the railroad were not lowered but because of intervening buildings to his right he was unable to obtain a view of the road to the west, the direction from which the train that collided with his wagon was approaching. No view of the track was observable until the first track had been reached because of building obstructions and some box cars that were on the siding. He says he stopped at this point long enough to look and listen, and, not seeing or hearing anything to indicate the approach of a train-we here use his exact language: "Then I drove on; I didn't go in a hurry. I just drove my horse on a walk. *** I didn't hear nothing, and I didn't see nothing, all at once whrrp! and I was struck. I didn't know what happened until afterwards." "Q. How far away-20 feet you said? A. About 20 feet or so. "Q. And then you drove right on and didn't stop again? A. No, because I didn't hear nothing and see nothing. There was nothing to hear and nothing to see. did, it would remain absolutely concealed un til the first track was reached. The plain duty that the law enjoins under such circumstances is that the traveler go upon the track itself and look and listen before attempting to drive his team across. Lehigh Valley R. R. v. Brandtmaier, 113 Pa. 610, 6 Atl. 238; Penna. R. R. v. Ackerman, 74 Pa. 265; Penna. R. R. v. Beale, 73 Pa. 504, 13 Am. Rep. 753; Kinter v. Penna. R. R., 204 Pa. 497, 54 Atl. 276, 93 Am. St. Rep. 795. Again, it is settled law that, when one has entered upon the tracks of a railroad with a view to crossing over, the duty continues to rest upon him throughout to exercise his senses to discover danger; he must continue to look and listen. This duty was manifestly disregarded in this case. According to his own testimony the first opportunity he had to look westward upon the tracks of the railroad was when he reached the first track; at that point he had an unobstructed view. Without stopping, because as he said he saw nothing and heard nothing, he drove to the next track, when he was instantly struck by the passing train. The statement that he looked and listened when upon the first track and neither heard nor saw the oncoming train is incredible. [3] We said in Carroll v. Penna. R. R., 12 Wkly. Notes Cas. 348, and have had frequent occasion to repeat it, that it is vain for a man to say that he looked and listened, if, in spite of what his eyes and ears must have told him, he walked directly in front of a moving locomotive. That is just what the plaintiff here did. That he was driving rather than walking can make no possible difference with respect to his duty. Nor did the fact that, when he entered upon the crossing, the safety gates were not lowered relieve him from the "Q. And that train was going on the eastbound track, was it not? A. On the east-duty of exercising the care required under bound track; yes, toward the station. "Q. And it came from Bethlehem Junction, in that direction? A. I don't know where it came from; I didn't see it. "Q. It wasn't on the track when you drove on? A. It must have been, but how far away I don't know." [1, 2] With these as the established facts in the case, it is impossible to reach other conclusions than that the plaintiff failed utterly in several respects to meet the requirements which the law imposes on all travelers under similar circumstances. First, he was negligent in advancing upon the tracks with his horse and wagon under the circumstances. In approaching the crossing he stopped to look and listen when within 20 feet of the track, at a point where the railroad track was absolutely concealed from his view and where, to one approaching the crossing as he the circumstances. In Greenwood v. Phila. W. & B. R. R. Co., 124 Pa. 572, 17 Atl. 188, 3 L. R. A. 44, 10 Am. St. Rep. 614, we said, speaking through Chief Justice Paxson: "Conceding that the company was required to take extra precautions by reason of the gates being out of order, yet the plaintiff was also bound to do his part. He has no right to omit the ordinary precautions when approaching a railroad crossing merely because he finds the ** In all such cases the safety gates up. of the traveling public requires that each party shall be held to the exercise of due care." From the plaintiff's own narrative of the occurrence it is impossible to reach any other conclusion than that his own want of care or negligence contributed to the happening of the accident from which he suffered his injuries. The judgment is reversed, and judgment is now entered for the defendant. (42 R. I. 404) (108 A.) BRIGHT v. WILCOX. (No. 461.) (Supreme Court of Rhode Island. Dec. 5, 1919.) STEARNS, J. This suit was brought in Washington county for the specific performance of a contract by which the respondent agreed to sell and convey certain land in said county to the complainant, Bright. The 1. SPECIFIC PERFORMANCE 132 DELAY parties thereafter made an agreement in writ WHICH IS NOT "LACHES.' - Where decree for specific performance specified no time within which payment to vendor was to be made, and the question of amount was left to decision of the master, but never determined, held that failure to press suit before master for several years did not constitute laches barring intervener, to whom complainant vendee had assigned contract, from right to performance of decree; mere delay to enforce a right not being "laches." [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Laches.] 