App. Div.] FOURTH DEPARTMENT, JULY TERM, 1897. In the case in hand the evidence is, that the plaintiff had been in the employ of the defendant only fifteen days, and while he had been through the Oneida yard several times, there is direct and positive testimony that he was not aware of the sluiceway where he alleges the injuries were received, and the evidence warranted the jury in finding that he had no knowledge of the presence of the sluiceway and the dangers incident to its presence in the yard where he was required to couple cars. In support of the theory of the defendant it called two of its roadmasters, who gave evidence as to the existence of similar structures along its roadway. Roadmaster Angell testified: "I know of nothing which prevents the covering of those sluiceways. It would be very easy to cover them, and, from my judgment as a roadmaster from long experience, they would be safer if they were covered.” Roadmaster Winfield testified that he had seen sluiceways and drains covered and some uncovered. He also testified, viz.: "If there was an eight-inch ditch right where a man was coupling cars I don't know whether I would regard it safer to cover it if a man was working there in the night time or not; he would be as liable to stumble over a box as he would to drop in a ditch. If the box was under the rail and on a height with the level of the yard, he would not be liable to stumble very much, there would be an opening there. He would be about sixteen inches away from the track, but so far as being in between the rails is concerned he would be safer if that sluiceway was covered. * * * Where they are covered they are made with boxes put in underneath." * According to the evidence this yard had in and about it seven tracks, and there was occasion to couple and uncouple cars in and about this yard to a very large extent. We think the evidence was sufficient to warrant the conclusion reached by the jury, that the defendant was guilty of negligence, and that the negligence of the defendant contributed to, or led to the injuries which the plaintiff received; and that the evidence fully warranted the trial judge in submitting the question of the plaintiff's freedom from negligence, as one of fact, to the jury. There was no error, therefore, in the trial court in refusing to nonAPP. DIV.-VOL. XX. 13 FOURTH DEPARTMENT, JULY TERM, 1897. [Vol. 20. suit the plaintiff at the close of his evidence, nor in again refusing to dismiss the plaintiff's complaint and to grant a nonsuit at the close of the whole evidence. The learned counsel for the defendant has called our attention to De Forest v. Jewett (19 Hun, 509). That case differs from the one before us inasmuch as the trial judge there, in effect, charged the jury that the defendant was liable for any error of judgment, although it exercised due care in determining the mode of constructing the ditch. That case was affirmed in 88 New York, 264, and in the course of the opinion it was said: "He had been engaged as switchman and car coupler in the yard in question for nearly two years. He worked in the daytime. It appears that every one of these diches or sluices were well known to him; he knew their location, and, so far as could be determined by seeing them daily, he knew their width and depth and the manner of their construction. Whatever there was of danger to one engaged in the coupling of cars in this yard must have been apparent and obvious to him. This is not a case, therefore, of a latent or secret danger unknown to the servant, but which should have been known to the master." The case differs from the one before us, because there is positive evidence in this case, as well as a verdict in favor of the evidence, to the effect that the plaintiff did not know of the ditch or sluice at Oneida where he received the injuries. Nor do we see anything in Harley v. B. C. M. Co. (142 N. Y. 32) which sustains the position of the defendant. In that case it was said, the master "is not bound to furnish them (employees) an absolutely safe place to work in, but is bound simply to use reasonable care and prudence in providing such a place.” The tenor and spirit of the charge of the learned judge is entirely in accord with that doctrine, and it must be assumed here that the verdict is in accord with the principle laid down in that case. And the verdict seems to accord with the testimony of Roadmaster Angell, who said: "It would be very easy to cover them, and from my judgment as a roadmaster, from long experience, they would be safer if they were covered." This case differs from Wright v. President, Managers, etc., D. & II. C. Co. (40 Hun, 348), as there it appeared very clearly that the defect which was complained of was App. Div.] FOURTH DEPARTMENT, JULY TERM, 1897. known to the plaintiff "and no complaint was made by him, or notice given of the alleged defect." Some criticism is made of some of the language used by the learned trial judge in his charge to the jury, and it is intimated that it was "an eager and earnest summing up for the plaintiff; practically a direction to the jury to give the plaintiff a verdict." Upon looking at the portion criticised, we are of the opinion that the learned trial judge sought to illustrate the issue to the jury and to give them a clear understanding of the rules of law which he had laid down to guide them in their deliberations upon