Upon this evidence the court ruled that the plaintiff could not recover, and directed a verdict for the defendant, to which ruling and direction the plaintiff excepted, and the presiding judge reported the case for the determination of the supreme judicial court.

Messrs. Reed & Dean, for plaintiff: An employer is under an implied contract with those he employs to furnish suitable and safe means for carrying on his business, and this includes an obligation to provide a suitable place where the servant may, in the exercise of due care, safely perform his duty; and if special dangers, unseen, hidden, unappreciable to the employee, exist, the employer is bound to warn the employee against them.

Coombs v. New Bedford Cordage Co. 102 Mass. 572; Snow v. Housatonic R. R Co. 8 Allen, 445; Sulliran v. India Mfg. Co. 113 Mass. 397; Holden v. Fitchburg R. R. Co. 129 Mass. 268.

This principle is not inconsistent with the rule of law that the employee assumes those obvious risks, inherent in the service he contracts to do, of which he is presumed to have know ledge.

Lovejoy v. Boston & L. R. R. Co. 125 Mass. 79; Yeaton v. Boston & L. R. R. Co. 135 Mass. 418; Leary v. Boston & A. R. R. Co. 139 Mass. 580; Russell v. Tillotson, 140 Mass. 201.

These cases do not conflict with the cases previously cited, and various decisions which are directly in point.

Chicago, B. & Q. R. R. Co. v. Gregory, 58 Ill. 272; Chicago & R. I. R. R. Co. v. Clark, 11 Ill. App. 104; Walsh v. Oregon R. & Nav. Co. 10 Oreg. 250; Farlow v. Kelly, 108 U. S. 288 (Bk. 27, L. ed. 726); McDermott v. N. Y. Cent, etc. R. R. Co. 28 Hun, 325; Hall v. Pacific R. Co. 16 Fed. Rep. 744; Baxter v. Roberts, 44 Cal. 187. It cannot be held, as a matter of law, that the defendant was not negligent in setting the plaintiff to work in the place of danger, without any warning or notice of the danger. This is a question of fact for the jury upon the evidence and the view.

Snow v. Housatonic R. R. Co. 8 Allen, 441; Coombs v. New Bedford Cordage Co. 102 Mass. 572; Chicago, B. & Q. R. R. Co. v. Gregory, 58 Ill. 272; Chicago & R. 1. R. R. Co. v. Clark, 11 Ill. App. 104.

The danger was not obvious, appreciable, and necessarily incidental to the service for which the plaintiff contracted, or which he assumed upon the call.

Lovejoy v. Boston & L. R. R. Co. 125 Mass. 79; Leary v. Boston & A. R. R. Co. 139 Mass. 580.

It cannot be held, as matter of law, upon the reported evidence and upon the view, that the plaintiff was not in the exercise of due care. This also is clearly a question of fact for the jury.

Coombs v. New Bedford Cordage Co. 102 Mass.

572.

The evidence reported shows that the plaintiff, a blacksmith, called suddenly away from his ordinary work to an unaccustomed service and place, actually had no appreciable sense of the danger incident to this new service until it was too late; and further, that he had no op

Ford v. Fitchburg R. R. Co. 110 Mass. 240; Lawless v. Conn. River R. R. Co. 136 Mass. 1; Snow v. Housatonic R. R. Co. 8 Allen, 441; Greenleaf v. Ill. Cent. R. R. Co. 29 Iowa, 47.

It cannot be claimed that a failure or neglect to warn or notify by the foreman, Hopkins, or to properly station the employees about the car, was such contributory negligence of a coemployee as to relieve the defendant.

Cayzer v. Taylor, 10 Gray, 275; Warden v. Old Colony R. R. Co. 137 Mass. 204.

Whether the plaintiff acted with due care in carrying out the order, "All hands out to move a car," under the special circumstances of this case is clearly a question of fact for a jury. Sweeney v. Old Colony & N. R. R. Co. 10 Allen, 373; Elliott v. Pray, 10 Allen, 378.

Mr. J. H. Benton, Jr., for defendant: Although the plaintiff was originally engaged to work as a blacksmith, it is clear, upon the evidence, that he had, by assisting in moving cars whenever called upon for that purpose, assumed this additional service as a part of his employment. He had "by so doing, engrafted this duty on his original contract, of which he made it a part." When he was called upon to assume this additional duty, he might have refused, upon the ground that it was not within the legitimate scope of his employment; but as he did not refuse, but voluntarily and repeatedly performed this service, it became a part of the employment in which he was engaged for the defendant, as much as though it had been included in his original contract of service.

Leary v. Boston & A. K. R. Co. 139 Mass. 580.

The plaintiff's claim is not that it was not in the line of his duty to move cars at the particular spot where he was called upon to move this car, but that it was not in the line of his duty to move cars at all. If it had become by custom, as it clearly had, a part of his duty to assist in moving cars whenever and wherever, about the shops and yard, he was called upon by the foreman, it was as much in the line of his employment to move them at one place in the yard as at another.

