conditions of a policy of insurance, prepared as they are by the company, and virtually thrust upon the insured, frequently without his knowledge, must be construed strictly, and while the legal effect of a chattel mortgage and of a deed of trust to secure the payment of money may be practically the same, they are in law different instruments; and that a condition against one is not broken by the existence of the other. We recognize the rule laid down by this court in Thompson v. Phenix Insurance Company, 136 U. S. 287, that in case of attempted forfeiture, if the policy be fairly susceptible of two constructions, the one will be adopted which is more favorable to the insured. This rule was reiterated in McMaster v. New York Insurance Company, 183 U. S. 25, but we cannot recognize it as applicable to this case.

A deed of trust and chattel mortgage with power of sale are practically one and the same instrument, as understood in this District. In the language of Mr. Justice Morris, in speaking of mortgages of real estate in Middleton v. Parke, 3 D. C. App. 149:

"The deed of trust is the only form of mortgage that has been in general use in the District of Columbia for many years. The common law mortgage is practically unknown with us; and every one understands that, when a mortgage of real estate here is spoken of, the deed of trust is what is intended.

. The deed of trust is here used as the equivalent of a mortgage; and so the term is universally used by the community. Indeed, while a mortgage is not necessarily perhaps a deed of trust, a deed of trust to secure the loan of money is necessarily a mortgage."

It was said by this court in Shillaber v. Robinson, 97 U. S. 68, 78, that "if there is a power of sale, whether in the creditor or in some third person to whom the conveyance is made for that purpose, it is still in effect a mortgage, though in form a deed of trust, and may be foreclosed by sale in pursuance of the terms in which the power is conferred, or by suit in chancery."

VOL. CXCVI-4

The legal effect of the two instruments has been recognized as practically the same in several cases in this and other courts. Platt v. Union Pacific R. R. Co., 99 U. S. 48, 57; Palmer v. Gurnsey, 7 Wend. 248; Eaton v. Whiting, 3 Pick. 484; Wheeler & Wilson Mfg. Co. v. Howard, 28 Fed. Rep. 741; Bartlett v. Teah, 1 McCrary, 176; Southern Pacific R. R. Co. v. Doyle, 11 Fed. Rep. 253; McLane v. Paschal, 47 Texas, 365.

There may be cases under particular statutes recognizing a difference between them in reference to the application of the recording laws, as appears to be the case in Maryland, Charles v. Clagett, 3 Maryland, 82, but in their essential features and in their methods of enforcement they are practically identical. Both are transfers conditioned upon the payment of a sum of money; both are enforceable in the same manner, and the difference between them is one of name rather than substance. The provision in the policy is one for the protection of the insurer, who is entitled, if he insists upon it in his questions, to be apprised of any fact which qualifies or limits the interest of the insured in the property, and would naturally tend to diminish the precautions he might take against its destruction by fire.

In passing upon the identity of the two instruments in this case we may properly refer to the further provision of the policy that the interest of the insured must be an unconditional and sole ownership. While the breach of this condition is not specifically urged in the briefs, we may treat it as explanatory of the other condition against the existence of chattel mortgage. The company evidently intended by this provision to protect itself against conditional transfers of every kind. The contract of the company is a personal one with the insured and it is not bound to accept any other person to whom the latter may transfer the property.

The conditions of the policy in this case were broken by the trust deeds, and the judgment of the court below is, therefore,

Affirmed.

196 U. S.

Argument for Plaintiff in Error.

TEXAS & PACIFIC RAILWAY COMPANY v. SWEAR

INGEN.

ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH

CIRCUIT.

No. 48. Submitted November 3, 1904.--Decided December 19, 1904.

An employé is entitled to assume that his employer has used due care to provide reasonably safe appliances for the doing of his work. Knowledge of the increased hazard resulting from the negligent location in dangerous proximity to a railroad track of a structure will not be imputed to an employé, using ordinary diligence to avoid it if properly located, because he was aware of its existence and general location. It is for the jury to determine from all the evidence whether he had actual knowledge of the danger.

THE facts are stated in the opinion.

Mr. John F. Dillon, Mr. D. D. Duncan and Mr. T. J. Freeman for plaintiff in error:

In every case before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any evidence upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed. Improvement Co. v. Munson, 14 Wall. 448; Commissioners &c. v. Clark, 94 U. S. 278, 284; Pleasants v. Fant, 22 Wall. 120; Randall v. B. & O. Ry. Co., 109 U. S. 482; Railway Co. v. Converse, 139 U. S. 469; Schofield v. C., M. & St. P. Ry. Co., 114 U. S. 615; Steamship Co. v. Merchant, 133 U. S.

