the proceeds of sales, and to sell only the merchandise and property that the defendant intrusted to him for that purpose, which we interpret to mean, not the same in kind merely, but the same in identity as well. This construction of that clause is favored by the principle that an authority to buy cannot properly be inferred from an authority to sell. The acts are so distinct in nature, and not dependent upon nor incidents of each other. Story, Agency (7th Ed.) §§ 88, 89. The contract further provided that expenses and disbursements not named therein should be incurred and made only by express authority from the defendant, or by requisition duly made and approved according to its rules, and that passing and confirming an account rendered by the manager, showing expenses or disbursements not authorized by the contract, should not be evidence of express authority to make the same in the particular instance specified in the account, nor in any way modify nor affect the contract, nor be deemed to authorize the making of such nor similar disbursements at any time thereafter. Thus provision was made for enlarging the manager's authority by further express agreement, and for guarding against its enlargement by implication, and a purpose thus to guard pervades the whole contract.

The only other ground of recovery claimed below was, according to the charge, that Moore had so conducted the business, by permission of the defendant, that he was thereby authorized to make the purchases in question; and the court submitted the case on that ground also. This the defendant says was error, because there was no evidence tending to show an enlargement of Moore's authority in that way. But the case shows otherwise. The contract provided for an inspection by the defendant's representative, when required, both of the goods and other property in the manager's hands, and of the books and papers relating to the business; and such inspection was made from time to time during Moore's management. The defendant's evidence showed that in May or June, 1901, when Moore was out of the business for a few months, and one Mastin was in charge, a statement of the plaintiffs' then account against the defendant came into the store by mail, and was examined by Mastin, who then informed the plaintiffs that Moore had no authority to purchase goods for the store, nor to pledge the defendant's credit therefor, and that the defendant did not allow Moore, nor any of its agents nor managers, to buy goods locally. The defendant's evidence further showed that at about that time one Lyons, a superintending agent of the defendant, was at Rutland investigating the business, and that he twice called the plaintiffs' attention to the matter by telephone, and notified them that Moore had no authority under his contract to make such purchases. The plaintiffs' evidence denied that

and Lyons, or either of them, or from any of the defendant's agents or officers prior to the sale of the goods in question, or prior to Moore's death in April, 1906, and showed that they did not know from any source that Moore had no authority to buy goods of them as he did, but believed that he had, and sold accordingly.

The debit side of the account that thus came to the knowledge of Mastin and Lyons commenced, we take it, from a statement of account in the case, on September 23, 1895, and ended on February 16, 1901, and showed sales to the amount of about $650, and credits, from February 27, 1893, to February 2, 1901, certainly, of about $500. The statement in the case shows that the account continued in the same way to and including the times of the sales of the goods in question, and that the debit side amounted to more than $1,500. Knowledge that Moore was thus buying goods of the plaintiffs having come home to the defendant-for Lyons' knowledge, certainly, if not Mastin's, was its knowledge-if it did not want to be bound thereby, it should have dissented, and given notice thereof in a reasonable time, otherwise it would be taken as assenting. 2 Kent Com. *616; Walsh v. Pierce, 12 Vt. 130, 138; Cairnes v. Bleecker, 12 Johns. (N. Y.) 300; Insurance Co. v. McCain, 96 U. S. 84, 24 L. Ed. 653. And not only that, but its silence would be evidence of authority to make like purchases in the future, and before notice of want of authority; and here like purchases were continued to and including the purchases in question without such notice, unless given as the defendant claimed, which was denied. It is the prior conduct of the principal that affords ground to infer the continuance of the agency in the particular business. 2 Kent Com. *615. Thus a man sent his servant to a shopkeeper for goods on credit, and paid afterwards. He sent the same servant a second time with ready money, who received the goods, but did not pay for them. It was held that sending him on trust the first time and paying afterwards was giving him credit so as to charge the master the second time. Hazard v. Tweadwell, 1 Str. 507. So where an agent was in the habit of drawing bills on his principals, authority was implied from the fact that they had paid them, and therefore they were held bound by a repetition of such acts, there being no proof of notice of a revocation of the authority, nor of collusion with the agent. Hooe v. Oxley, 1 Wash. (Va.) 19, 1 Am. Dec. 425; 2 Kent Com. *615.

