How, then, could the court below have ordered their summary sale or conversion, likely to result in loss, which would have to be borne by the estate of the deceased trustee or his surety, whose obligation, approved by the court, is to secure to the cestuis que trustent the full amount of the $20,000? Appeal from Court of Common Pleas, Delaware County. Action by Annie Hagan, by her next friend, Harry Henry, against the Delaware River Steel Company. From a judgment refusing to take off nonsuit, plaintiff appeals. Affirmed. Argued before FELL, C. J., and BROWN, Joseph H. Hinkson and J. De Haven Ledward, both of Chester, for appellant. William I. Schaffer, John J. Stetser, and E. Wallace Chadwick, all of Chester, for appellee. To protect the estate of his decedent and to save the surety company from liability, ELKIN, STEWART, and MOSCHZISKER, which may not attach to it if he is permitted | JJ. to collect, in the usual way, the moneys represented by the rejected investments, it was no less the duty than the right of the appellant to appeal from the decree ordering their summary conversion. That decree cannot be permitted to stand as a precedent. It is therefore reversed, and the record remitted for disposition of the exceptions filed to the adjudication and for the entry of a decree in conformity to the views herein expressed; the costs on this appeal to be paid by the appellee. (240 Pa. 222) HAGAN V. DELAWARE RIVER STEEL CO. (Supreme Court of Pennsylvania. March 31, 1913.) 1. NEGLIGENCE (§ 47*)-ACTIONABLE NEGLIGENCE WHAT CONSTITUTES-Death, Where a woman for her own purposes gains admission to a manufacturing plant and starts down a dimly lighted path, which, if pursued, would lead her safely to her destination, but wanders from it into an abandoned part of the plant and falls into a pit, receiving injuries which cause her death, there is no actionable negligence toward her on the part of the company, though she be a licensee. [Ed. Note. For other cases, see Negligence, Cent. Dig. § 61; Dec. Dig. § 47.*] 2. NEGLIGENCE (§ 126*)-EXCLUSION OF EVI DENCE-DEATH. In an action for the death of plaintiff's decedent due to falling into a pit at a manufacturing plant after dark, evidence concerning directions given her by defendant's watchman when he admitted her to the plant was properly excluded, where it was not shown that the watchman had any authority to admit strangers to the plant after dark. [Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 245-247; Dec. Dig. § 126.*] 3. NEGLIGENCE (§ 33*)—INJURY TO TRESPASSER-LIABILITY. The owner of a manufacturing plant is not liable for injury to a trespasser from falling into an open pit on the premises unless the injury shall have been wantonly and intentionally inflicted. [Ed. Note.-For other cases, see Negligence, Cent. Dig. §§ 45-47; Dec. Dig. § 33.*] 4. NEGLIGENCE (§ 124*)-EXCLUSION OF EVI MOSCHZISKER, J. This case was brought to recover damages for the loss of the life of Isabella Hagan. On the evening of February 12, 1910, at about 7 o'clock, Mrs. Hagan and an adult sister went to the iron and steel mill of the defendant company for the purpose of seeing their father, who was employed there; they knocked at the office door, and some one designated in the testimony as "the watchman" responded; when they inquired for their father, he said, “go ahead down that way and you will find. your pappy"-indicating a direction with his hand. They went in the direction indicated along a paved walk to a point where it led off to the left by a well-defined unpaved path into the active part of the plant where the father was working; at the point in question another path or track led to the right, this latter path being used by certain of the workmen as a way for reaching a pump which was located at the end of the paved walk, and also as a short cut to a part of the works. The night was "pitch dark" and the ground was covered with snow. The decedent had never been in the plant before, and the only light furnished was an occasional glare from the blast furnaces. When the two women reached the pump, instead of going to the left, for some unexplained reason they turned into the right-hand by-path. A little beyond, and to one side of this path, there was a long excavation covered with sectional iron plates; one of these plates was off, and after they had proceeded but a short distance Isabella Hagan stepped into the hole and received injuries which caused her death. The trial judge entered a nonsuit, which the learned court below refused to take off, and the plaintiff has appealed. [1] We cannot see wherein negligence toward the deceased woman was proved; moreover, had she continued on the regular path which led to the active part of the plant, or even had she stayed on the path which she took, the accident could not have happened. As explained by one of her witnesses: "This pit had plates on it. If you kept on the path you would be all right. his own premises and leaves the consequences of an act thereby happening where they belong upon him who has wandered out of his way, though he may have been guilty of no negligence in the ordinary acceptation of the term." "A person using the private property of another by permission or