author: Mr. Justice Mestbezat,

text:
    Rowdin, Appellant, v. Pennsylvania Railroad Company.

      Railroads — Passengers—Carriers—Live stock — Drover—Release—Negligence.

    A drover accompanying live stock on a railroad, whose transportation has been included in the price paid by the owner for the transportation of the live stock, is not only a passenger in the sense of one who has paid his fare, but is.also a passenger within the meaning of the Act of April 4, 1868, P. L. 58. A release signed by such a drover does not relieve the railroad company from its own or its servant's negligence, but it puts upon the drover the burden of proving negligence.

      Negligence — Railroads—Passenger—Drover—Release—Evidence.
    Where a drover whose transportation has been included in the price paid for the transportation of the live stock which he accompanies, is injured while in the live stock car, he sufficiently sustains the burden of proof put upon him by a release of injuries which he had signed, by showing that his injuries resulted from a violent collision between his car and another car on the defendant’s track.
    Argued March 21, 1904.
    Appeal, No. 273, Jan. T., 1903, by plaintiff, from judgment of C. P. No.-l, Phila. Co., Sept. T., 1901, No. 1768, on verdict for defendant in case of J. B. Rowdin v. Pennsylvania Railroad Company.
    Before Dean, .Pell, Bkown, Mestbezat and Thompson, JJ.
    Reversed.

      Trespass to recover damages for personal injuries. Before Beitlek, J.
    The court charged as follows :
    The plaintiff here was riding upon what was equivalent to a free pass; that is to say, he had paid no fare and was not, in the ordinary sense of the word, a passenger upon the road of the Pennsylvania Railroad Company. He had signed a contract, or rather I do not know whether he had signed it, but he was upon the road of the Pennsylvania Railroad Company aswthe consequence of a written contract in which he, asyiweliijhper, agreed to relieve the Pennsylvania RalilrbadúGomptayíBfoSM liability for accident to the man in charge b&ttedretkáqcwháthiki? due to the negligence of the railroad companycpuuto) rjother causes.
    Now, in point of fact, our Supreme Court has held that that contract is against public policy and is not in its entirety a contract that the law will uphold, even though the railroad company and the shipper deliberately make it, put it in writing -and sign it, and the Supreme Court has held that it is against public policy for a transportation company to contract to relieve itself of its negligence. And, hence, even in the case of a man who is traveling upon a free pass, or given transportation free as a part of any other contract he makes with a railroad company, he can still recover from the railroad company if he proves that he was injured by the negligence of the railroad company. In that respect his position is changed from that of a passenger in the ordinary acceptation of that term.
    A passenger upon a railroad has, to state the case very broadly, only to prove that he was injured to recover from the railroad company, unless the railroad company can show that the cause of the injuries was something absolutely outside and beyond its control, as, for instance, an act which is termed by. the law an act of God. But the making of a contract such as was made in this case shifts the .burden of proof from the defendant to the plaintiff. It takes away from the defendant the burden of proving that it was not guilty of negligence, and puts upon the plaintiff the burden of proving that the defendant was guilty of negligence, because only in case he can prove that the railroad company was guilty of negligence can he recover against it, and that is in spite of the contract in which it is said he could not recover, even though the defendant company was negligent.
    Now in this case the plaintiff has not shown that the railroad company was negligent. He has shown a crash; he has not shown the cause of it; he has not shown the ownership of the thing that caused the crash; he has not shown that which is entitled to go to the jury to base a verdict upon, that the defendant was guilty of negligence.
    In stating the case in this way I have done it simply that the plaintiff’s counsel may have the benefit of my views on the record so that if the plaintiff, seriously injured, seriously crippled and seriously hurt, desires to overturn the decision either of the court in banc or in the Supreme Court, he may have every chance to do it.
    T might add that there is a very grave doubt whether this case does not fall within the case which has been termed here the Price case, and whether it is not governed by the act of 1868. That act provides that where a man is lawfully upon the railroad, but not a passenger, that he shall have no other rights than the rights of a railroad employee. This man was lawfully upon the railroad. He was a man in charge of Quinton’s horses; he was put there by the contract that Quinton made; that is to say, he was put there because he was the caretaker of Quinton’s horses, looking after them in transit, and it seems to me that it can be well argued that he was lawfully on the railroad, but not a passenger, and therefore that the act of 1868 applies. I put the case on the other point, believing that that is the point about which there is no doubt.
    I direct a verdict in this case for the defendant.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in directing judgment for defendant.

      Theo. Quyler Patterson and Samuel Dickson, with them Richard O. Dale, for appellant.
    The court below held that by the plaintiff signing the so-called release, the burden of proving defendant’s negligence being thus shifted back upon the plaintiff, the jury must be instructed to find for the defendant. In answer to this we maintain that the facts proved by the plaintiff left no room for doubt, because the only inference — from these facts— is that the defendant’s negligence caused the plaintiff’s injury: Crary v. Lehigh Valley R. R. Co., 203 Pa. 525; R. R. Co. v. Bausch, 7 Atl. Repr. 731; R. R. Co. v. O’Hara, 3 Penny. 190; R. R. Co. v. McCloskey, 23 Pa. 526; Penna. R. R. Co. v. Henderson, 51 Pa. 315; R. R. Co. v. Butler, 57 Pa. 335.
    The plaintiff was a passenger within the meaning of the act of April 4, 1868: Price v. R. R. Co., 96 Pa. 256; Foreman v. Penna. R. R. Co., 195 Pa. 499; Miller v. Cornwall R. R. Co., 154 Pa. 473.

      John Hampton Barnes, for appellee.
    The plaintiff was in the relation of an employee to the defendant under the provisions of the act of April 4, 1868, and was not a passenger: Penna. R. R. Co. v. Price, 96 Pa. 256; Foreman v. Penna. R. R. Co., 195 Pa. 499; Miller v. Cornwall R. R. Co., 154 Pa. 473.
    Even if the plaintiff were a passenger, he had, by the release which he executed, recited above, shifted the burden of proof of negligence so that no presumption of negligence from the evidence offered by him arose by reason of the mere fact that he was injured on the appellee’s railroad, and he must prove affirmatively and exclusively .the cause and character of the negligence which resulted in his injury : Crary v. Lehigh Valley R. R. Co., 203 Pa. 525.
    The cases cited by the appellant do not affect the bearing of the decision in Crary v. Lehigh Valley R. R. Co. upon this case.
    In R. R. Co. v. Bausch, 7 Atl. Repr. 731, the negligence of the defendant was admitted.
    In R. R. Co. v. O’Hara, 12 W. N. C. 473, the evidence showed precisely how the accident happened, and the only question decided by the court was that the release in a pass for free transportation did not release the carrier from liability for negligence.
    In R. R. Co. v. McCloskey, 23 Pa. 526, there was clear proof of the cause of the. collision. “There was some evidence, but strongly contradicted, that such an agreement (i. e. a release) had been signed,” and the court merely decided (page 532) that a carrier may not contract for exemption “ from liability for gross negligence.”

      R. R. Co. v. Butler, 57 Pa. 335, is to the same effect— “ that a stipulation by a common carrier that he shall not be liable for damages does not release him from responsibility for actual negligence by himself or his servants.”
    April 11, 1904:
   Opinion by

Mr. Justice Mestbezat,

J. B. Rowdin, the plaintiff, was employed by C. E. Quinton to accompany and superintend the shipment of two horses over the defendant’s road from Wissahickon Heights, in Pennsylvania, to Trenton, New Jersey. On the morning of August 26, 1901, the horses were putin a carat Wissahickon Heights and were taken to Chestnut Hill station on defendant’s road. Here the plaintiff alighted from the car, and a bill of lading was given him by the defendant’s agent in which it was “ mutually agreed, in consideration of the rate of freight hereinafter named,” that the defendant company would carry from Wissahickon Heights,.Pennsylvania, to Trenton, New Jersey, two horses with“l man in charge free.” The horses were consigned to C. E. Quinton. At the time he received the bill of lading, the plaintiff signed a release indorsed on the back of a contract known as the “ Uniform Live Stock Contract,” and therein, “ in consideration of the carriage of the undersigned upon a freight train of the carrier or carriers named in the within contract without charge further than the sum paid or to be paid for the carriage upon said freight train of the live stock mentioned in said contract,” he voluntarily assumed all risk of accidents or damage to his person or property, and released the defendant from all claims for any personal injury or damage of any kind sustained by him by reason of the negligence of the defendant or of any of its employees. The car with the plaintiff and the horses in it was taken from Chestnut Hill over the defendant company’s road to Germantown junction, where it was placed on a siding by itself to await the arrival of one of the defendant’s freight trains which was to take it to Trenton. After the car had been on the siding a short time and while the plaintiff was in it trying to quiet one of the horses, frightened by a passing train, another freight car on the same track loaded with oil collided with it. This is clearly a reasonable.inference from the evidence, and the jury would have been warranted in finding it as a fact. The collision was so violent that it knocked off the door of the car containing the horses and placed the other car in a lopsided position so that the “ oil was running out of it.” The plaintiff was thrown to the corner of the car and seriously injured. He brought this action to recover damages for the injuries he sustained, alleging that they were caused by the defendant company’s negligence.

At the conclusion of the testimony the trial judge affirmed defendant’s point that “ under all the evidence the verdict should be for the defendant,” and withdrew the case from the jury. His reason for giving binding instructions was that the release imposed “ upon the plaintiff the burden of proving that the defendant was guilty of negligence,” and that he had failed to show that his injuries resulted from defendant’s negligence. The learned judge also intimated that the plaintiff might be prevented from recovering by reason of the act of April 4,1868, 2 Purd. Dig. 1604, pl. 6, which relieves a railroad company from liability for injuries received by any person, not a passenger or its own employee, while engaged or employed about its road or cars.

