text:
    Standen v. Pennsylvania Railroad Company, Appellant.

      Negligence — Trial—Evidence—Request for instructions — Disinterested witnesses — Interested witnesses.

    Where, in an accident case, one disinterested witness confirms the plaintiff’s account of the accident, and one disinterested witness called for the defendant, contradicts it, the defendant’s counsel may, if he deems it important that the court should explain to the jury the relative value and weight of the testimony of interested and disinterested witnesses, direct the attention of the court to the matter by presenting a point, or call attention to it orally at the conclusion of the charge. If he fails to do so he cannot subsequently complain of the lack of instructions on this point.

      Negligence — Damages—Wife’s services — Husband and wife.

    In a joint action by a husband and wife to recover damages for injuries to the wife sustained by reason of the alleged negligence of the defendant, the husband is entitled to show as an element of his damages the value of his wife’s services in the assistance which she gave to him in his business as a florist.
    The legislation in force in Pennsylvania vests in a married woman all earnings acquired by her in carrying on any separate or independent business, or in performing any labor or services on her sole and separate account; but it does not affect or change the common-law rule which vests in the husband the earnings of the wife acquired in her capacity as wife for services rendered about her household duties, or when assisting her husband in his business. In the absence of an agreement to the contrary, such earnings continue to belong to' the husband, and neither his.wife nor her creditors can assert a right to them by an action at law, dr otherwise.
    Argued Jan. 19, 1906.
    Appeal, No. 227, Jan. T., 1905, by defendant, from judgment of C. P. No. 1, Phila. Co., March T., 1902, No. 430, on verdict for plaintiff in case of Henry G. Standen v. Pennsylvania Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Beitler, J.
    At the trial the plaintiff offered evidence which tended to show that on August 3,1901, she was injured at the Haverford station of the defendant by a sudden jolt and. start of the train when she was attempting to alight. Mrs. Standen lived with her husband at Haverford in a house connected with greenhouses in which her husband conducted a florist business. The evidence showed that the plaintiff, Mrs. Standen, assisted her husband in this business.
    When Henry G. Standen was on the stand, he was asked this question:
    “ Q. To what extent was your wife able to be of assistance or of service to you ? ”
    Mr. Barnes: I ask for an' offer what they propose to prove.
    Mr. Porter: We offer to prove by this part of the testimony and by this witness on the stand that his wife previous to the accident was of service to him, or to what extent she was an aid, comfort, and of assistance to him.
    Mr. Wiler: “ Q. Now, Mr. Standen (question repeated), to what extent was your wife able to be of assistance or of service to you ? ”
    “ A. She would do her own household duties — do her own washing and ironing — and while I was not working she would attend to the greenhouse; yes, and pot plants and hybridize seed and propagate and make cuttings, and from the knowledge I obtained during my seven years’ service in the royal nurseries in England-.” *
    Mr. Barnes: I now object to the immediately preceding part and as to what the witness is about to say ; and I move that so much of the answer be stricken out as applies to the duration of the work by the wife in their combined business.
    Objection overruled and motion refused.
    Exception for defendant. [1]
    Mr. Basmes: “ Q. Now, there is included in this sum of money which you have named an extra man or men ? A. Extra man. Q. Man? A. Yes. Q. $1,676.66? A. Yes; that is wages I paid to the extra man taking Mrs. Standen’s plaqe in the greenhouse.”
    Mr. Barnes: If the court please, I ask that that item be deducted, be striken out; that is the same question.
    The Court: .1 will overrule the objection and give you an exception; that raises the question fairly and squarely.
    Exception for the defendant. [1]
    Defendant presented these points :
    5. If the jury should find a verdict for the plaintiff, Henry Standen, it cannot, under the evidence in this case, award any damages to him for loss of services of his wife, because of the fact that prior to the accident she took part in the business of florist carried on by him, and that since the accident she had not been able to assist him in the business. [2]
    6. If the jury find a verdict for the plaintiff, Henry Standen, it cannot award to him as damages any amount which he was required to pay as wages to additional or extra men employed by him to do the work in his florist business formerly done by his wife. Answer: Of course, gentleman, you have got to treat that matter if you come to find a verdict for the plaintiff, in a reasonable way. This man says his wife did His washing, ironing, looked after all the children, and I think she had five of them, and in addition to that helped him in the florist business — potted and so on. ' Now, I don’t know what the experience of most men is, but my experience would teach me that a woman who did the washing, ironing, cooking, and attended to five children would not have very much time to Took after the florist business in addition to that. Hence, when a man says, “ I want you to pay me for a housekeeper to do the housework my wife used to do, and I want you to pay me for a man in the greenhouse,” it is manifest she did not work six days a week at home and six days a week in the greenhouse; she could not be in two places at the- same- time. Hence it would hardly be fair to charge the defendant for a man and housekeeper both. [3]
    The court charged in part, as follows:
    [Now, I will pass to the question of whether there is liability. I said yesterday when Judge Porter was arguing the case, and I say it now, in order that it may go down upon the minutes, that in my judgment the plaintiffs’ case practically rests upon the uncorroborated testimony of Mrs. Standen. Let me read her testimony. It has been read to you this morn-, ing, but I want to- read it in conjunction with the testimony of Mr. Gallagher.. Now, this lady was asked, “Tell us what occurred when the- train arrived at Haverford.” She is the woman who was hurt; she is the woman who is suing here for damages, and it was her duty, of course, to tell all that occurred as far as she could. She starts, not where one would imagine a person would start, with a statement of how she arose, when she arose, but she says, “ I was getting off the-car, the car next to the last car, at the rear end of the car, when the train started with a jolt, and threw me back on the steps.” There is no statement, there of how far down the steps she had gotten. Unless, she was part way down the steps the jolt would not have thrown her back on the steps ; it would have thrown her back on the platform. Yet, it may be that she meant by “ steps ” to include the whole, thing outside of the doorway. (Continuing reading.) “ I don’t remember nothing after that until a gentleman picked me up — was assisting me and giving me my caba and a small package I had with me.” She does not give the gentleman’s name, and if I have read her testimony accurately, she does not mention the fact that Mr. Gallagher mentioned here, that, he gave her a card. If I am incorrect as- to. that, counsel will call my attention to it. She says with regard to getting up, “ I sat in my seat until the train came to a full stop ; I did not' loiter; I used the same speed in getting off the- car as I generally used.”
    Now, Mr.. Gallagher says, that, he got off the train, and looking around discovered that lie was at the wrong station. “ And I turned around towards the car again and seeing the mistake, I turned around to- the car to go, and I saw the cars give a jolt, and I just had a glance of a woman falling from the car; and I turned around, and. I saw it was a woman; and I turned around and picked her up, and carried, helped her over to one of the benches; and I went back again and I picked up her parcel and her bag, and placed it alongside of her; and I asked her if she was hurt, and she told me she did not know quite yet whether she was hurt or not. I said after a few minutes, I said again, ‘You could go home?’ and she said, ‘I think I can,’ and so I went then to Bryn Mawr.” He spoke of a crush or a jolt, and in answer to the question, “Describe what the crusli was,” he said, “ The starting up of the car, and moving it from the top they gave a jolt to go.”
    Continuing reading. “ Q. Then what did you see ? A. I saw a shadow in the back of me, and I turned around quick and see it was a woman, turned back here. Q. Did the car go on then ? A. Yes. Q. That was the train starting on its forward course ? A. Yes.”
    Now, on the part of the defendant, evidence is presented to show — and it is for you to give the weight that you think proper to it — to show that that train in its due course stopped at Haverford station; that it was a local, stopping at every station between Paoli and Philadelphia; prior to reaching Haverford announcement was made that the next stop would be Haverford; when the train reached Haverford announcement was made that that stop was Haverford; that the train stopped to let off a number of people; that it was the occasion of a half holiday, in August; and that it was a main line train, a local. Mr. Kincaid, Mrs. Baird, and perhaps others I do not recall whether others testified to that or not — testified, not all to one complete story, but the story as taken from the testimony of the defendant’s witnesses, if you believe that they are referring to the Standen incident, is that Mrs. Standen was in the car, the car was there until everybody that wanted to get off got off; that the car then started ; that after it started Mrs. Standen stepped from the steps of the car onto the platform and did not fall.] [4]
    [If she stepped off of that car after it had moved half a car length or a car length, and took several quick steps upon the platform, you can determine better than I, or as well as I can, what would be the effect of that upon a woman. A woman is more delicately constructed than a man, and I think a little less properly constructed for stepping off of a moving car than a man, and yet men have been hurt by doing it. Would that account for the injury she now has? Would that account, for instance, for two broken ribs ? Counsel for the plaintiffs contend that the two broken ribs practically show that the woman must have received some injury at that time other than that which possibly could have come to her by stepping from the steps of a car. That strikes’ me as a fair argument ; and yet on the other side it is argued that there is no testimony with regard to broken ribs except the testimony of the attending physician. There is no evidence at all from the woman herself that she had any fractured ribs, nor is there anything to indicate exactly what the doctor means by the technical term “ fracture.” “ Fracture ” is a break. A rib may be broken without being broken off.; that is to say, it may be fractured, as I understand, without' being broken off; but, at any rate, that is a matter for you to consider. That has been fairly argued on both sides, and it is for you to consider. It has to my mind considerable bearing upon the question of whether these people are referring to Mrs. Standen or not.] [5]
    Verdict for Henry G. Standen for $10,000, and for Ruth Standen for $5,000.
    The verdict for Ruth Standen was paid.
    Defendant appealed from the judgment entered in favor of Henry G. Standen.

