board or step of the third press, one end of the step slipped from the brackets, causing him to lose his balance, and he was thereby thrown between the press and drier, and his right hand caught in the rolls of the third press and crushed to such an extent that it was necessary to amputate two fingers and a part of the third finger. His hand and wrist were also badly bruised and lacerated.

fact that the step was not reasonably safe for the purpose for which it was intended. And this because of the fact that other machines used in the trade had appliances for fastening the step and preventing slipping.

We are therefore of the opinion that the case was properly submitted to the jury, and that the rules for new trial and judgment non obstante veredicto should be discharged. Argued before MESTREZAT, ELKIN,

JJ.

N. P. Rossiter, for appellant. John B. Brooks and Charles H. English, both of Erie, for appellee.

PER CURIAM. The judgment is affirmed on the opinion of the learned court below discharging the rule to show cause why judgment should not be entered for the defendant non obstante veredicto.

We are aware that the servant assumes those risks which are incident to his services, as he is supposed to have contracted upon those STEWART, MOSCHZISKER, and FRAZER, terms; and included among such incident risks are those dangers arising from latent defects not known to the master and which he would not have discovered by the exercise of reasonable care. The injuries resulting from such defects are regarded as accidents, mere casualties, and the resultant misfortune must rest upon the servant. However, the servant does not assume those risks which arise from structural defects which are, or by the use of reasonable care and inspection ought to be, known to exist by the master. The degree of care required by the master differs from that required by the servant; it being the absolute duty of the master to provide a safe place in which to work, together with safe machinery and appliances, and to maintain and keep the same in a reasonably safe condition by inspection and repair. The servant, on the other hand, may assume that the master has done his whole duty in this respect, and is therefore not bound to exercise an active inspection of the place and appliances, and consequently he assumes only those risks which are obvious and known to both, or which, by the use of ordinary care, should be known to both parties.

The particular negligence complained of in this case was the improper construction of the step in failing to properly fasten it to the brackets or dowels to prevent slipping. A machine of this character, consisting of so many pairs of rolls, is admittedly a dangerous one, and would naturally call for a high degree of care on the part of the master in looking after and making secure the steps which the operator is compelled through necessity to use in operating the machine, and as to whether the step on this machine was of proper construction, under the evidence in this case, was clearly a question for the jury.

It is the duty of the master to maintain a reasonably safe place to work, and whether or not the defendant company in this case discharged their whole duty we believe was a case for the jury, for, as held in Gilbert v. Elk Tanning Co., 221 Pa. 176, 70 Atl. 719, the rule was stated as follows: "The duty to provide a reasonably safe place to work and to maintain it in a reasonably safe condition by inspection and repair is a direct, personal, and absolute obligation, from which nothing but performance can relieve an employer, and the person to whom it is delegated becomes a vice principal, whose neglect is the neglect of the employer."

(249 Pa. 465)

TIMLIN v. AMERICAN PATRIOTS.
(Supreme Court of Pennsylvania. May 17,
1915.)

INSURANCE 825-LIFE INSURANCE-FALSE
STATEMENT IN APPLICATION-DIRECTED VER-

DICT.

Where, in an action on a life insurance policy, it appeared that insured had stated in her application that the last physician to attend her had treated her at a time when the uncontroverted evidence showed him to have been dead, there was a false statement of a material fact, requiring a directed verdict for defendant.

[Ed. Note. For other cases, see Insurance, Cent. Dig. § 2009; Dec. Dig. 825.]

Appeal from Court of Common Pleas, Chester County.

Assumpsit on a life insurance policy by Anthony Timlin against the American Patriots. From a judgment for plaintiff, defendant appeals. Reversed and rendered.

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

J. Frank E. Hause, of West Chester, Fred W. Lidstone, of Scranton, and H. H. Gilkyson, of West Chester, for appellant. Michael A. McGinley, of Scranton, and William M. Hayes and J. Carroll Hayes, both of West Chester, for appellce.

BROWN, C. J. On January 17, 1911, Sarah American Patriots, an insurance company, Timlin made application in writing to the for a policy on her life for $2,000, and named the appellee, her son, as the beneficiary. She warranted her answers to the questions in the application to be true. In pursuance of

And in Bardsley v. Gill, 218 Pa. 56, 66 Atl. 1112, the Supreme Court lays down the following: "Servants may assume that all instrumentalities are fit and suitable for the use to which the master applies them, and that they are properly adjusted to each other. If a servant uses such instrumentalities in a proper manner, he cannot be charged with contribu- it a policy was issued on January 23, 1911. tory negligence." She died the following December. In reply From this we must conclude that the defend- to certain questions in the application she ant company utterly failed to provide reason- answered that she had not consulted a physiably safe appliances for the plaintiff. Ordinary prudence and care for the safety of their cian for eight years; that her last medical employés would seem to require that the step attendant had been Dr. McLean, who was in question should in some way be fastened or secured to prevent slipping and accident, and dead, and that he had attended her in childthat proper inspection and care on the part of birth. In this action the defense of the inthe master would certainly have disclosed the surance company is that the answers of the

insured to material questions in the application were false, barring the right of the appellee to recover.

