PENNSYLVANIA SUPREME COURT.

gether until a few months before the execution of the deed. Black acted upon the advice of Dr. Willard, and after consultation with his mother and other members of the family as to the object of the transaction, but it does not appear that he consulted any other person than Mr. Lewis as to the mode of effecting it. He, however, took no interest under the deed, and was therefore wholly disinterested. Lewis was not Black's attorney, but had acted for Neal in having Lane appointed guardian. Neither Black nor Lewis had any interest to serve, other than that of Neal's; and, so far as appears from the character of the men, we are satisfied that they acted and advised Neal solely for what they regarded his best interests. They were independent and unprejudiced advisers. Thomas H. Lane, the trustee, was a proper selection. He has shown his faithfulness and ability by the successful management of this estate as guardian. In view of the control of the courts over the trustee and the estate, the deed is in no respect improvident; and considering the incapacity and inexperience of Neal, the amount of his estate, and the large income derived from it, it seems to have been eminently wise and prudent. There does not appear to have been any marked improvement in his condition, as to mental power or business capacity, in the six years which have elapsed since the execution of the deed. So that the same conditions which made its execution advisable still exist as reasons against its revocation, and that it is not for the interest of plaintiff that it should be revoked. As a matter of law, we find that the plaintiff has not the power arbitrarily to revoke a deed voluntarily made; that such revocation is subject to the judgment of the court, and should not be ratified unless it appear that the best interests of the plaintiff so require. Under the facts and law of this case, we are of opinion that the deed of October 18, 1889, should not be revoked, and the plaintiff's bill should be dismissed at his costs. accordingly. A decree will be drawn

"We feel disposed to add, as an apology for this lengthy opinion, the words of Justice Green in Miskey's Appeal, 107 Pa. 632: 'It has seemed to us appropriate to dwell with rather more than usual fullness upon our review of the case, because of the unusual character of the questions involved and the relief invoked, the very large amount at stake, and the earnestness, zeal, and ability with which the argument was conducted by the learned counsel on both sides.' And besides, we do not have the benefit of a master's report; and though we are satisfied that the new rule in equity will greatly facilitate business, and be of advantage to parties, counsel, and the courts, it necessitates a fuller reference to testimony and of the cases bearing upon questions of law than was necessary in passing upon exceptions to a master's report.

"

Messrs. W. B. Rodgers, Joseph Stadtfeld, and J. H. Beal, for appellant:

The burden of proving affirmatively the validity of this deed is on the defendants, because the parties procuring it stood in a confidential relation to the donor, and the deed contains no power of revocation. 34 L. R. A.

loco parentis.

Black was Neal's uncle.

OCT.,

Black stood in

accounts unsettled, and still in possession of
all of his ward's property.
Lane was Neal's guardian, with all his

matter he was acting on Black's request, and
on behalf of Lane.
Lewis was Lane's attorney, and in this very
cisely the same position as Lane and Black.
He was acting for them, not for Neal.
He therefore stood in pre-

son, L. R. 2 Ch. 55.
Espey v. Lake, 10 Hare, 260; Tate v. William-

Williams v. Williams, 63 Md. 371; Huguenin
These facts show a confidential relation.
v. Baseley, 2 White & Tudor, Lead. Cas. in Eq.
Dutton v. Thompson, L. R. 23 Ch. Div. 278;
1156; Darlington's Estate, 147 Pa. 624; Wright
v. Smith, 23 N. J. Eq. 106.

dential relation to Neal, but they acquired
benefits by this deed.
Not only did these parties stand in a confi-
To Lane:

case he should be

appointed trustee.
His compensation in
account instead of Neal, and be discharged
from the guardianship, and thereby relieved
That he would have Black pass upon his
from responsibility for Neal's property and
his (Lane's) past acts.

tion for such time as he might serve.
To Black the benefits were: The compensa-

entitled to a large share of the estate in case
Neal died intestate without issue.
As one of Neal's heirs at law he would be

Dutton v. Thompson, supra; Whitridge v.
Whitridge,76 Md. 54; and Williams v. Williams,
These benefits are much greater than in
supra.

|
up all his property and all power over it, with-
out any valuable consideration to him.
The important fact is that Neal was giving

revocation of itself puts on the defendants the
The fact that the deed contains no power of
burden of proof.

