author: Mr. Justice Potter,

text:
    Rice, Appellant, v. Philadelphia Rapid Transit Company.

      Negligence — Street railways — Passenger—Contributory negligence.

    The running board of a street car is not intended as a place of conveyance, but only as an aid to passengers in getting on and off the car. If passengers voluntarily ride upon it, they must do so at their own risk.

      Where a passenger on an open street car in anticipation of the stopping of the ear on the near side of a street, takes a position on the outside of the car, with one foot on the running board and the other on the body of the car, and, the car not stopping, continues in this position and is thrown off by a sudden jerk while the car is crossing the street, the street railway company will not be liable for the injuries sustained.
    Argued Jan. 11, 1906.
    Appeal, No. 29, Jan. T., 1905, by plaintiff, from order of C. P. No. 5, Pbila. Co., Sept. T., 1902, No. 1143, refusing to take off nonsuit in case of Catharine Rice v. Philadelphia Rapid Transit Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Martin, P. J.
    The facts appear by the opinion of the Supreme Court.

      Error assigned was refusal to take off nonsuit.

      William C. Gross, for appellant,
    cited: Linch v. Traction Co., 153 Pa. 102; Mitchell v. Electric Traction Co., 12 Pa. Superior Ct. 472; Sweeney v. Union Traction Co., 199 Pa. 293; Barden v. Boston, etc., R. R. Co., 121 Mass. 426; Treat v. Boston, etc., R. R. Co., 131 Mass. 371; Babcock v. Los Angeles Traction Co., 128 Cal. 173 (60 Pac. Repr. 780); Norton v. R. R. Co., 49 N. Y. Supp. 898.

      Thomas Leaming, with him Charles Biddle, for appellee,
    cited: Barry v. Union Traction Co., 194 Pa. 576; Bumbear v. United Traction Co., 198 Pa. 198; Stager v. Ridge Ave. Pass. Ry. Co., 119 Pa. 70; Bainbridge v. Traction Co., 206 Pa. 71; Jennings v. Union Traction Co., 206 Pa. 31; Woodroffe v. Roxborough, etc., Ry. Co., 201 Pa. 521.
    February 26, 1906:
   Opinion by

Mr. Justice Potter,

Judgment of compulsory nonsuit was entered in this case, for the reason that it appeared from the evidence that the plaintiff in anticipation of the stopping of the car, took a position on the outside of an open car, with one foot on the running board, and the other on the body of the car. She expected it to stop in front of the car barn, on the near side of Allegheny avenue, but instead of stopping at this point, the car continued in motion and passed across the street, to stop at the far side. The plaintiff remained in the same position, which was evidently insecure, with the result that, as she claims, a sudden jerk threw her off in the middle of the street which the car was crossing. The suggestion of counsel for appellant that she was not voluntarily riding on the running board does not seem to be borne out by the evidence. No satisfactory explanation was given as to why she could not have regained a position upon the body of the ear, when she found that it had passed the point where she first expected to alight. She had been standing between the seats, and the space where she was standing was not apparently filled up when she left it.

In describing the accident, she says: “ I stood where I was, thinking maybe the car would stop ; and before it did stop, it went on faster until it threw me off; it gave a sudden jerk in the middle (of Allegheny avenue).” The evidence does not show that the jerk to which she referred caused any disturbance to any other passenger.

In the case of Barry v. Traction Co., 194 Pa. 576, the plaintiff stood in much the same position as did this appellant, with one foot on the lower step and one on the platform, and while in that position was jolted off at a street crossing. The judgment of nonsuit there entered was affirmed by this court.

Again, in Bumbear v. Traction Co., 198 Pa. 198, we said that a passenger who rides upon the running board of an open car assumes the risks incident to the usual swaying and jolting of the car. And in Bainbridge v. Union Traction Co., 206 Pa. 71, where the plaintiff stepped down on the running board, and while there, the car stopped with a sudden and violent jerk which threw him off, we said : “ When the appellant left his seat where he was safe and stepped down on the running board of the car and remained there while it was in motion, he voluntarily put himself in a place of danger and took upon himself-the risk of his position from any cause.”

Under the authority of these cases, and others which might be cited, the trial court was entirely justified in entering judgment of compulsory nonsuit. The running board is not intended as a place of conveyance, but only as an aid to passengers in getting on and off the car. If passengers voluntarily ride upon it, they must do so at their own risk.

The assignment of error is overruled and the judgment is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Wetherill’s Estate.

