This was objected to by Mr. Chaytor, counsel for plaintiffs, as immaterial, who contended that the defendant company was not lawfully in the street, not having complied with the general corporation law (Laws 1901-1903, p. 758, c. 394), providing for an additional deposit with the State Treasurer and the filing of a survey with the Secretary of State, where a railway company builds a branch of its main line. Mr. Richards, for the defendant, replied, contending that for the purpose of straightening a track, as this was, it was not required of the defendant under the general corporation law to deposit money or file a survey. LORE, C. J. This was not a branch. It was a straightening of a loop. It did not increase the mileage, requiring an additional deposit, or anything of that kind; but it diminished the mileage already covered by the deposit, if any there be. We do not think your objection is tenable, but think the testimony is admissible. The witness thereupon replied that the bid of William H. Quigg and the acceptance were in writing. Said bid or proposition, in the form of a letter to the railway company, also the acceptance, were then identified by the witness, and offered in evidence by Mr. Richards. a specific piece of work, furnishing his own assistants, and executing the work, either entirely in accordance with his own ideas. or in accordance with a plan previously giv en to him by the person for whom the work is done, without being subject to the orders of the latter in respect to the details of the work, is an independent contractor, and not a servant. 26 Cyc. 970. As an exception to the above rule, it has been held that a corporation cannot delegate its chartered rights, privileges, and franchises by contracting with another to exercise them, and thereby relieve itself from liability for the negligence of contractor's servants in attempting to exercise such chartered rights, privileges, and franchises. This exception, however, does not apply to contracts by railway companies for the construction and repair of their roads. Thompson on Negligence, §§ 626, 627, 628, 671; Nellis on Street and Surface Railroads, p. 275; Nellis on Street Railway Accident Law; Clark on Street Railway Accident Law; Atlanta v. Kimberly, 87 Ga. 161, 13 S. E. 277, 7 Am. St. Rep. 231; Rogers v. Florence, 31 S. C. 378, 9 S. E. 1059; McCann v. Railway Co. (City Ct.) 19 N. Y. Supp. 668; Miller v. Minnesota, etc., 76 Iowa, 655, 39 N. W. 188, 14 Am. St. Rep. 25; Sanford v. Pawtucket, 19 R. I. 537, 35 Atl. 67, 33 L. R. A. 564; Hauser v. Railway Co., 27 Misc. Rep. 538, 58 N. Y. Supp. 286; ThomThe same were objected to by Mr. Chaytor, as v. Altoona, 191 Pa. 361, 43 Atl. 215; Edcounsel for plaintiffs, as immaterial, because mundson v. Railway, 111 Pa. 316, 2 Atl. 404; the principal cannot relieve itself from lia- Railway v. McConnell, 87 Ga. 756, 13 S. E. bility by the employment of an independent 828; Eaton v. Railway, 59 Me. 520, 8 Am. contractor when, in doing the acts complain-Rep. 430; Tibbetts v. Knox, 62 Me. 437; ed of, the contractor is exercising a franchise granted to the principal. 1 Thompson on Negligence, §§ 669, 670, 672; Chicago, etc., R. Co. v. McCarthy, 20 Ill. 385, 71 Am. Dec. 285; Chicago, etc., R. Co. v. Whipple, 22 Ill. 105; Rockford, etc., R. R. Co. v. Wells, 66 Ill. 321; West v. St. Louis, etc., R. Co., 63 Ill. 547; Lowell v. Boston, etc., R. Co., 23 Pick. (Mass.) 24, 31, 34 Am. Dec. 33; Hilliard v. Richardson, 3 Gray (Mass.) 349, 352, 63 Am. Dec. 743; Balsley v. St. Louis, etc., R. Co., 119 Ill. 68, 71, 8 N. E. 859, 59 Am. Rep. 784; Chattanooga, etc., R. Co. v. Whitehead, 89 Ga. 190, 15 S. E. 44; Lesher v. Wabash Nav. Co., 14 Ill. 85, 56 Am. Dec. 494; Anderson v. Mayor and Council, 8 Houst. 516, 19 Atl. 509. Robert H. Richards, for defendant: It is a general rule that one who has contracted with a competent and fit person, exercising an independent employment, to do a piece of work not in itself unlawful, or of such a nature that is likely to become a nuisance or to subject third persons to unusual danger, ac cording to the contractor's own methods, and without being subject to control except as to the results of his work, will not be answerable for the wrongs of such contractor, his subcontractors, or his servants, committed in the prosecution of such work. Thompson on Callahan v. Railway, 23 Iowa, 562; Charlebois v. Railway, 91 Mich. 59, 51 N. W. 812; McCafferty v. Railway, 61 N. Y. 178, 19 Am. Rep. 267; Scarborough v. Railway, 94 Ala. 497, 10 South. 316; Hackett v. Western Co., 80 Wis. 187, 49 N. W. 822; Powell v. Construction Company, 88 Tenn. 692, 13 S. W. 691, 17 Am. St. Rep. 925; Railway Company v. Willis, 38 Kan. 330, 16 Pac. 728; Schular v. Railway, 38 Barb. (N. Y.) 653; Larock v. Railway, 26 Hun (N. Y.) 382; Railway Company v. Chasteen, 88 Ala. 591, 7 South. 