sufferance takes upon himself the incidental risk." Weaver v. Carnegie Steel Co., 223 Pa. 238, 240, 72 Atl. 552 (21 L. R. A. [N. S.] 466), and cases there cited. Hence, if we consider the decedent as a mere trespasser, the rule that "it must appear there was a wanton or intentional injury inflicted" (Gillespie v. McGowan, 100 Pa. 144, 150, 45 Am. Rep. 365) would apply, and there could be no recovery; or, if she be viewed as a licensee, then under the principles just stated no negligence was shown toward her and a nonsuit was properly entered. This girl must have stepped to the right the soil, without malice does a lawful act on three or four feet, because one of these plates was off. That is where we seen her when we looked that night." Counsel for the appellee correctly epitomizes the case in the following excerpt from his paper book: "A woman, for purposes exclusively her own, gained admission, after dark, to the plant of a large and partially unused steel works to find her father, who was a workman employed at the further end of the plant. She was not familiar with the surroundings, and according to her testimony there were no lights. She started down a path, which, if pursued, would have led her in safety to her destination; but she wandered from this path and followed a track in the snow down into an abandoned section of the plant, where she fell off a retaining wall into a deep pit or depression, receiving injuries which caused her death"-and this narrative negatives the plaintiff's right to recover. [2] Although the man who pointed out the general direction which the women were to pursue in order to find their father was called in the testimony "the watchman," there was no evidence to show what his duties were or to indicate that he had authority to admit strangers to the plant after dark, and for that reason, toward the end of the trial, the presiding judge struck out all the testimony concerning his declarations at the time he admitted the decedent; since the plaintiff failed to produce any evidence from which the authority of the so-called watchman could be found, either directly or impliedly, we cannot say that error was committed in striking out the testimony in question. With these proofs out of the case, the deceased woman was but a trespasser, or, should we view the matter as though the testimony was still upon the record, she was at most no more than a licensee; and from either point of view no negligence toward her was shown. [4] But the appellant contends that certain testimony offered for the purpose of showing that outsiders were permitted in the defendant's plant at night should have been admitted. The material part of this assignment shows the following question put to one of the workmen in the defendant's plant, and the ruling thereon: "Q. Do you or do you not know whether or not people outside of the employés at nighttime were permitted to go through and around these works where this path was?" This was objected to, the objection was sustained, and an exception was granted to the plaintiff. The trial judge had previously given counsel for the plaintiff permission to show that the witness saw people using the paths in question, and many of the witnesses did tell of the uses made of these ways; but there was no claim or contention that the deceased had knowledge of or relied upon the fact apparently sought to be shown (i e., that these paths were open ways in general use by outsiders). The plaintiff did not take the position that the decedent had been misled to her injury by depending upon such knowledge and assuming that the paths would be guarded accordingly; on the contrary, the claim was that she had no familiarity whatever with the plant. Under the circumstances, we do not see that error was committed in the rul ing complained of. The assignments are all overruled and the judgment is affirmed. [3] "Invitation is inferred where there is a common interest or mutual advantage, while a license is inferred where the object is the mere pleasure or benefit of the party using it." Curtis v. De Coursey, 176 Pa. 446, 450, 35 Atl. 183. There is nothing in the evidence to indicate that the opening through which the deceased fell was unnecessary to the operation of the plant or that under ordinary circumstances it constituted an unusual danger. In the nature of things, a large industrial establishment of this kind is always beset with dangers of the character MARSHALL v. LEHIGH VALLEY R. CO. of this opening, made necessary by the work pursued; and as expressed by the present (Supreme Court of Pennsylvania. Chief Justice in Thompson v. B. & O. R. R. Co., 218 Pa. 444, 448, 67 Atl. 768, 769 (19 L. R. A. [N. S.] 1162, 120 Am. St. Rep. 897, 11 Ann. Cas. 894): "The law fully recognizes the right of him, who, having dominion of et al. 1913.) (240 Pa. 272) March 31, 1. APPEAL AND ERROR ($ 1053*)-HARMLESS judge stated that he would admit such evidence | disclosed by his remarks at the time, and as a matter of description of the place but rejected this testimony, it would not have would not allow a recovery for negligence of the railroad in maintaining an incompetent watchman, which was not alleged. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4178-4184; Dec. Dig. 8 1053.