      Wills — Vested and contingent estate — “Have”—“Leave”—Children.
    "Where an estate is given to a life tenant with remainder to the children of the life tenant, the estate vests at once upon the birth of each child, subject to open and let in after-born children, and this without regard to the question of whether or not a child survives the life tenant..
    Testatrix bequeathed her estate to a friend for life, and “after the death of my friend, I give and bequeath to my niece the sum of forty thousand dollars during her life, and at her death to go to her children, if she have any, and if not, to her natural heirs.” The niece died having had two sons, one of whom survived her. The first life tenant died after the niece. Held, that estates in remainder were vested in the two sons as they were born, and that the administrator of the deceased son was entitled to one-half of the estate in remainder.
    Argued Jan. 12, 1906.
    Appeal, No. 337, Jan. T., 1905, by Leiper Janeway Hodge, by his guardian, from decree of O. C. Phila. Co., Jan. T., 1893, No. 462, dismissing exceptions to adjudication in estate of Rachel Wetherill, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to adjudication.
    The facts appear by the opinion of the Supreme Court.

      Errors assigned were in dismissing exceptions to adjudication.

      Joseph T. Bunting, of Hannis, Williams & Bunting, for appellant.
    Alternative remainders, dependent on the same event, never vest until the event occurs on which they are to take effect: Dunwoodie v. Reed, 3 S. & R. 435; Buzby’s Appeal, 61 Pa. 111; Goddard v. Goddard, 10 Pa. 79; Melsheimer v. Gross, 58 Pa. 412; Stump v. Findlay, 2 Rawle, 168.
    But the appellant has another ground for his contention, viz.: That the meaning and intention of testatrix were, that the remainder should should go to children the life tenant should leave at her death, and appellant was then her only child and entitled to the whole legacy of $40,000, and not to half of it, as the court below has decreed: Woelpper’s App., 126 Pa. 562; Mulliken v. Earnshaw, 209 Pa. 226; Rudy’s Estate, 185 Pa. 859; Raleigh’s Estate, 206 Pa. 451; Reed’s Estate, 10 Pa. Dist. Rep. 162; Adam’s Estate, 208 Pa. 500; Bartholomew’s Estate, 155 Pa. 314.

      Frank P. Prichard, with him John G. Johnson, for appellee.
    The general rule in Pennsylvania is well settled that where an estate is given to a life tenant, with remainder to the children of the life tenant, the estate vests at once upon the birth of each child, subject to open and let in after-born children, and is not contingent upon whether the child survives the life tenant: Minnig v. Batdorff, 5 Pa. 503; Evans’s Estate, 155 Pa. 646.
    February 26, 1906:
   Opinion by

Mr. Justice Potter,

Rachel Wetherill bequeathed and devised the residue of her estate to her friend, Anna M. Peters, for life, and in the eighth clause of her will provided as follows : “After the death of my friend Anna M. Peters, I give and bequeath to my niece Rachel W. Janeway, the sum of forty thousand dollars during her life, and at her death to go to her children, if she have any, and if not, to her natural heirs, free of all taxations.” The testatrix died October 27, 1892. Her niece, Rachel W. Jane-way, married Thomas L. Hodge, January 9, 1894. She had two children, Thomas L. Hodge, Jr., who was born June 9, 1895, and died June 17,1895, in the lifetime of his mother, and Leiper Janeway Hodge, who was born August 25, 1896, and is still living. Anna M. Peters, the first life tenant, died February 6, 1904, after the death of Rachel ,W. Janeway Hodge. Upon the audit of the account of the executors of Rachel Wetherill, deceased, the guardian of Leiper Janeway Hodge claimed the entire principal of the fund held under the eighth clause of the will contending that the interests of the children of Mrs. Hodge did not vest until the death either of Anna M. Peters or of Mrs. Hodge. In either case, under their contention, the sole surviving child would take the entire fund. The auditing judge held that the interests of the children of Mrs. Hodge vested immediately upon their birth, and awarded one-half the fund to the administrator of Thomas L. Hodge, Jr., deceased. This adjudication was afterwards confirmed by the court in banc.

The single question raised here is whether, under the will of Rachel Wetherill, the children of Rachel W. Janeway Hodge took at the. time of their birth, a vested or a contingent interest in the fund given to their mother for life, with remainder to her children. It is clear that, in making her will, the testatrix had in mind the birth of children to her niece, for she provided distinctly that the amount of money which was set apart for the use of her niece, Rachel Janeway, during her life, should at her death go to her children “ if she have any, and if not, to her natural heirs.” The event upon which the alternative remainder over depended, was not the death of the niece, but it was the existence of children. The objects of the testatrix’s bounty were the children if any, that her niece should have, and therefore as soon as a child came into being, the remainder vested, although it could not take effect in possession until after the death of the life tenant.