In Pennsylvania Railroad Company v. Price, 96 Pa. 256, a passenger is defined to be “ one who travels in some public conveyance by virtue of a contract, express or implied, with the carrier, as payment of fare, or that which is accepted as an equivalent therefor.” The plaintiff when injured was being carried by the defendant company for a consideration under a contract which made him a passenger and was not riding upon what was equivalent to a free pass,” as suggested by the court below. The learned judge also says: “ He (plaintiff) had paid no fare and was not, in the ordinary sense of the word, a passenger upon the road of the Pennsylvania Railroad Company.” The contract and the release show that the consideration for the transportation of the plaintiff was included in “ the sum paid or to be paid for the carriage upon said freight train of the live stock mentioned in said contract.” For this consideration, the plaintiff was to be carried from Wissahickon Heights, Pennsylvania, to his destination at Trenton, New Jersey. By the terms of the contract the “ shipper is at his own risk and expense to load and take care of, and to feed and water, said stock whilst being transported.” It therefore became necessary for the shipper to have some person accompany the horses, and this person was required to be on the train carrying the stock. Recognizing the necessity of some person being in ch&rge of the horses and of his having to travel on the same freight train, and desiring to relieve itself from liability for any injuries sustained by him, the defendant company inserted in the contract for transportation the stipulation “ that in consideration of the premises, and of the carriage of a person or persons in charge of said stock upon a freight train of said carrier or its connecting carriers, without charge other than the sum paid or to be paid for the transportation of the live stock,” the shipper would indemnify the carrier against all claims for injuries sustained by the person in charge of the stock. The language of Read, J., in Pennsylvania Railroad Company v. Henderson, 51 Pa. 315, an action by a person injured while in charge of stock and riding on a “ free ticket,” is pertinent and applicable to the case in hand. He says : “ As it is absolutely necessary, in carrying stock, that the persons who have charge of them should be carried by the company, the price paid for the freight includes the cost of transporting the drover, who is not therefore a gratuitous but a paying passenger, and the word ‘free ’ is therefore only true so far as that the conductor is not entitled to charge him separately for his' passage.” The same principle is announced in Hanover, etc., Railroad Co. v. Anthony, 3 Walker’s Rep. 210. And it is immaterial that the consideration for the plaintiff’s transportation is paid to the defendant company by his employer. The rights of a passenger as against the carrier are not affected by reason of the fact that his fare is paid by another than the passenger : Marshall v. The York, Newcastle & Birmingham Railway Co., 11 C. B. 655. Aside from the effect of the release upon the contract of carriage of the plaintiff, to be noticed hereafter, he was therefore a passenger while traveling on the defendant’s road at the time he received his injuries and was entitled to the rights and protection of a passenger as against the carrier company.

We do not agree with the intimation of the court and the contention of the defendant, “ that the plaintiff was in the relation of an employee to the defendant under the provisions of the act of April 4, 1868, and was not a passenger.” As we have already observed, the plaintiff at the time of the collision between the cars resulting in his injuries, was being carried under a contract as a passenger for hire on the defendant’s road to his destination on the company’s line at Trenton, New Jersey. This clearly relieves him from the provisions of the act of 1868 and brings him within the proviso that “ this section shall not apply to passengers.” As suggested in Pennsylvania Railroad Company v. Price, supra, it would certainly be paradoxical, if not unsound, that a party should be within the letter of the act and at the same time be within the exception. Being a passenger, he cannot be at the same time an employee or a quasi employee within the provisions of the act. The proviso covers all classes of persons bearing the relation of passenger to the carrier, and when that relation is shown to exist the carrier is not in a position to invoke the provisions of the act for its protection. We think this construction of the act of 1868 is in accord with our former decisions. In Pennsylvania Railroad Company v. Henderson, supra, a drover who had paid freight for carrying his live stock was given a drover’s pass or “ free ticket ” for the transportation of the person in charge of the stock, which entitled him to travel on the same train with the stock. There was no consideration paid for the ticket other than the freight paid for the transportation of the stock and that was the same whether the shipper sent a person in charge of the stock or not. The drover was injured while traveling ón this ticket and in an action against the railroad company for damages by reason of its alleged negligence, it was held that he was not “ a gratuitous but a paying passenger.” In Hanover, etc., Railroad Co. v. Anthony, supra, the plaintiff was a cattle shipper and “ paid the company thirteen dollars per carload, and this payment, under his agreement with the company, entitled him to go with his stock and return home again on one of their passenger trains.” He was given a pass called a “ Drover’s Return Ticket,” and while traveling on it en route home on a passenger train was injured. This court held that the plaintiff “ clearly came within the contract relation of a paying passenger,” and that “ a drover who accompanies a car of cattle on a railroad has a passenger’s right of action against the company for an injury sustained, and is not within the purview of the Act of April 4, 1868, P. L. 58.” There the trial judge of the court below whose judgment was affirmed by this court, in his opinion on the reserved question whether the act of 1868 relieved the railroad company from liability said: “ When this point was presented to us we indicated our purpose to refuse it, because we could not conceive that one who traveled upon the company’s trains under a contract relation could be other than a passenger, and hence not within the scope of the act of assembly referred to. As no case was cited at the time which seemed to decide the question, we reserved the point for more careful consideration. Since that the case of the Pennsylvania Railroad Company v. Henderson, 51 Pa. 315, has been found, and is directly in point. It was argued, however, that that decision is modified by the Act of April 4, 1868, P. L. 58. That this is not the effect of that act seems clear enough from the language of the Supreme Court in the case of Pennsylvania Railroad Company v. Price, 96 Pa. 256.”

The cases cited and relied upon by the defendant wherein a postal clerk was held not to be a passenger and within the provisions of the act of 1868, are clearly distinguishable from the case at bar. A postal clerk is carried by a'railroad company by virtue of the act of congress, which provides that the company shall carry him without extra charge. Neither he nor his employer, the United States government, contracts with the company for his transportation. As said by Paxson, J., in Pennsylvania Railroad Company v. Price, supra: “This act (of congress) makes it the duty of the company to carry the mail agent without extra charge, but it no more makes him a passenger than it does the mail matter of which he has the care. The company have no control of him as they have over passengers, for whose safety they are responsible. He is not bound to observe any of the rules prescribed for the protection of passengers.” In this case the court in commenting on Pennsylvania Railroad Co. v. Henderson, supra, and noting the distinction between a mail agent and a person traveling with stock by virtue of a contract with the railroad company, says : “ There the plaintiff was a drover transporting his live stock upon the cars of the company. He had paid the freight on his stock, and at the same time received a pass for himself. He was traveling with his stock, and was as much a passenger as if he had been traveling with his trunk. He had a direct contract relation with the company. He was under the control of the conductor, and was bound to conform to the reasonable rules of the company the same as other passengers. I see little analogy between such a case and that of a mail agent, who has no contract relation with the company, and who is not in any sense under its control.” Nor does Miller v. Cornwall Railroad Company, 154 Pa. 473, rule the case in hand against the plaintiff. There the plaintiff was injured while he was in charge of the cars of his employer which were run over the defendant’s road, under a traffic agreement between the parties. He was clearly “ engaged or employed on or about the road ” of the defendant company in contemplation of the act of 1868.

As stated above, the court granted a nonsuit on the ground that the plaintiff had failed to show that his injuries resulted from defendant’s negligence. It is well settled and was conceded by the trial judge that the release signed by the plaintiff did not relieve the defendant company from its' own or its servant’s negligence. Assuming, as we will, that the burden was on the plaintiff to show negligence, we think the facts, ' as disclosed at the trial, were sufficient to send the case to a •jury on the question of the defendant’s negligence. In not developing the facts more fully at the trial, the plaintiff took the chances of the jury finding against him, but that did not warrant the court in withdrawing the case from the jury. The plaintiff was injured while he was being carried by the defendant company over its railroad as a passenger, his injuries resulting from a violent collision between his car and another car on the defendant’s track. These facts are not consistent with care and prudence in operating the defendant’s road. The only infereneé arising from the facts is that the collision was caused by defective appliances of transportation or by the negligent operation of the cars on the defendant’s road, for either or both of which the company is responsible. A railway company has control of its road and - presumably of the cars and trains that are operated on it. When, therefore a collision occurs between trains or cars and injury results to a passenger, the happening of the collision is evidence of, or raises an inference of, the carrier’s negligence, and in an action by the injured person against the carrier, the question of the defendant’s negligence is for the jury : Camden & Atlantic Railroad Company v. Bausch, 7 Atl. Repr. 731; Buffalo, Pittsburg & Western Railroad Company v. O’Hara, 8 Penny. 190; Crary v. Lehigh Valley Railroad Company, 203 Pa. 525. While in the Crary case the facts did not bring it within the rule just stated, yet the opinion clearly recognizes the rule and its enforcement by the-decisions of this court including the other two cases cited above. We are of opinion that the plaintiff sustained the burden of proof put upon him by the release, and that therefore the learned trial judge erred in withdrawing the case from the jury.

The judgment is reversed with a venire de novo.


source: Caselaw Access Project

author: Mr. Justice Felu,

license: Public Domain

text:
    Dynes v. Bromley, Appellant.

      Negligence — Infants—Contributory negligence — Master and servant — Question for jury.

    The measure of a boy’s responsibility for contributory negligence is his capacity to understand and avoid danger. The standard of responsibility to which, in the absence of evidence on the subject, he will be held is' the average capacity of others of the same age. Since his responsibility depends upon his knowledge and experience and upon the character of the danger to which he is exposed, the question is generally one for the jury. It must always be for them where there is doubt as to the facts or as to the inferences to be drawn from them.
    In an action by a boy thirteen years and four months old against his employer, to recover damages for personal injuries sustained by plaintiff’s clothes being caught in a dangerous machine, the evidence for plaintiff tended to show that the dangerous character of the work had not been explained to him. It also appeared that the danger of a boy’s clothes being wrapped around a shaft, the rapidity of whose motion gave it the appearance of being stationary, or of their being caught by a projecting screw of which the boy probably knew nothing, was not obvious to anyone unfamiliar with machinery. Held, that the case was for the jury, and that a verdict and judgment for plaintiff should be sustained.
    Argued March 22, 1904.
    Appeal, No. 283, Jan. T., 1903, by defendants, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1902, No. 1485, on verdict for plaintiff, in case of Oliver Dynes and William Harrison Dynes, by his father and next friend, Oliver Dynes, v. George D. Bromley, James A. Bromley and Frank B. Birch, Copartners, trading as James and George D. Bromley.
    Before Dean, Fell, Brown, Mestbezat and Thompson, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before McMiChael, J.
    The circumstances of the accident are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff, Wm. Harrison Dynes, for |5,000. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      George L. Crawford, of Crawford Loughlin, for appellants.
    ■ — It was error to submit the case to the jury: Custer v. B. & O. R. R. Co., 206 Pa. 529; Barry v. N. Y. Biscuit Co., 59 N. E. Repr. 75: Fickv. Jackson, 3 Pa. Superior Ct. 378; O’Keefe v. Thorn, 24 W. N. C. 379 ; Zurn v. Tetlow, 134 Pa. 213; Ford v. Anderson, 139 Pa. 261; Ash v. Verlenden, 154 Pa. 246; McEwen v. Hoopes, 175 Pa. 237 ; Welsh v. Butz, 202 Pa. 59 ; Swanson v. Crandall, 2 Pa. Superior Ct. 85.

