ion of the civil service commission cannot | service commission brought up by the return be reviewed upon certiorari. that entitled them to challenge its correctness by a writ of certiorari.

Appeal from Court of Common Pleas, Al- latter is either actually or constructively in legheny County.

Action of trespass by James H. Lyons against the People's Savings Bank for personal injuries. From a final order refusing to take off compulsory nonsuit, plaintiff appeals. Affirmed.

the employ of the former and under his control. In the case of a workman who begins his labors at a certain hour in the morning and continues for a specified number of hours per day, there is necessarily a time when he is on the premises of the masArgued before BROWN, C. J., and MES-ter in going to and returning from his work, TREZAT, POTTER, STEWART, and FRA- preparing for beginning or leaving, washing ZER, JJ.

W. S.

Samuel S. Mehard and George P. Kountz, both of Pittsburgh, for appellant. Dalzell, of Pittsburgh, for appellee.

his hands, disposing of tools, changing his clothing, etc. All these requirements are incident to the employment, and it is therefore held that the relation of master and servant continues from a reasonable time before the actual beginning of work until a FRAZER, J. Plaintiff, an employé of de- reasonable time subsequent thereto. 26 Cyc. fendant as night operator of a passenger ele- 1086. This rule has been well stated by the vator in an office building owned by defend- federal court in Willmarth et al. v. Cardoza, ant, was required to be ready for work at 176 Fed. 1, 99 C. C. A. 475, 27 L. R. A. (N. 6 o'clock each evening, and was engaged S.) 376, where plaintiff, a hod carrier, refrom that time until 6:30 the following morn-mained a few minutes after the hour for ing. On the evening when the injuries for which he claims damages were sustained quitting work, and on going to a shed to plaintiff entered the building five or ten min- secure his coat found the door locked, which utes before 6 o'clock, and stepped into the obliged him to call at the office for a key, car operated by the man whom he was to and while returning to the shed from the relieve, to be taken to the employés' dressing office was injured by an explosion. In holdroom on the sixteenth floor. When the car ing that the relation of master and servant stopped at the fourteenth floor to permit a still existed, it was said (page 3 of 176 Fed., passenger to leave, plaintiff informed the page 477 of 99 C, C. A. [27 L. R. A. (N. S.) operator that he also would get off at that 376]): floor, and had stepped from the elevator to the floor of the building with one foot, when the operator suddenly and without warning started the car, throwing plaintiff to the floor and injuring him quite seriously by catching him between the moving car and the frame of the door. At the close of plaintiff's testimony the trial judge directed a nonsuit, on the ground that the operator of the car, whose negligence caused the accident, was a fellow servant with plaintiff, consequently defendant was not liable. A motion to take off the nonsuit was subsequently refused by the court, and from the judgment entered we have this appeal.

[1] Plaintiff testified that while the day operators of the elevators were uniformed, he was not, except that he wore a cap while at work, which he kept in the employés' dressing room on the sixteenth floor when not in use, and that he relieved the day operator at the fifteenth floor instead of the first. Although plaintiff had not reached the place where he was actually to begin work and had not started to make preparation for so doing, he was on defendant's premises for that purpose and had but a few minutes to spare before required to relieve the day operator and begin his duties. The ques tion whether or not plaintiff and the operator in charge of the car were fellow servants de pends upon whether the relation of master and servant between plaintiff and defendant existed at the time the accident happened.

The general rule is that the relation of master and servant continues so long as the