Counsel for appellant in this case would have us construe the word “ have ” as if it were “ leave,” in order to prevent the estate from vesting in the children at birth. In support of this contention, they cite a number of cases in which wills contained phrases indicating an intention to give a contingent remainder only to such children a's should survive the life tenant. For instance, in Dunwoodie v. Reed, 3 S. & R. 435, the devise was to a daughter for life, and at her decease to “John Dunwoodie, if alive at her death.” And in Buzby’s Appeal, 61 Pa. 111, the devise was to the children “ that shall then be living.” And so in other cases cited there was in each some similar expression, such as “ if they leave such issue,” or to those “ then living,” or the “ survivors,” etc., clearly indicating an intention to limit the gift to those living at a certain time. But no authority has been cited in which words similar to those used by the testatrix have been construed to limit the remainder to such children only as should survive the life tenant. On the other hand, ample authority is found in support of the proposition that where an estate is given to a life tenant, with remainder to the children of the life tenant, the estate vests at once upon the birth of each child, subject to open and let in after-born children, and this without regard to the question of whether or not a child survives the life tenant.

Thus in Fetrow’s Estate, 58 Pa. 424, testator devised real estate to Matilda Wilson for life, and at her death I give, devise and bequeath the same unto her children, their heirs and assigns forever. . . . Should the said Matilda Wilson, however, die without issue as aforesaid, then and in that event I direct that the real estate here bequeathed to her shall be sold,” and the proceeds otherwise divided. In construing this will, Mr. Justice Sharswood said (p. 427) : “ Matilda Wilson under the will took an estate for life, with a contingent remainder to her children then unborn, which if there had been children, would have vested in them, in the first child alone, and opening from time to time to let in others as they were born, until the whole class became finally ascertained by her death: 1 Fearne on Rem. 313, 314. The subsequent limitation was an alternative one, to take effect on the event of her death without children; Luddington v. Kime, 1 Lord Raym. 203.” This language seems particularly applicable to the case now in hand, the only difference being in the fact that in the case just cited the life tenant died without having had any children, so that the alternative devise, which depended upon that contingency, went into effect. In the present case, the life tenant did have children, so that the contingency under which the alternative limitation was to take effect, does not arise.

Then again, in Anthracite Savings Bank v. Lees, 176 Pa. 402, the same doctrine is stated and is thus summed up in the syllabus : “ Where a devise is to one for life, with remainder in fee to his children, the estate in remainder is contingent, while there are no children born, and while it cannot be known that there ever will be any born ; but the moment that children are born, there is no longer any contingency, because the condition of the devise is met, and the estate in remainder becomes necessarily vested, and the fact that it may be opened to let in after-born children, does not make the estate in remainder contingent.”

We see no reason why we should attempt to broaden the language of the testatrix in this case, or give to it any forced construction. This we would have to do, were we to support the contention of appellant and interpret the language of testatrix as imposing the condition that the niece should not merely “ have ” children, but that she should have them living at the time of her death.

We are not convinced that the word “have” was used by the testatrix in the sense of “ leave.” No authority for any such construction has been cited.for appellant, nor has any case supporting such a view been found. Counsel for appellant have cited a number of cases to the effect that a husband takes no interest in the property of his wife which has not been reduced to possession during her lifetime, and that husband and wife are not “ heirs ” of one another. These propositions of law are well settled, but they would seem to have no proper application here. The award is not to the husband as such, but it is to the administrator of the estate of the deceased child.

The assignments of error are dismissed, and the decree of the court below is affirmed.


author: Mr. Justice Elkin,

text:
    Brown v. Gourley, Appellant.