It is a general rule that the authority of an agent is enlarged by implication as to third persons if the principal allows him to act as his agent beyond his authority, without objection. In that case the principal is bound by estoppel to those who deal with the agent as such within the apparent scope of his authority, and are not aware of any want of

1. MASTER AND SERVANT (§ 93*)-INJURIES TO SERVANT-DELEGATIONS OF DUTIES OF MASTER.

The rule that a master cannot delegate to others his duty to provide and maintain a reasonably safe place for work does not require him to supervise the merely executive details of the work as it progresses.

[Ed. Note.-For other cases, see Master and Servant, Dec. Dig. § 93.*]

2. MASTER AND SERVANT (§ 190*)-INJURIES TO SERVANT-FELLOW SERVANTS-PERFORMANCE OF DUTIES OF MASTER.

The supervision of the merely executive details of the work may be delegated by the master to a fellow servant, and the master will not be liable for his negligence, and, where a gaslight company provided its servants with suitable materials to support the sides of a ditch which it was digging under the supervision of a competent foreman, it was not liable for the negligence of the foreman in failing to use such materials, whereby the soil caved in and injured a servant working in the ditch.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 456, 459; Dec. Dig. § 190.*]

3. MASTER AND SERVANT (§ 190*)-INJURIES TO SERVANT-FELLOW SERVANTS-WARNING SERVANT.

Where the danger arising from a crack in the soil at the side of a ditch in which plaintiff was working was obvious to a competent foreman in charge of the work, the negligence of such foreman in failing to warn plaintiff of such danger was the negligence of a fellow serv

ant.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 471 Dec. Dig. & 190.*] 4. TRIAL (8_252*)-INSTRUCTIONS APPLICABILITY TO EVIDENCE.

In an action by a servant for injuries, an instruction that it was the duty of plaintiff to examine the sides of a ditch in which he was working to discover indications of danger was inapplicable where the evidence showed that an examination would not have disclosed such indications.

[Ed. Note. For other cases, see Trial, Cent. Dig. §§ 596-612; Dec, Dig. § 252.*]

Exceptions from Rutland County Court; Loveland Munson, Judge.

Action by Charles A. Brown against the People's Gaslight Company. From a judgment for plaintiff, defendant brings exceptions. Reversed and rendered.

E. H. O'Brien and O. M. Barber, for plaintiff. Butler & Maloney, for defendant.

POWERS, J. Among the nondelegable duties which a master owes his servant is that of providing and maintaining a reasonably safe place in which to work. But this rule does not require the master to supervise the merely executive details of the work as it goes along. These are acts of service, and

are within the proper range of the servant's duties. They may be delegated to a competent co-servant, and, when so delegated, negligence therein, though resulting in injury, will not support an action against the master. And it matters not whether the offending servant be a foreman, overseer, superintendent, or a mere fellow workman; the result is precisely the same-the master is not legally responsible for it is the character of the act in question which determines. So it is that when a master provides his servant with suitable materials and instrumentalities to make safe the place, and a competent foreman to use and apply them, he fully discharges his legal duty, and the negligence of the foreman in the manner in which the appliances are used, or in failing to make use of them at all, will not establish liability on the part of the master. Many cases support this rule and illustrate its application. Thus in Davis v. So. Pac. Co., 98 Cal. 19, 32 Pac. 708, 35 Am. St. Rep. 133, the plaintiff's intestate was a sectionman on the defendant's railroad, and was acting under a foreman named Bresnahan. By direction of the latter he ran a hand car onto a siding to clear the main line for an approaching train; Bresnahan setting the switch for that purpose. Bresnahan having failed to close the switch, the train took the siding, collided with the hand car, and killed the intestate, who was at work under the car making some unimportant repairs. It was held that it was the duty of the company to provide a suitable switch, and competent servants to operate it, and that, when it had done so, its duty toward the intestate was fully performed; that the duty violated did not relate to the place of work, but to the negligent use of an appliance or instrumentality which was proper and suitable for the purpose for which it was furnished; and that such use of it was simply a detail of the work or management of the business, and that Bresnahan was a fellow servant. A recovery against the company was denied. Again, in Kelly v. New Haven Steamboat Co., 74 Conn. 343, 50 Atl. 871, 57 L. R. A. 494, 92 Am. St. Rep. 220, it was held that a shipowner who had furnished a proper fender to be used, when necessary, in making the boat fast to the wharf, was not liable to one of the crew for the negligence of the mate in failing to use the fender, whereby he was injured, and that it was not a personal duty of the company to see to it that the fender was actually made use of. The same rule was applied in Tilley v. Light & Power Co., 74 N. H. 316, 67 Atl. 946. There the plaintiff was engaged in cleaning out a gas main under the direction of a foreman who had charge of the defendant's gas department. The main was provided with valves which, if closed, would cut off the flow of gas through the main. Through the neglect of the foreman to close

