Jones v. Bangs.

issue as occasion may require, had no authority to insert a clause that a note shall bear "interest at ten per cent after maturity," without a bargain to that effect by the indorsers, notwithstanding the fact that though the legal rate of interest was six per cent, ten per cent might be recovered if agreed upon in writing.

In Craighead v. McLoney, 99 Penn. St. 211, a joint and several promissory note was executed and delivered by two co-promisors payable one day after date. Subsequently, with the consent of one of the makers, but without the knowledge or consent of the other, the payee inserted into the note the words "at eight per cent interest." Suit being afterward brought upon said note by the payee against the maker who had not consented to the alteration, held, that the alteration was a material one and avoided the note as to the defendant.

SHARSWOOD, C. J., said: "There is a wilderness of cases in the books on the subject of the alterations of notes and other instruments of writing, through which it would require much time and labor, and great ingenuity, for any one to thread his way. Of course they are not all consistent and easily reconciled. Fortunately, it is not required of us to attempt this task in the present case. Perhaps a key to this variety and want of harmony may be found in the remark of Mr. Chief Justice THOMPSON, in Kountz v. Kennedy, 63 Penn. St. 190; 8. C., 3 Am. Rep. 541: There is no subject in the books which has occupied a much larger share of attention than questions of the alteration of writings. but after all that has been said, each case must stand much more on its own facts than upon the rules announced in any given case.' My own opinion is, that the courts have gone far enough in permitting writings to be tampered with.

"It appears to be settled however that an alteration entirely immaterial, which places no responsibility on the parties, to which they were not subject before the change, does not vitiate the instrument. Its identity remains. The difficulty has been always in determining what is or what is not material. It is evident, that any tampering with the instrument which imposes upon the party a burden or a peril, which he would not else have incurred, is an injury to him, and therefore material. It is a mistake to infer that whether the pecuniary liability is increased or the time of payment changed is the test. In these respects the party may be no worse, yet his rights and remedies on the instrument may be seriously affected. Wherever this is so, it does not matter that the alteration was entirely honest, and with no fraudulent intent. This will be often found to be the case, where the note or instrument has been executed by several parties. But it may be in other instances, as where attesting witnesses have been added to an instrument after execution. Marshall v. Gougler, 10 S. & R. 164. An alteration of the date of a promissory note by the payee, whereby the time of payment is retarded, avoids the note. Stephens v. Graham, 7 S. & R. 505. We might multiply cases of this type, where the amount of the pecuniary responsibility remained unchanged. Wherever therefore a note or instrument is executed by two or more parties, any alteration in it, without the consent of all, renders the recourse of the party who has not assented more difficult and expensive. In the case in hand, when Craighead, if compelled to pay the note, comes to pursue his remedy

Manufacturing Company v. Morrissey.

against his co-promisor, either for indemnity or contribution, as the case may warrant, it will not be enough to produce and prove the note. He must account for the alteration apparent on its face. He must show that it was made with Haines' consent. It is clear then that the alteration was material to him. So if Craighead had been sued in some other State, he would have to show that the note was executed in Pennsylvania, and that by the law of this State only six per cent could be recovered upon it. In short, as Mr. Parsons has briefly and well stated it in his treatise on Promissory Notes, p. 582: 'Any alteration which changes the evidence or mode of proof is material.' "These considerations are sufficient to dispose of this case without adverting to the fact, that by the alteration one day's additional interest was actually imposed on the defendant. It is no answer to say that this day's interest was

not demanded or received, or to plead the maxim de minimis non curat lex. In Stephen v. Graham, supra, and in Kennedy v. Lancaster County Bank, 6 Harris. 347, the payment of the note was retarded by the alteration of the date only a single day.

We think therefore the learned court below erred in holding the alteration in this case immaterial and in so instructing the jury

Where the servant of a manufacturing company is employed upon defective machinery, and notifies the foreman of the defect, and he promises to have it repaired, it is not necessarily negligent for the servant to continue to use the machinery in its defective condition.*

A

CTION for personal injury by negligence. The opinion shows the facts. The defendant had judgment at trial, which was reversed by the District Court.

W. A. Collins and George R. Haynes, for plaintiffs in error.

Pratt & Wilson, for defendant in error.

DICKMAN, J. There is no evidence that there was any carelessness on the part of Morrissey the defendant in error, in his mode of operating the machine through whose defects he was injured. On the morning of his injury—from the time of his commencing * See Greene v. Minneapolis, etc., Ry. Co. (31 Minn. 248), 47 Am. Rep. 785.