      John J. Sullivan, for appellees.
    The case was for the jury: Rummel v. Dilworth, 131 Pa. 509; Welsh v. Butz, 202 Pa. 59; Doyle v. Pittsburg Waste Co., 204 Pa. 618; Lebbering v. Struthers, 157 Pa. 312; Ross v. Walker, 139 Pa. 42; Smith v. Hillside Coal & Iron Co., 186 Pa. 28; Fick v. Jackson, 3 Pa. Superior Ct. 378; O’Keefe v. Thorn, 24 W. N. C. 379; Zurn v. Tetlow, 134 Pa. 213; Ford v. Anderson, 139 Pa. 261; Ash v. Verlenden, 154 Pa. 246; McEwen v. Hoopes, 175 Pa. 237; Baldwin v. Urner, 206 Pa. 459; Rooney v. Sewall & Day Cordage Co., 161 Mass. 163 (36 N. E. Repr. 789); Cheyney v. Middlesex Co., 161 Mass. 296 (37 N. E. Repr. 175); Ciriack v. Woolen Co., 151 Mass. 152 (23 N. E. Repr. 829); O’Connor v. Whittall, 169 Mass. 563 (48 N. E. Repr. 844); Stuart v. West End Street Ry. Co., 163 Mass. 391 (40 N. E. Repr. 180); Barry v. N. Y. Biscuit Co., 59 N. E. Repr. 75; Coombs v. New Bedford Cordage Co., 102 Mass. 572; Roth v. Northern Pacific Lumbering Co., 18 Oregon, 205 (22 Pac. Repr. 842); Wuotilla v. Duluth Lumber Co., 37 Minn. 153 (33 N. W. Repr. 551); Biggs v. Consolidated Barb-Wire Co., 60 Kansas, 217 (56 Pac. Repr. 4).
    April 11, 1904:
   Opinion by

Mr. Justice Felu,

The allegation of negligence on which this action is founded is that the defendants exposed a boy thirteen years and four months old, employed in their mill, to a danger which, because of his youth and inexperience, he did not understand and of which he had not been warned. The boy’s work was to carry wool from a shredding and cleaning machine to another part of the room. This machine, known as a willow, was enclosed in a wooden box, but nine inches of the shaft to which the cylinder was attached projected through the side of the box into a passageway. To this end of the shaft a belt pulley sixteen inches in diameter was attached and held in place by a set screw which projected an inch and a quarter above the hub of the pulley. The face of the pulley was three inches wide and the shaft extended six inches beyond the hub. The shaft and pulley revolved four hundred and fifty times a minute. When gathering up the wool the boy stood in front of .the willow, and when waiting for a load he stood in the passageway at its side and within a few inches of the pulley and shaft. He had been engaged in this work four weeks and at the time of the accident was standing at the side of the willow, with his back to the shaft and with his hands behind him. He slipped or stepped back, and his clothing was caught by the shaft or the set screw ; he was whirled around the shaft and sustained injuries that resulted in the loss of an arm.

The case was submitted to the jury with very full and clear instructions, which left but a single ground of recovery, that the boy had not been warned of the danger and was not aware of it, and that it was not so obvious as to be seen and understood by one of his experience and capacity. The only assignment of error is to the refusal of the judge to direct a verdict for the defendants. This could not properly have been done. The boy, when waiting for the wool to pass from the machine, was required to stand within a few inches of the shaft and pulley with his back to them, where a slight shifting of position would bring bim into contact with them. His attention was directed to his work and there was nothing to warn him of the danger behind him. He doubtless knew that if his body touched the pulley he would be hurt, but the danger of his clothes becoming wrapped around the shaft, the rapidity of whose motion gave it the appearance of being stationary, or of their being caught by the projecting screw, of which he probably knew nothing, was not obvious to anyone unfamiliar with machinery. The measure of the boy’s responsibility for contributory negligence is his capacity to understand and avoid danger. The standard of responsibility to which, in the absence of evidence on the subject, he will be held is the average capacity of others of the same age. Since his responsibility depends upon his knowledge and experience and upon the character of the danger to which he is exposed, the question is generally one for the jury. It must always be for them when there is doubt as to the facts or as to the inferences to be drawn from them: Kehler v. Schwenk, 144 Pa. 348; Parker v. Railway Co., 207 Pa. 438. To the understanding of the plaintiff the danger may have been a hidden one. Whether it was such, the jury alone could determine.

The judgment is affirmed.


author: Per Curiam,

text:
    Piper’s Estate.

      Decedent’s estate — Distribution—Executors and, administrators — Refunding bonds.

    Distribution by the orphans’ court of a balance shown by the account of an executor or administrator is a quasi proceeding in rem, binding upon the whole world, and especially binding those who are actually parties or but for their own act or laches might have been parties.
    Where distribution is awarded to a legatee or distributee or where the court approves a previous distribution made voluntarily, the executor or administrator has no right to demand a refunding bond, and as a necessary consequence cannot be made liable for not having done so.

      Mortgage — Presumption—Decedent’s estates — Distribution.
    Where land is conveyed under and subject to a mortgage created by the grantor, and for more than thirty years after the mortgage became due and until after the death of the obligor in the bond accompanying the mortgage, interest is paid by the obligor and his successors in title to the land, and the executors of the obligor voluntarily pay legacies, without taking refunding bonds, and no claim is made on the bond at the audit of the executor’s account, the mortgagees cannot subsequently claim either from the executors or the legatees, a deficiency resulting from a' sheriff’s sale of the land for less than the amount of the mortgage.
    Argued March 22, 1904.
    Appeal, No. 287, Jan. T., 1903, by the Fire Association of Philadelphia, from decree of O. C. Phila. Co., July T., 1897, No. 301, dismissing petition for citation in estate of Wm. A. Piper, deceased.
    Before Dean, Fell, Blown, Mesteezat and Thompson, JJ.
    Affirmed.
    Petition for citation.
    From the record it appeared that Wm. A. Piper on June 11, 1869, executed to the Fire Association of Philadelphia his bond and mortgage for $ 7,000 for one year. The property covered by the mortgage was sold by William A. Piper in 1893, to Alexander H. McAdam, and by the executors of his will was conveyed to Theodore H. Conderman, the • vice president of the Fire Association of Philadelphia, appellant herein, in 1900. Conderman having made default suit was brought to foreclose the mortgage in August, 1900, and no notice having been given to appellees, either of the default or of the suit, judgment was taken against Wm. A. Piper on two returns of nihil habet. No claim was made by appellant against appellees until after November 1, 1900. William A. Piper died. July 6, 1896, having first made a will of which the appellees were appointed executors. The account of the executors was filed on August 25, 1897; was audited by the orphans’ court on October 8, 1897, Judge Ashman filing his adjudication thereon on October 22, 1897. To this adjudication exceptions were filed to the allowance of the claim for direct inheritance tax on the legacies. These exceptions were sustained, and order and decree entered “ that the legacies mentioned in ad judication be awarded without deduction for direct inheritance tax.” On March 30, 1901, the Fire Association filed a petition for a citation to file an account for the purpose of having legacies, paid to the legatees, applied to the payment of the deficiency resulting from a sale of the mortgaged premises for less than the amount of the mortgage. ...

      Penrose, J., filed the following opinion:
    Distribution by the orphans’ court of a balance shown by the account of an executor or administrator is a quasi proceeding in rem, binding upon the whole world, and especially binding those who are actually parties or, but for their own act or laches, might have been. The Act of April 13, 1840, P. L. 319, provides that distribution may be upon the application of any legatee, heir, or other person interested;' and at the hearing, each legatee, heir or creditor has the right to contest the claim of the others, Kittera’s Estate, 17 Pa. 416, and to deny his right to participate. The decree, like the decree of any other court, not only concludes all parties, but it c'annot be impeached collaterally; and hence, where, in such proceeding, distribution is awarded to a legatee or distributee, or where the court approves a previous distribution, made voluntarily, Charlton’s Appeal, 88 Pa. 476; Gormley’s Estate, 154 Pa. 378, the executor or administrator has no right to demand a refunding bond, and, as a necessary consequence, cannot be made liable for not having done so: Pierson’s Estate, 5 Pa. Dist. Rep. 424; Ferguson v. Yard, 164 Pa. 586, etc. Creditors who do not choose to come into the orphans’ court have the right to stay out. They may, if they prefer, sue in another forum ; but if they do they lose all claim to the fund distributed, and cannot be heard to complain that the rights which they failed to assert were not protected or provided for : Hammett’s Appeal, 83 Pa. 392. Volenti non fit injuria.
    Of course, where the account is filed before the expiration of the time given to creditors to present their claims, its adjudication, within that period, as in Simpson’s Appeal, 109 Pa. 383, Robin’s Estate, 180 Pa. 630, and Rastaetter’s Estate, 15 Pa. Superior Ct. 549, will not protect the executor or administrator who does not require refunding bonds; and so as in Jones’s Appeal, 99 Pa. 124, where an account blending distribution and administration is simply confirmed without affirmative action by the court with regard to the distributive payments ; in the former case, the award of distribution is in plain disregard of the right given to creditors by the act of assembly, and in the latter, creditors have not had the opportunity to be heard which is afforded where the account comes regularly before the court for distribution as well as confirmation.

