er of the car carrying the freight to be unloaded, and the other end resting on the bumper of a car placed at a distance of 12 feet, thus bridging over the intervening space. Extending out from the body of the car and across the platform two iron straps were laid, each 12 feet in length, to facilitate the moving of the baskets from the car to their proper place on the platform. This was the method adopted by the appellant from the beginning, and was used in the present case. The plaintiff was one of four employés who had been assigned to this work. He was boss of the gang, and had been employed in this kind of work for six months. Having removed the framework at the end of the loaded car preparatory to the work of skidding the basket out to the platform, the plaintiff was directed by the superintendent to place it, not on the ground where it might be overlooked when the unloading was finished, but against the end of the car which was being used only as a support to the platform or bridge. These arrangements completed, the work of skidding the basket out upon the platform began. When it had so far been proceeded with that the basket was entering upon the iron straps laid on the platform, one of the straps slipped from its position, was forced forward by the pressure until the farther end of it struck the end gate or frame which had been placed at the end of the other car in a slanting position, causing it to fall in such a way as to injure the plaintiff's arm. It was for the injury thus received that plaintiff brought this action for damages. In the statement of claim filed the negligence charged is thus stated:

"Said injuries were due to the negligence of the said superintendent in charge of the directing of the work, in failing to make use of a crane or other suitable appliance in unloading the said basket tank, as the defendant well knew, or in the exercise of ordinary care, should have known, that the appliances used were not safe and suitable appliances with which to unload the said tank, and knew, or in the exercise of ordinary care should have known, that the method of unloading said tanks was an unusual method and more dangerous than the ordinary method of unloading heavy pieces of machinery by the use of a crane."

In his final instructions to the jury the learned trial judge said:

[1, 2] It is thus made very clearly to appear that there was but a single allegation of negligence in the case, namely, failure to use a crane for the unloading of the baskets; and the case was submitted to the jury to find whether such failure was the proximate cause of the accident. The instruction of the court begged the very question in issue. It assumed that the adoption by the defendant of another method of unloading the basket tanks than by means of a crane was an act of negligence, and submitted to the jury the single question whether this was the proximate cause of the defendant's injury. Except as this was a negligent act, under no circumstances could it have been a proximate cause. Inquiry for proximate cause in such cases never extends further back than to some original negligent act which set in motion the chain of circumstances leading up to the injury. However remote this is, it may, notwithstanding, be a proximate cause; but the first essential is, whether near or remote, that it must be a negligent act; for except as it involves negligence, it is without legal relation to the injury. As the issue was framed, the first question to be determined was whether the failure of the defendant to use the crane method for unloading was negligence. The charge of the court in the respect we have indicated amounted to an instruction that it was, since the question was not left to the jury to pass upon. Assuming this to be the explanation of the charge, its correctness depends on the sufficiency of the evidence to warrant it. The evidence shows no conflict as to the facts. Where this occurs and the evidence admits of no other inference than negligence, it is the duty of the trial judge to so declare without referring it to the jury.

Where it utterly fails to warrant such inference, it is no less the duty of the trial judge to so declare. Now what evidence was there in this case to support plaintiff's contention that it was negligence on the part of the defendant to adopt the method of unloading it did? If none, then defendant was entitled to binding instructions.

perience and observation than that acquired in the two different establishments in which he had been employed. The other expressed like opinion based on an experience and observation in the plant in which he was employed. Neither testified that the method adopted by the defendant in this case was not a reasonably safe method, and neither testified that it was not in common use. One of these witnesses, the latter one called,

"Q. As a general proposition the heaviest pieces can be handled by pinching bars and skids as well as by overhead crane?"

