Superior Court of Cincinnati.

The defendant, a corporation, was the owner of a brass foundry, and constructed furnaces in the basement of its premises. Finding that water percolated through the soil into the ash pit of the furnaces, a dry well was dug and connected with the ash pit by means of a drainpipe, to draw off the water. The evidence of the plaintiff tended to show that the foreman, in addition to his duties as such, was putting up a full day's work as a moulder; that one of the moulders, John Riley, was only an apprentice and otherwise incompetent; that Jacob Smith, the plaintiff's intestate, was a picture-frame gilder by trade, and had been employed by defendant for a very short time; that it was his duty to bail the water out of the dry well and thus keep the ash pit free from water, and to assist the moulders in taking the crucibles of molten metal out of the furnaces; that he obeyed all his instructions; that the effect of molten metal coming in contact with wet bricks or ashes is an explosion; that the furnaces and ash pit were improperly constructed and not provided with proper safeguards.

The evidence of the defendant tended to show that the foreman had plenty of time to perform all his duties; that John Riley was bright and competent; that Jacob Smith had considerable experience; that he knew the effect of molten metal coming in contact with a wet gate; that he did not bail out the dry well, and permitted water to accumulate in the ash pit; that the furnaces were properly constructed and were provided with safeguards.

John Riley, assisted by Jacob Smith, was lifting from one of the furnaces a crucible of molten metal, when it broke, dropping the metal into the ash pit. A violent explosion followed, throwing the metal over Jacob Smith, burning him to such a degree as to cause his death.

The plaintiff charged the defendant with negligence in the following particulars:

1. In placing and constructing the furnaces and ash pit.

2. In hiring John Riley.

3. In hiring au insufficient number of workmen.

4. In providing insufficient crucibles.

5. In not providing proper safeguards for the furnaces.

The case was tried before Judge Noyes, who gave the following special instructions at the request of the plaintiff:

No. 1. The jury is instructed that due care and diligence on the part of the defendant means such care and diligence as would be observed on the part of an employer of ordinary care and prudence in view of the consequences that might result from the improper placing, constructing, or maintaining the furnaces, or in hiring or keeping in its employ an incompetent fellow employee, or an insufficient number of men, or imperfect crucibles, or insufficient safeguards for the furnaces, and should be fairly and reasonably equal to and commensurate with the perils, risks, and dangers likely to be encountered, and likely to result therefrom. R. Co. v. McDaniels, 107 U. S., 454 (1882); Wood M. & S. Sec., sec. 345, p. 706 (2d ed.); Wood M. & S., sec. 348, p. 715; Ib. sec. 417, p. 818; Ib. sec. 418, p. 818; Ib. sec. 330, p. 687; Ib. sec. 430, p. 837; Ib. sec. 418, p. 819, note 1, (2d ed.)

R.

No. 2. The jury is instructed that if it believes from the evidence that the defendant gave instructions to Jacob Smith, and Jacob Smith violated or did not carry out the instructions, if it appears that Jacob Smith would have been injured even if he had obeyed or carried out the instructions, said Jacob Smith cannot be charged with contributory neg.

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Smith, Adm'x, v. Wm. Powell Co.

ligence, in not obeying or carrying out such instructions. Ford v. R. R. Co., 110 Mass., 240; Reed v. R. R. Co., 33 N. W. Rep., 451; Avilla v. Nash, 117 Mass., 318; R. R. Co. v. Henderson, 37 Ohio St., 549.

