a state and therein transact business without the consent of the state or without complying with the conditions or terms which the state might prescribe. On the other hand, the inference is to be drawn from the provisions of section 5 of the act, which declares that wherever the obligation is made it is to be treated as made in the district to which it is returnable or in which it is filed or in which the principal resided, that the federal government was not concerned about the place where the obligation was actually made. The defendant company baving transacted its business in this state by consent of the state, it must comply with the conditions which the state has laid down. List v. Com., 118 Pa. 322, 12 Atl. 277; Thorne v. Travelers' Ins. Co., 80 Pa. 15, 21 Am. Rep. 89; Paul v. Virginia, 75 U. S. (9 Wall.) 168, 19 L. Ed. 357; Hooper v. California, 155 U. S. 648, 15 Sup. Ct. 207, 39 L. Ed. 297; Pembina Con. Silver Mining & Milling Co. v. Pa., 125 U. S. 181, 8 Sup. Ct. 737, 31 L. Ed. 650;| Horn Silver Mining Co. v. N. Y., 143 U. S. 305, 12 Sup. Ct. 403, 36 L. Ed. 161. The tax which is now claimed is an exaction for the privilege of doing business in the state. Germania Life Ins. Co. v. Com., 85 Pa. 513.

"Nor can we understand how the defendant can be said to have been acting for the federal government at all either before or after the contracts of suretyship were entered into. The contracts were entered into at the request of the principals, not at the request of the federal government. The federal government was not interested in having this defendant company rather than another engage to answer for the conduct or the acts of its officials. If the defendant had refused to act as surety, a domestic company or an individual surety or sureties would have answered. It might just as well be said that the individual sureties required before the Act of Congress was passed were acting for the federal government in matters of this kind. They were acting for themselves and their principals. They were selected by their principals and accepted by the federal government without cost or charge to it. So was this defendant company acting when it assumed the obligation of becoming surety. It then stood in relation to the federal government as an insurer against possible loss or damage by reason of the fault of its officials. It did not undertake to perform the officials' duties. It did not exercise any governmental function. It was not in the employ of the federal government. It was in no sense an instrumentality of government.

[3] "It is urged upon us that to require the defendant company to pay a tax for the privilege of doing the business in the state of becoming surety for federal officials and in "The act of assembly which imposes the tax federal matters is to interfere with the fune- lays no tax on the bonds nor on the contracts tions of the federal government. We are not of suretyship, and in this particular the presable to see how the statute requiring the tax ent case is to be distinguished from the cases in question has that effect. The defendant of Ambrosini v. U. S., 187 U. S. 1, 23 Sup. Ct. was free to enter into the contract of surety- 1, 47 L. Ed. 49, and Bettman v. Warwick, 108 ship with respect to all the federal matters Fed. 46, 47 C. C. A. 185, which have been callout of which the premiums, which are made ed to our attention. The tax, as we have the basis of the tax, were received. It could said, is a charge for the privilege of transacthave done so in the place of its domicile. ing business in the state, measured by the There is no requirement that the contracts amount of the business done. There is no obof suretyship should be entered into at any stacle in the way of the federal government particular place. Indeed, as we have here- accepting a corporate surety that has au tofore said, section 5 of the act renders the thority to act in the state in which it underplace where the contract is made of no con- takes to contract, and we are not inclined to sequence. The most natural place in which believe that the government contemplated acr to make the contracts would be in the de- cepting a surety company which had no fendant's home state. In the absence of any such authority. The surety company could legislation fixing the place, the fair presump-only obtain the authority by complying with tion would be that the corporation's domicile, the laws of the state. or those states wherein permission should be given it to do business, was intended to be the place. The defendant company, having preferred for its own convenience to make its contracts within the state of Pennsylvania in respect to the federal matters, rather than in its own state, may do so only on the terms which the state of Pennsylvania has fixed. It is not in a position therefore to complain that, because it may not transact what it calls federal business in the state of Pennsylvania without complying with the conditions prescribed by the state, the functions of the federal government are thus interfered with, when it may do that very busi

"Conclusions of Law. "Wherefore we conclude:

"1. That the Act of June 28, 1895, under which the present tax is claimed, in no wise interferes with the functions of the federal government, so far as it applies to and affects the defendant company.

"2. That the defendant company is liable for the tax imposed by that act.

"3. That the commonwealth is entitled to recover as follows: Tax due, $352.92; interest, $59.11; Attorney General's commission, $17.64-total, $429.67.