2. VENUE 44- JURISDICTION OF COURT WHERE LAND NOT SITUATE ON AGREEMENT TO TRANSFER OF CAUSE. The superior court of Providence county had jurisdiction to enter decree in suit for specific performance of contract to sell and convey land in Washington county, the cause having been transferred from Washington county for trial and disposition with the consent of the court, and pursuant to written agreement between the parties. Where transcript was prepared by agree ment of the parties, used at the request of the parties by the trial justice to assist him in his decision of the cost, and the parties agreed to share the expense, but respondent failed to pay his share, and the whole cost was paid by complainant, the court did not err in providing in decree for deduction from the amount to be paid by the complainant of one-half of the cost of the transcript. 4. SPECIFIC PERFORMANCE 130-INTEREST ON PURCHASE MONEY UNDER CONTRACT ENFORCED. Where decree for specific performance of contract to convey land fixed no time for hearings for determination of amount to be paid by complainant purchaser or for payment of the amount, and responsibility for delay in proceedings for determination of amount to be paid by complainant rested upon both parties, respondent is not entitled to interest. Appeal from Superior Court, Washington County; Willard B. Tanner, Judge. Suit by Robert L. Bright against John T. Wilcox. Complainant died pending suit, and his administrator entered appearance, and Thomas G. Bradshaw, receiver of the New England Supply Company, filed a petition for leave to intervene as a party complainant. From decree rendered, Wilcox appeals. Appeal dismissed, decree affirmed, and cause remanded. ing, whereby the cause, with the consent of the court, was transferred to the superior court in Providence county for final hearing and disposition. After a hearing in Providence on various days, a decree in favor of the complainant was entered in Providence, November 7, 1914, by which it was adjudged that Bright was entitled to specific performance of the contract; that the cause should be referred to a standing master in chancery to determine the amount and value of timber and other materials removed by the respondent from the land in question after the date of the contract of sale, and that complainant was entitled to have the value of such timber applied as a credit or payment on the unpaid balance of the purchase price; that, upon the payment to the respondent or into the registry of the court the balance which should be found to be due of the purchase price, less the value of the wood removed, the respondent should make a proper conveyance of the property. The suit was then referred by the court to a master to take an account of the damage done to the property, but no hearing was ever had on the matter by the master, and no action was ever taken by either of the parties to secure a hearing. In March, 1918, the death of complainant Bright, which occurred in February, 1917, was suggested to the court by the administrator of his estate, who then entered his appearance in the cause and assumed the prosecution thereof. January 17, 1919, Thomas G. Bradshaw, receiver of the New England Supply Company, filed a petition for leave to intervene as a party complainant, to assume and continue the prosecution of the cause, and offered to perform the contract in behalf of the vendee, and asked that the respondent be ordered to make a conveyance to him upon the payment of the amount of money which should be found to be due the respondent. By affidavit in the petition it appears that all of the interest of the original complainant, Bright, in the contract sued upon had for valuable consideration been transferred to said corporation, and that Bright had been prosecuting the suit in its behalf. The widow and the heirs of the complainant Bright then entered their appearance in the suit, and they and the administrator of his estate admitted the truth of the facts alleged in the affidavit and petition to interWilliam W. Moss, of Providence, for in- vene, and assented to the filing of the petitervener. tion. John J. Dunn, of Westerly, for respondent. The suit was then, upon motion of the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes intervener, assigned for hearing in the supe- [ delay worked a disadvantage to the respondrior court for Providence county upon the re- ent. Mere delay to enforce a right is not lief prayed for in the intervening petition. laches. Chase v. Chase, 20 R. I. 202, 37 Atl. After the hearing, the intervener having filed 804. To the same effect see Bright v. James, a waiver of any claim that he might have 35 R. I. 128, 85 Atl. 545, Ann. Cas. 1915B, for a reduction from the purchase price of 1099. As the respondent failed to act when the property by reason of any damage done he had the power to do so, he cannot now thereto by the respondent, a decree was en- justly place the entire fault for the delay in tered April 17, 1919, by which the respondent the proceedings on the complainant. The was ordered to convey the property to the petitioner is not barred from his right to intervener, upon payment by the intervener the performance of the decree on the ground into the registry of the court of the balance of laches. of the purchase price, namely $985.00, less the complainant's costs, including the master's fee of $12, and one-half the cost of the transcript of the testimony taken in this suit and another suit involving the same issues and between the same parties and others, which had been tried together by agreement of the parties. [1] The cause is now before this court on the appeal of the respondent from this decree. The principal ground urged against the decree is that the original complainant, Bright, by his delay was guilty of laches in not conforming with the terms of the decree of the superior court of November 7, 1914 and as a consequence it is claimed that the intervener who stands in the shoes of Bright is not entitled to the relief prayed for. The respondent neither in this court nor in the superior court has presented any testimony in support of this claim, but relies solely on such facts as appear from the court record of the proceedings. [2] The second reason of appeal is that the superior court was without jurisdiction to enter a decree in said cause in Providence. There is no merit to this objection, as the action complained of was of such a nature that it could properly be heard in Providence, and it was heard there at the express request of the parties. [3] The third reason of appeal is that the court erred in providing in the decree for the deduction from the amount to be paid by complainant of one-half of the cost of the transcript of the testimony. The transcript in question was prepared by agreement of the parties after the hearing on the originaì bills in equity, and was used at the request of the parties by the trial justice to assist him in his decision of the cause. The parties agreed to share the expense, but the respondent failed to pay his share, and the whole cost was paid by complainant. There was no error in the order of the court in this respect. The matter of costs by the original decree was expressly left open, and the deduction of respondent's share was properly ordered by the court. [4] The respondent at the hearing before this court has asked that he be allowed interest on the purchase price, although no objection was specifically taken to the decree on this ground. By the decree no time was specified within which the payment to the vendor was to be made. The question of the amount to be paid by the vendee was undetermined, and was left to the decision of the master. Neither party made any effort to press the suit before the master, and, as each party had an interest in the subject-matter of the suit, and as both parties must take part in any hearing, it was in the power of either party who desired the action to proceed before the master to take the initiative. In the circumstances the failure to press the suit before the master cannot be held to be a fault on the part of one party more than of the other. The respondent made no demand for action, and during all this period had, and in fact still retains, a part of the purchase price, The appeal is dismissed, the decree appealand, so far as appears, the delay now com-ed from is affirmed, and the cause is remandplained of may have been in accordance with ed to the superior court sitting in Washington his wishes. There is no evidence that the county for further proceedings. For the reasons already stated, we do not think he is entitled to interest. The amount of payment was not determined, and no time limit, either for hearings or payment, was fixed in the decree; and, as we have already stated, the responsibility for the delay in pushing the proceedings rested upon both parties. PARKER v. TCATH. (No. 452.) (Supreme Court of Rhode Island. Dec. 3, 1919.) Appeal from Superior Court, Providence and Bristol Counties; Willard B. Tanner, Presiding Justice. Suit by Bertha Parker against Morris A. Tcath. Decree for respondent, and complainant appeals. Affirmed, and cause remanded. Quinn & Hernan and Charles A. Kelley, all of Providence, for appellant. William C. H. Brand, of Providence, for appellee. PER CURIAM. This is a bill in equity, brought by the complainant, Bertha Parker, against the respondent, Morris A. Teath, setting forth that she and the respondent entered into an agreement to purchase the assets of the Providence Co-operative Sheet Metal Company and to carry on a partnership business under that name; that said assets were so purchased; that complainant's husband was installed as manager of the business; and that such partnership continued for a period of about four months, when the respondent ousted the complainant from the premises and thereafter prevented her and her husband from obtaining access thereto. The bill further alleges that, after being thus evicted from the premises, she discovered that in the record of the copartnership at the city hall in Providence her name did not appear. The bill prays for a dissolution of the copartnership, an accounting, and the appointment of a receiver. The case was heard in the superior court upon the single issue of fact: "Were the complainant and respondent engaged in business as partners under the name of the Providence Co-operative Sheet Metal Company, as alleged in the complainant's bill of complaint?" The superior court found the fact to be that no such partnership existed, and a decree was entered accordingly, dismissing the complainant's bill. We see no advantage in discussing the testimony in detail. While there is some conflict, we cannot say that the decision of the superior court is erroneous or clearly wrong. In reality it appears to us to be sustained by a preponderance of the evidence. The complainant's appeal is dismissed, the decree of the superior court is affirmed, and the cause is remanded to that court for further proceedings. (93 N. J. Law, 473) NEWMAN v. MANKOWITZ et al. (No. 34.) (Court of Errors and Appeals of New Jersey. Nov. 17, 1919.) MASTER AND SERVANT 405(4)-WORKMEN'S COMPENSATION; EVIDENCE SHOWING DEATH IN COURSE OF EMPLOYMENT. ness, was killed in the personal employment of the president when they were witnessing the test of an ammonia refrigerator tank. Certiorari from Supreme Court. Action by Sadie Mankowitz, administratrix of the estate of Louis Mankowitz, deceased, and others against Jacob L. Newman, administrator of the estate of Samuel Botkin, deceased. Judgment for plaintiffs, and defendant appealed to the Supreme Court, which affirmed, and defendant brings certiorari. Judgment affirmed. On appeal from the Supreme Court in which the following per curiam was filed: "Employer and employé were killed by the same accident, which was the explosion of an ammonia tank. For the prosecutor it is claimed that there is nothing in the evidence to support a finding by the trial court that the accident arose out of and in the course of the employment. "The facts are substantially as follows: Botkin was in the wholesale milk business; Mankowitz was his son-in-law, and described by the witnesses as his right-hand man. The evidence justified the conclusion that he was Botkin's general utility man. "Botkin had a creamery at Whitehouse, N. J., from which he seems to have obtained most of his milk, and he visited it once a month, or Mankowitz did for him, to pay off the farmers and attend to the disbursements generally. Also Botkin had organized a corporation called the Interstate Milk & Cream Company, of which Mankowitz was to be manager and a director; one Ellis, Botkin's bookkeeper, was also to be a director, and the testimony is that when this concern actually began operations, Botkin was to give up his private business and turn it all over to the Interstate; Mankowitz was then to cease being Botkin's manager, and apparently the whole business was to undergo a transformation into the Interstate concern. The formal organization seems to have been completed by the day of the accident, but operations had not begun. In fact, there was to be an informal meeting of the directors to witness a test of an ammonia tank, evidently intended to be used for refrigerating purposes. Mankowitz came to Botkin and said, 'We have to go to Whitehouse;' Botkin responded 'We must go to the Interstate first.' The matter was settled by their going to the Interstate; and, while they were witnessing the test, the tank exploded and both were killed. This is the situation which petitioner claimed constituted an accident arising out of and in the course of Mankowitz's employment. Judge Osborne so found, and this certiorari is to test the propriety of that finding. "The case was a close one, but we are inclined to think that the finding can be sustained. It is true that Mankowitz was there as a director of the Interstate Company, but in our judgment that did not prevent his being Evidence held to justify finding that the there also as the