Maine, Pennsylvania, and English cases, as to the effect of the death of a legatee before the making of the will, was expressly adopted; but it was held that the children of the legatee could not take in that case because he died before the statute went into effect. On the other hand, some courts take the other view. Howland v. Slade, 155 Mass. 415, 29 N. E. 631; Almy v. Jones, 17 R. I. 265, 21 Atl. 616, 12 L. R. A. 414; Billingsley v. Tongue, 9 Md. 575.

The argument against lapsing under the circumstances mentioned, as gathered from the various authorities, rests on the beneficial policy of the act, rather than the strict meaning of the language used. While the common law makes a technical distinction between death before the will, which makes the gift void, and death after the will, which causes it to lapse, a statute to remedy the mischief aimed at should extend to both, even if its terms seem to narrow it to one. There is no restriction in the statute as to the date of the child's death, provided it is during the testator's lifetime. It is held that the principle is the same and the sense of justice as strong, whether the will was made before or after the death of the legatee. The statute is in furtherance of the presumed intention of the testator, and aims to prevent the estate of a child "from losing the gift to him and his family from being left unprovided for" by reason of the death of such child at a particular time, or under one state of facts, but not under any other. This, as it is urged, would disappoint the intention of persons in general and, hence, the statute provides for it. It has regard to the class of individuals for whose relief it was enacted, rather than "to any technical distinctions in the manner of failure against which it proposes to guard them." As to them, the result at common law would be the same, whether their ancestor died before or after the date of the will, provided he died befor the testator. The element of futurity in the words "shall die," as used in the statute, does not refer to the date of the will, but to death during the lifetime of the testator. As the Legislature made no other limitation, the courts should not make one, but should construe the statute in accordance with its fundamental purpose, which is to save to lineal descendants of the devisee the benefit of a devise which at common law would fail of effect by reason of the death of the original devisee during the lifetime of the testator. The persons for whose benefit the act was passed are not changed, and their claim to the bounty of the testator is not affected by the mere date of their parent's decease.

The reasoning on the other side of the question is based mainly on the commonlaw principle that a legacy to a deceased person is a nullity, and that the statute speaks of lapsed legacies, but not of void legacies. We prefer the broader view that

gives full force to the general purpose of the statute, which was to save to the descendants of devisees and legatees the gifts which their parents would have taken had they survived the testator. The other provisions of the statute reflect light upon the subject and show the liberal and comprehensive object of the Legislature. I think the weight of reason and authority is in accordance with the conclusion indicated. Moreover, the case of Barnes v. Huson, supra, which was very carefully considered, has stood as the law of the state for more than 30 years, without interference by the Legislature or the courts. It should not now be overruled, for the public have had the right to rely upon it, and non constat the testator in question relied upon it when he made his will, and refrained from making specific mention of the plaintiff because he thought it unnecessary. If the rule is changed, the change should be made by the Legislature. Sutherland on Statutory Construction, §§ 313-316 It is, however, claimed that as the bequest in this case was to a class, and the name of the plaintiff's mother was not specifically mentioned, the statute has no application. Some cases take this view, relying upon the common-law rule that a gift to a class includes only those members thereof who are alive when the testator dies. Matter of Nicholson, 115 Iowa, 493, 88 N. W. 1064; Davie v. Wynn, 80 Ga. 673, 6 S. E. 183; Tolbert v. Burns, 82 Ga. 213, 8 S. E. 79: Almy v. Jones, 17 R. I. 265, 21 Atl. 616, 12 L. R. A. 414. Other cases take the opposite view, including some of those which hold that the statute does not apply when the legatee dies before the date of the will. Howland v. Slade, 155 Mass. 415, 29 N. E. 631; Re Stockbridge's Petition, 145 Mass. 517, 14 N. E. 928; Bray v. Pullen, 84 Me. 185. 24 Atl. 811; Moses v. Allen, 81 Me. 268, 17 Atl. 66; In re Bradley's Estate, 166 Pa. 300, 31 Atl. 96; Wildberger v. Cheek, 94 Va. 517, 27 S. E. 441; Jamison v. Hay, 46 Mo. 546; Wooley v. Paxson, 46 Ohio St. 307, 24 N. E. 599; Strong v. Smith, 84 Mich. 567, 48 N. W. 183.