No. 3. The jury is instructed that if it believes from the evidence that the negligence of the defendant, either in providing, maintaining or placing the furnaces, or in hiring or keeping in its employ an incompetent fellow employee, or keeping in use an imperfect crucible, or in hiring an insufficient number of men, or in providing safeguards, one, any, or ail directly contributed to Smith's death, it is no defense that the negligence of a fellow servant jointly contributed with such negligence of the defendant to cause his death, even if such fellow servant was employed with due care by defendant. Cayzer v. Taylor, 10 Gray, (76 Mass.), 274; McMahon v. Davidson, 12 Minn., 357 (1867); Paulimer v. R. R. Co., 34 N. J. (Law), 151 (1870); Crutchfield v. R. R. Co., 76 N. C., 320 (1877); Booth v. R. R. Co., 73 N. Y, 38 (1878); Stetler v. R. R. Co., 46 Wis., 497 (1879); Cone v. R. R. Co., 81 N. Y., 206 (1880); McMahon v. Henning, 1 McCrary, 516 (1880); Boyce v. Fitzpatrick, 80 Ind., 526 (1881); R. R. Co. v. Cummings, 106 U. S., 700 (1882); R. R. Co. v. Henderson, 37 Ohio St., 549 (1882); Smith v. R. R. Co., 18 Fed. Rep., 304 (1883); Ellis v. R. R. Co., 95 N. Y., 546 (1884); Stringham v. Stewart, 100 N. Y., 516 (1885); Franklin v. R. R. Co., 34 N. W. Rep., 898 (1887); Stetler v. R. R. Co., 49 Wis., 609 (1880); Faren v. Sellers. 3 Southern Rep., 363 (1887); R. R. Co. v. Pettis, 7 S. W. Rep., 93 (1888); Sherman v. M. River L. Co., 39 N. W. Rep., 365 (1888); Griffin v R. R. Co., 19 N. E. Rep. (Mass.), 166, 167 (1889).

No. 4. The jury is instructed that if it should believe from the evidence that Jacob Smith was either slightly or grossly neligent, such slight or gross negligence will not defeat a recovery, unless the jury also believes from the evidence that such slight or gross negligence caused his death, or contributed, as a direct and proximate cause to that result. Wharton on Negligence, (2d ed.), sec. 303, 323.

No. 5. The jury is instructed that if it believes from the evidence that the defendant was negligent in any particular mentioned in the petition, and such negligence directly caused the accident, it is no defense to this action that a fellow employee of Jacob Smith might by care or caution have prevented Jacob Smith's death. And this, notwithstanding defendant may have used due diligence in the selection of such fellow employee. Cone v. R. R. Co., 81 N. Y., 206; Stringham v. Stewart, 100 N. Y., 516; see Paulimer v. R. R. Co., 34 N. J. (Law), 151.

No. 6. The jury is instructed that if it believes from the evidence that the defendant, the employer of Jacob Smith, had superior knowledge and judgment, to Jacob Smith, Jacob Smith had a right to rely on the superior knowledge and judgment of his employer so far as to assume, in the absence of direct knowledge or means of knowledge, that reasonable attention had been given by his employer to his safety, and that the defendant had taken proper precaution to guard him from danger, and that he would not be unnecessarily and needlessly exposed to risks and dangers which might have been avoided by ordinary care and precaution on the part of his employer, the defendant. Farren v. Sellars, 3 Southern Rep., 363; Boyce v. Fitzpatrick, 80 Ind., 526; Wocd M. & S., sec. 366, p. 750-751 (2d ed.); Patterson v. R. R. Co., 76 Pa. St., 389 given in Wood M. & S., sec. 358, p. 736, (2d ed.)

4 L B 51

Superior Court of Cincinnati.

436

No. 7. The jury is instructed that the fact that Jacob Smith knew that there were risks and dangers either from (1) the placing or constructing of the furnaces, (2) or the incompetency of his fellow employee John Riley, (3) or the using of defective crucibles, or (4) the hiring of an insufficient number of men, or (5) the failure to provide proper safeguards, does not charge Jacob Smith with negligence or the assumption of such risks and dangers unless said Jacob Smith also understood and appreciated, or ought in exercise of ordinary prudence to have understood and appreciated the nature and probable extent and necessary consequences of such risks and dangers. Dorsey v. R. R. Co., 42 Wis., 583; Lawless v. R. R. Co., 136 Mass., 1 (Instruction in note to case); Wuotilla v. Duluth Lumber Co., 33 N. W. Rep., 551; Faren v. Sellers, 3 Southern Rep., 363; Wood M. & S., sec. 378, p. 766, (2d ed.); Ib. sec. 387, p. 775-6; Ib. sec. 357, p. 735; Snow v. R. R. Co., 8 Allen (90 Mass.), 441.

