duty to warn him, and had no reason to suspect want of care and skill on his part, she could recover, although he was at fault.

[Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trial, §§ 651-659.]

5. NEGLIGENCE-PROXIMATE CAUSE-CONCURRENT CAUSES.

In an action for personal injuries, where defendant's negligence is the proximate cause of the injury, the fact that there are other concurring culpable causes will not preclude recovery.

[Ed. Note. For cases in point, see Cent. Dig. vol. 37, Negligence, §§ 74, 75.]

Exceptions from Superior Court, Middlesex County; John A. Aiken, Judge.

Action by Barbara Miller, by next friend, against the Boston & Northern Street Railway Company. Verdict was rendered for plaintiff, and defendant excepts. Exceptions overruled.

The following rulings were requested by defendant: "(4) If the jury find that the plaintiff, Barbara Miller, intrusted the care and management of the horse and sleigh in which she was riding entirely to Burton R. Miller, and relied solely upon him for her safety, then, in order to recover, she must show that Burton R. Miller exercised due care and diligence in the management of the horse and sleigh, both before and after the runner of the sleigh became caught in the frog or switch."

"(8) The plaintiff is bound, in order to recover, to show that no causes or agencies other than those over which the defendant had control contributed to cause this accident."

The court instructed the jury that, if Barbara Miller had any authority or control over the two young men who were driving, she was affected by any fault on their part and could recover; but if she had neither authority or control, and was under no duty to warn or caution, and if she had no reason to suppose any want of care or skill on the part of the two young men, then she might recover, although they were to blame.

Taylor & Thierry, for plaintiff. Endicott P. Saltonstall and Sanford H. E. Freund, for defendant.

KNOWLTON, C. J. The first question in the case is whether there was evidence of negligence on the part of the defendant. There was much testimony that the road was in bad condition on each side of the defendant's tracks, that the snow was deep and difficult to pass over, that in some places there were large lumps of frozen snow, and that in others there was a high bank, sloping steeply down at the side of the road. According to the weight of the testimony the difficulty of passing at the sides of the tracks was so great that nearly all teams drove along the tracks, leaving the snow on each side without a regular path. For the changes in the condition of the snow

from the condition that would have resulted from the storms alone, the jury might well find that the defendant was chiefly responsible, as it had frequently thrown out snow, and run snowplows over the tracks.

There was much evidence tending to show that the winter was unusually severe, that the snowstorms were frequent and the cold nearly continuous, making it very difficult to keep the roads safe. The jury might well have found that the defendant did all that it reasonably could be expected to do. But there was a variety of testimony to show that conditions were bad near the place of the accident, and we think it was a question of fact whether they were due in any degree to the negligence of the defendant.

There was evidence to warrant a finding that, by reason of the bad condition of the road at the sides, the driver of the sleigh was not negligent in driving on the track, and that his driving there, taken in connection with the condition of the snow at the switch, was the direct and proximate cause of the accident. The fact that the plaintiff did not receive her injury immediately when the runner of the sleigh caught in the switch, but a few seconds or perhaps a minute or two afterwards, when the horse had escaped under the excitement of the collision and the attempt to extricate the runner of the sleigh, does not prevent a finding that the condition of the snow was the direct cause of the injury. McDonald v. Snelling, 14 Allen, 290, 92 Am. Dec. 768; Marble v. Worcester, 4 Gray, 395; Bowers v. Boston, 155 Mass. 344, 29 N. E. 633, 15 L. R. A. 365; Davis v. Longmeadow, 169 Mass. 551, 48 N. E. 774.

The fourth request for a ruling was rightly refused. The instructions given on this point were correct and sufficient. They followed closely the doctrine fully stated and explained in Shultz v. Old Colony St. Ry. Co., 193 Mass. 309, 79 N. E. 873, 8 L. R. A. (N. S.) 597.

The eighth ruling requested could not properly be given. It is well settled that if a defendant's negligence is the efficient and predominant cause of an injury, he is not relieved from liability by the fact that there are other concurring causes, even if they also are culpable. Derry v. Flitman, 118 Mass. 131, and cases cited. Exceptions overruled.

