in good faith, and that he was interested in a rival concern, and that his purpose was to force a purchase of his stock at an unreasonable price. The answer further averred that petitioner already had knowledge of part of the facts which he sought to ascertain, and that certain books of account of the company had been offered to his counsel for examination. It was admitted that the company had refused to allow the books to be examined by an auditor selected by petitioner, and had also refused to permit an examination as asked for, to ascertain what sums of money had been paid to the corporation since its organization, and how they had been expended. From these charges and countercharges it is very apparent that a substantial dispute exists as to the management of the company. Relator as a stockholder has without question the right to inspect the books of the company, at a proper time, and in a proper way, even though his only object

be to ascertain whether the business has been properly conducted. Such a right is necessary for the protection of stockholders. The relator seeks at the present time merely for information. It may be that as a result of his examination of the books and of the records his suspicions will be shown to be groundless. As the trial judge said, this case does not differ substantially from many others which have been before the courts, and in which the writ of mandamus has been granted. The allegations of the petition are well within the limits laid down as requisite by the authorities. In fact, they are directly within the ruling of this court in the late case of Kuhbach v. Irving Cut Glass Co., 220 Pa. 427, 69 Atl. 981. It is there pointed out that the stockholder has the right to investigate the condition of the company for himself, provided he exercises the right in good faith and in a proper and reasonable way. It is also there held that the averment of an intention to file a bill in equity to restrain the officers from mismanagement and the need of information to that end is sufficient ground for granting the mandamus; and also that the fact that the petitioner is interested in a competing company is not a good and sufficient reason for refusing it. In the present case the order of the court below shows discriminating care in its terms. It is held that plaintiff is entitled to a reasonable personal inspection of the books, and to the aid of a disinterested expert in making such extracts as are reasonably required in the preparation of the bill in equity he proposes to file. At the same time he is prohibited from doing that which would amount to burdensome interference with the business of the company. We see no reason for any just criticism of the conclusion reached, or the order made by the court below.

The judgment is therefore affirmed.

A "vice principal," for whose negligence an employer will be liable to other employés, must whom a master delegates a duty of his own, have entire charge of the business, or one to which is an absolute obligation, from which nothing but performance can relieve him.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 451; Dec. Dig. § 190.* For other definitions, see Words and Phrases, vol. 8, pp. 7313-7316, 7827.]

3. MASTER AND SERVANT (§ 101*)-INJURIES TO SERVANT-SAFE PLACE TO WORK.

to work does not extend to the guarding of each The duty to provide a safe place in which place to which workmen may be sent to do particular work.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 135; Dec. Dig. § 101.*] Appeal from Court of Common Pleas, Allegheny County.

Action by Mary Staebler, executrix of Xavier Staebler, against the Warren-Ehret Company. From an order refusing to take off a nonsuit, plaintiff appeals. Affirmed.

Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.

H. Fred Mercer, for appellant. Wm. S. Dalzell, for appellee.

FELL, J. Xavier Staebler was a roofer, who had been in the employ of the defendant two years before the accident which resulted in his injury. He was sent with four other men to put a tar roof on a car barn. These men were all under the charge of Ewing, a foreman. The defendant had provided rubber shoes for the men to wear and guard rails to be fastened to the edge of the roof, when necessary to secure their safety. Soon after the men went on the roof, Staebler proceeded to put up the guard rails, but was stopped by Ewing, who told him to go on with the work of laying the roof; that the roof was safe without guard rails, but that he would put them on after the first sheet of paper had been laid. Staebler worked an hour and a half on the roof, when he slipped and fell off the edge. The negligence alleged was the failure to place guard rails on the roof.