      Practice, C. P. — Affidavit of defense — Set-off.
    An affidavit of defense is sufficient if it sets forth in words or by necessary inference therefrom the indispensable elements of a defense. It need not be drawn with such nicety that no critical skill can suggest an objection. If it sets forth substantially a good defense it should be supported.
    A claim of set-off in an affidavit of defense need not be of a certain liquidated amount where the facts out of which the alleged set-off arises are such that an approximate amount only could be stated.
    Submitted Jan. 15, 1906.
    Appeal, No. 86, Jan. T. 1905, by defendant, from order of C. P. No. 2, Phila. Co., Sept. T. 1904, No. 2,810, making absolute rule for judgment for want of a sufficient affidavit of defense in case of city of Philadelphia to use of James F. Brown v. Samuel Gourley, Sr., and. Samuel Gourley, Jr.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Assumpsit on a bond given by a contractor to a city to protect material men and subcontractors.
    The affidavit of Samuel Gourley, Jr., was as follows :
    That exclusive of the sum admitted by the plaintiff to have been received on account of the said contract price of $14,800 that your deponent on or about August 12, 1904, made and delivered to the said James F. Brown a certain promissory note for $5,000, payable on October 10,1904, at Twenty-first and Ridge avenue, Philadelphia. That at the time that the said note was given by your deponent a receipt for the same was duly executed and delivered by the use plaintiff. That your deponent has searched diligently for the said receipt but has been unable to find the same, but the deponent avers that the said note was given your deponent and accepted by the plaintiff in payment. That prior to the giving and acceptance of the said note the use plaintiff demanded of your deponent payment of more money than was at that time due under the terms of the contract. That your deponent objected to the amount demanded and stated to the use plaintiff that the sum due at that time under the terms of the contract was less than $5,000 and' your depondent avers as matter of fact that under the terms of the contract there was due to the use plaintiff on or about August 12, 1904, not more than $2,100. That your deponent agreed to give the said note for $5,000 upon condition that the same would be accepted by the use plaintiff in payment of materials furnished and work already performed by the use plaintiff and for materials and labor to be furnished after that time under the terms of the contract and that the said note was accepted by the said use plaintiff in payment under the circumstances above set forth.
    As to the balance claimed by the said plaintiff, amounting to $2,672.25, your deponent avers that under the terms of the contract dated June 12, 1908, between your deponent and the plaintiff referred to in plaintiff’s statement as exhibit “ D ” the plaintiff, inter alia, agreed that as to the portion of the work to be performed by him he should stand in the place of your deponent and perforin the work according to the articles of agreement entered into between your deponent and the city of Philadelphia and the specifications accompanying the same, which agreement was dated April 17, 1903, and a copy of which is attached to plaintiff’s statement as exhibit “ C.” That under the terms of the said last mentioned articles of agreement the schoolhouse therein referred to was to be erected complete and ready for use before the expiration of ten months from the date of the approval of the surety offered by your deponent for the performance of the agreement and that the-said surety was approved on or about April 17,1903, and that the said schoolhouse in accordance with the contract was to have been fully erected and completed by February 17, 1904, but that on the contrary the said schoolhouse was not completed and accepted by the city until September 24,1904, which delay was entirely and solely caused by the use plaintiff neglecting to perform the work of setting cut stone although the said stone was in the use plaintiff’s j^ard and in condition to be set, but that the said use plaintiff although urged by your deponent to deliver the said stone at the building willfully neglected and refused to deliver the same and your deponent denies that any of the delay caused by the plaintiff was occasioned by a strike or by his inability to procure materials, but that on the contrary the said use plaintiff had in his custody the said stone and could have delivered the same so that the progress of the said work would not have been delayed. That by reason of the delay and neglect upon the part of the plaintiff as aforesaid your deponent was put to great expense and damage, which expense would not have been incurred nor damage suffered if the said plaintiff had'promptly performed his contract as it was within his power so to do. That in consequence of the said delay your deponent was forced to expend certain sums of money as follows :
    Wages of a watchman for 30 weeks and 5 days at $10.00 per week......$307.10
    Wages of foreman and superintendent for 30 weeks and 5 days at $20.00 per week . . . 616.65
    Salary of Inspector as called for in the specifications, appointed by the Board of Public Education, 7 months at $100 per month . . . 700.00

      That your deponent accordingly sets off or defalks against the amount claimed by plaintiff the above sum, no part of which has been paid by the use plaintiff to your deponent nor has credit for the same been given in plaintiff’s statement filed.
    That your deponent in order to expedite the work proposed to the use plaintiff that your deponent should set the entrance to the school building and the roof on the fire escape which said work was originally included in the agreement entered into between your deponent and the use plaintiff. That the use plaintiff accepted the proposal made by your deponent for this portion of the work in accordance with the written proposal and acceptance, copies of which are as follows :
    “ Philadelphia, Oct. 16th, 1903.
    “ Mr. James F. Bbown,
    “ Dear Sir:
    “ I will agree to set the cut stone of entrance of School Building in first section and be responsible for breakage caused by me for the sum of 15 cents per foot, and fire escape roof for the sum of Twenty-one Dollars, $21.00
    “ (Sgd.) Samuel Goubley, Jb.”
    “ The above estimate is excepted and I will emdately send the stone so that you can proceed with the work without delay.
    “ (Sgd.) Jas. F. Bbown.”
    That your deponent performed the work thereunder whereby the sum of $230 became justly due and payable to him and the use plaintiff has failed to pay the said amount or any part thereof and your deponent accordingly sets off the said sum of $230 against the amount claimed by plaintiff. That the said sum of $230 is arrived at as follows: Your deponent set 1,393 1-3 ft. which at fifteen cents per foot equals $209 and your deponent also set the fire escape roof for the sum of $21.00 as appears by his proposal above.
    Your deponent further avers that the sum of $740, being 5% of the total amount of plaintiff’s contract, is not due and payable until September 24, 1905, as will be seen by reference to tbe contracts and specifications upon wbicb this suit is brought.
    The court made absolute rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of the court.

      Archibald T. Johnson and John O. Sheahan, for appellants.

      Robert J. Wright, for appellee.
    February 26, 1906:
   Opinion by

Mr. Justice Elkin,

An affidavit of defense is sufficient if it sets forth in words or by necessary inference therefrom the indispensable elements of a defense: Selden v. Neemes, 43 Pa. 421. An affidavit of defense need not be drawn with such nicety that no critical skill can suggest an objection. If it sets forth substantially a good defense it should be supported: Thompson v. Clark, 56 Pa. 33. An affidavit of defense need not be framed with the technical accuracy of formal pleadings, nor is it to be subjected to the severe scrutiny which critical skill may exercise : Twitchell v. McMurtrie, 77 Pa. 383. A claim of set-off in an affidavit of defense need not be of a certain liquidated amount where the facts out of which the alleged setoff arise are such that an approximate amount only could be stated: Kaufman v. Cooper Iron Mining Co., 105 Pa. 537.