based upon them was therefore void. The plaintiff testified that his mother's last child, a daughter, still living, was born February Three physicians called by the defendant 16, 1901, two years before the mother stated company testified that they had treated the in her application that she had been last deceased professionally during the five years attended by a physician in childbirth. She preceding January, 1911. One of these wit-stated that Dr. McLean had been that physinesses, Dr. John J. Sullivan, testified that cian. He died May 8, 1897. This was a fact he had been her regular physician from 1885 so conclusively established that the court until the summer of 1907; that he had attend- ought to have told the jury that the stateed her in June of that year and found her ment of the insured that he had attended her suffering from Bright's disease and heart in 1902 or 1903 was false. Strange as is the trouble; that he advised her to consult a finding of the jury that no credence could be specialist, and that she had done so. Dr. given to the testimony of the three physiJohn B. Corser, the specialist who was con- cians, who testified that they had treated the sulted, testified that he found her suffering deceased for a serious trouble during the last from kidney trouble. The third physician, four or five years of her life, still stranger is Dr. Herman Bessey, testified that he had at- their finding that Dr. McLean was living in tended her in the fall of 1909, and prescribed 1902 or 1903, at the time deceased said she treatment for her ailment, which he said was gave birth to her last child. Dr. Herman chronic Bright's disease. The jury were in- Bessey testified that he and Dr. McLean had structed by the learned trial judge that, if been classmates; that they had lived and they credited the testimony of these three practiced their profession in the same city; witnesses, deceased had made materially that he was one of the physicians who atfalse statements in her application for the tended Dr. McLean at the time of his death, policy which was issued to her, and there and that it occurred on May 8, 1897. Here could be no recovery by the beneficiary. In was positive proof of a material fact-the so instructing them they were clearly given date of a death-established by the best to understand that there was no reason to evidence, the testimony of the physician who doubt the veracity of the three witnesses, but attended the deceased in his last sickness. they capriciously did so, and returned a ver- How could the date of his death have been dict in the face of positive evidence that the more satisfactorily established? The witplaintiff was not entitled to recover under ness whose testimony established it was utthe law as it was announced to them. In the terly disinterested in this controversy. There opinion denying judgment for the defendant was no attempt to impeach his testimony, n. o. v. the learned trial judge thus refers and there is not even a hint that he was unto the testimony disregarded by the jury: worthy of belief. On the contrary, the witness is corroborated by Dr. Sullivan, who testified that he delivered the insured of her last child, and that it was born February 16, 1901, the date admitted by the plaintiff.

"The testimony of the three physicians called by the defense was, we think, convincing that they had attended the insured since 1901, and should have been accepted by the jury as establishing her misrepresentation as to medical attendance. So believing, the trial judge, as an examination of the charge will show, went about as far toward imposing this view on the jury as was possible, short of giving binding instruc

tions."

The testimony offered by the defendant to defeat a recovery against it was of a nature to do so, the date of the death of Dr. McLean, as established by the testimony of Dr. The defendant moved, not only for judg- Bessey, was not at variance with any proved ment n. o. v., but for a new trial, and the or admitted fact, and there was no ground for trial judge, having been of opinion that the doubting the candor of the witness who fixed case was for the jury, should have sent it to it. The jury ought not to have been permita second one, which hardly would have fol- ted to capriciously disbelieve him on a malowed the first in returning a verdict in de- terial matter, but should have been instructfiance of the evidence. For reasons, however, ed that the plaintiff could not recover. Lonabout to be given, the right of the defendant | zer v. Lehigh Valley Railroad Company, 196 was to judgment, notwithstanding the inexplicable verdict returned against it.

Pa. 610, 46 Atl. 937; Keiser v. Lehigh Valley Railroad Company, 212 Pa. 409, 61 Atl. 903, 108 Am. St. Rep. 872; Schley v. Susquehanna & New York R. R. Co., 227 Pa. 494, 76 Atl. 207, 136 Am. St. Rep. 906, 19 Ann. Cas. 1019. After the failure of the trial judge to affirm defendant's third point, asking for binding instructions in its favor, the court should subsequently have entered judgment for it on the whole record.