No. 8. The jury is instructed that the rule that Jacob Smith assumed the risks of his employment means, that Jacob Smith only assumed the necessary, ordinary, inseparable and inherent risks incident to the nature of his employment and which are incident to all such employment. Wharton on Neligence, sec. 205 (2d ed.); Wood M. & S. sec., 326, p. 672, (2d ed.): Ib. sec. 326 p. 672, note (1).

This rule presupposes that the master has performed the duties of reasonable and ordinary care, diligence and vigilence which the law casts upon him, in placing, maintaining or constructing the furnaces, in providing crucibles, in hiring or keeping in its employ a competent fellow workman or sufficient number of men, or in providing proper safeguards for the furnaces, and as to the premises, appliances and machinery. Pantzar v. Tilly Foster Iron Co., 99 N. Y., 368; Stringham v. Stewart, 100 N. Y., 516; Bridges v. R. R. Co., 6 Mo. Appeals, 389; R. R Co. v. Henderson, 37 O. S., 549 at p. 552.

As to all such risks and dangers as were not necessarily ordinarily, inseparably and inheritantly incident to the nature of his employment, and which defendant knew, or ought to have known, it was the duty of defendant to have notified and warned Jacob Smith as to their nature and necessary consequences. And if said Jacob Smith did not reasonably know their nature and necessary consequences from any other source, and with ordinary prudence could not have known, and defendant, or its agents, did not notify and warn Jacob Smith as to their nature and necessary consequences, Jacob Smith cannot be charged with the assumption of such risks and dangers. Wharton on Negligence, sec. 206 (2d ed.); McGowan v. Mining & Smelting Co., 3 McCrary, 93; Paulimer v. R. R. Co., 34 N. J. (Law), 151; Dowling v. Allen, 74 Mo., 13; R. R. Co. v. Fitzpatrick, 31 O. S., 479-especially p, 487; Clark v. Holmes, 7 Hurl. & N., 937 at p, 948; R. R. Co. v. Henderson, 37 O. S., 549 at p. 552; R. R. Co. v. Watts, 64 Texas, 568; Dorsey v. R. R. Co., 42 Wis., 583; Lawless v. R. R. Co., 136 Mass., 1; Woutilla v. Duluth Lumber Co., 33 N. W. Rep., 551.

The jury returned a verdict for the plaintif.

James & Cook, for the plaintiff.

Thornton M. Hinkle and Albert Stephan, for the defendant.

1. The general rule is, that in the absence of testamentary direction, a general legacy is payable one year after the testator's death, and will bear interest thereafter until paid.

2. And the general rule is, that in the absence of testamentary direction, a bequest in trust, the income to be paid to a legatee for life, with a gift of the principal over at his death, entitles the legatee for life to interest from the testator's death.

8. But where such bequest in trust is in fulfillment of an antenuptial contract, and both the contract and the bequest by their terms contemplate the lapse of "a reasonable time," to enable the trustee to raise, out of the estate, such interest bearing fund; Held: The legatee for life is entitled to interest on the princi pal sum after one year from the testator's death, notwithstanding a diligent and faithful administration failed to produce such fund within that time.

PHILLIPS, J.

Plaintiffs claims under the will of her late husband, Henry Krigbaum. In an antenuptial contract with plaintiff, he had covenated that, within a reasonable time after his death, his executor should set apart four thousand dollars, to be invested, etc., and the proceeds thereof to be annually paid to plaintiff during her life; and she therein agreed to accept such provision in lieu of all her claims upon his estate, should she survive him. In his will he recites the said contract, and says: "I hereby ratify and confirm said contract in every respect, and I hereby authorize and direct my executor to take from the proceeds of the sale of personal property or real estate or both, the sum of four thousand dollars, as soon as the same can reasonably be done, and invest the same in stocks or bonds, or loan the same upon real estate security, and to pay over the interest or income thereof annually to my widow, Nancy M. Krigbaum, for and during her natural life. Said sum of four thousand dollars shall be held by my executor in trust for the purposes herein expressed, for and during her natural life, and after her death I will and direct that the same be divided or distributed to my then living children, share and share alike." Said testator died May 21, 1985, and plaintiff duly elected to take under his will. The defendant, as executor of said will, has paid plaintiff the said proceeds since November 21, 1887, and this action is brought to recover six per cent. on said four thousand dollars, from the death of the testator to said November 21, 1887.