Tested by these rules, the affidavits of defense in this case were sufficient to send it to the jury. The suggestion by counsel for appellee that the item of $230 claimed as a set-off for work actually done for the plaintiff is a subterfuge, and that credit for this amount had already been allowed may be shown as a fact at the trial, but cannot now be considered in determining the sufficiency of the affidavits of defense. The averment of the affidavit wherein it is stated that part of the money for which suit is brought is not yet due is also good. It may be at the trial such facts may be shown as to justify the contention of appellee, but in determining the question now before us we must accept the averments as true. The affidavits of defense are pro tanto and do not go to the merits of the whole claim. Judgment may be moved for that part of the claim against which no defense is made or set-off averred.

Judgment reversed and a procedendo awarded.


text:
    Equitable Trust Company v. National Surety Company, Appellant.

      Bond — Conditions—Covenants—Breach—Indemnity—Guaranty.
    A bond may have two separate and distinct conditions and upon a breach of one condition an action will lie.
    Where a bond is conditioned not only as an indemnity against loss but as a covenant to complete a building operation, failure of the obligor to complete the building operation is a breach of the condition of the bond for which an action lies.
    Argued Jan. 15, 1906.
    Appeal, No. 239, Jan. T., 1905, by defendant, from .judgment of C. P. No. 5, Phila. Co., March T., 1901, No. 390, on verdict for plaintiff in case of Equitable Trust Company v. National Surety Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit on a bond. Before Ralston, J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $3,843.82. Defendant appealed.

      Error assigned was in not entering judgment for defendant non obstante veredicto.

      T. Raeburn White and S. Davis Page, for appellant.
    The words of the bond import a contract of indemnity: Wheeler v. Equitable Trust Co., 206 Pa. 428; Weightman v. Union Trust Co., 208 Pa. 449.
    The circumstances of the case show the bond to be one of indemnity against loss sustained by plaintiff under its title policies: Equitable Trust Co. v. Wynkoop, 18 Montg. County Law Repr. 201.
    Plaintiff has shown no loss against which it was indemnified, and is not entitled to recover: Wheeler v. Equitable Trust Co., 206 Pa. 428; Equitable Trust Co. v. Wynkoop, 13 Montg. Co. Law Repr. 201.

      Francis Shunk Brown, of Simpson Brown, with him Ira J. Williams, for appellee.
    Appellant's contention that the bond as a whole must be construed as one of indemnity cannot be sustained without doing violence to the plain language of. the instrument itself.
    And a bond having separable conditions may be sustained as to part, although void as to one or more of the other conditions: Power v. Graydon, 53 Pa. 198; Beacom v. Holmes, 13 S. & R. 190; McKee v. Stannard, 14 S. & R. 380; Hutton v. Helme, 5 Watts, 346.
    The bond in suit is totally unlike the bond considered in Weightman v. Trust Co., 208 Pa. 449, which was conditioned merely to hold the obligee harmless; but the bond bound the obligors to furnish all electrical materials and work, and, as in the case of Folz v. Trust & Saving Fund Co., 201 Pa. 583, to complete the contract of Wolf & Ployd.
    February 26, 1906:
   Opinion by

Mr. Justice Elkin,

The question involved in this appeal is whether the bond upon which suit was brought is one of indemnity or of guaranty, or both. If it is a bond of indemnity alone the contention of the appellant must prevail. If, however, it is not only a bond of indemnity but an absolute undertaking to furnish the materials and complete the work, judgment was properly entered in the court below.

The answer must be found in the terms and conditions of the bond itself. The citation of authorities wherein bonds have been construed is of little value to a court in determining the question, unless the covenants of the bonds in the cases cited are the same in import and effect as those' of the one under consideration. An obligor can make, and an obligee accept a bond the conditions of which may be a contract of indemnity, or of guaranty, either or both. In these respects they may execute a bond in scope and character suited to their purposes. In order to obtain a clear view of the situation the bond executed by appellant as surety may be divided into three separate and distinct parts. (1) “ Shall and do at all times hereafter well and sufficiently save, defend, keep harmless and indemnify the obligee, of and from all loss, damage, costs, charges, liability or expense on or for account of any work or labor done, or materials furnished, or to be done or furnished, for and about the construction and erection of said buildings.” (2) “ Shall and do furnish all materials and labor necessary to complete the erection and construction of said one hundred and thirty-two houses free and clear of mechanics’ liens so far as relates to the particular branch or department recited in said contract; ” and (3) “ fully comply with all the terms of said contract and faithfully keep and perform the covenants therein contained.”