Yeaton v. Boston & L. R. R. Co. 135 Mass. 418. As between the plaintiff and defendant, it is immaterial whether it would have been more prudent (if possible to do so) to have placed the track and the building farther apart than they were placed. The plaintiff had a right to construct its track and engine house in the prox imity to each other which it did, and to move its cars in and out as it did, although it might be dangerous.

Ladd v. New Bedford R. R. Co. 119 Mass. 412; Lovejoy v. Boston & L. R. R. Co. 125 Mass. 79.

This case is more than covered for the defendant by the case of Lovejoy v. Boston & L. R. R. Co., where it was held that the defendant corporation was not negligent in placing a signal post so near its track that a locomotive engineer could not look out to take a signal from the conductor without being hit by it, although

he had not, previous to the injury, noticed the particular post by which he was hit.

See also Brown v. Chicago & R. I. R. Co. 22 Reporter, 303, where Lovejoy v. Boston & L. R. R. Co. is cited and followed; Marsh v. Chick ering, 21 Reporter, 538; Taylor v. Carew Mfg. Co. 140 Mass. 150.

C. Allen, J., delivered the opinion of the

court:

The evidence would warrant a jury in finding that the defendant did not provide for its servants a reasonably safe place in which to do its work, and that there was danger in moving a car by man power in the place where this car was, by reason of its proximity to the building, and of the gradually lessening distance between the track and the building.

But the more difficult question is, whether, under the circumstances disclosed, and assuming all facts as favorable to the plaintiff as the evidence warrants, we can say, as matter of law, that the plaintiff, by voluntarily entering upon the work, should be held to take the risks. There is no doubt of the general rule that one who, knowing and appreciating the danger, enters upon a perilous work, even though he does so unwillingly, and by order of his superior officer, must bear the risk; but where he is not aware of the danger, and such ignorance is consistent with due precaution, it is different. In the present case, it appears that the plaintiff had a general knowledge of the position of the track and of the buildings with reference to each other, and that he also knew that cars were sometimes moved along there. But there was evidence tending to show that it was not a part of the business for which he was employed to assist in moving cars in the yard, though he was liable to be called on, when necessity required, to render such assistance; and he testified that when so called on he never refused, though he entered protest. He also testified that he had never before been called on to help in moving a car in the place where the accident occurred, and that he had never before been through that particular space between the car and the building. Of course he could see that this space was narrow; but it would seem that neither he nor the others who were pushing on the same side of the car with himself understood that it was too narrow to allow them to pass through in safety. This was his mistake. Seeing the situation in a general way, he took hold among others, and tried to pass through what | proved to be too narrow a place for him. He did not rightly estimate the probability or extent of the peril to which he was exposing himself. Though he could see the position of the car and of the building, it might nevertheless be found by a jury that he did not appreciate, and, in the exercise of due care, was not bound to appreciate, the danger. If, under the circumstances stated, he was called on by his foreman to assist in this work, which was outside of the work which he was employed to do, and in a place where he had not before done such work, and if the peril was not obvious to him, and he failed to take notice that the space between the car and the building was too narrow for him to pass through with safety, and if his attention was so given to the work which he was doing that he did not discover the danger till it was

John CLARK et al. v.

David DEAN.

1. In order to maintain trover, the plaintiffs must show not only title in the property converted, but also the right to the immediate possession thereof. Where the property seized by the defendant was property consigned by the plaintiffs to the debtor, an order by the debtor to deliver the goods to the plaintiffs gave them the right to immediate possession, and waived any lien the debtor might have had upon the goods. If the debtor had any lien, his creditors could not attach it, and he could waive it in favor of the general

N report. Judgment on the verdict. Action of tort by the plaintiffs against the defendant, a deputy sheriff, for the alleged conversion of certain personal property by attachment on mesne process, said property being claimed by the plaintiffs. At the trial in the superior court, before Brigham, Ch. J., the plaintiffs offered in evidence an auditor's report, the material parts of which are as follows: Prior to bringing this action, the defendant, as a deputy sheriff of Bristol County, attached the property in dispute as the property of one Edward E. Washburn, on a writ in favor of Francis McQuaid against the said Washburn, said property being then in the custody of said Washburn. The plaintiffs, learning of the attachment, made a demand on the defendant for it, but he declined to give it up, and the plaintiffs thereupon brought this suit. The auditor found that at the date of the plaintiffs' writ the title to the property in question was in the plaintiffs, and that they were entitled to immediate possession of the same; that the defendant converted the said property to his own use, as aforesaid; that plaintiffs made due demand on him for the said property before bringing this

action; that the defendant did not comply therewith; that the prices affixed to the several items in the plaintiffs' declaration represented the true market value of the said property at the time of conversion; and that the defendant owed the plaintiffs $513.50.

