Opinion of the Court.

increasing the risk of such employment beyond its ordinary hazards, the employer is bound to disclose such facts to his employé, otherwise he will be liable as for negligence in case of injury resulting to the latter by reason of such unusual risks. Smith v. St. Louis &c. Railway, 69 Missouri, 32; Porter v. Hannibal & St. Jos. Railroad, 71 Missouri, 66; Coombs v. New Bedford Cordage Co., 102 Mass. 572; Dorsey v. Phillips & Colby Cons. Co., 42 Wisconsin, 583; Lawless v. Conn. River Railroad, 136 Mass. 1; Forsyth v. Hooper, 11 Allen, 419; Cayzer v. Taylor, 10 Gray, 274; S. C. 69 Am. Dec. 317; Clarke v. Holmes, 7 H. & N. 937; Baxter v. Roberts, 44 California, 187; Williams v. Clough, 3 H. & N. 258; Hill v. Gust, 55 Indiana, 45; O'Connor v. Adams, 120 Mass. 427; Walsh v. Peete Valve Co., 110 Mass. 23; Keegan v. Kavanaugh, 62 Missouri, 230; Hough v. Railway Co., 100 U. S. 213; Northern Pacific Railroad v. Mares, 123 U. S. 710.

Mr. Wells H. Blodgett for appellee.

MR. JUSTICE BREWER, after stating the case, delivered the opinion of the court.

So far as the mere matter of procedure is concerned, there was obviously no error. The intervention was a proceeding in a court of equity, and that court may direct a verdict by a jury upon any single fact, or upon all the matters in dispute; but such verdict is not binding upon the judgment of the court. It is advisory simply, and the court may disregard it entirely, or adopt it either partially or in toto. Barton v. Barbour, 104 U. S. 126; 2 Daniell's Chancery Pl. and Pr., 5 ed. 1148, and cases cited in note; Idaho & Oregon Land Improvement Co. v. Bradbury, 132 U. S. 509, 516, and cases cited.

With respect to the merits of the case, the decision of the court was also clearly correct. The intervenor was twenty-six years of age; he had been working as a blacksmith for about six years before entering into the employ of the defendant; he had been engaged in this work of coupling cars in the company's yard for over two months before the accident, and was

Opinion of the Court.

therefore familiar with the tracks and condition of the yard, and not inexperienced in the business. He claims that the Wabash freight cars, which constituted by far the larger number of cars which passed through that yard, had none of those deadwoods or bumpers; but inasmuch as he had in fact seen and coupled cars like the ones that caused the accident, and that more than once, and as the deadwoods were obvious to any one attempting to make the coupling, and the danger from them apparent, it must be held that it was one of the risks which he assumed in entering upon the service. A railroad company is guilty of no negligence in receiving into its yards, and passing over its line, cars, freight or passenger, different from those it itself owns and uses. Baldwin v. Railroad Co., 50 Iowa, 680; Indianapolis & Bloomington Railroad v. Flanigan, 77 Illinois, 365; Michigan Central Railroad v. Smithson, 45 Michigan, 212; Hathaway v. Michigan Central Railroad, 51 Michigan, 253; Thomas v. Missouri Pacific Railway, 18 S. W. Rep. 980, (Missouri Supreme Court.)

It is not pretended that these cars were out of repair, or in a defective condition, but simply that they were constructed differently from the Wabash cars, in that they had double deadwoods or bumpers of unusual length to protect the drawbars. But all this was obvious to even a passing glance, and the risk which there was in coupling such cars was apparent. It required no special skill or knowledge to detect it. The intervenor was no boy, placed by the employer in a position of undisclosed danger, but a mature man, doing the ordinary work which he had engaged to do, and whose risks in this respect were obvious to any one. Under those circumstances he assumed the risk of such an accident as this, and no negligence can be imputed to the employer. Tuttle v. Detroit, Grand Ilaven &c. Railway, 122 U. S. 189; Ladd v. New Bedford Railroad, 119 Mass. 412.

The decision of the Circuit Court was right, and it is

Affirmed.

VOL. CXLVII-16

Statement of the Case.

BERNIER v. BERNIER.

ERROR TO THE SUPREME COURT OF THE STATE OF MICHIGAN.

No. 102. Argued January 3, 4, 1893. - Decided January 16, 1893.

When a person makes a homestead entry of a tract of public land, and enters into occupation of it with his family, and dies a widower, and without acquiring a patent, the right to complete the proofs and acquire the patent passes, under Rev. Stat. § 2291, to all his children equally, as well those who are adults as those who are infants; and not, under Rev. Stat. § 2292, to such children only as are minors at the time of his death, to the exclusion of those who had then attained their majority. Section 2292 of the Revised Statutes was only intended to give to infant children the benefit of the homestead entry and to relieve them, because of their infancy, from the necessity of proving the conditions required when there are only adults, or adults and minors, mentioned in § 2291, and to allow a sale of the land within a prescribed period for their benefit.