The insured stated in her application that she had last consulted or been attended by a physician eight years before January 17, 1911; that this physician had been Dr. McLean, and he had attended her in childbirth. She warranted these answers to be true, and the jury were correctly instructed that they were material in making the contract of insurance. A further instruction ought to have been that they had undoubtedly been proven

The second assignment of error is sustained, the judgment is reversed, and is here

It appears from the record that the accident in which the plaintiff suffered the injuries complained of occurred where Harrison Appeal from Court of Common Pleas, War-street, a public street in the village of Hazelren County.

Argued before BROWN, C. J., and MES- employés were switching across the Harrison TREZAT, ELKIN, STEWART, and FRAZER, JJ.

2. CRIMINAL LAW COUNSEL.

725-STATEMENT OF

Failure of the court to interfere and correct a statement of the district attorney to the effect that, if the jury should not convict defendant of murder of the first degree or acquit him, they would violate their oaths, was not error: [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 1680; Dec. Dig. 725.] 3. CRIMINAL LAW 863-INSTRUCTIONS-EXPERT TESTIMONY-REQUEST OF JURY.

to the jury concerning expert testimony should be read, the court, while it did not read the charge as originally given, fully instructed the jury on the question of expert testimony.

Errors assigned were as follows:

(1) The learned court erred in refusing the defendant's motion for a continuance made at the opening of the trial before the defendant was arraigned; the motion, answer of the district attorney, and ruling of the court thereon as taken down by the official stenographer at the time being as follows:

"By Mr. Williams: A. J. Williams, attorney for the defendant, applies to the court for a continuance for the nonattendance of Mary Louise Barber, who was duly subpoenaed by the this year at the last term of court, and who is defendant to appear at this time in March of unable to attend because she is now in a hospital at West Chester as the result of giving birth to a child two days ago. That said witness lived at the Brick House Farm, where the crime in question took place. That the defendant lived with the witness and her husband, during the time that he was at the said farm, a period of approximately six weeks. That the defense to the crime in question goes to the mentality of the defendant. That the defense expects to prove by the witness Mary Louise Barber that she has observed certain acts and conduct of the defendant going to show that he is of weak intellect, and that he was dominated and influenced by suggestion of George March, Appeal from Court of Oyer and Terminer, who is jointly indicted with the defendant to the commission of the crime in question. In Delaware County. addition to the testimony of this witness and Roland S. Pennington was convicted of other lay witnesses, the defense will produce murder, and appeals. Affirmed.

Failure to comply with a request made by the jury after deliberation, that the judge's charge concerning expert testimony be read to them, was not error, where full instructions on the question of expert testimony were then given.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2065-2067; Dec. Dig. 863.1

expert testimony going to show that the defendant is mentally irresponsible. There is no other witness to testify to the things that occurred at the farm other than the witness Mary Louise Barber.

"By Mr. Hannum: The district attorney agrees that the testimony of Mary Louise Barber which is relevant to this issue, taken and given at the trial of George H. March, shall be offered in evidence, provided the defense de

sires it.

The homicide in question was committed on November 7, 1913, at the Brick House Farm in Edgmont township, Delaware county, by the defendant and one George March. March was tried first and convicted of murder of the first degree. The murdered man, S. Lewis Pinkerton, was overseer of the Brick House Farm, but did not live there. "By Mr. Williams: The defense, in answer to Both March and the defendant were em- the agreement of the district attorney, says that ployés under Pinkerton. Before the time of the testimony taken in the March trial does Pennington's employment, and after that up not cover the points it expects to be able to prove by the testimony of Mary Louise Barber. to the time of the commission of the offense, "The Court: It appearing at the bar of the George March lived on the Brick House Farm court that this testimony offered is cumulative, with a certain Mary Louise Barber, with the commonwealth having agreed that the testiwhom he had illicit relations. The defend-mony taken of this witness on the former trial, ant had been employed by Pinkerton on October 7, 1913, and boarded with March from the time of his employment down to and after the commission of the crime on November 7, 1913. There was no denial that the defendant participated in the affair, and (2) The learned court erred in not interthere was ample evidence to justify the con- fering and correcting the statement herein set viction, if defendant was mentally responsi- forth of the district attorney which was ble. The defense set up was that the defend-forthwith objected to and taken down by ant was not mentally responsible but was the official stenographer at the time; the an imbecile and unable to distinguish be- statement, objection thereto, and comment tween right and wrong. The jury found a of the court being as follows: verdict of guilty of murder of the first degree, and sentence of death was passed. The record did not disclose that, when the jury returned and asked that the judge's charge

in which George March and this witness were charged with the commission of this crime, shall be read so far as it is relevant, if the defense requests it, the application for a continuance is refused.'

Bill sealed for the defendant.

*

*

*

"By Mr. Hannum: Whether he intended to kill him or not, if in the perpetration of a robbery be struck that blow, and from that blow or from blows delivered by Pennington, and he was in it, he is guilty of murder in the first