with a suggestion that under certain contingencies she should give the Pennsylvania railroad stock to certain persons. The words are merely precatory, created no trust, and did not in any way qualify the absolute gift to her. The legacy lapsed by reason of her death before the testator, and as the will contains a general residuary clause, and it is evident it was the intention of the testator to dispose of his whole estate, the lapsed legacy falls into the residue, and must be distributed as part of it to the beneficiaries designated by the executor: Gray's Appeal, 147 Pa. St. 67; Powell's Appeal, 138 Pa. St. 322; Reimer's Estate, 159 Pa. St. 212."

CHARITIES-VALIDITY OF BEQUESTS TO-DISCRETION OF TRUSTEES.-A trust to executors to distribute a residuum among the testator's relatives and for benevolent objects, in such sums as they shall deem best, is valid: Goodale v. Mooney, 60 N. H. 528; 49 Am. Rep. 334. A gift to one of moneys or property "to be disposed of by him for such charitable purposes as he shall think proper," is a good charitable trust: Minot v. Baker, 147 Mass. 348; 9 Am. St. Rep. 713, and note; extended note to Bridges v. Pleasants, 44 Am. Dec. 100, 101. Compare Gambell v. Trippe, 75 Md. 252; 32 Am. St. Rep. 388, and note.

TRUSTS-TRUSTEES-RIGHT OF SURVIVORSHIP.-Where an estate is granted or devised to two or more to hold in trust, there is no doubt that at the common law they take as joint tenants with the benefit of survivorship, and when one of them dies, that those surviving take the whole estate, and with it the power to execute the trust: Monographic note to Tyler v. Herring, 19 Am. St. Rep. 275.

STEARNS V. ONTARIO SPINNING COMPANY.

[184 PENNSYLVANIA STATE, 519.]

NEGLIGENCE WILL NOT BE PRESUMED from the mere happening of an accident and a consequent injury, except when contractual relations exist between the parties, as in the case of carriers of passengers and some others. Plaintiff must, to sustain a recovery, prove either actual negligence or conditions which are so obviously dangerous as to admit of no inference other than that of negligence.

NEGLIGENCE-BUILDING, LIABILITY OF OWNER FOR THE FALLING OF A DANGEROUS IMPLEMENT ON PERSON BENEATH.-If an axe falls from the fifth story of a building striking and killing a person lawfully in the area outside it, and there is no proof of negligence on the part of the owner of the building, and the evidence of the person using the axe when it fell shows due care on his part, a nonsuit is properly entered in an action against the owner to recover for the damages thus inflicted.

Alfred H. Haig, James M. Beck, and William F. Harrity, for the appellant.

John G. Johnson, for the appellee.

522 FELL, J. The plaintiff's testimony showed that her husband, while lawfully in an areaway in the building in which he was employed, was struck on the leg by an axe head and thereby received a wound from the effects of which he died; and that the axe head fell from an open doorway in the fifth story of the building, which was occupied by the Ontario Spinning Company, the corporation defendant. The plaintiff then called Clement, an employé of the defendant, who testified that at the time of the accident he was using the axe in question in cutting or breaking the iron bands on a bale of cotton; that he had so used the same axe for about two years; that he had never had any trouble with it; that he had frequently examined it to see whether it was in good condition; that on this occasion, while he had not made any particular examination, "it seemed to be in first class condition"; that he had noticed nothing wrong with it; that immediately before the accident he had been using it for about two minutes, and had cut ten bands from 523 a bale of cotton, and that when he raised it to strike again the head flew off the handle and out of the open doorway behind him.

The doctrine of res ipsa loquitur applies where, under the circumstances shown, the accident presumably would not have happened if due care had been exercised. Excepting where contractual relations exist between the parties, as in the case of carriers of passengers and some others, negligence will not be presumed from the mere happening of the accident and a consequent injury, but the plaintiff must show either actual negligence or conditions which are so obviously dangerous as to admit of no inference other than that of negligence. The burden which is thus thrown upon the defendant is not that of satisfactorily accounting for the accident, but merely that of showing that he used due care. It is therefore unnecessary in this case to consider whether proof of the accident and its attendant circumstances was sufficient to put the defendant to its defense, for if any presumption of negligence had been raised by the previous testimony, it was a presumption of fact only, and was entirely rebutted by the testimony of Clement, the defendant's employé, who was the last witness called by the plaintiff. His evidence showed that he was a competent man, and that he had used due care, and it was at the same time entirely consistent with the happening of the accident as described by the other witnesses. For to those who are familiar with the construction of the ordinary axe, such as the one in this case was shown to

have been, it is readily conceivable that the head and handle may part although apparently securely joined, and to those who are familiar with their use it is known that they sometimes do so without previous warning.

What, then, was there to submit to the jury? The defendant, as we have said, was not bound to account for the happening of the accident. It had been relieved by the plaintiff of the burden, if any there was, of showing the exercise of due care. The plaintiff's whole testimony not only failed to show negligence on the part of the defendant, but rebutted any presumption of negligence which may have arisen, and affirmatively proved its absence.

We are of the opinion that the nonsuit was properly entered, and the judgment is affirmed.

NEGLIGENCE-PRESUMPTION OF, FROM HAPPENING OF ACCIDENT.-There are many cases in which the nature of the accident may itself establish a prima facie case of negligence against a defendant, and cast upon him the burden of proof to show that such accident occurred without his fault. These cases are noticed and discussed in the monographic note to Philadelphia etc. R. R. Co. v. Anderson, 20 Am. St. Rep. 490-495. For later cases, see Chicago Street Ry. Co. v. Rood, 163 Ill. 477; 54 Am. St. Rep. 478, and note; note to Long v. Pennsylvania R. R. Co., 30 Am. St. Rep. 736-738; Western Union Tel. Co. v. State, 82 Md. 293; 51 Am. St. Rep. 464, and note.