(197 Mass. 343)

SEARLE et al. v. FIELES et al. (Supreme Judicial Court of Massachusetts. Essex. Feb. 26, 1908.)

1. WILLS-CONSTRUCTION-"PROVISIONS." A will directed that testator's homestead, "with its appurtenances and furniture and necessary provisions, be held for the use of my wife and other members of my family" so long as they should be living. Held, that the word "provisions" was not used in the meaning of an

act of providing, but in its plain meaning of food, fare, or provender.

[Ed. Note.-For other definitions, see Words and Phrases, vol. 6, pp. 5753, 5754; vol. 8, p. 7770.]

2. SAME TO "BE HELD FOR THE USE."

Testator directed that his homestead and furniture and necessary provisions "be held for the use of my wife and other members of my family" so long as they should live. Held, that the term "be held for the use" required the trustees to keep the homestead and its appurtenances in repair, and maintain the furniture by repair or renewal, and furnish necessary provisions for the use of the remaining members of the family.

Case Reserved from Supreme Judicial Court, Essex County.

Bill by Edward F. Searle and others, trustees, against Irene E. Fieles and others, for the construction of a will. Case reserved. Decree rendered.

Dana Malone, Atty. Gen., and Fred T. Field, Asst. Atty. Gen., for the Attorney General. Channing H. Cox, for respondents.

KNOWLTON, C. J. This is a bill for instructions, and the only question presented by it is what is the meaning of the provision for the beneficiaries in a clause of the will of Artemas W. Stearns late of Lawrence, deceased, which is as follows: "First. I direct that my homestead, with its appurtenances, and furniture and necessary provisions, be held for the use of my wife and other members of my family, namely, Mary W. Truell, Irene E. Fieles and Mary I. Fieles, so long as any one of them shall be living and shall desire to occupy the same." The connection in which the word "provisions" is used makes it plain that the testator did not think of it as the plural of provision, in its meaning of an act of providing, so that it should be construed as referring to acts making provision for the wants of the family. It is used in connection with other words which all signify kinds of property, and it seems plain that this was intended as a general designation of a certain kind of property. It is said in Com. v. Reid, 175 Mass. 325329, 56 N. E. 617, that "the word 'provisions' means food, victuals, fare, provender." See Com. v. Caldwell, 190 Mass. 355, 76 N. E. 955, 112 Am. St. Rep. 334. The difficult question in the case is whether the clause means that the members of the family are to have the homestead and the furniture and the provisions on hand at the time of the testator's death, to use as they were until worn out or consumed, except as they should be kept in repair at their own expense, or whether the direction to the trustees that these several articles be held for the use of the testator's wife and other members of his family was equivalent to a direction that they should be maintained by the trustees for this use. These are essentials and appointments which constitute the material features of a home. The thought of continuing

a home for the testator's family seems to have suggested the words.

The fact that there is no express provision for an expenditure of money for this purpose favors the contention of the Attorney General. On the other hand, there is much to support the opposite contention. The words "necessary provisions," indicate that the provisions referred to were not such as might happen to be on hand at the time of the testator's death, but such as might be needed for the support of the family afterward. If the word "held" be taken alone and construed narrowly, it seems to refer only to property which the testator left at his decease. But the words "held for the use of" in connection with the term "necessary provisions" accompanying the words "homestead and furniture," which naturally suggest a large degree of permanence, carry with them the idea of continued action and maintenance by the trustees.