The appellant contends that the bond as a whole is one of indemnity, and that all of the parts thereof should be construed to effectuate the general purpose of the instrument. Wheeler v. Equitable Trust Company, 206 Pa. 428, is relied on as ruling this case in favor of appellant. We do not agree with this position.- The suit in that case was brought on a policy of title insurance, which was primarily and essentially a contract of indemnity. It was conceded in that case that the general purpose of the policy was to indemnify against loss, but it was contended that the use of the word “ guarantee ” in a note relating to the completion of the buildings within a certain time limit, attached to the policy, changed the general purpose of the policy from one of indemnity to one of guaranty. This court held that the fundamental character of that contract could pot be changed by the use of a single word which appeared as an exception to an exception in the general contract of indemnity set out in the policy. This distinction is clearly made by Mr. Justice Dean, who wrote the opinion in that case, wherein it is said: “ That is, notwithstanding the exceptions, the general indemnity contract shall extend to and cover any loss 'from failure in these particulars. The. note, although inaptly worded, is intended to signify that if the buildings should not be completed in accordance with the specifications then, if any loss be sustained thereby by plaintiff, such loss should come under the indemnification covenant of the policy.” We do not question the correctness of the rule stated in that case. We are of opinion, however, that the facts of the case at bar distinguish it from the case cited. The present action is not founded on a policy of title insurance, and the contract relied on is not necessarily one of indemnity. This suit is based on a bond, and the conditions thereof are whatever the parties choose to make them. It is true they could have made the bond one of indemnity. It is equally true they could make it one of guaranty, either or both.

' There can be no doubt that the first clause of the condition of the bond in question is an indemnity, but it is just as clear that the second clause is one of guaranty to furnish the materials and complete the work. The learned counsel for appellant contend, however, that the general import of the contract is one of indemnity, and. that all of the words used therein should be construed to be in harmony with, and subservient to, the general purpose of the bond. As a general rule the correctness of this proposition may be conceded, but it is not applicable to the facts of this case. This rule when applied should be in aid of the intention of the parties and not to defeat their purpose. The covenants of the bond are the ■ guide to the court. They should be construed to mean what the parties intended in so far as that intention can be ascertained by the words used.

The distinction between a contract of indemnity and one of guaranty is pointed out in Weightman v. Union Trust Company, 208 Pa. 449, wherein Mr. Justice Potter, among other things, said : “ The distinction between the two agreements is simply that between an affirmative covenant for a specific thing and one of indemnity against damage by reason of the nonperformance of the thing specified.” In that case the covenant of the bond was essentially different from the covenants of the bond in the present case. Weightman loaned certain sums of money to Steelman, to be used in the erection of buildings on land owned by Steelman, and took a mortgage upon the land as security for the loan. As a further protection a bond was procured from the Union Trust Company, conditioned for indemnity against loss on account of any deficiency in the mortgage security resulting from the failure of Steelman to complete his contract. This court held that the covenant of the surety company in that case by express terms was not to do the particular things which Steelman had bound himself to do, but to save the plaintiff harmless from any loss occasioned by failure to perform his contract. There was a single covenant to indemnify against loss, which the court was asked to say was not what it purported to be, to wit: a covenant of indemnity, but that'it was an absolute undertaking to complete the buildings. It was very properly held to be a contract of indemnity.

The difference between that case and the one at bar is manifest. In the present case there is not only a covenant to indemnify against loss, but, in addition thereto, a separate, distinct and absolute undertaking to do a specified thing, to wit: “ furnish all materials and labor necessary to complete the erection and construction of said one hundred and thirty-two houses.” There is ample authority to*support the proposition that a bond may have two separate and distinct conditions, and that upon a breach of one condition an action will lie. Also that when the condition of the bond is an undertaking to do a particular thing, failure to do that thing is a breach, upon the happening of which a cause of action arises: Pure Oil Company v. Terry, 209 Pa. 403; In re Negus, 7 Wend. (N. Y.) 499; Thomas v. Allen, 1 Hill (N. Y.), 145; Churchill v. Hunt, 3 Denio (N. Y.), 321; Belloni v. Freeborn, 63 N. Y. 383; Kiewit v. Carter, 25 Neb. 460.

