formance of his duties as trustee under the terms of the will and the order, the clerk will be directed to turn the fund in court over to him.

(86 N. J. L. 683)

HUYETT v. PENNSYLVANIA R. CO. (Court of Errors and Appeals of New Jersey. Oct. 16, 1914.)

1. STATUTES (§ 107*)-TITLES AND SUBJECTS OF ACTS INJURIES RECEIVED BY AN EMPLOYE"-FATAL INJURIES.

The Workmen's Compensation Act of 1911 (P. L. p. 134), the title of which recites that it is an act prescribing the liability of an employer to make compensation for injuries received by an employé in the course of employment, etc., is not unconstitutional as embracing two objects, only one of which is expressed in the title, though it regulates the employer's liability to make compensation to the next of kin of employés killed in the course of employment, as well as compensation to employés sustaining injuries not resulting in death, as, whether the compensation is to be made to the employé or to his next of kin, it is equally a liability of the employer, while injuries, whether resulting in death or not, are properly spoken of as "injuries received by an employé"; the expression "fatal injuries" being neither uncommon nor improper.

[Ed. Note.-For other cases, see Statutes, Cent. Dig. §§ 121-134; Dec. Dig. § 107.*] 2. MASTER AND SERVANT (§ 250, New, vol. 16 Key-No. Series)-WORKMEN'S COMPENSATION FOR INJURIES-BASIS OF COMPENSA

TION.

his injuries, it is equally a liability of the employer. Whether the injuries result in death of as injuries received by an employé. The exor not, they are naturally and properly spoken pression "fatal injuries" is not uncommon or improper. That this single object of providing for the liability of the employer is expressed in the title sufficiently appears from a mer reading of that portion of the title we have aiready quoted.

[2] The only other point suggested is that the trial judge allowed compensation based on the wages which the decedent was receiving at the time of the accident. These wages were somewhat greater than he had previously been receiving. Section 2, par. 11, subds. "a" and "b," expressly provides that the compensation for temporary disability and for disability total in 50 per centum of the wages received at the character and permanent in quality shall be time of injury. Subdivision "c" bases the compeusation on daily wages, while paragraph 12 speaks only of wages of deceased. But we think this must mean wages at the time of injury. This may, indeed, result in injustice to the employer when the employé is paid by the piece and his earnings are unusually high at the time of injury, and in injustice to the employé when his earnings are unusually low. That, however, is a defect that the Legislature may correct. The judgment is affirmed, with costs.

Gaskill & Gaskill, of Camden, for appellant. James Russell Carrow, of Camden, for respondent.

PER CURIAM. The judgment under review will be affirmed, for the reasons set forth in the opinion of the Supreme Court.

(86 N. J. L. 697)

CANDY MANUFACTORY v. BROCK-
HURST. (No. 73.)

(Court of Errors and Appeals of New Jersey.
Oct. 16, 1914.)

Under Workmen's Compensation Act 1911 (P. L. p. 137) § 2, par. 11, subds. "a" and "b," which base the compensation for temporary disability and for disability total in character and permanent in quality on the "wages received at RIDLEY'S-THE OLD CHAMBERS STREET the time of injury," subdivision "c," basing the compensation for disability partial in character but permanent in quality on the "daily wages,' and paragraph 12, basing the compensation in case of death on "wages," the compensation for death is to be based on the wages which the decedent was receiving at the time of the accident, though this may result in injustice to the employer, when the earnings of an employé paid by the piece are unusually high at the time of the injury, and in injustice to the employé when the earnings are unusually low; this being a matter for the Legislature.

Appeal from Supreme Court.

Action by Mary Huyett, administratrix, against the Pennsylvania Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

In the Supreme Court the following per curiam opinion was filed:

[1] The defendant argues that the Workmen's Compensation Act of 1911 is unconstitutional, because it embraces two objects and one only is expressed in the title. The point is thus stated in his brief: "The act in its title prescribes only the liability of an employer to make compensation for injuries received by an employé, etc., and does not provide for compensation by an employer to the next of kin of an employé who is killed in the course of his employment." We are unable to adopt defendant's view. It seems to us that the object of the act is single-to provide for the liability of an employer to make compensation for injuries received by an employé. Whether the compensation is to be made to the employé himself or to those who suffer pecuniary loss by reason of

DEPOSITS IN COURT (§ 11*)-EFFECT-STATUTE. Under P. L. 1904, p. 241, providing that a defendant, by depositing the amount he admits to be due with the clerk, shall not be liable for further costs in case plaintiff does not recover a greater amount, the court, in rendering judgment where a deposit has been made with the clerk, should render judgment for the full amount of the recovery, and not merely the ex

cess.

