94 N. J. L. Dondero v. Tenant Motion Picture Co. probable danger." We are of opinion that the trial court would not have been justified in taking from the jury the question of contributory negligence. The people who attend an exhibition in a theatre usually expect to find and take a seat, and ordinarily would have the right to assume that in doing so, following a way prepared by the defendant for that purpose, it was safe, in the absence of any knowledge or warning that it was otherwise, at least it was a jury question, under the circumstances disclosed in this case, whether the action of the plaintiff amounted to contributory negligence. The reasonableness of any human action is to be judged by the circumstances which induces it, and where a patron of a theatre is invited to enter it by way of a level platform, from which aisles lead to the seats he is expecting to occupy, it is not conclusive evidence of contributory negligence on his part if he proceeds to the logical conclusion of the invitation by a way provided by the owner of the premises, and if the invitation to enter includes the use of a seat to be found in a darkened room, along a way provided by the owner, without warning given of a pitfall therein, by which the patron is injured, contributory negligence is not established, as a matter of law, simply because the patron proceeded without further investigation of the way which he had been impliedly invited to pursue. A jury might reasonably find that in this case the plaintiff had reached the platform which she was invited to use as an entrance to the seats; that the room was darkened for the purpose of the defendant's exhibition; that there was no usher or other person to whom plaintiff could apply for a light or direction; that her children walked along the platform until they came to the aisle and followed it in safety, perhaps, because, they had knowledge of the steps, or were able to see them. That this plaintiff was bound to stand at the entrance and make no attempt to procure a seat could hardly be expected, and whether she contributed to the accident in undertaking to find a seat was a question of fact and not a legal conclusive presumption of negligence on her part. As said by Mr. Justice Trenchard, speaking for this court in 94 N. J. L. Dondero v. Tenant Motion Picture Co. Andre v. Mertens, 88 N. J. L. 626, where the contributory negligence charged was descending a dark stairway in leaving a theatre, "We think, therefore, that it must be conceded that fair-minded men might honestly conclude that her conduct in proceeding as she did was that of a reasonably prudent person under the circumstances existing at the time. That being so, it cannot be said, as a matter of law, that it was negligence for her to descend the stairs." We are of opinion that under the circumstances present in this case the trial judge committed no error in refusing to nonsuit or a direction in favor of the defendant. The second point rests upon an alleged error in the charge of the court which was: "They have a right to assume that the company that invites them there has complied with the requirements of law for their safety. Whether the plaintiff should have done something she did not do or whether she was negligent in attempting to move is a question for you." The particular matter complained of in the instruction is, that the plaintiff had a right to assume the defendant had complied with the requirements of law for her safety. It is urged by the appellant "that the vice of this portion of the charge is that it places on the defendant the whole duty, leaving to the plaintiff the right to assume an improbable, if not an impossible, thing." This is not a fair interpretation. The instruction complained of is that the plaintiff had a right to assume that the company, as the owner of the theatre, had complied with the law for her safety. What the requirement of the law was in the given case was not defined, nor was there any request made by the defendant that it should be defined. The abstract proposition stated by the court was not error. A passenger on a railroad train is not guilty of contributory negligence because he assumes that the car he had entered is supplied with all the safety appliances which the law requires, and he has a right to govern his actions on the assumption that the company is using the appliances required by law. The judgment will be affirmed, with costs. 94 N. J. L. McNutt v. Adams Express Co. For affirmance-THE CHIEF JUSTICE, SWAYZE, TRENCHARD, PARKER, BERGEN, MINTURN, KALISCH, BLACK, WHITE, HEPPENHEIMER, WILLIAMS, TAYLOR, GARDNER, ACKERSON, JJ. 14. For reversal-None. A. MOULTON MCNUTT, ADMINISTRATOR, RESPONDENT, v. ADAMS EXPRESS COMPANY, APPELLANT. Submitted March 22, 1920-Decided June 14, 1920. 