ed the money from the Washington Mills, and the court ruled that out. Now, it appears from this testimony of this witness that the Jamestown machine,-the right to collect on that was given as security for the claim which Mr. Thomas had against Mr. Voelker. Now, it is therefore a security for the debt, and if the debt is wiped out the security is wiped out, and the right ceases. Now, it is proper to ask whether Mr. Thomas received money, and how much on account of Mr. Voelker, as it seems to me." Then followed a very long discussion of the matter, involving the taking of some explanatory testimony, in the course of which the court said: "I understand from Mr. | Thomas that he manufactured these machines; that Mr. Voelker sold those machines, here, there, and everywhere he could; and that Mr. Voelker was owing him something like $1,200 or plus. Now, it does not make any difference whether Mr. Voelker was indebted to Mr. Thomas or the Thomas Manufacturing Company. The simple question is whether he took that machine and converted it to his own use." The result was that the court refused to allow the defendant to inquire of the plaintiff further as to whether press No. 12 was held by the latter as security, and as to the state of the account between them at the time of the bringing of the suit, to which rulings the defendant duly excepted.

We think the ruling was erroneous. The question before the court was as to what was the contract. The plaintiff claimed it was one thing, the defendant that it was quite a different thing, and that the state of the account between the parties would demonstrate the utter improbability of its being what the plaintiff claimed it was. Merely because the plaintiff in his direct had sworn that the agreement was one thing did not preclude the defendant from showing on the cross examination that it was something quite different. The letters of November 7 and 8, 1892, were ambiguous, and did not clearly state what the contract as to press No. 12 was, and the oral evidence was properly admissible to show the intent of the parties. Phetteplace v. Insurance Co., 23 R. I. 26, 31, 49 Atl. 33. The plaintiff had just sworn, as we have seen, that press No. 12 was not a gift; that "the object of that contract was to secure me [the plaintiff] in past accounts, and for that machine"; that "it was to protect the concern," etc.; but when the corrollary, or necessary inference, of such admissions, was put interrogatively, in this wise: "And if you received your money elsewhere for what was due you, your right to that machine thereby ceased, did it not?" the plaintiff shrank from admitting it, and replied: "No; there was no such contract made; that machine was made mine." What was the contract as to press No. 12 was the very forefront of the case, and evidence to support the defendant's claim as to it was

just as admissible as evidence supporting the plaintiff's claim.

The defendant had some interest in press No. 12, as it was built upon his order and under his patents. For its cost he was to be responsible. The amount for which it sold was to be applied to effect the account between him and the plaintiff, and, whether it had ever been formally delivered by the plaintiff to the defendant after its completion or not, it was delivered by the plaintiff to a supposed customer for the purpose of being converted into cash, which was to be used by the plaintiff in some manner to reduce the defendant's debt to him, if any such debt existed. The plaintiff's testimony tends to show, or at least it may be fairly claimed that it tends to show, that; and if the defendant neither owed for building press No. 12, nor on old account, the plaintiff had no beneficial interest in it. The testimony ruled out, then, would have been admissible, if not absolutely necessary, to fix the measure of damages; for if that press was not a gift, nor bought by the plaintiff,-and it is not pretended that it was either, but was to protect or secure the plaintiff for the plaintiff's claim for building it, and also for any other debt from the defendant to the plaintiff, then the amounts so due, and not the full value of the machine, would have been the measure of damages the plaintiff could recover in this suit.

In this case it seems to have been considered that the plaintiff must have an absolute and unqualified title to the subject-matter of the suit, and the measure of damages must necessarily be the value of the press. This was a misapprehension. A plaintiff in trover, of course, must recover upon the strength of his own legal title, and there must be a concurrence both of the right of property, general or special, and of the actual possession, or the right to immediate possession, but it is not necessary that the absolute title should be in him. It is enough if he stands in such relation to the property that he is entitled to the possession of it, and will be liable ultimately to the true owner for its value, unless it is returned to him. 26 Am. & Eng. Enc. Law, 744. As against the general owner, or one claiming under him, the owner of a limited interest can recover only the value of such interest. Id. 821. In Warner v. Vallily, 13 R. I. 483, 487, which was an action of trover, this court, speaking through Durfee, C. J., said: "Ordinarily, it is true, the measure of damages is the value of the goods converted, with interest from the time of conversion. But the rule is not inflexible. It is every day practice, when the plaintiff has only a qualified interest, to qualify the damages accordingly; as, for instance, where a mortgagee under a chattel mortgage sues the mortgagor for converting the chattel, he recovers only to the extent of the debt secured, with interest." Evidently the jury from their

verdict must have proceeded on some such basis, for the plaintiff in his letter of November 8, 1892, stated the balance to be $688.56, and their verdict was for $634, but a little more than $50 less than that alleged balance. In our opinion, the defendant should have been allowed to inquire as to the state of the account between him and the plaintiff, and his not being allowed to do so is ground sufficient for granting a new trial. New trial granted, and case remitted to the common pleas division for further proceedings

(23 R. I. 430)

BAUMLER v. NARRAGANSETT BREWING CO.