Williams v. Williams, supra.

sey v. Mundy, 24 N. J. Eq. 243; Miskey's
Appeal, 107 Pa. 611; Russell's Appeal, 75 Pa.
Coutts v. Acworth, L. R. 8 Eq. 558; Garn-
269.

show, by clear and decisive proof:
In order to sustain this deed, they must

of his estate, its extent and value, and of the
Toker v. Toker, 3 DeG. J. & S. 487.
income to be derived therefrom.
1. That Neal had a true and full knowledge

L. ed. 1040.
Taylor v. Taylor, 49 U. S. 8 How. 183, 12

gard to the act which he was performing.
2. That he had independent advice in re-

biased by the confidence he reposed in Lewis
and Black.
3. That his act was uninfluenced and un-

are reasonable, proper, and provident.
4. That the terms and provisions of the deed

and of the effect and consequences of the deed
5. That he had a full, clear, and intelligent
understanding of the act he was engaged in,
which he was executing.

this property, and all of it was in possession
Neal had never had possession of any of
this deed. This is an important fact.
or control of the persons who were procuring
Wills' Appeal, 22 Pa. 332.

Charles S. DAVIDSON, Appt.,

v.

[Michael E. HANNON et al.

(67 Conn. 312.)

A photographic lens owned and used
by a photographer in the prosecution of his
business is within a provision of a statute ex-
empting from attachment implements of the
debtor's trade.

(Hamersley, J., dissents.)

(February 21, 1896.)

FEB.,

gave up his place of business, and stored his photographic apparatus at his residence in Hartford. He there fitted up a room in his barn for the purpose, and continued up to the portunity offered. time of the attachment to take photographs for friends and neighbors, for pay, when the opquestion was a useful and necessary implement to Peters in his photographic work. A lens similar to the one in

The statute in question is ancient, though it has been varied somewhat from time to time, both in form and in substance. Several of its provisions have come before this court for consideration, and generally, it may be said, that in the decisions a liberal construction in favor

APPEAL by plaintiff from a judgment of of the debtor has been adopted. A single ref

the Court of Common Pleas for Hartford
County in favor of defendants in an action
brought to recover possession of a photo-
graphic lens which defendants had attached
for debt. Reversed.

The facts are stated in the opinion.
Mr. Lucius F. Robinson for appellant.
Messrs. Perkins & Perkins, for appel-

lees:

The protection extended by this section of the statute is to mechanics and to them only. Patten v. Smith, 4 Conn. 450, 10 Am. Dec. 166; Atwood v. De Forest, 19 Conn. 513; Seeley v. Gwillim, 40 Conn. 106.

The legislature did not intend that this phrase should have a broad application, for the reason that in the statute itself it took great pains to define the exact goods and the amount thereof to be protected, and was careful to mention other kinds of business as entitled to protection, which by a broad construction might have been included under the phrase in question.

Enscoe v. Dunn, 44 Conn. 93, 26 Am. Rep. 430; Wallace v. Bartlett, 108 Mass. 52.

A photographer is not a mechanic within the meaning of the statute.

Story v. Walker, 11 Lea, 515, 47 Am. Rep.

305.