The same arguments used to solve the other question should control this also. The statute, as both parties agree, should be read into the will, so that it speaks as a part of the will. Its object is to do away with those technical rules of the common law which defeat natural justice and the presumed intention of the testator by throwing his property away from those of his own blood by direct descent. The policy of the law, as shown, not only by the statutes cited, but by the statutes of descents and distributions, is to send the property of a decedent to his children, and, if they are dead, to his children's children. Construction should not be so strict and conservative as to defeat this beneficent purpose, but should be liberal, looking toward the object, rather than the letter, in accordance with the general rule

applicable to remedial legislation. There is no substantial difference between a gift to all the members of a class, naming none, and a gift to each member of a class, naming each one. When a testator has but two os three children, it is easy and natural to mention each by name; but when he has nearly a dozen, as the testator in this case had, the average man would describe them as a class, yet the actual intention would be the same in both cases. As the statute applies to the descendants of every deceased child, it should apply to the descendants of a child who is described with certainty, although not by name. Since the deceased child is treated in effect as taking a legacy for the purpose of transmission to his descendants, in violation of the rule at common law, so, although described as the member of a class only, he should be treated as taking for the same purpose, although at common law the result would be otherwise. There is the same reason for substituting the heirs of a deceased child in the one case as in the other; for in neither would there be a gift to the descendants were it not for the statute, and the intention of the statute, as I interpret it, is that it should apply to both. It covers "any gift to any child, though not living at the testator's death."

It goes without saying that the statute speaks upon the subject only when the will does not; for if the testator manifests a. clear intention that the descendant of a deceased child shall not take its parent's share, notwithstanding the statute, his intention will be carefully followed. In this case as he did not say, directly or indirectly, that the plaintiff should not take the share of her deceased mother, I think the statute speaks for him and declares that she shall. It follows that the judgment appealed from should be affirmed, with costs.

GRAY, O'BRIEN, and HAIGHT, JJ.. concur with CULLEN, C. J. BARTLETT and WERNER, JJ., concur with VANN, J.

Judgment reversed, etc.

(183 N. Y. 317)

O'BRIEN v. BUFFALO FURNACE CO. (Court of Appeals of New York. Dec. 15, 1905.) 1. MASTER AND SERVANT-INJURY TO SERVANT -DIRECTING VERDICT.

Defendant sued to recover for the death of her intestate, killed by an explosion of dynamite used in breaking up slags accumulated at the base of a furnace. The accident was caused by the negligence of a foreman under whom deceased was working in packing dynamite in an iron pipe with a steel, instead of a wooden, rod. The general manager of the blast furnace, who knew that such use of a steel rod dangerous, observed the foreman using the rod, but did not warn him against such use. Held error to direct a verdict for defendant on the ground that the negligence of the general manager in permitting the foreman to use the steel

76 N.E.-11

was

rod was the negligence of an employé in respect to a detail in the work, for which the defendant was not responsible.

2. SAME ASSUMPTION OF RISK.

Where an employé knew that dynamite was dangerous, and assumed such risk as was inherent in the careful use thereof, the question of the assumption of a risk from the use of a steel rod in tamping the dynamite was a question for the jury. where there was no evidence that the employé knew of the increased danger from such use.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Elizabeth O'Brien, administratrix of John Coyle, deceased, against the Buffalo Furnace Company. From a judgment of the Appellate Division (94 App. Div. 609, 87 N. Y. Supp. 1142), affirming a judgment for defendant entered on dismissal of the complaint, plaintiff appeals. Reversed.