      It is clear in the present case that the petitioner cannot claim against the executors, whose distribution, without refunding’ bonds, was under a decree which might have been enforced by attachment. It is a maxim of the law that whatever a man may be compelled to do, he may do voluntarily.
    It is no less clear that there is no right, to demand restitution from the legatees or distributees in whose favor the decree was made. If it should be conceded, for the sake of argument, that the court erred in not making the distribution conditioned upon the giving of refunding bonds, the error was one that could only be corrected by appeal, or by review at the instance of one who was not chargeable with laches. Even where a legatee has received a voluntary payment from the executor — as decided in Montgomery’s Appeal, 92 Pa. 202; Miller v. Hulme, 126 Pa. 277, and Blake v. Metzgar, 150 Pa. 291 — he may, where there is nothing unconscionable in his so doing, retain it: a fortiori, where it has been determined by decree of court that the payment was proper, and that it should be made.
    Here the petitioner bases its claim for relief upon a bond which accompanied a mortgage given to it by the decedent June 11, 1869 — twenty-seven years before his death. After this lapse of time, there would, ordinarily, be a presumption of payment; but if such presumption has been rebutted by the conveyance of the mortgaged property, in June, 1893, “ under and subject to ” the mortgage, it was clearly the duty of the creditor, if not satisfied with the security of the mortgage, and claim upon the personal estate of the mortgagor, under the bond, was contemplated, to give prompt notice to the executors, and, still more, to present such claim when their account was before the court. If this had been done, the legatees, if their defense of lapse of time, estoppel, etc., had failed, would either have been subrogated to the right of the creditor upon the mortgage, or proceedings would have been suspended until the amount required from personal estate to make good the deficiency of the real estate had been ascertained by suit on the mortgage and sale of the land: Saffin’s Estate, 12 Pa. Dist. Rep. 99; and in the latter case they would have had the opportunity of attending the sale and preventing a sacrifice — an opportunity which they have been deprived of by reason of the judgments having been obtained upon two returns of nihil, though, it would seem, the mortgagee knew that the mortgagor was dead, but gave no notice to the executors. Had claim been so made, neither the legatees nor the executors would have been misled by the silence of the creditor.
    The position of the latter is not made any better by the fact that payment of interest on the mortgage continued to be made regularly by the terre-tenant until nearly three years after the account of the. executors had been adjudicated. The principal of the debt had become due many years before; and the failure to give notice that the personal estate of the mortgagor was looked to for payment or to present the claim to the auditing judge, indicated, as strongly as actions could indicate, that the idea of such claim was not entertained, and that the creditor was satisfied with the security of the mortgage.
    It is a fact in the case, though it does not, perhaps, affect its legal aspect, that the default in the payment of interest, as above, appears to have taken place after the purchase of the mortgaged premises, from the executors of the original vendee of the decedent, “ under and subject to ” the payment of the mortgage,, by one, who, it is asserted without contradiction, held the position of vice president of the petitioning company, and who, as between himself and his immediate vendor and the decedent, the original vendor, had become the principal debtor, by reason of the covenant implied by purchasing “ under and subject to ” the payment of the debt: Blood v. CrewLevick Co., 171 Pa. 328.
    The policy of the law is against keeping open the administration of the estate of a decedent, and continuing, indefinitely, a liability upon his personal obligations. Hence, it was held in Quain’s Appeal, 22 Pa. 510, followed by Williams’s Appeal, 47 Pa. 283, that the covenant of one who had purchased land upon ground rent could only be enforced for rent falling due after his death, as against the land. It is not easy to see the distinction between the personal liability of a mortgagor, on the bond accompanying the mortgage, after he has sold the land subject to the mortgage, and after his death, and that of a purchaser on ground rent on his covenant to pay. Theoretically, the bond is the principal debt and the mortgage the collateral, but in general the reverse is the real relation; and after the lapse of many years, during all of -which the creditor has received his interest from the successive purchasers of the mortgaged property, with no suggestion of claim for the principal, though long overdue, from the original debtor on his bond, it may well be presumed that personal liability has been released or discharged. A presumption of payment arises after twenty years, and in the present case there have been more than thirty.
    The petition is dismissed at the costs of the petitioner.

      Error assigned was the decree of the court.

      Albert L. Moise, of Sharp, Alleman Moise, with him Samuel Dreher Matlack, for appellants.

      II. S. Prentiss Nichols and William H. Staake, for appellees, were not heard.
    April 11, 1904:
   Per Curiam,

This decree is affirmed on the opinion of the court below, as filed by Judge Penrose. s ,


author: Mr. Justice Dean,

text:
    Hyman v. Tilton, Appellant.

      Negligence — Infant—Riding on wagon — Brutality of driver — Master and servant.

    Where a boy ten years old climbs upon a moving dray and while riding thereon in a dangerous position, the driver of the dray without stopping and putting the child off, strikes at him with his whip, and the boy is knocked off by the blow, or by the lash of the whip catching in his shoe, or through fright relaxes his grip and falls off and is injured, the owner of the dray and employer of the driver is liable in damages for the injuries sustained.
    Argued March 23, 1904.
    Appeal, No. 293, Jan. T., 1903, by defendant, from judgment of C. P. No. 5, Phila. Co., March T., 1901, No. 1085, on verdict for plaintiff in case of Julius Hyman by his mother and next friend, Rosa Hyman* v. Lewis L. Tilton.
    Before Dean, Fell, Brown, Mestrizat and Potter, JJ.
    Affirmed.

      Trespass to recover damages for personal injuries. Before Ralston, J.
    The opinion of the Supreme Court states the case.
    Verdict and judgment for plaintiff for $4,000. Defendant appealed. ,

      Errors assigned were (1) refusal of binding instructions for defendant; (8) affirmance of plaintiff’s third point quoted in full in the opinion of the Supreme Court.

      Alex. Simpson, Jr., with him Joseph T. Foulhe and John Weaver, for appellant.
    The allegata and probata must agree in case of tort as in other cases : Goodman v. Coal Twp., 206 Pa. 621.
    The evidence did not justify a submission to the jury to decide (a) whether plaintiff relaxed his grip through fright and fell, or (5) whether plaintiff jumped from the dray: Yoders v. Amwell Twp., 172 Pa. 447.

      Greorge P. Rich, for appellee.
    This case is ruled by Brennan v. Merchant & Co., 205 Pa. 258.
    April 11, 1904 :
   Opinion by

Mr. Justice Dean,

Julius Hyman, a boy about ten years old with a number of other boys of the same age was going from school along Race street in the direction of Third about four o’clock in the afternoon of December 13, 1900, when they attempted to get on a four wheeled truck going in the same direction. The truck was loaded, had standards at the side connected by chains and the driver sat on a high seat in front. Two of the boys got up on the truck from behind. At Third street it stopped for a passing car and then Hyman climbed up at the side between the wheels to the body of the truck and stood with one foot on an iron bar, holding on by his hands to one of the standards. He had his satchel filled with school books which he was taking home with him. As soon as the car passed the driver of the truck started up his horses at a slow trot and immediately after starting called to the boys to get off. Those on the hind end of the truck did so; Hyman, in an apparently perilous position between the wheels of the truck did not at once obey and the driver lashed him more than once around the legs with his whip; the lash at the last stroke apparently wrapped itself around the boy’s leg or caught in the laces of his shoe so that in drawing it back the boy’s foot slipped from the bar or he became frightened and fell off ; the wagon passed over his leg so crushing it that amputation was necessary. The plaintiff alleging negligence brought this suit for damages; there was a verdict for plaintiff and'defendant appeals, assigning for error the submission under the pleadings of the evidence to the jury. Under this specification all that is worthy of notice can be discussed.

It is alleged that the allegata and probata do not agree and that the variance is so wide that under the law a verdict cannot be sustained. The second count of the declaration charges that, “The child became frightened by the action of defendant’s servant and agent and was put in fear of bodily injury by reason thereof, was forced and compelled to jump and did jump from the wagon while it was in motion, and in consequence thereof was thrown and fell underneath the wheels whereby he was greatiy bruised.”

On the averments of this count, the court submitted the evidence to the jury, evidently relying on the late casé of Brennan v. Merchant & Company, 205 Pa. 258. That case is sound law and if the facts are substantially the same, the principle there announced under this second count ought to rule this one. Justice Mestbezat in that case says, “If it was the intention of the driver to remove or drive the boy from the wagon by striking him on the hand with his whip and thereby causing him to fall or jump from the wagon it was a grossly negligent act.”

There is evidence, more than a scintilla, that the driver when the -boy was in a perilous situation lashed him on the legs with the whip; the purpose palpably was to drive him from the moving truck. Whether in terror he jumped, or fell, or whether the lash had wrapped his leg and when the driver attempted to withdraw the whip the boy was pulled from his hold on the standard because in his fright he had not presence of mind to maintain it, cannot exculpate the driver from negligence in attempting by this brutal conduct, to drive a boy of this tender age from the moving truck. The negligence was by the use of the whip destroying what little judgment a boy of even that age might have possessed," impelling him to do that by which he incurred a far greater risk than by suffering the stings of a whip -lash. It is immaterial just what particular phase of the mind i impelled the boy to act -recklessly; the condition of his mind was caused by the threats or whip of the driver directed towards him when he was in a position of peril. This is the substance of the averment in the second count and it was for the jury to say whether the evidence proved the averments. The court’s instruction in answer to plaintiff’s third point meets every practical phase of the case thus :

“ 3. If the jury find that Julius Hyman, the plaintiff in this casé, being then but ten years of age, climbed upon defendant’s dray, while it was being driven along the streets of the city of Philadelphia, and was engaged in riding thereon in a dangerous position and one likely to expose him to risk of being thrown off and injured by the motion of the dray, and while the child was in this position, the driver, seeing the child on the dray, instead of stopping it and putting the child off, or allowing him to get off, without checking the speed of the horses, took his whip and struck at the child for the purpose of driving it off the dray or compelling it to get off while in motion; and if the jury further find that the child was either knocked off the wagon by the force of the blow, or the pull of the whip catching his shoe or through fright relaxed his grip of the side of the wagon and fell off and under the wheels and was injured, this is such negligence on the part of the defendant’s servant as to render the defendant responsible for this suit. Answer: That point is true, gentlemen,- and it is affirmed.”