"Is it to be supposed that implied contract and undertaking end suddenly at a fixed minute, ditions and risks of his employment, or that they while the servant is still surrounded by the concontinue until the servant has ceased to be affected by these conditions and risks? We think the latter conclusion is obviously correct. To or of the servant, would deprive the rule of its adopt the former, whether in favor of the master reason. In the case at bar the plaintiff, indeed, did not dispute that his employment would have continued until he reached the highway, provided that he had walked there directly from the building. This concession is decisive of the case at bar. If the employment covers, not only the time during which the workman is engaged in his ordinary labor, but also a later time, during which he is passing from the surroundings of his employment into surroundings unrelated thereto, then this additional period will evidently be longer or shorter according to the circumstances. The situation and nature of the building may which the workman uses may be more or less affect the time needed, for leaving it. The tools complicated and numerous. They may be easy or hard to put away for the night. That the workman may have to lay aside some of his be both for his employer's benefit and his own, clothes while working is plain. This may well like the travel in Kilduff v. Boston El. Ry. Co., 195 Mass. 307, 308, 81 N. E. 191, 9 L. R. A. (N. S.) 873. That a proper place should be proclothes temporarily is reasonable, and that this vided by the employer wherein to keep the place cannot always be in direct line between the place of work and the gate of the premises is obvious. If the door of the receptacle is lockedperhaps for the safety of the employé's property -or if it sticks, or if some time is otherwise spent by the workman in looking for his clothes, this also is an incident of his employment, and the employment ordinarily continues during the and nonemployment is the same, whether it operation. The distinction between employment works in favor of the master or of the servant.

In the case at bar the plaintiff is contending (3. MASTER AND SERVANT 289(15)—INJUthat his employment ceased before the accident; RIES TO SERVANT-ACTIONS QUESTION FOR but in the next case the employé may be driven JURY. to maintain that his employment is prolonged to his final departure from the premises."

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 1106; Dec. Dig. 289(15).]

In an action for the death of a servant caused by unguarded cogwheels, evidence held to [2] The language above quoted applies di- was guilty of contributory negligence in appresent a question for the jury whether decedent rectly to the case before us. Plaintiff reach-proaching the cogwheels. ed his place of employment five or ten minutes before he was actually required to begin work. Certainly this cannot be such an unreasonable length of time as would require the question whether he was pursuing business of his own, or preparing to engage in Action of trespass by Katherine Miller that for which he was employed, to be sub-against the Independent Bridge Company, mitted to the jury. His transportation by for the death of plaintiff's husband. From a means of the elevator to the sixteenth floor judgment for plaintiff for $4,060, defendant was not a part of the compensation for his appeals. Affirmed. employment which would entitle him to be treated as a passenger, under the cases of

Appeal from Court of Common Pleas, Allegheny County.

The facts appear in the following opinion for judgment n. o. v.: by Swearingen, J., sur defendant's motion

The defendant has moved for judgment non obstante veredicto, and the principal reason assigned is that the evidence was not sufficient to justify the submission of the case to a jury.

As

O'Donnell v. Allegheny Val. R. R. Co., 59 Pa. 239, 98 Am. Dec. 336, McNulty v. Penna. R. R. Co., 182 Pa. 479, 38 Atl. 524, 38 L. R. A. 376, 61 Am. St. Rep. 721, and Goehring v. Beaver Val. Traction Co., 222 Pa. 600, 72 Atl. 259, relied upon by appellant; but a use This action was brought by Katherine Miller, merely permissive and incidental to his em- damages on account of the death of her husband, widow of Henry Miller, deceased, to recover ployment and the most convenient method of which she alleged was caused by the negligence reaching the dressing room on the sixteenth of the Independent Bridge Company. He was floor, and the fifteenth floor, where he cus-employed by the defendant as a puncher, and he worked at a machine with which holes were cut tomarily took charge of his car. The differin iron plates used in bridge construction. ence between the two classes is clearly point- a part of this machine, there was a set of coged out in Dugan v. Susquehanna Coal Co., wheels geared together at the lower side of a 241 Pa. 565, on page 569, 88 Atl. 787, on page volved above a small wheel, 71⁄2 inches in dilarge wheel, 48 inches in diameter, which re788, where it is said: ameter, the latter being about 15 inches higher than the floor. He had a helper on the day of the accident. This man was a foreigner, and where he now is no one knows. No other person saw the accident, and it is not certain that this helper saw it. Mr. Miller had had charge of this machine for over two years. It was his duty to oil the machine, which required him to go near these gear wheels. When he was working the punch, he stood at the end of the machine, but not near the gear wheels. There was testimony that, when he desired to start and stop the motor, which regulated the machine, he was obliged to go to the switch and the lever located on a column near the other end of the machine, and in so doing he had to be within about 21⁄2 feet of the large gear wheel. There was also testimony that, when he needed tools and some of the punches used in his work he had to go to the tool box standing near said column, and this brought him within a foot or a foot and a half of the large gear wheel. course, it was as much his duty to go for tools as it was to operate the punch. So also he was performing his duty as much, when he pulled the switch to stop and start the machine, as when he was working at the end thereof.

