the note, and in the sum of $39,782.01, with interest, as his share of the redemption price of the stock. Exceptions to the findings of the trial judge were dismissed by the court below and a final decree was entered directing the payment by defendant of the amounts named, on delivery to him of his stock and securities, and directing defendant to pay three-fourths of the costs.

his proportion of the amount paid for the stock. The ninth assignment of error is to that portion of the decree which directs defendant to pay three-fourths of the costs. All the questions involved in this appeal may properly be considered under these two assignments of error.

bank in which the parties named jointly and severally agreed that, if the glass company should default in payment of its note, they would pay the same in like manner as if they had indorsed the note. As further consideration for the loan the bank was paid a bonus of $7,500, and the above named parties agreed in and by the same agreement to deliver, to the bank, stock of the glass company having a par value of $200,000 and to buy Defendant has acquiesced in and complied back such stock from the bank within three with that part of the decree directing the years for the price of $100,000, and, if not payment of $298,365.12, with interest, as his purchased within that time, the price of the share of the note, but he objects to the enstock was thereafter to be increased to cer- forcement of contribution against him for tain sums named. The stock was delivered payment upon account of the $100,000 paid to the bank in accordance with the agree- under the agreement for the purchase of the ment; the defendant Kann contributing stock. The eighth assignment of error is to thereto 1,116 shares. Contemporaneously that portion of the decree which directs the with the transaction with the bank, a sepa-payment by defendant of the sum of $39.rate agreement was made between Isaac 782.01, with interest, which was held to be Guckenheimer, trustee, W. L. Kann, A. Guckenheimer & Bros., Samuel Wertheimer, Ida Guckenheimer, Emanuel Wertheimer, Isaac Wertheimer, Isaac Guckenheimer, M. M. Kann, and Samuel J. Mack, by which the parties named, who held all the stock of the glass company, stipulated as to the proportions in which they were to be liable as among themselves on their agreement with the bank. The liability of the defendant Kann was thus fixed at $298.365.12 if it should be found necessary for the guarantors to pay to the bank the full amount of the loan, $750,000. The agreement contained no stipulation as to the respective liability of the parties as between themselves for such amount as might be paid to redeem the stock. In pursuance of the agreement the defendant Kann deposited with Isaac Guckenheimer, as trustee, certain securities to insure the payment of any sum for which he might become liable under the terms of the contract. The firm of A. Guckenheimer & Bros. was com- a proper case for contribution. Here one posed of Samuel Wertheimer, Isaac Wertheimer, and Isaac Guckenheimer, all of whom were parties to both agreements. The firm was not a party to the agreement with the bank, but was a party to that between the stockholders. On April 1, 1912, the plaintiff corporation, A. Guckenheimer & Bros. Company, was formed, taking over all the assets and liabilities of the firm. At about the same date, the glass company having defaulted in the payment of the $750.000 note, the same was paid by A. Guckenheimer & Bros., who also at the same time paid the bank $100,000 for the stock which had been transferred as stated above. The present bill was filed by A. Guckenheimer & Bros. Company to compel W. L. Kann to contribute his alleged proportion of the amounts paid by A. Guckenheimer & Bros. to the bank, both in discharge of their liability and in redemption of the stock.

[1, 2] Counsel for appellant cite no authorities in support of their contentions, but suggest that the authorities, upon which the court below relied, do not properly apply to the facts of this case. These authorities are the leading case of Deering v. Earl of Winchelsea, 2 Bos. & Pul. 270, in which the principle was clearly recognized that contribution depends, not upon contract, but upon a fixed principle of justice, and Malone v. Stewart, 235 Pa. 100, 83 Atl. 607, where the rule of contribution as defined in the case just cited is recognized as applicable in Pennsylvania. The record in this case shows the presence of every element essential to

of several parties, who were liable upon a common obligation to the bank, discharged that obligation for the benefit of all of them. This gave to the one who made the payment the right to recover from each of his cosureties his proportionate share of the common burden. The payment was compulsory in that there was a clear legal duty to pay which might have been enforced by judgment and execution. Even where payment has been made by one legally bound therefor before the maturity of the debt, contribution has been enforced. Thus in Craig v. Craig, 5 Rawle, 91, at page 98, Mr. Chief Justice Gibson said: "As to the position taken. that payment, before the bonds fell due, would be essentially voluntary, it is proper to remark that the principle was ruled differently in Armstrong v. Gilchrist, 2 Johns. Cas. [X. Y.] 429, where it was held that a guarantor of a note, who had compromised and paid it for Upon the trial the court below sustained his own indemnity before it had become due, the bill and held that the defendant Kann was entitled to recover. That a surety is to was liable to the plaintiff in the sum of wait till payment is extorted from him is not

* **

*

fore maturity is necessarily voluntary, and the court below was correct in its calculation that eventual liability is not equivalent to a precedent request. There is no authority for that; and it seems not to be defensible on principle. Nor is he bound to subject himself to the risk of an action by waiting till the creditor has a cause of action. He may, in short, consult his own safety and resort to any measure calculated to assure him of it, which does not involve a wanton sacrifice of the interest of his principal."