[Ed. Note.-For other cases, see Deposits in Court, Cent. Dig. § 12; Dec. Dig. § 11.*]

Appeal from Supreme Court.

Action by Ridley's-The Old Chambers Street Candy Manufactory against James B. Brockhurst. From a judgment of the Supreme Court, affirming a judgment for plaintiff, defendant appeals. Affirmed.

The following per curiam opinion was filed in the Supreme Court:

We think the court properly declined to nonsuit the plaintiff. The plaintiff submitted proof, without objection, that it was a corporation.

There was no finding of fact as to where the contract in suit was made. The presumption in such case is that the necessary fact was found; i. e., that it was not a New Jersey contract.

There is no merit in the objection that the judgment should have been only for the excess of the payment into court. The statute relied

upon (P. L. 1904, p. 241) contemplates a judg-| section 18, subsection 34 of the act cited, and ment for the amount found due.

on this the case of Eckerson v. Englewood,
82 N. J. Law, 298, 81 Atl. 1070, is directly
in point and controlling. That respondent
was similarly appointed does not help mat-
ters, for in this contest between two rival
he cannot prevail.
claimants, unless the relator shows title,
Manahan v. Watts, 64

N. J. Law, 465, 45 Atl. 813.
The respondent is entitled to judgment on
the demurrer.

(86 N. J. L. 446)

GILSON V. PENNSYLVANIA R. CO. (Supreme Court of New Jersey. Oct. 28, 1914.)

1. MUNICIPAL CORPORATIONS (§ 203*)—APPOINTMENT OF STREET COMMISSIONER ORDI-1.

(Syllabus by the Court.)

BAILMENT (8 1*)-DEFINITION AND KINDS. A "bailment" consists in the holding of a chattel by one person under an obligation to return or deliver it to another after some special purpose is accomplished. It may be actual or constructive.

[Ed. Note.-For other cases, see Bailment, Cent. Dig. §§ 1-12; Dec. Dig. § 1.

For other definitions, see Words and Phrases, First and Second Series, Bailment.] 2. BAILMENT (§ 5*)-"ACTUAL BAILMENT""ACTUAL DELIVERY"-"CONSTRUCTIVE DELIVERY.

An "actual bailment" exists where there is either (a) an "actual delivery," consisting in giving to the bailee or his agent the real possession of the chattel, or (b) a "constructive delivery," consisting of any of those acts which, although not truly comprising real possession of the goods transferred, have been held by legal construction equivalent to acts of real delivery. [Ed. Note.-For other cases, see Bailment, Cent. Dig. §§ 23, 24; Dec. Dig. § 5.*

For other definitions, see Words and Phrases, First and Second Series, Actual Delivery, Con

Argued February term, 1914, before GUM-
MERE, C. J., and PARKER and KA-structive Delivery.]
LISCH, JJ.

Frederic M. P. Pearse, of South Amboy, for relator. Francis P. Coan, of Perth Amboy, for respondent.

PARKER, J. The controversy is over the street commissionership in the city of South Amboy. That city has less than 12,000 inhabitants, and is governed by the charter act for cities of its class. P. L. 1897, p. 46. The facts as developed by the pleadings are that relator on January 1, 1909, was appointed by the common council as street commissioner "by motion," and by similar "motion" his term of office was fixed at two years; that he was reappointed for successive terms on January 1 of 1911 and 1913, but that on January 1, 1914, a new council by resolution declared his office vacant and appointed the respondent to fill it.