All the assignments of error are overruled and the judgment is affirmed. - ■


text:
    Philadelphia, Appellant, v. Johnson.

      Landlord and tenant — Amicable action — Ejectment—Judgment—Second judgment.

    Where a judgment has been entered under an ejectment clause in a lease; no second judgment can be entered under the same clause; and this is the case although the first judgment may have been prematurely entered, or may have been voidable from matters outside the record.
    Argued March 23, 1904.
    Appeal, No. 274, Jan. T., 1903, by plaintiff, from judgment of Superior Ct., Oct. T., 1903, No. 85, reversing order of C. P. No. 2, Phila. Co., June T., 1902, No. 2338, discharging rule to open judgment in case of Philadelphia v. Frank Johnson.
    Before Dean, Fell, Bbown, Mestbezat and Potteb, J J.
    Affirmed.
    Appeal from Superior Court.
    Smith, J., filed the following opinion :
    None of the rights arising from the relation of lessor and lessee is in controversy here ; hence the authorities respecting them have no application. The issue in the case does not..involve the right but the remedy. The question before us is whether the power given in the lease authorized the entry' of the judgment of July 11, 1902, a judgment under its authority 'having been entered on June 5, 1902. A power exists in law only for some purpose and when fully executed by the accomplishment of its purpose it is exhausted. The authority given by it ends when nothing remains to be done in pursuance of it. It may evezi be exhausted without being executed, when its purpose has beezi otherwise accoznplished: Swift’s Appeal, 87 Pa. 502.
    The purpose of the power or warrant of' attorney in the present case was the ezztry by confession, in an aznicable action, of a judgment izi favor of the lessor against the léssee. This power was completely executed and its purpose accomplished by the ezitry of the judgmezit of June 5, 1902. The -.power authorized nothing further, azid nothizig further remained, to -be dozie in pursuance of it. It became merged izi the judgnzent; It is not material that it may have beezi prematurely executed. or that the judgment thus entered may have been voidable from matters outside the record. Though in the execution of the power the plaintiff may have misconceived his right of action under it, the power nevertheless remains fully executed ; the execution cannot be recalled; and the power is exhausted. It was not the case of an imperfect execution of the power, but of a perfect execution, with its effect liable to be defeated through matters not entering into the act of execution. Yet it is by no means clear that it was so defeated. In the history of the ease it is said that “ the suit was discontinued by the appellee ; ” the plaintiff’s answer to the defendant’s application to vacate the judgment sets forth, first, that the judgment “ was satisfied by reason of the fact that the action in ejectment was prematurely brought,” — the lessor having accepted rent after the notice to quit by which he intended to end the term — and next, that the plaintiff “ discontinued the action brought.” This leaves much to conjecture. A discontinuance after judgment is unknown in practice ; and, while a recovery in ejectment may be released, the satisfaction of a judgment implies that its fruits, have been received by the plaintiff. But, whatever the import of these allegations, it is undeniable, on both principle and authority, that the power was fully executed by the entry of judgment, and thereupon ceased to exist.
    The question here involved has been presented under various aspects in our courts, and the authorities respecting it have been clear and uniform. In Campbell v. Canon, Add. 267,' judgment was entered on a bond and warrant, and after a year and a day without execution a scire facias was issued ; then, to have immediate execution, the scire facias was discontinued, another judgment was entered on the warrant, and an execution was issued thereon. On motion to set aside the judgment and execution the court said: “We think this warrant of attorney authorizes the entry of only one judgment, and was satisfied by the entry of the first judgment. The second judgment and the execution on it must therefore be set aside as irregular. In Martin v. Rex, 6 S. & R. 295, judgment on a bond and warrant was entered first in Montgomery county and afterward in Philadelphia county. A rule to strike off the latter was made absolute, and in affirming this the Supreme Court said: “ This judgment was clearly entered irregularly ; the warrant was to enter a judgment, which was done in Montgomery county, after which the warrant had no force.” In Neff v. Barr, 14 S. & R. 166, on a bond and warrant “ to confess judgment or judgments in any of the courts of record of the state,” judgments were entered in York and Lancaster counties, and an issue was directed to determine in which county the judgment was first entered. On writ of error the Supreme Court said : “ The court in which the second judgment was entered would, under common circumstances, vacate it,” citing Martin v. Rex, supra. Ulrich v. Voneida, 1 P. & W. 245, involved the same question, and the Supreme Court, citing the preceding case, said: “ It has been repeatedly determined that a bond with warrant of attorney to confess judgment authorizes the entry of but one judgment, and accordingly, that when judgment is once entered the warrant becomes functus officio. A second or subsequent judgment by virtue of the same warrant is therefore wholly irregular.” In Adams v. Bush, 5 Watts, 289, on a bond for the performance of certain conditions in five installments, with a warrant “ to confess judgment or judgments,” separate judgments were entered at the same time for the amounts claimed as accruing on each installment. It was held that there was no authority to enter these judgments, and further that the court below had no power to consolidate them into one, and all were stricken off. In Ely v. Karmany, 23 Pa. 314, judgment was entered first in Lancaster and then in Lebanon county, on a' note containing a confession of judgment by the defendant. A rule to strike off the latter was made absolute, and in affirming this the Supreme Court said: “ The instrument on which the judgments were entered is, in construction of law, a power given to the prothonotary. He has no better right than an attorney at law to enter two judgments under a single warrant. The entry of the first exhausts the power, and the court committed no error in vacating the second.”
    In legal effect there is no difference between the entry of judgment on warrant of attorney for a debt and an entry of judgment in ejectment. The release of errors in connection with the warrant of attorney operates only on irregularities in the proceeding apparent on the record. It does not reach the defect of a lack of authority to proceed. In Neff v. Barr, Adams v. Bush and Ely v. Karmany, supra, there was a release of errors. In each of these cases, however, as in the one before us, the power had terminated before the entry of judgment, a defect of authority arising from matters extrinsic to the record, not embraced in the release. In Davis v. Hood, 13 Pa. 171, a judgment having been entered on bond and warrant, containing a release of errors, a writ of error by the defendant was quashed on motion before the return day, the court holding that “ the manner in which the judgment had been entered was right, and it being apparent from the record' that there was no error in the matter.” There was no suggestion of a lack of authority to confess the judgment, and in other respects there was no difference between that case and the one before us, or the other cases cited.

      In the case in hand the court below gave no reason for discharging the rule. For the reasons already given the rule should have been made absolute.
    The order discharging the rule is reversed, and the rule is reinstated and made absolute.

      Error assigned was the judgment of the Superior Court.

      Clifford S. Beale, assistant city solicitor, and John L. Kinsey, city solicitor, for appellant.

      Robert B. Kelly, for appellee.
    April 11, 1904:
   Per Curiam,

Under the power of attorney delivered in this case a judgment was entered June 5, 1902. As the learned judge of the Superior Court has clearly shown, on both reason and authority, that act was an exhaustion of the power conferred by the warrant. The confession of the second judgment on the same warrant was a nullity.

The decree of the Superior Court is affirmed for the reasons given by Judge Smith in his opinion filed.


text:
    Drinkwater v. Quaker City Cooperage Company, Appellant.

      Negligence — Defective.door—Infant.
    In an action to recover damages for personal injuries to a child between three and four years of age, the evidence for the plaintiff tended to show that the injury was caused by the fall of a swaying door. There was proof that the door which fell was one of a pair of double doors hung on hinges swinging outward across the sidewalk; that it was old and dilapidated; that the upper hinge was loose, probably wholly detached, and by the action of the wind the door swayed back and forth at the top. Children, among them the plaintiff, were in the habit of playing on the sidewalk within reach of the door. Two children respectively eleven and fifteen years old at the time of the trial, and two years younger at the date of the accident testified that it was the defective door that fell on plaintiff. The evidence of the plaintiff himself when identifying the two doors by numbers seemed to designate the other door as the one which fell. The evidence, however, showed that this door had been closed for years, and could not have fallen. Held,, that the whole case was for the jury, and that a verdict and judgment for plaintiff should be sustained.
    Argued March 23, 1904.
    Appeal, No. 4, Jan. T., 1904, by-defendant, from judgment of C. P. No. 1, Phila. Co., March T., 1903, No. 1951, on verdict for plaintiff in case of Edwin Drinkwater by his next friend and mother, Ida L. Drinkwater, v. Quaker City Cooperage Company.
    Before Dean, Felt, Brown, Mestrezat and Potter, JJ.
    Affirmed.
    Trespass to recover damages for injuries to a child between three and four years old. Before Brégy, J.
    The circumstances of the accident are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $2,000. Defendant appealed.

      Error assigned was in not giving binding instructions for defendant.

      A. T. Ereedley, with him D. W. Htilburd, for appellant.

      Joseph R. Embery, for appellee.

      April 11, 1904:
   Per Curiam,

Appellant’s complaint of error on the part of the court below in submitting the evidence to the jury is, in substance, based upon two averments, first, that there was no evidence of negligence on the part of the defendant in the performance of any duty which it owed to the .public; second, even if there was any neglect there was no evidence which connected such neglect with the injury sustained by plaintiff. As to the first, the learned trial judge very plainly told the jury that the evidence of negligence was very meager, yet not so weak as under the law compelled him to withdraw it from them. We think in tins particular his ruling was correct. Negligence is the absence of care according to the circumstances. The door which fell was one of a pair of double doors hung on hinges, swinging outward across the sidewalk; it was old and dilapidated ; at the upper lfinge it was loose, probably wholly detached, and by the action of the wind swayed back and forth at the top. Children, among them this plaintiff, were in the habit of playing on the sidewalk within reach of this loose and broken door which was a constant peril. We do not say such were the facts, but only say there was some evidence, more than a scintilla, to sustain them. The court could not lawfully withhold this evidence from the jury. It was for them to judge whether, under the circumstances, defendant was negligent in leaving that door in such condition in proximity to the sidewalk.