Unless Ewing was a vice principal, for whose negligence his employer could be held responsible, the plaintiff's case was not made out. He was not in any sense a vice principal. The testimony was that Ewing had charge of the work of putting on this roof, and that the other workmen received orders from him and followed his directions. He worked with the men under him, and did the same kind of work, and at the time of the accident he was engaged in tacking paper on the roof. His duty was to work with the men under him, and to see that they did their work properly on a particular piece of work to which he was sent. "A vice principal, for whose negligence an employer will be liable to other employés, must be elther one in whom the employer has placed the entire charge of the business, or of a distinct branch of it, giving him not merely authority to superintend certain work or certain workmen, but control of the business, and exercising no discretion or oversight of his own (N. Y., L. E. & W. Railway Co. v. Bell, 112 Pa. 400, 4 Atl. 50); or, secondly, one to whom he delegates a duty of his own which is a direct, personal, and absolute obligation, from which nothing but performance can relieve him (Lewis v. Seifert, 116 Pa. 628, 11 Atl. 514, 8 Am. St. Rep. 631;

Ross v. Walker, 139 Pa. 42, 21 Atl. 157, 159, 23 Am. St. Rep. 160; Prescott v. Ball Engine Co., 176 Pa. 459, 35 Atl. 224, 53 Am. St. Rep. 683)." Prevost v. Citizens' Ice, etc., Co., 185 Pa. 617, 40 Atl. 88, 64 Am. St. Rep. 659. It was testified that Ewing had power to hire and discharge men; but it was not shown that he had ever done either. The power to hire and discharge men is a circumstance to be considered in determining whether an employé is a vice principal; but the mere power to hire or discharge does not make a vice principal, except as to the nondelegable duty of selecting competent servants. 26 Cyc. 1315. Nor does "a mere authority to superintend a certain class of work or a certain party of men." N. Y., L. E. & W. Railway Co. v. Bell, 112 Pa. 400,

4 Atl. 50.

The duty to provide a safe place in which to work, to which much of the appellant's argument is directed, does not extend to the guarding of each place to which workmen may be sent to do a particular piece of work. The employer's duty is performed by providing adequate means of making the place reasonably safe. He is not required to supervise the details of the work, and he is not responsible for an error of judgment by a competent foreman who is in charge of the work. Durst v. Steel Co., 173 Pa. 162, 33 Atl. 1102; McHugh v. Steel Co., 219 Pa. 644, 69 Atl. 90.

The judgment is affirmed.

(223 Pa. 321)

MOODY V. MOSSEY. (Supreme Court of Pennsylvania. Jan. 4, 1909.) DEEDS (§ 28*)-NOTE TO DEED-EFFECT.

Where a deed grants certain lands, and edgment an "N. B." is attached, providing that following the signature and above the acknowlthe grantee shall not sell the land, but that it shall descend from him to his heirs by his wife, it is no part of the deed.

[Ed. Note.-For other cases, see Deeds, Dec. Dig. 28.1

Appeal from Court of Common Pleas, Allegheny County.

Action by John Moody against James Mossey. Judgment for plaintiff, and defendant appeals. Affirmed.

The deed in question was as follows: "This indenture made the twenty-second day of September in the year of our Lord one thousand seven hundred and ninetyeight, between Charles Quinn and Elizabeth, his wife, of Robenson township, in the county of Washington, and state of Pennsylvania, of the one part, and John Stewart, of Moon township, in the county of Allegheny, and state aforesaid, of the other part, witnesseth," etc.

"In testimony whereof, the said Charles Quinn and Elizabeth, his wife, have herethe day and year first above written (1798).

unto set their hands and affixed their seals

his

"Charles X Quin. [Seal.]

mark her

"Elizabeth X Quin. [Seal.]
mark

"Signed, sealed, and acknowledged in the presence of William Littell, William Shite. "N. B. The above-described piece of ground is not to be sold by John Stewart, but to descend from to his heirs by his wife, Margaret Quin, now Stewart; it being given to said Stewart as a portion with his wife Margaret.

"Allegheny County-ss.:

"Personally came Charles Quinn and Elizabeth, his wife, and acknowledged the above indenture to be their act and deed and desired that the same be recorded as such.

"Witness my hand and seal this 8th day of November, in the year of our Lord one thousand seven hundred ninety-eight.

"William Littell. [L. S.] "Recorded the 5th day of December, A. D. 1798."

Swearingen, J., filed the following opinion in the court below:

"We do not think that the 'N. B.,' attached to Exhibit A in the case stated, is part of the deed from Charles Quinn et ux. to John Stewart, dated September 22, 1798, and therefore judgment should be entered in favor of the plaintiff and against defendantamount to be liquidated by the prothonotary. "Let judgment be entered accordingly."

