key held by the company. It was liable for due care, and by its rules stipulated that no one but the renter, or his agent, should be allowed access, except in case of disability, death, or insolvency.

The writ of fi. fa. permits the seizure and sale of personal property of a defendant "in any manner delivered or bailed." Act June 16, 1836 (P. L. 755, § 23; Pa. Stat. 1920, § 10,371). In this respect the proceeding is analogous to that begun by foreign attachment (Klett v. Craig, 1 W. N. C. 28), but differs from an attachment execution under § 35 (§ 10,423), which provides for the issuance of process against "a debt due to the defendant, or of a deposit . . . made by him, or of goods or chattels pawned, pledged, or demised." This distinction makes inapplicable here the rule enunciated in Gregg v. Hilson, 8 Phila. 91, a decision frequently cited in this and other jurisdictions as authority for the proposition that the contents of a safe deposit box cannot be seized on execution process. There is no legal reason why this may not be done on a writ of fi. fa. though the making

Levy-on contents of safe deposit box.

of the levy becomes difficult.

It is ordinarily the duty of the sheriff in executing his process either to take into his possession the article upon

-necessity of taking posses

which he levies, or sion of property. at least to have it in sight when he does so. Dixon v. White Sewing Mach. Co. 128 Pa. 397, 5 L.R.A. 659, 15 Am. St. Rep. 683, 18 Atl. 502.

"It is enough that, having the property within his view, and where he can control it, he does profess to levy and to assume control of the property by virtue of the execution, and with the avowed purpose of holding the property to answer the exigencies of the writ." 2 Freeman, Executions, 823.

There are circumstances, however, under which the process will be sustained, though the property was not in view. Stuckert v. Keller,

105 Pa. 386. This has been held where the wrongful act of the defendant made it impossible (Trovillo v. Tilford, 6 Watts, 468, 31 Am. Dec. 484), or where other legal excuse appeared (Keil v. Harris, 1 Pa. Co. Ct. 171, affirmed in 4 Sadler (Pa.) 201, 6 Atl. 750).

In the present case it appears that the sheriff was prevented from doing more than he did by the refusal of the company to permit access to the box. The mere fact that the property contained in the receptacle seized cannot be examined does not withdraw it from the grasp of creditors, as has been held in other jurisdictions when the levy has been sustained on sealed packages, or boxes where the contents were unknown (Adams v. Scott, 104 Mass. 165; Loyless v. Hodges Bros. 44 Ga. 647; Peeler v. Stebbins, 26 Vt. 644), and upon safes which could not be opened (Smith v. Clark, 100 Iowa, 605, 69 N. W. 1011; Elliott v. Bowman, 17 Mo. App. 693; Dodson v. Wightman, 6 Kan. App. 835, 49 Pac. 790; Jones Lumber & Mercantile Co. v. Faris, 6 S. D. 112, 55 Am. St. Rep. 814, 60 N. W. 403).

Necessary information as to the contents might have been obtained by bill of discovery under the Act of 1836 (P. L. 755, §§ 9 to 18; Pa. Stat. 1920, §§ 4588-4598, 1040510415), or by supplementary proceedings under the Act of May 9, 1913 (P. L. 197; Pa. Stat. §§ 1041610418), but further steps are required before the box is actually opened.

The sheriff, under his writ, was directed to make the levy. It was his duty to seize the personal property of the defendant. He could not break open the dwelling house of the debtor in order that his process might be executed, but he could forcibly enter property not of that character. Even in case of defendant's home, "when the officer is once inside, he may break open inner doors or trunks in order to come at the goods" (2 Troubat & H. Practice, 1512); and he is justified in forcibly entering the house

of another, after demand for admittance an refusal (2 Troubat & H. Practice, 1512; 17 R. C. L. 178; 17 Cyc. 1080).

On like principle, the box held by the trust company may be opened,

-forcible opening of safe deposit box.

if refusal to permit such action on its part is made. It has no interest as bailee which is not fully protected, where the property is taken by legal process. Act June 13, 1874 (P. L. 285, § 2; Pa. Stat. 1920, § 1056). Rule 2 of the company, it will be observed, provides for the opening by the legal representatives of the renter in case of insolvency.

The exact proposition has not been the subject of discussion Pennsylvania, except to the extent indicated in Gregg v. Hilson and Klett v. Craig, supra; but the right to possession of the box, under such circumstances, is generally upheld in other states, the question usually arising on orders to compel the trust company to open. United States v. Graff, 67 Barb. 304; Tillinghast v. Johnson, 34 R. I. 136, 41 L.R.A. (N.S.) 764, 82 Atl. 788, Ann. Cas. 1914A, 960; Trowbridge v. Spinning, 23 Wash. 48, 54 L.R.A. 204, 83 Am. St. Rep. 806, 62 Pac. 125; Washington Loan & T. Co. v. Susquehanna Coal Co. 26 App. D. C. 149; cf. de Bearn v. de Bearn, 115 Md. 668, 36 L.R.A. (N.S.) 421, 81 Atl. 223. The conclusions reached in these cases are well founded on reason, and to declare the same rule here violates no right of a defendant safeguarded either by statute or decision. Courts will not give sanction to a plan which will permit the obstruction of its legal process, and aid a debtor in with

drawing his assets from the reach of his creditors.