[1, 2] The issue raised by the plea and demurrer is that relator was never legally appointed to office, for the reason that by the charter act his appointment was required to be made by ordinance, and that no such ordinance was ever enacted. This point appears to be well taken. The authority for the appointment of relator must be found in

3. BAILMENT ( 1*)-"CONSTRUCTIVE BAILMENT."

A "constructive bailment" arises where the person having possession of a chattel holds it under such circumstances that the law imposes upon him the obligation to deliver it to another. Cent. Dig. §§ 1-12; Dec. Dig. § 1.*] [Ed. Note. For other cases, see Bailment. 4. BAILMENT (8 5*)-REQUISITES-CONSTRUCTIVE DELIVERY.

Where delivery can be constructive only, there must be an intention to transfer such a the time of the bailment, the possession of the possession of the property as would exclude, for owner.

[Ed. Note. For other cases, see Bailment, Cent. Dig. §§ 23, 24; Dec. Dig. § 5.*] 5. INNKEEPERS (§ 11*)-RESTAURANT KEEPER -Loss of OVERCOAT OF GUEST. The defendant operated a "quick lunch" restaurant, having upon the walls notices, "Not responsible for loss of coats, hats, umbrellas, etc.," and in which the cashier would, if requested, and sometimes did, take charge of overcoats for the patrons. The plaintiff testified that he had never seen the notices on the wall, and did not know that the cashier would care for coats, although he had patronized the restaurant for 20 years almost daily. Plaintiff entered the restaurant and hung his overcoat on a clothes tree back of the stool on which he

seated himself to eat his lunch, and while he was eating, his coat disappeared. He did not in any way bring his coat to the attention of any of the defendant's employés nor ask any of

On December 2, 1913, the plaintiff entered the restaurant and hung his coat on one of the clothes trees a few feet back of the stool on which he seated himself to eat his lunch, and after he had finished eating, he discovered that his coat, which was comparatively new, was missing, and that in its place was another coat approximately the same size as plaintiff's, but showing much evidence of wear. He then reported the loss to the steward. Plaintiff hung up the coat himself. He did not ask the cashier to take charge of it, nor did he place it in the physical possession of anybody connected with defendant's restaurant, nor did he in any way bring his coat to the attention of any of defendant's servants or employés until after the coat had disappeared. defendant. The defendant had no knowledge The first that defendant knew anything about the coat was after its loss. Plaintiff testified that his coat was within reach, and that he could go to it and take anything

walk at the corner and let the south-bound car pass, which was on the track nearest to him: then he started to walk; that he did not look in the direction from which the north-bound car would come before the south-bound car pass

to part with the control of his coat and to charge the defendant with the duties and responsibiliies growing out of the relation of bailee, he might have done so by transferring the exclusive possession thereof to the de-ed; that when the passing car had gone about fendant. This he could have done by requesting the cashier to take charge of his coat as other patrons sometimes did. It is true that the plaintiff testified that he did not know of such custom. But this, we think, considering his familiarity with the restaurant, merely emphasizes the fact that the plaintiff always preferred to keep his coat under his own control.

Since there was neither an actual nor constructive bailment, and as there is no other ground, under the proofs, upon which the defendant's liability can be predicated, the judgment will be reversed and a new trial awarded.

(86 N. J. L. 698)

75 or 80 yards he looked, and did not see any north-bound car coming; that if there was nothing to obstruct his view he could see for two blocks, but on this morning when he looked he did not see the car coming; that the distance from the curb to the track was about 10 feet; that after he left the curb he looked south, to see if a car was coming; that he looked as he walked and did not see it. He subsequently said that when he looked he was right at the corner, and in response to a question, put by the court, whether he did not know that the southbound car was apt to be between him and the other car coming in the opposite direction, he said, "Well, I see this car was pretty far away 75 or 80 yards, and I started to walk across.' from me, your honor, and I see there was about Again he was asked on cross-examination, how far he was from the curbstone when he looked the second time, and he replied, "About two steps," and saw no car.

There was nothing in the defendant's case which aided that of the plaintiff. So we have this situation: The plaintiff standing on the

RUGGIERI v. PUBLIC SERVICE RY. CO. sidewalk about 15 feet from where he was

(No. 126.)

struck; a car passing about 10 feet away, I which the plaintiff watched until it had gone 75

(Court of Errors and Appeals of New Jersey. or 80 yards, and then started to cross the street,

Oct. 16, 1914.)