      Errors assigned were (1) rulings on evidence, quoting the bill of exceptions ; (2-5) above instructions, quoting them.

      John Hampton Barnes, for appellant.
    The appellant contends that the only services for which a husband is entitled to recover are those which he has a right to expect and demand of a wife as a wife, that is, for the’loss of services in her domestic duties, the care of himself, his household, and his children, and not for loss of services in’ the conduct of his business: Bucher v. Ream, 68 Pa. 421; Lewis’s Est., 156 Pa. 337; Nuding v. Urich, 169 Pa. 289; Wallace v. R. R. Co., 195 Pa. 127; McKenna v. Gas Co., 198 Pa. 31; Patton v. Conn, 114 Pa. 183; Henry v. Klopfer, 147 Pa. 178; Kelley v. Mayberry Twp., 154 Pa. 440; Platz v. McKean Twp., 178 Pa. 601; Helsel v. Traction Co., 14 Pa. Superior Ct. 420; Reagan v. Harlan, 24 Pa. Superior Ct. 27.
    The charge of the court was inadequate in failing to point out the relative value to be given to the testimony of interested and disinterested witnesses : Clark v. Union Traction Co., 210 Pa. 636.
    The charge of the court improperly placed upon the defendant the burden of accounting for the injuries alleged to have been suffered by the plaintiff’s wife, Ruth Standen.

      William W. Porter, with him Wiler & Elliot, for appellee.
    The law seems perfectly well settled that, notwithstanding the various acts securing to married women their property or earnings, where she willingly renders her husband assistance in not only his household but his business, he is entitled to recover for the loss: Raybold v. Raybold, 20 Pa. 308; Bucher v. Ream, 68 Pa. 421; Carr v. Easton, 7 Pa. C. C. Rep. 403; Readdy v. Shamokin Boro., 137 Pa. 98; Kelley v. Mayberry Twp., 154 Pa. 440; Platz v. McKean Twp., 178 Pa. 601; Blaechinska v. Howard Mission, 130 N. Y. 497 (29 N. E. Repr. 755); Cregin v. R. R. Co., 18 Hun, 368; Ry. Co. v. Twiname, 121 Indiana, 375 (23 N. E. Repr. 159).
    It must be conceded that either the wife or the husband is entitled to damages for loss of earning power of the wife. The claims of the husband and of the wife were tried before the same jury. No objection was made by the wife that this item of damage was accredited to the husband. She alone could be prejudiced as to such a disposition of the item of damage. It has been held, “ the two verdicts worked an apportionment of the total amount of damages and together included the expenses, the loss of services and the bodily pain and suffering. Machen v. Railway Co., 13 Pa. Superior Ct. 642; Helsel v. Traction Company, 14 Pa. Superior Ct. 420.
    February 26, 1906:
   Opinion by

Mr. Justice Mestrezat,

We cannot agree with the defendant company, the appellant, that the court’s charge imposed on it the burden of explaining to the jury the manner in which the injuries to Mrs. Standen were received. What was said by the court interrogatively on the subject in that part of the charge was simply for the purpose of directing the. attention of the jury to the appellee’s contention that, as Mrs. Standen’s ribs were broken on the occasion of the accident, she was thrown off the steps of the car and did not step off while the car was in motion as claimed by the appellant. The learned judge did not tell the jury that her ribs were broken on the occasion, but suggested in his charge a doubt of the truth of the allegation in language from which it could be inferred he did not believe they were broken at that time. In that connection the court said: “ Counsel for the plaintiffs contend that the two broken ribs practically showed that the woman must have received some injury at that time other than that which possibly could come to her by stepping from the steps of the car. That strikes me as fair argument; and yet on the other side it is argued that there is no testimony with regard to "broken ribs except the testimony of the attending physician.” The learned judge then suggests to the jury that the woman does not say she had fractured ribs, and that the testimony of the attending physician on the subject is indefinite. The appellant denied what the appellee alleged, that the woman’s ribs were broken on the occasion when she alighted from the train. There was, however, sufficient evidence to go to the jury on that question, and if they determined it in the affirmative, the appellee’s argument, as the court suggests, was plausible that merely stepping from the car step would not cause the fracture of the ribs but that, as the appellee claims, the woman must have been thrown from the car steps by the sudden jolting and jerking of the car. It was a serious dispute at the trial whether the testimony of some of the appellant’s witnesses referred to Mrs. Standexx and the occasion when she alleges she was injured or to another woman and to another occasion; and the learned judge ixi this part of the charge suggests that the incident of the broken ribs might have considerable bearing on that question. The fifth assignment is not sustained.

Where there are several disinterested witnesses whose testimony contradicts the testimony of a party himself or of any interested witness in his behalf, the trial judge should dii'ect the attention of the jury to the fact and point out the value and weight of the testimony of the interested witness in comparison with that of the disinterested witnesses. But we do not think that rule will, under the circumstances of this case, convict the court below of error. It was, as suggested above, an open question from their own testimony whether most of appellant’s witnesses who described an accident they had seen at the Haverford station, referred to Mrs. Standen and the accident when she attempted to alight from the train and was injured. But if she was the woman and it was the same occasion, there was practically but one disinterested witness on each side who testified to the manner in which Mrs. Standen was injured. Gallagher, called by the appellee, was, so far as the evidence discloses, wholly disinterested, and notwithstanding the contention of the appellant company and the suggestion of the trial judge, we think he substantially corroborates the story of the accident as told on the witness stand by Mrs. Standen. He saw “ the cars give a jolt ” and the woman fall from the car, and says “ this starting up of the car and moving it from the top they gave a jolt together. . . . That was the train starting on its forward course.” All the witnesses called for the appellant to testify to the happening of the accident were more or less interested, except Mrs. Baird. Conceding her testimony to be in conflict with that of Mrs. Standen as to the manner in which the latter attempted to alight from the train, it is met, as we have suggested, by the testimony of Gallagher Avho is clearly disinterested in the result of the controversy'. Under these circumstances, if the defendant’s counsel deemed it important that the court should explain to the jury the relative value and weight of the testimony of interested and disinterested witnesses, he should have directed the attention of the court to the matter by presenting a point, or called attention to it orally at the conclusion of the charge. The learned counsel for appellant, after the testimony had already been submitted and he knew the Avitnesses and their testimony, presented to the court several requests for instructions, and if lie thought it of any importance to his client that the jury should be instructed as to the relative value and weight of the testimony, he should have prayed such instructions by a proper point and they would have been given. Having had this opportunity. on the present trial and, as the record discloses, there having been a former trial of the cause, with possibly the same witnesses, resulting in a much larger verdict for each of the plaintiffs, the defendant’s duty required it to pray for special instructions on the subject and not await the chance of favorable action by the jury and, being disappointed, ask this court to direct a new trial.

Another question in the case is'as to the measure of damages. This was a joint action, brought under the Act of May 8, 1895, P. L. 54, by Henry G. Standen and his wife to recover damages for the injuries she sustained by reason of the alleged negligence of the appellant company. The trial resulted in a verdict and judgment for each of the plaintiffs. The appellant company paid the wife’s judgment but took this appeal from the judgment entered in favor of the husband. For more than forty years, Plenry G. Standen has been engaged in and has conducted the business of a florist. The greenhouses are connected with his home at Haverford. It appeared by evidence on the trial that the wife performed her household or domestic duties and in addition thereto assisted her husband in his business as a florist. He testified : She would do her own household duties, do her own washing and ironing, and while I was not working she would attend to the greenhouses, yes, and pot plants, and hybridize seed, and propagate and make cuttings/’ He also testified that he had to employ a man to take the place, and to perform the services, of Mrs. Standen in his greenhouses and about his business. The husband was permitted, against the objection of the defendant, to recover for the loss of the value of his wife’s services to him in his business as a florist. This is assigned for error.

The appellant contends, as stated in his printed brief, “ that the only services for which a husband is entitled to recover are those which he has a right to expect and demand of the wife as a wife, that is, for-the loss of her service in her domestic duties, the care of himself, Iris household, and his children, and not for loss of services in the conduct of his business.”

