couplings of different cars and makes, but that he did not understand the coupling of this car; he had never seen it; he did not know whether cars of this kind were used in this community; and he said that the various makers of cars made different cars and all had different designs. He never saw a draw-head constructed like the one described, and he said that all that he had seen were solid bars, welded. But he also frankly stated that he would not be able to pass upon the construction of the car, unless he saw it. He was then asked to express an opinion as to whether or not the construction, as described, was a safe construction, and questions to this effect were disallowed because I thought that the witness, under the law, was not in a position to give such an opinion. However, in the present proceeding, they must be considered as answered by him, and the case must be discussed from that standpoint.

In the first place, I do not see what the breaking of the bolts had to do with this accident. It must be remembered that the motor was pushing the cars up hill, and the bumpers of the two cars, or whatever connected them, were in such a position as to enable the force to be applied to the rear car. It was not proven that the breaking of the bolts threw the plaintiff between the cars. The jar from the two applications of force was the act of the motorman, and the plaintiff must have been thrown by it between the cars before the bolts broke, or he would not have been thus caught. The proximate cause of the accident, according to this theory, would have been the sudden application of force in operating the car, which, at the same time, threw the plaintiff off the bumper and broke the bolts. The proximate cause of the accident would not then, be the breaking of the bolts, but the manner in which the car was operated. There was no evidence in this case that the couplings or brakes, or indeed anything connected with the car, were out of repair, nor that they were any different from those generally used. There were no defects in them, so far as could be observed, and neither the employer nor the employee knew that they were insufficient. Each had an equal opportunity of ascertaining that fact, if such it was. That they were sufficient for ordinary purposes is evident from the fact that they had been used in the same manner

by the same employees for a number of days preceding, and from the testimony of the plaintiff himself it can be fairly concluded that they were sufficient for the purposes for which they were used, if not overtaxed. If the accident occurred by reason of the motorman having, in an unnecessasry and extraordinary manner, jarred the car, by reason of which the bolts were broken, the plaintiff could not recover, for the motorman was a fellow-servant of the plaintiff, and for such negligence the defendant was not responsible. "To constitute two persons fellowservants, it is sufficient if they are in the employ of the same master, engaged in the same common work, and performing duties and services for the same general purpose:" Spees vs. Boggs, 198 Pa., 112. And "a recovery of damages cannot be had by an employee from his employer, for an injury caused by the negligence of a coemployee, engaged in the same common work and performing duties and services for the same general purposes:" Duffy vs. Oliver Bros., 131 Pa., 203; Shank vs. Edison Electric Illuminating Co., 225 Pa., 393.

It has been decided that, "where an accident results from an unforeseen cause, not discoverable in advance of its occurrence, with no visible defect in any part of the machinery, and no knowledge of any defect on the part of the men who were constantly using the machinery, or of the employer, the accident is one of the ordinary risks of the employment which the servant takes upon himself:" Bradbury vs. Kingston Coal Co., 157 Pa., 231; O'Dowd vs. Burnham, 19 Sup., 464. If, then, there was no visible defect in the brake, or draw-head, or bolts, the defendant would not be liable for an unforeseen accident.

Again, the law as to proper appliances is well settled. "An employer performs his duty when he furnishes appliances of ordinary character and reasonable safety, and the former is the test of the latter. For, in regard to the style of the implement, or the nature of the mode of performance of a work, 'reasonably safe' means safe, according to the usages, habits and ordinary risks of the business:" Titus vs. Bradford, etc., R. Co.,

136 Pa., 618. "It is not an accurate definition of the duty of a master to his servant to say that he must furnish 'a safe place to work and safe tools with which to work.' Employers are only required to

furnish a reasonably safe place in which, and reasonably safe tools with which, to work:" Powell vs. American Sheet and Tin Plate Co., 216 Pa., 618; Welch vs. Carlucci Stone Co., 215 Pa., 34. In the Phila. and Reading R. Co. vs. Hughes, 119 Pa., 301, it was held that "the duty of a railroad company to exercise ordinary care in providing and maintaining cars that are safe, and suitable appliances and machinery to be operated by their employees, does not require the adoption of the best machinery which can be procured or that which combines the latest devices or improvements, but such only as is reasonably safe and in common use;" and in Payne vs. Reese, 100 Pa., 301, that "an employer is not bound to furnish for his workmen the safest machinery, nor to provide the best methods for its operation, in order to save himself from responsibility for accidents resulting from its use. If the machinery be of an ordinary character, and such as can, with reasonable care, be used without danger to the employee, it is all that can be required from the employer.' In Cunningham vs. Fort Pitt Bridge Works, 197 Pa., 625, it was held that "the party charging negligence does not show it by showing that the machinery was not in common use. If it should be so held, the use of the newest and best machine, if not yet generally adopted, could be adduced as evidence of negligence." It is important for the plaintiff to show that "the method used by the defendants was unusual, and was more dangerous in itself than the ordinary method:" McGeehan vs. Hughes, 217 Pa., 121. The ground of liability is not danger, but negligence, and the test of negligence, in respect of machinery, is the ordinary usage of the business: Ford vs. Anderson, 139 Pa., 261.