right-hand man of Botkin. son-in-law and general utility man of the presi- The latter was president and principal owner dent of a creamery company, though also a of the Interstate Company, and the testimony director and manager of the company, which is entirely consistent with a finding that Botkin was to take over the president's personal busi-wanted Mankowitz there to advise him, as presi For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes dent and principal owner, whether the money | 23, 1917, the date when the petition was filed. that he (Botkin) had put into the company The proofs showed that the defendant had should be invested in this particular tank; in left her husband's home in December, 1912; short, that Mankowitz was there in a dual ca- that they remained apart until the following pacity, as manager of the new company, and September, when he visited her at Bridgealso as Botkin's adviser and right-hand man. The interests of the two were substantially port, where she was then living, and spent identical, so that there is no difficulty about a two days at her home, during which time conflict of interest. It was just as much Bot- they resumed marital relations. At the end kin's interest that there should be a good am- of his visit he returned to his own home at monia tank as it was that of the company. Little Falls, N. J., and since that time they We think that in this aspect of the case the have continued to live apart. finding that Mankowitz was in the employment of Botkin and doing his work at the time of the accident was justified, and this leads to an affirmance of the judgment below." Lindabury, Depue & Faulks, of Newark, for appellant. Fort, Hunt & Shipman, of Newark, for respondents. PER CURIAM. The judgment under reThe judgment under re view will be affirmed for the reasons set forth in the opinion of the Supreme Court. (91 N. J. Eq. 147) HYER v. HYER. leads us to the conclusion that the wife was (Court of Errors and Appeals of New Jersey. quired by the statute. Tracey v. Tracey (Ch.) Nov. 17, 1919.) 43 Atl. 713. The duration of time between 1. DIVORCE 37(5)—DESERTION PRIOR TO RE- their resumption of marital relations and the SUMPTION OF MARITAL RELATIONS NOT CON- The period of time preceding the resumption of marital relations by husband and wife living apart cannot be considered to be a part of the two years of willful, continued, and obstinate desertion of one spouse by another required by the statute for divorce. filing of the petition is ample to entitle the husband to the divorce sought, provided the wife alone was responsible for their living apart during that time; that is to say, provided she was guilty of a willful, continued, and obstinate desertion. That she was the deserting party is conceded; that the deser tion was willful and continued is not de 2. DIVORCE 37(8)-DESERTION OF HUSBAND nied; but the proofs will not justify the BY WIFE NOT OBSTINATE. Where a husband and wife after resuming relations lived apart long enough to entitle the husband to divorce if the wife was guilty of the obstinate desertion required by statute, but not only was the husband derelict in his obligation to make advances or concessions, his conduct having contributed to the wife's alleged desertion, but he was apparently content to have the separation continue, he was properly refused divorce. Appeal from Court of Chancery. Suit for divorce by Henry Hyer against Sophie Hyer. From decree for respondent, complainant appeals. Affirmed. conclusion that this desertion was obstinate, within the meaning of the statute. In Hall v. Hall, 60 N. J. Eq. 469, 46 Atl. 866, we pointed out that it was entirely settled that a desertion in order to be obstinate must be persisted in against the willingness of the injured party to have it concluded; and that when the husband has by his conduct toward his wife contributed in any degree to her original desertion, the law requires that he should evidence that willingness by making such advances or concessions to his wife as might be reasonably expected to induce her to return to him. The case fails to show the making of any such advances or concessions by tember, 1913, when they resumed marital Addison P. Rosenkrans, of Paterson, for the husband to the wife subsequent to Sepappellant. Albert Comstock, of Paterson, for respond- relations. On the contrary, a reading of ent. PER CURIAM. This is a suit for divorce brought by a husband against his wife, his complaint being that she had been guilty of a willful, continued, and obstinate desertion for a period of two years prior to January the evidence makes it reasonably clear, not only that he was derelict in the performance of this obligation, but that he was content to have the separation continue. This being so, the Court of Chancery properly refused to grant him a divorce. The decree appealed from will be affirmed. |