At common law, tbe husband, during the existence of the marital relations, was entitled to the services and earnings of his wife. It was held by this court that at common law the husband was entitled to the person and labor of his wife and the benefits of her industry and economy: Raybold v. Raybold, 20 Pa. 308. He also had a right to the joint earnings of himself and wife in his business: Bucher v. Ream, 68 Pa. 421. If she engaged in service outside the family he was entitled to her earnings: Hackman v. Flory, 16 Pa. 196. If his wife was injured by the negligence of another and her earning power was thereby diminished, the negligent party was responsible to the husband for the loss. It was conceded by the appellant company that such were the common-law rights of the husband to his wife’s services and earnings, but it is claimed that under the present legislation in this state a married woman is entitled to her earnings while engaged in her husband’s business and, to that extent, the common-law rule is abrogated. But this contention is based on an erroneous interpretation of the present, as well as of the past, legislation affecting the rights of married women. That legislation vests in a married woman all earnings acquired by her in carrying on any separate or independent business or in performing any labor or services on her sole and separate account. This changed the common-law rule and takes such earnings from the husband and gives them to the wife absolutely. The legislation, however, does not affect or change the rule as to the earnings of the wife acquired in her capacity as wife for services rendered about her household duties or when assisting her husband in his business. In the absence of an agreement to the contrary, such earnings continue to belong to the husband, and neither his wife nor her creditors can assert a right to them by an action at law or otherwise. It is only when she engages at labor or in business in her own right and not as wife, that the statute declares that the accumulations or earnings from that labor or business shall be her property and belong to her and not to her husband or his creditors. It was not the intention of the legislation to deprive the husband of his common-law right to the earnings or services of his wife, rendered as wife, by her in and about either their domestic matters or his business affairs. For such services, she has no legal recourse against him or his estate. Such has been the interpretation placed upon the Act of June 3, 1887, P. L. 332, and also on its substitute, the present law, the Act of June 8, 1893, P. L. 344, 2 Purd. 1299. Readdy v. Shamokin Boro., 137 Pa. 98; Henry v. Klopfer, 147 Pa. 178; Baker v. North East Borough, 151 Pa. 234; Kelley v. May-berry Twp., 154 Pa. 440; Nudingv. Urich, 169 Pa. 289; Platz v. McKean Twp., 178 Pa. 601; Endlich & Richards on Married Women, sec. 264. A lilce construction has been given similar statutes in other states: Blaechinska v. Howard Mission, etc., 130 N. Y. 497; Cregin v. Railroad Co., 18 Hun (N. Y.), 368; Ry. Co. v. Twiname, 121 Ind. 375.

As the earnings of the wife for services performed in the business of her husband belong to the latter, any deprivation of those earnings or any diminution or loss of her capacity to assist her husband in his business caused by the negligent act of the appellant company was an injury to the husband for which he was entitled to recover in this action. The value of her services of which he was deprived or the extent of the diminution of her capacity to assist him in his home and business affairs was his loss and not that of his wife. There was, therefore, no error in the rulings of the learned trial judge in this branch of the ease.

As suggested by appellant’s counsel, the wife received no wages from her husband for her services in assisting him in his business, and on the trial she claimed no damages for the loss of such services. This was because the husband was entitled to her services in the absence of a contract stipulating to the contrary, and in this action he proved their value to him and asked a verdict compensating him for their loss. The learned court affirmed the appellant’s seventh point for the reason, as stated by him, “ that I do not understand that the plaintiffs are pressing for any loss of earning power by the plaintiff, Ruth Standen.”

Aside from the above reasons, the judgment must be affirmed for the reason that the appellant was not injured by the court’s ruling that the husband was entitled to the services of his wife in the conduct of his own business. The act of 1895, under which the action was brought, requires, in cases like the present, that the action shall be brought in the name of the husband and wife, that separate verdicts shall be rendered, one determining the right of the wife and the other verdict determining the right of the husband, and that separate judgments shall be entered thereon with the right to separate executions. The rights of both parties for the injuries inflicted on the wife are redressed in one action, and the amount of damages is apportioned between the husband and wife by the separate verdicts.

The requirements of the act were observed in this case aird separate verdicts were rendered in favor of the wife and the husband. The appellant company alleges that the court erred in charging that the husband was entitled to recover for the loss of his wife’s services, and that, therefore, the verdict of the husband was predicated on an erroneous measure of damages. Conceding that to be true, it is not the appellant who was injured but the wife, and she is not complaining. She raises no question as to the' correctness of the rulings of the court, but has accepted from the appellant the amount of her judgment. The loss of her services was an element of damages to be considered and compensated for in the action, and the damages therefor must necessarily be recovered by the husband or the wife. Had the trial court sustained the appellant’s contention, the effect would have been to award the damages for loss" of her services to the wife instead of the husband. The ruling of the court, however, would not have diminished or affected the aggregate amount of the two verdicts. The appellant company would have the same, and no greater, sum to pay as damages resulting from the wife’s injuries. It was, therefore, not injured by the ruling of the trial court on the measure of damages, and hence its appeal is without merit.

The judgment is affirmed.


source: Caselaw Access Project

author: Mr. Justice Mestrezat,

license: Public Domain

text:
    Minnich, Appellant, v. Wright.

      Negligence — Street railways — Collision between sleigh and car — Contributory negligence.

    In. an action to recover damages for the death of plaintiff’s husband, it appeared that the deceased, following the rule of the road, was driving a sleigh northward on the east track of defendant’s double track railway on a highway. There was snow on the ground, and a sweeper had thrown it on either side of the track. The place of the accident was at the middle of a curve in a highway. In the arc of the circle of this curve opposite the place of the accident there was a schoolhouse in front of which were trees, and around which was a fence. These objects obstructed the view of both the deceased and the motorman. The deceased in looking across the curve could only see the top of a car, and could not determine on which track the car was approaching. The car which struck him approached on the same track on which he was driving, thus proceeding on a track contrary to the usual custom of travel. The motorman testified that he did not see the sleigh until he had turned the curve, and was within sixty or seventy feet of it. This was too late for either party to have avoided the collision. Held, that it was error for the court to rule as a matter of law that the deceased was guilty of contributory negligence.
    Argued Jan. 29, 1906.
    Appeal, No. 322, Jan. T., 1905, by plaintiff, from judgment of C. P. Lehigh Co,, Sept. T., 1904, No, 107, on verdict for defendant in case of Emma P. Minnich v. Robert E. Wright, Charles M. Bates and George W. Norris, Receivers of the Lehigh Valley Traction Company.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Stewart, JJ.
    Reversed.
    Trespass to recover damages for death of plaintiff’s husband. Before Hevdt, P. J., specially presiding.
    The facts are stated in the opinion of the Supreme Court.
    The court directed a verdict for defendant.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in entering judgment for defendant.

      Preston K. Erdman and Thos. F. Diefenderfer, for appellant.
    It is only in clear cases that the court can say that a person has gone on in the face of obvious danger or failed to observe it when he should have done so: Cromley v. R. R. Co., 208 Pa. 445; McFarland v. Traction Co., 204 Pa. 423; Fenner v. Traction Co., 202 Pa. 365.

      Arthur G. Dewalt, for appellees.
    We respectfully submit that under the facts and the law as given in the following cases the learned judge below was correct in his ruling: Rees v. Walton, 49 P. L. J. 200; Rowland v. Wanamaker, 193 Pa. 598; Taylor v. Traction Co., 20 Pa. C. C. Rep. 238; Trout v. Ry. Co., 13 Pa. Superior Ct. 17; Smith v. Traction Co., 187 Pa. 110; Burke v. Traction Co., 198 Pa. 497; Thatcher v. Traction Co., 166 Pa. 66; Tyson v. Traction Co., 199 Pa. 264; Keenan v. Traction Co., 202 Pa. 107; Moser v. Union Traction Co., 205 Pa. 481; Lyons v. Traction Co., 209 Pa. 72; Phillips v. Ry. Co., 190 Pa. 222; Ahern v. Melvin, 21 Pa. Superior Ct. 462.
    February 26, 1906:
   Opinion by

Mr. Justice Mestrezat,

We think the learned judge of the court below was in error in directing a verdict for the defendants, the appellees, on the ground that the death of Valentine Minnich was caused by his own negligence. The question was one of fact, and not so clear, under the evidence produced, that the court was justified in determining it as a matter of law.

We quite agree with the learned judge that if Minnich “ looked and saw the car and drove into it deliberately, then he was guilty of contributory negligence ; and that if he did not look where he was going, and was driving on this track, then he was guilty of such contributory negligence that he cannot recover.” But we do not agree with the learned judge’s other conclusion in this connection that the evidence was so clear and convincing that the court could as a matter of law hold that “ if he had looked he could have seen this car coming.” To convict Minnich of negligence it must appear that he was not exercising care in driving north on the car track, that if he had looked ahead of him he could have seen the approaching car in time to turn from the track and avoid the collision.

At the time of the accident a heavy snow had fallen, and the appellees had used their snowplow in clearing their track, throwing the snow to either side of it. It is not negligence in itself for a driver of a vehicle to use a car track, and especially was that true in view of the physical conditions existing at the place where Minnich met his death. Observing the rule of the road as recognized in this country, he was driving north on the east track of the two parallel tracks of the defendants’ electric railway line. It was his duty to watch for an approaching car, and if he saw one on the track on which he was driving, he was required to leave the track and permit it to pass. The right of an electric railway company to use its tracks, although laid on a public highway, is superior to that of a pedestrian or an individual driving a team. If, therefore, as alleged by the appellees, the deceased saw, or could by the exercise of proper care have seen, their car, he should have turned from the track, or if that was not practicable bj*- reason of existing conditions, he should have warned the motorman of the fact. If the deceased failed in this duty he was negligent. But if he had exercised the care required of him under the circumstances, could he have seen that the car with which he collided was approaching on the track on which he was traveling in time to avoid the collision? The answer to that question determines the character of the deceased’s conduct on the occasion, whether it was negligent or not. And, as we have said, the evidence did not warrant the. court in determining it as a matter of law.