As to the second complaint, that there was no sufficient evidence to show that the alleged neglect caused the injury, we concede that the burden was on the plaintiff to show by proper proof, not only that the door fell, but that it fell on him. It was not enough to show that defendant did not properly maintain and repair its building, he was bound to go further and show that by its failure to do so it caused his injury. There were two openings in the building closed with double doors, Nos. 2 and 5; -the evidence of plaintiff when 'identifying the doors by numbers seems to designate No. 2 as the one which fell, yet the evidence really shows that this door had been closed for years and could not have fallen. But the evidence further shows that plaintiff’s witnesses may have only made a mistake in the numbers and that it was No. 5, the door out of repair, which fell on plaintiff. Two children respectively eleven and fifteen years old at time of trial and two years younger at the date of accident, testify that they were present and saw it; they tell the position of the boy who was hurt when the door fell; the situation of the door relative to the sidewalk and the other doors in' the building. Their testimony points to No. 5 as the one which really fell. Plaintiff was bound to prove that a door fell, that it fell because negligently not repaired, and that this door falling on plaintiff injured him. Any mistake in the numbers did not bar plaintiff from the jury; it was the duty of the latter to reconcile the apparent contradiction on a theory consistent with truth.

We have found nothing in the assignments of error calling for further notice. They are all overruled and the judgment-is affirmed. . . :


text:
    Wakeling, Appellant, v. Cocker.

      Equity — Party wall — Restitution of wall — Remedy at law.

    A bill in equity for the restoration of a portion of a party wall is properly dismissed on findings that the work was done by an independent contractor without authority from the defendant and contrary to a stipulation in the building contract against any encroachment on plaintiff’s property; that plaintiff has a full legal remedy; that he delayed for months until the alleged injury was completed; that no serious injury was done him by the acts of the contractor; that the removal was of part of the wall which was in no sense necessary to the security of the plaintiff’s property, and that in all essential respects the wall is just as good as it was before.
    Argued March 23, 1904.
    Appeal, No. 8, Jan. T., 1904, by plaintiff, from decree of C. P. No. 4, Phila. Co., Dec. T., 1901, No. 2215, dismissing bill in equity in case of Samuel Wake-ling v. Edwin F. Cocker.,
    Before Dean, Fell, Brown, Mestrezat and Potter, JJ.
    Affirmed.
    Bill in equity to compel tbe restoration of a wall.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was decree dismissing the bill.

      Samuel Walceling, with him R. L. Gfolze, for appellant.

      Henry K. Fries, for appellee.
    April 11, 1904.
   Per Curiam,

In January, 1893, the plaintiff became the owner of lot No. 4523 on Frankford avenue, Philadelphia, having upon it a three story brick dwelling house. In the month of February following the defendant became the owner of adjoining lot No. 4527 having upon it a two story dwelling house. The two buildings had been erected in the year 1832, and were divided by a party wall nine inches thick built equally on each lot. In August, 1901, defendant contracted with one George Gray to take down his old building and erect a new one. The plans and specifications of the contract provided for the removal of at least a portion of the party wall and the replacing of it by a new one. By the express terms of the contract the contractor stipulated to make good any damage to adjoining property and that the party walls of adjoining properties should be protected against damage, either in taking down or rebuilding and that all should be done at his, the contractor’s, expense as concerned the taking down and rebuilding. In demolishing the old building he removed four and one half inches of the northeast part of the wall back from the front on Frankford avenue, a depth of eight inches; that is, he took of plaintiff’s half of the wall as it stood on his land four and one half by eight inches, from the ground to the top. While the contractor in some measure restored or attempted to restore the part taken away, he did not replace it in exactly the same condition, at least as to workmanship and material as it had stood before. Plaintiff averred all this change was made without his knowledge or consent, he therefore filed this bill against defendant averring a wrong to him and his property and praying that a decree be made for the restoration of the wall as it originally stood. To this the defendant, Cocker, made answer that no part of the change made by the contractor was with his authority or direction ; that the removal of some of the wall was partly the act of a former owner of his property; that Gray was wholly an independent contractor and his contract expressly stipulated that in carrying on the work he would not encroach upon the party wall; that the part removed was beyond the building line on Frankford avenue; that all the work was done by the contractor under the direction of the bureau of building inspection of the city.

The case was heard before Judge Willson and Judge Atrdenbied who dismissed the bill in opinion filed by Judge Willson. From this decree plaintiff appeals assigning twenty-seven errors to the findings of fact and conclusions of law by the court below. We need concern ourselves with the substance of only one of these complaints because the decision of this one is conclusive against plaintiff’s right to the decree he prays for, as against Cocker, this defendant. First the court below finds as facts that the work was done by an independent contractor without authority from the owner and contrary to a stipulation against any encroachment on plaintiff’s property; that plaintiff has a full legal remedy ; that no serious injury was done him by the acts of the contractor ; that the removal was of part of the wall which was in no sense necessary to the security of plaintiff’s property and that in all essential respects it is just as good as it was before.

It will be noticed that the bill prays for a restitution of the wall. It requires a much stronger case to move a chancellor to put forth his strong arm to compel a positive act on the part of a defendant, than to restrain him from committing a wrongful one. Had plaintiff asked the court to restrain the contractor from taking down the wall, it may be that it would have been moved to do so; but plaintiff asks the court to order him to build it up again as it stood at first. To this the. court answers by its finding of facts, “ no serious injury has been done you, and for whatever injury you have suffered you have your suit for damages.” This is one of the very cases where equity will decline to take jurisdiction; where the complainant during the commission of the alleged wrong continuing for months has not moved; when apprehension of its extent has given way to certainty of its exact character after it has been committed, and the court finds as a fact it is not serious.

We are all of opinion that in view of this first obstacle to plaintiff’s success any further discussion of the assignments of error is unnecessary. The court made no error in its decree, therefore all the assignments are overruled and it is affirmed.


text:
    Pizzi v. Nardello, Appellant.

      Statute of frauds—Writing—Principal and surety.

      A promise by a surety in a building contract to a subcontractor, that if the latter will go on with the work which the surety is compelled to complete he, the surety, will pay the subcontractor for work which the latter had already performed but for which he had not been paid by the contractor, need not be in writing under the statute of frauds.
    Argued March 23, 1904.
    Appeal, No. 9, Jan. T., 1904, by defendant, from judgment of Superior Ct., Oct. T., 1903, No. 38, affirming judgment of C. P. No. 1, Phila. Co., June T., 1902, No. 2911, on verdict for plaintiff in case of Enrico Pizzi v. Joseph Nardello.
    Before Dean, Fell, Brown, Mestrezat and Potter, JJ.
    Affirmed.
    Appeal from Superior Court.
    See 23 Pa. Superior Ct. 535.

      Hrror assigned was the judgment of the Superior Court.

      William Gorman, for appellant.

      Henry K. Fries, for appellee, was not heard.
    April 11, 1904 :
   Per Curiam,

Pizzi, the plaintiff, was engaged with two others, Frank and Ruhland, in work at certain houses in Philadelphia. For the work he did, stone masonry, Pizzi was to get forty-five cents per perch. They failed and the work stopped. Nardello who was surety on their contract had to take up the work and finish it; he wanted Pizzi’s help as a mason, and.said to him, “ Now Pizzi if you will go on with this work I will pay you what is coming to you for what you have already done, and I will pay you fifty cents a perch for what you do for me for the balance of the work.” Under this promise Pizzi went on and finished his part of the masonry. His whole bill amounted to something over $700. Nardello flatly denied any such promise and averred the debt was wholly one of Frank and Ruhland. We do not concern ourselves with the contradictions in the evidence ; the verdict establishes the truth of the matter and that is, that Pizzi’s statement of the promise to him by Nardello is true. Then we have the fact that the original debt was Frank and Ruhland’s and Nardello to induce Pizzi to continue work promised orally to pay it. Standing by itself, this promise, under the statute of frauds, could not be enforced. It is a promise to pay the debt of another not in writting. But is it the debt of another within the meaning of the statute ? Pizzi supplements his proof of the promise by evidence that Nardello had become answerable for the engagements of Frank and Ruhland as surety for them under their contract and to induce him,, Pizzi, to go on with his part of the work, that he Nardello might be relieved from his indebtedness as surety, he made the promise and thus made the original debt his own. It may be conceded that the decisions under the act are apparently not always in harmony, and this was noticed by Justice Strong ini Maule v. Bucknell, 50 Pa. 39, when it appeared that within ten years after the passage of the act of 1855 the numerous decisions under it were already apparently conflicting. This, court speaking through him in that case says:

“ It will be found after examination that in nearly all the decisions in which it has been held that such a promise is not, within the statute, there was some liability of the promisor, or his property independent of his express promise or that he had become the actual debtor, so that as between him and the original debtor the superior liability was his.”

And this test of the legal liability of the promisor notwithstanding the statute has been maintained through all the many cases since. ' So ¡ in this case, if Nardello’s promise was made because of a benefit to be derived to bimself from Pizzi’s work, the debt became his own because the liability was his own.

All the assignments are overruled and the judgment of the Superior Court is affirmed, for the reasons given in the opinion of that court.


author: Mb. Justice Fell,

text:
    Laudeman v. Ryan, Appellant.

      Negligence—Master and servant—Tools.