Manufacturing Company v. Morrissey.

work up to and at the time he was injured- he ran the machine much slower than usual on account of its bad condition and in order to avoid being hurt. The contributory negligence imputed to him consisted in his knowing that the part called the "jointer" was out of repair and could not be safely used, and in thereafter remaining in the service of the company and continuing to operate that portion of the machine. For that reason the court below took the case from the jury and directed a verdict for the company. The question of contributory negligence on the part of the plaintiff is generally a mixed question of law and fact; but it is only when the facts are beyond dispute and admit of no rational inference but that of negligence, that the court has the right to apply the law without the aid of a jury. The defendant in error while in the employment of the company was under the supervision and direction of a foreman, whose duty it was to manage and control the workmen and see that the machinery was kept in good order and repair. As soon as Morrissey discovered that the part of the machine upon which he was working was in a condition unsuitable for use, he complained of the same to the foreman, who promised him that the defects in the machine should be remedied and ordered him to continue at his work. He thereupon began work at once at the jointer, and in a short time thereafter was injured through its defects, before any steps were taken to remedy them. As a fact which was taken to be beyond dispute the court charged the jury that the company was guilty of gross negligence. But the court, in view of another fact beyond dispute, viz.: that Morrissey worked at the machine with knowledge of its defective condition, evidently considered it a settled principle that such knowledge was as matter of law conclusive of contributory negligence on his part, and ignored the importance of other material questions of fact not beyond dispute which might tend to qualify or limit the legal effect of such knowledge, and which should have been submitted by the court to the consideration of the jury. After the promise made to Morrissey himself by the foreman that the jointer should be "fixed," and after hearing the foreman promise the same thing two weeks before to another workman, it became a material question of fact for the jury to determine, under proper instructions from the court, whether Morrissey after acquiring such knowledge continued such a length of time in the service of the company as to constitute a waiver on his part of the defects in the machine. Whether he

Manufacturing Company v. Morrissey.

afterward remained in the employment of the company because of his reliance on the promise of the foreman to put the jointer in repair, and whether the jointer was out of repair to such an extent that a man of ordinary care would not continue to use it even after a promise to put it in good repair, were also questions of fact which should have been left to the determination of the jury under proper instructions from the court. But it could not, in order to take the case from the jury, be said with reason that knowledge alone of defects in the machinery and continuing to use the same, as matter of law, admitted of no rational inference but that of negligence, when such knowledge is taken in connection with the fact that Morrissey complained to the foreman of the defects and received from him a promise that they should be remedied.

The court below applied the doctrine in all its latitude without any qualification in the light of other facts and circumstances of the case, that if one knowingly and voluntarily exposes himself to danger by using dangerous machinery, he cannot be said to be without any fault or negligence on his part and therefore cannot recover for injuries suffered by him in consequence. That a knowledge of the unsafe condition of the machinery used is a most important element in determining the question of contributory negligence there can be no doubt. Alone and unexplained it may under some circumstances be conclusive that the injured party was willing to assume the attendant risks, and waive all objections to the defects that rendered the machinery hazardous. But such knowledge on the part of one induced to remain in the service of an employer by a promise to remove the cause of danger is not of itself in point of law an answer sufficient to exonerate a defendant, who has omitted to supply machinery that is safe and proper. Relying upon such inducement held out by their employers, the most prudent workmen will often take risks, not merely on account of their own necessities, but in consideration of their employers whose interests require their continued service. Under such circumstances, the weight of authority is in accord with the language of WILLES, J., in Holmes v. Worthington, 2 Fost. & Fin. 533: "If the defendants knew of the defect and undertook to repair it and the plaintiff went on working, relying on their repairing it, then they may be liable. If the plaintiff complained of the defect, and the defendants promised that it should be remedied, he is not to be deprived of his remedy, merely because relying on their promise he remained in their employment."

Manufacturing Company v. Morrissey.

work up to and at the time he was injured-he ran the machine much slower than usual on account of its bad condition and in order to avoid being hurt. The contributory negligence imputed to him consisted in his knowing that the part called the "jointer" was out of repair and could not be safely used, and in thereafter remaining in the service of the company and continuing to operate that portion of the machine. For that reason the court below took the case from the jury and directed a verdict for the company. The question of contributory negligence on the part of the plaintiff is generally a mixed question of law and fact; but it is only when the facts are beyond dispute and admit of no rational inference but that of negligence, that the court has the right to apply the law without the aid of a jury. The defendant in error while in the employment of the company was under the supervision and direction of a foreman, whose duty it was to manage and control the workmen and see that the machinery was kept in good order and repair. As soon as Morrissey discovered that the part of the machine upon which he was working was in a condition unsuitable for use, he complained of the same to the foreman, who promised him that the defects in the machine should be remedied and ordered him to continue at his work. He thereupon began work at once at the jointer, and in a short time thereafter was injured through its defects, before any steps were taken to remedy them. As a fact which was taken to be beyond dispute the court charged the jury that the company was guilty of gross negligence. But the court, in view of another fact beyond dispute, viz.: that Morrissey worked at the machine with knowledge of its defective condition, evidently considered it a settled principle that such knowledge was as matter of law conclusive of contributory negligence on his part, and ignored the importance of other material questions of fact, not beyond dispute which might tend to qualify or limit the legal effect of such knowledge, and which should have been submitted by the court to the consideration of the jury. After the promise made to Morrissey himself by the foreman that the jointer should be "fixed," and after hearing the foreman promise the same thing two weeks before to another workman, it became a material question of fact for the jury to determine, under proper instructions from the court, whether Morrissey after acquiring such knowledge continued such a length of time in the service of the company as to constitute a waiver on his part of the defects in the machine. Whether he