"The distinction between those cases and the one now under consideration is that here it did not appear that there was any contract to transport plaintiff as part of the compensation for his services. The furnishing of transportation to the workmen was, in so far as the evidence disclosed, gratuitous on the part of the defendant company. The plaintiff is therefore to be regarded merely as an employé with the privilege as part of his business of riding to and from his work in the empty cars provided for that purpose.'

The judgment is affirmed.

(251 Pa. 599)

MILLER v. INDEPENDENT BRIDGE CO. (Supreme Court of Pennsylvania. Jan. 3, 1916.) 1. MASTER AND SERVANT 204(2)—INJURIES TO SERVANT-ASSUMPTION OF RISK.

Where a master's negligence consists in failing to have cogwheels properly guarded, in violation of statute, questions in relation to assumption of risk do not arise.

Of

The jury found, upon ample evidence, that Mr. Miller was injured by being caught in the cogs of these wheels on the right side of the machine,

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 545; Dec. Dig. and that he was thereby carried through them 204(2).]

2. MASTER AND SERVANT 265(14) INJURIES TO SERVANT - ACTIONS - BURDEN OF PROOF

In an action for the death of a servant, the burden of proving contributory negligence in approaching dangerous machinery is upon defend

ant.

to the left side thereof. This finding was not reasonable inference that could be drawn from upon any presumption at all. It was the only the facts proved relative thereto, and the jury was not permitted to draw any inference therefrom or to found any presumption thereon, as is suggested by the defendant.

[1] The jury also found that the defendant was guilty of negligence, in failing to have these [Ed. Note.-For other cases, see Master and cogwheels properly guarded upon the right side Servant, Cent. Dig. §§ 893, 908; Dec. Dig. of the machine, and we think that no mistake 265(14).] was made in that finding. This negligence was

Argued before BROWN, C. J., and MESTREZAT, POTTER, STEWART, and FRAZER, JJ.

F. C. McGirr and John E. Laughlin, both of Pittsburgh, for appellant. R. T. M. McCready, of Pittsburgh, for appellee.

PER CURIAM. No error was committed by the court below in opening its decree of July 14, 1914, and the award of interest on the legacy to Maud Pearson is affirmed at appellant's costs on the opinion of the auditing judge directing it to be allowed.

CO.

(251 Pa. 616)

(Supreme Court of Pennsylvania. Jan. 3, 1916.) 1. MASTER AND SERVANT 286(22) — InjuRIES TO SERVANT-ACTIONS-QUESTION FOR JURY.