    In an action to recover damages for death of plaintiff's husband while at work as a carpenter in construction of a pier, it was claimed by plaintiff that the accident occurred while the deceased was lifting a heavy piece of square timber with a cant hook which was defective in not having an iron shoe and was not of the kind in general use for such work. The only testimony on the subject showed that the timber had been turned once, and in turning it a second time the hook attached to the lever failed to catch in the side of the beam, and the deceased applying force to the lever when there was nothing to resist it, fell over the beam to the floor below, or that he lost his balance while attempting to adjust the hook. Held, that it was error to submit the case to the jury, and that a judgment on a verdict for plaintiff should be reversed.
    Argued March 28, 1904.
    Appeal, No. 284, Jan. T., 1908, by defendants, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1901, No. 1111, on verdict for plaintiff, in case of Margaret Laudeman v. James J. Ryan and John A. Kelley, trading as Ryan & Kelley.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Thompson, JJ.
    Reversed.
    Trespass to recover damages for death of plaintiff’s husband. Before Sulzberger, J.
    The circumstances of the accident are stated in the opinion of the Supreme Court.
    The court refused binding instructions for defendant.
    Verdict and judgment for plaintiff for $2,250. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      Thomas Learning, for appellants.
    There was no sufficient proof of tbe cause of the accident and there is no presumption to supply the lack of proof: P. & R. R. R. Co. v. Schertle, 97 Pa. 450; Frazier v. Lloyd, 1 Mona. 113; Ford v. Anderson, 139 Pa. 261; Alexander v. Penna. Water Co., 201 Pa. 252; McCarthy v. Shoneman Bros., 198 Pa. 568; Zahniser v. Penna. Torpedo Co., 190 Pa. 350.
    The plaintiff’s decedent was guilty of contributory negligence or assumed the risk in using the cant hook without objection or complaint: Cunningham v. Fort Pitt Bridge Works, 197 Pa. 625; Mansfield Coal, etc., Co. v. McEnery, 91 Pa. 185; P. & R. R. R. Co. v. Hughes, 119 Pa. 301; New York, etc., R. R. Co. v. Lyons, 119 Pa. 324; Golwitzer v. Penna. R. R. Co., 1 Mona. 72; Titus v. Bradford, etc., R. R. Co., 136 Pa. 618; Marean v. N. Y., etc., R. R. Co., 167 Pa. 220; Nuss v. Rafsnyder, 178 Pa. 397; Devlin v. Phœnix Iron Co., 182 Pa. 109; Wilkinson v. Johns Mfg. Co., 198 Pa. 634.

      Bernard Harris, with him Henry A. Oraig, for appellee.
    April 11, 1904:
   Opinion by

Mb. Justice Fell,

The plaintiff’s husband sustained fatal injuries as the result of a fall while working at an elevation of twenty feet in the construction of a pier. He was a carpenter, and at the time of the accident was standing on a beam assisting by the use of a cant hook in moving a heavy piece of squared timber. The allegations of negligence were (1) that the defendants did not furnish a sufficient number of cant hooks for the work; (2) that the cant hook used by the deceased was not properly sharpened; (3) that it was defective in not having an iron shoe and was not of the kind in general use for such work. Since a sufficient supply of cant hooks was kept in a tool house to which the workmen had access and it did not appear that a properly sharpened one could not have been selected, the learned trial judge withdrew from the consideration of the jury the first two grounds of negligence alleged, but submitted to them the question whether a proper kind of cant hook for use under the circumstances had been provided. The cant hook furnished by the defendants and used by the deceased had a plain wooden lever. There was testimony that there is in general use a cant hook having on the lower end of the lever a metal shoe with an edge projecting at right angels to the lever, and that a cant hook of the latter kind is less apt to slip, especially when used in moving heavy squared timber, and that the slipping of the lever might loosen the hold of the hook on the side of the beam.

' It was not, however, shown that the absence of a shoe caused the accident or in any way contributed to it. The only testimony on this subject was that a beam had been turned once and in turning it a second’ time the hook attached to the lever failed to catch in the side of the beam', and the deceased applying force to the lever when there was nothing to resist it fell over the beam to the floor below, or that he lost his balance while attempting to adjust the hook. The statement of the witness was : “ While starting the timber they gave it one roll, and in catching the timber the second time Mr. Laudeman’s cant hook failed to catch and the force which he gave it rolled him over the timber.” The witness further testified in explaining the cause of the accident that the deceased had not adjusted his cant hook on the beam but was in the act of adjusting it when he fell. If the hook had failed to catch because of the want of a shoe on the lever, or if having caught it had become loosened by the slipping of the lever, there would be some ground for the contention that the accident was caused" by a defective instrument. But neither of these things happened. The fall resulted from the premature application of force to the lever before the hook was fastened in the beam, or from some accidental cause while the deceased was adjusting the hook. If the former it was caused by the careless 0use of an instrument; if the latter, the defect alleged had nothing to do with it.

The judgment is reversed and judgment is now entered for the defendants.


author: Mr. Justice Mestrezat,

text:
    Creachen, Appellant, v. Bromley Brothers Carpet Company.

      Negligence—Master and servant—Dangerous machine—Instruction as to use of machine—Province of court and jury.

    In an action by a boy between fifteen and sixteen years of age against his employer, a carpet manufacturing company, to recover damages for personal injuries sustained while operating a machine used for separating wool, it appeared that the machine in question was a dangerous one, and that it sometimes became choked with wool. Plaintiff testified that he was not instructed how to remove the “choke.” After he had been at work a week the machine became clogged with wool, and for the first time he was required to remove the choke. In doing so his hand was caught and tom off. It appeared that the machine was in an imperfectly lighted room, and that at times the opening through which the choke could be safely removed, could not be seen because of flying scraps of wool covering the machine. Plaintiff testified that he did not know of this opening, and at the time of the accident could not see it. Held, that the case was for the jury and that it was error to grant a nonsuit.

      Nonsuit—Evidence—Conflicting statements.

    It is error for the court to grant a nonsuit because plaintiff’s testimony is contrary to that which he gave in a former trial. The duty of passing on the credibility of the testimony is for the jury and not for the court.
    Argued March 28, 1904.
    Appeal, No. 10, Jan. T., 1904, by plaintiff, from order of O. P. No. 5, Phila. Co., March T., 1901, No. 199, refusing to take off nonsuit in case of Francis Creachen by his next friend and mother, Elizabeth Creachen, v. Bromley Brothers Carpet Company.
    Before Mitchell, C. J.; Fell, Brown, Mestrezat and Thompson, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Ralston, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was refusal to take off nonsuit.

      David Davis, with him John T. Murphy and Howard A. Davis, for appellant.
    The question of the credibility of the witness is for the jury. The testimony of plaintiff on a former trial was not res adjudicata as to a subsequent trial, where the court has rendered such testimony nugatory by granting anew trial. No question becomes res adjudicata until it is settled by a final judgment: Dougherty v. Lehigh Coal & Navigation Company, 202 Pa. 635; Freeman on Judgments, sec. 251.
    The case was for the jury: Doyle v. Pittsburg Waste Co., 204 Pa. 618; Iseminger v. New Haven Water & Power Co., 206 Pa. 591 ; Hunterson v. Union Traction Co., 205 Pa. 568; Ely v. Pittsburg, etc., Ry. Co., 158 Pa. 233 ; Strader v. Monroe Co., 202 Pa. 626; Welsh v. Butz, 202 Pa. 59; Rummel v. Dilworth, 131 Pa. 509; Tagg v. McGeorge, 155 Pa. 368; Royer v. Tinkler, 16 Pa. Superior Ct. 457.

      Morton Z. Paul, with him Crawford f Laughlin, for appellee.
    It is legally presumed that a boy of the age of fifteen and one half years is of sufficient capacity to be sensible of danger and have the power to avoid it: Hunt v. Graham, 15 Pa. Superior Ct. 42; Nagle v. Allegheny Valley R. R. Co., 88 Pa. 35 ; Zurn v. Tetlow, 134 Pa. 213.
    If the plaintiff falsely swore to statements which were untrue, to cover up defects in his evidence in the first trial, to such an extent as would assure his reaching the jury, the court had authority for this reason to enter the nonsuit: Demyer v. Souzer, 6 Wend. 436; Dunlap v. Patterson, 5 Cowen, 243; Bornscheuer v. Consolidated Traction Co., 198 Pa. 332.
    April 11, 1904:
   Opinion by

Mr. Justice Mestrezat,

Francis Creachen, the plaintiff, a minor between fifteen and sixteen years of age, was employed by the defendant company to work in its carpet manufactory in the city of Philadelphia. His duties were to operate a machine called a picker, used for separating wool. As described by one of the witnesses, the machine “ is composed of a rotative cylinder with a number of projections—sharp steel projections—-that come in contact with wool that is fed between two rollers, and that take the stock of wool from the apron. And while the rollers are holding it these flying projections of steel tear it apart and cause it to become disintegrated, so that it follows in the course of the manufacture.” The wool is carried into the machine on a movable apron and after being torn into shreds by the steel teeth projecting from the cylinder, passes from the machine into a conveyer pipe. The cylinder in this machine revolved very rapidly, making about one thousand revolutions per minute. The testimony shows that the room in which the machine was located was in the basement of the manufactory and was very imperfectly lighted. It further appeared from the testimony that the machine was at times covered with the flying scraps of wool so that the opening through which the “ choke ” should be removed could not be seen.

When the plaintiff was employed the foreman in charge of the work took him to the basement of the mill where the machine was located, and the plaintiff testifies as to what occurred there as follows : “ He brought me over to the machine and showed me the back and front of the machine, and that is where I was to work, that was the machine I was to run; I was to take charge of it, look after it and see it did not choke up, and if it choked up I was to remove the choke.” He further testified that he was not instructed as to the danger in running the machine, the manner of operating it, or how the “ choke ” was to be removed from it. After he had been operating the machine about a week, it became clogged up with wool, the apron stopped and he was, for the first time since his employment, required to remove the “ choke ” from it. In doing so his hand was caught and torn off. This action was brought to recover damages for the injuries sustained, the plaintiff alleging that they resulted from the neglect of defendant company to warn him of the danger incident to the service and to give him adequate instructions as to the mode of operating the machine.