94; Reedy v. Railway Company, 4 Exch. 244; Hughes v. Railway Company, 15 Am. & Eng. Ry. Cas. 100; Hobbett v. Railway Company, 4 Exch. 253, 6 Hurlst. & N. 488-490; Cunningham v. Railway Company, 51 Tex. 503, 32 Am. Rep. 632; Railway v. Yonley, 53 Ark. 503, 14 S. W. 800, 9 L. R. A. 604. The court sustained the objection and refused to admit the said bid in evidence, or the acceptance thereof, as immaterial, but subsequently allowed the defendant, over objection, to prove that the work in question was actually done by said William H. Quigg, and that the rail which caused the injuries complained of was being moved by one Michael Donoho, a' teamster of Wilmington, and a subcontractor under the said William H. LORE, C. J. (charging the jury). Thomp-| fully warned of the danger of the crossing son F. White and Ala Willda White, his and advised not to take the risk by workmen wife, the plaintiffs in this action, seek to re- of the contractor there employed at the time. cover damages for injuries which they allege We will say to you, gentlemen, that the right the wife sustained by reason of the negli- of the plaintiff to recover in this action rests gence of the People's Railway Company, the upon the negligence of the defendant comcorporation defendant. The plaintiffs allege pany. The burden of proving such neglithat on the 13th of April, 1905, the defend-gence is upon the plaintiff. Therefore, if ant, in the construction of its electric rail-you should find from the evidence that there way, was moving certain heavy steel rails by horse power, at Shallcross avenue and Lincoln street, in this city; that when the said wife, who was lawfully crossing said Shallcross avenue, was in the act of stepping over one of the rails lying upon the street crossing, the said rail was suddenly moved by the defendant's servants, without warning, so that it fell upon her left foot, which was thereby greatly mashed and bruised. The defendant resists this claim upon several grounds. was no negligence upon the part of the company, its contractor, agents, or servants, at the time of the accident, your verdict should be for the defendant. Another defense set up by the defendant is that the plaintiff herself was guilty of contributory negligence. It is claimed that the rail by which Mrs. White was injured was moving at the time she attempted to step over it, that the danger was open and apparent, that she either saw, or by the reasonable exercise of her senses should have seen The first defense is that the negligence, if and avoided, the danger, and that in attemptany there was, which caused the injury, was ing to cross under such conditions she took the negligence of an independent contractor, the risk and cannot recover. In the lawful who was constructing that part of the rail- use of the streets of the city, a pedestrian way of the defendant company; that for the is not bound to hunt for latent obstructions negligence of such independent contractor or dangers. He may fairly presume that they the defendant is not liable. You should note, are in a reasonably safe condition for use, in gentlemen, that at the time of the accident the absence of any knowledge to the conan electric railway was being constructed trary. If, however, he knows of the existon Shallcross avenue, a public highway of ence of the danger, or under the circumstanthis city, and that said railway was being ces ought to know of it, and with such knowlconstructed by virtue of the license or fran-edge voluntarily runs into the danger, he chise which had been granted to the defend- assumes all risk of such conduct. Should ant company. The company had a right to construct such railway by its own immediate employés, or to let it out to contractors to construct for them, leaving such contractors to employ their own servants and take their own methods in the execution of the work. Such construction of the railway was the exercise of a vital part of its franchise, and even if the work was done by such a contractor in the employ of the company, whether he be called an independent contractor or otherwise, the company would be liable for injuries resulting from the negligence of such contractor and any and all of his servants and employés. The law will not permit the company to shield itself from liability for such negligence behind any such alleged independent contractor. In such work, in law, he would be the agent of the company. If you should be satisfied, therefore, from the evidence in this case, that the injuries complained of by the plaintiff resulted from the negligence of such contractor, or persons working under him as subcontractors, servants, or employés, alone, you should find for the plaintiff. The defendant resists upon the further ground that neither it nor its contractors, servants, or employés were guilty of any negligence. It claims that Mrs. White was you, therefore, be satisfied from the evidence that Mrs. White was fully apprised of the danger in this case, or in the exercise of reasonable care ought to have known of it, and with such knowledge attempted to cross the rail, she would be guilty of contributory negligence, and cannot recover, if such negligence was the proximate cause of the injury. We have been asked to direct you to return a verdict for the defendant. This we de cline to do. We think this case should not be determined by the court upon the law, but should be determined by the jury upon the facts of the case submitted in evidence under the charge of the court as to the law. It is for you to say, after full consideration of all the evidence, whether your verdict