(Supreme Court of Rhode Island. Dec. 26,

1901.)

SERVANT-PERSONAL INJURIES-NEGLIGENCE -ASSUMPTION OF RISK-WORKING UNDER VAT-LACK OF SUFFICIENT SPACE-ADHESION OF CLOTHING TO FLOOR-SPECIFIC ALLEGATION OF DUE CARE.

1. Plaintiff was employed in defendant's brewery to run beer into barrels and kegs, but had never worked around certain large vats, resting on supports, at a distance of about 13 inches from the floor. The foreman directed him to clean out under these vats, giving him no warning of any danger. Plaintiff was "short and stocky in build, deep through the chest and body, and very heavy," so that when he crawled under a vat with a hose and the implements to use in cleaning the place, his clothing becoming saturated with water, he stuck between the vat and the floor. Plaintiff called vainly for help, and finally lost consciousness, and extricated himself only with great difficulty, and after suffering severe pain and breaking his ribs. Held, that plaintiff, having full knowledge both of his own size and the dimensions of the place in which he was to work, assumed the risk.

2. Defendant was not negligent in failing to warn plaintiff that his clothing, on becoming saturated with water, would be more apt to adhere to the vat and floor.

3. A specific allegation in the declaration that plaintiff was in the exercise of due care did not save the pleading from being demurrable, want of care being apparent from the facts stated.

Action by Frederick Baumler against the Narragansett Brewing Company. Demurrer to complaint sustained.

Thos. H. Holton and John Doran, for petitioner. Vincent & Rice, for defendant.

TILLINGHAST, J. This is an action of trespass on the case for negligence. The declaration alleges, in substance, that the plaintiff was an employé of the defendant corporation in the capacity of a "filler" in the defendant's brewery, that is, that he was engaged in running beer into barrels and kegs, -and that he was wholly unacquainted with the work which he was doing at the time of receiving the injuries complained of; that in said brewery there were certain large vats, resting upon supports, at a distance of about 13 inches from the floor; that the plaintiff had had experience in breweries as a "filler," but had never had any experience in the work of cleaning out the space under said

vats, or similar vats, in other breweries, and was wholly ignorant of the risks attending the doing of such work; that on January 30, 1900, he was ordered by George Wilhelm, the brewmaster for the defendant corporation, and the person who was in chief control and management of the work of the corporation and of all the employés thereof, to do whatever work he might be directed to do by the foreman of the cellar room, and that said foreman, without giving plaintiff any warning or notice of the danger of the work, ordered him to clean out the space under certain vats in said brewery; and the 'plaintiff not knowing the nature of the work, and not knowing or having the means of knowledge of the risks attending said work, and exercising due care in the performance thereof, crawled into the space under one of said vats. The declaration further alleges that the spaces under said vats were covered, and not visible, and that their smallness, and the difficulty and risk attending working in them, could not be appreciated from any observation which the plaintiff had been able to make, or from any experience, information, or means of knowledge possessed by him; and he avers that he is short and stocky in build, deep through the chest and body, and was at that time very heavy, and that the spaces under the vats were too small for him to enter or work in, which the defendant well knew, or but for the lack of the exercise of ordinary care would have known, and that it was dangerous for him to do the work of cleaning out said spaces, and to go or crawl into the space beneath said vats; and he avers that it was the duty of the defendant to provide reasonably safe premises and appliances for him in doing the work of the defendant, and that it was its duty to refrain from placing him in a dangerous situation without giving him notice of the danger, and that it was negligence on the part of the defendant to order him to go under said vats; and the plaintiff further avers that said space was exceedingly narrow and contracted, and that in doing the work which he was ordered to do he was obliged to use a hose discharging water, and also to use certain brushes or scrapers, and while in said space, by reason of its narrowpess and smallness, and by reason of the water saturating his clothes, and such wetting, and the friction of the supports, floor, and vat upon his clothing, causing the same to rumple and bind against the supports and floor and vat, the plaintiff became wedged and bound in said space, whereupon he called for help for a long space of time, and that no assistance was rendered him, whereupon for a time the plaintiff lost consciousness, and later with great difficulty extricated himself from said space; and the plaintiff alleges that by reason of the smallness of said space his ribs were broken, and he was otherwise seriously and permanently injured, whereby he suffered great pain, and was ren

dered unable to work, etc. The defendant demurs to this declaration on the grounds (1) that it appears therein that the danger was obvious, and that the plaintiff assumed the risk; (2) that the facts set forth in the declaration do not constitute negligence on the part of the defendant; (3) that it appears from the declaration that the negligence of the plaintiff was the proximate cause of the accident.