which controls the payment, and therefore contingent, as illustrated in Duffey v. Presbyterian Congregation of Bellefonte, 48 Pa. 46; and, since it is not a contingent legacy, interest has accrued on it from the time when the legacy fell due. If the time of payment is not deferred, as in Gunning's Estate (No. 3), 234 Pa. 148, 83 Atl. 63, the interest will be payable either from the date of the testator's death, or one year thereafter, depending upon the relation in which the donor stood, or which he assumed toward the object of his bounty. Jacoby's Est., 204 Pa. 1SS, 53 Atl. 768. If the legacy is a mere benefaction, uncoupled from an intention to maintain or educate the legatee, the interest will begin to run from one year after the death of the testator; but, if he assumed to stand in loco parentis to the child, it will accrue from the date of his death. There is no doubt that it is not payable at the convenience of the executors. It is payable absolutely, but at the trustees' discretion, as they may deter- FREED v. STANDARD SCALE & SUPPLY mine to be for the advantage of the legatee, and for her education and maintenance, or to start her in business. The trustees were obliged to pay, and the discretion with which they were invested was legal and not arbitrary. While the court will not substitute their discretion for that of the trustees, nevertheless it is an imperative power; it is legal and not capricious, and must be honestly and reasonably exercised, and, when there is an abuse, the courts will correct it. See note to section 511, vol. 2 (6th Ed.) Perry on Trusts and Trustees; and Gochenauer v. Froelich, 8 Watts, 19, 23, where in construing a discretionary power the Supreme Court said: "There are cases where a claimant is entitled to the whole of his demand, as much as to any part of it; and there are cases where a part may properly be allowed and not the whole." "A person in loco parentis to a child is a person who means to put himself in the situation of a lawful father of the child with reference to the father's office and duty of making provision for the child." Robinson's Est., 35 Pa. Super. Ct. 192. In this case the testator's nephew received a legacy upon which interest was allowed from the testator's death. See, also, Cooper v. Scott, 62 Pa. 139, Seibert's App., 19 Pa. 49, and Corbin v. Wilson, 2 Ash. 178, where it is said that the intention of the testator to stand in loco parentis must be gath

ered from the whole will.

[3] Maud Pearson was about five years old when her uncle died and left her this legacy. The purpose of the gift, shown by his unequivocal language, was inspired by a solicitude for her nothing less than parental. "For her education, maintenance, or to start her in business, were his own words in directing how the trustees should spend the legacy. He not only makes the gift, but shows his anxiety for the child's future, by directing its expenditure in the essentials of life. By his own language he places himself in loco parentis to this young girl, and the result is that the legacy given to her will bear interest from the date of his death.

It is not tenable to argue that interest is not payable because the estate did not have sufficient funds to pay the same until a long time after the death of the testator, for in Huston's App., 9 Watts, 472, 477, it is said: "Even though the legacy is to come out of a part of the testator's estate which cannot be recovered for a long time after the year, and the testator directs the legacy to be paid when the money which is to constitute it can be recovered, still the payment of interest, if practicable, or at least the computation of it, will commence from the end of the year after the testator's death."

The court awarded the relief prayed for in the bill. Aline L. Rabe, executrix and residuary legatee, appealed.

Where it is a disputed question of fact whether the saw which caused plaintiff's injury was sufficiently guarded, as required by Factory Act May 2, 1905 (P. L. 355) § 11, the question is for the jury.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 1028; Dec. Dig. 286 (22).]

2. MASTER AND SERVANT 270(10) — INJURIES TO SERVANT-EVIDENCE.

In an action for injuries to a servant by an unguarded circular saw, evidence to show the practicability of attaching a guard without rendering the saw useless was admissible.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 920; Dec. Dig. 270 (10).]

3. DAMAGES 132(8)-EXCESSIVE DAMAGES

PERSONAL INJURIES.

Where plaintiff's hand is badly crippled by an injury, so that he is prevented from following his trade as a molder, and is obliged to seek much less remunerative employment, a verdict for $3,109.20 in his favor is not excessive.

[Ed. Note.-For other cases, see Damages, Cent. Dig. § 377; Dec. Dig. 132(8).]

Appeal from Court of Common Pleas, Allegheny County.

Action of trespass by George E. Freed against the Standard Scale & Supply Company, for personal injuries. From a judgment for plaintiff for $3,109.20, defendant appeals. Affirmed.

Frazer, P. J., filed the following opinion sur defendant's motion for a new trial and for judgment n. o. v.:

Plaintiff was an employé of defendant company at its works at Morado, Beaver county, Pa., and while engaged in his employment his right hand was injured by coming into contact with a circular saw to such an extent as to require the amputation of the first two fingers, and causing serious injury to the third. Plaintiff's contention is that defendant failed to properly guard the saw, and to recover damages for the injuries sustained this action was brought, and a verdict rendered in favor of plaintiff. The reasons filed in support of these motions are too numerous to discuss in detail. In substance, one class relates to the question of defendant's negligence and plaintiff's contributory negli