author: Pee Ctjeiam,

text:
    Commonwealth, ex rel., Appellant, v. Middleton.

      Constitutional law—Uniformity—Local and special laws—Statutes—School laws—Act of May 23, 1874, sec. 41, P. L. 230.
    There is no constitutional requirement of uniformity in legislation as to matters included in section 7 of article III of the constitution. That section prohibits local and special laws upon certain enumerated subjects and thereby requires that the legislation upon such subjects shall be general. Uniformity of provision or of result, is not therefore in itself a requirement, but merely one of the tests judicially applied to determine the local, special or general character of the statute challenged.
    A law may by classification or otherwise produce some diversity of result and yet be general, for where the classification is based on genuine distinctions, its expediency is for legislative determination.
    The fourth proviso of section 41 of the act of May 23, 1874, is not in conflict with section 7, article III of the constitution, but is a valid enactment.
    Section 42 of the act of May 23, 1874, accepted by the school district of the city of Harrisburg by authority of the proviso is the law of that district.
    The city treasurer of the city of Harrisburg, is ex officio, school treasurer of the school district of the city.
    Argued Jan. 12, 1905.
    Appeal, No. 1, May T., 1905, by plaintiff, from judgment of C. P. Dauphin Co., Commonwealth Docket, 1904, No. 79, on demurrer for defendant in case of Commonwealth ex rel. Hampton L. Carson, Attorney General, v. William H. Middleton.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Demurrer to answer in quo warranto.

      Ktjnkrl, J., filed the following opinion :
    On April 19, 190-1, the attorney general filed his suggestion in this court for a writ of quo warranto, alleging that the defendant is exercising the office of school treasurer of the common school district of the city of Harrisburg without authority of law.
    Pursuant to this suggestion the writ was issued, and on the same day the defendant made answer thereto, denying that he was exercising the office of school treasurer without any warrant of law, and averring on the contrary that he was elected to the office of city treasurer of the city of Harrisburg by the councils thereof on January 6, 1904, and subsequently, on February 16,1904, was duly elected to that office by the electors of the city of Harrisburg, and by virtue of such election entered upon the discharge of his duties as city treasurer. He also averred that on May 27,1884, the school district of the city of Harrisburg, as authorized by the fourth proviso of section 41 of the Act of Assembly of May 23, 1874, P. L. 230, in the manner prescribed by the act, duly accepted sections 42 and 43 of that act, wherein it is provided, among other things, that the city treasurer shall, ex officio, be school treasurer, and that by virtue of his election to the office of city treasurer and the assumption of the duties of that office, he has become school treasurer of the common school district of the city of Harrisburg, and has been legally acting, ex officio, as school treasurer and claims the right to continue so to act. He further averred that the common school district of the city of Harrisburg was created by the general school law of the commonwealth, and the Act of Assembly of April 22, 1868, P. L. 1136, and that since the first Monday of June, 1869, it has existed and has been organized under these laws, except in so far as they have been modified by the acceptance of sections 42 and 43 of the act of May 23,1874.
    To this answer the commonwealth has demurred, claiming that the fourth proviso of section 41 of the act of May 23,1874, is unconstitutional and void, being in violation of section 7 of article III of the constitution of the commonwealth, and that it conferred no authority upon the board of school directors of the district to accept or adopt sections 42 and 43 of the act of assembly, and claiming also that the act itself, so far as it relates to affairs of school districts, is unconstitútional and void in that the act contains more than one subject and its title contains no reference to any legislation in the body of the act relative to the affairs of school districts.
    There aré thus raised two questions, the constitutionality of the act of May 23, 1874, and the constitutionality of the fourth proviso to section 41 of the act. ''
    The first question was not seriously pressed upon the argument of the case, nor do we well see how it could be in view of the cases of Commonwealth v. Gilligan, 195 Pa. 504, and of Commonwealth v. Howell, 195 Pa. 519, in which-the constitutionality of the act was directly affirmed.
    The second question was elaborately argued, and it was urged with great earnestness that the fourth proviso of section 41 was violative of section 7 of article III of the constitution. Section 41 declares that cities of the third class shall constitute one school district and after providing for the election of school controllers and the organization of the school board follows with the proviso: “ Provided further, That none of the provisions of this act shall be applicable to the election of directors or controllers of the public schools, to the organization of school board, to the election of school treasurer, or of any other officer of said board, to the receiving and collection of school taxes in any city of the third class constituting one school district; but thé said district shall be governed by laws heretofore enacted applicable to the same, if the acceptance of this act required by section 57 hereof shall be accompanied by a certificate of the school district signed by the proper officers thereof expressing its desire to retain the laws governing it independent of this statute, otherwise this act shall govern the same.” Then follows the fourth proviso, which is here assailed, “ And provided further, That it shall be lawful for such board in its discretion by a vote of its members as aforesaid from time to time to accept any of the provisions of this act regulating school matters and after such acceptance, duly recorded on the minutes-of said board, said provisions so accepted shall be the law of such district.”
    Section 7 of article III of the constitution provides “the general assembly shall not pass any local or special law .... regulating the affairs of counties, cities, townships, wards, boroughs or school districts.” The city of Harrisburg is a city of the third class, having accepted the proviso of the act of assembly of May 23, 1874, relating to the classification and government of cities. The common school district of Harrisburg at the time the city accepted this act filed its certificate expressing its desire to retain the law governing it independent of this statute, as provided by the proviso just quoted. The district was governed by the general school law of 1854, and by the act of assembly of April 22, 1868, prior to May 27,1884, when by a resolution of the school board duly passed by virtue of the authority contained in the fourth proviso of section 41 of the act of May 23, 1874, sections 42 and 43 of that act were accepted. Section 42 provides that “ the city treasurer shall ex officio be school treasurer and before entering upon the duties of his office shall give bond to the school directors conditioned for the faithful performance of his duties in such amount as the board shall direct and with such sureties as shall by them be approved, and shall also before he enters upon his office take and subscribe an oath or affirmation of like nature as is hereinbefore prescribed for the city treasurer.” So that at the present time the school district of the city of Harrisburg is governed by the general school law of 1854, the act of April 22, 1868, and by sections 42 and 43 of the act of May 23, 1874, and it is by virtue of section 42 that the defendant claims to exercise the office of school treasurer.
    The contention of the commonwealth is that the defendant is not by reason of his being city treasurer ex officio school treasurer because the fourth proviso of section 41 of the act of May 23, 1874, is void, being in conflict with section 7, article III of the constitution, and it therefore conferred no authority upon the school board to accept section 42 of that act, and that section 42 is not the law applicable to the school district of the city of Harrisburg.
    It will be seen that the fourth proviso of section 41 permits the school boards of school districts coterminous with cities of the third class to accept from time to time any of the provisions of the act regulating school matters.
    This option, it is urged, tends to produce local and special results, and is therefore violative of the constitution. There is no doubt if this be so the proviso must fall. When the legislation is such as to make diversity possible, it is in conflict with section 7 of article III of the constitution and void: Commonwealth v. Reynolds, 137 Pa. 389. If, on the other hand, its tendency is to uniformity, it is constitutional: Reading v. Savage, 124 Pa. 328. It is urged that under this proviso one school district in this class may accept one of the provisions of the act and another a different provision; and thus diversity is produced among school districts of the same class.
    But we are not clear that this result follows in the sense in which the rule is laid down and intended to be understood by the courts. The act of 1874 provides a uniform and general system for the government of school districts of the third class, and it may well be said that when a school district exercises the option to accept one or more of its provisions and thus substitutes for its special or local features a provision of the general system, it to that extent conforms to the general system, and the legislation which authorizes the option thus tends to uniformity.
    As related to one another, the school districts which accept different provisions of the act may in respect to the provisions accepted differ, and that, too, more than they did before their acceptance, but as related to the system established by the act for their government and regulation such districts by their acceptance are each more nearly assimilated to the uniform system provided by the act.
    In Commonwealth v. Reynolds, 137 Pa. 389, which is relied upon as supporting the view urged upon us by the commonwealth, the situation was quite different from the situation here. That case involved the validity of the act of May 23, 1889, relating to school districts in cities of the third class, and the act was declared to be void because it authorized existing cities of that class incorporated by special laws to accept its provisions without at the same time accepting those of the act of May 23, 1874, authorizing the classification. The act of 1889 created a system independent and complete in itself for the government of school districts of the class already fully provided for by the act of May 23, 1874. As was said by Clark, J., in that case, “ it (the act of 1889) contains provisions wholly different from those of the act of 1874; it not only changes the provisions in the general act, but adds other and entirely new provisions relating to the affairs of the schools of the school districts.”
    Thus, if the act of 1889 had been held to be valid, there would have been two general systems for the government of school districts of the same class, the one system differing from the other in many essential particulars, under either of which systems school districts of the same class were allowed to elect to come. This necessarily tended to diversity. The diversity was occasioned by the act of 1889, providing another and additional system of government for school districts of the class already provided for by the act of 1874. In the Scranton School District’s Appeal, 118 Pa. 176, the act of 1875, which was under consideration there, was a supplement of the act of 1874, and it provided a system for the assessment and collection of taxes, the classification of real estate, for the meeting of councils, for representation in councils and the qualification of counoilmen, and other matters relating to municipal affairs. Most all these matters were provided for in the act of 1874. The fifth section of the act of 1875 declared that no city of the third class should become subject to the act unless accepted by it. This option, if the act had been valid, would have produced the result of cities of the same class operating under totally different systems respecting their municipal affairs. Such diversity was held to be fatal to the validity of the act. The diversity in these cases was due to the existence of two general independent systems of government for school districts of the same class in the one case and for cities of the same class in the other.
    But in the present case we have one general system provided by the act of 1874 for the government and regulation of school districts of the third class, and we are not prepared to say that the privilege given to school districts of this class gradually instead of at once to change their old local and special systems for the new is a breach of the rule respecting possible diversity.
    The third proviso of section 41 permits the school district to decline to come under the system provided for the government of school districts of this class, and this proviso was declared, in Commonwealth v. Guthrie, 208 Pa. 209, to be valid. It is difficult to see why a proviso that permits the rejection of all the legislation of the act by school districts of this class, thus leaving them to be governed by laws independent of this statute, is valid, while a proviso that permits them to accept part of the legislation in substitution of part of the special legislation under which they formerly acted should be held to be void; as was said in Reading v. Savage, 124 Pa. 828, and repeated in Commonwealth v. Guthrie, 203 Pa. 209, those that do not embrace the opportunity to become subject to the provisions of the act simply remain as they were before, so it may be said in the present case, those that do not accept all the provisions of the act of 1874, but some only, as to those not accepted remain as they were before.
    The evident purpose of this proviso was to permit school districts of this class to come under the general system thus provided step by step as might suit their needs. There is nothing in the act to indicate any attempt on the part of the legislature to infringe upon the constitution or evade its provisions. As was said by Mitchell, J., in Commonwealth v. Gilligan, 195 Pa. 504, “ undoubtedly many acts have been passed whose framers intended to evade the constitutional prohibition. These the courts have unhesitatingly struck down, and may safely be relied on to continue to do so. But when the legislative intent is not to evade the restrictions, the courts are not required to be astute in extending them over cases not really within the evil prohibited, though the form may have the appearance of coming within the literal words of the constitution.”
    Nor is the special or local result which is here suggested as following from the option given in the proviso the evil which section 7, article III, was designed to correct. “ The evil at which the prohibitions of article III were directed was the interference of the legislature with local affairs without consulting the localities and the granting of special privileges or exemptions to individuals or favored localities.
    “ It was said by Justice Stebkett in Ayars’s Appeal, 122 Pa. 266, that during the session of the legislature immediately preceding the adoption of the present constitution nearly 150 local or special laws were enacted for the city of Philadelphia, more than one third that number for the city of Pittsburg, and for other municipal divisions of the state about the same proportions. This was by no means exceptional. A cursory examination of the pamphlet laws of 1873 shows that no less than thirty-one of these local laws relating to Philadelphia were acts over the heads of councils and the courts directing the opening, paving or vacating particular streets by name. This is a fair specimen of the kind of local and special legislation that was the real evil to be corrected:” Commonwealth v. Gilligan, 195 Pa. 504.
    This proviso has stood upon the statute books unchallenged for thirty years. It has been the law of the school district of the city of Harrisburg for twenty years. The section of which it is a part with its other proviso has been sustained by the court of last resort: Commonwealth v. Gilligan, 195 Pa. 504; Commonwealth v. Guthrie, 203 Pa. 209. The act itself has withstood assault on constitutional grounds: Commonwealth v. Gilligan, 195 Pa. 504. In the language of Mitchell, J., in Commonwealth v. Gilligan, “ while these are not reasons for refusing to declare it void if in contravention of the constitution, yet they are strongly persuasive that the (proviso) is not so clearly unconstitutional as it should be shown to be to make it our duty to set it aside.” We are not satisfied that the contention of the commonwealth is maintainable. To doubt is to be resolved in favor of the constitutionality of the proviso: Commonwealth v. Butler, 99 Pa. 535.
    In view of the foregoing considerations we conclude:
    1. That the fourth proviso of section 41 of the act of May 23, 1874, is not in conflict with section 7, article III, of the constitution, but is a valid enactment.
    2. That section 42 of the act of May 23, 1874, accepted by the school district of the city of Harrisburg by authority of said proviso is the law of that district.
    3. That the defendant, being city treasurer of the city of Harrisburg, is ex officio school treasurer of the school district of said city, and is exercising such office by authority of law.
    Judgment is, therefore, directed to be entered on the demurrer in favor of the defendant.