The plaintiff's declaration, in effect, in so far as it states the condition of things existing at the time of the accident, comes to this, viz.: That there were certain large vats in the defendant's brewery, which were so situated as to leave an open space underneath, between them and the floor, of about 13 inches, which vats rested on supports, through or between which there was an opening into said space; that no machine or implement occupied any part of said space, and no pitfall or defect of any sort existed therein, but that it was simply as open space, with a floor beneath and the vats above, supported as aforesaid; and that the plaintiff, being ordered to clean out said space, crawled through the opening leading thereto, and while working therein became wedged and bound, as aforesaid.

It must be taken for granted that the plaintiff knew what his own physical size and proportions were quite as well as any one else. Indeed, his declaration avers that he was familiar therewith; for it alleges "that he is short and stocky in build, deep through the chest and body, and was at that time very heavy." It must also be taken for granted that he knew the size of the hole into which he crawled, as related to the size of his body, at any rate, for it was sufficiently large to enable him to enter it and reach the open space aforesaid; and, as this space is not shown to be any less in height than said opening or hole through which he entered, it must have been sufficient to permit him to move around therein. But he alleges that the space was too small for him to work in. If this was so, it was evidently a fact which he knew at the time when he went in, but did not see fit to regard.

Knowing the condition of things, then, the question arises whether, by attempting to do the work assigned him, the plaintiff did not assume any risk incident thereto. We think it is clear that he did. It is familiar law that when a servant consents to work in a given place, knowing and appreciating the danger, he assumes the risk incident to the employment. Kelley v. Dyeing Co., 12 R. I. 112, 34 Am. Rep. 615; Gaffney v. Railroad Co., 15 R. I. 456, 7 Atl. 284; Disano v. Brick Co., 20 R. I. 452, 40 Atl. 7; Pintorelli v. Hortons, 22 R. I. 374, 48 Atl. 142. But the plaintiff argues that as the declaration alleges that the space under said vats was covered, and not visible, the risk attending working in them could not be appreciated from any observation which the plaintiff was able to make, and hence that the rule aforesaid does

not apply. Had there been any inherent or hidden danger underneath said vats, the plaintiff's position would be tenable. But there was not. And hence the mere fact that the space was not visible from without in no way added to the danger, and in no way contributed to the happening of the accident. It was not by reason of the darkness under the vats that the plaintiff was injured, but by reason of the narrowness of the space in which he voluntarily placed himself, and the condition of his clothing after using water in doing his work. Moreover, while the space underneath said vats was not visible, the hole or aperture leading thereto, through which the plaintiff entered, was visible, and, as already suggested, was of the same height as the space where he did the work. The experimental knowledge, therefore, which he must have obtained by crawling in, and before he was injured, was as full and complete as any which the defendant could have previously imparted to him, by way of caution or otherwise. It appears, then, that whatever danger existed from the narrowness of said space was certainly as obvious to the plaintiff as it was to the defendant.

The plaintiff further argues and contends, in substance, that the duty of notifying him of the danger he would incur while doing said work, from his clothing becoming saturated with water, and thereby rendered more adhesive to the interior of said space, thus causing him to move about therein with greater difficulty, devolved upon the defendant, and that its failure to do so was negligence on its part. We fail to see that any such duty existed. The plaintiff does not allege that he was a person of tender years, or lacking in ordinary mental capacity, and hence it must be presumed that the effect naturally resulting from the operation of a familiar physical law was within his knowledge.

The plaintiff further argues that the allegation in the declaration that he was in the exercise of due care is sufficient to rebut the claim made by the defendant that plaintiff assumed the risk. We do not think so. The court must take the declaration in a case of this sort as a whole in determining whether it states a case, and, if it appears from all the facts stated therein that the plaintiff I could not have been in the exercise of due care, the mere fact that it alleges that he was does not save it from being demurrable. We may also add that we do not agree with the plaintiff's contention that the allegations of lack of knowledge of the work, and the location and lack of warning regarding the same, prohibit the assumption that the danger was obvious, and that the plaintiff assumed the risk. When it is apparent, from the facts stated in a case of this sort, that, if the plaintiff had used his senses, he must have known of the danger complained of, no allegations which he may incorporate in his declaration as to lack of knowledge, lack of warning, or duty of the master will be