At the close of the plaintiff’s testimony the trial judge granted a nonsuit, giving as his reason that the case “seems to me (him) to come within that line of cases where it is held that boys about mills may not put themselves in places of obvious or apparent danger to anybody and hold their employers responsible.” The counsel for the appellee, however, say in their printed argument that “the learned court below non-suited the plaintiff in this case, and the court in banc unanimously refused to remove it because they believed the plaintiff falsely swore to statements which were untrue, to cover up defects in his evidence in the first trial, to such an extent as would assure his reaching the jury.” The counsel then proceed to sustain this reason for granting a nonsuit by argument and the citation of authorities. It is apparent from the trial judge’s opinion assigning the reason for granting a nonsuit and from his examination of the plaintiff when on the witness stand, that he believed the latter’s testimony to be untrue and that this belief had its influence in bringing the court to the conclusion to withdraw the case from the jury.

We do not agree that the reason assigned by the learned trial judge or that the one suggested by appellee’s counsel warranted the court in granting a nonsuit. Both positions are clearly untenable.

We are convinced that this was a very dangerous machine to an inexperienced person operating it without proper instructions. A jury would have no difficulty in reaching that conclusion from the evidence produced at the trial. The duties of the plaintiff required him not only to place the wool on the movable apron to be carried into the machine, but also to remove the wool from the machine when it became clogged or choked up. This latter service was attended with much danger when performed by a person not familiar with the machine or the manner of operating it. It appears from the evidence that the proper way to remove the “ choke ” from it is through an opening at the top and in the ■ back of the machine. The plaintiff, however, at the time he received his injuries had operated the machine but a week and had had no occasion to remove the “ choke ” and had no knowledge of the proper and safe way of doing it. As the evidence shows, at the time he attempted to remove the “ choke ” and was injured, he did not know of this opening and could not see it because it was covered by scraps of wool thrown from the machine. He therefore tried to relieve the machine by removing the wool from the opening into the cylinder, the only way apparent to him in which it could be done. The trial judge held this act of the plaintiff to be negligence, saying : “ In removing the choke he put his hand through the small opening where there was a rapidly revolving cylinder with teeth in it, a place of obyious and apparent danger to anybody, because he knew there was machinery in there which was carefully covered, with the exception of the opening.” The learned judge here assumes as a ■fact what the plaintiff testifies is not true, namely, that the danger was apparent and that the plaintiff knew the character of the machinery inside of the picker. The plaintiff says in his testimony that he never saw inside the machine and did not know what was in there. He could not see the revolving cylinder, nor the steel teeth projecting from it. He further testifies: “ Q. You knew that if a cylinder or something revolving there should strike your hand it would injure you, didn’t you ? A. I didn’t know it would strike my hand by putting my hand there. Q. But didn’t you know that your hand would be likely to be struck by that thing that was revolving inside there, if you put your hand in ? A. I would never have put it in if I had known I was going to lose it.” It is therefore clear that the testimony does not support the assumption of the trial judge that the opening through which the plaintiff attempted to remove the “ choke ” was a place of obvious and apparent danger to anybody, because he knew there was machinery in there.”

The testimony in this case if credible brings it within that class of cases in which it is held to be the duty of the master to give proper instructions to a young and inexperienced servant employed in operating a dangerous machine. These cases are numerous, the more recent of which are Tagg v. McGeorge, 155 Pa. 368; Welsh v. Butz, 202 Pa. 59; Doyle v. Pittsburg Waste Co., 204 Pa. 618. These decisions also hold that the instructions given such an employee must be sufficient to enable a person of his youth and experience to perform his duty with safety. If, however, an employee from experience in the use of the machine knows how to operate it and the danger in operating it, as well as how to avoid such danger, his employer is relieved from instructing him as to the performance of his duties. When an employee has such knowledge, necessity for instruction ceases and he assumes the risks incident to the service. If a youth knows and appreciates the danger of his employment and how to avoid it, his employer is not obliged to furnish him the same information by instructing him as to his duties. In the case at bar the necessity for instructions, and if necessary, whether they were adequately given, were questions for the jury.

The trial judge in his opinion granting a nonsuit says : “ In spite of the change in the plaintiff’s testimony since the last trial, it is obvious to my mind that be was not injured in the operation of the machine. His duties in operating the machine were to put the wool on the apron, so that it would be carried into the machine.” These conclusions are directly in conflict with the testimony of the plaintiff given on the last trial of the cause. His positive testimony is that he was employed to operate the machine and to remove the “choke,” and that he was injured while performing these duties. It seems from a statement of the learned judge that on a former trial of the cause the plaintiff testified that his duties were simply to put the wool on the apron so that it could be carried into the machine. The judge assumed the duty of passing on the credibility of the plaintiff’s testimony on the two trials, and found that his evidence at the last trial was false. We have been referred to no decision, and we know of none, that confers such authority on the court below. It was solely the province of the jury to determine the credibility of the witness,-—-what the plaintiff’s duties were under his employment, and whether he was injured while in the performance of those duties. If the testimony of the plaintiff on the two trials was in conflict it was not within the scope of the judge’s duties to say which was true and which was false. That duty rested with the jury, as is well settled-by our own decisions. In Ely v. Pittsburg, etc., Railway Co., 158 Pa. 233, in which the testimony was “ extremely muddled and conflicting,” the present chief justice delivering the opinion says: “ This testimony was contradictory, and the net result of it by no means clear. On part of it he (plaintiff) was plainly entitled to go to the jury; on the other part equally plainly he was not. Under these circumstances the case must go to the jury, whose province it is to reconcile conflicting statements, whether of the same or different witnesses, or to draw the line between them and say which shall prevail.” In the recent case of Strader v. Monroe County, 202 Pa. 626, it was held that the court must submit conflicting testimony of the same or different witnesses to the jury; and in delivering the opinion Dean, J., very truly and aptly says“ In trials of fact, if it were required that all testimony should be consistent, either with itself or that of other witnesses, but few cases, would reach a jury.”

The judgment is reversed with a procedendo.


author: Pee Curiam,

text:
    Kurrie v. Cottingham, Appellant.

      Appeals—Interlocutory order—“Definite’’ judgment, order or decree—Act of June 4, 1901, sec. 59.

    The word “definite” preceding the words “judgment, order or decree” in section 59 of the act of June 4, 1901, is not to be taken in the ordinary sense as “clear or unambiguous,” but in the sense of “definitive” as opposed to interlocutory.

      Appeals—■Interlocutory order—Mechanic’s lien—Striking off appeal.

    Where á subcontractor agrees that no liens shall be filled by him, and that if they are filed any attorney may appear and strike them off, and a rule is taken by a receiver for the owner of the building to show cause why an attorney should not enter an appearance for the .lien claimant, and mark .the lien discontinued and satisfied, an order discharging the rule is interlocutory, and no appeal lies from it.
    Argued March 25, 1904.
    Appeal, No. 61, Jan. T., 1904, by-defendant, from order of C. P. No. 3, Phila. Co., Dee. T., 1903, No. 5718, M. L. D., discharging rule to show cause why an attorney should not enter an appearance and strike off a mechanic’s lien, in case of George R. Kurrie v. Lewis K. Cottingham, Receiver of Belgravia Apartments Company.
    Before Dean, Fell, Mestrezat, Potter and Thompson, JJ.
    Appeal dismissed.
    Appeal from order discharging rule to show cause why an attorney should not enter an appearance and discontinue, satisfy or strike off a mechanic’s lien.
    The opinion of the Supreme Court states the case.

      Error assigned was the order of the court.
    6r. Von Phul Jones, with him Avery D. Harrington, for appellant,
    cited as to the right of appeal: Act of June 4,1901, sec. 59; Converse v. Burrows, 2 Minn. 229; Walker v. Chicago, 56 Ill. 277.

      Frank P. Prichard, for appellee,
    cited as to the appeal: Ballman v. Heron, 160 Pa. 377; Bohem v. Seel, 185 Pa. 382.

      April 11, 1904:
   Pee Curiam,

The plaintiff filed a lien for work and materials against a building known as “ The Belgravia Apartment House ” in Philadelphia for 16,654.66, setting out the names of those he alleged to be the contractors and owners or reputed owners. There was a written contract between the principal contractors, Machin & Brown and DeHoff, the owner; the plaintiff in the lien was a subcontractor and agreed no lien should be filed for work and materials furnished by him, and that if any were filed any attorney might appear, discontinue, satisfy or strike it off. Before a sci. fa. was issued on the lien the appellant, Cottingham, was appointed receiver for the Belgravia Apartments Company and took a rule to show cause why its attorney should not enter an appearance for the lien claimant and mark the lien discontinued or satisfied. The court below discharged the rule and Cottingham, the receiver, brings this appeal, alleging that in discharging the rule the court below erred. This appeal from the decree being plainly interlocutory, it does not lie unless by statutory authority. Appellant points us to the 59th section of the act of June 4,1901, as follows :

“ From any definite judgment, order or decree, entered by the court of common pleas, under any of the provisions of this act, or from the refusal to open a judgment entered by default, an appeal may be taken by the party aggrieved to the Supreme Court or Superior Court, as in other cases.”

The decree discharging the rule was, doubtless, a definite decree, but we think the word definite was not intended to have its ordinary meaning in the statute, that is, the same as “ clear ” or unambiguous. In the regular proceedings before final judgment in an issue, there are scores of decrees incidental to a preparation for trial, which the court makes on motion of one side or the other, all of them clear and unambiguous, therefore definite decrees. Surely it was not intended an appeal should lie from each to an appellate court; if so, when would a case reach a jury? Before the decree of this court is remitted in this case and the case reaches a trial in the court below the best part of a year will have elapsed; but before a jury is called some other incidental definite decree may be made from which another appeal may be taken and so it will go on ad infinitum. If tbe construction put upon this section by appellant be the correct one, we doubt if it would stand in face of th.e declaration of rights that “ every man shall have remedy without sale, denial or delay.” In many cases the delay in reaching a final judgment would extend beyond the lifetime of the ordinary suitor. To give the word such a meaning in this statute would make it absurd. We think it was used in the same sense as “ definitive ” is used when prefaced to a decree, order or judgment, that is, opposed to interlocutory. It is put in the same sentence in juxtaposition with the right to appeal from the decree of refusal to open a judgment by default; such a decree would be definitive or final. Such is the meaning we are clear it was intended to have in this act; it was not final and therefore no appeal lies. The appeal is dismissed at costs of appellant.