The place of the accident was at the middle of a curve in the highway, and the character of the curve is indicated to some extent by the fact that the motorman says he threw off the power and slacked the speed so his car would not run off the curve. In the arc of the circle opposite the place of the accident was a schoolhouse in the front of which were trees and around which was a fence. These objects obtrueted the motorman’s view of the sleigh and the horses, and also the deceased’s view of the approaching car. The motorman testifies that he did not see the team driven by the deceased until he had turned the curve and was within sixty or seventy feet of it, and that about four seconds elapsed between his first sight of the team and the time of the collision. It is admitted that at that time it was too late for either party to have avoided the collision. It is contended by the appellees that while this is true, the deceased could have seen the car prior to that time by reason of his elevated position on the seat of the sleigh. That, however, was an open question under the evidence, and depended upon the height of the seat, the character of the curve and the obstructions which were between the driver of the sleigh and the approaching car. These matters must be made to appear by the testimony of witnesses whose credibility was for the jury. But, if under the circumstances the driver of the team could have seen the car when the motorman could not have seen the team, it is apparent, we think, that the driver could have seen only the top of the car. His view would have been across the arc of the circle, and not along the track upon which the car was approaching. This fact is important in ascertaining whether the driver was able to determine on which track the car was approaching. If we assume that the deceased saw a car approaching, was he not justified in believing, and did, he not believe, that it was on the west track, the one on which a car traveling south was accustomed to, and usually did, travel ? Had he reason to believe from what his view of the car disclosed that it was approaching on the east or north bound track, or was he warranted in believing under existing conditions, that the car was traveling on the west or south-bound track, the one on which, under the rules of the road as well understood in this country, an electric car is presumed to, and usually does, travel ? These were questions for the jury, and the answers to them would doubtless control the jury’s conclusion. If the car had been approaching on the south-bound track, there would have been no occasion for the deceased to leave the north-bound track, and his action in that respect, which as a prudent and careful man he should have taken, would have depended upon what his view of the car disclosed to him. If, however, he saw, before he rounded the curve, that the car was traveling on the north-bound track, his duty required him, if conditions permitted, to turn from the track, and failing to observe this duty would convict him of negligence.

As the learned judge ruled the case on the negligence of the deceased alone, we need not discuss the negligence of the appellees. Their car, at the time of the accident, was not traveling on the track on which it was accustomed to travel and on which persons using the highway had the right to assume it would be traveling when going southward. It had approached a curve where, as the motorman’s testimony shows, his view of a team or of an individual approaching him on the same track was limited to a distance of not more than seventy feet. It was the duty of the crew in charge of the car to have observed the care required of them under those circumstances. The rate of speed of the car, determinable from the oral testimony and the effect of its impact with the team, as well as the warning given of the approaching car were questions for the jury.

The judgment of the court below is reversed and a venire facias de novo is awarded.


text:
    March, Appellant, v. Lukens.

      Arbitration — Conclusiveness of award — Estoppel.
    Where parties to a suit agree to discontinue the suit and submit to arbitrators the whole controversy between them and the decision of the arbitrators is to be final, one of the parties, after an award against him cannot maintain a new suit for the same cause of action where no fraud or collusion is alleged against the arbitrators, and no plain mistake of law or facts is shown in their award.
    Argued Jan. 29, 1906.
    Appeal, No. 74, Jan. T., 1905, by plaintiff, from order of C. P. Montgomery Co., March T., 1903, No. 121, refusing to take off nonsuit in case of Isaac F. March and Emma L. Brinley v. Joseph C. Lukens and Emily Irene Yerkes, trading as Lukens & Yerkes.
    Before Mitchell, C. J., Bbown, Mestbezat, Potteb and Stewabt, JJ.
    Affirmed.
    Trespass to recover damages for injuries to a quarry. Before We and, J.
    The facts are stated in the opinion of the Supreme Court.
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was refusal to take off nonsuit.

      Irvin P. Knipe, of Wanger & Knipe, and Stephen M. Meredith, with them John W. Bickel, for appellants.
    A mistake as to extent of authority, showing that the arbitrators have exceeded their powers by assuming to decide matters not submitted to them, will be sufficient to impeach the award on the ground of misconduct: Walker v. Walker, 60 N. C. 259; Borrowe v. Milbank, 13 N. Y. 680; Hutchingson v. Shepperton, 13 Q. B. 955 (66 E. C. L. 955); Hamilton v. Hart, 125 Pa. 142.
    Among the Pennsylvania cases that uphold the principle that arbitration awards are void for too wide a construction of the submission are: Somerset Boro. v. Ott, 207 Pa. 539; Chandley v. Cambridge Springs Boro., 200 Pa. 230; Lauman v. Young, 31 Pa. 306.
    An agreement in the submission of a pending cause to arbitration, that the award shall be “ final and conclusive ” is subject to the implied condition that the award be made according to the submission: McCracken v. Clarke, 31 Pa. 498.
    A void award is no bar to an action brought in reference to the same subject-matter: French v. New, 28 N. Y. 147.

      Gilbert Hodman Fox, M. M. Gibson and Nicholas H. Larzelere, for appellees were not heard, but argued in their printed brief.
    The award was conclusive: Bower v. Tallman, 5 W. & S. 556; McCune v. Lytle, 197 Pa. 404; Climenson v. Climenson, 163 Pa. 451; Davis v. Havard, 15 S. & R. 165; Wilson v. Getty, 57 Pa. 266; McManus v. McCulloch, 6 Watts, 357; West Jersey R. R. Co. v. Thomas, 21 N. J. Eq. 205; Goodwine v. Miller, 32 Indiana, 419; Viele v. Troy, etc., R. R. Co., 21 Barb. 381.
    February 26, 1906:
   Opinion by

Mr. Justice Mestrezat,

The submission between these parties was at common law, and was for the determination of questions arising out of the agreement entered into between March and Brinley, the plaintiffs below and appellants here, and William J. McEvoy. The agreement provided that the parties should submit to three arbitrators any dispute arising out of the “unworkmanlike manner in which the quarry is being operated to affect its future injury,” and “ that their decision should be final.” An action having been brought by the appellants against the appellees, who were the defendants below, in the court of common pleas of Montgomery county to recover arrears of rentals and royalties, cost of quarry cleaning, etc., the parties desiring “ to still adjust and settle their differences by the mode of arbitration provided for in said article of agreement ” submitted “ all matters embraced and complained of in the statement of plaintiff’s claim filed in the suit aforesaid” to arbitrators “to be chosen as provided in said agreement.” Three arbitrators were selected, heard the case and made an award in favor of the appellees. The appellants being dissatisfied with the awprd ignored it and brought the present suit for the same cause of action. On the trial of the cause, the appellants having put in evidence the submission and the award, the learned court granted a nonsuit, holding that the award could not be attacked collaterally for the reasons assigned, that it was not invalid merely because the arbitrators had assigned a reason for their conclusion, and that it was conclusive between the parties.

Aside from the question of conclusiveness of the award in this action, the award was good upon its face and there was no evidence on the trial sufficient to impeach it. The submission, as its language shows, was as broad as it could be made, and authorized the arbitrators to determine all questions affecting the rights of the appellants to recover the sum claimed for any or all of the items named in their statement of claim in the then pending suit. Notwithstanding the earnest argument of appellants’ counsel to the contrary, the tenancy of the appellees was one of the issues to be determined by the arbitrators as was disclosed by the testimony on this trial. One of the appellants testified on the trial as follows: “ Q. You contended before the arbitrators that Messrs. Lukens and Yerkes were your lessees ? A. I took them as tenants; yes. Q. And jmu laid all the evidence that you had on that question of their being your tenants before the arbitrators, didn’t you ? A. Yes. Q. And presented your claims just in the same wa3^ that you have here to-day,'didn’t you? A. Yes, sir. Q. They heard it all? A. Yes. Q. Didn’t rule out any of it, so far as you know? A. Not so far as I know. . . . Q. You called other witnesses upon that same question ? A. Yes, sir. Q. Mr. McEvoy? A. Yes, sir. Q. He was your witness ? A. Yes, sir. ... Q. In your testimony before the arbitrators, did you claim these damages just as you claim them here ? A. Yes, sir.”

It is therefore clear from this testimony, given on the trial, that one of the issues submitted to the arbitrators by the parties was the question of tenancy and that the appellants laid before them all their evidence on that question. It is not alleged that the arbitrators did not hear all the testimony presented on all the questions raised by the submission.