We have examined the numerous cases relied on by plaintiff's counsel in support of the declaration, but we are not convinced therefrom that it states a case which entitles the plaintiff to go to a jury. Most of the cases relied on in support of the declaration as against the first ground of demurrer are cases where it appears that, while the plaintiff was in a position where he might have seen and appreciated the danger, yet, owing to the presence of some exigency or emergency, he failed, or might have failed, to do so. Thus, in Haley v. Case, 142 Mass. 316, 7 N. E. 877, although the plaintiff saw the crossbar or sign over the gateway under which he drove, and by which he was struck, yet having been sharply and peremptorily ordered by his employer to "get up on your team where you belong," and to drive through said gateway to the barn, and owing to the further facts that it was very hard pulling for the horses which he was driving, that the ground was covered with snow and ice, that the horses were smooth shod, and could hardly stand, while pulling the load on an up grade to the barn, and that the plaintiff's attention was chiefly devoted to the management of the horses, it was held by the court that it could not be said, as matter of law, that the plaintiff was not in the exercise of due care, or that the defendant was not guilty of negligence. In Railway Co. v. Milam (Tex. Civ. App.) 50 S. W. 417, the plaintiff's discovery of the absence of the handhold was practically simultaneous with his act of coupling the cars; and the court held that, this being the case, the doctrine of assumed risk was not applicable. Frye v. Electric Co., 94 Me. 17, 46 Atl. 804, was a case where the plaintiff's attention, at the time of falling into the hole near where he was at work, of the existence of which he was well aware, was fully occupied by his work, which was that of slicing or raking the fires in the furnaces of defendant's works, which was done with a bar 10 feet or more in length, the furnaces being 12 feet deep. It was necessary for him to do the work rapidly in order to prevent the steam from running down while the furnaces were open. It was very hot in front when the doors were open, and in raking the plaintiff stood facing the furnace. The hole into which he fell had been there three days, and was partly covered with plank. The court held that it was for the jury to say whether the defendant was chargeable with negligence in not sufficiently covering the hole, considering its proximity to the furnace where plaintiff was at work, and the method and exigencies of that work, and also that it was peculiarly a question for the jury whether the plaintiff acted recklessly, regardless of his safety, or whether he exercised that degree of care rea

The law applicable to cases of emergency is well stated in Beach, Contrib. Neg. (2d Ed.) § 40, cited by plaintiff's counsel. The author says: "When a plaintiff, through the negligence of the defendant, is placed in a situation where he must adopt a perilous alternative, or where, in the terror of an emergency for which he is not responsible, and for which the defendant is responsible, he acts wildly or negligently, and suffers in consequence, such negligent conduct, under these circumstances, is not contributory negligence, for the reason that persons in great peril are not to be required to exercise all that presence of mind and carefulness which are justly required of a careful and prudent man under ordinary circumstances. In such a case the negligent act of the defendant is the proximate cause of the injury, and the plaintiff may have his action. Said Lord Ellenborough: 'If I place a man in such a situation that he must adopt a perilous alternative, I am responsible for the consequences.' And this is equally the rule even though it turns out that no injury would have been sustained had there been no attempt to escape the threatened danger. The principle is that errors in judgment on the part of a plaintiff, in trying to escape imminent danger brought about by the defendant's negligence, do not constitute contributory negligence, if the acts done were such as ordinarily prudent persons might have been expected to do under like circumstances, even though the injury would not have happened if the acts had not been done. So, where a passenger, apprehending a collision, rushes out of the car, where he would have been safe, and goes upon the platform, where he is hurt, his act is, upon this principle, justifiable, and he has his action or damages against the railway company; and where one, being lawfully upon a railway track when a train suddenly appears, jumps the wrong way in the excitement of the moment, it is not contributory negligence."

This court has repeatedly recognized and acted upon the exception to the general rule, relating to the assumption of risks by the servant, which the above cases make. See Mann v. Print Works, 11 R. I. 152; Disano v. Brick Co., 20 R. I. 452, 40 Atl. 7; Pintorelli v. Hortons, 22 R. I. 375, 48 Atl. 142. The case at bar, however, as already intimated, does not fall within that class of cases, and hence they are not controlling. In Lee v. Mills Co., 21 R. I. 322, 43 Atl. 536, which seems to be specially relied on by plaintiff's counsel, it appears upon examination of the papers that the amended declaration sets forth that "while he [the plaintiff] was cleaning said grinder or grinding machine, and was at work thereon, which said work and operation required the exclusive attention and the prompt action of the plaintiff, and while he was necessarily ab