      Error assigned was the judgment of the court.

      M. W. Jacobs, with, him Hampton L. Carson, attorney general, for appellant. ^

      W. M. Hargest, of Hargest Hargest, and C. H. Bergner, for appellee.
    February 6, 1905:
   Pee Ctjeiam,

In Stegmaier v. Jones, 203 Pa. 47, and again in Com. ex rel. Miller v. Brown, 210 Pa. 29, attention was called to the fact that there is no constitutional requirement of uniformity in legislation as to matters included in section 7 of article III, of the constitution. That section prohibits local and special laws upon certain enumerated subjects and thereby requires that the legislation upon such subjects shall be general. Uniformity of provision or of result is not therefore in itself a requirement, but merely one of the tests judicially applied to determine the local, special or general character of the statute challenged. As said in Stegmaier v. Jones, supra, “a law may by classification or otherwise produce some diversity of result and yet be general, for where the classification is based on genuine distinctions, its expediency is for legislative determination.” And in the present case it is well pointed out by the learned judge below that while the acceptance of different portions of the act of 1874 by different districts may introduce greater divergencies between such districts than existed before, yet the general effect is to assimilate each to the standard of the act.

The persistent course of argument in cases of this class seems to require a reiteration of the true standard of constitutionality as being generality as opposed to localism or specialism, and of the rule that uniformity is not a constitutional requirement but merely one of the tests of generality.

Upon the constitutional question in the present case the judgment is affirmed on the opinion of the learned judge below.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Dougherty v. Philadelphia, Appellant.

      Negligence—Municipalities—Defective inlet—Contributory negligence.

    In an action by a girl fourteen years old to recover damages for personal injuries sustained by falling into an uncovered inlet in a street, several witnesses for plaintiff testified that the cover had been off frequently, from day to day, for a period of several months, and was off on the day of the accident. Witnesses for the city testified that it was in proper order and in place on the day and almost up to the hour of the accident. The accident happened on a dark evening, when plaintiff was assisting her grandmother, a woman of sixty, who used a cane in walking. There was no clear admission by plaintiff that she was not looking whore she was going. Held, that the questions of plaintiff’s contributory negligence and defendant’s negligence were .for the jury.
    Those who use the public highway, especially the streets of a city, are bound to look where they are going, and to make constant and diligent use of their eyes; but the rule is not to be carried so far as that the happening of an accident such as a fall into an open inlet in the dark shall be held of itself conclusive of negligence. Care is required, but it is reasonable care in view of the circumstances.
    Argued Jan. 10, 1905.
    Appeal, No. 190, Jan. T., 1904, by defendant, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1903, No. 785, on verdict for plaintiff in case of Minnie M. Dougherty by her aunt and next friend, Rose Dougherty, v. Philadelphia.
    Before Mitchell, C. J., Dean, Fell, Brown, Mkstrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Carr, J.
    The facts are stated in the opinion of the Supreme Court.
    Defendant presented these points :
    2. If the plaintiff had been exercising ordinary care by using her eyes and looking where she was going, the condition of the inlet could not have escaped her notice and the verdict must be for the defendant. Answer: That point we refuse. I have already referred to that. It is on the point of contributory negligence, which is dependent upon your finding of that fact under all the circumstances of the case. The fact that she did not look is only one fact to be considered with all the other facts.

      3. There was neither actual nor constructive notice to the city of Philadelphia under the circumstances of this case, and the verdict must be for the defendant. Answer: That point is refused. I have already spoken of what would be constructive notice. Constructive notice is a fact for you to find what is a reasonable length of time from which the city should find, or be bound with having received notice, if you believe that the condition of this inlet was out of repair for weeks. [2]
    5. Under all the evidence the verdict must be for the defendant. Answer: That is refused. [3]
    Verdict for plaintiff for $5,500 upon which judgment was entered for $4,000 all above that amount having been remitted.

      Errors assigned were (1-3) above instructions, quoting them.

      Richard Salinger, assistant city solicitor, with him John L. Kinsey, city solicitor, for appellant.

      J. Morris Ye aide, for appellee.
    February 13, 1905:
   Per Curiam,

The testimony as to the condition of the inlet was unusually conflicting even for this class of cases. Several witnesses said that the cover had been off frequently, from day to day, for a period of several months and was off on the day of the accident. Other witnesses testified that it was in proper order and in place on the day and almost up to the hour of the accident. The questions, therefore, whether it was out of order and if so how long, as bearing on constructive notice and the city’s negligence Avere necessarily for the jury.

On the question of plaintiff’s contributory negligence appellant submitted a point that “ If the plaintiff had been exercising ordinary care by using her eyes and looking where she was going, the condition of the inlet could not have escaped her notice and The verdict must be for the defendant.” This could not have been affirmed under the evidence. The accident happened at 5:45 p. M. on November 25, and the testimony on the part of the plaintiff was that the gas was not lighted and it was very dark. She was a girl, a little under fourteen years of age, and was assisting her grandmother, a woman of sixty who used a cane in walking.