The reason for requiring the bond to be conditioned, not only as an indemnity against loss but as a covenant to complete the work, is apparent from the facts in the present case. The Guarantee Trust Company agreed to advance the money and as a security to take a mortgage on the premises on which the buildings were to be erected. This company, in order to be more fully protected from loss by reason of defective title or failure of the contractors or subcontractors to complete the buildings, applied to the appellee for title insurance. Thereupon appellee issued its title policies to the mortgagees insuring them against loss because of unmarketability of title, mechanic’s liens and encumbrances, and failure to complete the buildings according to certain plans lodged with the insuring company. The appellee, in order to protect itself from loss under the title policies issued by it, required the subcontractors to enter into written contracts with the principal contractors and owners agreeing to complete the work in accordance with the plans for a fixed price, that no mechanics’ liens should be filed against the premises, that they could keep pace with the other subcontractors in the performance of their work, and that they would give a bond with sufficient surety conditioned for the faithful performance of said'contract. One of the subcontracting firms with the appellant company as surety, executed the bond upon which this suit is based. This firm defaulted and failed to complete its branch of the work. The appellee notified appellant of the failure of the principal in the bond, and requested that company to complete the work as it had undertaken to do under a covenant in the bond. The appellant company relying upon its contention that its covenant was one of indemnity only, and not an absolute undertaking to complete the work, did nothing. The appellee treated the failure as a breach, had the work completed by contract, paid the amount agreed to be paid the contractors, and instituted this suit '.to recover the amount so expended from appellant.

It is apparent why the appellee should require not only a covenant of indemnity bub an absolute undertaking to complete the work in order to protect itself. If the subcontractors failed to complete their work, the houses, being unfinished, might be worth less than the face value of the mortgages, and a loss would result. Then, again, it was important to the appellee that it should have the right iii the event of the failure of any one subcontractor to perform his work, and the surety company refused or neglected to do so, to either do the work or have it done in order that the entire building operation should not be at a standstill by reason of failure to perform certain branches of the work. Failure of any one subcontractor to perform his work and keep pace with the others in the erection of the buildings might result in serious loss, and the appellee, acting with business prudence and foresight, required and received a bond conditioned not only as an indemnity against loss, but with an express covenant to complete the work. There can be no question about the night of the appellee to require such a bond to be executed, nor' is there any doubt as to these separate and distinct covenants having been written into the bond, and inasmuch as the parties themselves have made their own covenants, there is no reason why a court should disturb them.

Judgment affirmed.


text:
    Politowski, Appellant, v. Burnham.

      Negligence — Master and servant — Place of employment — Nonsuit.
    A jury cannot be permitted to find anything negligence which is less than failure to discharge a legal duty.
    In an action by an employee against his employers, the proprietors of a locomotive works, to recover damages for personal injuries, it appeared that the plaintiff was directed to fit injector pipes in the cab of a locomotive standing on a railroad track. Plaintiff was familiar with this kind of work and had done it before at or near the same place. While he was at work in the cab, a locomotive came along on the same track and pushed the engine on which the plaintiff was working for a considerable distance, until it struck a freight car standing on a side track too close to the switch to allow the moving engine to pass safely. In the collision plaintiff was injured. Held, that a nonsuit was properly entered.
    Argued Jan. 15, 1906.
    Appeal, No. 288, Jan. T., 1905, by plaintiff, from order of C. P. No. 1, Pbila. Co., March. T., 1904, No. 8,611, refusing to take off nonsuit in case of Maryan Politowski v. George Burnham et al., trading as Burnham, Williams & Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Bregy, J.
    The facts appear by the- opinion of the Supreme Court.
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was order refusing to take off- nonsuit.

      William F. Brennan, for appellant.
    A motion for a nonsuit admits all the facts which the jury might have fairly inferred from the testimony: Maynes v. Atwater, 88 Pa. 496; Miller v. Bealer, 100 Pa. 583; Cohen v. R. R. Co., 211 Pa. 227.
    The defendants were negligent, because they did not provide the plaintiff with a safe place to work: Lillie v. Car & Foundry Co., 209 Pa. 161; Lewis v. Seifert, 116 Pa. 628; Prevost v. Citizens’ Ice, etc., Co., 185 Pa. 617; Casey v. Paving Co., 198 Pa. 348; Sweigert v. Klingensmith, 210 Pa. 565; New v. Milligan, 27 Pa. Superior Ct. 516; Hickey v. Solid Steel Casting Co., 212 Pa. 255; DeGrazia v. Piccardo, 15 Pa. Superior Ct. 107; Patterson v. R. R. Co., 76 Pa. 389; Reese v. Clark, 198 Pa. 312; Kehler v. Schwenk, 31 W. N. C. 201; Woodward v. Shumpp, 120 Pa. 458.

      James Wilson Bayard, with him John G. Johnson, for appellees.
    February 26, 1906:
   Opinion by

Mr. Justice Elkin,

The learned court below refused to take off a nonsuit directed to be entered at the trial and this appeal is intended to test the correctness of that ruling. The appellant relies on the rule of law that a motion for a nonsuit admits all the facts and inferences that may be fairly drawn from the same proven by the plaintiff at the trial. This contention is amply supported by our cases. It does not follow, however, that in the case at bar such facts were offered in evidence as to permit a jury to draw an inference of negligence. A jury cannot be permitted to find anything negligence which is less than failure to discharge a legal duty: Phila. & Reading Railroad Company v. Hummell, 44 Pa. 375. What legal duty did the defendant company fail to discharge to the appellant? It is argued that it did not provide a safe place in which to work. If the facts supported this contention, it might have been a proper case for the jury. We do'not so understand the facts.