The arbitrators assigned, in their award, as the reáson for their finding “ that Lukens & Yerkes were not at any time the tenants of March & Brinley under the provisions of the lease made between March & Brinley and William J. McEvoy.” Having the right to determine that question, and the differences submitted being only those which grew out of the relations created by the McEvoy agreement, the finding of no tenancy might have been decisive of all the other questions involved in the controversy. We will not presume that there were no other facts to warrant the award in favor of the appellees than the one recited. Russell on Arb. (7th ed.) 317. We do not know what evidence was submitted to the arbitrators and hence we cannot say that the conclusion of the arbitrators was not correct. McEvoy had the privilege of purchasing the property within five years and what the evidence before the arbitrators shows he and the appellees did as to this privilege, we do not know. That may or may not have affected their finding. The appellants having failed to show a tenancy, there may have been no testimony before the arbitrators, as they evidently thought there was not, to show, in the language of the appellants’ brief, “ alleged acts that were actually tortious and damaging, whetherLukens & Yerkes were tenants or mere trespassers.” Questions of both law and fact were raised by the testimony presented, and by agreement of the parties, these questions were submitted for the final arbitrament of the three arbitrators chosen in the manner agreed upon by the parties. There is no fraud, partiality or collusion on the part of the arbitrators alleged, and neither the evidence on the trial nor the testimony submitted on the motion to take off the nonsuit shows any misconduct on the part of the arbitrators or that they did not consider and dispose of all the questions embraced in the submission. They were constituted by the parties the ultimate judges of the competency of the-witnesses and of the admissibility, weight and relevency of the evidence; they were the tribunal to which the parties submitted for final judgment the law and the facts of the questions in controversy, and plain mistake of law or fact not having been made to appear their award must, in this collateral proceeding, be regarded as final and conclusive.

The judgment is affirmed.


author: Mr. Chief Justice Mitchell,

text:
    Allentown v. Wagner, Appellant.

      Constitutional law — Title of act — Municipalities—Act of March 30, 1903, P. L. 115.
    The Act of March 30,1903, P. L. 115, entitled “An act amending clause 22, of section 3, article 5, of an act entitled ‘An act providing for the incorporation and government of cities of the third class' approved the twenty-third day of May, 1889,” authorizing the establishment of a hospital for contagious diseases outside the limits of a city sufficiently expresses its purpose in its title, and is constitutional.
    The restrictions of the constitution upon legislation apply to direct legislation, not to the incidental operation of statutes constitutional in themselves upon other subjects than those with which they directly deal.
    The words “within the county adjacent” in the Act of March 30, 1903, P. L. 115, do not apply to the site or location of the hospital, but to the county in which it and the city are situated. The hospital may be located in an adjacent township within the same county.

      Statutes — Repeal—Municipalities—Hospital for contagious diseases — Acts of April 11, 1899, P. L. 38, and March 30, 1903, P. L. 115.
    The Act of March 30, 1903, P. L. 115, authorizing cities of the third class to establish hospitals for contagious diseases outside of the limits of the city, does not repeal the Act of April 11, 1899, P. L. 38, giving certain powers to school boards over matters relating to the public health. The two acts create a situation of concurrent powers in two bodies over the same subject, each bound to act with due regard to the other and in case of disagreement necessarily coming to the court for adjustment.

      Municipalities■ — Hospitals—Hospitals for contagious diseases — Act of March 26, 1903, P. L. 63.
    It seems that under the act of March 26, 1903, P. L. 63, cities may erect hospitals for contagious diseases without the city limits.
    Argued Jan. 29, 1906.
    Appeal, No. 162, Jan. T., 1905, by defendants, from judgment of Superior Court Oct. T., 1904, No. 30, affirming decree of C. P. Lehigh Co., April T., 1904, No. 2, awarding perpetual injunction in case of City of Allentown and C. J. Otto, President of the Board of Health, v. Robert A. Wagner et al., Directors of the School District of Salisbury Township, Lehigh County, and the Board of Health of said Township.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Appeal from Superior Court. See 27 Pa. Superior Ct. 485.
    The opinion of the Supreme Court states the case.

      Error assigned was judgment of the Superior Court.

      Clinton A. Croman, with him Milton C. Henninger, for appellants.

      Leo Wise, city solicitor, with him Francis C. Lewis, former city solicitor, for appellees.
    February 26, 1906:
   Opinion by

Mr. Chief Justice Mitchell,

Section 2 of the Act of March 30, 1903, P. L. 115, enacts that clause 22 of section 3, article 5, of the Act of May 23, 1889, P. L. 277, shall be amended to read, “To erect or purchase, establish and maintain, hospitals, prisons, workhouses, and houses of correction for juvenile and other offenders, and to prescribe regulations for the government thereof, and also to erect all public buildings necessary for the use of the city and of any department thereof; to purchase or take, use and occupy private lands upon which to erect any of the said buildings; to purchase, take, use and occupy within the limits of the respective city, or within the county adjacent thereto, private lands, upon which to establish and maintain a hospital or hospitals for the treatment and separation of persons suffering with contagious and infectious diseases.”

The first clause of this section, down to the words “ department thereof ” is a re-enactment in the same terms of the original section 22 of the act of 1889, and is not now in question. But the constitutionality of the succeeding clause authorizing the establishment of a hospital for contagious diseases outside the limits of the city is disputed on the ground that no notice of such power is expressed in the title to the act.

The title to the act of 1903 is “ An act amending clause twenty-two, of section three, article five. ... of an act entitled ‘ An Act providing for the incorporation and government of cities of the third class,’ approved the twenty-third day of May, A. d. 1889. ...”

The act of 1889 is an elaborate and detailed system for the government of cities of the third class. It occupies fifty-five pages of the pamphlet laws, and is divided into nineteen articles covering 145 sections, one of which, section three of artide five with, which we are now concerned, has forty-seven separate and independent clauses dealing with the- municipal powers granted.. Any reference to the-act, therefore, in subsequent legislation, necessarily carries with it notice of a very extensive range of important subjects which may be involved in the new law.

The act of 1903 refers expressly in its title to the specific provisions of the act of 1889 now involved, namely, clause 22 of section 3, of article '5, and turning to that clause it- appears that it provides, inter alia, for the establishment and maintenance of hospitals. The act of 1903 enlarges the municipal power for the same purpose, so as to include not only the specific class of hospitals for contagious diseases, but also the location outside as well as within the city limits. Nothing could be more entirely germane to the subject of the original act, and that under all our cases is the test of constitutionality in the title of a supplementary statute: State Line, etc., R. R. Co’s. Appeal, 77 Pa. 429; In re Pottstown Borough, 117 Pa. 538; Millvale Boro. v. Evergreen Ry. Co., 131 Pa. 1 (18).

The appellants conceding the general rule, as expressed above, nevertheless urge that there is nothing in the title of the amending act to give notice to others than the people of the city itself that their interests may be affected by the proposed legislation. There are cases in which the same or similar objections have been held to defeat the statutes: Quinn v. Cumberland Co., 162 Pa. 55; Boro. of Mt. Joy v. Lancaster, etc., Turnpike Co., 182 Pa. 581. But these are exceptional. In a statute covering so extensive a field, and so many important subjects it is manifestly impossible that the title should give detailed notice to all parties whose interests may be in some manner affected. And even if it did so, very material interests might still be adversely affected without transgressing the rule of prohibition. Thus in the case before us the-city of Allentown by building its pesthouse just within its own limits but immediately adjoining a closely built and populous portion of Salisbury township might affect the health and interests of the people of the township far more than by building it in its present location on Lehigh mountain, and yet the city would be clearly within the letter of its statutory rights.

The subject has inherent difficulties which must be handled with due regard to the circumstances, when the cases arise. In Allegheny County Home’s Appeal, 77 Pa. 77, it was said, by Chief Justice Ag-new, “ The course of decision in this court has been intended to carry out the true intent of the amendment of 1864 as to the title and subject of bills, instead of resorting to shaip criticism which must often bring legislation to nought. The amendment, of • 1864 was in substance proposed in the constitutional convention of 1837-38 and rejected because it was feared it would render legislation.too.difficult and uncertain, and lead to litigation. It will not .do therefore to impale the legislation of the state upon the sharp .points of criticism;’but we must give each title, as it comes before us, a reasonable interpretation út res magis valeat quam pereat.” In reference to subjects which do not appear by name in the title, it was said in In re Sugar Notch Borough, 192 Pa. 349 (356), “ The restrictions of the constitution upon legislation apply to direct legislation, not to the incidental operation of statutes constitutional in themselves upon other subjects than those with which they directly deal.” This is the most specific expression that has yet been evolved, of the general rule as to subjects affected but not -directly intended to be legislated upon. In that case an act entitled “ A further supplement to an act .... entitled a supplement to ah act for the regulation of boroughs,” etc., was held not to be defective in title because in regulating boroughs it incidentally regulated coterminous school districts, though the title gave no express notice to the school districts that they would be affected. Another -illustration closely in point with the present case is in In re Borough of Pottstown, 117 Pa. 538, where the title “ A supplement to an act for the regulation of boroughs,” etc., was held sufficient for an act which authorized the borough to take in part of the territory of the adjoining township, though no 'express notice was given in the title, to the people of the township, our late Brother Clark holding that as the subject of the supplement was entirely germane to that of the original act,- it was .sufficiently expressed in the title. See also on this subject Com. ex rel. v. Dickert, 195 Pa. 234, and Com. v. Gilligan, 195 Pa. 504.

The objections to the constitutionalty of the act cannot be sustained.