It is argued by appellant that plaintiff admitted on her cross-examination that she was not looking, and that the judge committed an error in saying in answer to the point above quoted “the fact that she did not look is only one fact to be considered with all the other facts.” If there had been a clear admission by plaintiff that she was not looking where she was going, or if the circumstances had shown beyond question that such was the fact, it would have been the duty of the court to hold that she was negligent as matter of law and to enter a nonsuit or direct a verdict for defendant. Nothing is better settled than that those who use the public highways, especially the streets of a city, are bound to look where they are going and to make constant and diligent use of their eyes: Robb v. Connellsville Boro., 137 Pa. 42 ; Lumis v. Traction Co., 181 Pa. 268; Sickels v. Philadelphia, 209 Pa. 113. But the rule is not to be carried so far that the happening of an accident of the present kind shall be held of itself conclusivo of negligence. Care is required, but it is reasonable care in view of the circumstances.

While plaintiff did say that she was not looking yet that was only one of several expressions on that subject, and must be taken with its immediate context, as follows : “ Q. Could not you have seen this hole, if you had looked? A. No, sir; there was no light in the lamp-post to see. It was very dark. Q. It was very dark? A. Yes, sir. Q. You had from the opposite corner to walk over towards it, had you not ? A. Yes, sir. Q. When you got within one foot of it, could not you see it then? A. No, sir; I did not see it. Q. You did not see it. Could not you have seen it if you had looked ? A. I was not looking.”

This was followed by the resumed examination in chief: “Q. What were you looking at? A. I was looking right on ahead. I was not looking for no hole. I was not looking for anything in fact, I was looking right on. Q. When you say you were not looking—he asked you if you could have seen the hole if you were looking, and you said ‘ I was not looking ’ what did you mean? A. I was not looking to walk into a hole. I was walking right on ahead. Q. Were you looking to either side, or up or down, or what? A. (Objected to.) Q. How were you looking; what were you doing? A. I was looking onward. Walking ahead.”

There is no such clear admission here as would take the whole question of contributory negligence away from the jury, whose province it is to pass upon doubtful or conflicting expressions. And the charge of the judge that the fact that she did not look was only one fact, to be considered with all the other facts, was in answer to a request for a binding charge that “ if plaintiff had been exercising ordinary care by using her eyes and looking where she was going, the condition of the inlet could not have escaped her notice,” and in its connection meant no more than that the testimony with the whole circumstances must go to the jury.

Judgment affirmed.


author: Mb. Chief Justice Mitcheee,

text:
    Roberts v. Powell, Appellant.

      Judgment—Payment—Presumption—Heirs and devisees—Evidence.

    While the lien of a judgment obtained against a decedent in his lifetime may be said to continue indefinitely against his heirs and devisees, this does not mean that the general presumption of payment does not arise even in such case after twenty years.
    Where one of several co-tenants of land has purchased and revived a judgment over thirty years old against the common ancestor, and under a rule taken by one of the heirs to strike off the revived judgment (which rule is made absolute), depositions of the purchaser have been taken against the rule, such depositions cannot be subsequently used against the other heirs, in partition proceedings to rebut the presumption that the original judgment was paid. In such a case the depositions lack the identity of parties requisite to make them admissible in the later litigation.
    Argued Jan. 12, 1905.
    Appeal, No. 128, Jan. T., 1904, by defendants, from decree of C. P. No. 1, Phila. Co., Marcli T., 1900, No. 1085, dismissing exceptions to report of master in case, of James B. Roberts v. George W. Powell et al.
    Before Mitchell, C. J., Dean, Fell, Bbown, Mestbezat, Potteb and Elkin, JJ.
    Affirmed,

      Exceptions to report of Fred Taylor Pusey, Esq., master.
    The opinion of the Supreme Court states the case.

      Errors assigned were in dismissing exceptions to master’s report.

      William Gorman, witli him John F. Gorman, for appellant,
    cited: Price v. Lawson, 74 Md. 499 (22 Atl. Repr. 206); Koehler v. Scheider, 16 Daly, 235 ; Starkie on Evidence, 310 ; Greenl. on Ev., sec. 163; Philips on Ev., 393 ; Haupt v. Henninger, 37 Pa. 138; Riegel v. Wilson, 60 Pa. 388.

      E. 0. Michener, with him Alfred E. Wiler, for appellees,
    cited: Breneman’s App., 121 Pa. 641; Ziegler v. Schall, 209 Pa. 526 ; Peters’s App., 106 Pa. 340.
    February 13, 1905:
   Opinion by

Mb. Chief Justice Mitcheee,

The fund in court was the proceeds of a sale in partition, and the executrix of G. W. Powell, one of the co-tenants defendant, presented as a claim against the fund a judgment entered against the common ancestor, G. S. Powell, in April, 1866, and marked to the use of G. W. Powell in 1900. G. S. Powell died in 1871. The claim was presented to the master in partition in December, 1903.

That a judgment, nearly thirty-eight years old, and presented as a lien against the defendants’ land more than thirty-two years after his death, was prima facie barred by the presumption of payment needs neither argument nor citation of authority. It is true that the lien of a judgment obtained against a decedent in his lifetime is said to continue indefinitely against his heirs and devisees, but by this it is not meant that the general presumption of payment does not arise even in such case after twenty years : Breneman’s Appeal, 121 Pa. 641. Nor is there anything in the recent case of Ziegler v. Schall, 209 Pa. 526, to countenance a different view. In that case the. rule is stated without reference to the presumption because there was nothing to call for such reference. The judgment there in controversy had been repeatedly revived and the only question in regard to it was its priority of lien.

In the present case it is claimed that the circumstances rebut the presumption. The ancestor died intestate and the land descended to his children and grandchildren subject to the lien of the judgment. The present claim is that G. W. Powell, one of the heirs, bought the judgment to save the estate from sale under it, and therefore in the interest of his co-tenants in common from whom he thus became entitled to contribution. On the assumed facts there was still the objection that the purchase Avas in 1875 and the presumption of payment had arisen against any claim founded on it. But an even more serious objection is that there was no evidence to establish the facts asserted. This brings us to the principal question in the case.

The judgment against the ancestor, G. S. Powell, was entered in 1866. In 1900, without any intervening proceedings, it was marked of record to the use of G. W. Powell, a sci. fa. and an alias sci. fa. to revive were issued and judgment taken on two returns of nihil habet, the defendant having been dead more than twenty-nine years, and there being nothing on the record to rebut the presumption of payment. Rules to show cause why this last judgment should not be opened, and why it should not be struck off, were obtained by J. B. Roberts, one of the heirs, now party plaintiff in this partition. On these rules depositions were taken in which G. W. Powell, the use plaintiff, testified under objection to his competency, that he had bought the judgment to save the property from execution upon it, and that nothing had ever been paid him on account though the other heirs knew the facts. The rule to strike off the judgment was made absolute in the court below.

Presumably G. W. Powell was a competent witness at that time. Though he was called to testify in support of a judgment against his father’s estate, and therefore adversely, yet his testimony was confined to matters occurring after his father’s death, and so far as the record discloses, the other parties in interest, his co-tenants, were then alive, though-it is said that some of them are now dead, the dates of death not being given. But the rule to strike off the judgment, under which the depositions were taken, was obtained by J. B. Roberts, who was the only party intervening, or so far as appeal's having any notice of the judgment or the proceeding upon it. The judgment was then thirty years old, and had been revived on returns of nihil habet as to decedent without any notice to the heirs or representatives. The deposition of G. W. Powell was offered in the present case against six of the heirs, only one of whom was party or had any notice of the suit or the proceedings in which the deposition had been taken, or had any opportunity of being present and cross-examining the deponent. The master excluded the deposition on the ground that it lacked the identity of parties requisite to make it admissible in the present litigation. In this he was clearly right: Fearn v. West Jersey Ferry Co., 148 Pa. 122.

Judgment affirmed.


text:
    Meixner, Appellant, v. Philadelphia Brewing Company.

      Negligence—Master and servant—Risk of employment.

    In an action by an employee against his employer to recover damages for personal injuries, it appeared that the plaintiff by direction of the defendant’s agent or vice principal, was digging post holes along one side of an open lot of ground, which was separated from the pavement by a lattice fence, so constructed that one could see through it. Near this fence on the pavement, was a pile of bricks. After having dug three holes, and whilst digging the fourth, the bricks fell against the fence, breaking it and injuring him. There was no evidence to show what caused the bricks to fall. Held, that binding instructions for defendant were proper.
    Argued Jan. 12, 1905.
    Appeal, No. 95, Jan. T., 1904, by plaintiff, from judgment of C. P. No. 5, Phila. Co., Sept. T., 1902, No. 8794, on verdict for defendant in case of Karoline Meixner, Administratrix of Engelbert Meixner, deceased, v. Philadelphia Brewing Company.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Martin, P.’ J.
    At the trial binding instructions were given for defendant.
    On a motion for a new trial Davis, J., filed the following opinion:

      In this case a verdict was rendered for the defendant by direction of the court.
    The plaintiff, by direction of the defendant’s agent or vice principal, was digging post holes along one side of an open lot of ground, which was separated from the pavement by a lattice fence, so constructed that one could see through it. Near this fence, on the pavement, was a pile of bricks. After having dug three holes, and whilst digging the fourth, the bricks fell against the fence, breaking it and injuring him.
    There is no evidence of negligence upon the part of the defendant ; there is no testimony that this pile of bricks was improperly arranged. The evidence discloses simply that the pile fell and injured the plaintiff. Why it fell, or what caused it to fall, is not disclosed. There may have been many reasons. The plaintiff himself, in the use of his crowbar, might have caused it. The lot was open, the fence was open, the plaintiff could see, and did see, the bricks. He was as competent as was the defendant’s agent to know of any danger which might exist. This is not a case where one has been compelled to perform a service in an admittedly dangerous place, as were those submitted in support of this rule. It is true that the servant is not called upon to set up his own unaided opinion against that of his superiors; he may rely upon their advice, and still more, upon their orders, notwithstanding many misgivings of his own, as was said in Williams v. Clark, 204 Pa. 416. In the present instance, however, if there was danger it was as open to the knowledge of the servant as it was to the master or the vice principal.
    The plaintiff in this case was a cooper, and admitted that he had done some carpenter work in the laying of floors and work of that kind, but in this instance he was simply sent to dig holes, in which others placed posts for the erection of a coal bin ; it was not in a place dangerous in itself, but it was in proximity to the pile of bricks ; if there was any danger in the situation the plaintiff must have known it, and he therefore took the risk of his employment.
    The rule for a new trial is refused.