Eugene M. Bartlett, for appellant. Tracy C. Becker and Louis L. Babcock, for respondent.

CULLEN, C. J. The action is brought by the administrator of a servant against his master for negligence causing the death of the servant. The defendant operated a blast furnace in the city of Buffalo. The deceased, prior to the time of the accident, had been employed hoisting iron to the top of one of the furnaces, which was about 18 feet in diameter and 85 feet in height. In the course of time slag accumulated at the base of the furnace, which rendered it necessary to take the structure down and rebuild it. When the furnace was down the usual practice was to break up the slag by explosives. On the day of the accident the work of blasting the slag had been intrusted to one Minor, whose general competency there is nothing in the evidence to impeach. Incased in the slag was a coil of iron pipe. Minor proceeded to fill this pipe with dynamite, and the deceased was called from his work by his foreman to assist Minor by cutting up a stick of that explosive and dropping it into the pipe. The evidence tends to show that the deceased hesitated to comply with this direction and expressed fear of the danger the work involved. In response to this both the foreman and one Bachman, the general manager of the defendant, assured him that there was no danger. While the deceased dropped the pieces of dynamite into the pipe, Minor used a steel rod some six feet long to push down the pieces that adhered to the sides of the pipe or clogged it. While this work was being prosecuted the charge exploded, the plaintiff's intestate was killed, and Minor severely injured. The evidence tended to show that the use of a steel or metal rod to tamp an explosive, especially dynamite, was improper, and that a wooden rod should have been used for the purpose.

We may concede that from the foregoing

facts no inference of liability on the part of the master could be drawn; and, if they were the only facts, the judgment below would have to be affirmed. While it is the duty of the master to warn the servant of any latent or extraneous danger in the prosecution of the work and to give him proper instructions, if instructions are necessary to guard against such dangers, this rule does not apply to an obvious risk of the work. The danger inherent in the use of high explosives, however carefully handled, is a matter of common knowledge, and that the deceased was aware of this is shown by his expressions concerning the danger of the work. The statements of the foreman and the superintendent that there was no danger seem no more than declarations of opinion on their part, which the deceased might accept or reject as he deemed wise. Nor do we see that any instructions to him would have added to his security or prevented the accident. The explosion was caused by the negligence of Minor in using a rod of steel, instead of one of wood. This was the negligence of a fellow servant in the performance of a detail of the work. This further fact, however, appeared: Bachman, who, under the evidence in this case, was the alter ego of the defendant, at least five minutes before the explosion, observed Minor using the steel rod to force the pieces of dynamite down the pipe. With this knowledge he walked away from the scene of the accident, returning Just before its occurrence. As he testifies, he was about to warn Minor against the use of the steel rod when the explosion took place. It further appears by Bachman's own testimony that he was entirely aware that it was improper to use a metal rod in tamping dynamite or other explosives. His excuse for not having intervened at the time he observed Minor using the rod was that what the latter was doing "didn't amount to tamping." It seems to us that the work was substantially of the same character as tamping, and that the danger from using the metal rod was as great in one case as in the other, or, at least, that the jury might have so found. Had Bachman, on discovering that Minor was doing the work in a dangerous manner, promptly intervened, the accident would not have occurred; or had he even told the deceased, to whom he had previously said that there was no danger, that the work as then conducted was dangerous, the deceased might have fled from the danger, and at least the injury to him been avoided.

The learned Appellate Division (73 N. Y. Supp. 830), while assuming that the jury might have found negligence on the part of Bachman, was of opinion that it was negligence in the performance of a duty by an operative in respect to a detail of the work, for which the master was not responsible, and cited Crispin v. Babbitt, 81 N. Y. 516, 37 Am. Rep. 521, and Cullen v. Norton, 126

N. Y. 1, 26 N. E. 905. We entertain a different view. As already said, Bachman was the manager of the corporation, and therefore its alter ego.