When we consider the close relations of the members of this family to one another, and the long and faithful service of the others to the testator's invalid wife, and their dependence upon the testator's bounty for their support after his death, we discover strong indications of an intention on his part to have the house and furniture maintained for their benefit with the necessary provisions. The fact that the income left to them was not enough to maintain them in the manner in which they had lived, and the further fact, under the conditions existing since the death of Mary W. Truell and the testator's wife, that Mrs. Fieles' share of the income would not enable her to maintain the home and support herself comfortably if all the expenses were borne by her, emphasize the suggestion that these articles of property, to be "held for the use of" the family, are to be maintained for their use. In this respect the case has some analogies to Denfield, Petitioner, 156 Mass. 265, 30 N. E. 1018. It is the duty of the trustees to keep the homestead and its appurtenances in repair, and to maintain the furniture by repair or renewal, so as to keep it in as good condition as it was in at the time of the testator's death, and to furnish necessary provisions to supply food for the use of the two remaining members of the family. They are not called upon to do more than to maintain and supply the articles of property mentioned in this clause of the will. The individual expenses of the two surviving members of the family are not to be paid by the estate, nor are the other expenses of housekeeping and of maintaining a home to be so paid.

We infer that the income will be more than enough to make these necessary payments, and that there is no occasion to consider whether such payments could be made from the principal fund.

So ordered.

(170 Ind. 170) INDIANAPOLIS WATER CO. v. HAROLD. (No. 21,229.)

(Supreme Court of Indiana. March 13, 1908.) 1. NEGLIGENCE PLACES OPEN TO PUBLICUNSTABLE FOOT LOG-LIABILITY.

A complaint alleging that a water company, knowing the probable consequence, maintained a foot log across its canal in an insecure and dangerous condition near' the intersection of a street in a city; that the public were invited and induced to use the log as a crossing; and that plaintiff's nine year old son, unable to comprehend his peril, fell from the log because of its unsafe condition and was drowned-states a cause of action against the company.

[Ed. Note. For cases in point, see Cent. Dig. vol. 37, Negligence, §§ 52-58.] 2. SAME.

A water company is not liable for the death of a nine year old boy caused by falling from a floating footbridge across the company's canal, where it does not appear that the bridge was slippery or unstable, where a hand rail was available to him, he was not lured from the highway by it, it did not appear that the bridge was attractive to children, or that another boy had ever fallen from it, or from another of the same character, the bridge was 30 inches wide, and was used as a movable bridge or staging for workmen, and was a proper appliance for keeping the canal in repair, and where the boy had been cautioned against the danger, and fell off while throwing a rock into the water. [Ed. Note. For cases in point, see Cent. Dig. vol. 37, Negligence, §§ 121–129.]

Appeal from Circuit Court, Marion County; H. C. Allen, Judge.

Wrongful death action by Milton L. Harold against the Indianapolis Water Company. From a judgment for plaintiff, defendant appealed to the Appellate Court, where the case was transferred to the Supreme Court under the provisions of clause 2 of section 1337j, Burns' Ann. St. 1901. Reversed, with directions.

For decision in Appellate Court, see 79 N. E. 542..

Baker & Daniels, for appellant. Walter L. Carey and Jos. R. Williams, for appellee.

MONTGOMERY, J. Appellee brought this action to recover damages for the wrongful death of his minor son. The allegations of the complaint are in substance as follows: That appellant is a corporation organized under the laws of Indiana, and owns and controls a body of water known as "the canal" extending from the town of Broad Ripple, into the city of Indianapolis, and used for the purpose of supplying water to said city and its inhabitants; that the canal was from 30 feet to 100 feet in width and very deep, and prior to the month of March, 1903, appellant had allowed a log or sill to be placed, and knowingly permitted the same to remain, across said canal near its intersection with Twentieth street in said city, which was used by appellant's employés, and by it knowingly permitted to be used by the public generally, as a foot log or means of crossing the canal; that a trodden and worn path led up to the log on both sides of the canal, 83 N.E.-63