The appellants, who were defendants in the bill, asked the judge hearing the case for special findings of fact that the act of 1903 was iu conflict with the Act of April 11, 1899, P. L. 38, and that the latter was not repealed by implication. The first request was refused and the second, though not formally answered, was in effect affirmed. The act of 1899 empowers the school directors of a township to “ make and enforce all needful rules and regulations to prevent the introduction and spread of contagious and infectious diseases by the regulation of intercourse with infected places, by prohibiting from attending any public school any child or other person belonging to or residing with the family of any person or residing in the same house in which any person may be suffering from ” certain enumerated diseases. The main intent of this act was clearly to give the school boards control over the attendance and health of the schools, though the language is perhaps broad enough to confer the general authority of a board of health within the indicated limits. But if there should be any conflict the act of 1903 being the later expression of the legislative will, and also an act of wider scope, must prevail. The learned judge, however, rightly held that there is no necessary conflict. It is a case of concurrent powers in two bodies over the same subject, each bound to act with due regard to the other, and in case of disagreement necessarily coming to the court for adjustment. A pesthouse in some sense is a menace and a danger anywhere, but it must go somewhere, and the commonwealth interested as parens patriae in the welfare of all its citizens has in this instance delegated to cities of the third class the decision of the location where its 'hospitals can be placed with the least danger.

The remaining assignment of error is to the construction of the word “ adjacent ” in the act of 1903. The court found that the hospital was located on Lehigh mountain, within the township of Salisbury and county of Lehigh, but three and a half miles from the limits of the city of Allentown. It is sufficient to say that the word “ adjacent ” in the statute does not apply to the site or location of the hospital, but' to the county in which it and the city are situated.

This case was treated in the common pleas and Superior Courts, and has been argued here as depending upon the Act of March 30, 1903, P. L. 115, and in deference to that view we have so considered it. But the appellee cites the Act of March 26,1903, P. L. 63, which enacts “ that the several cities of this commonwealth shall have power to acquire by purchase any real estate within the city limits, which they may need, upon which to erect or construct necessary municipal buildings, fire-engine houses, gas and electric light works, and, within or without the city limits, within the same county upon which to erect hospitals, waterworks, and for the purpose of a poor farm,” etc., with further provisions for condemnation of such real estate where the city and the owner cannot agree. We do not see why this act did not make an end of the contention in the present case, unless a distinction is attempted to be drawn between a hospital in general under this act, and a hospital specifically for contagious diseases under the act of March 30, a distinction which could not be sustained by anything in .either act.

Decree affirmed at the costs of appellant.


author: Per. Curiam,

text:
    Sandt, Appellant, v. North Wales Foundry Company.

      Negligence — Master and servant — Defect in appliances — Evidence—Nonsuit.
    In an action by an employee against Ms employer to recover damages for personal injuries, a nonsuit is properly entered where the evidence fails to disclose any defect in the appliances used, or if a defect existed, it must have been seen by plaintiff; that of the several theories advanced for the cause of the accident, one was as plausible as the other; and that if the case were left to the jury, the verdict would be a mere guess as to the real cause.
    Argued Jan. 30, 1906.
    Appeal, No. 280, Jan. T., 1905, by plaintiff, from order of C. P. Montgomery Co., Oct. T., 1904, No. 113, refusing to take off nonsuit in case of Titus Sandt v. North Wales Foundry Company.
    Before Mitchell, C. J., Brown, Mestrbzat, Potter, and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Weand, J.

      At the trial the court entered a compulsory nonsuit. Subsequently on a motion to take off the 'nonsuit, Weand, J., filed the following opinion:
    • Plaintiff was employed about the molding room of the defendants’ foundry and an accident having occurred by which he was injured, he has brought this suit to recover damages, alleging negligence on part of defendants in not providing proper machinery, and not instructing him, etc.
    A “ cope ” is part of the double sand-filled flask, within which the pattern has been placed and the casting made. .
    After the cast is completed it is necessary to clean out the sand from the “ cope ” and this is done by ramming it out with an iron or wooden bar. The cope • is hoisted by a crane and suspended by chains to a hook: The sand is then punched or rammed out. This was the work in which plaintiff was engaged when the accident occurred. The cope “ wobbled ” or “ tilted,” slipped off the hook and struck .plaintiff on his foot,, injuring him severely. It had “ wobbled ” or “ tilted ” frequently before and plaintiff had been engaged in the same work for a number of days previously,’having abundant opportunity to observe the operation. It was ordinary labor, requiring no skill or instruction.
    The accident occurred at a time wheh plaintiff and another were ramming out the sand, causing the cope to “ tilt ” and slip from the hook.
    No witness to the' accident could tell what caused the slipping off the hook and three theories can be assigned, viz :
    1. That the chains were improperly placed upon the hook before the cope was raised.
    2. That the ramming or punching of the sand by plaintiff and another caused the wobbling or titling and the slipping of the chains from the hook. •
    ’ 8, That the hook was too small and cope chains too short. •’ From the evidence one theory was as plausible as another and the jury would have been left to guess. As the accident itself gave no cause of action plaintiff was required to prove negligence or omission of duty on part of defendants. With the well-known sympathies'-of juries for injured employees and consequent verdicts against corporations, the court is compelled to enforce tire law that negligence must be shown and not conjectured.
    If the accident was caused by reason of the improper placing of the chains on the hook by a fellow workman or by the. ramming of plaintiff there could be no liability on part of the defendants, and as the accident could with equal propriety be attributed to either of these causes the case is ruled by Alexander v. Penna. Water Co., 201 Pa. 252, and Price v. Lehigh Valley R. R. Co., 202 Pa. 176.
    The evidence as to the insufficiency of the hook was not sufficient to convict defendants of negligence. It had been used frequently before, had answered its purpose and although, it might have been larger or of a different shape this .was a matter of judgment. The witnesses who spoke of its defects or insufficiency had used others of different make or size, but as there was no standard hook or method of attaching the cope to the crane chain this 'testimony was of little importance. Besides, it was entirely theoretical. The party charging negligence does not show it by showing that the machinery was not in common use. If it should be so held the use of the newest and best machinery if not generally adopted, could be adduced as évidence of negligence: Smith v. Traction Co., 202 Pa. 54; Cunningham v. Fort Pitt Bridge Works, 197 Pa. 625 ; Titus v. Bradford, etc., R. R. Co., 136 Pa. 618.
    The language of Mr. Justice Fell in McClain v. Henderson, 187 Pa. 283, may be applied to this case: “ The testimony of the witnesses who saw the accident which resulted in the death of the plaintiff’s husband fails to furnish any explanation of its cause from which an inference of negligence on the part of the defendant could arise. The attempt at the trial seems to have been, not to develop the facts immediately connected with the occurrence, but to establish by expert testimony a theoretical cause which at most was one of many equally probable causes.” In many respects the case cited is analogous, and there as here “ it did not appear whether the dropping of the bucket was caused by overloading, by defects in the machinery, or by unskillful management.”
    The plaintiff was about forty-four years of age and had been in the employ of defendants for about eleven months. He had ■been engaged in the particular work- at the crane apparatus for twenty-six days prior to the accident and had assisted in raising the cope during that period seventy-eight times, i. e., three times each day — that he had assisted in freeing the cope from sand once each day during the said period. During this time the apparatus was in the same condition as at the time of the accident. There was no latent defect in the apparatus and nothing broke. If to the mind of the plaintiff, who was engaged in the work, there was no defect in the machinery, how could his employers be any wiser? If it was dangerous why did he continue in the work? Iiis ejms showed him everything that was necessary to be known as regards the safety of the operation. Instruction was not necessary, and any ordinary laboring man could have done the work. When the cope “ tilted ”-it was because it was overloaded, improperly balanced or punched too hard, and this should have pub plaintiff on his guard; and if for either reason the chains- slipped — the most plausible theory — the defendants are not liable.
    If plaintiff’s witnesses are to be believed the danger was obvious and he assumed the risk of employment, and according to his own testimony, “ every time we rammed out the cope shook and the chains spread one time like the other.”
    A workman is under no obligation to continue working in a dangerous place of employment. If he does so, with every opportunity to know the danger, he cannot excuse his own want of care in failing to notice and guard against it, by alleging that his employer promised to do this, and had failed to observe his promise : Reese v. Clark, 146 Pa. 465.
    Where an accident results from an unforseen cause not discernible in advance of its occurrence, with no visible defect in any part of the machinery and no knowledge of any defect on the part of the men who were constantly using the machine^, or of the employer, the accident is one of the ordinary risks of the employment which the servant takes upon himself: Bradbury v. Kingston Coal Co., 157 Pa. 231; O’Dowd v. Burnham, 19 Pa. Superior Ct. 464.
    We are of opinion that the evidence failed to disclose any defect in the appliances used, and if it does, that the defect and danger must have been seen by plaintiff; and also that as the accident could with equal propriety be attributed to the force used by the ramming or improper loading or placing of the chains upon the hook, that the verdict of the jury would have been a mere guess as to the real cause.
    And now, to wit: April 3, 1905, the motion to take oft the nonsuit is overruled.

      Error assigned was refusal to take off nonsuit.
    G. Herbert Jenkins, for appellant.

      Erancis K. Swartley and Bruce A. Metzger, for appellee, were not heard.
    February 26, 1906:
   Per. Curiam,

The judgment is affirmed on the opinion, of the court below, refusing to take off the nonsuit.


author: Per Curiam,

text:
    Kreamer v. Perkiomen Railroad Company, Appellant.

      Negligence — Railroads—“Stop, look and listen" — Presumption—Evidence— Province of court and jury.