Fenn, J., delivered the opinion of the court: This is an action of replevin to recover property attached. The only question necessary for us to decide upon this appeal is whether the court below erred in holding such property was not exempt from attachment and execution under that clause of Gen. Stat. § 1164, which exempts "implements of the debtor's trade.' The property in question is a photographic lens. whose debt it was attached. He was a phoIt belonged to one Peters, for tographer, with a place of business in Hart ford. He had mortgaged his photographic apparatus and materials, including this lens, to the plaintiff. This mortgage was duly re corded. The plaintiff never had, before the attachment, the possession of said lens, nor the right to the possession of it, except as such mortgagee. Some time after said mortgage, and before said attachment, said Peters

erence will be sufficient to illustrate this, as shown in cases referring to other clauses than the one now before us. 43 Conn. 528, the words, "household furni In Hitchcock v. Holmes, definition can be given to the word 'necessary." ture necessary for supporting life," were construed. It was said: "No fixed or precise as used in the statute.

Of course, it

was susceptible of being confined within very narrow limits; for we know, as a matter of fact, must control its interpretation. The facts in each case that many families exist, although they are enabled to use very few of the articles to be their rudest forms. But a proper regard for plain legislative intent requires us to use it in found in an ordinary household, and these in a broader, more liberal, and more humane sense; to pass beyond what is strictly indispensable, and include articles which to the common uhderstanding suggest ideas of comfort and convenience.'

430.

directly relate to the clause of the statute now 10 Am. Dec. 166; Atwood v. De Forest, 19 in question are Patten v. Smith, 4 Conn. 450, Enscoe v. Dunn, 44 Conn. 93, 26 Am. Rep. Conn. 513; Seeley v. Gwillim, 40 Corn. 106; v. Smith, supra, the question was as to the We will briefly refer to each. In Patten bedding, tools, arms, or implements of his meaning of the word "tools," in the phrase household, necessary for upholding his life." then used in the statute, "necessary apparel, It was held that an apparatus for printing, consisting of a printing press, cases, types, etc., might be tools, within the meaning of that statute.

The cases in this state which more

questionably a mechanical employment; that the statute concerned the public good, which The court said that printing was unhad a deep interest in the prosperity of meliberally; that, in relation to the natural dechanical employments, and should be construed: scription of the goods of which an exemption is demanded, the exposition of the law ought to be liberal. In Atwood v. De Forest, supra. the words now under consideration, "implements of the debtor's trade," which had been inserted into the statute in 1821, and have since continued there, were construed. The question in that case was whether the debtor was a mechanic, or a manufacturer; whether the ar

NOTE. For some other cases of exemptions from | 567; and Consolidated Tank Line Co. v. Hunt (Iowa). execution, see Watson v. Lederer (Colo.) 1 L. R. A. 12 L. R. A. 476.

854, and note; Re McManus's Estate (Cal.) 10 L. R. A.

34 L. R. A.

གས

it was held that the horses and carts of a person engaged in the business of carting coal are not protected from attachment as tools of a debtor's trade. This, it was stated, could not "be said to be the 'business of a mechanic,' either by definitions from the books or by the common understanding and speech of men." Surely this, as it seems to us, is evident enough.

ticles claimed to be exempt were tools or ma-
chinery. The work carried on was that of
making spectacles. It was held that the arti-
cles employed were not exempt, not because
spectacle-making was not mechanical, not a
trade, but because the facts showed that the
parties were manufacturers, and "that they
were not spectacle-makers, within the meaning
of the statute." The court, in defining "trade," |
said: "By the word 'trade,' as used in this
statute, we suppose is meant the business of a
mechanic, strictly speaking, as the business
of a carpenter, blacksmith, silversmith, prin-
ter, or the like, and that it was not intended
to include the business of a manufacturer, any
more than it was intended to extend to the
business of a merchant or farmer." It is evi-
dent that the court did not intend, by the use
of such language as we have quoted,-espe-
cially when used for the purpose and in the con-
nection in which it appears, -to give a strict
or narrow meaning to the word "mechanic,"
but only to show that distinction to which we
have referred, and upon which the decision
rests. Concerning this the court adds: "If it
be said that the distinction between a me-
chanic and a manufacturer is not as precise as
is desirable, and that there is difficulty in de-
termining to which class certain individuals
belong, especially in cases where men are en-
gaged in both the business of a mechanic as
well as that of a manufacturer, the answer is,
the difficulty is not in the distinction itself,
that seems to be precise enough,-but it is in
the application of the distinction to particular
facts; and that is a difficulty common to the
application of most of the rules of law, and in
doubtful cases it can only be solved by the
finding of a jury." In Seeley v. Gwillim, su-
pra, a similar question as to the distinction
between a mechanic and a manufacturer, be-
tween machinery and tools, arose. In that case
it appeared that a debtor carried on the busi-
ness of book binding and manufacturing blank-
books; working himself, and employing four
hands. Certain of the articles were held to be
exempt, and others not. The rule applied is
thus stated: "His [the debtor] being a manu
facturer does not prevent the statute from
operating to exempt the implements of his
trade, so far as they are used by him in person.
On the other hand, the fact that he is carrying
on a trade will not extend the provisions of the
statute to articles employed by him as a manu- The other Judges concurred, except Ham-
facturer merely." In Enscoe v. Dunn, supra,ersley, J., who dissents.
34 L. R. A.