1. In an action to recover damages for injuries under section 1 of the Workmen's Compensation act, the plaintiff must aver and prove, in order to avoid the application of section 2 of the act, that there was an agreement in writing, or a written notice given prior to the accident, that the employe's contract of hiring was not made subject to section 2; otherwise all such contracts are to be presumed to have been made with reference to it. 2. It is not necessary to plead an existing legal presumption. On appeal from the Camden County Circuit Court. For the appellant, Joseph II. Gaskill. For the respondent, Joseph Beck Tyler. The opinion of the court was delivered by BERGEN, J. The plaintiff seeks to recover damages arising from the death of his intestate resulting from an accident while in the employ of the defendant, and rests his right on section 1 of our Workmen's Compensation act. He has a judgment entered on the verdict of the jury from which the defendant has appealed. The plaintiff in his complaint avers that the deceased was in the employ of the defendant; that it was a part of the decedent's duty as employe to assist in McNutt v. Adams Express Co. 94 N. J. L. pulling a fire truck down an incline, in the ferry-house at Camden, New Jersey, in case of a fire alarm, and in preparation for such duty to take part in a fire drill whenever required; that in performing this duty, under the order of the defendant, he fell and suffered injuries which caused his death. The plaintiff proved sufficient facts to support these allegations. The answer of the defendant was a general denial of the averments in the complaint, except that deceased was in the employment of the defendant when the accident occurred, which was admitted. At the opening of the case the defendant moved for permission to amend its answer by specifically averring that the contract of employment was subject to section 2 of our Workmen's Compensation act because there was no express contract, or notice given, that the agreement of employment was not made with reference to the terms of section 2 of the act, but this the court denied. At the close of plaintiff's case the defendant moved for a nonsuit, and at the close of the entire case asked for a direction for the defendant upon the ground that there was no proof to sustain the action under the first section of the act, upon which the plaintiff replied, urging that where there is no proof of an express contract, or of notice given which relieves the plaintiff from the effect of section 2, the exclusive jurisdiction to determine the compensation to an employe for injuries arising out of and in the course of the employment was vested in the Court of Common Pleas when the accident, the basis of this suit, happened. The statute has since been altered (Pamph. L. 1918, p. 429), establishing the Workmen's Compensation Bureau, which was amended. Pamph. L. 1919, p. 200. The only question presented by this record is whether, on July 24th, 1917, the date of the injury of plaintiff's intestate, the plaintiff, as administrator of the injured employe, can maintain an action under section 1 of the Workmen's Compensation act without showing that his contract of employment is not governed by section 2, because there was an express contract to the contrary, or that the required notice had been given. Section 9 of the Workmen's Compensation act (Pamph. L. 1911, p. 136) provides that 94 N. J. L. McNutt v. Adams Express Co. "every contract of hiring made subsequent to the time provided for this act to take effect shall be presumed to have been made with reference to the provisions of section 2 of this act, and unless there be as a part of such contract an express statement in writing, prior to any accident, either in the contract itself or by a written notice from either party to the other, that the provisions of section 2 of this act are not intended to apply, then it shall be presumed that the parties have accepted the provisions of section 2 of this act, and have agreed to be bound thereby." Some testimony was taken upon the question of whether defendant should be allowed to amend its plea, and a witness testified that he had talked over the telephone with the claim agent of the defendant who said that the defendant did not work under section 2 of the Workmen's Compensation act. But this evidence was not introduced to sustain the issue, still if it had been, there is no proof that the person talking over the telephone had any authority to make any such statement, and if he had, it took place long after the accident and is not the contract or notice intended by the statute, for it was not expressed in any writing prior to the accident, or by a written notice. It is also urged by the plaintiff that a written receipt for wages, signed by the decedent, tended to show that his employment was casual. The receipt contained a notice that the employes of the company were not engaged for a particular length of time, and that the company reserved the right to terminate the service at pleasure; and the party executing the receipt agreed to accept the employment, subject to being discharged at any time. There is nothing in this writing which indicates that the person who executed it accepted a casual employment, for under it the services might continue for an indefinite period. The trial court refused the nonsuit, or to direct, principally upon the ground that it was for the jury to say whether the employment was casual or not, and instructed the jury that if it was casual then the plaintiff could not recover. We fail to find in this case any evidence that would justify an inference that the employment was casual. When the plaintiff instituted his action he was subject to the statutory presump |