It

of the amount which defendant was liable to
contribute. There were eight obligors, and it
is suggested that defendant was therefore
only liable for one-eighth of the purchase
money. The decree requires him to contrib-
ute in the same proportion that he had bound
himself in the payment of the $750,000 note.
This proportion, with some variations, for
special reasons favorable to appellant was
based on his holdings in the stock of the
glass company. In fact, all the obligors
seem to have agreed to make themselves lia-
ble upon this basis. It was their own ar-
rangement as to the note, and the agreement
for the repurchase of the stock was part of
the same transaction. No good reason has
been shown why the same proportions should
not have been maintained with regard to the
stock matter. It was merely a part of the
bonus paid to secure the loan. We think the
decree of the court below is equitable in re-
quiring defendant to pay in proportion to his
interest in the stock of the glass company,
which was the principal debtor. It is in ac-
cord with the plan which defendant himself
has recognized as fair and just by his agree-
ment with regard to the payment of the
$750,000 note. We see no reason for just
complaint at the application of the same rule
to both matters of liability which arose out
As is pointed out
of the same transaction.
by counsel for appellees, the court below
might have adopted another basis of calcula-
tion which would have required defendant to
pay in accordance with the number of shares
tributed to make up the 2,000 shares which
of the glass company's stock which he con-
der the decree of the court below, are to be
were transferred to the bank and which, un-
returned to him. This basis of adjustment
would require defendant to pay more than
one-half of the $100,000, so that the method
which was adopted by the court below is
more favorable to defendant.

[3, 4] In the present case the firm of A. Guckenheimer & Bros., which purchased the stock from the bank, was not itself directly a party to the contract, but all its individual members were parties, and the contemporary agreement made between the stockholders of the glass company was signed by the firm as well as by its members, and it appeared that the firm held 2,000 shares of the glass company's stock. All the partners in the firm were liable to the bank under the agreement, and it makes no substantial difference whether the money, which they all were under obligations to pay, was paid with the check of the firm or by them as individuals. was clearly in relief of their individual obligation. Having discharged this obligation through the firm of which they were the only members, no good reason appears why they could not make their claim for contribution against their co-obligors in the firm name. Going one step farther, as the assets of the firm had been transferred to the corporation which took over its assets and assumed all its liabilities, it seems clear that the latter, then, had the right to file this bill. It cannot be doubted but that the decree of the court below will amply protect the defendant from any further liability to the firm or to any of its members as individuals, upon account of this obligation. It is apparent, also, from the terms of the contract that, had the bank seen proper to follow the defendant Kann, it could have required him to accept the stock at the price agreed upon, or, in case of his refusal, it could have brought suit against him for the purchase money under the contract. Counsel for appellant suggest in the argument that defendant may have had certain defenses against the bank, but, if so, these defenses are not set forth. If it were true that he was under no obligation to perform his agreement, that fact would, of course, relieve him from claim for contribution, for the right of contribution can only arise where both parties are equally liable for the debt which was paid; but the [6, 7] Complaint is also made of the disporecord here shows no evidence of any de- sition of the costs which was made by the fense which defendant might have set up court below. This was a matter within the effectively as against the claim of the bank. sound discretion of the chancellor with which A common obligation was shown which was this court will not interfere unless there is a discharged by the predecessor of the plain- clear abuse of this discretion, citing Grim v. tiff for the benefit of all the obligors includ- Walbert, 155 Pa. 147, 152, 25 Atl. 1077; ing defendant. Pennsylvania Co. for Ins. on Lives & Grant

[5] In the sixth and seventh assignments of error complaint is made of the exclusion of certain offers of evidence made on behalf of defendant on the trial. Both of these assignments are defective in that they violate rule 28 of this court in failing to refer to the page of the appendix where the matter is to be found in its regular order in the printed evidence. The questions sought to be raised by these assignments are not included in appellant's statement of questions involved, and no argument has been made in support of them. They have not, therefore, been considered.

648. In the present case no abuse of discretion by the court below appears. The decree was against defendant on all points involved and required him to pay the entire amount claimed by plaintiffs. The justice of this decree has been admitted in great part by defendant in the payment by him of a large part of the total sum awarded. Instead of imposing as it did but three-fourths of the costs on defendant, the court below might very well have required him to pay all of them. Had it done so we could not say that there had been any abuse of discretion.