      Error assigned was in giving binding instructions for defendant.

      John A. Ward, witli him Joseph M. Smith, for appellant,
    cited: Garrity y. Penna. Casting & Machine Co., 17 Pa. Superior Ct. 623 ; Lee v. Electric Light, etc., Co., 140 Pa. 618; Johnston v. Ott Bros., 155 Pa. 17 ; Reese v. Clark, 198 Pa. 312 ; Giles v. Jones & McLauglins, 204 Pa. 444.

      Thomas Learning, for appellee,
    cited: Sykes v. Packer, 99 Pa. 465; McKinzie v. Phila., 8 Pa. C. C. Rep. 293; Durst v. Carnegie Steel Co., 173 Pa. 162.
    February 13, 1905 :
   Per Curiam,

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


author: Pee Curiam,

text:
    Lewis’s Estate.

      Will—Issue devisavit vel non—Undue influence—Meretricious relation—■ Evidence—Refusal of issuel

    An American citizen living in France executed a will about twenty years before his death by which he gave an annuity to a Frenchwoman with whom he lived and sometimes held out as his wife. He gave all the residue of his estate to an uncle, who enjoyed his greatest confidence, with directions that if the uncle died in testator’s lifetime, the residue should go to the uncle’s children. Testator had no particular relations with, nor affection for, these children. About ten years after the making of the will the uncle died, and the testator interlined under the provision for the uncle the words “ died, May, 1893.” Shortly afterwards he made a codicil bequeathing all of his fortune to the woman with whom he lived. The testimony was explicit and unanswered, that at the date of the codicil testator was of sound and disposing mind. It appeared that the legatee mentioned in the codicil died two years before testator. She had lived with him twenty-five years, and there was nothing in the evidence to show that the esteem which he openly exhibited for her, and the devotion which she repaid him were not sincere. There was no testimony that the testator was coerced, nor that he did not exercise full sway over his own house, nor that access was denied to anyone who desired to see him. It appeared that after the codicil was written testator placed the will and codicil in an envelope and addressed it to an agent in Philadelphia, to whom it was delivered after his death. Held, that the issue on the ground of undue influence was properly refused.
    Argued Jan. 13, 1905.
    Appeal, No. 177, Jan. T., 1904, by John T. Lewis et al., from decree of O. C. Phila. Co., April T., 1904, No. 260, dismissing appeal from Register of Wills in Estate of Willing Francis Lewis, deceased.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Appeal from register of wills.
    Ashman, J., filed the following opinion :
    On October 25, 1883, the testator executed his will by which he gave to Marie Jeanne Jamain an annuity of 30,000 francs for life and certain personal effects absolutely and to his uncle the residue of his estate and in case of his death before the testator then to the surviving children, and other issue of the said uncle. Interlined in the instrument above the name of the uncle the words, .“ died May,. 1893 ” were inserted, and in the margin appeared the following: “ I give, bequeath my entire fortune to Marie Jeanne Jamain, without reservation and appoint the Fidelity Insurance and Trust Company my exr. Oct. 6, 1893.” The will and codicil were in testator’s handwriting. The testator was born in Philadelphia. His parents died when he was quite young, and thereafter he lived with his grandmother, until he reached his majority. He then went abroad, and resided in France until his death on August 22, 1902, at the age of fifty-seven years. He was on terms of the . closest intimacy with his uncle, to whom the grandmother had committed the care of his estate; and the relation of mutual confidence begun in his boyhood is shown by his correspondence to have continued throughout his life.
    The point at issue is a narrow one. It is not contended that the testator was not of perfectly sane mind at the date of execution of his will, nor, aside from the inference of some loss of will power in the presence of undue influence, that he was not of full testamentary capacity when he executed the codicil. But it is claimed that the latter instrument was procured by the fraud and undue influence of the beneficiary therein named, or of one Pauline Etienne. The exceptants have raised a monument, in the shape of a portentous volume of testimony, to attest the industry with which they have sought to avoid the codicil; but the material facts can be compressed within the limits of a few sentences.

      During' his residence in Paris the testator contracted an alliance with the woman he afterwards made his residuary legatee, which was uninterruptedly maintained for twenty-five years and until her death. They resided in Paris, where they occupied for at least fourteen years the same suite of apartments and drove out together almost daily, quitting the city in summer for a short stay at a watering place and spending the winter in Nice or its neighborhood. The proofs of their mutual affection and in particular of the sedulous care which the legatee bestowed upon the decedent in his sickness, are conclusive. His own testimony to this effect appears in the very terms of his gift in the will, which he declares was prompted by gratitude for her kindness and affection, and by the fact that she had more than once saved his life. They received few callers in Paris, but at Nice and other places, which they visited annually, the testator introduced the legatee as his wife. The indicia, from which in the cases undue influence has been found as a fact or as a reasonable inference, are here absolutely wanting. The disposition of the woman was described as uniformly amiable, and no sign of discord between the parties was apparent to the servants and neighbors, who are usually shrewd observers of household events. The will, about whose validity there is no dispute, was allowed by the testator to stand untouched until the death of the one relative to whom he was devotedly attached. When that event occurred, he noted it in the will, and opposite the note he wrote the codicil by which, instead of the uncle he substituted the legatee, and he placed the will thus altered in an envelope addressed to an agent in Philadelphia. An instrument thus written and retained by the testator with directions to transmit it at his death, to a foreign trustee, was not the method which would have been insisted upon by legatee who had influenced the gift by her cajolery or dominated the giver by her superior will power. On the contrary, it was the act of a testator who had a fixed purpose, based on a persuasive reason, and who knew how to carry that purpose into effect. With the death of his uncle, the object of the will had failed. It is true that he had provided that in the event of the uncle’s death, in the lifetime of the testator, the estate should go to the children of the uncle. But the children stood to him in no closer relation, by birth or association, than the remaining cousins, and were held by him in no higher esteem. One proof of this fact is that the correspondence which he had affectionately and continuously maintained with his uncle, was not followed even by a casual letter to the children. It is not surprising that as against remote kindred, from whom he had long been separated, the woman, who might plausibly claim in this jurisdiction as his lawful wife, and who for many years had served him with a wife’s tenderness, should have had the first place in the testator’s remembrance. This at least is the reasoning of common sense, as applied to human conduct and human affairs. It is also the reasoning of the law, which, in its maxims and practice, is solicitous to guard the right of every man to dispose of his property as he pleases. It acts in obedience, to those maxims when it seeks to protect a testator from every attempt to unduly influence him in the making of his will. It declares that such attempt need not be made in the presence of the testator, but may operate from a distance and be hidden under a cunningly devised mask of pretended friendship. It has declared that an inference of such influence may be drawn from the circumstance that the beneficiary has stood in a confidential relation to the donor. In Herster v. Herster, 116 Pa. 612, it was said that undue influence may be exercised secretly and especially where a confidential relation exists between the principal devisee and the testator and they dwell together in the same house; and in Dean v. Negley, 41 Pa. 812, that the burden of disproving undue influence is on the beneficiary. The former of these cases was, however, overruled in Herster v. Herster, 122 Pa. 239. The facts developed in Dean v. Negley justified the language of the court; but the universality of the proposition that a meretricious relation between the testator and the legatee is of itself proof of undue influence, was denied in Rudy v. Ulrich, 69 Pa. 177, and Wain wright’s Appeal, 89 Pa. 220; Yorke’s Est.,. 186 Pa. 61, held that the burden of proof is shifted to the contestants when the testator, although enfeebled by disease, is shown to have had full testamentary capacity, even where the will was prepared by the confidential adviser to whom or to whose family the whole of testator’s estate was bequeathed. In the ease before us, the rule as to presumption of undue influence and as to the disproval of that presumption, may be accepted, in all its severity. The contestants, themselves, have done the work which might have been asked of their adversaries. The testimony is explicit and unanswered that at the time of executing the codicil the testator was of sound and disposing mind. The codicil is written in the firm handwriting which characterized the will of a date ten years earlier and the contemporary letters of the testator are those of an absolutely sane writer. There is not a word in all the testimony to indicate that while the legatee lived, the testator did not exercise full sway in his own house, nor that access was denied to any who desired to see him, nor that any jar occurred between the testator and the legatee, nor finally that the esteem which he openly exhibited for her, and the devotion with which she repaid him, were not sincere. We regard the codicil, in the light of all the testimony as the work of a testator of sound testamentary capacity, who was uninfluenced in its making by fraud, undue influence or coercion, and as such it was properly admitted to probate.
    The issue is refused.

      Error assigned was in dismissing the appeal.