should be for the plaintiffs or for the defendant. should be for such sum of money as will reaIf you should find for the plaintiffs, it sonably compensate them for the pain and suffering of the wife in the past, and such of the injuries complained of, and for such as may come to her in the future, by reason permanent disability as may result therefrom, and also for money paid and laid out by her, if any, for medicine, medical attendance, and in procuring labor to do the work she herself would otherwise have performed. Verdict for defendant. (223 Pa. 598) In re WALTERS' ESTATE. (Supreme Court of Pennsylvania. March 1, 1909.) WILLS ( 865*)-CONSTRUCTION-SPENDTHRIFT TRUST-ACCUMULATIONS-INTESTACY. A will created a spendthrift trust in favor of testator's son. The trustee was directed either to pay the income to the son, or to use the same for his support as the trustee might deem best during his life, with remainder over to testator's next of kin if the son should die without leaving children or their issue. The son died intestate without leaving issue, leaving a large amount of income in the hands of the trustee. Held, that there was an intestacy as to the accumulations and they went to the son's administrator. Ichildren or their issue then I give, devise and bequeath all the said trust residuary estate remaining to such person or persons being my next of kin as would be entitled to take from me in case I had died intestate and without issue under the intestate laws of Pennsylvania and to their heirs and assigns forever." Noah D. Walters died October 30, 1906, unmarried, intestate, and without issue, be ing at the time of his death a resident of Cecil county, Md. Letters of administration in that jurisdiction were granted to Louis R. Walters. Upon the death of Noah D. Walters, the Fidelity Trust Company, trustees under the will, filed an account showing sep [Ed. Note.-For other cases, see Wills, Cent. arate items of balance, to wit, the corpus of Dig. § 2197; Dec. Dig. § 865.*] the trust estate amounting to $52,828.29, and Appeal from Orphans' Court, Chester the accumulations of unexpended income County. In the matter of the estate of George Walters, deceased. From a decree sustaining exceptions to auditor's report, Emma J. Keeler appeals. Affirmed. From the auditor's report it appeared that on May 23, 1881, George Walters made his last will, which was probated on March 25, 1885, wherein he provided, inter alia, as follows: "Fifth. I give, devise and bequeath all the rest, residue and remainder of my estate of every kind and wherever situated unto the Fidelity Insurance Trust & Safe Deposit Company of Philadelphia, their successors and assigns: In trust nevertheless to hold and keep the personal estate invested in the same securities in which it may be at the time of my decease, with full power and authority at any time in their discretion to call in, sell or change and re-invest the same; and to collect the interest, dividends and income thereof, and to lease my real estate and to collect the rents and profits thereof, and to pay over the net rents and profits, interest and income of my said residuary estate in their discretion either to my son Noah D. Walters on his own receipt or order, or to use the same for his support and maintenance in such way as they may deem proper during all the term of his life; so that the said income of said residuary estate shall not be liable for any of the debts, contracts or engagements of my said son, or to any writ or process of attachment or otherwise and be always an inalienable provision for my said son. And upon and after the decease of my said son I give, devise and bequeath all the said trust estate that may be remaining unto the child or children of my said son who may survive him, their heirs, executors, administrators and assigns and in the event that any of the children of my said son should die before him leaving issue, I direct that such issue shall take their respective parent's shares. And in the event of the death of my said son without leaving amounting to $37,823.92, and the account was referred to Thomas W. Pierce, Esq., for distribution. The son, to whom the income was payable at the discretion of the trustees, either to him personally "or to use the same for his support or maintenance in such way as they may deem proper, during all the term of his life," was of frugal and economical habits, and during the 19 years the trust continued the payments made to him, or for his account, averaged about $1,000 per year, while the income amounted in the earlier years to twice, and in the later years to more than three times, that amount. The auditor awarded both the corpus and this accumulated income to the next of kin of George Walters, the testator, which award the court below, upon exceptions filed by the appellees, modified by directing the auditor to distribute the accumulated income to the administrator of Noah D. Walters, the testator's son. The opinion by Butler, J., was as follows: "Assuming what must be the fact in order to avoid the application of the act of April 18, 1853 (P. L. 503), that the testator did not intend to accumulate and add to the principal of the trust any of the accruing