After the auditor's report had been read, the defendant called as a witness one of the plaintiffs, who testified that the plaintiffs did not sell the property in question to said Washburn, but consigned it to him, and not for the purpose of enabling him to do business; that Washburn paid all the expenses of freight and transporta tion of the same; that he was a retail dealer of this kind of property in Taunton; that he was to keep the goods until they were sold; that he was to sell them at any price he pleased, and was not to pay for them until they were sold, and when they were sold he was to turn over their proceeds to plaintiffs. It was admitted that, at some time after the attachment and before bringing this suit, a clerk of the plaintiffs handed to the defendant, in Taunton, a paper, of which the following is a copy, and at the same time demanded the property of the defendant:

"Taunton, Feb. 9, 1884.

To David Dean, Deputy Sheriff: The following list of furniture in the store, No. 589 Summer Street, Taunton, occupied by me, is the property of Clark & Buckley, of Boston, Mass., and you will therefore deliver the same to them. Then a list of the property as set out in the schedule annexed to the declaration.] E. E. Washburn."

Upon these facts, at the request of the defendant, the court ruled that the plaintiffs could not maintain the action upon the first count of their declaration. The defendant further requested the court to rule that, upon all the facts, the plaintiffs could not maintain the action upon the second count of their declaration, the same being in the nature of trover. It was contended by the defendant that the second count was not in trover for the conversion of the property. The court ruled that the action could be sustained upon this count, and directed a verdict for the plaintiffs. The defendant excepted to this ruling, and at the request of the defendant the court reported the facts to the supreme judicial court for its determination upon the questions of whether judgment is to be entered upon the verdict, a new trial ordered, or the case is to have any other direction such as the legal rights of the parties may require.

Mr. Edwin N. Hill, for defendant:

the right to the immediate possession of the property alleged to be converted, otherwise trover cannot be maintained.

Fairbank v. Phelps, 22 Pick. 535; Winship v. Neale, 10 Gray, 382; Ring v. Neale, 114 Mass. 111; Newhall v. Kingsbury, 131 Mass. 445.

The action cannot be sustained, if it is in the nature of trover, for it appears on the evidence reported that the goods were consigned to be paid for when they were sold, and it has been expressly decided in a similar case that the consignor has not such a right to the immediate possession as will support an action for conversion.

Hardy v. Munroe, 127 Mass. 64.

The plaintiffs cannot give themselves the right to bring trover against the defendant by making a demand upon him subsequent to his tortious taking of the property.

Smith v. Sheriff of Middlesex, 15 East, 607; Bradley v. Copley, 1 C. B. 685.

If the defendant has taken the plaintiff's goods more than six years before action brought, and still has them in his possession, the plaintiff cannot maintain his action upon proof of a demand and refusal within six years. Philpott v. Kelley, 3 Ad. & El. 106.

In general it may be said that when there is a tortious taking of goods, the plaintiff must sue for that taking, and any allegations or proof of a demand and refusal subsequent to that taking are superfluous.

Badlam v. Tucker, 1 Pick. 389, 397; Hunt v. Holton, 13 Pick. 216.

Mr. Charles S. Lincoln, for plaintiffs: There can be no doubt but that the property in controversy was in the plaintiffs, as well as the right of possession at the time the action was brought; and there is nothing in the case that can operate as an estoppel to prevent them from asserting their title. It nowhere appears that the attaching creditor was induced to give Washburn credit by anything said or done by the plaintiffs.

Zuchtmann v. Roberts, 109 Mass. 53.

Morton, Ch. J., delivered the opinion of the court:

We need not discuss the question whether there is any material difference between the two counts of the plaintiffs' declaration, because we are of opinion that under either count the plaintiffs are, upon the undisputed evidence in the case, entitled to recover.

It is true, as claimed by the defendant, that, in order to maintain trover, the plaintiff must

The second count of the declaration begins: "Being for the same cause of action," and proceeds to allege that "the defendant took possession of the same and converted the same to his own use. The remaining allegations are statements of evidence and may be rejected as surplusage. The allegations above quoted, however, cannot be considered as superfluous; they give character to the count, and stamp it as being in the nature of trover.

Wells v. Connable, 138 Mass. 513.

In determining similar cases the court has always said that at the time of the alleged conversion there must be the actual possession or

but also the right of immediate possession. Ring v. Neale, 114 Mass. 111; Hardy v. Munroe, 127 Mass. 64. But the auditor found that the goods which the defendant attached as the property of Washburn were the property of the plaintiffs; that they made demand for the goods, which was refused by the defendant; and that they were entitled to the immediate possession of the goods. This made a prima facie case for the plaintiffs, and entitled them to a verdict unless it was controlled by other evidence. The evidence introduced by the defendant corroborates the auditor's findings. It shows that the goods were the property of the plaintiffs, consigned to Washburn, and that they had the right of immediate possession of them. The order to