      Sharswood Brinton and Greo. Tuclcer Bispham, for appellant.
    —Undue influence may be exercised secretly as we]] as openly, and this is especially possible where a confidential relation exists between the principal devisee and the testator, and they dwell together in the same house. In such cases it is not easy to make out an allegation of undue influence by proof which is direct or positive, nor is it necessary to do so: Herster v. Herster, 116 Pa. 612 ; Yorke’s Est. 185 Pa. 61; Scattergood v. Kirk, 192 Pa. 263.
    A meretricious relation is a confidential relation in so far as it is governed by all the attributes of trust and confidence: Dean v. Negley, 41 Pa. 312; Reichenbach v. Ruddach, 127 Pa. 564; Rudy v. Ulrich, 69 Pa. 177; Wainwright’s Appeal, 89 Pa. 220.

      Hampton L. Carson and Rowland Evans, with them Charles 0. Townsend and John Marshall Oest, for appellees.
    February 13, 1905:
   Pee Curiam,

This decree is affirmed on the opinion of the court below.


author: Pee, Curiam,

text:
    Smith’s Estate.

      Wills—Perpetuities—Intestacy—Vested estate.

    Testator gave bis estate to trustees to pay to his widow so much of the income as she might need for her support, the rest of the income to his five children, naming them, and the issue of any who had died leaving issue, and after death of the widow the entire income to the children then living, and the issue of any who should have died. The gift of the income to the children was expressly limited to their respective lives, and “after their death the income to be paid to their children until they attain the age of twenty-one years, when each shall receive his or her share of the principal thereof in the proportion he or she received or were entitled to the income agreeably with the intestate laws of the state of Pennsylvania.” One of the children died in the lifetime of the widow, leaving children. Two of testator’s children died after the widow without leaving issue. Held (1), that the will created a vested interest in the issue of the children, and that the continuance of the trust during their minority did not bring the gift within the rule as to perpetuities; (2) that upon the death of the two children without issue after the death of the widow there was an intestacy as to two fifths of the estate.

      Contract—Agreement—Instruction—General terms—Deed.

    However general the terms may be in which an agreement is conceived, it only comprehends those things in respect to which it appears that the contracting parties propose to contract; and not to others they never thought of.
    A deed general in its terms conveying ail of the grantor’s interest in an estate of the decedent, and intended ,to carry out an adjudication, will not cover an interest of the grantor in an intestacy as to a portion of the estate subsequently arising by reason of the death of one of the parties without issue.
    Argued Jau. 18, 1905.
    Appeal, No. 211, Jan. T., 1904, by-Mary E. Smith, from decree of O. C. Phila. Co., Jan. T., 1890, No. 85, dismissing exceptions to adjudication in estate of Nathan Smith, deceased.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Exceptions to adjudication.
    From the record it appeared that Nathan Smith died on May 17, 1875, leaving a will which after providing for the appointment of trustees directed that the trustees so appointed should “ hold in trust all my estate, real and personal, to pay to my beloved wife all the money she may need if it should take the whole net income of my estate ; and such net income as is not needed for the support of my dear wife, I direct to be paid half yearly or oftener at the discretion of the trustees in equal portions to my five children, Martha H. Bonsall, Charles E. Smith, Abram H. Smith, Sarah A. Smith, and Walter B. Smith. Should either of them have died and left issue, if one, solely, if more than one in equal parts, to take the parent’s share of income during all the period of my dear wife’s life time. After her decease the entire net income of my estate to be equally divided among all the children then living (the issue of any who may have previously died to take” the parent’s share) during all the period of their natural lives; after their death the income to be paid to their children until they attain the age of twenty-one years when each shall receive his or her share of the principal thereof in the proportion he or she received or were entitled to the income agreeably with the intestate laws of the state of Pennsylvania.”
    Martha H. Bonsall died on January 29, 1889, leaving surviving her three children. The decedent’s widow died on December 81,1891. Some years after the death of the widow Sarah Ann Smith and Charles Eber Smith died leaving no issue. Charles Eber Smith left a widow, and his sole legatee, Mary E. Smith, the appellant, surviving. On February 16, 1893, an adjudication was filed awarding one fifth of the personal estate to the children of Mrs. Bonsall.
    Other facts appear by the adjudication, Peniio.sk, J., which was in part as follows :
    After the award by the adjudication of February, 1893, of one fifth of the personal estate then in the hands of the trustees to the children of Mrs. Bonsall, absolutely, it was agreed by all of the parties in interest that they should receive not only the share of personal estate liberated from the trust, but one fifth of the appraised value of the real estate still remaining unsold, viz: $5,500, “in lieu of distribution in kind,” to Helen Bonsall, $5,500, to Laura Bonsall, and $5,500 to C. Stevenson Gatchel, assignee of Charles S. Bonsall; and a schedule of distribution awarding such sums and leaving $24,525.28 of personal estate in the hands of trustees, signed by all of the parties, was presented to the auditing judge and, with his approval, dated October 17,1898, annexed, to and. made a part of the adjudication; and by deed dated October 23, 1893, Helen Bonsall, Laura Bonsall and C. Stevenson Gatchel, assignee of Charles S. Bonsall, in consideration of the sum of $5,500, to each of them, after reciting that they had bargained and agreed to sell for the consideration mentioned to Walter B. Smith, trustee, all “their estate, right, title and interest, share, dividend, claim, and demand whatsoever which they .... have or of right ought to have, claim, and demand of, in, and out of all the estate, real and personal and mixed, whatsoever and wheresoever of the said Nathan Smith, deceased, whether as devisees under his said will or as devisees and heirs at law of the said Martha A. Bonsall, deceased, and to which the said C. Stevenson Gatchel is entitled as assignee as aforesaid, or in any other way or manner whatsoever,” and further reciting the adjudication and schedule, and the award to them respectively, of $5,500, each, “ in lieu of distribution in kind,” etc., granted, bargained and sold, etc., to Walter B. Smith, “trustee as aforesaid,” all their right, title, etc., in the various pieces of real estate there particularly described, and “ of, in, and to all the real and personal estate, stocks, bonds, mortgages, securities, moneys and effects whatsoever whereof the said Nathan Smith died seized and possessed, and the rents,' issues, income, dividends and profits thereof, accrued, accruing and to accrue therefrom, to which the said Helen Bonsall and Laura Bonsall are now or may or can be in any wise entitled either.as devisees or heirs at law of their deceased grandfather, the said Nathan Smith, deceased, or as daughters and heirs at law or devisees of the said Martha H. Bonsall, deceased, and to which the said C. Stevenson Gatchell is entitled as assignee as aforesaid or in any other way or manner whatsoever.”
    It is now claimed that this deed conveyed to the trustee not only the interest of the grantors in the estate distributable, so far as it was then distributable, at the date of the adjudication and the approval of the schedule, but all right which they subsequently acquired by reason of the death of Sarah A. Smith, without issue, in August', 1903, and the death without issue of Charles Eber Smith, in November, 1903, when additional interests passed to them under the intestate laws.
    It may be that the language of the grant is sufficiently comprehensive to have this effect, though the recital sets forth that the intention is to convey only the interests of the grantors as “devisees” of Nathan Smith; but the obvious purpose of the deed was to carry out the distribution awarded by the adjudication and to give to the grantors also their shares of the real estate at its appraised value; and it was not intended to include anything not, at that time, belonging to them, viz: interests which might come, by reason of the subsequent deaths, without issue, of persons then living. The maxim verba generaba restringunter ad habilitatum rei vel personam applies to such a grant, and the generality of the language used will be restrained according to the subject-matter to which they relate. This principle was adopted in Case v. Cushman, 3 W. & S. 544, where it was said by Gibson, C. J.: “It is one of Pothier’s rules of interpretation which have been deemed consonant to the rules of the common law, that ‘ however general the terms may be in which an agreement is conceived, it only comprehends those things in respect to which it appears that the contracting parties proposed to contract; and not to others they never thought of.’ ” See also Erwin’s Appeal, 20 W. N. C. 278; Rapp v. Rapp, 6 Pa. 45; McLarren v. Robertson, 20 Pa. 125; Codding v. Wood, 112 Pa. 371, etc.
    No question was raised between Charles S. Bonsall and C. Stevenson Gatcliel with regard to the deed of August 4, 1892, for the interest of the grantor in the estate of the decedent.
    The auditing judge decided that the will created a vested interest in the issue of the children, and did not violate the rule against perpetuities, and that as to two fifths of the estate there was an intestacy created upon the death of the two children without issue. He also decided that the deeds did not include the portion of the estate covered by the intestacy.
    Exceptions to the adjudication were dismissed by the court.

      Error assigned was in dismissing exceptions to adjudication.

      L. W Baxter, for appellant,
    cited as to the construction of the will: Pleasonton’s App., 99 Pa. 362; Reichard’s App., 116 Pa. 232; Raleigh’s Est., 206 Pa. 451; Hirst’s App., 100 Pa. 239 ; Mulliken v. Earnshaw, 209 Pa. 226 ; Mergenthaler’s App., 15 W. N. C. 441; Coggins’s App., 124 Pa. 10; Johnston’s Est., 185 Pa. 179; cited as to the construction of the deeds: McWilliams v. Nisly, 2 S. & R. 507; Brown v. McCormick, 6 Watts, 60; Logan v. Neill, 128 Pa. 457; Brownfield’s Est., 193 Pa. 151; Grim’s App., 105 Pa. 375; Pioso v. Bitzer, 209 Pa. 503; Patterson v. Caldwell, 124 Pa. 455; Ruple v. Bindley, 91 Pa. 296; Case v. Cushman, 3 W. & S. 544; Erwin’s App., 20 W. N. C. 278; McLarren v. Robertson, 20 Pa. 125 ; Codding v. Wood, 112 Pa. 371; Kidder v. Kidder, 33 Pa. 268 ; Smilie’s Estate, 22 Pa. 130; Carroll v. Miner, 1 Pa. Superior Ct. 439; King v. New York, etc., Gas Coal Co., 204 Pa. 628; Cunningham v. Neeld, 198 Pa. 41.

