made at that time, and said the request was first made the next day at the time fixed for settlement. Defendant then objected to the use of the word "negotiations," saying he considered the term too broad, the fact being that negotiations had previous to that time been pending for the sale of the property with a number of persons. He, accordingly, suggested the word "negotiations" be changed to "agreement," which was done by plaintiff's stenographer. A tender of the purchase money was made without the certificate, and refused by plaintiff. Defendant declined to sign the paper until he had consulted his attorney, and left plaintiff's office for that purpose, taking the paper with him. His attor interest in the property. Plaintiff claimed a share in the profits of the sale, alleging in support of his claim that defendant concealed from him the fact that negotiations for the sale were pending previous to and at the time of the conveyance of plaintiff's interest to defendant. The bill asked that defendant be declared trustee of a mortgage, forming part of the consideration for the property, and that the court fix the exact amount of plaintiff's interest in the security. The court below dismissed the bill on the ground that plaintiff failed to prove facts necessary to create a constructive trust, or make defendant a trustee ex maleficio of the one-half interest in the land. Plaintiff appealed. It appears from the findings of the courtney advised against signing the paper until below, which are amply supported by the tes- he had secured a written statement from all timony, that plaintiff and defendant had for parties who had been solicited to buy the some time conducted negotiations with vari- property, to the effect that no agreement up ous persons for the sale of the property, to that time had been entered into, which among them Robert L. James, of the city of was accordingly done. The parties again met Pittsburgh, who expressed his willingness to on February 17 to complete the transaction, purchase the entire property for the sum of and defendant produced the paper, which $36,000, saying, however, he was unable to had been corrected by changing the word do so until further developments were made "negotiations" to "agreement." In the inin other mining properties he at the time terim, plaintiff prepared a new copy of the owned. Plaintiff had knowledge of these ne- original paper, in which he restored the word gotiations and of the proposition made by "negotiations," and laid it on the table with James. In the meantime, and before James the deed to the premises. Defendant signed signified his intention to become the pur- the newly prepared certificate without readchaser, a difference arose between plaintiff ing it, believing it to be his own draft of the and defendant, and, at a conference between paper in which the word "negotiations" had them on February 2, 1920, defendant, on been changed to "agreement," but which plaintiff's request for a proposition, stated subsequently proved to be the rewritten one he would give or take $10,000, with accrued produced by plaintiff. Defendant's signature interest and taxes, for a half share in the was witnessed by his attorney, who was not property, to which plaintiff immediately re- aware of the existence of the original paper plied, "You can have my interest on those containing the word "negotiations." Defendterms." Defendant accepted plaintiff's offer ant having subsequently sold the property to and a check was drawn and delivered for James at the latter's original offer of $36,000, $500 and a receipt given, stating the payment plaintiff claimed a share of the profit realwas on account of the sale of plaintiff's in-plaintiff ized, alleging that defendant concealed from terest in the property to defendant. The parties agreed to complete the transaction him the fact that negotiations had been pendon the following day. The principal dispute ing with the purchaser. shown by the testimony is as to what was The testimony shows that James subsesaid concerning a writing set forth in plain- quently decided to carry out his original detiff's bill, signed by defendant, dated Febru-sire to purchase the property at the price ary 17, 1920, and containing the following named. There is no evidence that an agreement to that effect existed at the time plainprovisions: tiff sold his interest to defendant. Although "This is to certify that I, George W. Daw-negotiations had been pending with James son *** have purchased all of the vided one-half interest in [here follows a description of the property and conditions], the said sale being conditioned upon the representations of George W. Dawson to the said T. D. Williamson that he has not, prior to this date, sold said coal or entered into negotiations, either verbal or written, for the sale of said coal." Plaintiff testified he informed defendant at the first interview on February 2 that unless the latter signed a certificate of the character above recited, plaintiff would not for some time, plaintiff