The sheriff can execute his writ, and levy upon the personal property owned by the defendant, of the character made subject to seizure under our statutes. If he is in doubt as to the title of the goods directed to be taken, he may refuse to act until indemnified against the consequences of a mistake. Spangler v. Com. 16 Serg. & R. 68, 16 Am. Dec. 548; Dornin v. McCandless, 146 Pa. 344, 28 Am. St. Rep. 798, 23 Atl. 245. Protection is likewise afforded him, if a claim of ownership be made by another, by the interpleader act. Act May 26, 1897 (P. L. 95; Pa. Stat. 1920, §§ 1044110456); Necker v. Sedgwick, 36 Pa. Super. Ct. 593. When the levy is made, reasonable opportunity should be given to the safe deposit company to assert any special rights. which it may possess as bailee, but if there is a refusal to permit the opening of the box, without proper excuse, the right may, under the law, be enforced. Doubtless the aid of the court can be secured, upon proper showing, if there is wrongful resistance to the execution of a valid writ.

The earlier cases upon this question are treated in the annotation in 11 A.L.R. 225.

The reported
reported case (TRAINER V.

SAUNDERS, ante, 861) seems to have been the only case since the compilation of the earlier note to have passed upon the question under consideration,

Pac. 383; Perry v. Cedar Falls, 87 Iowa, 315, 54 N. W. 225; Bloomington v. Rogers, 9 Ind. App. 230, 36 N. E. 439; McHugh v. St. Paul, 67 Minn. 441, 70 N. W. 5, 1 Am. Neg. Rep. 273; Gosport v. Evans, 112 Ind. 133, 2 Am. St. Rep. 164, 13 N. E. 256; Mueller v. Ross Twp. 152 Pa. 399, 25 Atl. 604; Crescent Twp. v. Anderson, 114 Pa. 643, 60 Am. Rep. 367, 8 Atl. 379; Rohlfs v. Fairgrove Twp. 174 Mich. 555, 140 N. W. 908; Dreier v. McDermott, 157 Iowa, 726, 50 L.R.A. (N.S.) 566, 141 N. W. 315; Meridian v. Hyde, Miss. 11 So. 108; Knight v. Baltimore, 97 Md. 647, 55 Atl. 388; Tasker v. Farmingdale, 85 Me. 523, 27 Atl. 464; Chase v. Seattle, 80 Wash. 61, 141 Pac. 180. And also because he had a choice of routes and chose the hazardous one. 29 Cyc. 520; Archibald v. Lincoln County, 50 Wash. 55, 96 Pac. 831; Lombardi v. Bates & R. Constr. Co. 88 Wash. 243, 152 Pac. 1025; Hartman v. Muscatine, 70 Iowa, 511, 30 N. W. 859; McGinty v. Keokuk, 66 Iowa, 725, 24 N. W. 506; Parkhill v. Brighton, 61 Iowa, 103, 15 N. W. 853; Hunter v. Montesano, 60 Wash. 489, 111 Pac. 571, Ann. Cas. 1912B, 955; Cady v. Seattle, 42 Wash. 402, 85 Pac. 19; Reynolds v. Northern P. R. Co. 22 Wash. 165, 60 Pac. 120; Kalberg v. Seattle Electric Co. 37 Wash. 612, 79 Pac. 1101; Anderson v. Northern P. R. Co. 19 Wash. 340, 53 Pac. 345, 4 Am. Neg. Rep. 235; Cain v. Ohio Valley Teleph. Co. 20 Ky. L. Rep. 855, 47 S. W. 759; Cohn v. Kansas City, 108 Mo. 387, 18 S. W. 973; Welsh v. Argyle, 89 Wis. 649, 62 N. W. 517; Wright v. St. Cloud, 54 Minn. 94, 55 N. W. 819; McGraw v. Friend & T. Lumber Co. 120 Cal. 574, 52 Pac. 1004, 4 Am. Neg. Rep. 6.

The city was under no duty to maintain a barrier.

Briglia v. St. Paul, 134 Minn. 97, L.R.A.1916F, 1216, 158 N. W. 794; Teater v. Seattle, 10 Wash. 327, 38 Pac. 1006; Leber v. King County, 69 Wash. 134, 42 L.R.A. (N.S.) 267, 124 Pac. 397; Swain v. Spokane, 94 Wash. 616, L.R.A.1917D, 754, 162 Pac. 991; Dignan v. Spokane County, 43 Wash. 419, 86 Pac. 649; Logan v. New Bedford, 157 Mass. 534, 32 N. E. 910; Glasier v. Hebron, 131 N. Y. 447, 30 N. E. 239.