The assignments of error are all dismissed, and the decree of the court below is affirmed.

(243 Pa. 110)

Trespass to recover damages for personal injuries by William Killmeyer against the Forged Steel Wheel Company, a corporation. From judgment for plaintiff, defendant appeals. Affirmed.

Argued before FELL, C. J., and BROWN,
MESTREZAT, ELKIN, and MOSCHZIS-
KER, JJ.

T. C. Campbell and John H. Wilson, both of
W. D. Brandon, of Butler, for appellant.
Butler, for appellee.

ELKIN, J. In refusing the motion for judgment non obstante veredicto, the learned judge who presided at the trial in the court below made the following summary of the material facts as they appeared from the testimony: "The uncontroverted evidence

KILLMEYER v. FORGED STEEL WHEEL in this case showed that the plaintiff was an

CO.

(Supreme Court of Pennsylvania. Jan. 5,

1914.)

1. MASTER AND SERVANT ( 103*)-SAFE PLACE TO WORK-DELEGATION OF DUTY.

A master's duty to provide his employé with a reasonably safe place to work, and to maintain it in a reasonably safe condition by inspection and repair, cannot be delegated to another so as to relieve the master from liability.

employé of the defendant company, and, while so employed, fell into an unguarded hole in the floor of the defendant company's plant. It appeared that the floor consisted of removable iron plates, so designed for the purpose of affording access to the large presses of the defendant company, whose foundations were some ten or twelve feet below the floor level covered by said iron plates. One of these, about four by eight feet in dimension, had been removed the day or evening in question, and left removed, and the hole unguarded during the night, and the plaintiff, while in the discharge Where the evidence, in an employé's action of his duties as an employé, inadvertently for injuries, showed that the injuries were re-walked into it, and was seriously injured." ceived in the nighttime when he fell through an unguarded hole in the floor, from which an iron plate had been removed, without notice to him, the question whether defendant performed its duty in providing a reasonably safe place to work was for the jury.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 175; Dec. Dig. § 103.*1 2. MASTER AND SERVANT (§ 286*)-INJURIES - NEGLIGENCE- QUESTION FOR

TO SERVANT ·
JURY.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 10101015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. § 286.*]

3. MASTER AND SERVANT (§ 289*)-INJURY TO SERVANT- CONTRIBUTORY NEGLIGENCE QUESTION FOR JURY.

Where, in an employé's action for injuries from falling through an unguarded hole in the floor, from which an iron plate had been removed, without notice to him, the evidence left it doubtful whether he was guilty of contributory negligence, the question of contributory negligence was for the jury.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1089, 1090, 1092-1132; Dec. Dig. § 289.*]

4. MASTER AND SERVANT (§ 288*)-ASSUMPTION OF RISK-QUESTION FOR JURY.

Where, in an employe's action for injuries from falling through a hole in the floor, from which an iron plate has been removed, the evidence and inferences therefrom left it doubtful whether plaintiff assumed the risk of injury, the question of assumption of risk was for the jury.

The contention of appellant is that a verdict
should have been directed in its favor at the
trial, or that judgment non obstante should
We think
have been subsequently entered.
the evidence of negligence was sufficient to
carry the case to the jury.

[1] The case at bar belongs to that class of cases represented by Johnson v. Bruner, 61 Pa. 58, 100 Am. Dec. 613; Bennett v. Plate Glass Co., 158 Pa. 120, 27 Atl. 874; Smith v. Oil City Tube Co., 183 Pa. 485, 38 Atl. 1014; Gilbert v. Elk Tanning Co., 221 Pa. 176, 70 Atl. 719; and Henessey v. Wabash Mills Co., 235 Pa. 31, 83 Atl. 706. In the case of Gilbert v. Elk Tanning Co., 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."

[2] Under the facts of the present case it [Ed. Note.-For other cases, see Master and was for the jury to say whether appellant Servant, Cent. Dig. §§ 1068-1088; Dec. Dig. performed its duty in providing a reasonably § 288.*] safe place to work. The removal of the Appeal from Court of Common Pleas, But- large iron plate left an unguarded hole in ler County. the floor, and made the place a dangerous

trap to those who had occasion to pass that way in the performance of their duties. This was especially true as to the employés who worked near the hole in the nighttime, and who had no notice of its being unguarded. Under such circumstances the court could not

said, it would have been error for the court below to have entered judgment in favor of the defendant upon the whole record. Judgment affirmed.