NEGLIGENCE-NONSUIT IN ACTION FOR.-Negligence is ordinarily a question of fact for the jury to determine from all the circumstances of the case; and the cases where a nonsuit is allowed are exceptional, and confined to those where the uncontradicted facts show the omission of acts which the law adjudges negligent: Durbin v. Oregon R. R. etc. Co., 17 Or. 5; 11 Am. St. Rep. 778.

DEMPSEY V. DOBSON.

[184 PENNSYLVANIA STATE, 588.]

CUSTOM, WHEN UNREASONABLE AND THEREFORE VOID.-A custom or usage prevailing in the business of carpet making by which the result of a color mixer's skill and labor in the service of his employer are recognized as belonging exclusively to the employé, is unreasonable, and therefore void.

A CUSTOM CANNOT BE GOOD unless it is reasonable. EMPLOYER AND EMPLOYE.-Designs and recipes made by an employé are, as between him and his employer, the property of the latter for the purposes of his business. Though there is a patent issued to the employé for his formula, the right of the employer to continue its use in his business remains.

F. Carroll Brewster and George W. Harkins, for the appellant.

Richard P. White, for the appellees.

592 WILLIAMS, J. This case was in this court in 1896, and is reported in Dempsey v. Dobson, 174 Pa. St. 122, 52 Am. St. Rep. 816. A verdict and judgment had been obtained in the court below against the defendants from which they appealed. We reversed the judgment, holding that a color mixer could not assert, as against his employer, an exclusive title to the various combinations and shades of color devised by him for use in the manufacture of carpets in his employers' mill. But we awarded a venire facias de novo because of an allegation that violence had been used by the defendants in the detention of the plaintiff, and in preventing him from carrying away from the mill his color books. A new trial has now been had. The charges of the use of unlawful violence do not seem to have been pressed, but the plaintiff attempted on the trial to prove a custom or usage prevailing in the business of carpet making, by which the results of the color mixer's skill and labor in the service of his 593 employer is recognized as belonging exclusively to the employé, the color mixer; the employer, the manufacturer, for whose use the colors were devised having no title whatever to them. The several assignments of error relate to the rejection of the evidence offered to establish such a custom. It is one of the requisites of a good custom that it must be reasonable. Another is, that it must not be contrary to law. The custom sought to be set up was an unreasonable one. The color mixer, like the designer and the weaver, is employed because of his supposed ability to serve his employer in the particular line of labor which he is expected to follow. First comes the work of the designer, who prepares, or invents, it may be, the pattern after which the carpet is to be made. Then comes the color mixer who is to mix his employer's colors, in such proportions as to produce the necessary shades required by the pattern that has been adopted. Finally comes the application of the colors and the weaving. The services of each and all these mechanics are requisite to the production of the carpet. The employer has an equal right to the faithful service of each, and is equally, so far as his own business is concerned, entitled to the results of the labor of each. If a color mixer could at his pleasure carry off the recipes and color books from his employers' factory and refuse to permit their further use except upon his own terms, it would be in his power to inflict enormous loss on the manufacturer at any moment, and not merely to disturb, but to destroy his business. Such a custom would not be reasonable and could not be sustained. But it is against the law.

The courts of the United States, of this state, and, so far as I have been able to examine, of all the states in the Union, recognize the rule laid down when this case was here in 1896, that "The designs and recipes so made for an employer are as between his employé and himself, his, for the purpose of his own manufacturing business. Even if his employé had obtained letters patent for his formula, protecting himself thereby against the public, still the employers' right to continue its use in his own business would be protected by the United States courts": Solomons v. United States, 137 U. S. 342. To the same effect are Slemmer's Appeal, 58 Pa. St. 155; 98 Am. Dec. 248; Dempsey v. Dobson, 174 Pa. St. 122; 52 Am. St. Rep. 816. The several offers made for the purpose of showing the existence of the alleged customs were properly rejected. In the absence of proof of the 594 alleged acts of violence, we fully concur with the learned judge of the court below that there was nothing shown by the evidence on the part of the plaintiff sufficient to sustain a verdict against the defendants, and that the case was a proper one for a compulsory nonsuit.

The judgment is affirmed, and judgment is now entered in favor of the defendants.

CUSTOM-VALIDITY OF.-A usage to be binding must be of long standing, uniform in operation, just and reasonable, and known to and acquiesced in by all those whose rights are affected by it: Hayward v. Middleton, 3 McCord, 121; 15 Am. Dec. 615; Steele v. McTyer, 31 Ala. 667; 70 Am. Dec. 516, and note; Jacobs v. Shorey, 48 N. H. 100; 97 Am. Dec. 586. See monographic note to Governor v. Withers, 50 Am. Dec. 97-105, on customs and validity.

MASTER AND SERVANT-RIGHT OF FORMER TO USE INVENTIONS OF LATTER.-A master simply as such, in the absence of contract has no exclusive right to the inventions of his servant, but it is a rule of universal application that, if an employé, without any express agreement, uses the time, tools and money of his employer, with his consent, in making an invention, and then applies it practically in the employer's business, the law implies a license to the employer to continue to use the invention in his business, even after the relations between the employer and the inventor have been dissolved, although the employé has taken out a patent therefor: Extended note to Dempsey v. Dobson, 52 Am. St. Rep. 820, 821.