It was not reversible error to deny plaintiff's motion for a new trial because of inadequate damages.

Nilsson v. Martinson, 72 Wash. 286, 130 Pac. 106; Miller v. Eastern R. & 19 A.L.R.-55.

Lumber Co. 84 Wash. 31, 146 Pac. 171; Hightower v. Union Sav. & T. Co. 88 Wash. 179, 152 Pac. 1015, Ann. Cas. 1918A, 489; Ritter v. Seattle, 82 Wash. 325, 144 Pac. 61; Krulikoski v. Sparling, 82 Wash. 474, 144 Pac. 692; Saylor v. Montesano, 11 Wash. 328, 39 Pac. 653.

Mitchell, J., delivered the opinion of the court:

This action was brought against the city of Bellingham to recover damages for injuries alleged to have been caused by the negligence of the city in failing to keep the north end of Prospect street in a reasonably safe condition for public travel. The answer denies negligence on the part of the city, and affirmatively alleges contributory negligence of the plaintiff. The plaintiff is a physician. He and his wife were injured in the accident. He sued to recover the sum of $5,669.45. There was a trial by jury, which resulted in a verdict of $217.45. A motion for a new trial was made by the plaintiff, denied by the court, and from a judgment entered upon the verdict the plaintiff has appealed.

The first assignment of error is the denial of the motion for a new trial, based upon the ground of inadequacy of damages allowed. It is contended by the appellant, and now formally conceded by the respondent, that the verdict was reached by simply adding together the hospital and auto repair bills. Whereupon the appellant interposes a motion that this court reverse the judgment and remand the cause to the lower court for a new trial upon the single issue of the amount of appellant's damages. Our view of the case in other respects makes it unnecessary to notice this assignment of error and the motion, other than to say the one is without merit to effect a reversal and that the other will be denied.

A fuller understanding of the case may be made before considering other assignments of error. The injuries complained of occurred in an accident on a street railway

trestle over Whatcom creek at the north end of Prospect street, in the city of Bellingham, about 3:30 P. M. on December 16. Prospect street is a short much-traveled street, running northerly from Holly street five or six blocks to Whatcom creek, where it ends. It is 46 feet wide between the curbs, and paved with brick to a point about 75 feet from its north end, where its surface drops down slightly to plank pavement that extends to the north end of the street. Near the north end the street slopes downward 1 to 2 per cent. It is intersected at the north end from the east, squarely, by Lottie street, which terminates at the intersection. Central avenue crosses or runs into Prospect street next south of, and parallel with, Lottie street. On the west side of the north terminus of Prospect street, and connecting with it, a concrete bridge about 70 feet long has been constructed across the creek. The bridge is the southern terminus of Dupont street. The turn to the left from Prospect street onto and across the bridge is rounding at the inside curb, and thence on from Prospect street at an angle not greater than 45 degrees. Dupont street leads on towards the north limits of the city. The bridge is 24 feet wide, between 5-foot walkways, and is provided with heavy substantial concrete bridge rails.

For a

number of years, until a few years before the accident, the way across the creek was over a wooden bridge more nearly at a right angle with Prospect street. For eighteen or twenty years the street railway track has been in use along the center of Prospect street. Near the north end of the street the car track turns slightly to the east of the thread of the street, thence runs on beyond the end of the street, on private property, and immediately crosses the creek on the car company's trestle. The trestle can be clearly seen from any point two or three blocks south on Prospect street. On the east side at the north end of the street there is a fence 4 feet high, four boards, 18 feet long,

extending from a point 6 feet east of the east rail of the car track to the corner of a building on the north side of Lottie street. On the opposite side of the street railway track the southerly end of the easterly bridge rail comes within 5 feet and 10 inches of the west rail of the street car track. The evidence shows, with reference to the barriers on each side of the car track, that the city authorities followed the instructions of the public service commission not to place obstructions or barriers nearer than 5 feet to the rails of the car track. provide light for the locality, the city maintained a post light built on each end of the concrete bridge rails, an arc light on a pole placed by the wooden barrier near the corner of the wooden building on the north side of Lottie street, another arc light suspended near the center of Prospect and Lottie streets, and still another on a pole on the west side of Prospect street about 50 feet south of the turn onto the bridge. None of the lights, however, were burning when the accident happened to the appellant.

To

The evidence is perfectly clear from the appellant himself, substantially as follows: tially as follows: He has practised medicine and surgery in Bellingham the last twenty years. His office was at No. 7 Prospect street, and for the last three years his residence was about 2 miles north from his office and within the city limits. The most direct route from his home to his office took him over Dupont and Prospect streets; that was his regular route. There were other streets he could use for that purpose, but they were not so direct. He used a Ford sedan, commencing in July, 1918. He further testified: "I traveled over that street a great number of times before the concrete bridge was put in and afterwards. I knew where the street car track went down Prospect and on across Whatcom creek; knew it well. . I knew that the street car track left the street and went over this trestle bridge."

Returning to his office on the day