income, it follows that neither in his disposition of the principal fund, nor elsewhere in his will, can he have sought to dispose of any of the accumulated income, beyond its use for Noah's benefit under the trust. Therefore the testator must be taken to have died intestate with respect to the accumulation which the auditor distributed. "There cannot be an intent to accumulate beyond the prescribed limits in order to increase the corpus of the estate, or of a trust fund carved out of it, which is not an unlawful intent. When by chance or design the income is increased to an amount in excess of present demands, the surplus is retained only in order to provide for future deficiences. The intent to provide for these contingencies within reasonable limits may be sustained, but the intent to add the increase to a permanent fund cannot be.' Howell's Estate, 180 Pa. 515, 37 Atl. 181. Without offending against the act of 1853, the surplus in our case could be accumulated by the trustee. To provide for future contingencies,' and the intent that it should be so accumulated, could be attributed to the testator; but no intent respecting its destination, if it should not be consumed during the life of the trust, may be attributed to him. It follows that subject to its retention by the trustees, as a contingent fund, liable to be consumed by them at any time for Noah's benefit, it was vested as it accrued, by the operation of the intestate laws, in Noah Walters as the testator's sole heir and next of kin. Noah could not successfully have demanded it. His creditors could not have seized it. It was the duty of the trustees to treat it as a reserve fund for the purposes of the trust. Not having been consumed by the trustees, it is now payable to Noah Walters' administrator. In Howell's Estate, supra, the testator's grandchild was his residuary legatee, and in case of intestacy would have been his sole heir. The court there says: "The right to the surplus income vested, as it accrued, in the testator's grandchild, subject to the right of the widow to have it retained for the judicious protection of her annuity.' "We think it is not permitted to conclude, as does the auditor, that: "The corpus of the fund, with the accumulations, are the trust residuary estate remaining, which the testator gives on the failure of issue in his own line to his own collateral kinsmen'-for it is only by assuming that the testator did not intend the accumulation to become a part of the corpus of his estate that the accumulation can be saved from the operation of the act of 1853. The intent to provide for these contingencies within reasonable limits may be sustained, but the intent to add the increase to a permanent fund cannot be. It is therefore unimportant to consider whether there was an actual intent which, if found, could not be carried out. Howell's Estate, supra. Prior to the act of 1853, accumulated income became a part of the principal of the estate and was so distributed, unless the testator provided otherwise. Huber's Appeal, 80 Pa. 348, and some other authorities relied upon to support the auditor's report, interpret wills that were probated before 1853, when the construction of a will was untrammeled by the act. The accumulated income having vested in the testator's son, of course no collateral inheritance tax will be charged upon it. "The exceptions to the auditor's report are sustained, and the report is referred back to the auditor so that he may award the income under the trust to Louis E. Walters, administrator of the estate of Noah D. Walters, deceased." In replevin before a referee to determine the value of certain machinery, a person who sold similar machinery may express an opinion has had large experience in and has bought and as to its value. [Ed. Note.-For other cases, see Evidence, Cent. Dig. § 2274; Dec. Dig. § 489.*] 2. APPEAL AND ERROR (§ 1018*)-REVIEWFINDINGS OF REFEREE. Exceptions to referee's findings will not be sustained, where it is not shown that there was no evidence sufficient to sustain them, though there may be evidence to support a different finding. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4006; Dec. Dig. § 1018.*] Appeal from Court of Common Pleas, Philadelphia County. Action by Walter R. Sykes and others against William Thornton and others. From an order dismissing exceptions to report of Affirmed. referee, plaintiffs appeal. Argued before MITCHELL, C. J., and FELL, POTTER, ELKIN, and STEWART, JJ. Samuel P. Tull, for appellants. W. W. Porter, for appellees. STEWART, J. The assignments of error bring nothing to our attention which can properly be made the subject of review, with perhaps a single exception. The case was tried before a referee. The plaintiffs having admitted that the superior right to the goods they had replevied was in the defendants nothing remained for the referee but to assess the damages resulting from the taking. The goods consisted of looms and other like machinery adapted to the manufacture of textile fabrics, in place and employed when seized. Defendants called but a single witness on this branch of the case. No objection was made to the competency of this witness until the close of his testimony, when a