375.

When a servant enters into the employment of another he assumes all the risks ordinarily incident to the business. He is presumed to have contracted in reference to all the hazards and risks ordinarily incident to the employment; consequently he cannot recover for injuries resulting to him therefrom.

The servant takes the risks of the master's mode of con

Argument for Plaintiff in Error.

196 U.S.

ducting his business, though a safer one might be followed, if the servant fully knows the risk and continues to work.

There are risks and dangers incident to most employments, those risks the parties have in view when engagements for services are made, and in consideration of which the rate of compensation is fixed. In all engagements of this character the servant assumes those risks that are incident to the service, and as between himself and the master he is supposed to have contracted on those terms, and if an injury is sustained by the servant in that service, it is regarded as an accident, and the misfortune must rest on him. Woods' Master & Servant, 2d ed. § 326; 3 Woods' Railway Law, § 370, p. 1452; 14 Am. & Eng. Ency. of Law, 843, 845; Tex. & Pac. Ry. Co. v. Minnick, 57 Fed. Rep. 362; Tuttle v. Railway, 122 U. S. 189; Randall v. Railway, 109 U. S. 478; H. & T. C. Ry. Co. v. Conrad, 62 Texas, 627; Woodworth v. St. P., M. & M. Ry. Co., 18 Fed. Rep. 282; Mo. Pac. Ry. Co. v. Summers, 71 Texas, 700; Green v. Cross & Eddy, Receivers, 79 Texas, 130; Naylor v. Railway Co., 5 Am. & Eng. R. R. Cases, 406; Wonder v. Baltimore Ry. Co., 32 Maryland, 411; Crilly v. Texas & Pac. Ry. Co., 53 Am. & Eng. R. R. Cases, 104; Kohn v. McNulty, Receiver, 147 U. S. 238.

When the proof establishes a usage or custom, the presumption is that the employé contracted with regard to said usage or custom, and if he seeks to avoid its force and effect, the burden is upon him to show that its existence had been concealed from him by the company, and that he did not know of same, nor could have known of same, by the use of ordinary diligence. Watson v. Railway Co., 58 Texas, 438; St. Louis & S. W. v. Spivey, 73 S. W. Rep. 973.

It is the duty of the master to advise the servant, or to inform him, of the dangers incident to the employment, if the servant is ignorant of them. If the dangers are obvious and patent, and the servant advises himself, of course the duty of being advised by the master would not be imposed. Gulf, Colo. & S. Fé Ry. Co. v. Darby, 57 S. W. Rep. 446.

Mr. Leigh Clark for defendant in error, cited Cent. Trust Co. v. E. T. V. & G. Ry. Co., 73 Fed. Rep. 661; Tex. & Pac. Ry. Co. v. Archibald, 170 U. S. 674; George v. Clark, 85 Fed. Rep. 607; Gulf, Colo. & S. Fé Ry. Co. v. Darby, 67 S. W. Rep. (Texas) 446; G., H. & S. A. Ry. Co. v. Mortson, 71 S. W. Rep. (Texas) 707; Grand Trunk Ry. Co. v. Ives, 144 U. S. 408, 417; Gardner v. Mich. Cent. Ry. Co., 150 U. S. 349, 361; Richmond & D. Ry. Co. v. Powers, 149 U. S. 44; Mo. Pac. Ry. Co. v. Everett, 161 U. S. 451.

MR. JUSTICE WHITE delivered the opinion of the court.

This suit was commenced in a state court by W. W. Swearingen, the defendant in error, and, on the application of the defendant, the Texas and Pacific Railway Company, was removed to the Circuit Court of the United States as one arising under the laws of the United States, because the railway company was chartered under an act of Congress.

The action was to recover damages for personal injuries sustained by reason of the alleged negligence of the defendant company, in whose service at the time of the injury the plaintiff was employed as a switchman. The negligence alleged on the part of the company was the existence, in close proximity. to a switch track, of a scale box, by striking against which the plaintiff was injured whilst doing duty as a switchman. In addition to a general denial the railway company specially pleaded that the scale box in question was at a safe distance from the track on which the plaintiff was hurt when working and, moreover, that the plaintiff had assumed the risk, if any, arising from the situation of the scale box, and had in any event been guilty of contributory negligence. There was a verdict and judgment for the plaintiff, and an affirmance of such judgment by the Court of Appeals. 122 Fed. Rep. 193. The assignments of error are based, first, on a ruling of the trial court in rejecting evidence; second, on the refusal to direct a verdict; and, third, on an exception taken to the charge