinder, injuring it very severely. It is contended on the part of the plaintiff that his instructions necessarily implied that he should remove the waste. was his duty to put out the fire, and the testimony shows that the waste had to be removed before the machine was started again. Doyle's instructions, while not directing him to do so, did not inform him who would clean the fan; and, as he was required to put the machine again in motion, it was impliedly his duty, the plaintiff claims, to remove the waste after the fire. It is contended the facts disclosed by the testimony in the case convict the defendant company of negligence for which it is liable in this action.

If Doyle's employment included the cleaning of the fan, and it involved a hazardous risk, not reasonably incident thereto, and requiring instruction to the employé to perform it in safety to himself, the failure to give the employé the necessary adequate instructions to enable him to safely perform the service would be negligence on the part of the defendant company. In Rummel v. Dilworth, 131 Pa. 509, 19 Atl. 345, 346, 17 Am. St. Rep. 827, the injured boy was of the age of 17 years. In that case, speaking of the duty of the employer and the risks assumed by the employé, Mr. Justice Williams says: "He [employé] has the right to suppose that his employer has provided such guards and means of protection from injury, in the use of the machinery, tools, and appliances, as are usual and reasonably necessary for his safety; and he cannot be held to assume the risks attendant on their absence, unless such absence is apparent, or his attention has been I called to it. If the business is one with which he is not familiar, he has a right to ex

pect that its dangers will be pointed out to him, and that he will be instructed in those things necessary for him to know in order to his own safety. He cannot be held to assume the risk of dangers of the existence of which he has no knowledge. In the case of young persons, it is the duty of the employer to take notice of their age and ability, and to use ordinary care to protect them from risks which they cannot properly appreciate, and to which they should not be exposed." In Grizzle v. Frost, 3 Fost. & Finl. 622, the injured person was 16 years old, and the revolving rollers, the cause of the injury, and the manner in which they were worked, were visible. Chief Justice Cockburn, delivering the opinion, says: "If the owners of dangerous machinery, by their foreman, employ a young person about it, quite inexperienced in its use, either without proper directions as to its use, or with directions which are improper, and which are likely to lead to danger, of which the young person is not aware, as it is their duty to take unusual care to avert such danger, they are responsible for any injury which may ensue from the use of such machinery."

In support of the contention that Doyle was guilty of negligence, it is claimed that the danger in attempting to clean the fan with his hand was obvious to any person with ordinary intelligence, and that therefore he knew he would be injured when he inserted his hand in the machine. If the danger was obvious and apparent, and Doyle had the capacity to comprehend and appreciate it, it would be negligence in him to assume the risk. The mere fact that he was a minor would not, under these circumstances, relieve him from the duty of protecting himself by the exercise of care. But whether the facts necessary to charge him with negligence exist, and whether, with a due appreciation of those facts, he acted in defiance of them, cannot be determined by the court as a matter of law, but are questions for the consideration of the jury. It may be observed in this connection that, conceding Doyle knew he would be injured by the contact of his hand with the cylinder, it does not necessarily follow that he knew his hand would come in contact with the cylinder when he attempted to remove the waste from the fan. The nonsuit was granted, as we understand from the language of the learned trial judge, because Doyle knew that contact with the revolving cylinder was dangerous, and not because he also knew that in attempting to remove the waste his hand would necessarily be cut by the cylinder. A knowledge or reasonable belief of the latter fact would be necessary to convict him of negligence.

Under the testimony submitted by the plaintiff, we think the case was for the jury, and the nonsuit was therefore improperly granted. The assignment of error is sustained, and the judgment is reversed, with a procedendo.