      Franklin S. Fclmonds, with him Edward E. Bonsall, for appellees,
    cited as to the will: McBride’s Est., 152 Pa. 192; Siddall’s Est., 180 Pa. 127.
    Cited as to the deeds: Case v. Cushman, 3 W. & S. 544; Rapp v. Rapp, 6 Pa. 45; McLarren v. Robertson, 20 Pa. 125, 129; Young v. Coyle, 3 Pennypacker, 284; Ballantine’s Appeal, 67 Pa. 178 ; Codding v. Wood, 112 Pa. 371.
    February 13, 1905 :
   Pee, Curiam,

The testator’s will did not create a perpetuity. In brief it gave his estate to trustees to pay to his widow so much of the income as she might need for her support, the rest of the income to his five children, naming them, and the issue of any who had died leaving issue, and after death of the widow the entire income to the children then living, and the issue of any who should have died. The gift of the income to the children was expressly limited to their respective lives, and “after their death the income to be paid to their children until they attain the age of twenty-one years, when each shall receive his or her share of the principal thereof in the proportion he or she received or were entitled to the income agreeably with the intestate laws of the state of Pennsylvania.” This created a vested interest in the issue of the children, and the continuance of the trust during their minority did not bring the gift within the rule as to. perpetuities. One of the children, Mrs. Bonsall, died during the lifetime of the widow, and upon the latter’s death the court, in accordance with the view above expressed, awarded one fifth of the estate to Mrs. BonsalPs children.

After the widow’s death two of the children died without issue. Their interests in the estate were for life only, and the court rightly held that the contingency not having been provided for there was an intestacy as to those two fifths of testator’s estate.

After the award of their shares to the children of Mrs. Bonsall, they entered into a family arrangement under which they made conveyance of their interest. The construction and scope of this deed raised one of the questions in this appeal. On this branch of the case the decree is affirmed on the opinion of Judge Penrose.

Decree affirmed.


author: Mb,. Chiee Justice Mitchell,

text:
    Commonwealth v. Razmus, Appellant.

      Criminal law—Murder—Instruction.

    Where on the trial of an indictment for murder the trial judge charges that the evidence is not sufficient to establish murder in the perpetration of a robbery and that a verdict should not be rendered on that basis, the charge is a distinct and peremptory ruling in the prisoner’s favor, to which no assignment of error will lie by the prisoner; and it is immaterial that the instruction was not given until the prisoner’s counsel had argued the case.

      Evidence—Exclusion of evidence—Admissible and inadmissible evidence. Where most of the testimony of a witness is competent, a motion to strike out all of the testimony is improper. If the incompetent part is material, the motion should be directed explicitly to that part.

      Practice, O. & T.—Trial—Charge—Misquotation of witness.

    If a trial judge in referring to the testimony of a witness misquotes it in a material point, his attention should be called to the error at once, before the jury retires. A party may not sit silent and take his chances of a verdict, and then if it is adverse, complain of a matter which if an error would have been immediately rectified and made harmless.
    Argued Jan. 30, 1905.
    Appeal, No. 357, Jan. T., 1904, by defendant, from judgment of O. & T. Luzerne Co., Sept. T., 1904, No. 69, on verdict of guilty of murder in the first degree in the case of Commonwealth v. Martin Razmus.
    Before Mitchell, C. J., Dean, Fell, Pottek and Elkin, JJ.
    Affirmed.

      Indictment for murder. Before WHEATON, J.
    Verdict of guilty of murder in the first degree upon which judgment of sentence was passed. The prisoner appealed.

      Errors assigned among others were the following :
    1. The court erred in permitting the commonwealth to try the case on the theory that it was a killing committed in the perpetration of a robbery, and then in allowing counsel for defense to argue at length upon the robbery theory, but advising the district attorney not to discuss it and in not fully explaining to the jury the court’s action.
    2. The court erred in admitting the testimony of Mrs. Henry Ortwine, wife of the deceased, the purpose of which was to show that her husband had $5.00 at six o’clock in the evening, she being an aged blind woman who could not tell the denomination of paper money.
    8. The'court erred in saying to the jury that the watchman “ says Martin kicked the old man about the head and ran out of the alley.”
    13. The court e.rred in not striking out all after the word “Yes,” of Mrs. Litinski’s answer to, the question: “ Q. On Sunday he told you that that was Henry’s voice ? A. Yes. My husband told me he is coming—Henry is coming and Martin is leading him, and he says for God’s sake don’t answer him.”

      John M. G-arman, with him Charles M. Bowman and Joseph A. Mulherrin, for appellant.

      B. R. Jones, district attorney, for appellee, was not heard.
    February 13, 1905:
   Opinion by

Mb,. Chiee Justice Mitchell,

The prisoner being on trial for murder, and the killing not being really denied, the principal question at issue was the degree of the crime. The commonwealth pressed for a verdict of first degree partly on the theory that the killing was done in the perpetration of a robbery. Evidence tending to this conclusion was admitted, but before the final argument by the district attorney the judge informed him and subsequently charged the jury that the evidence was not sufficient and that a verdict should not be rendered on that basis. This was a distinct and peremptory ruling in the prisoner’s favor, and it is certainly a novelty to find it assigned by him for error. The complaint is that it was not made until prisoner’s counsel had argued the case, on that point as well as others, to the jury.. But that did not make it any the less in prisoner’s favor. It may be that it was his counsel’s argument that brought the judge to his conclusion. Zell v. Commonwealth, 94 Pa. 258, is cited, but is not applicable. There this court said that incompetent testimony as to declarations admitted on the condition that they should be made competent by subsequent evidence that they were repeated by the witness to the prisoner, should be ruled out promptly on its becoming apparent that the condition would not be fulfilled, and that the period of the trial at which they were struck out and directed to be disregarded might be material. In the present case the evidence was not incompetent but insufficient, and all that was necessary was that the jury should be so told before they began to consider their verdict.

The second and thirteenth assignments are to matters which were for the jury. Whether a blind woman could tell accurately the amount of money her husband had when he left home, and whether a woman in bed in the house could recognize a voice outside in the adjoining alley were questions of fact. The latter witness in answering a question added a few words of her husband’s conversation, not admissible separately, and the appellant moved to have “her testimony stricken out.” As most of it was clearly competent, the motion was properly overruled. If the incompetent part was material, which is by no means clear, the motion should have been directed explicitly to that part.

A similar remark will dispose of the eighth assignment. If the judge in referring to the testimony of a witness misquoted it in a material point, his attention should have been called to the error at once, before the jury retired. A party may not sit silent and take his chances of a verdict, and then if it is adverse complain of a matter which if an error would have been immediately rectified and made harmless.

The remaining assignments are either trivial criticisms of the language of the charge, or the stereotyped complaints that the charge gave too much prominence to the evidence of the commonwealth, and not enough to that on behalf of the prisoner. These might be called the common counts in error. None of them has any merit: Com. v. Kaiser, 184 Pa. 493.

The judgment is affirmed and the record ordered to be remitted to the court of oyer and terminer of Luzerne county for the purpose of execution.


author: Mb. Justick Elkin,

text:
    Carter v. Moss, Appellant.

      Contract—Agreement for commissions—Evidence—-Case for jury.

    In an action to recover commissions, the case is for the jury where the evidence for the plaintiff, although directly contradicted by the defendant, tends to show that the defendant agreed to give plaintiff one per cent on the amount of money which the defendant might secure to be loaned on a building operation to parties brought to him by the plaintiff, that the plaintiff brought the parties, and a loan was made.
    Argued Jan. 3, 1905.
    Appeal, No. 80, Jan. T., 1904, by defendant, from judgment of C. P. No. 4, Phila. Co., March T\, 1903, No. 597, on verdict for plaintiff in case of Joseph H. Carter to use of William J. Divine v. Frank Hazlett Moss.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Assumpsit to recover commissions. Before Audenried, J.
    The facts appear by the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $1,793.50. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      Russell Duane of Duane, Morris, Heckseher Roherts, with him Charles Woods Couhton, for appellant.

      Edgar W. Lank of Smith ers Lank, for appellee.

      February 20, 1905:
   Opinion by

Mb. Justick Elkin,

The appellant asks this court to reverse the judgment entered against him in the court below for the reason that the testimony of the plaintiff and his witnesses, considered in connection with such testimony offered in behalf of the defendant as was uncontradicted, did not warrant the submission of the case to the jury.

We have carefully examined the argument of the learned counsel for the appellant, but have not been convinced that there was any error in the trial of the case in the court below. The plaintiff declared on an express contract, not reduced to writing, and produced sufficient testimony, if believed, to justify the jury in finding a verdict in liis favor. The plaintiff, Carter, in substance testified that he was solicited to aid in the securing of a loan on a building operation in the city of Philadelphia for Coulston and Daly, and that he undertook to have this loan negotiated through the defendant Moss, a broker. He testified that on October 3, 1902, he went to the office of the defendant and informed him of the desire of Coulston and Daly to secure a loan for the proposed building operation. He further testified that the defendant agreed if the plaintiff should bring Coulston and Daly to him in order that he, the defendant, should have the opportunity of earning a commission by placing the proposed loan, he would pay the plaintiff one per centum of the amount of the loan negotiated through him, and on which defendant would receive a commission. It appears from the evidence that on the day following, the plaintiff did bring to the office of the defendant, Coulston and Daly, and negotiations for the securing of the loan were commenced at that time. The deal was not consummated on that day because the defendant insisted on Coulston and Daly giving him a bond to insure the completion of the building operation, and a satisfactory bond not having been arranged for at that time, the negotiations were held in abeyance. A few months later, however, the bond was furnished, the loan secured, and Coulston and Daly paid to the defendant a commission of $8,500, being five per centum on $170,000, the amount of the loan secured. The plaintiff claims one per centum of the amount of the loan on which the defendant received his commission, and this suit was instituted for the purpose of collecting the same.