    In an action against a railroad company to recover damages for death at a grade crossing, the presumption is that the deceased did his duty to “stop, look and listen” before driving on the tracks. Whether that presumption is rebutted is for the jury, unless the evidence to the contrary is clear, positive, credible and either uncontradicted, or so indisputable in weight and amount, as to justify the court in holding that a verdict against it must be set aside as a matter of law.
    In such a case it appeared that no one witnessed the accident. From measurements given by defendant’s witnesses, it appeared that at a distance of fifteen feet from the track, the deceased if he had looked, could have seen 320 feet, and twelve feet from the track he could have seen 400 feet. The train was going at the rate of twenty to twenty-five miles an hour. The evidence was conflicting as to whether a whistle was sounded, or a bell rung. Held, that the case was for the jury, and that a verdict and judgment for plaintiff should be sustained.
    Argued Jan. 30, 1906.
    Appeal, No. 290, Jan. T., 1905, by defendant, from judgment of C. P. Montgomery Co., June T., 1903, No. 25, on verdict for plaintiff in case of Barbara Kreamer V. Philadelphia and Reading Railway Company, amended'to read Perkiomen Railroad Company.
    Before Mitchell, C. J.,. BroWn, Mestrezat,-Potter and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband. Before Weand, J.
    At the trial the jury returned a verdict for the plaintiff for 12,500. '
    A-Ón a motion for-judgment non-obstante veredicto, under the Act of April 22, 1905, P. L. 286, Weand, J., filed the following opinion:
    Plaintiff’s husband was killed at a'grade crossing by defendant’s engine, and her suit.is to recover damages. The accident occurred in the daytime. No witness introduced, by plaintiff witnessed the occurrence and the case, so far as she was concerned, went to the jury, upon the presumption that the deceased had stopped,’ looked and' listened, and was free from contributory negligence. Plaintiff contended that no proper notice of the approaching train had been given.
    The evidence of defendant’s witnesses, if believed, established the fact that proper notice of the approach of the train had been given, and that the. deceased when crossing the tracks was not looking; and that the horse apparently was walking slowly without a driver. The' jury, however, found against the defendant on the contradictory testimony as to the blowing of the whistle, and the testimony of the engineer and fireman as to how the deceased made the crossing.
    Defendant’s request for binding instructions was refused.
    The motion is for a new trial, and for judgment non obstante under the Act of April 22, 1905, P. L.-286.
    This act was approved after the verdict, but we are treating the case as if it applied.
    The contention of defendant is, that the legal presumption that the deceased stopped, looked and listened, is met by the evidence showing at what distance he could have seen the approaching train, and if he had looked immediately before going upon the track, or, when some- distance - from it, he must have seen itj and that this, fact rebuts the-'presumption'in his favor. The deceased!-w-as struck when about-in-the'-middle-of--the tracks. In Patterson v. Pittsburg, etc., Railway Co., 210 Pa.. 47, it was said: “ In an action against a railroad company to; recover damages for death at a grade crossing, the presumption, is that the deceased did his duty to ‘ stop, look and listen ’ before driving on the tracks. Whether that presumption is rebutted is for the jury, unless the evidence to the contrary is clear, positive, credible and either uncontradicted, or so indisputable in weight and amount, as to justify the court in holding that a verdict against it must be set aside as a matter of law.”
    Uuder this ruling should the court have sustained the defendant’s request for binding instructions ? Does the evidence show such an unobstructed view as that the conclusion must inevitably follow that deceased did not do his duty?
    From the measurements as given by defendant’s witness, it appears that at the distance of fifteen feet from the track, where the “stop, look and listen” post is placed, the deceased, if he had looked, could have seen 320 feet, and at twelve feet from the track, he could have seen 400 feet.
    The train was going at the rate of twenty to twenty-five miles an hour. It is evident that if he had not stopped at either point with the engine visible, he was guilty of negligence. But even if he could see The distance named, but no engine, was in view and no whistle blown, it does not follow that he might not still have been struck. If he saw no train and heard no’ whistle, he had the right to proceed, and we must accept the finding of the jury that no whistle was sounded at the proper place.
    There was no testimony as to the character of the horse or of the speed when approaching close to the track.
    In Schwarz v. D., L. & W. R. R. Co., 211 Pa. 625, our Supreme Court said: “ In an action for death at a grade crossing, for the court to assume, in attempting to show by mechanical calculations, the contributory negligence of deceased, that the train was moving at a speed of forty miles per hour, and the wagon at a speed of two miles per hour if the evidence was disputed, was error.” • ,
    The counsel for defendant has attempted to convince us by the relative speed of the train and the vehicle that the deceased must have seen the train if he had looked at the proper point, and time. All this was submitted to the jury for their consideration in two trials, both of which resulted in verdicts for the plaintiff, under charges highly favorable to defendant.
    In Schwarz v. R. R. Co., 211 Pa. 625, it was further said :■ “ When a'person crossing a railroad can only see a train approaching for 585 feet if he stops at the proper place, the railroad company should regulate the- speed of its trains so as to make it possible for a driver to cross in safety if he has stopped, looked and listened at the proper place.’’ This ruling would seem applicable to this case and answer the argument of defendant’s counsel.
    In Cromley v. Penna. R. R. Co., 208 Pa. 445, it was said: It cannot be said that the driver saw the train or should have seen it, because it may have come into view in the 500 feet to which his line of vision was at first limited, after he had looked and started to cross.” This ruling required the case to go to the jury. “The statement in the opinion in Carroll v. Penna. R. R. Co., 12 W. N. C. 348, that plaintiff’s testimony should have been disregarded by the court because it stood alone, and was positively contradicted by the testimony of five wholly disinterested and unimpeached witnesses who had equally good opportunities of observation, has not since been approved and it cannot be on principle, because it overlooks the well-defined distinction between the province of the court and that of the jury: ” Cromley v. Penna. R. R. Co., 211 Pa. 429.
    We are therefore of the opinion that the motion for judgment non obstante veredicto and for a new trial upon the questions of law raised must be overruled.
    It is also complained that the damages awarded are excessive. Deceased and plaintiff were about the same age, sixty-eight. His earning power was very limited and would naturally decrease with advancing years. The jury evidently capitalized the amount to which they thought the widow and family were entitled. If we assume that Mr. Kreamer would have lived ten years and allowing to his family $200 per year, $1,600 would be all, if not more, that they could lawfully claim.
    And now, September 4, 1905, motion for judgment n. o. v. is overruled, and upon plaintiff filing a remittitur within ten days for all over $1,600 and costs, a new trial is refused. Otherwise a new trial is granted.

      Error assigned was the judgment of the court.

      Montgomery Evans, with him John M. Dettra, for appellant.
    The evidence of contributory negligence was such that the case should have been withdrawn from the jury: Penna. R. R. Co. v. Beale, 73 Pa. 504; Kinter v. Penna. R. R. Co., 204 Pa. 497; Blotz v. R. R. Co., 212 Pa. 154; Gangawer v. R. R. Co., 168 Pa. 265; Corcoran v. R. R. Co., 203 Pa. 380; Holden v. R. R. Co., 169 Pa. 1; Urias v. Penna. R. R. Co., 152 Pa. 326; Myers v. B. & O. R. R. Co., 150 Pa. 386; Baker v. R. R. Co., 182 Pa. 336; Reading, etc., R. R. Co. v. Ritchie, 102 Pa. 425; Patterson v. Ry. Co., 210 Pa. 47; Dryden v. Penna. R. R. Co., 211 Pa. 620.
    The presumption is that the trainmen of a railroad company performed their duty in the matter of giving signals when a train approaches a crossing: Keiser v. Railroad Co., 212 Pa. 409; Knox v. Ry. Co., 202 Pa. 504; Hauser v. Railroad Co., 147 Pa. 440; Urias v. Railroad Co., 152 Pa. 326.

      Louis M. Childs, for appellee.
    February 26, 1906:
   Per Curiam,

The judgment is affirmed on the opinion of the court below refusing a new trial.


text:
    Cox v. Schuylkill Valley Traction Company, Appellant.