knew of these efforts to sell to him, and was aware that James expressed a desire to purchase the property at a future time at the price named. Plaintiff was, accordingly, not misled, as to the existence of these negotiations, and is not in a position to claim they were concealed from him. We are clearly of the opinion the court below was fully justified by the evidence in finding defendant signed the certificate, believing it to be the one in which he had, in plaintiff's presence, caused the (116 A.) word "agreement" to be substituted. Know- | From judgment entered thereon defendant ing this, plaintiff was bound to call the atten- appealed. tion of defendant to the fact that he had presented a redrawn copy of the certificate in its original form, and, failing to do so, cannot now ask a court of equity to assist him in taking advantage of defendant's mistake. Under all the circumstances the court below properly concluded that plaintiff failed to prove the facts necessary to entitle him to an accounting of the proceeds of the sale of the property. The decree of the court below is affirmed, at plaintiff's costs. (272 Pa. 364) The facts are practically undisputed, and are as follows: Two cars, a gondola and box car, were detached from a train to be placed in the yard of an industrial plant. Running along the track of the switch was a wall or cribbing, about 5 feet high, constructed of railroad ties. At the end of the switch, adjoining the main track, was an open space of 10 or 12 feet between the switch and the cribbing; this space gradually contracting until the apex of a curve in the track and cribbing was reached, at which point the two came quite close together. The testimony fails to fix the exact distance between them. In shifting the cars deceased, as was his duty, "threw a switch" located near the apex of the curve, and while walking toward DOLLAR SAVINGS FUND & TRUST Co. v. the final destination of the two cars was PENNSYLVANIA CO. (Supreme Court of Pennsylvania. Jan. 3, 1922.) caught at the apex of the curve between the gondola car and the cribbing, as the car "bellied" toward the wall in rounding the curve, inflicting the injury which resulted in the 1. Master and servant 288 (5)-Assumption death of appellee's decedent. Deceased had of risk of injury by car passing wall held for been in the employ of defendant company for jury. Whether a railroad yard workman assumed 35 years, during which time he was engaged the risk of being squeezed to death while walk-in clerical work, except the two weeks immeing between a car and a wall on a siding where diately preceding his death, when his emhe never had been before, and where there ployment was with the yard crew as flagman. were no warning signs, held for the jury. 2. Master and servant 217(1)—Assumption of risk depends on knowledge. An employé does not assume the risk unless he knows the circumstances and appreciates the risk. Appeal from Court of Common Pleas, Allegheny County; John C. Haymaker, Judge. Action by the Dollar Savings Fund & Trust Company, executor of the estate of William H. White, deceased, against the Pennsylvania Company. Judgment for plaintiff, and defendant appeals. Affirmed. Argued before FRAZER, WALLING, SIMPSON, KEPHART, and SCHAFFER, JJ. Robert D. Dalzell (of Dalzell, Fisher & Dalzell) of Pittsburgh, for appellant. Robbin B. Wolf (of McCreery & Wolf) of Pittsburgh, for appellee. He had not been over this switch before the day of the accident. There was no warning sign of danger, and he had not been warned that the curve was a dangerous point. [1, 2] The statement of the question involved is: "Whether a yard workman assumed the risk when squeezed to death while walking in between a car and a wall on a siding where he never had been before and where there was no warning signs." An employé must know the circumstances and appreciate the risk before he will be held to have assumed it. Here we have no evidence that deceased was aware that the middle of the car would swing toward the wall in rounding the curve, or that the open space at the curve would be decreased by the car's movement and made more hazardous than at other points along the cribbing, or that the situation was so plainly observable that he must be presumed to have known his safety PER CURIAM. Plaintiff's decedent, with was jeopardized. Swartz v. Bergendahlothers of the train crew of which he was a Knight Co., 259 Pa. 421, 103 Atl. 220; Texas member, was engaged in shifting cars from & Pacific R. R. v. Swearingen, 196 U. S. 51, a main track over a switch into an industrial 25 Sup. Ct. 164, 49 L. Ed. 382. The question plant, and while so occupied received injury involved in this case was clearly for the jury, from which he died two hours later. A ver- and was submitted by the court below in a dict was rendered in favor of plaintiff for fair charge. $8,000, which the court reduced to $6,500. The judgment is affirmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (272 Pa. 329) In re MILES' ESTATE. Appeal of ROSS et al. (Supreme Court of Pennsylvania. Jan. 3, 1922.) 