All of the material allegations of the plaintiff are denied by the defendant, who testified that he did not enter into any contract with the plaintiff, and that whatever preliminary conversations they may have had about the loan never resulted in a contract being made, and that what was finally done in the matter had no reference to the services of Carter, and that he did not perform any service, and was not entitled to receive any commission, either by reason of the alleged express contract, or on account of any implied contract resulting from the relations and services of the parties.

Many authorities have been cited in the paper-book of the appellant bearing upon the right of a real estate broker to recover a commission for services rendered in the sale of real estate. In these cases the principle is laid down that the services of a real estate broker who attempts to recover commission on the sale of real estate, must be the efficient'cause of the sale. These authorities are not applicable to the case at bar. There is no evidence that the plaintiff is a real estate broker, and it is not contended that he is attempting to collect a commission on account of real estate sold. Nor does the plaintiff rely on an implied contract, and therefore the cases cited are without force in deciding this case.

The learned court below submitted the disputed questions of fact to the determination of the jury, with instructions to find, first, if there was a contract made between Carter and Moss; second, if such a contract was made what were the terms of it, and what was each party bound to do under the contract, and third, whether the plaintiff had performed the services required of him under the terms of the alleged contract. In this we see no error. The instructions of the court below were full and complete and fairly submitted the disputed questions of fact to the jury, which found in favor of the plaintiff.

Assignment of error overruled and judgment affirmed.


author: Mb. Justice Potter,

text:
    Cohn, Appellant, v. May.

      Negligence—Proximate and remote cause—Intermediate agency—Pleading — Variance.

    A cause is not too remote merely because it produces the damages by means of an intermediate agency. Where the injury is the immediate consequence of some peril to which the injured party is obliged to expose himself in order to avoid the peril arising from the defendant’s negligence, it is proximate enough.
    Where a lower tenant in a building negligently obstructs with boxes a stairway, so that during a fire an upper tenant is unable to escape by the stairway, and is injured while escaping through a window, the obstruction is the proximate and effective cause of the injury.
    In the above case the statement averred that the defendant was the landlord while at the trial it appeared that he was merely a tenant. The statement set forth facts sufficient to sustain a charge of negligence against the defendant. Held, that there was no substantial variance between the statement and the proof, inasmuch as the reference to the relations of the parties to the building was merely explanatory and might have been omitted.
    Argued Jan. 4, 1905.
    Appeal, No. 98, Jan. T., 1904, by plaintiff, from order of C. P. No. 1, Phila. Co., Sept. T., 1900, No. 288, refusing to take off nonsuit in case of Alexander B. Cohn v. Simon May, trading as the American Straw Novelty Company.
    Before Dean, Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Beitler, J.
    On motion to take off nonsuit Beitler, J., filed an opinion in which he stated the facts to be as follows :
    Plaintiff was in partnership with his brother. The firm occupied the fifth story of a building on Arch street east of Eighth, and manufactured clothing. The defendant occupied the lower stories. A fire occurred in the premises in the evening. The plaintiff attempted to escape by a flight of stairs which ran to the Arch street front, but found his exit cut off by flames. He then tried the back staircase, but found that there was some obstruction preventing his exit. In the darkness he could not tell what it was. He then retreated to the upper story, and tried the outside fire escape, but the flames were then sweeping across the escape on a lower story. The owner had provided chains and ropes, and the plaintiff slid down one of the ropes. It did not reach below the second story, and when the plaintiff came to the end of the rope he was compelled to drop to the street. He was injured by having the palms of his hands blistered in sliding down the rope, and in his limbs and back by the drop from the end of the rope.
    In his statement he set out that the defendant was the lessee of the entire building, and rented the fifth floor to the plaintiff and his brother as partners, and it was defendant’s duty “ to accord to the plaintiff ready and convenient ingress and egress to said building by a certain stairway which led to and from the fifth floor of said building, yet the said defendant .... wholly disregarding his duty in the premises was negligent therein, and permitted and caused to be placed upon said stairway divers boxes, so that the same became choked and blocked with said boxes, and ingress and egress to said fifth floor by way of said stairway was cut off.”
    At the trial the evidence showed that plaintiff’s firm and defendant were tenants of the same landlord, and that no relation of landlord and tenant existed between defendant and plaintiff. Thereupon the plaintiff asked to amend. The defendant objected because the action was barred by the statute of limitations. The trial judge sustained the objection and then entered a nonsuit.

      Error assigned was refusal to take off nonsuit.

      Samuel Englander, for appellant.
    The statement filed in this action is sufficient whichever way it is looked at, whether the clause impliedly charging the defendant as lessor is treated as an inducement and is immaterial and can be treated as surplusage, or whether treated as a material allegation and thus charges a double cause of action, to wit: charging him as landlord and charging him as co-tenant: Martens v. O’Connor, 101 Wis. 18 (76 N. W. Repr. 774); Repsher v. Shane, 3 Yeates, 575; Geddis v. Irvine, 5 Pa. 508 ; Miltenberger v. Schleger, 7 Pa. 241; Smith v. Teacle, 8 Pa. C. C. Rep. 150; Thomas v. R. R. Co., 194 Pa. 511; Valentine v. Colburn Co., 10 Pa. Superior Ct. 453; Coates v. Chapman, 195 Pa. 109; Snyder v, Witmer, 12 W. N. C. 301; McIntyre v. Coal Co., 118 Pa. 108.
    Plaintiff’s injuries were the proximate result of defendant’s negligence: Hey v. Philadelphia, 81 Pa. 44; Oil City Gas Co. v. Robinson, 99 Pa. 1; Drake v. Kiely, 93 Pa. 492; Vallo v. U. S. Express Co., 147 Pa. 404; Sturgis v. Kountz, 165 Pa. 358; Webster v. Coal & Coke Co., 201 Pa. 278; Pittsburg v. Grier, 22 Pa. 54; Scott v. Hunter, 46 Pa. 192 ; Brown v. Lynn, 31 Pa. 510; McGrew v. Stone, 53 Pa. 436; Chambers v. Carroll, 199 Pa. 371.
    Plaintiff’s injuries were the proximate result of defendant’s negligent act by Act of Assembly of June 8,1893, P. L. 360.

      George P. Rich, for appellee.
    The proposed amendment of the statement was properly disallowed, as introducing a new cause of action, barred by the statute of limitations.
    The evidence was insufficient to establish defendant’s liability', and the nonsuit was properly entered: South Side Pass. Ry. Co. v. Trich, 117 Pa. 390; Elliott v. Allegheny County Light Co., 204 Pa. 568; Hoag v. Lake Shore, etc., Railroad Co., 85 Pa. 293 ; Wood v. Penna. Railroad Co., 177 Pa. 306 ; Swanson v. Crandall, 2 Pa. Superior Ct. 85.
    The act of 1893 was repealed by the Act of May 5, 1899, P. L. 193, prior to the date of this fire.
    February 20, 1905:
   Opinion by

Mb. Justice Potter,

In the statement of claim filed by the plaintiff in this case, it was averred that the plaintiff’s firm “ rented the fifth floor of the said building of the defendant, who was then and there lessee of the entire premises,” and that it was the duty of defendant to accord to the plaintiff ready" and convenient ingress and egress from the building by the back stairway, and it was charged that the defendant had negligently violated such duty by blocking up the stairway by placing boxes upon it. Upon the trial it appeared that plaintiff’s firm did not rent from defendant, but that both leased from a third party, agent for the owner of the building. Plaintiff moved to amend the statement to accord with the facts, but the court refused to allow the amendment, holding that it would introduce a new cause of action. No exception was taken to the refusal to allow plaintiff to amend.

At the close of the plaintiff’s testimony, a compulsory non-suit was entered, which the court subsequently refused to take off. This refusal is the only question properly raised upon this appeal. It seems that while the trial judge was of opinion that there was a material variance between the allegations and the proof, yet the refusal to take off the nonsuit was based upon the ground that the negligence of the defendant was not the proximate cause of the accident. An examination of the statement shows that the substantial cause of action which it sets forth, is that'upon which the plaintiff relied at the trial. The statement as to the respective tenancies of the parties was merely explanatory, and might have been omitted. It is clearly set out that the plaintiff’s firm were occupants of the fifth floor of the building and the defendant “ then and there occupied certain floors of said building below plaintiff; ” that defendant, his servants and agents, permitted and caused to be placed upon a certain stairway, leading to and from the fifth floor, divers boxes so that the stairway became choked and blocked with said boxes, and ingress to and egress from the fifth floor by way of said stairway was cut off, and as a result thereof the plaintiff was injured.