and the public was induced and invited to use the log as a means of crossing; that there was no other means of crossing the canal within a distance of several hundred yards of the place where the log was situated, and no notice or warning of any kind was ever given by appellant to any one that the log was unsafe or dangerous as a means of crossing, but the log with its approaches was at all times held out to the public as a safe and available means of crossing the canal; that said log was 10 or 12 inches in diameter and 40 or 50 feet in length with two 2x6-inch planks laid on top of it, and left floating in the water with no stays, spikes, or anything to hold it up except the force of the water, but was chained and fastened at each end to prevent it from floating away; that it was not braced or fastened in any other way, but was lying loose in the water, and was very unstable and unsafe; that the top of the log was so close to the surface of the water that when the wind blew the water was blown over the top of the log, making it wet, slick, and slippery; that the log had a railing or banister on one side only, but at such height as to make it of no use to a child in crossing the canal upon said log; that appellant was at all times fully aware of the dangerous and unsafe condition of said crossing, and had been warned that, the same was a veritable death trap, especially for children; that appellee's minor child was the second child drowned by falling off said log, all of which appellant knew, and the water beneath the log was very deep; that on March 7, 1903, appellee's son Harry Harold, age nine years, in company with another boy near the same age, having been requested by their teacher to procure some pussy willow blossoms, walked up the canal for that purpose, and in attempting to cross on said log appellee's said son, on account of its tottery, slippery, and unsafe condition, fell therefrom into the water and was drowned; that said child was of immature years, could not swim, had no notice that the log was unsafe or dangerous, and was not warned in any way that the crossing was dangerous or that the foot log was not intended for the free use of the public; that said child was a strong, healthy, bright boy, and possessed of all the natural instincts of childhood, and the day on which he was drowned was unusually warm, and the manner in which the log was placed in the water was naturally inclined to attract a child, and being without warning of danger, and of immature judgment, he was thereby attracted to his death; that on account of his tender years said child was non sui juris, and incapable of appreciating the danger there was in crossing the canal on said log; and that the carelessness and negligence of the appellant in placing and allowing said log to be placed, and in permitting it to remain, in the position described, was the sole cause of said child's death, and

that by reason of such negligence appellee was deprived of the services of his minor son, and otherwise damaged. Appellant's demurrer to this complaint on the ground of insufficient facts, and also its motion for a new trial, were overruled by the court below, and these rulings have been assigned and urged as errors upon appeal.

It is not made to appear from the allegations of the complaint that the foot log subserved any useful purpose in connection with appellant's business, but it is averred that the log was maintained in an insecure and dangerous condition, with knowledge that it was a death trap for children, and that one child had been previously drowned by falling therefrom; that it was so maintained near the intersection of a public street of the city of Indianapolis with the canal; that the public were invited and induced to use the log as a means of crossing; that the deceased child was unable to appreciate, and ignorant of, the danger in crossing, was lured on by the instincts of childhood, and could not reach the hand rail, but fell from the log because of its tottery, slippery, and unsafe condition. Conceding, as the demurrer does, that appellant, knowing the probable consequences, maintained the foot log at a place and in a condition to imperil the lives of persons invited and induced to use it in ignorance of their danger, and that in these circumstances appellee's minor son, unable to comprehend his peril, fell from the log because of its unsafe condition and was drowned, we think a cause of action is stated, and that the complaint was rightly held to be sufficient. Young v. Harvey, 16 Ind. 314; City of Indianapolis v. Emmelman, 108 Ind. 530, 9 N. E. 155, 58 Am. Rep. 65; Penso v. McCormick, 125 Ind. 116, 25 N. E. 156, 9 L. R. A. 313, 21 Am. St. Rep. 211; City of Pekin v. McMahon, 154 Ill. 141, 39 N. E. 484, 27 L. R. A. 206, 45 Am. St. Rep. 114; Brinkley Car Co. v. Cooper, 60 Ark, 545, 31 S. W. 154, 46 Am. St. Rep. 216; Price v. Atchison Water Co., 58 Kan. 551, 50 Pac. 450, 62 Am. St. Rep. 625; Schmidt v. Kansas, etc., Co., 90 Mo. 284, 1 S. W. 865, 2 S. W. 417, 59 Am. Rep. 16. Albert Richmond was with Harry Harold at the time of the accident. He testified that they were hunting pussy willows, and crossed the canal on the Seventeenth street bridge, and there found a rock with a cord 5 or 10 feet long tied to it, which they took turns in throwing into and pulling out of the water as they walked up the canal; that they walked past the foot log about a square and then turned back; that they thought the log would break with them, but seeing a man cross upon it, they started to cross; that he was in front and told Harry not to throw the rock in because he was afraid to cross and might fall in, but does not know whether he threw it in or not; that he left the bridge shake, and turned around and saw Harry falling off; that there was a banister along the north