*] 2. APPEAL AND ERROR (§ 237*)-OBJECTION BELOW-MOTION TO STRIKE UNRESPONSIVE ANSWER. The trial court's failure to exclude an answer which was not responsive to the question cannot be reviewed where no motion was made to strike out such answer. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 13022; Dec. Dig. § 237.*] 3. RAILROADS (§ 348*) FRIGHTENING ANIMALS-ACTION FOR PERSONal Injury-SuFFICIENCY OF EVIDENCE. Evidence, in an action for injuries from a horse becoming frightened by a hand car at a railroad crossing, held to sustain a finding that the horse had recovered from a previous fright otherwise occasioned and was under plaintiff's control before the hand car approached, and that the car was so operated as to frighten the animal. [Ed. Note. For other Cent. Dig. §§ 1138-1150; 4. RAILROADS (§ 305*) IMALS-LIABILITY. cases, see Railroads, Dec. Dig. § 348.*] FRIGHTENING AN Where a horse is frightened by the negligent operation of a hand car at a crossing, the railroad company is liable for the consequential damages, though the horse has just recovered from a previous fright otherwise occasioned. [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 968-971; Dec. Dig. § 305.*] 5. RAILROADS (§ 350*) FRIGHTENING ANPROXIMATE CAUSE QUESTION FOR IMALS JURY. Where, in an action for personal injuries due to a horse becoming frightened by a hand car at a crossing, the evidence was conflicting on whether the horse was frightened by the hand car or had merely not recovered from another fright otherwise occasioned, the question of proximate cause was for the jury. [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.*] Appeal from Court of Common Pleas, Bradford County. Action by L. G. Marshall against John F. Dolan and another. From judgment for plaintiff, defendant Lehigh Valley Railroad Company appeals. Affirmed. Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, and STEWART, JJ. Edwin P. Young, of Towanda, for appellant. D. C. De Witt, of Towanda, for appellee. been error. As he pointed out, the negligence averred in the statement was not employing an incompetent watchman, but the reckless and careless handling of the hand car by the defendant's employés. In this view of the case the incompetency or age of the watchman, as properly suggested by the learned counsel of the defendant company, was immaterial and did not affect the issue raised by the pleadings. We do not think, however, that the testimony did the defendant any harm in view of the remarks of the learned judge in admitting it that he would permit the plaintiff to show there was a watchman and a description of him, "as a matter of description of the place there and situation," but would not allow a recovery "for the negligence of the railroad company in maintaining an incompetent watchman." The learned court further said in admitting the testimony: "We see no objection to your stating that there was a watchman there, and who he was-anything to describe him in reference to the location there-but to show his incompetency, that is a specific act of negligence on the part of the company apart from the operation of this car." [2] The court instructed the jury very fully as to the measure of damages to which there was no exception taken by the appellant company. It complains, however, that the learned court erred in permitting a reply to the question put to the plaintiff by his counsel as to how he would estimate the amount of business that he had had an opportunity to do which he could not do by reason of the condition of his injured limb. The witness replied that he could only do so by estimation, and then was asked, "Well, how would you estimate that?" And the answer was "$500 a year." This answer was not responsive to the question and might have been stricken out on motion of counsel. It is not a ground for reversing the judgment. [3] From the evidence it appears that on the morning of August 21, 1906, the plaintiff drove along the public road leading from Towanda to a place called Wysox. As he approached the intersection of the highway with the defendant company's railroad tracks and was turning to the right on a road leading to the fair grounds, his horse became frightened by the escape of steam from an engine, operated by one Dolan, an MESTREZAT, J. This is an action of trespass to recover damages for injuries to the plaintiff, his horse and buggy, which he alleges were caused by the reckless and neg-independent contractor under the defendant ligent operation of a hand car on the defendant's road. [1] The first eight assignments allege error in the admission of certain testimony relating to the watchman at the crossing where the accident occurred. Had the learned trial judge followed his inclination, as company, and one of the traces was broken. The driver turned the horse in the opposite direction and drove back to the watchhouse, near the intersection of the highway with the defendant's tracks, and alighted to fix the broken trace. While he was repairing the trace, a hand car on the defendant's sponsible for the injuries which resulted to road approached the crossing from the north | told the jury, the defendant was not reat a rapid and reckless