these valves, an explosion occurred which injured the plaintiff. It was held that the operation of the valves was an act of service purely, and the negligence that of a fellow servant. The court says: "The defendant, having provided proper appliances for securing safety to their employés, was not chargeable with the nondelegable duty of properly operating them. They were at liberty to intrust the operation of the appliances to any one of their employés, provided only they exercised ordinary care in selecting the employé; and it is not contended that they failed in this respect in this instance. best, so far as appears by the testimony, the acts required to secure safety of the place were mere acts of service which the defendants might properly delegate to their employés. The plaintiff's position is not strengthened to any degree by attributing his injury to want of safety in the place, for such course leads to the same result, namely, that the negligence was that of a co-employé of the plaintiff, for which the defendants are not responsible."

At

Cases much like the one in hand are not wanting. In Zeigler v. Day, 123 Mass. 152, the defendant was a contractor engaged in the construction of a sewer through the streets of Cambridge. The plaintiff was at work for him excavating a trench through soil more or less sandy, under the direction of one Winning, who had charge of the work as superintendent, and whose skill and competency were admitted. For the safety of the men in the trench it was necessary in some places to shore up the sides. The necessity for this, as well as the proper mode of applying the safeguards was from the nature of the case left to be determined by the superintendent as the work progressed. There was no evidence that the defendant failed to furnish sufficient and suitable material for the construction of the required safeguards, or that he was chargeable with any specific personal neglect or knew of the cause of this injury, though he was occasionally present as the work went on. In granting a nonsuit, the court said: "In the case at bar the work was committed to the supervision of a skillful and competent superintendent. It required for the protection of the men the frequent use of temporary structures, the location and erection of which, as the digging progressed, was a part of the work in which the superintendent and the men under him were alike employed, and for the preparation of which, as in case of the scaffold of the mason or the carpenter, the master is not liable, unless there is something to show that he assumed it as a duty independent of the servant's employment." In Floyd v. Sugden, 134 Mass. 563, the plaintiff was engaged in uncovering a penstock belonging to the defendant under the direction of one Gilman, who had full charge and control of the premises and the work. A

penstock, and while at work therein, at the bottom of the trench and on the top of the penstock, the latter gave way, and the sides of the trench caved in upon him, and caused the injuries complained of. It appeared that the trench was dug in very sandy soil, and the evidence tended to show that the sides ought to have been shored up. No shoring was used, and none specifically furnished. But the evidence tended to show that there was an abundance of suitable materials belonging to the defendant within a few rods of the place of the accident, though this was contested. "If the defendant," says the court, "furnished the materials, the appliances, for doing this (shoring the trench), the use and application of them, according to the exigencies of the work, was the duty of the servants engaged in the work, unless specially assumed by the master. Gilman, as superintendent of the work, and the plaintiff, as a laborer upon the work, were fellow servants, and the duty of Gilman in using the means and appliances provided for safely and properly carrying on the work was that of a servant engaged in the same business with the plaintiff, even if he had acted as a representative of the master in furnishing such means and appliances." In Dube v. Lewiston, 83 Me. 211, 22 Atl. 112, the plaintiff was engaged with others in digging a trench for a sewer. No shoring was used to support the sides of the trench, and it caved in and injured the plaintiff. The construction of the sewer was under the general supervision of the street commissioner, but the crew in which the plaintiff was at work at the time of his injury was under the immediate direction of one Cloutier, as foreman; the street commissioner incidentally inspecting the work from time to time as it progressed. Thirty rods away was deposited a quantity of lumber designed to be used for shoring, which was suitable and available for the purpose. At the time of the accident the commissioner was not present, and the work was in the sole charge of Cloutier. Nothing had been disclosed before the work commenced indicating a necessity for any mechanical contrivance to protect the workmen. The location and erection of any such structures necessarily devolved upon the workmen acting under the direction of the foreman as the digging progressed. The duty of determining when the exigency of the situation required such protection had not been specially assumed by the commissioner. It was held that the commissioner discharged his duty when he assigned to the work an experienced and competent foreman and furnished him with suitable and sufficient materials for any appliances necessary for the safe conduct of the work, and that the use and application of such materials formed a part of the duty of the workmen; and, if Cloutier's failure to shore up the trench where the dirt caved was negligence, it was the negligence of a

to do so, represent the defendant, for the master's duty had been fully performed. The omission of the foreman in this behalf, like his omission to make use of the shoring, was his own, and not that of his master-an omission which comes within the fellow-servant rule. Anderson v. Winston (C. C.) 31 Fed. 528.