This was a direct averment of negligence on the part of the defendant which the evidence produced at the trial tended to prove. We think it was sufficient. See Coates v. Chapman, 195 Pa. 109. In his opinion refusing to take off the nonsuit the trial judge says that under the evidence the jury would have been warranted in finding that the boxes placed by defendant’s workmen upon the back stairway constituted the obstruction which prevented the plaintiff from making use of that means of exit. But he does not think this act of negligence can be considered as the proximate cause of the injuries which resulted to plaintiff. In this conclusion -we cannot agree. A case much like the present one in some of its facts was Sewell v. Moore, 166 Pa. 570. There the plaintiff was prevented from reaching the fire escape by the fact that the door leading to it was locked and she then jumped from a window and was injured. The court said (p. 576) : “The difficulty was in the locking of the door that led to the fire escape on the third floor. The plaintiff got to this in time and had it been open as it should have been she would have escaped injury. . . . The only proximate and effective cause of the injury was the locking of the door.”

A cause is not too remote merely because it produces the damages by means of an intermediate agency. Where the injury was tifie immediate consequence of some peril to which the injured party was obliged to expose himself in order to avoid the peril arising from the defendant’s negligence, it is proximate enough: Pittsburg v. Grier, 22 Pa. 54; Vallo v. Express Co., 147 Pa. 404.

The cases upon this subject are reviewed in Gudfelder v. Pittsburg, etc., Railway Co., 207 Pa. 629, and the test of proximate cause is again cited as being whether the facts between the negligent act and the final result to the plaintiff constitute a continuous succession of events, so linked together that they become a natural whole.

In the present case, danger from fire was reasonably to be apprehended and guarded against at all times. The stairways both front and back formed the natural means of passage to and from the upper stories, and common prudence required that they be kept free from obstructions. When the servants of the defendant blocked up the passageway, they may not have anticipated that a fire would occur so soon, but they were responsible for any resulting damage which might be caused by their careless act. The result might have been a fall upon the stairway by some one seeking to pass. It might have resulted in damage in more than one unforeseen direction. But as it was, it so happened that under the imperative necessity of escaping from the fire, the plaintiff sought to descend the stairway. Had it been unobstructed he could readily have escaped in that way. But he says in his testimony that the boxes which had been placed in the way by the defendant’s servants cut him off. Being in extreme peril, and acting upon what seemed to him the best judgment, he says that the only way of escape he then found open, was through a window and down a rope, and then by a drop to the ground. In following this method, he received the injuries for which he here seeks to recover. If the jury believe the testimony of the plaintiff, it presents a succession of events which may properly be considered as unbroken. Certainly if the sequence of events as they actually did occur, had been suggested beforehand to the mind of a reasonably prudent man, he would have thought it quite possible for them to follow.

Our conclusion in this ease, is that if the stairs were so obstructed that the plaintiff could not reasonably make use of them, such obstruction may have fairly been held to be the proximate and effective cause of the injury suffered by the plaintiff.

The assignment alleging error in the refusal to take off the nonsuit is sustained.

The judgment is reversed and a procedendo is awarded.


text:
    Prinz v. Lucas, Appellant.

      Negligence—Parties—Trusts and trustees.

    Where a deed of trust gives to the trustees power to conduct a business and deal with the trust property as if they were absolute owners thereof, but without any personal liability or responsibility for the negligence of employees, the estate,, and not the trustees, is liable for the negligent act of a driver of a team employed in the business.

      Negligence—Master and servant—Driver of wagon.

    Where a driver makes such a short turn that the tailboard of his wagon projects over the edge of the sidewalk and crushes a boy on the sidewalk between the wagon and an iron post with such force as to kill the boy and bend the post, the owners of the wagon will be responsible in damages for the death of the boy.
    Submitted Ja.n. 5,1905.
    Appeal, No. 146, Jan. T., 1904, by defendants, from judgment of C. P. No. 5, Phila. Co., Sept. T., 1901, No. 3320, on verdict for plaintiffs in case of Ferdinand Prinz and Amelia Prinz, his wife, v. William H. Lucas and Albert Lucas, trustees, trading as John Lucas & Company.
    Before Dean, Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for death of a boy. Before Martin, P. J.
    The facts appear by tbe opinion of the Supreme Court.
    Verdict and judgment for plaintiffs for $2,000. Defendants appealed.

      Error assigned was in refusing binding instructions for defendants.

      William W. Bmifhees, for appellant.
    The defendants having been sued as trustees could not be held as such under the law: Fire Ins. Patrol v. Boyd, 120 Pa. 624; Keating v. Stevenson, 21 App., Div. 604 (47 N. Y. Supp. 847); Parmenter v. Barstow, 22 R. I. 245 (47 Atl. Repr. 365).
    Plaintiff’s own testimony showed due care on the part of the wagon driver: Stearns v. Ontario Spinning Co., 184 Pa. 519; Baran v. Reading Iron Co., 202 Pa. 274; Oil Co. v. Penna. Torpedo Co., 190 Pa. 350; Dennison v. Iron Co., 22 Pa. Superior Ct. 219.
    The measure of a boy’s responsibility for contributory negligence is his capacity to see and appreciate danger; and the rule is that, in the absence of clear evidence of the lack of it, he will be held to such measure of discretion as is usual in those of his age and experience, the measure varying of course with each additional year: Kehler v. Schwenk, 144 Pa. 348.

      Edward Brooks, Jr., and Frederick J. Geiger, for appellees.
    The trust estate of John Lucas is liable in this suit: Barton v. Barbour, 104 U. S. 126 ; Kain v. Smith, 80 N. Y. 458.
    The driver of the wagon was guilty of negligence: Pass. Ry. Co. v. Foxley, 107 Pa. 537; Jones v. Traction Co., 201 Pa. 344; McCloskey v. Ice Co., 174 Pa. 34; Wolff Mfg. Co. v. Wilson, 46 Ill. App. Ct. Rep. 381; Dunham Towing, etc., Co. v. Daudelin, 41 Ill. App. Ct. Rep. 175.
    The fact that the post was bent is evidence from which negligence may be inferred: Gress v. Ry. Co., 14 Pa. Superior Ct. 87; Hooper v. United Traction Co., 17 Pa. Superior Ct. 638; Dennison v. North Penn Iron Co., 22 Pa. Superior Ct. 219.
    February, 20, 1905:
   Opinion by

Mb. Justice Potter,

The defendants in this case, William H. Lucas and Albert Lucas, were sued as trustees, trading as John Lucas & Co. Counsel for plaintiff offered in evidence the deed of trust executed by John Lucas of March 28, 1900. Under its express provisions, the trustees were empowered to deal with the property as if they were the absolute owners thereof. It is also provided that no responsibility whatever shall result to them by reason of misconduct of agents or employees, and also “ for negligence, there shall be no liability or responsibility ” upon the part of the trustees. It was clearly intended that the risk of any loss in this respect should be assumed and borne by the estate.

The business of the defendants was the manufacture and sale of paints. On September 24, 1901, their driver was sent with the delivery wagon to take some goods to the plaintiff, Ferdinand Prinz. The driver arrived with the articles at Prinz’s place of business, 639 North 8th street, about five o’clock in the afternoon. As he came up to the front of the house, which was on the east side of the street, he was met by Harry Prinz, plaintiff’s son, a boy twelve years of age, who directed the goods to be taken around to the back entrance. The driver proceeded a little further northward, and turned his wagon when opposite an iron hitching post, which stood near the edge of the sidewalk, about thirteen inches from the edge of the curb. What followed is thus described in the language of a witness, Rachael Longacre: “I was sitting on the steps of 645 North 8th street, and a wagon was in front of Mr. Prinz’s house and Harry was standing against the post on the gutter side, and there was a boy in the wagon, and the tailboard was out, and the wagon backed and squeezed him between the post and the tailboard, and he fell.” Another witness testified that “ Harry was standing against the post, and he told the man to go around back with the goods and the man made a sharp turn and squeezed Harry with the post.” The injuries which he received resulted in his death.

The trial judge held that the evidence was sufficient to justify the jury in finding that the driver was guilty of negligence which caused the accident. It is clear that he made so short a turn that the tailboard of the wagon projected over the edge of the sidewalk and came in contact with the iron post with such force as to bend it. Obviously, it was the duty of the driver to so turn his wagon as to avoid a collision with persons or property on the pavement. This could readily have been done by an ordinarily careful man in the usual management of his team. It was certainly not necessary for him to have made so short á turn. He could have driven further out into the street, or even across to the other side, and thus have avoided all possibility of collision with the tailboard. There seems to be no evidence in the case as to the boy intruding himself between the wagon and the post; but, at any rate, that would have been a question for the jury as to contributory negligence.

The evidence was ample to justify the jury in finding that the wagon in turning actually pushed an iron hitching post four or five inches out of the perpendicular. This in itself, under the circumstances, would be strong evidence of negligence. The driver had absolute control of his horses ; there was no occasion for undue haste, and he was slowly turning his wagon around when the collision took place. If the hitching post had been the support of the roof of an awning, and the awning had been knocked down, thereby destroying property stored underneath, it would hardly have been pretended that the action of the driver was not negligent. The accident in this case did not occur at a crossing, nor was the injured boy upon the street. He was upon the sidewalk; a place which is ordinarily set apart for the use of pedestrians alone. There was no occasion to anticipate that the driver would turn in such a way as to extend any portion of the wagon over the pavement.

The trial judge refused the request of defendants for binding instructions, but left the questions of negligence and contributory negligence to the jury. He said, however, to the jury that the burden was on the plaintiffs to show that the boy’s death was occasioned by negligence on the part of the driver of the defendants. We can see no error either in the fact, or in the manner of the submission of the case to the jwy-

The assignments of error are overruled and the judgment is affirmed.