It is argued that the plaintiff was negligent in not getting off his wagon and going forward to a place where he could obtain an unobstructed view, and in knowingly attempting to cross in front of a rapidly moving train. There has been no departure from the rule that, if a driver cannot see by looking from the vehicle in which he is riding, he should get out and go forward to a place where he can see; and there should be no departure from it. Kinter v. Railroad Co., 204 Pa. 497, 54 Atl. 276, 93 Am. St. Rep. 795; Mankewicz v. Railroad Co., 214 Pa. 386, 63 Atl. 604. But where a driver has stopped at the usual place of stopping, from which he has a view of the tracks, whether he should go forward in advance of his team to a better place to look is a question to be determined by the circumstances of the particular case. It was said by the present Chief Justice in Ely v. Railroad Co., 158 Pa. 233, 27 Atl. 970: "Stopping is opposed to the idea of negligence, and unless, notwithstanding the stop, the whole evidence shows negligence so clearly that no other inference can be drawn from it, the court cannot draw the inference as a conclusion of law, but must send the case to the jury."

As the plaintiff advanced from the usual stopping place, he had a view for 1,400 feet before his horses reached the first track, and no train was in sight. He saw all that he could have seen if he had gone forward before starting to cross. Neither the court nor the jury could properly adjudge him negligent in attempting to cross. When he first saw the train, his horses were near the middle of the crossing, and he had reason to believe that it was safer to go on than to stop on the first or second tracks, where trains passed every few minutes, or to attempt to back off. He was, moreover, confronted by a sudden peril, and could not be held to the exercise of the highest degree of prudence. The judgment is affirmed.

Where the danger of working near a steam hammer was fully understood by plaintiff, he will be considered to have assumed the risk; and where the danger therefrom results from the carelessness of a fellow workman, plaintiff cannot recover for injuries received.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 600; Dec. Dig. § 217.*] Appeal from Court of Common Pleas, Allegheny County.

Action by S. S. Eddleman against the Pennsylvania Company. From an order re fusing to take off a nonsuit, plaintiff appeals. Affirmed.

Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, and ELKIN, JJ.

John O. Petty, for appellant. S. Dalzell, for appellee.

er.

William

FELL, J. The plaintiff was employed in the defendant's shop as a blacksmith's helpHe was injured by being struck by a tool used by a fellow workman in cutting pieces of cold iron under a steam hammer. There were three steam hammers in the shop, two of which were used for particular lines of work and the third by blacksmiths for vaIn cutting rious purposes as they desired. cold iron with the steam hammer, a square block of steel was placed on the anvil under the iron to be cut. On top of the iron a cutting bar 2 feet long and an inch thick, one end of which was shaped into a handle, was held in such a position that, when forced through the iron, its edge would pass close to the edge of the block below. The bar was held in place by the blacksmith, and the iron to be cut was held in proper position by his helper. There were shears in the shop for cutting cold iron; but it was the custom of the blacksmiths to use the hammer, when more convenient to do so. The plaintiff had worked in the shop five years at a forge within 12 or 14 feet of the hammer. He had frequently used the hammer, and had seen others use it almost daily during the whole of that time. The negligence alleged was in permitting the hammer to be used for an improper purpose, and it was averred that its use was made more dangerous by reason of the failure to keep it in good repair.

It appeared from the plaintiff's testimony that the only danger to be apprehended by those working in the vicinity of the steam hammer arose from its careless or unskillful use. If the cutting bar was not held flat on the surface of the iron and with its edge in alignment with the edge of the steel plate below, or not firmly held, it might be thrown from under the hammer. The danger would be increased if the face of the hammer or the surface of the bar became wet and slippery, lessening the friction, which was an aid in keeping the latter in place. There was danger of the same kind, but less in degree, in the use of shearing and shaping tools on hot iron, a work in which a steam hammer was always employed. The evidence as to want of repair was that a cup by which oil was supplied to the cylinder head was imperfect, by reason of which the packing, not being oiled, would wear out faster, and would require renewal more fre quently, than if oiled. If it was not renewed, steam would escape and cause a dripping of water down the piston rod to the hammer. The hammer was in charge of a hammerman, whose duty it was to attend to the packing