AT

and after taking 2 steps, which would be about 5 feet, he looked again, and, while seeing the South-bound car about 80 yards away, saw no car going north approaching, yet when he walked only 10 feet, about 4 steps, he was struck by a car which was at least more than 80 yards away and must have covered that distance while plaintiff took 4 steps. This is so unrea

STREET RAILROADS (8 98*) - ACCIDENT CROSSING-CONTRIBUTORY NEGLIGENCE. Plaintiff, who started to cross a street, and, after taking two steps, looked and saw no car approaching, and was struck about four steps beyond, did not look with reasonable effectiveness, such as was required of him under the cir-sonable as to be incredible, for if the plaintiff cumstances, and was guilty of contributory negligence, requiring a nonsuit.

[Ed. Note. For other cases, see Street Railroads, Cent. Dig. §§ 204–208; Dec. Dig. § 98.*] Appeal from Supreme Court.

Action by Eugene Ruggieri against the Public Service Railway Company. From a judgment of the Supreme Court, reversing a judgment for plaintiff, he appeals. Affirmed. In the Supreme Court the following per curiam opinion was filed:

The plaintiff was crossing a public highway in West New York, Hudson county, and was struck by a trolley car of the defendant. For the injuries he received he brought suit and recovered a judgment of $1,500.

The defendant appeals because the court refused to nonsuit, which motion it claims should have prevailed, because no negligence on the part of the defendant was shown, and also that the plaintiff was guilty of contributory negligence. There was no motion for a direction at the close of the case, nor was the motion for nonsuit then renewed, so all we have to deal with is the plaintiff's case as it stood when the motion to nonsuit was made.

had looked when only 10 feet from the track, as he said he did, he would have seen the car, and the only inference is that he did not look, or, if he did, that he would have seen the car so near as to surely strike him, if he continued to walk toward it. But he says he did not see the car, so he is not within the line of cases where the pedestrian, seeing an approaching car, exercises his judgment as to his ability to cross safely. In this case the car must have been within his vision if he had looked, and the fact that he did not see it is a demonstration that he did not look with reasonable effectiveness, such as was required of him under the circumstances, and he was therefore guilty of such contributory negligence as required a nonsuit, the refusal of which was error. In the case of Brown v. Railroad Co., 68 N. J. Law, 618, 54 Atl. 824, Chancellor Magie, speaking for the Court of Errors and Appeals, said: "When he says that, at the time, he could see no trolley car in sight, he conclusively establishes that he did not then make the observation which duty required of him, because, if he had done so, he would undoubtedly have discovered the approaching car, and would have been able to avoid the collision.' It seems to us that this case controls the one under review. This result makes it unnecessary to deal with the question of defendant's negligence.

The judgment will be reversed.

Alexander Simpson, of Jersey City, for appellant. Edwards & Smith, of Jersey City, for respondent.

The plaintiff testified that he started to cross Bergen Line avenue at the corner of Seventh street, or Fisher avenue, as it was sometimes called; that he saw a car going to Union Hill, and he stopped on the corner until the car had passed about 75 or 80 yards, and he watched it that distance, and saw no other car, and then started to cross; that as soon as he got on the north-bound track, he was struck by the car PER CURIAM. The judgment under re on the south-bound track; that no bell was rung, nor any warning given. On cross-exam- view will be affirmed, for the reasons set ination he testified that he stood on the side- forth in the opinion of the Supreme Court.

(246 Pa. 84)
KNICKERBOCKER ICE CO. OF PHILA-
DELPHIA v. CITY OF PHILA-
DELPHIA.

(Supreme Court of Pennsylvania. July 1,
1914.)

1. EMINENT DOMAIN (§ 101*) — CHANGE OF
STREET GRADE-DAMAGES RECOVERABLE.
A street laid out but not opened cannot be
considered in assessing the damages from a
change of grade of another street on the same
property.

[Ed. Note. For other cases, see Eminent Domain, Cent. Dig. §§ 269, 270; Dec. Dig. § 101.*] 2. EMINENT DOMAIN (§ 141*) - CHANGE OF STREET GRADE-DAMAGES RECOVERable.

The damages which an abutting owner is entitled to recover for a change in a street grade are to be determined by considering the depreciation of the market value of the property caused thereby, without regard to the damage which may arise from the opening of another street.

[Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 372-376; Dec. Dig. § 141.*] 3. EMINENT DOMAIN (§ 101*) CHANGE OF STREET GRADE-DAMAGES RECOVERABLE.

In determining the damages recoverable by a property owner in a change of grade proceeding, it is immaterial whether the grade causing the damage was fixed and determined by the grade of another intersecting street.

[Ed. Note. For other cases, see Eminent Domain, Cent. Dig. §§ 269, 270; Dec. Dig. § 101.*] 4. EMINENT DOMAIN (§ 262*) - AWARD or VIEWERS REVIEW - PREJUDICIAL ERRORADMISSION OF EVIDENCE.

dence relating to a release of the damages which might be caused by the opening of Fifty-Third street, executed by a former owner of the property. The court excluded the testimony of Walter Lee, the president of the Knickerbocker Ice Company, as to the extent of the depreciation in value after witness had not been shown to be an expert the change of grade, on the ground that the in real estate values. The opinion of the Supreme Court states the facts. Verdict for defendant, and judgment thereon.

Argued before BROWN, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ. Frank R. Savidge, of Philadelphia, for appellant. Edwin O. Lewis and Henry Johns Gibbons, Asst. City Sol., and Michal J. Ryan, City Sol., all of Philadelphia, for appellee.

ELKIN, J. [1] In the court below appellant claimed damages for depreciation in the market value of its property caused by the change of grade of Whitby avenue, and this was the issue submitted to the jury. The case was very fairly submitted by the learned trial judge, but it is contended that a considerable amount of testimony relating to Fifty-Third street was improperly admitted to the prejudice of the appellant, and that this irrelevant issue was not only confusing but must have misled the jury. The On appeal from an award of a board of question thus raised has made it necessary viewers in change of grade proceeding, the erroneous admission of evidence of the circum- to examine the record with the greatest care. stances of the dedication of an unopened inter- Whitby avenue and Fifty-Third street were secting street abutting on the same property, intersecting streets, but the damages claimand of a release of the damages which might re-ed were for the change of grade of Whitby sult from the opening of such street, was ground for reversal, where the jury rendered a verdict avenue alone. This being so, we have not for the defendant city after the board had awarded substantial damages to plaintiff. [Ed. Note. For other cases, see Eminent Domain, Cent. Dig. §§ 681-686; Dec. Dig. § 262.*] 5. EVIDENCE (§ 535*)-VALUE OF PROPERTY AFFECTED-EXPERT TESTIMONY

BILITY.

ADMISSI

On appeal from an award of a board of viewers in a change of grade proceeding, the testimony of the president of plaintiff company as to the depreciation in the value of the property after the change of grade was properly excluded, where such witness had not been shown to be an expert in land values.

[Ed. Note. For other cases, see Evidence, Dec. Dig. 535.*]

been able to understand why so much of the testimony was directed to conditions relating to Fifty-Third street, and we are impressed with the argument of counsel for appellant that this in its main features was entirely irrelevant to the issue being tried; and being irrelevant, perhaps misleading and certainly confusing, it should not have been admitted. A street laid out, but not opened, cannot be taken into consideration in assessing the damages caused by the opening or change of grade of another street upon the same property. Markle v. Philadelphia, 163 Pa. 344, 30 Atl. 149. The damages to which

Appeal from Court of Common Pleas, Phil- the abutting owner is entitled are to be deadelphia County.

Appeal by the Knickerbocker Ice Company of Philadelphia from award of Board of Viewers in the matter of the change of grade of Whitby Avenue, Philadelphia. From judgment for the defendant City, plaintiff appeals. Reversed, and venire facias de

novo awarded.

termined by considering the depreciation of the market value of the property, caused by the street which was opened, or graded, if that was the change made, and has no connection with the street not opened, or graded as the case may be. Opening Negley Avenue, 146 Pa. 456, 23 Atl. 221.

[2] The damages in such a case are to be determined by the effect upon the property From the record, it appeared that the court of the opened street, and the jury has no admitted evidence relating to the circum- right to consider the inconvenience and damstances surrounding the dedication of Fif- age which may arise from the opening of ty-Third street, which was unopened and another street. Grugan v. Philadelphia, 158 which intersected Whitby avenue, and evi- Pa. 337, 27 Atl. 1000.