1. Descent and distribution 40 Second cousins cannot take while there are first cousins living. Act June 7, 1917 (P. L. 429, § 10; Pa. St. 1920, § 8368), providing that in default of all persons hereinbefore described the real and personal estate of the intestate shall descend to and be distributed among the grandparents or descendants of deceased grandparents of such intestate, when read in connection with sections 11, 12, and 19 (sections 8369-8376, 8388), cannot be construed to permit second cousins, grandchildren of a deceased aunt of intestate, to take while there are first cousins living. all just debts and legal charges. The first eight sections of the statute determine the distributive shares of the spouse, issue, father, and mother; and, in absence of these, the ninth section provides for a division among certain collateral heirs and kindred. In the present case, as previously indicated, there is a complete default of all those on whom the right of distribution is bestowed by the first nine sections of the act, but there are living three first cousins, children of two deceased aunts, and two second cousins, who are grandchildren of another deceased aunt, all of whom are descendants of one of the deceased grandparents of the intestate. Appellants contend that the inheritance falls to the first and second cousins together, each one of whom is entitled to share "per capita," as a member of a "new class of collateral heirs," under section 10 of the act before us for construction (Pa. St. 1920, § "In default of all persons hereinbefore described, the real and personal estate of the intestate shall descend to and be distributed among the grandparents or descendants of deceased grandparents of such intestate, and, in default thereof, to and among the next of kin to such intestate." 2. Statutes 217, 231-In construing stat-8368), which provides that- Appeal from Orphans' Court, Allegheny County; Thomas P. Trimble, Judge. In the matter of the estate of Kate Miles, deceased. Decree of the orphans' court that they were not entitled to share in the distribution of the estate, and Emma Marks Ross and Charles P. Marks appeal. Affirmed. Argued before MOSCHZISKER, C. J., and FRAZER, WALLING, KEPHART, SADLER, and SCHAFFER, JJ. William B. Secrist, of Pittsburgh, for appellants. Watson B. Adair, of Pittsburgh, for appellee McHenry. Calvert, Thompson & Wilson and George B. Berger, all of Pittsburgh, for appellees Smith. MOSCHZISKER, C. J. The question here presented involves the right of appellants, who are second cousins, to share with first cousins in the distribution of the estate of an intestate, there being no nearer kindred. The act of June 7, 1917 (P. L. 429, Pa. St. 1920, 8342 et seq.), designates the persons who are entitled to the real and personal estate of an intestate after the payment of The part of the act just quoted is vague and indefinite; it fails either to say or suggest what possible groups of the persons indicated are to inherit, how these groups are to be ascertained, and whether those composing them take as individuals, per stirpes, or per capita. The section is evidently intended as a general one, which does not attempt to mark out the respective rights of the parties included in it. To construe this part of the act so as to bring about the results contended for by appellants would lead to such radical departure from the historical development of our intestate law, and the system of representation there built up, that one is necessarily led to investigate the subsequent provisions of the statute in order to find the real meaning of the portion in controversy; and, fortunately, when this is done, light is seen. Before entering upon a consideration of these other sections, however, it may be well first to trace briefly the progress of legislation for much the better part of a century past bearing on the question we have to solve. Under section 8 of the act of April 8, 1833 (P. L. 1832-33, pp. 315, 318), no representa-. tion was admitted among collaterals after brothers' and sisters' children. Parr v. Bankhart, 22 Pa. 291, 295. The act of 1833 was followed by that of April 27, 1855 (P. L. 368), which by section 2 extended representation among collaterals to the grandchildren of brothers and sisters and the children of uncles and aunts. The effect of the last-mentioned statute (116 A.) was twofold; it introduced a new class of collateral heirs, to wit, those who were too remote by one generation to take under the act of 1833, and it substituted a per stirpes for a per capita rule of inheritance among those named in the act, even where all who inherited were of equal degree. Lane's Appeal, 28 Pa. 487, 488. In other words, those who inherited thereunder did so, not as next of kin, but as collateral heirs taking by representation (Brenneman's Appeal, 40 Pa. 115; Hayes' Appeal, 89 Pa. 256, 260); but this was changed by the act of June 30, 1885 (P. L. 251), which, going back to the rule that prevailed under the act of 