      Negligence — Street railways — •“ Stop, look and listen ” — H-eadlight on car— Positive and negative testimony — Evidence.
    Where a street railway company runs an electric car whose lights have gone out, rapidly down a steep grade, with the headlight not lighted, and the car runs over a person crossing the tracks, the question of the company’s negligence is for the jury.
    Where persons are waiting and watching for an approaching street car, and are looking in the direction from which the car is coming, and the car is directly in their presence, the court will not say that their evidence was negative, when they declare the car had no headlight burning, and was in such complete darkness that it could not be seen at all.
    Where a person on a highway approaches the tracks of a street railway on a dark night, with the intention of crossing the tracks so as to board the car on the side where the seats were open, and he testifies that he stopped, looked and listened before going on the tracks, and that he was struck by a car in crossing, and that he did not see the car because, its lights were out, and no headlight was burning, the question of the passenger's contributory negligence is for the jury.
    Argued Jan. 30, 1906.
    Appeal, No. 320, Jan. T., 1905, by defendant, from judgment of C. P. Montgomery Co., Dec. T., 1904, No. 44, on verdict for paintiff in case of Martin J. Cox v. The Schuylkill Yalley Traction Company.
    Before Mitchell, C. J., Brown, Mestrbzat, Potter, and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Swartz, P. J.
    At the trial the jury returned a verdict for plaintiff for $2,500, subject to question of law reserved.
    On motion for judgment non obstante veredicto, Swartz, P. J., filed the following opinion :
    We reserved the question “ whether there is any evidence to be submitted to the jury upon which the plaintiff is entitled to recover.” The plaintiff was injured by a trolley car while he was crossing the tracks. It became necessary to amputate his leg about three inches above the ankle. The jury found a verdict for him for $2,500.
    The plaintiff intended to board the car as a passenger. The car had a guard or safety rail next to him so that it was necessary to cross the tracks and enter the car from the opposite side. The tracks of the railway at the place of the accident crossed from one side of the public highway to the other. There was no intersecting highway at this point, but the cars were accustomed to stop there when any persons desired to enter or leave a car. The point was opposite a hotel and the cars frequently discharged and received passengers at the place of the accident.
    The plaintiff charged the company with negligence in operation of the car which injured him. The statement of the plaintiff alleges that the car was run at an excessive speed and without a headlight. More than 300 yards east of the place of the accident the car crossed an overhead railroad bridge and from the bridge to the point of the accident there was a clear unobstructed view. From the bridge the car came down a steep descending grade, but just before the plaintiff was struck the grade changed to a slight ascending one. The car in its passage from the bridge to the point of the accident was in darkness, — that is, the lights in the car went out. This was due to the trolley pole slipping from the wire and also probably to the interruption of the power or electric current for a few seconds. The accident occurred between 9:80 and 9:45 P. M. and the night was very dark.
    There was evidence on the part of the plaintiff that the car was behind time and came down the hill at an unusual speed, that it ran very fast, unusually fast. The conductor came to the plaintiff at the time of the accident and while the plaintiff was on the ground where the car had thrown him, and made the remark “ that he was late and wanted to make up time.”
    We eliminated the question of speed from the consideration of the jury, and we also told the jury that if the headlight was burning the plaintiff could not recover. We concluded that the plaintiff was guilty of contributory negligence if he stepped in front of a moving car that was in full view for more than 300 yards before it reached him. This may have been a more favorable view for the defendant company than was warranted by the law and the evidence. It may have been a question for the jury whether the plaintiff was negligent even if the headlight was burning. The night was dark; the plaintiff testified that he stopped, looked and listened before he entered upon the tracks and the car was dark so far as there were any lights in the car: McGovern v. Union Traction Co., 192 Pa. 344. Cars, however, are allowed to run fast, especially in country districts; their office is to conduct passengers rapidly from one point to another. The accident occurred on a public highway about one-half mile below Norristown. Whether we were right or wrong the defendant company had the benefit of our ruling. We presented the case to the jury whether the company was negligent if it was without a headlight and whether the plaintiff was negligent in stepping in front of the car even if it was running without the headlight.
    The running of this dark car rapidly down a steep grade with the headlight out, that is, not lighted, was clearly evidence of negligence for the consideration of the jury. We said to the jury, — “ I call your attention to the other charge of negligence, that this company did not have a proper light as a headlight upon the car, because, gentlemen of the jury, if there was nothing about this car to notify a man who stopped, looted and listened, he might have used proper care and yet have received no information that a car was close at hand and therefore if he attempted to cross, you might find that it was not through his negligence, but because the company did not give him the protection that it ought to have given when running upon this highway.”
    It is claimed that there was no sufficient evidence that the headlight was not lighted to submit that inquiry to the jury. Let us examine the evidence upon the part of the plaintiff. If this testimony made out a clear case for the jury by positive evidence it matters not how strong the contradictory evidence of the defendant may have been. It was then a question for the jury to determine which side they would believe or which side carried conviction to their minds.
    The plaintiff and the witness Krier were on the hotel porch waiting for an up car. The plaintiff testifies that Krier said: “ Come on, Mart. So I got up and walked out; you could not see anything along the line, and I stopped; and I stopped there for quite a little bit, and I walked across and I was about making my last step when the car struck me.” Krier says when he called on the plaintiff to come on the trolley was on the hill. Therefore, when the plaintiff looked the car must have been within his view, and if he saw nothing along the line the plaintiff (if he tells the truth) ’failed to see the car because the car was without light. He says he did not see the car at all. He was asked, “ Did you look in the direction the car was to come?” He answered, “ Yes, sir. “ Q. What did you stop there for ? A. I wanted to see whether there was anything coming or not. I could not see anything. Q. Why did you say you stopped ? A. I could not see anything, it was all dark.” The question was repeated later on in the examination and he answered again, — “ to see whether I could see anything coming, I could not see anything coming down.”
    Mr. Krier testifies: “ Q. Did you look in that direction ? A. I looked but I didn’t see no car. I did not see it from the time I seen it on the hill. Q. Did you see any headlight? A. No, I did not. Q. You saw no headlight ? A. I saw no light whatever to my knowledge. I looked down and didn’t see no car after I seen it on the hill. Q. Why couldn’t you see it with a headlight on ? A. I could not see a headlight when there was none I don’t think. Q. Suppose there was a headlight? A. I could have seen the car. Q. You could have seen the car? - A. Yes, sir.” Again he said : “I did look and surely I could have seen a headlight if there was one burning.”
    Mrs. Matz was a passenger on the car and says there was no headlight burning. She looked for the reflection from the headlight. “ Q. You could not see the headlight, of course? A. You could see the reflection if there was any. Q. Did you try this night to see the reflection of the headlight? A. Yes, sir. ... I had my eyes open. I would have seen the light if it would have been there.” As the car within was in total darkness a headlight would have been the more visible if burning. It is claimed that the evidence of the plaintiff’s witness is negative testimony and therefore of no weight. I cannot agree to this. Where persons are waiting and watching for a car and are looking in the direction of the approaching car and the car is right in their presence, it will not do to say that their evidence is negative when they declare the .car had no headlight burning and was in such complete darkness that it could not be seen at all. There was some evidence of a negative character given by the witnesses seated on the hotel porch. They had no occasion to watch for the car and they were not interested in its movements. One of the witnesses, however, passes a little beyond the negative line. He noticed the car at the lower crossing and observed the speed. He saw no lights on the car. On cross-examination he said he saw the car on the lower crossing, — that is, before it reached the point where the accident occurred. “Q. How came you to see it there if no light was lighted ? A. I was looking that way. I was looking right toward the trolley track. Q. Then you could see it without lights? A. Yes, from the light from the hotel — the reflection. Q. Without any lights on the trolley at all you could see it? A. Yes, sir.” If he watched the car if only by reason of the reflected- light from the hotel it would seem to follow that there was no headlight on the car. An approaching car without any lights in the car and on a dark night will surely disclose its presence by the burning headlight. The headlight will be the more brilliant in appearance because of the surrounding darkness.
    We were careful to call the attention of the jury to the difference between negative and positive evidence. Where witnesses are interested in an approaching train and give attention to it by watching for it or listening for it, and then state the certain signals alleged to have been given were not heard by them, their evidence is not, under such circumstances, merely negative: Quigley v. Canal Co., 142 Pa. 388. So we may say that the witnesses Cox and Krier were interested in the arrival of the car and their attention would be attracted bj^ any signal, or approaching headlight. Common experience teaches that such person will observe warnings when others with no object in awaiting the ear might not hear or notice the signals or the approaching headlight: Daubert v. R. R. Co., 199 Pa. 345.
    Under the disputed evidence we do not see how the court could have instructed the jury to render a verdict for the defendant. We may think that the evidence in support of a lighted headlight is stronger than the opposing testimony, but this belief will not justify us in entering judgment for the defendant on the question reserved and no other motion is pending before us on the record.
    And now, October 16, 1905, the motion for judgment in favor of the defendant on the question reserved is overruled and it is ordered that judgment be entered for the plaintiff on the verdict upon the payment of the jury fee.

      Error assigned was the judgment of the court.

      N. H. Larzelere, for appellant,
    cited as to contributory negligence: McCartney v. Union Traction Co., 27 Pa. Superior Ct. 222; Sullivan v. Consolidated Traction Co., 198 Pa. 187; Watkins v. Union Traction Co., 194 Pa. 564; Blaney v. Traction Co., 184 Pa. 524; Boring v. Union Traction Co., 211 Pa. 594; Pieper v. Traction Co., 202 Pa. 100.
    Cited as to defendant’s lack of negligence: Keiser v. Lehigh Valley R. R. Co., 212 Pa. 409; Graham v. Penna. Co., 139 Pa. 149; Siegler v. Mellinger, 203 Pa. 256; Knox v. Ry. Co., 202 Pa. 504; Lonzer v. Lehigh Valley R. R. Co., 196 Pa. 610.

      Henry I. Fox, for appellee,
    cited: Daubert v. R. R. Co., 199 Pa. 345; Quigley v. Canal Co., 142 Pa. 388; Jones v. R. R. Co., 202 Pa. 81; Todd v. Ry. Co., 201 Pa. 558; Hamilton v. Traction Co., 201 Pa. 351; Jones Bros. v. Ry. Co., 9 Pa. Superior Ct. 65; Fisher v. Ry. Co., 131 Pa. 292; McGovern v. Union Traction Co., 192 Pa. 344; Howett v. R. R. Co., 166 Pa. 607.
    February 26, 1906:
   Per Curiam,

The judgment is affirmed on the opinion of the court below.