The instruction to the effect that it was not the duty of the plaintiff, when ordered into the ditch, to delay the work and make an examination of the surroundings to see if there were any indications of special danger, was inapplicable, as no such indications had then appeared and such an examination would have discovered none. The other exceptions have been sufficiently covered. Judgment reversed, and judgment for the defendant to recover its costs.

Where, in an action for injuries to a pedestrian occasioned by a wire extending over a sidewalk, the evidence as to the condition of the wire at the place of the accident was conflicting, and there was evidence that the municipality had constructive notice of the defective condition, a verdict for plaintiff, confirmed by the trial judge, will not be disturbed.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3864, 3948-3950; Dec. Dig. § 1005.*]

2. DAMAGES (§ 130*)-PERSONAL INJURIES— EXCESSIVE DAMAGES.

Where, in an action for personal injuries, the evidence showed that plaintiff sustained a severe wrench, and experienced on the following day a feeling of lameness through the leg, hip, and sides, and suffered much pain, that the injuries aggravated a fibro-cystic growth in the right ovary, necessitating an operation, and that she lost a large amount of money by being unable to pursue her occupation of waitress and by her disability to labor for a long time, a verdict for $1,100 was not excessive.

[Ed. Note. For other cases, see Damages, Dec. Dig. § 130.*]

Exceptions from Superior Court, Providence and Bristol Counties; Willard B. Tanner, Judge.

Action by Sadie L. Williams against Joseph A. Shaw, town treasurer. There was a verdict for plaintiff, and defendant brings exceptions. Overruled, and cause remanded, with directions to enter judgment on the verdict.

This was an action of trespass on the case for negligence, to recover for injuries which plaintiff sustained in consequence of being tripped over by a wire dangling from a fence post over and upon a public sidewalk. The jury returned a verdict for plaintiff for $1,100. The wrench which plaintiff sustained was a severe one, and on the following day she experienced a feeling of lameness through the leg, hip, and sides, and on the second day

she suffered a great deal of pain, which on the third day became very severe. She then consulted a physician. Subsequently an operation was performed on her. A physician testified that he found that plaintiff had at the time of the accident a fibro-cystic growth in the right ovary, and that the rapid increase in the growth thereof was caused by the strain and shock received at the time of the accident. Plaintiff lost a large amount of money by being unable to pursue the occupation of waitress, and by her disability to labor at all for a long time.

Page & Page & Cushing, for plaintiff. Benjamin W. Grim, for defendant.

PER CURIAM. The testimony of the plaintiff and her eyewitness as to the accident is not contradicted. The testimony as to the condition of the barbed-wire fence on the Field lot at the place of the accident was conflicting; but that for the plaintiff was positive, while that in behalf of the defendant was negative. There was evidence from which the jury could find that the town had constructive notice of the defective condition

complained of. The verdict of the jury for the plaintiff was confirmed by the judge who sat in the case.

A careful perusal of the testimony fails to disclose any error on the part of judge or jury, and the defendant's exceptions are therefore overruled, and the case is remitted to the superior court, with direction to enter judgment on the verdict.

(222 Pa. 319)

CONOY TP. SUP'RS v. YORK HAVEN ELECTRIC POWER PLANT CO. (Supreme Court of Pennsylvania. Nov. 2,

1908.)

1. TAXATION (§ 114*)-PROPERTY SUBJECTQUASI PUBLIC CORPORATIONS.

The real estate of a quasi public corporation necessary to its operation is not subject to local taxation in the absence of statutory authority.

[Ed. Note. For other cases, see Taxation, Cent. Dig. § 208; Dec. Dig. § 114.*]

2. TAXATION (§ 114*) "REAL ESTATE" LANDS OF CORPORATION.

The words "real estate" in the taxing statutes do not include land or appurtenances necessary to the exercise of a franchise of a public corporation.

[Ed. Note. For other cases, see Taxation, Cent. Dig. § 208; Dec. Dig. § 114.*

For other definitions, see Words and Phrases, vol. 7, p. 5937; vol. 8, pp. 7778, 7779.] 3. TAXATION (§ 114*)-QUASI PUBLIC CORPORATIONS.

The test as to whether a corporation is a public or quasi public corporation, so as to be exempt from local taxation, is what it is authorized to do, and may be compelled to do, under its charter.

[Ed. Note.--For other cases. see Taxation, Cent. Dig. § 208; Dec. Dig. § 114.*]