along the top of the dam, or if he passed any. He did not know if they were burning or not, but he was positive in his statement that the lights were not sufficient to enable him to see where he was going or what he was doing.

We were of the opinion at the trial that the defendant was not required to instruct the plaintiff as to the shape or dangers of the top of the dam, and we have since had no reason to change it.

It is well settled that it is the duty of an employer to warn and instruct an inexperienced employee of the dangers of his employment, both such as are incident to the appliances he uses and the place in which he works. It is not a duty, however, imposed on an employer to warn his employee of such dangers as are subject to common knowledge or are open and apparent to ordinary observation, and which the employee has had an opportunity to observe: Sykes v. Packer, 99 Pa., 465; Cunningham v. Fort Pitt Bridge Works, 197 Pa., 627; McGinnis v. Kerr, 204 Pa., 615; Cracraft v. Besemer Lime Stone Company, 210 Pa., 15. He must, however, give notice of such dangers to a new employee: New v. Milligan, 27 Sup., 516.

In Vol. 4 of Thompson on Negligence, Sec. 4062, it is said: "The master is under no obligation to warn and instruct servants who are thoroughly familiar with the premises, . . . nor is the master required to warn a servant against dangers which are well known to him and which he is fully capable of appreciating.".

In Sec. 4063 it is said: "On the same principle the master is not under any duty to warn or instruct servants who have already enjoyed an ample opportunity to become acquainted with the danger. Servants are expected to keep their eyes open and exercise such a reasonable care for their own safety as their situation permits. The master is therefore under no duty of warning or instructing a servant as to dangers which are discoverable, by the exercise of ordinary care on his part with such knowledge, experience or judgment as he actually possesses, or as the master is justified in believing he possesses."

In Vol. 8, Sec. 4061, it is said: "The

duty to warn from hidden dangers arises only where the master has some reason to believe that the servant is ignorant of the danger and needs to be warned, and in the case of an adult of apparently usual intelligence, the master may assume that he has common knowledge, unless informed to the contrary, and he need not give specific warning."

In this case the plaintiff was employed as a laborer about the defendant's dam for more than five months. He was an intelligent-looking boy, nineteen years of age at the time of the accident and twenty-one when he came under our observation at the trial. The top of the dam was necessarily below the side of the river, where he worked much of his time. Under such circumstances the master was justified in believing that the servant knew the shape and danger of the top of the dam, as he had ample opportunity to have observed it and become acquainted with it, it being discernable from ordinary observation.

It is true that the plaintiff testified that he did not know anything about it, had never seen it, and did not know what its shape was. What he knew or did not know, however, is not the test of the master's duty. If the master or its foreman had reason to believe that the plaintiff knew the shape and danger of the top of the dam, and the fact that he worked at and about it for more than five months, the shape and danger being easily observable, fully justified him in believing that the plaintiff did know it, he was excused from giving him notice or warning. It was not the duty of the foreman to call each employee before him, whether he had been working there five months or five years, and ask him if he knew the shape of the top of the dam and its dangers before sending them there, without warning; and yet this would be the result if the plaintiff's contention is correct. Certainly the foreman had a right to assume that those who had been there long enough to observe, and a short time was sufficient, had observed and did know what the top of the dam was like and what the danger of going there was. As in our opinion no duty was imposed on the defendant to warn the plaintiff of the

danger on top of the dam, we think that no error was committed in deciding that the plaintiff had failed to make out a case on this allegation of negligence.

We are convinced, however, that it was a question for the jury to decide whether the defendant did not sufficiently light the top of the dam, and if he did not, whether such failure was the cause of the accident.

In 4th Thompson on Negligence, Sec. 3082, the rule is stated that "Where sufficient lights are necessary to the safety of the servant, if the master negligently fails to furnish them or negligently allows them to become extinguished by some act or omission not attributable to the injured servant, or to the fault of the servant, he will be liable in damages to the servant thereby injured."

In Curry v. Atlantic Refining Company, 239 Pa., 302, it was held that it is the duty of an employer to light a dark passageway through which employees are required to pass, so that they may see obstacles or obstructions temporarily placed therein. It is just as necessary for an employer to light dangerous places where employees are required to go in the performance of their duties, so as to enable them to see and avoid the dangers. The testimony of the plaintiff was that the lights were not sufficient for him to see where he was going or what he was doing. As no standard of duty on the part of the employer in such case is fixed, it is a question for the jury to decide whether the lights were sufficient. It is also for them to decide whether a failure to properly light was the cause of this accident. That such failure, if there was one, may have been the cause of it is reasonable. With light sufficient to enable the plaintiff to have seen, he might have avoided the wet place, and, consequently, would not have slipped, or he might have avoided the dangerous edge of the dam and not have fallen

down.