side, which he took hold of when he turned around; that the top of the log was about two inches above the water, and they were not heavy enough to weigh it down, and it did not weave or shake very much as they walked upon it; that on top of the log were two 2x6-inch boards, and the water rose a little in the crack between these boards as they walked over; and that at the time of the accident he was eight years of age, and Harry was a year older, and about half a head taller. Ambrose Tillman testified that he was on the west side of the canal and about 75 feet away at the time the boy was drowned; that the boy had a black dog with him, and a string tied to a rock or bat, and was throwing it out or jumping it up and down in the water, when his right foot slipped off and he went down. Jesse Burt said he passed the boys on the log or bridge, and was about two squares away when the accident occurred; that when he passed there was a small black dog between the boys; and the larger boy was down on one knee with a rope or string with something on one end and was jerking it out through the water, and he told the boy he would fall in if he was not careful. Braxton Taylor testified that he was walking north on the west bank of the canal and about 50 feet from the log at the time of the accident; that he saw the boy fall in; that the boys were playing on the log, and the dog was between them, barking and standing still; that the boy that fell in had something tied on a string, which he pitched in the canal, and which he was in the act of throwing in when he fell. James Shirley was in company with the last witness, and said the smaller boy was working along the guard rail holding on, and the larger boy had a rock, which he pitched out two or three times and stooped over in the act of throwing the rock when he fell; that just at that time a little black dog ran behind him, but he couldn't say whether it touched the boy or not. Amos Lintner was 300 or 400 feet away from the log at the time of the accident, and saw the boy in the water. As he passed down the west bank of the canal the boys were throwing a rock with six or eight feet of hemp rope tied to it into the water. After the drowning he found the rope in the water, which caught on something and had not sunk. These were all the witnesses who had any immediate knowledge of the circumstances attending the accident.

The evidence established the following further facts: That this structure was made by bolting together two long boat gunwales 30 inches in width and nailing upon the top of them two 2x6-inch planks. It was floated up and down the canal, and at times used as a support for men while mowing grass from the sloping banks of the canal, and at other times as a bridge or staging upon which to cross with wheel barrows in repairing the canal. Carpenters in the employ of the Ex

panded Metal Fireproofing Company of Chicago, a contractor for the concrete work on a filter plant then being constructed by appellant, brought the log from a point farther up the canal, placed it in position, and spiked the hand rail upon it, to afford themselves a convenient means of crossing and of reaching the street cars. The east end of the foot log rested upon the ground, the west end upon a sill, and the center was supported only by the water, and the ends were staked and secured by a rope or chain. A footpath ran along the east bank, and a sort of towpath along the west bank, parallel with the canal, and commons lay on both sides. The log was placed in this position in September, 1902, and remained until March following, with the knowledge of appellant. No signs or warnings to trespassers were posted or given, and the log was used as a means of crossing by people going to the filter plant and to the Cerealine Mills. The nearest houses to the point in question were about a square and a half distant, and children occasionally played in the neighborhood of the canal. A boy fell from another log, somewhat similar to this, and was drowned about two years before March, 1903.