In Mixter vs. Imperial Coal Co., 152 Pa., 395, a brakeman brought suit to recover damages on the ground that the brake was out of order at the time of the accident, and that the plaintiff was thereby unable to control the car, so that it ran away with him. It was held that this was insufficient in itself to establish the negligence of the master. In Titus vs. Bradford, etc., R. Co., supra, the action was for the death of a brakeman, and the negligence complained of consisted of the use of a particular broad-gauge car body upon a narrow-gauge truck. The carriage of such cars was a part of defendant's ordinary

business, and cars like this had been often carried. It was held that, in the absence of proof that the carrying of this car was an unusual occurrence, and the plaintiff's testimony showing that the brakeman accepted his employment with knowledge of the practice, he could not recover. In Clark vs. Garrison Foundry Co., 219 Pa., 426, an employee was injured by the blowing out of a stopcock of a whitewashing machine operated by compressed air; there was no evidence whatever of any defect in the construction or material of the machine, and nothing to show that it was worn or in any way out of repair. It was held that the employee could not recover against his employer. In Sandt vs. North Wales Foundry Co., 214 Pa., 215, the evidence failed to disclose any defect in the appliances used, or, if any defect existed, it must have been seen by the plaintiff. It was held that, "of the several theories advanced for the cause of the accident, one was as plausible as the other; and that, if the case were left to the jury, the verdict would be a mere guess as to the real cause." In Hemscher vs. Dobson, 220 Pa., 222, a girl of fourteen years had her hand caught in a machine at which she was working, by reason of its suddenly starting up. The plaintiff had worked upon the reel from eight days to two weeks and she appeared familiar with it. The accident was due solely to the starting of the machinery, and there was no testimony that the employers were in any way responsible for the starting, or had any knowledge or reason to anticipate that it was liable to start of its own accord. It had never done so before. A judgment of non-suit was entered. In Simpson vs. Pittsburgh Locomotive Works, 139 Pa., 245, the plaintiff's husband was killed by the bursting of an emery wheel. There was no evidence showing what caused the emery wheel to burst, that it was improperly set up, or that there was any defect in it which was known or which might by reasonable diligence have been known to the defendant company. It was held that the plaintiff could not recover. See, also, Augerstein vs. Jones, 139 Pa., 183; McAvoy vs. Pennà. Woolen Co., 140 Pa., 1. In Alexander vs. Pennsylvania Water Co., 201 Pa., 252, in an action by a servant against a master to recover damages for personal injuries caused by an alleged defective portion of a pump, it was held to be error to submit the case to the

jury, where there is no proof of what caused the accident, and mechanical experts testify that the accident might have resulted from several causes, and all that plaintiff relies upon is, a mere assumption on his own part that the alleged defective portion of the pumps was so constructed under the supervision of the defendant's general superintendent that it was not able to stand the pressure to which it was subjected. Where the plaintiff's case rests wholly upon a supposable theory, not supported by established facts, and from the same facts three other just as probable theories are deducible, and neither one of them imputes liability to the defendants, there can be no recovery. To permit it would be to allow a recovery on mere proof of an accident."

...

Therefore, upon this consideration of the facts of this case and the law which I am of opinion is applicable to it, I have concluded that it was proper to enter a judgment of non-suit. I do not think anything has been advanced to warrant a different conclusion, and, for this reason, the rule is now discharged.

Rule discharged.

RAPHAEL AND ZEUGSCHMIDT vs. SALTZER, ET AL.

Case Stated-Exemption of Bankrupt Debtor Under the Act 9 April, 1849.

Where a case stated is submitted with authority to enter judgment for or against one of the parties who is not a party to any case in court and who is not an applicant to take any money out of court that has been paid into court by a stakeholder, such attempted submission is irregular and a case stated under such circumstances will be quashed.

Where a bankrupt debtor claims his exemption under the Act of 9 April, 1849, he must select it from property owned by him and he can. not, by agreement with his trustee, omit such selection and claim the amount of his exemption from the proceeds of the property after its sale.

Where a case is stated in an attachment execution proceeding to determine the right to a fund between an attaching creditor and one who claims by assignment from the bankrupt debtor, which fund is the $300.00 exemption allowed the debtor, but it is not shown by the agreed facts that the bankruptcy court had set apart the fund to the bankrupt, the court is without power to enter judgment, for, until the exemption is set apart by the bankruptcy court, the fund is in the hands of the trustee like other assets of the bankrupt's estate and answerable to the bankrupt's debts.