"Accordingly judgment is directed to be en

(Pa.

the commonwealth for the sum of $429.67, un- | plaintiff, Maud Tate, a colored child seven less exceptions be filed within the time limit- years of age, who was struck by defended by law." ant's car at the intersection of Fifteenth and Tioga streets in the city of Philadelphia. The case was submitted to the jury, and, a verdict having been returned for the plaintiff and judgment entered thereon, the defendant company has taken this appeal.

Exceptions to various conclusions of law and the judgment of the court were dismissed.

Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ.

Charles F. Patterson, of Pittsburgh, Frederick M. Ott, of Harrisburg, and Gans & Haman, of Baltimore, Md., for appellant. William M. Hargest, Second Deputy Atty. Gen., and John C. Bell, Atty. Gen., for the Com

monwealth.

PER CURIAM. The judgment appealed from is affirmed on the findings and opinion by the learned president judge of the common pleas.

(244 Pa. 74)

The statement avers that the car "knocked down and ran over plaintiff, through the negligence of defendant's employé in charge of said car, who so carelessly and negligently operated said car as not to look out for the plaintiff and stop said car before it ran over her." There are three assignments of error. The first and second raise the question as to whether there was sufficient evidence of negligence to warrant the court in submitting the case to the jury, and the third alleges error in a part of the charge quoted in the assignment in which it is said there is no proof as to just exactly how the

TATE v. PHILADELPHIA RAPID TRANS- accident occurred, and that the plaintiff be

IT CO.

(Supreme Court of Pennsylvania. Feb. 9, 1914.) STREET RAILROADS (§ 114*)-INJURY TO INFANT-EVIDENCE-SUFFICIENCY.

In an action for damages for personal injuries sustained by an infant of seven years run over by a street car at the intersection of two streets, evidence held to sustain a judgment for plaintiff.

[Ed. Note. For other cases, see Street Railroads, Cent. Dig. §§ 239-250; Dec. Dig. § 114.*]

Appeal from Court of Common Pleas, Philadelphia County.

Action by Maud Tate, by her next friend, Samuel Brandon, against the Philadelphia Rapid Transit Company. Verdict for plaintiff, and defendant appeals. Affirmed.

ing a child seven years old makes a difference in the proof required by the plaintiff. The third assignment may be disposed of by suggesting what is apparent from other parts of the charge and from the learned judge's language assigned as error that it was used in view of the fact that the infant plaintiff was too young to testify and give full details of the accident. We think the excerpt from the charge complained of was more injurious to the plaintiff than the defendant. There was ample evidence as to how the accident occurred and the negligence of the motorman in charge of the car, and, as will hereafter appear, the court submitted the evidence to the jury, with proper instructions in view of the negligence averred in the statement.

and Tioga street crosses it at right angles. Fifteenth street extends north and south There is a street car track on Fifteenth street, and on October 4, 1911, a car running south on the track struck the plaintiff on the south crossing of Tioga street, knocked her down, and the east side front wheel sev

The court in part charged as follows: "The first question which you will have to determine is whether this accident did occur by reason of the negligence of the motorman of the car. There is no proof as to just exactly how the accident did occur. No one seems to have noticed the position of the plaintiff until she was found under the car or along-ered her foot from the leg. The plaintiff had side the car with her leg in the condition described by the witnesses. Ordinarily, in cases of this kind, the court would require proof on the part of the plaintiff as to just how the accident occurred, but the plaintiff in this case was a child of only about seven years old at the time the accident occurred, and that makes a difference in the proof required upon the part of the plaintiff."

Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ.

Charles Biddle and Howard H. Yocum, both of Philadelphia, for appellant. Thomas Ridgway, of Philadelphia, for appellee.

been attending school in a building on the west side of Fifteenth street and south of Tioga street. The children had been dismissed and were leaving the building and going into the street in large numbers. They went north on the west side of Fifteenth street to the south side of Tioga, where some of the children turned and crossed the street, among the latter being the plaintiff, accompanied by Helen Williams, another girl of about the same age. When the car coming south on Fifteenth street stopped on the north side of Tioga street, the two little girls started across the street, the plaintiff behind the other girl, and when the latter got across she looked back "to see where was Maud (the plaintiff), and the car knocked her (Maud) down." The car stopped when its front end

MESTREZAT, J. This is an action to recover damages for injuries sustained by

was about six feet and the front wheels | tion westward on Tioga street and continued about four feet beyond the south side cross- to look in that direction until the child was ing of Tioga street. The plaintiff was back struck and fell under the front wheel on the of the front wheels under the car, and she east side of the car. When he started his was picked up and taken to a hospital. car and left the north crossing, he was at least 50 or 60 feet from the south crossing and had the car under perfect control, as appears from the fact that he stopped it within six feet after it struck the child. He therefore had ample time to stop the car and prevent the collision if he had exercised due care by keeping a lookout in front of him. He necessarily would have seen the child and could have stopped the car before it reached the crossing. He did not see the children or know the child had been struck until he heard "the grinding noise" of the wheel passing over its leg.