the facts of the case. The exception that was taken was broad and general, and does not point out that the charge "erroneously expresses any rule of law." Besides, after the language which is adverted to in the criticism was used, the trial judge very squarely put it to the jury to determine, first, was the plaintiff guilty of contributory negli gence? and, second, was the accident caused by the sluiceway; was the defendant guilty of negligence in permitting the sluiceway there to remain? We think, after reading the whole charge, the jury was very properly instructed as to the rules of law applicable to the facts before them. (Smith v. Matthews, 152 N. Y. 157, and cases cited in the opinion of BARTLETT, J.) If the jury could have been induced to believe the testimony of Newman, the defendant's witness, the defense might have succeeded. However, as there was satisfactory evidence to the contrary of the testimony given by him, the verdict must be accepted as conclusive. All concurred, except FOLLETT, J., not sitting. Judgment and order affirmed, with costs. FOURTH DEPARTMENT, JULY TERM, 1897. [Vol. 20. ANNETTE C. HERSEE and CARRIE H. CoIT, Plaintiffs, v. LOUIS W. SIMPSON, Defendant. Vested remainders construction of a clause of a will "from and after her decease my will is that all of my said property be disposed of according to the statutes.” A testator, after bequeathing and devising all his residuary estate to his wife for life, provided "from and after her decease, my will is that all of my said property be disposed of according to the statutes of the State of New York governing the descent of real property and the distribution of personal estates." Held, that all persons who were his heirs at law at the time of the testator's death, took vested remainders in his real estate, the enjoyment of which, only, was postponed until the termination of the life estate of the widow. SUBMISSION of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure. The question related to the title and ownership of certain lands situated in the city of Buffalo and particularly described in the submission papers. William G. Newbrook, for the plaintiffs. Fred W. Ely, for the defendant. HARDIN, P. J.: Thompson Hersee, on the 8th day of March, 1879, made and executed his last will and testament, and in December, 1884, he died at the age of seventy-one years, seized in fee simple of the real property described in the submission. He left him surviving a widow, the plaintiff, Annette C. Hersee, and a son, William M. Hersee, and a daughter, Carrie H. Coit, one of the plaintiffs, and no other children or issue of deceased children. William M. Hersee died unmarried, intestate, without issue in September, 1891. Annette L. Hersee, a granddaughter of the testator, died in infancy in 1882, unmarried and without issue, some two years before the death of the testator. In the 1st clause of the testator's will he bequeathed $10,000 to Annette L. Hersee, who was the daughter of his deceased son, Thompson Hersee, Jr., "on the condition that she live to be the age of twenty-one years, said conditional legacy to be paid to her on her App. Div.] FOURTH DEPARTMENT, JULY TERM, 1897. arriving at the age of twenty-one years. But, if the said Annette should not live to be of the age of twenty-one years, then said bequest to be inoperative and of no effect." Inasmuch as Annette L. Hersee died in 1882, the legacy to her became wholly inoperative. In the 2d clause of the will the testator used language which gives rise to the question presented in this case. The language is as follows: "All the rest, residue and remainder of my estate, real and personal, of every name and nature (subject to the contingent payment of the above legacy), I bequeath and devise to my wife, Annette C. Hersee, to have, hold and enjoy the same, with the rents, issues and profits thereof, during the term of her natural life, and from and after her decease, my Will is that all of my said property be disposed of according to the statutes of the State of New York governing the descent of real property and the distribution of personal estates." In the 3d clause of the will he nominated and appointed his wife, Annette C. Hersee, sole executrix No trust was created by the terms of the will. The language of the will seems very clearly to indicate the intention of the testator that his property should pass to his heirs at law and next of kin in accordance with the laws of the State of New York, except that the wife should have a life estate and enjoy the use of all his property (except such as might be required to pay the legacy) during her natural life. The language used by the testator to carry out such intention. seems to be somewhat inartistic, as it provides that, from and after the death of his wife, the testator's property should be enjoyed by those entitled to it under the laws of the State of New York governing the descent of real property and the distribution of personal estates. By the use of the words "my will is that all of my said property be disposed of according to the statutes of the State of New York," the testator intended that the real property should be enjoyed by. his heirs at law and that they should be let into the possession of the same immediately upon the termination of the life estate given. to the wife. The question to be determined is whether the real estate vested |