His answer was "Yes, sir." The insufficiency of this evidence becomes apparent when we consider the burden that rests upon a plaintiff in such cases, and the measure of duty required of the employer. The burden was on the plaintiff to affirmatively establish the negligence that his statement charges, namely, that his injury was the result of an unusual method which exposed him to an extraordinary risk. Northern Central Ry. Co. v. Husson, 101 Pa. 1, 47 Am. Rep. 690; Titus v. Bradford, Bordell & Kinzua R. R. Co., 136 Pa. 618, 20 Atl. 517, 20 Am. St. Rep. 944. The plaintiff admits that as an employé of the defendant he had been engaged in exactly the same work, using the same device, for a period of six months prior to the accident complained of. He mentions not a single mishap during this period. If his injury was the result of an unusual occurrence, to the ordinary mind it would seem that the unusual occurrence was the sliding of the iron strap which, striking against the end gate, threw it down, rather than the method of unloading which had been employed so long without accident. This suggests a proximate cause, if negligence were connected therewith, which seems not to have been considered.

[4] But aside from this, what duty, owing to the plaintiff in the choice of method, did the defendant neglect to observe? In Pittsburgh & Connellsville R. R. Co. v. Sentmeyer, 92 Pa. 276, 37 Am. Rep. 684, we said that when the employer furnishes his employé the tools and appliances which, though not the best possible, may, by ordinary care be used without danger, he has discharged his duty, and is not responsible for accidents. And this is the doctrine of all our cases. In Payne v. Reese, 100 Pa. 301, 306, we said:

"If the machinery be of an ordinary character, and such as can, with reasonable care, be used without danger to the employé, it is all that can be required from the employer; this is the limit of his responsibility, and the sum total of his duty."

Even were it admitted that the evidence was sufficient to warrant the conclusion that the crane method was the safer, it comes far short of showing a disregard of any duty on part of the defendant in not adopting it. A plaintiff can only prove negligence in such case as this by showing that the appliance used was not reasonably safe. Even though it be made to appear that it was not in ordinary use, such fact would not warrant an inference of negligence.

be adduced as evidence of negligence." Cunningham v. Ft. Pitt Bridge Works, 197 Pa. 625, 47 Atl. 846.

Upon a careful review of all the evidence, we can reach no other conclusion than that the case called for binding instruction for the defendant, and that it was error, therefore, to refuse the motion made by defendant. We think it clear beyond question that the immediate cause of the accident was the sliding of the iron strap. Whether this was the result of negligence, and, if so, whose, are questions outside the issue we are dealing with. The assignments of error are sustained, and the judgment is reversed, and judgment is now entered for defendant.

(251 Pa. 529)

FIRST NAT. BANK OF BIRMINGHAM v. FIDELITY TITLE & TRUST CO.

(Supreme Court of Pennsylvania. Jan. 3, 1916.) 1. INSANE PERSONS 77

CONTRACTS

BILLS AND NOTES-LIABILITY. Where the indorser of a promissory note was insane at the time of the indorsement, he became liable only to the extent of the benefits received by him, whether the notes were given for his own individual indebtedness or as an accommodation.

[Ed. Note. For other cases, see Insane Persons, Cent. Dig. § 131; Dec. Dig. 77.] 2. INSANE PERSONS 77-CONTRACTS-BILLS

AND NOTES-INDORSEMENTS - LIABILITY OF INDORSER.

Where a bank had no knowledge that notes indorsed by a depositor were given for the benefit of a brokerage firm, and the entire proceeds ble on the notes, whether he was sane or insane, were credited to the depositor, his estate is liasince he received the benefit of the entire proceeds.

[Ed. Note. For other cases, see Insane Persons, Cent. Dig. § 131; Dec. Dig. 77.] 3. BANKS AND BANKING 116(2)-OFFICERS -NOTICE.

Knowledge of the president of a bank as the member of a brokerage firm that notes indorsed by a depositor were for the benefit of the firm is not imputable to the bank.

[Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. § 283; Dec. Dig. 116(2).]

Appeal from Court of Common Pleas, Allegheny County.

Action of assumpsit by the First National Bank of Birmingham, a corporation under the laws of the United States, against the Fidelity Title & Trust Company, administrator of Samuel B. Walton, on two promissory notes. From a judgment for plaintiff for $27,613.02, defendant appeals. Affirmed.