THIS was a suit in equity to determine the respective rights of the adult and minor heirs of Edward Bernier, at the time of his death, to certain real property in Michigan, held by him under a homestead entry, and to compel the conveyance from the minor heirs, and the defendant who has acquired an interest from one of them, of an undivided half of the premises, to the complainants. It arose out of the following facts:

On the 24th of May, 1875, Edward Bernier made a homestead entry on the lands in controversy under the provisions of the homestead law of the United States. At the time he was a widower, his wife having died in April, 1872. He occupied the premises as a homestead until his death, June 17, 1876. He left ten children surviving him, five of whom were, at the time, over twenty-one years of age, and they are the complainants in this case, and five were, at the time, under twenty-one years of age, and they, with one John H. Goff, who acquired, in 1885, by a quitclaim deed the interest of one of them, are the defendants. One of the defendants and minor heirs, Joseph Bernier, before suit, conveyed his interest to his sister and co

Statement of the Case.

defendant, and filed a disclaimer. She, representing both his and her own share, was willing to divide the property on the basis claimed by the complainants, and has permitted a decree to pass against her by default. In October, 1876, some months after the death of Edward Bernier, Samuel F. Bernier, one of the adult heirs, on behalf of all the ten heirs, made the required proof for commuting the homestead entry, paid the minimum price for the land, and received a certificate entitling him to a patent therefor. This certificate was never cancelled, nor was any proceeding taken for its cancellation, nor was any notice given of a contest respecting it, nor was any irregularity in its issue alleged. The only proof of occupation and improvement was made by Samuel F. Bernier, and the only sums paid for the land were advanced by him, on behalf of all the heirs. But notwithstanding these facts, some time in April, 1877, a second certificate was issued to the minor heirs of Edward Bernier, which was made upon the commutation proofs presented by Samuel F. Bernier, as above stated, and on the 25th of the same month a patent was issued to them. The bill alleged that this was issued to them by mistake, that it should have been issued to the heirs of Edward Bernier, and that it was issued to the minors without the knowledge, consent or procurement of the complainants, and in violation of their legal and equitable rights in the premises, and that by its terms the title in fee simple of the premises was in them, but it claimed that they held the same subject to the rights of the complainants therein.

The bill further alleged that all the steps to change the filing on the lands from a preëmption claim to a homestead entry, and in commuting the homestead entry and securing a patent for the lands, were taken through an attorney at law, who was acting for the said Edward Bernier's heirs; that when he received the patent he supposed the same ran to those heirs, and, without examining it or discovering his mistake, he placed the same on record, and the mistake was only recently discovered; that for many years previous to such discovery all the heirs, including the minors, treated the lands as their joint property, but that since the discovery of the mistake, and only since, the

Opinion of the Court.

minor heirs pretended to claim that they were the sole and only heirs, and that the complainants had no interest, right or title in the lands, which claim and pretence the complainants charged were a fraud upon their rights, and worked a manifest wrong and injury to them; hence the institution of this suit.

The Circuit Court in Michigan which heard the case decided in favor of the complainants, and adjudged that the defendants execute, acknowledge and deliver to them a sufficient deed or deeds to convey and vest in each one an undivided tenth part of the lands and premises. On appeal, the Supreme Court of the State reversed the decree and ordered the bill to be dismissed. From the latter decree the case was brought by writ of error to this court.

Mr. John C. Donnelly for plaintiffs in error.

Mr. John H. Goff for defendants in error.

MR. JUSTICE FIELD, after stating the case, delivered the opinion of the court.

It would seem that the patent to the minor heirs was issued without the knowledge or consent of any of the heirs; and that their attention was first brought to it when the defendant Goff obtained the interest of one of the defendants in 1886. The property was always treated as a part of the estate of Edward Bernier, deceased. It was assessed as such from his death until 1885, and George E. Bernier, one of the heirs, took charge of the whole estate, including the land in controversy, paid taxes thereon, and took care of the minors. He remained in possession of the premises in controversy until this suit was brought. All the parties, of course, claim through a common source, and the question for decision is whether all the heirs of the deceased took this land jointly and are equally entitled to it, or whether the whole of the land went to the minor heirs. of the deceased. And this question depends for its solution upon the construction given to the provisions of the Homestead Act, contained in sections 2291 and 2292 of the Revised Stat