The rules adopted-the principles established-by the cases in the construction of this statute are binding upon us at the present time. The fact that the language in question has continued unchanged in the statute for three quarters of a century indicates conclusively that such language, so liberally construed as it has been by the courts, declares the public policy of the state in relation to the matter. If this be doubted, the remedy of those who thus question lies in an appeal to that body which enacted, and has been content to continue, the law. We think that to such avocations as those of carpenter, blacksmith, silversmith, printer, bookbinder, spectacle maker, which have been recognized and declared by this court to be trades,- -so clearly as not to require the statement of any reason or explanation why, there is no reason why the avocation of a photographer carried on as it was by Peters, as stated in the finding, should not be added. Certainly he was not a "manufacturer." as that word has been defined by this court. If his business, carried on in any possible way, could be held to be a trade, we think it should be so held, upon the facts before us. He depended, in the conduct of his craft, upon the labor of his hands. It does not appear, nor, taking judicial notice of matters in the realm of common observation and knowledge, are we led to think, that he required for his work either a liberal or an extensive education. In all probability, some, at least, and perhaps all, of the other avocations referred to above as recognized trades, would require more special knowledge, apprenticeship, and training for their successful exercise than this work of photography, as ordinarily carried on, and presumably in this case. We conclude, therefore, that the court below erred in holding the article in question was not exempt.

There is error in the judgment complained of, and it is reversed.

DISTRICT OF COLUMBIA COURT OF APPEALS.

Mary C. MCAFEE, Admrx., etc., of James
McAfee, Deceased, Appt.,

C.

motion is not negligence as matter of law in the absence of any rule of the carrier prohibiting it or any attempt to prevent passengers from so doing.

Frederick W. HUIDEKOPER et al., Re- 2. No presumption of negligence can ceivers of the Richmond &, Danville Railroad Company.

(....D. C. App.....)

arise from the mere fact that a passenger was injured while attempting to pass from one car to another while the train was in motion.

(May 20, 1896.)

1. The act of crossing a car platform APPEAL by plaintiff from a judgment of

from one car to another while the train is in

NOTE.-Negligence of passenger in passing from

one car to another.

the Supreme Court of the District of

son on an excursion train is negligent in attempting to go into another car for water at a time when MCAFEE V. HUIDEKOPER follows the rule which the train has almost stopped at a station, and who has been adopted by the great weight of authority is thrown between the cars by a sudden jerk of the upon the question. There are cases in which the train caused by an attempt to get it nearer a safe facts show that the attempt to cross the platform stopping place, by which the coupling pin is was a negligent act, and perhaps with the old style broken and the cars separate so that he falls beplatforms and couplings it might be considered tween them. Cotchett v. Savannah & T. R. Co. 84 Ga. 687. negligence to attempt to pass from one car to anIt is not as matter of law negligence contributother at any time. But with the modern machinery and the smoking car at one end of the training to injury from an electric shock caused by imand a dining car perhaps at the other it would hardly seem to be negligence as matter of law to pass through the train, even though they are not

vestibuled.