1833, provided by section 1 that, when those who inherited were of equal degree, they should take per capita as next of kin, the provision in question being in substantially the same language as that employed in section 19 of the present act (Pa. St. 1920, § 8388), which we shall discuss later on. With the law in the condition indicated, the Intestate Act of 1917 was passed. [1] While section 10 of this statute (Pa. St. 1920, § 8368) provides that, in default of other and nearer kin, the estate of an intestate shall descend to "grandparents or descendants of deceased grandparents," it is evident from the other parts of the act that this is intended in a general sense and as merely introductory to subsequent more specific provisions, particularly section 12, which continues the existing rule laid down in the After the act of 1885, whenever the only act of 1887, supra, that, when a living grandpersons to take were first cousins-that is, parent is nearest of kin to an intestate, and children of uncles and aunts-distribution at the time of the latter's death there are was made among them per capita, and not also alive descendants of a deceased grandper stirpes (Cremer's Estate, 156 Pa. 40, 26 parent, these descendants represent the latAtl. 782); and in Rogers' Appeal, 131 Pa. ter and share the estate of the intestate with 382, 18 Atl. 871, distributing the estate of an the surviving grandparent, in the manner intestate who died in 1886, we held that sec-specifically provided. ond cousins were not entitled to participate as against first cousins. See, also, Stewart's Estate, 147 Pa. 383, 385, 23 Atl. 599. Subsequently the act of May 25, 1887 (P. L. 261), was passed. This (which is reproduced in section 12 of the present act [Pa. St. 1920, §§ 8370-8376], discussed infra) provided for cases where the intestate left a living grandparent and the children and other descendants of a deceased grandparent, and was intended to prevent the former from taking to the exclusion of the latter; but, when there was no living grandparent, first cousins-being children of uncles or aunts-still took to the exclusion of children of deceased first cousins. Whitaker's Estate, 175 Pa. 139, 141, 143, 34 Atl. 572, 573. When sections 10 and 12 are read together, we see that it never was intended by the former to change the established policy of our law and set up unlimited representation among collaterals generally (this conclusion is reinforced by a consideration of certain other sections, which we shall presently discuss); nor was it specifically intended that, with first cousins of an intestate alive, second cousins should inherit as representing their parents, or otherwise-which parents, we may remark, would be first cousins to the intestate, in the same class with other first cousins, and, if alive, entitled to inherit with them-but, if we take the words as they stand in section 10, without reference to other parts of the act, and give them controlling significance, as appellants would have us do, this construction, carried to its logical conclusion, would mean that both first and second cousins should take at the same time, and, since the language there employed does not say the estate shall go to such of the descendants of deceased grandparents as may be nearest of kin to the intestate, but simply, without limitation, that it shall go to "descendants of deceased grandparents," "The old rule [of limited representation] this might, in many cases, lead in effect, to * * has prevailed, with great benefit to children representing their living parents, the community, for more than 60 years; dur- which, of course, is contrary to the per ing which time it has been held in very many stirpes rule. Shoch's Estate (No. 2) 271 Pa. cases that first cousins take to the exclusion of 165, 114 Atl. 505. Parts of the act subsesecond cousins. Brenneman's Appeal, 40 Pa. 115; Lindley's Appeal, 102 Pa. 235; Rogers' quent to section 10, however, forbid any such Estate, 131 Pa. 382; Cremer's Estate [156 distribution as contended for by appellants; Pa. 40]. It is [there] solemnly argued, how- and thus we see that the section in question ever, that *** [the rule] has been re- cannot have the meaning they would give pealed by the act of May 25, 1887, that the mis- to it. In the case last cited we adopted the opinion of Judge Penrose, and, in disposing of a contention similar to the one here urged that the effect of the act in question was to extend, unrestrictedly, representation among collaterals-this learned jurist traced the historical development of the intestate law to date, and, after showing the grave dangers of such a system of unlimited representation, said: While section 12, already referred to, ex-up a new class of collateral heirs, who, altends somewhat the principle of representa- though of different degrees, all being "detion among collaterals taking thereunder, scendants of deceased grandparents of the inyet the provisions of that section apply only testate," would take equally the estate of the where "one or more than one grandparent" latter, as contended by these second cousins. is alive and entitled to take at the death of Such a scheme of distribution is so unusual the intestate; and the extended representa- in our law as to require plain and unequivtion there provided for is confined to "chil- ocal language to establish it (Whitaker's Esdren or other descendants of any deceased tate, 175 Pa. 139, 143, 34 Atl. 572), which we grandparent" when, and only when, they do not find here. share the estate involved with a surviving grandparent. Section 10 merely introduces the idea, in a general way, of who, in default of the nearer kindred provided for in the earlier sections, may inherit; it does not undertake to specify under what conditions the surviving grandparents or the descendants of dead grandparents, respectively, shall take, or in what proportions; that is left to section 12, which fully covers the ground. Section 11 (Pa. St. 1920, § 8369) re-enacts the rule provided in earlier legislation that "the grandchildren of brothers and sisters and the children of uncles and aunts shall be entitled to take, by representation, the shares which their parents would have taken if living," but it expressly states that, "except as hereinafter provided, there shall be no [other] representation admitted among collaterals"; the words "as hereinafter provided" evidently having application to the representation among descendants of a dead grandparent referred to in section 12 and before discussed in this opinion. The part of the act now under consideration, section 11, apparently deals with the phase of the principle of representation which determines who are entitled to take, and not with its other phase, how division shall be made among those so entitled. The latter aspect of the matter seems to be provided for by section 19 (Pa. St. 1920, § 8388), as follows: "Wherever real or personal estate shall descend to or be distributed among several persons, whether lineal or collateral heirs or kindred standing in the same degree of consanguinity to the intestate, if there shall be only one of such degree, he shall take the whole of such estate; and, if there shall be more than one, they shall take in equal shares, and, if real estate, shall hold the same as tenants in common." In Hayes' Appeal, 89 Pa. 256, 260, construing that part of the old law which provides, "There shall be no representation admitted among collaterals after brothers' and sisters' children," we said its effect was "to exclude children of uncles and aunts wherever there were uncles and aunts living"; so the effect of the words, "There shall be no representation admitted among collaterals after * the children of uncles and aunts," contained in the present act, is to exclude grandchildren of uncles and aunts (the position occupied by the present appellants) wherever there are children of uncles or aunts living. We agree with the court below that "A clear view of the legislative intent is found by linking together the tenth, eleventh, and nineteenth sections of the act [and considering the twelfth]. It then appears that, when there is a lapse of all of those in succession to the intestate provided for in the other sections, the descendants of deceased grandparents inherit, cousins german [but when there are] * * [being] in the same degree of consanguinity, they take the whole of the estate in equal shares; and this view of the legislative intent precludes a distribution to the second cousins." In short, when there is no living grandparent and first cousins of the intestate survive him, second cousins, also surviving, are not the next of kin (nearest blood relations), nor can they take by representation; hence they do not take at all. The act of 1917 was the result of the efforts of a commission appointed by the Governor of the commonwealth to codify or assemble into one group the numerous provisions on our statute books dealing with the intestate law and kindred matters; and the commission itself framed the act. The bill thus prepared was passed by the Legislature The provision just quoted that lineal or without the slightest deviation from the reccollateral heirs standing in the same degree ommendations of its draftsmen, so far as the of consanguinity to the intestate shall take portions having any bearing on this case are in equal shares, when read with the provi- concerned; and, when the historical developsion in section 11, that "there shall be no rep- ment of this branch of our statutory law is resentation admitted among collaterals after considered, together with the whole structhe grandchildren of brothers and sisters ture of the present statute, it is apparent and the children of uncles and aunts," shows that no radical changes or departures from plainly that the tenth section, depended on pre-existing rules of inheritance were intendby appellants, cannot be given the effect of ed. On the contrary, the mischief to be corsetting up unlimited representation among rected lay in the fact that there were too |