motion was made to strike it out on the ground that the opinion expressed by the witness as to the value of the goods was not based on any special or peculiar knowledge of the subject. We do not find that the referee made any direct ruling on the motion; but he makes it clear in his discussion of the | Cronin. From a decree dismissing the bill, case that he gave the testimony of the wit- plaintiffs appeal. Affirmed. ness full consideration and allowed it no little weight. This is assigned for error. We need only say that he would have committed no error had he specifically refused the motion. The witness was clearly competent to express an opinion as to the value of the goods. He was not only a party defendant, but his testimony shows that he had large experience in the manufacture of textile goods, and that he had bought, used, and sold machinery such as this. Whether technically an expert or not, his testimony shows that he was possessed of knowledge on the particular matter that was being inquired into which abundantly qualified him to express an intelligent opinion. With the witness' competency established, it was exclusively for the referee to determine what weight should be allowed his testimony. The plaintiffs called several witnesses in reply, each of whom testified to a much lower value than that claimed by the defendants. It is complained that the award is not only excessive, but is in open disregard of the weight of the evidence. Into the merit of this complaint we cannot inquire. The award is admittedly within the amount testified to by defendants' witness as to the actual value of the goods. It has support, therefore, in the evidence, and this circumstance is conclusive against the plaintiffs. It has as well the approval of the court below. The rule in such case is thus stated in Philadelphia Company v. United Gas Improvement Company, 180 Pa. 235, 36 Atl. 742: "To successfully challenge the findings of a referee, it is not enough to point to evidence sufficient to support a different finding. It must be shown that there is no evidence sufficient to sustain the referee's findings; and this is especially so after they have been considered and approved by the court below." The assignments of error are overruled, and the judgment is affirmed. (223 Pa. 603) SHARKEY et al. v. LOCKE et al. (Supreme Court of Pennsylvania. March 1, 1909.) Argued before FELL, BROWN, MESTREZAT, ELKIN, and STEWART, JJ. W. Roger Fronefield, for appellants. V. Gilpin Robinson, for appellees. PER CURIAM. This bill was for discov ery and an account by parties alleged to have been agents for the plaintiffs in the sale of material allegations in the bill are that the land and to have acted fraudulently. The defendants were employed as agents to sell land owned by the plaintiffs; that they represented to the plaintiffs that they had sold the land to Foley and procured a conveyance to him, when in fact they had sold to Crothers for a much larger price; that Foley, who immediately conveyed to Crothers, was used as a "straw man" to conceal the real transaction. It was found by the court that these allegations were not sustained, and that there had been no fraud or concealment by the defendants. Findings of fact by the court will not be set aside, except for manifest error. The findings in this case rest on testimony that was practically undisputed. All that was shown was that there were circumstances which, unexplained, might give rise to a suspicion of wrong. These were explained to the full satisfaction of the court. The decree is affirmed, at the cost of the appellant. (223 Pa. 604) GREEN et al. v. WORTH BROS. CO. et al. (Supreme Court of Pennsylvania. March 1, 1909.) JUDGMENT (§ 310*)-AMENDMENT-GROUNDS. Where a judgment is entered for defendants on a demurrer, on the ground that the acts complained of as trespass were not joint acts, the judgment is final, and the court cannot amend the record by striking therefrom the name of one of the parties. [Ed. Note. For other cases, see Judgment, Cent. Dig. § 602; Dec. Dig. § 310.*1 Appeal from Court of Common Pleas, Chester County. Action by J. I. Green, by his next friend, Mary E. Green, and by said Mary E. Green in her own right, against the Worth Bros. Company and another. Judgment for deAPPEAL AND ERROR (8 1009*)-REVIEW-fendants, and plaintiffs appeal. Affirmed. FINDINGS OF FACT. On a bill for discovery and accounting on the ground of fraud, findings on practically undisputed testimony that there was no fraud will not be set aside, in the absence of manifest er ror. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3970, 3971; Dec. Dig. § 1009.*] The following is the opinion of Butler, J., in the cour below: "The plaintiff's statement having been demurred to on the ground that the acts complained of were not joint acts of the defendants, and the plaintiff having joined issue on the demurrer, judgment was directed and enAppeal from Court of Common Pleas, Dela- tered for the defendants on March 16th last. ware County. On the 3d of this month the plaintiff entered this rule to show cause why the record should not be amended by striking out the Bill by Daniel A. Sharkey and others against W. Ellwood Locke and Charles I. |