speed, frightened the horse, which got beyond the driver's control, and ran over the crossing and injured the plaintiff, the buggy, and the horse. The evidence, if believed, disclosed the fact that the plaintiff, seeing his danger, signaled the employés operating the approaching car, who were in full view of him, to stop or slacken the speed of the car, and that they disregarded the signal and passed the crossing at the same rapid speed. On the trial of the cause the plaintiff contended that the horse was over his fright caused by the escaping steam from the Dolan engine and was under his control when the hand car came in sight, and that by reason of the reckless and improper operation of the car the horse again became frightened and caused the injury complained of. The defendant's contention, on the other hand, is that the horse was frightened by the operation of the engine by Dolan, the independent contractor, and that this fright continued and was cause of the plaintiff losing control of the (Supreme Court of Pennsylvania. animal and of the subsequent injury to the plaintiff and his property. The court submitted to the jury to determine what was the cause of the accident, whether it was the fright of the horse caused by the steam escaping from Dolan's engine or whether it was from the negligent operation of the defendant's hand car. the [4] The learned judge instructed the jury that, if the injury was caused by the fright of the horse from Dolan's engine, there could be no recovery against the defendant, but that, if after being frightened by the steam escaping from the engine the horse was over the fright and under control of the plaintiff and was subsequently frightened by the negligent operation of the defendant's car, the defendant would be liable. This was a correct exposition of the law of the case. 33 Cyc. 795, 797. There was sufficient evidence to warrant the jury in finding that the horse was over his first fright, caused by the escaping steam, and was under the control of the plaintiff before the hand car approached the crossing, and that the car was operated in such a way as to frighten the animal. That was the important and controlling question in the case, and it was submitted in a charge to which no error has been assigned. [5] It is quite true that where the facts are undisputed the question of the proximate cause is for the court. But that rule can have no application here. As pointed out above, the facts were in dispute and the evidence was conflicting as to what caused the frightening of the horse which resulted in the plaintiff's injuries. If after the horse was first frightened by the steam escaping from Dolan's engine he continued unruly and beyond the control of the plaintiff until the accident happened, then, as the court (240 Pa. 83) In re SHEAFFER'S ESTATE. 1913.) March 24, 1. WILLS (8 288*)-PROBATE-PRESUMPTION. Where testator told where the will could be found, and requested that his executor be informed of its location, and the executor found it locked up in a box at the place stated, with the first page missing, the legal presumption was that testator removed the first page. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 651, 652, 662, 664; Dec. Dig. § 288.*] 2. WILLS (§ 170*) — REPEAL INTENTION OF TESTATOR. While a will may be repealed by acts done upon it that do not physically completely destroy it, such acts must under the express provisions of Act April 8, 1833 (P. L. 250) § 13, be done with intention to cancel the will. Dig. 88 438, 441; Dec. Dig. § 170.*] [Ed. Note.-For other cases, see Wills, Cent. 3. WILLS (§ 290*)-REPEAL-MUTILATION. Where testator, after removing the first page of his will, views and refers to the remaining part as his will, and states where it may be found, and instructs that the executor dessufficient to rebut the inference that he inignated therein be told of its location, this is tended to repeal his entire will by removing the page. [Ed. Note.-For other cases, see Wills, Cent. Dig. § 663; Dec. Dig. § 290.*] 4. WILLS (8 306*)-ADMISSION TO PROBATEMUTILATED PAPER-WITNESSES. It is not necessary to the admission to probate of a will having the first page removed that two witnesses be produced to show that, after testator removed such page, he republished the will, but the presumption of an intention to revoke may be overcome by any evidence negativing such purpose. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 732, 733; Dec. Dig. § 306.*] 5. WILLS (§ 428*)-ADMISSION TO PROBATEMUTILATED PAPER-ENFORCEMENT. Where a will with the first page missing is admitted to probate, questions as to whether all its provisions are enforceable, in view of the destruction of such page, are matters to be considered in later proceedings. [Ed. Note.-For other cases, see Wills, Cent. Dig. § 917; Dec. Dig. § 428.