The defendant answers that because of the insufficiency of the personal property, he could produce said fund only by sale of real estate; that by the said will he was authorized to sell the real estate at public or private sale, and upon a credit not to exceed three years from the death of the testator; that by the exercise of his best judgment, skill and diligence, he sold the land, and produced said fund, by the said twenty-first of November, 1887, and could not sooner do so, without detriment to the estate; and that he thereupon set apart and invested the said sum of four thousand dollars, no part of which earned or produced any interest or income prior to that date. Plaintiff demurs, and claims, arguendo, that she is entitled to legal interest on said sum from the date of the testator's death to the time when the fund was created and in

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438

vested, notwithstanding the conceded fact that the fund was produced and invested at as early a date as a diligent and faithful administration could do so. The question presented is novel in Ohio.

The general rule is, that in the absence of testamentary direction, a general legacy is to be raised and satisfied out of the testator's estate at the expiration of one year from his death, and that interest thereon will be allowed from that time until payment. State v. Crossley, 69 Ind., 203; 1 Am. Prob. Rep., 413; Welch v. Brown, 43 N. J. L., 37; 2 Am. Prob. Rep., 221; Howard v. Francis, 30 N. J. Eq., 444, 1 Am. Prob. Rep., 321; 2 Williams on Exrs., 1531.

There are some well settled exceptions to this general rule. A legacy to an infant child of the testator if intended for its support, will bear interest from the testator's death. 2 Williams on Exrs., 1532; 2 Am. Prob. Rep., 221, 232 in notis. A legacy to a widow in lieu of dower will, in the absence other provision for support bear interest from the husband's death. 1 Allen, 490, 106 Mass., 100; 6 Paige, 298. This exception rests upon the principle that the widow takes such legacy, not strictly as a beneficiary, but she takes it as a substitute for a legal right, the relinquishment of which is a valuable acquisition to the estate.

Where, by the terms of a will, a sum of money is to be set apart and invested, the proceeds paid to one for life, with a gift of the principal over at his death, the courts have, generally, though not with entire uniformity, held that the fund bears interest from the testator's death.

In Welsh v. Brown, supra, the bequest was to Miss Brown, of the interest of $2,500. to be paid to her annually, and at her death the principal to be paid to other persons. It was held that Miss Brown was entitled to interest after one year.

In Hilyard's Estate, 5 Watts & Serg., 30, the testator had directed his executor to put $10,000 out at interest, and to pay the income thereof to his sister during her life, and at her death the principal to be paid to others named. Held, that the sister was entitled to interest on the $10,000 from the testator's death.

In Eyre v. Golding, 5 Binn., 472, the testator bequeathed to his daughter the interest of four hundred pounds, to be paid to her annually during her life, and at her decease over. Held, that she was entitled to interest from the testator's death.

In Gibson v. Bott, 7 Vesey 96, the testator placed part of his property in the hands of his executors, in trust, to keep it invested, and to pay the income to his two daughters for life. It was held that they were entitled to interest thereon from the testator's death.

In Cooke v. Meeker, 36 N. Y., 15, the testator bequeathed to S. M. Meeker $3,000, in trust, to be invested and the income applied to the use of Sarah Cooke, during her life. He died in October, 1856, and in December, 1857, the said fund was paid by the executors to the trustee. It was held that the legatee was entitled to interest from the decease of the testator. Davies, C. J., after a somewhat full review of the cases, says: "The authorities would seem abundant, therefore, to sustain the doctrine that when a sum is left in trust, with a direction that the interest and income shall be applied to the use of a person, such person is entitled to the interest thereof from the date of the testator's death. Especially is this so," he adds, "when, as in the will under consideration, it appears clearly to have been the intent of the testator that the legacy should be paid by a transfer of bonds and mortgages bearing iu