He was, for the purposes of this case, the master. The detail of the work, which was the servant's duty, was done in this case not by him, but by Minor. In this respect the case radically differs from those cited by the Appellate Division. It is the duty of the master to use reasonable care to so conduct his business as not to subject servants to unnecessary danger in the prosecution of their work. For this purpose he must provide a reasonably safe place in which the servant is to work, reasonably safe tools and appliances with which to work, competent fellow servants with whom to work, and, if the work is of a complicated character, proper rules and regulations for the prosecution of the work and reasonable supervision to see that the rules were complied with. The work in which the deceased was engaged not being of the latter character, probably it was not necessary to promulgate any rules on the subject. The object, however, of establishing and enforcing rules, is that each servant may so perform his work as not to occasion unnecessary danger to his fellow servants. While in work of a simple character no rules may be necessary, still the duty of the master is the same to use reasonable care that each servant properly does his work. Ordinarily, so far as liability to his servants is concerned, that duty is performed when he selects competent fellow servants. But, when he sees that one servant is so negligently doing his work as to occasion danger to a fellow servant, it is his duty to interpose and direct that the work be properly done. Doing v. N. Y., Ont. & W. Ry. Co., 151 N. Y. 579, 45 N. E. 1028; 170 N. Y. 459, 63 N. E. 541. Had the explosion taken place, not on this occasion, but on a subsequent one, and had Bachman, instead of witnessing, been informed of the reckless manner in which Minor had been doing his work, involving a fellow workman in the greatest danger, it would have been a question for the jury to determine whether Bachman was not negligent in retaining Minor in his employ, no matter what his competency may have been as to mere skill and knowledge, at least without promise on the part of Minor to properly conduct the work in the future. If this be so, very much more was it a question for the jury whether, in view of the imminence of the danger, Bachman should have not intervened on the instant and discharged Minor unless the latter properly prosecuted the work. The question of the plaintiff's intestate's assumption of the risk was also for the jury. Doubtless he knew that dynamite was dangerous, and he assumed such risk as was inherent even in the careful use of that article. There is no proof, however, that he knew of the increased danger from the use of the metal rod.

Dowd v. Same,

The judgments of the Appellate Division and of the Trial Term should be reversed, and a new trial ordered; costs to abide the event.

GRAY, O'BRIEN, BARTLETT, HAIGHT, VANN, and WERNER, JJ., concur.

Judgments reversed, etc.

(165 Ind. 537)

PITTSBURGH, C., C. & ST. L. RY. CO. v. PECK. (No. 20,593.)

(Supreme Court of Indiana. Nov. 28, 1905.) 1. PLEADING-MATTERS OF FACT OR CONCLUSIONS-NEGLIGENCE-PERSONAL INJURY-ALLEGATION OF FACTS SHOWING LEGAL DUTY. The complaint, in an action for a personal injury negligently inflicted by another, must allege facts showing that the latter owed a legal duty to the person injured and that he negligently failed to perform the duty; and the mere allegation of the pleader that such a duty existed is insufficient.

[Ed. Note.-For cases in point, see vol. 39, Cent. Dig. Pleading, § 19.]

2. SAME-MASTER AND SERVANT-INJURY TO EMPLOYÉ.

A complaint, in an action under the employers' liability act (Laws 1893, p. 294, c. 130, 1; Burns' Ann. St. 1901, § 7083, subd. 4), making a railroad company liable for an injury to an employé caused by the negligence of the person in charge of any engine, which alleges that cars were drawn past a switch, that it then became the duty of the engineer not to move the cars until signaled to do so by the switchman or the conductor in charge, and that the engineer, without receiving any signal and in disregard of his duty, backed the cars, causing the injury complained of, is fatally bad for failing to allege the facts making it the duty of the engineer not to move the cars unless signaled. [Ed. Note. For cases in point, see vol. 39, Cent. Dig. Pleading, § 19.]

3. SAME.

The complaint is also objectionable as containing allegations in the alternative.