*] For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes Appeal from Orphans' Court, Chester | the paper, but rather an acquiescence in the County. In the matter of the estate of John Sheaffer, deceased. From a decree dismissing appeal from register of wills, Amanda S. Leaman and another appeal. Affirmed. Butler, J., filed the following opinion in the orphans' court: [1] "It is practically conceded and the evidence demonstrates that on the 13th day of April, 1908, the deceased regularly and legally executed a testamentary paper in the presence of two competent subscribing wit nesses; that he then made a will valid and sound in every detail, and the opposition to its probate rests not at all on any question touching its original validity, but exclusively upon the fact that when viewed immediately after the deceased's death the first page, which contained some testamentary dispositions, was missing. The paper names Abram Herr as sole executor and was found by him locked up in the box of a buggy, where the deceased, shortly before his death, stated the paper would be found. The legal pre sumption arises and prevails that the deceased removed the first page of the paper. [2] "We start then with a valid will, duly executed as to every word and line of its contents, and it is now the deceased's will unless his removal of the first page subsequently to its execution is to be interpreted as its repeal. Under section 13, Act of April 8, 1833 (P. L. 250), this will is not repealed unless it was the testator's intention to repeal it, and in Evans' Appeal, 58 Pa. 238, it is decided that, while a will may be repealed by acts done upon it that do not physically completely destroy it, the court there say: 'Undoubtedly it must be an act done to the will itself, and it must be done animo cancellandi.' [3] "If standing alone, deceased's removal of the first page of his will-leaving the balance, inclusive of his duly attested execution, intact-would warrant an inference that he intended to repeal his entire will, to cancel this remaining part which he had retained under lock, such inference would be answered and overcome by the fact fully and convincingly proved that after he had removed the first page of the paper he viewed and referred to the remaining part as his will, telling his daughter-in-law that he believed he would not get well, that his will would be found in the buggy box, the key of which was in his little pocketbook, and that she should tell Mr. Herr, who would attend to the matter. The evidence shows that after this conversation, owing to his infirmity and removal to the hospital, the deceased in all probability had no opportunity to reach the will and remove the first page. We see no reason to doubt the truthfulness of the daughter-in-law, nor indeed of any of the witnesses, for there has view that it was valueless. Our case is, in principle at least, similar to In re Pomeroy, 1 Berks County Law Journal, 331, where the will had been much mutilated by the testatrix, all of the dispositive portions of the codicil having been torn off, and the testatrix had made statements relative to the location of the paper, etc., indicating her recognition of it as her will. Judge Bland says: "There is no question that the will in this case was well executed, with all the formal requisites prescribed by the statute. * It is always competent to show in cases of this character the actual intention, where such acts are done by a testator, and that the intention implied by the physical of evidence to the contrary, the writings having been in the possession of the decedent, the presumption is that she mutilated them for the purpose of revoking the dispositions contained in the removed part. The presumption goes no further.' Appeal, 15 Pa. 281, 53 Am. Dec. 597, the acts did not in fact exist. In the absence court say: of it.' In Wikoff's "The very case which the appellant would establish was ruled in Sutton v. Sutton, 2 Cowp. 812, in which it was held that a will may be good in part though other parts of it may have been obliterated by the testator subsequent to the execution In Tomlinson's Estate, 133 Pa. 245, 19 Atl. 482, 19 Am. St. Rep. 637, after testator's death, his will was found in a locked drawer, the key to which, shortly before his death, he had given to a relative, with instructions to deliver it to the executor. Subsequently to the execution of the will lines had been drawn through seven of the bequests, and the circumstances present raised the presumption that this had been done by the testator. The execution of the will was regularly proved. The paper as thus changed by the testator was held to be his will. In this cast the auditor before whom the questions involved came, in the first instance, says: 'It cannot be held that the cancellation or obliteration, if such it be, of these bequests, operated as revoking the entire will, but, if a revocation, it had only that effect upon the particular bequests themselves. A revocation by obliteration may be either partial or total; where a pen is drawn over part of a will only, a revocation is effected pro tanto and the unobliterated portions remain in force.' Jarmon on Wills, 291. In Cook's Estate, 5 Clark 1, the court cites Roberts v. Round, 3 Hagg. Ecc. 548, which held that when the first part of a will had been mutilated, and different parts cut out, Sir John Nicholl, carrying out the principle says: "This mutilation of the first part, leaving the signature untouched, would not be a total revocation; it would be a revocation of these parts of the devises only.' In Burns v. Burns, 4 Serg. & R. 295, it is |