The car which caused the plaintiff's injuries was running south on Fifteenth street. The manner in which it was run at the time of the accident and immediately before and the conduct of the motorman in operating it appears by the testimony introduced by the plaintiff. No evidence was offered by the defendant company. At least three witnesses testified that the car stopped on the north side of Tioga street before it attempted to cross Fifteenth street, and the testimony is uncontradicted. John F. Little was a passenger on the car. He testified that when the car was about to cross Tioga street an auto- The appellant contends that the motorman's mobile or wagon coming east on that street duty required him to look up and down Tioattracted his attention and he and the mo- | ga street while he was crossing it, and that torman near whom he sat looked west on continuing to do so until the child was struck the street, when almost instantaneously he on the opposite crossing was not negligence. heard a grinding noise and the car stopped. This duty of looking aside on Tioga street He alighted and found the child under the was or should have been performed as the car, the front of the car being six feet and car approached the street and after it had the wheels of the car being not over four stopped before crossing. The motorman saw feet south of the crossing. The automobile at a glance there was nothing approaching or vehicle traveled at a slow pace and per- him on Tioga street, unless it was an autoImitted the car to pass. Samuel Williams mobile or wagon which was under control was walking west on Tioga street and stop- and slowed up to let him pass. On the other ped on the east side of Fifteenth street to hand, he knew that there were "lots of chillet the car pass south. He testified: “Q. Did dren coming from school" in the street in you notice the motorman? A. Yes, sir. Q. front of him, and that their safety and proWhat was his position when the car crossed tection required him to keep his eyes on the Tioga street? A. After the car stopped on track ahead of him. There was no difficulty the north side of Tioga it started again, and in the motorman's protecting persons or vehijust as it got to the middle of the street he cles approaching his car on Tioga street as had his head turned looking at something well as the children whom he knew to be in on the west side. * Q. Then what front of him. With his car under proper was the next thing you saw? A. Just as control, he could easily have prevented the the rear end of the car got about the middle collision with the children crossing on the of Tioga street it made a sudden stop. I south side of Tioga street if, after glancing was fixing to go across, and it made a sudden along Tioga street, he had used his eyes and stop, and I stepped back and saw the girl looked along the track in front of him. down by the wheel."

This case must be distinguished from that class of cases where a child unexpectedly

From the evidence in the case the jury was justified in finding that the motorman's neg-leaves a place of safety and suddenly runs ligence caused the plaintiff's injuries. The in front of a moving car and is injured. accident did not occur between streets, but There the motorman cannot provide against at a street crossing where more than ordi- the collision, and therefore his failure to do nary care was required of the motorman. As so is not negligence. Here the children were his car approached Tioga street he saw, or passing over the crossing in full view of the according to Little's testimony could have motorman if he had been looking, and at the seen, the children leaving the school building speed he was running he could have stopped in great numbers, some of whom were cross- the car and prevented the collision. ing Fifteenth street south of Tioga. When The single negligent act alleged in the statehe stopped on the north side of that street hement as the cause of action was submitted by also must have seen children using the crossing on the south side of the street, as Helen Williams who accompanied the plaintiff saw his car while she was crossing. With this knowledge of the use of the street and the crossing by the school children and the ne-business, but was looking to the side incessity for the exercise of more than ordinary care, the motorman started his car, and, instead of looking ahead of him and along

the learned judge after directing the attention of the jury to the testimony as follows: "If you find under the evidence that the accident occurred because of the fact that the motorman was not properly attending to his

stead of the front of the car, when he might have prevented the accident if he had been looking ahead, then there might be a recov

you do find that fact from the evidence, there can be no recovery, and your verdict would be in favor of the defendant." We think there was sufficient evidence of negligence to justify the verdict, and that it should not

be disturbed.

Judgment affirmed.

(244 Pa. 117)

LIPTAK v. KURRIE et al.

(Supreme Court of Pennsylvania. Feb. 9, 1914.) 1. MASTER AND SERVANT (§ 116*)-SAFE APPLIANCES-DUTY OF MASTER-NEGLIGENCE. Where the only means of access to and descent from a place of employment on a raised platform was by the projecting ends of iron bars piled in racks under the platform and the top of other bars driven perpendicularly into the ground to hold the iron in place, such iron not having been placed there for use as a ladder, and being insufficient and unsafe therefor, the employer was negligent in respect to his duty to a minor employé, who fell while descend ing from the platform under his foreman's express directions.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 207; Dec. Dig. § 116.*] 2. MASTER AND SERVANT (§ 230*)-INJURY TO SERVANT-CONTRIBUTORY NEGLIGENCE.