We are of the opinion that we erred in not submitting the case to the jury on this allegation of negligence, and therefore make absolute the rule to strike it off.

In re Skylas' Petition. Naturalization-Amendment.

The court may permit the amendment of a declaration of intention in naturalization proceedings.

Rule to amend declaration of intention. Trust Book No. 23, page 120.

John A. Nauman, for rule.

January 9, 1915. Opinion by LANDIS, P. J.

On

On February 19, 1910, the applicant filed a declaration of intention to become a citizen of the United States in this Court under the name of Drossos Antonio, his real name, however, being Drossos Antonio Skylas. On September 28, 1912, although this mistake was discovered, the Court allowed him to be naturalized under his proper name. June 24, 1913, the Court revoked the order for naturalization, and Skylas surrendered the papers which had been granted to him. On October 22, 1913, Skylas filed a second application for naturalization, wherein the following errors in the original application were rected, namely: the date of his arrival was given as November 4, 1907, instead of, as originally set forth, November 8, 1906; the vessel on which he arrived was given as the "Neopolitan Prince," instead of the Sicilian Prince "; and he renounced allegiance to the Sultan of Turkey, instead of the King of Greece, the island of Kos, from which he came, being under the former government.

66

When his case came before the Court on October 3, 1914, the question was raised that the name set forth in his declaration of intention did not correspond with his second petition, and, for this reason, we dismissed his application. He

now asks to amend his declaration of intention, and that his second application may be reinstated. There is no question but what the applicant has been living in this vicinity long enough to warrant his naturalization, and there is no evidence of fraud or unfairness on his part. The whole matter seems to have been one of mistake, because the declaration of intention was, as we have stated, filed in this Court. There would seem to be

Salas, 31 Fed. Rep., 106, it was held that "the record, if not correctly made up, or if lost or destroyed, should be perfected or replaced by appropriate proceedings in the Court where the judgment was pronounced."

We are, therefore, of the opinion that the application of Skylas should not have been dismissed, but that we should have permitted him to amend his declaration of intention, so as to conform with the facts. For this reason, we do now reinstate the application, and order the declaration of intention to be amended as prayed for.

Rule made absolute.

Leeking v. Wenger.

The testimony on the part of the plaintiff, and this is the testimony which the jury believed, showed that the defendant is the owner of real estate located in Ephrata Township. The plaintiff was employed to lay a cement walk, pumpbed and porch on the property. The husband of the defendant employed the plaintiff to do the work, and agreed upon. the price to be paid. This was done in the presence of the defendant. The defendant gave directions in reference to the work during its progress. When the work was about completed the defendant's husband wanted more done, but she told the plaintiff that she owned the property and "that is all we are going to make now; that is all the money we have got; we are just going to pay for that first."

While ordinarily a husband cannot bind his wife by making a contract for materials and work for the improvement of her separate estate, she is liable where she was present when the contract was made and gave directions as to the work.

In such case there is no difference whether the contract is sought to be enforced through a mechanics' lien or by assumpsit.

Rules for judgment for defendant n. 0. v. and for a new trial. C. P. of Lancaster Co. March Term, 1914, No. 52.

Chas. E. Workman, for defendant and rules.

Amos E. Burkholder and John E. Malone, contra.

January 9, 1915. Opinion by HASS

LER, J.

Two rules are to be disposed of in this case, one for a new trial and one for judgment for the defendant n. 0. V. Both raise but a single question, which is, Did the testimony show that the husband was acting as agent for his wife, with her knowledge and consent, in contracting for certain improvements to her real estate? If it does, the plaintiff is entitled to a verdict; and if it does not, then judgment must be entered for the defendant n. o. v. We cannot grant a new trial in either event.

ily cannot bind his wife by making a contract for materials used in the improvement of her estate, she is liable for their payment if it appears that the materials were furnished with her knowledge and consent, that she knowingly received them and assented to their use in the improvement of her property. Wagner v. Henderson, 3 Pennypacker, 248, the case upon which the defendant relies is not in conflict with the case above. The facts in it are as follows: The lumber was sold to the husband, who agreed to give notes for the same. It was charged to him. The wife was not known in the transaction until after it was furnished and used. If he purchased the lumber for himself on his own credit, the fact

that he used it on her real estate did not

make her liable for his debt.

We do not think that the attempt to enforce the contract by a mechanics' lien, which is an action in rem, makes any difference. The same principle is involved whether the creditor attempts to collect the amount due him through a mechanics' lien or through an action of assumpsit. The question is whether her husband was acting as agent for her with her knowledge and consent. If he was, she is liable; and if he was not, she is not liable.

In the present case the defendant was present when the contract was made.