say, as a matter of law, that the employ- CITY OF NEW CASTLE WATER CO. v. MA

We find nothing in the assignments constituting reversible error. The first is without substantial merit, and the second, third, and fourth relate to the refusal of the trial judge to give binding instructions in favor of the defendant. We have already said that this was a case for the jury, and it therefore Appellant is a corporation organized under would have been error to have given binding the act of Assembly of 1874, and the supinstructions. The fifth assignment relates to plements thereto, for the purpose of supplythe refusal of the motion for judgment non ing water to the public, to individuals, firms, obstante. In view of what has already been and corporations residing or doing business

the city of New Castle and the City of New Castle Water Company wherein said water company agreed to furnish to the said city water for the sprinkling of streets. (2) The Mahoning & Shenango Railway & Light Company has authority to take water from the fire hydrants of the said city for the purposes aforesaid, the hydrants from which the water is to be taken to be designated by the chief of the fire department." Two months after the approval of the foregoing resolution this bill was filed.

[1] The complaint of the appellant is, not that the appellee is using its water for the purpose of sprinkling the streets of the city of New Castle, but that, before it can do so, it must enter into some agreement or contract to pay for the same. It is not pretended that the city itself could not take all the water needed for sprinkling purposes, for neither in the contract of December 30, 1901, nor in its renewal, is there any limitation upon the quantity of water to be furnished by the water company to the city for sprinkling its streets; but it is contended that, though this be true, the city cannot delegate to the appellee the right to take water for sprinkling purposes, and therefore, when it took the same for such purposes, it became a trespasser, continuing its trespasses from day to day, to enjoin which this bill was filed. The city had the undoubted right to sprinkle its streets, and, in the exercise of that right, it was not required to sprinkle all of them, or any of them, from curb to curb. To enable

in the city of New Castle and in the districts | city of New Castle, the same to be furnished adjacent thereto. The appellee is a corpora- in pursuance of the contract made between tion created under the act of March 22, 1887, and operates an electric street railway on the public streets of the said city. The appellant, some years ago, erected, constructed, and has since maintained reservoirs and a filtration plant for supplying water to the said city and the inhabitants thereof, and has entered upon the public streets and highways of the said city, and laid down, maintained, and is still maintaining, pipes and mains for transporting, conveying, and distributing water. On December 30, 1901, the appellant entered into a contract with the city of New Castle, by the terms of which it agreed, in consideration of the sum of $7,000 per year paid to it by the city, to furnish water to the city for sprinkling and washing its streets. For several years before this bill was filed the appellee, without the consent of the appellant, and against its protest, almost daily during the summer months opened its fire plugs and five hydrants many times each day, drawing large quantities of water from the pipes and mains, through the said first plugs and fire hydrants, into a sprinkling car, and by means of this car, owned by the appellee, conveyed the water so taken from the said pipes and mains along and over the street railway operated by it and discharged the same from the said sprinkler upon certain parts of the streets and highways of the city between the railway tracks and for a short distance on either side of them. The city did not own a sprinkling car, or any other apparatus suitable and convenient for sprinkling its streets. Begin-it to sprinkle its streets, or portions of them, ning with the summer season of 1903, it designated and appointed the appellee to receive water from the appellant for the purpose of sprinkling the streets on which the street railway tracks were laid, and, under that authority, the appellee has taken the water of the appellant each summer season when and as often as the same has been necessary for sprinkling such streets; and it sprinkled the same not only over the portions on which its tracks are laid, but for a distance of from 2 to 21⁄2 feet outside the said `tracks in the space between them and the curb lines. No water has at any time been taken or used by the appellee on any other authority or for any other purpose. In March, 1909, the appellant and the city renewed and continued the contract then existing between them; the renewal to take effect December 31, 1911. By the renewal the former contract was continued and was in force when this bill was filed. On June 29, 1911, the following resolution, passed by the councils of the city of New Castle, was approved by the mayor: "Resolved: (1) That the City of New Castle We have already observed that no finding Water Company be, and the same is hereby of fact by the court below has been assigned instructed to furnish to the Mahoning & as error, and, as a complete answer to apShenango Railway & Light Company such pellant's claim that the appellee is a trespassamount or quantity of water as the latter | er, and ought to be compelled to pay for the

the water company, for a sufficient consideration passing to it from the city, agreed to furnish all water needed for sprinkling purposes, and in the contract to do this there is neither direction, limitation, nor restriction, even by implication, as to the method or manner of putting the water on the streets. The city was not required to sprinkle the streets with its own sprinklers, but could have employed others owning sprinklers to do the work for it, and to those the water company would as certainly be required to furnish water as it would be to the city, if doing the work itself. This is just the situation here presented; for, beginning with the summer season of 1903, the city designated and appointed the appellee to act for it in sprinkling certain portions of the streets. What consideration passed between it and the appellee is none of the appellant's concern, for the appellee, as the representative of the city for sprinkling purposes, is but taking water which the city itself could concededly take for those purposes.