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

If it

Samuel B. Walton, the defendant's intestate, like his father, had been for many years a stockholder and depositor in the plaintiff bank. In March, 1894, Walton exe cuted and delivered to James W. Scully, a member of the firm of Scully, Painter & Beech, a power of attorney authorizing him to perform any act, matter or thing necessary or convenient to be done in the management or control of his estate; and especially to execute any check, note, or any other instrument in writing whatever, and to receive and receipt for all moneys due or to become due, to convey all property, and generally to act for him as fully as he could act if personally present. Scully exercised the powers and authority conferred on him by the letter of attorney until 1912 when Walton was declared a weak-minded person, and the Fidelity Title & Trust Company was appointed his guardian. Subsequent, to the institution of this suit, in February, 1914, Walton died, and the trust company was appointed his administrator and was substituted as defendant on the record.

This is an action of assumpsit to recover the amount due on two promissory notes, one for $10,000, dated March 30, 1911, and the other for $15,000, dated May 12, 1911, signed by Walton, payable on demand to his own order and indorsed by him. The $10,000 note was discounted March 31, 1911, and the $15,000 note was discounted May 16, 1911, by the plaintiff bank, and the proceeds in each instance were placed in the checking account of Walton with the bank. The notes were presented for discount by Daniel Beech, a member of the firm of Scully, Painter & Beech, and the president of the bank. On the days the respective notes were discounted and the proceeds placed in Walton's account, James W. Scully, Walton's attorney-infact, drew checks on Walton's account in the bank for, the same amounts as the notes respectively, which were duly paid. Likewise, on the days these notes were discounted and the amounts credited to Walton's account, the latter received from Scully, Painter & Beech, a brokerage firm, notes payable to himself for like sums with certain collateral attached thereto. These notes provided that the owner had the right to call for additional security should there be a decline in the market, and on failure to respond, the obligation was payable without demand or notice with

The defense interposed on the trial of the cause was that Walton was mentally deficient or insane at the time he executed the notes, and that he drew and indorsed them for the accommodation of Scully, Painter & Beech. Under this defense, the testimony took a wide range and the result was the voluminous record we have before us. The defendant contended that no consideration passed to Walton for the notes, that the giving of the notes by Walton to the bank, and notes of the same date by Scully, Painter & Beech to Walton were all parts of the same transaction and was intended to and did make Walton simply an accommodation indorser for that firm, and that the bank, through its president, had knowledge of the situation and was therefore affected by it.

The learned court below submitted to the jury to determine whether Walton was sane at the time he executed the notes, and whether he was an accommodation indorser on the notes in suit for Scully, Painter & Beech; and instructed them that if Walton was sane when he signed the notes they should find for the plaintiff, that if he was insane at that time there could be no recovery on the notes except to the extent that he or his estate was benefited by the transaction, by virtue of any consideration, or the value of any security that passed to him or his estate by reason of the two indorsements at the time he executed the papers. The court charged, as requested by the defendant, that if Walton was mentally incompetent when he signed the notes in suit the plaintiff could "recover only so far as and to the extent that Samuel B. Walton or his estate, received consideration, directly or indirectly, for the signing of said notes; and it is not necessary that the plaintiff be shown to have had knowledge of his mental incompetency at the time of said transactions." Throughout the charge, the court time and again told the jury that if Walton was insane, if the notes sued on were solely for the accommodation of Scully, Painter & Beech, and if neither Walton nor his estate received any benefit therefrom, then the verdict should be for the defendant; and that the plaintiff could only recover so far as and to the extent that Walton or his estate received consideration at the time he executed the notes.

[1, 2] The verdict was for the full amount of the claim which would indicate that the jury found that Walton was sane at the time he executed and delivered the notes to the bank; or if insane, that he received full consideration for the notes, as they were distinctly told that if he was deficient in men