In our opinion the verdict is without support from the evidence, and is contrary to law. The actionable negligence charged against appellant was in knowingly maintaining a death trap for children, and it was averred that the deceased boy fell from the log only because of its unstable, tottery, slick, and unsafe condition. It was not shown that the log was wet or slippery at the time of the accident, or was tottery and unsteady, and that such conditions contributed to the fatal fall. The companion boy testifies, on the contrary, that the log stood two inches above the water, was not weighed down by them, and did not shake or vibrate much. The footbridge was not floating loosely in the water, but rested securely upon supports at both ends, and the hand rail was not out of reach, but was available and actually used by the smaller of the two boys. The boys were not previously aware of the existence of the foot log, and came upon it casually. They were not lured from a highway by it; but they were sent by their teacher, and with the consent of their parents, upon a special mission, and there was no proof that the foot log was attractive to children. There was no evidence that another boy had ever fallen from this log, or from another anchored, equipped, and constructed in the same manner. The log was shown to have a legitimate use as a movable bridge or staging for workmen, and was a proper appliance for keeping the canal in repair. It is manifest that there was not only a failure to establish a breach of duty and actionable negligence on the part of appellant, but that the accident resulted from a lack of proper care by the deceased. He had been cautioned by Jesse Burt and by his

companion, who, though a year younger, says they realized there was danger, and were afraid to cross upon the log. The boy, with venturesome heedlessness characteristic of youth, toyed with his new found plaything, until a misstep caused him to lose his balance and fall into the water. The perils of deep water are instinctively known, and if it be insisted that this boy, nine years of age, did not possess such ordinary discretion as fairly to appreciate his danger, then it may be urged with propriety that he should not have been allowed to go in the vicinity of the canal attended only by a companion still more youthful. In determining a claim of legal responsibility for a misfortune, sad and deplorable as it may be, we must be guided by established principles, and not led by mere sentiment independent of the law. Cases closely resembling this have frequently engaged the attention of the courts, and the decisions are practically harmonious that upon the facts here shown there can be no recovery. Evansville, etc., R. Co. v. Griffin, 100 Ind. 221, 50 Am. Rep. 783; City of Indianapolis v. Emmelman, supra; Savannah, etc., Ry. Co. v. Beavers, 113 Ga. 398, 39 S. E. 82, 54 L. R. A. 314; Stendal v. Boyd, 73 Minn. 53, 75 N. W. 735, 42 L. R. A. 288, 72 Am. St. Rep. 597; Overholt v. Vieths, 93 Mo. 422, 6. S. W. 74, 3 Am. St. Rep. 557; Richards v. Connell, 45 Neb. 467, 63 N. W. 915; Omaha v. Bowman, 52 Neb. 293, 72 N. W. 316, 40 L. R. A. 531, 66 Am. St. Rep. 506; Peters v. Bowman, 115 Cal. 345, 47 Pac. 113, 598, 56 Am. St. Rep. 106;. Klix v. Nieman, 68 Wis. 271, 32 N. W. 223, 60 Am. Rep. 854; Gillespie v. McGowan, 100 Pa. 144, 45 Am. Rep. 365; Dobbins v. Missouri, etc., Ry. Co., 91 Tex. 60, 41 S. W. 62, 38 L. R. A. 573, 66 Am. St. Rep. 856; Moran v. Pullman Palace Car Co., 134 Mo. 641, 36 S. W. 659, 33 L. R. A. 755, 56 Am. St. Rep. 543; Cooper v. Overton, 102 Tenn. 211, 52 S. W. 183, 45 L. R. A. 591, 73 Am. St. Rep. 864; Ritz v. City of Wheeling, 45 W. Va. 262, 31 S. E. 993, 43 L. R. A. 148; Benson v. Baltimore Traction Co., 77 Md. 535, 26 Atl. 973, 20 L. R. A. 714, 39 Am. St. Rep. 436.

The motion for a new trial should have been sustained for the reasons above given. The judgment is reversed, with directions to sustain appellant's motion for a new trial.

(170 Ind. 166)

STATE v. FISK. (No. 21,105.) (Supreme Court of Indiana. March 11, 1908.) 1. CRIMINAL LAW-TRIAL-INSTRUCTIONS-INVADING PROVINCE OF JURY.

An instruction discrediting the testimony of oral admissions invades the province of the jury, and is not sanctioned by our practice.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law. §§ 1732-1748.] 2. SAME.

An instruction that where circumstantial evidence is relied on, every element of the circumstances must be proved beyond a reasonable doubt, and be so related and of such a charac