The general rule.

perfect insulation, for a passenger to swing round from the step of an electric street car to that of a trailer, when the railroad company has no rule prohibiting it and allows it without objection. Burt v. Douglas County Street R. Co. 83 Wis. 229, 18 L. R. A. 479.

It is not per se negligence for a person to attempt In Willis v. Long Island R. Co. 34 N. Y. 670, Afto pass from one car to another when the train is firming 32 Barb. 398, where the plaintiff was inin motion, so as to bar his estate from recovery in jured while standing on the platform when all the case he is killed by a fall from a platform so defect-seats within the car were full, the court says it is not ive as to show gross negligence on the part of the carrier. Louisville & N. R. Co. v. Berg, 17 Ky. L. Rep. 1105.

It is not negligence per se for a passenger on a rapidly moving train to pass from one car to another in search of a seat. Chesapeake & O. R. Co. v. Clowes (Va.) 24 S. E. 833.

It is not per se a negligent act for a mother to permit her boy of the age of twelve years to go from one car to another of a moving train for the purpose of finding a seat, which will bar a recovery in case he is injured in attempting to return to her after the train has stopped at a station. Downs v. New York C. R. Co. 47 N. Y. 83.

the duty of passengers to pass from one car to another in search of seats while the car is in rapid motion.

But in Louisiana it is held that it is negligence for a passenger to attempt, without inducement or invitation or necessity, to pass from one car to another when the train is in motion, and if he is thrown from the platform he cannot recover against the carrier. Bemiss v. New Orleans City & L. R. Co. 47 La. Ann. 1671.

Passenger assumes incidental risks.

It is not an act of negligence for a passenger to pass from one car to another while in motion, but he assumes the risk incident to such undertaking from ordinary causes. Sickles v. Missouri, K. & T. R. Co. (Tex.) 35 S. W. 493.

A passenger in going from the smoking car back to his place in the passenger car only assumes the

A person on an excursion train, who is permitted by the conductor to go through the train to sell tickets to persons who have not procured them, is not guilty of negligence in attempting to return to his seat when he is through, although the cars are in motion and he is obliged to pass across a run-ordinary risks incident to such action on his part, ning board on the outside of an open observation car to reach his seat. Dickinson v. Port Huron & N. W. R. Co. 53 Mich. 43.

Walking over a train of flat cars while the same are in motion, or even stepping from one of such cars to another while the train is in motion, is not negligence per se. Atchison, T. & S. F. R. Co. v. McCandliss, 33 Kan. 366.

Removing a passenger from one car to another of a rapidly moving train is not negligence per se. Marquette v. Chicago & N. W. R. Co. 33 Iowa, 562. The court says that within a very short period there have been such wonderful improvements in the platforms and couplings of passenger coaches as that passengers may with comparative safety pass from one car to the other on the fastest trains of the country while in motion. It cannot be true, therefore, as a matter of fact, that to pass from one car to another while the train is in motion at the usual rate of speed is so necessarily dangerous that it may not be justified under any circum

and may recover in case he is injured by falling between the cars in consequence of their separating while he is stepping from one to the other by reason of a defective coupling, which the carrier bas negligently left in the train. Costikyan v. Rome, W. & O. R. Co. 58 Hun, 500.

Where a passenger took a wrong train and was told by the conductor that if he took one of the two rear cars he would be returned to his station. and he immediately started for them but was thrown from the platform by a lurch of the train upon meeting a passenger there, the court held that the statement of the conductor did not justify the attempt to make the change of cars while the train was in motion at the risk of the company. In going from one car to another of a rapidly moving train merely for his own convenience the plaintiff took upon himself the risk of all accidents not resulting from any negligence on the part of the defendant. And since the evidence failed to show any negligence on the part of defendant which caused the accident the plaintiff was not permitted to reThe question is for the jury whether or not a per- cover. Stewart v. Boston & P. R. Co. 146 Mass. 605.

stances.