Argued before BROWN, MESTREZAT, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ.

Maurice W. Sloan, of Philadelphia, for appellants. Harry Felix, of Philadelphia, for appellee.

MESTREZAT, J. This is an action of trespass brought by a boy 14 years of age to recover damages for injuries which he sustained while employed as a helper about the defendants' factory. There was a verdict and judgment for the plaintiff, and the defendants have taken this appeal.

On

[1] We do not agree with the appellants' contention that there was no evidence of negligence which warranted the court in submitting the case to the jury. When the boy was employed by one of the firm he was put under the orders of his uncle, the foreman, and directed to obey his instructions. the day of the accident the boy was directed by the foreman to go upon a platform and there pump oil into a tank. The platform was 10x16 feet and 10 feet above the ground. The only means of access to it or descent from it was by an iron bar projecting perpendicularly from the ground and bars of

A 14-year old boy was injured from falling while using an insufficient means of descent from a platform, pursuant to the express directions of his foreman, was not guilty of contrib-iron resting on racks under the platform and utory negligence in failing to use stepladders procurable from a nearby building, even had such ladders been fit for service, where the danger was not imminent and the unsafe means of descent had been used before.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 687-700; Dec. Dig. 8 230.*]

3. MASTER AND SERVANT (§ 218*)-INJURY TO MINOR EMPLOYÉ-ASSUMPTION OF RISK. Where an inexperienced minor employé, without knowledge of the danger or warning thereof, was injured by falling while using an unsafe means of descending from a platform, pursuant to the express directions of his foreman, on whose directions he had a right to rely, there was no assumption of risk by him.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 601-609; Dec. Dig. 8 218.*]

4. MASTER AND SERVANT (§ 270*)—INJURY TO MINOR EMPLOYÉ-DEFECTIVE APPLIANCES-EVIDENCE OF CUSTOM.

Where, in a minor employé's action for injuries from falling while using an unsafe means of descent from a platform pursuant to his foreman's express directions, plaintiff showed that such means of descent were not only unusual but more dangerous than ordinary, it was competent to then prove the ordinary method of access to platforms used in similar establish

ments.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 913-927, 932; Dec. Dig. § 270.*]

extending some inches beyond it which were used as steps. The foreman instructed the boy how to make the ascent. He was directed to use the perpendicular bar and the three or four bars of iron projecting from the racks beneath the platform. After he had mounted the platform, and had pumped the oil into the tank as directed by the foreman, he attempted to make the descent from the platform. In descending he had to face the platform, and after stepping on the two or three projecting irons he attempted to put his foot on the perpendicular bar, when his feet and hands slipped and he fell on the bar, injuring him severely. The projecting bars were not fastened in any way, and the lower two racks contained very light grades of iron which would not support a person's weight. It was therefore necessary, in making the descent, to step from the third projecting bar to the top of the perpendicular bar projecting from the ground and step from it to the ground. The platform was covered with grease and oil, and the boy's hands were also greasy, resulting from the pumping of the oil. This was the first occasion the boy had to go on the platform, and he was not familiar with the manner of making the descent. It is apparent that the defendants failed

Appeal from Court of Common Pleas, Phil- in their duty to the plaintiff and other emadelphia County.

Trespass by John Liptak, by his next friend, Mary Belagyi, against George R. Kurrie and another, individually, and trading as Kurrie Bros., for personal injuries. From judgment for plaintiff, defendants appeal. Affirmed.

ployés engaged in the same service in fur|nishing proper means of access to and descent from the platform. In fact, no provision was made to reach the platform. The iron bars were not placed there for that purpose. The iron was piled in racks under the platform, and the bars were driven perpen

dicularly into the ground to keep the iron It was the duty of the employer to furnish in place. The bars were not projected from the racks for the purpose of being used to reach the platform. The employés made use of the iron bars to make the ascent to and descend from the platform because there were no other means furnished for the purpose.

We see no merit in the third and fourth assignments of error. The excerpt from the charge embraced in the third assignment must be read in connection with its context. The court was then discussing the duty of the appellants to furnish the plaintiff with the proper means of reaching the platform. He told the jury substantially in this connection that they could only consider the question of the defendants' negligence if they found that the platform could not be safely approached without a ladder, and that the (Supreme Court of Pennsylvania. Feb. 9, 1914.)