Appeal from Circuit Court, Cass County; J. M. Rabb, Special Judge.

Action by Charles M. Peck against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals. Transferred from the Appellate Court, under Burns' Ann. St. 1901, § 1337u. Reversed.

G. E. Ross, for appellant. Kistler & Kistler, for appellee.

JORDAN, J. Appellee, on January 10, 1903, by a complaint in four paragraphs, instituted this action to recover for personal injuries sustained by him on account of the alleged negligence of appellant railway company. The first and third paragraphs of the complaint were dismissed, and the cause tried on the second and fourth. A demurrer

for insufficiency of facts was overruled to each of the latter paragraphs. On the issues joined the case was tried by a jury, and a verdict returned awarding appellee damages in the sum of $2,400. The court, over ap

pellant's motion for a new trial, rendered judgment upon the verdict. The errors assigned are to the effect that the court erred in overruling appellant's demurrer to each of the aforesaid paragraphs of the complaint upon which the cause was tried, and in denying its motion for a new trial.

*

It appears to be conceded by the parties that both the second and fourth paragraphs are based on the fourth subdivision of section 7083, Burns' Ann. St. 1901; the same being section 1 of the employers' liability act of 1893 (Laws 1893, p. 294, c. 130), which provides that "Every railroad or other corporation operating in this state shall be liable for damages for personal injury suffered by an employé while in its service, the employé so injured being in the exercise of due care and diligence in the following cases: Fourth: Where such injury was caused by the negligence of any person in the service of such corporation who has charge of any * * * locomotive engine or train upon a railway." The fourth paragraph of the complaint alleges that the defendant, appellant herein, is a corporation organized under the laws of the state of Indiana and owns and operates a steam railroad within and through said state, and within and through the city of Logansport, therein. It is alleged that in the latter city, on March 8, 1902, and long prior thereto, the defendant as a part of its railway system owned and operated a railway yard consisting of various switches, tracks, and spurs, extending in an easterly direction from a point near Berkly and Canal streets to a point near Seventeenth street in said city. On said day the plaintiff, appellee herein, was in the employé of the defendant as a switchman engaged with others of its employés in switching cars, making up and separating trains of cars, and in discharging duties usually required of a switchman in railway yards. There was used by the defendant for the purpose of switching and making up trains, etc., a locomotive engine which was in charge of a locomotive engineer who was an employé of the defendant. This engine was operated in the yards and on the tracks of the company. About 8 o'clock on the night of said day this engine in charge of said engineer was connected or attached to a cut of cars which were standing in said yard, and said cut was pulled in a westerly direction out on to one of the main tracks of the defendant's road for the purpose of clearing a switch which was connected with another track parallel thereto. The cut of cars was drawn past said switch connection and there stopped, "when and where," as stated or alleged by the pleader, "it became the duty of said locomotive engineer not to move or propel said locomotive and cars nor to back the same until signaled to do so by this plaintiff, or the conductor, an employé of said

company in charge and conducting the switching of said cars." The pleading then alleges that the plaintiff rode on the cut of cars in question down to the switch and alighted therefrom, and that after the cars had passed the switch he then "carefully and prudently started to cross said track, and while doing so his foot caught within the equipment of said switch connection and road structure and became fastened and held him secure; that he immediately tried to release himself from such retention, using due care and diligence in that respect, but was unable to do so before the injury hereinafter complained of. That while in such condition, not being able to extricate himself and get off of said track, and without any signal to do so from this plaintiff or other person whose duty it was to signal such engineer, and in total disregard of his duty in that respect, said engineer in charge of said locomotive engine, as aforesaid, carelessly, and negligently backed said cut of cars against and upon this plaintiff, thereby injuring him by crushing, maiming, and mangling his right leg," etc.

Appellant's counsel insist that both of the paragraphs in question are insufficient upon demurrer, at least, for the reason that each fails to show by the averment of proper facts the existence of any legal duty owing to the plaintiff herein, either by the defendant or the engineer to whom the alleged negligence is imputed. The rule is well and universally settled that, in pleading a cause of action in accident cases to recover for a personal injury or death of a person on account of negligence, it is essential that the complaint inter alia contain an allegation or statement of facts by which it is shown that the defendant owed a legal duty to the plaintiff, and that the defendant negligently performed or negligently failed to perform such duty. The mere allegation or conclusion of the pleader standing alone that such a duty existed, or in other words, in the absence of facts or circumstances to sustain the allegation or conclusion that the duty existed, is not sufficient as a matter of pleading. Jeffersonville. etc., R. Co. v. Dunlap, 29 Ind. 426; Pittsburgh, etc., R. Co. v. Lightheiser, 163 Ind. 247, 71 N. E. 218, and the many authorities and cases there cited; Chicago, etc., R. Co. v. Barnes (Ind. Sup.) 73 N. E. 91; Black's Law & Prac. Accident Cases, § 150; 14 Ency. Pl. & Prac. p. 332. The fourth paragraph, in regard to the question of showing a legal duty owing by the engineer to whom the negligence is imputed upon which appellee seeks to base his cause of action, certainly falls far short under the facts of coming within the requirements of the rule asserted. It must be remembered that there is a material difference in respect to a matter or question of pleading and one relating to evidence. In pleading or stating a cause of action facts must be directly and positively

alleged, while in regard to evidence conclusions may be inferred or warranted from facts or circumstances shown upon the trial. Laporte Carriage Co. v. Sullender (at the May term, 1905) 75 N. E. 277. In Chicago, etc., Ry. Co. v. Barnes (Ind. Sup.) 73 N. E. 91, this court, in speaking in respect to what is necessary to disclose a legal duty in a pleading, said: "It was not essential to allege that a certain line of conduct was a duty imposed upon appellant by law, for as a general rule a legal duty may be implied from the facts averred in the pleading." It will be noted that the paragraph under review, after averring that the engineer stopped the cut of cars at the point in question, then charges that it became the duty of the engineer not to move or propel the locomotive and cars, nor to back the same until signaled to do so by the plaintiff or the conductor, etc. The pleading then proceeds to allege that the plaintiff in crossing the track caught his foot in the manner as shown and while in this position it is averred that the engineer, "without any signal from the plaintiff or other person whose duty it was to signal said engineer, carelessly and negligently backed said cut of cars," etc. Aside from the mere charge or conclusion of the pleader, there is nothing in the nature of facts alleged to in any manner disclose that it was the duty of the engineer not to move the locomotive and cars from the point at which they had been stopped unless signaled to do so by the plaintiff. If this duty arose out of any rule or rules of appellant company, or out of any orders or directions given by it, or from anything which required the engineer in charge of the engine in question to be subject to the signal of plaintiff at that particular time, such facts ought to have been alleged. Had the pleading upon the point in controversy properly revealed a legal duty owing by the defendant to the plaintiff, then, under a well settled rule, a violation or breach thereof might have been shown by a general averment of negligence. See Pittsburgh, etc., R. Co. v. Lightheiser, supra, page 265, 163 Ind., 71 N. E. 218; Chicago, etc., R. Co. v. Barnes, supra.

Counsel for appellee, however, in view of their argument, apparently labor under the mistake that a general allegation of negligence will suffice to show both a legal duty and a violation thereof. This is untenable. The pleading may also be said to be open to the objections that it alleges certain matters and things in the alternative. As a general rule, to plead in the alternative vitiates the pleading. 1 Chitty on Pleading, *pp. 236, 237; Wheeler v. Thayer, 121 Ind. 64, 67, 22 N. E. 972, and authorities there cited. While the second paragraph is not quite as objectionable as the fourth, nevertheless it is open to the same objections which we have pointed out in regard to the latter, and these serve to condemn it.