It appears from the testimony that on the day of the accident the appellant, an employee of the appellees, was sent down to fit the injector pipes in the cab of a locomotive standing on a railroad track in the Reading subway. It cannot be seriously contended that working in the cab of an engine is dangerous or unsafe, nor that the appellees are to be charged with negligence because they sent their employee to do work therein, he being familiar with and having done the same kind of work many times before. It is clear, therefore, that up to this point there was no negligence by the appellees making them liable in damages.

Did the evidence disclose any facts which would charge the appellees with negligence subsequently ? It appears that while the engine was standing on the railroad track a locomotive, called in the testimony an “ old engine,” came along the same track from the east and pushed the engine on which the appellant was working in the direction of Twenty-first street, at which point a box freight car was standing on a side track too close to the switch to allow the moving engine to pass safely. As a result there was a collision between the moving engine and the standing freight car. The cab of the engine was wrecked and appellant was severely injured. The accident occurred on the tracks of the Reading Railway Company, a considerable distance from the works of the appellees. The negligence alleged in the statement of claim, in substance charges that the appellees permitted the “ old engine ” to run over the tracks of the Reading Railway Company so that the locomotive on which the appellant was working came in collision with the box freight car standing on the tracks of the said railway company, hurling him to the roadbed thereof, thus causing the injuries for which damages are sought to be recovered. The •weakness of the appellant’s case is that there is no evidence that the appellees are responsible for this alleged negligence. The testimony did not show that the “ old engine ” was owned, operated or controlled by the appellees, nor that they had anything to do with its movements, or that it pushed the engine on which appellant was working at their instance or by their direction. The probable cause of the accident was the location of the freight car which stood so near the switch that the engine could not pass without a collision. It is not even contended that the appellees had any control over or were in any way responsible for the location of the freight car. Under these circumstances, it cannot be said that they failed in the performance of any legal duty owed by them to the appellant in this respect.

The learned counsel for appellant argues at length that the accident was due to an increased danger or risk not incidental to plaintiff’s employment, of which he had no notice or knowledge. Numerous authorities are cited'in support of this principle. We fail to see that they have any application to the case at bar. The appellant was as familiar with- whatever danger or risk there was in his employment as his employers were. He admits that he did the same kind, of work at or near the same place ten or more times before the date of the accident, and therefore cannot say he did not have notice orknowledge of the risks of his- employment. He did not object to nor complain about the danger or risk incident thereto. Under these circumstances, he assumed the risks.

Judgment affirmed.


text:
    Van Dyke, Appellant, v. Baker.

      Insurance — Fire insurance — Mutual insurance — Fraud—Notice of fraud— Intervening equities.

    In an action by the,receiver of a mutual fire insurance company against a member to recover assessments, the defendant cannot set up a fraud as between the company and himself as against the rights of bona fide creditors and later members of the company, which had intervened subsequent to the date of the membership of the defendant. In such a case the burden is on the receiver to establish affirmatively the intervening equities in order that the- defense of fraud should not avail; but he is not limited to such equities as intervened only after the discovery of the fraud by the defendant. Equities are binding upon the defendant which intervened at any time after the date of his membership.
    Argued Jan. 16,1906.
    Appeal, No. 177, Jan. T., 1905, by plaintiff, from judgment of C. P. No. 3, Phil'a. Co., Sept. T., 1899, No. 239, on verdict for defendant in case of T. Kittera Van Dyke, Receiver of the Trust Mutual Relief Association, v. Franklin Baker, Jr.
    Before Mitchell, C. J., Fell, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Assumpsit to recover assessments. Before McMichael, J.
    . At the trial plaintiff claimed that he had been induced to become a member of the company by false statements made by its president as ,to the amount of its contingent fund- and the total worth of its insurance in force. The plaintiff alleged that equities had intervened which barred the defendant from setting up the alleged fraud.
    The court charged in part as follows :
    [ Then you will have to determine whether or not the rights of any bona fide creditors intervened, and what they were. You have a book offered here in evidence, which is alleged to be one of the books of the company, but the receiver, through no fault of his — as far as appears, he did his whole duty in the premises — has been unable to give you all the books of the company. I think the evidence would persuade reasonable men that they were abstracted by the president of the company. At least, they were in the safe one night and they were not there the next day. The receiver has offered you some evidence that there were policies-or contracts out, but it is for you to determine from the evidence whether any equity and any rights of any bona fide creditors had intervened (that is, come in between) after the fraud was discovered. I do not think T can bring the case down to any simpler terms for you.] [7]
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned among others were (1) refusal of binding instructions for plaintiff, and (7) portion of charge above quoted.

      Ira Jewell Williams, for appellant.
    The charge of the court erroneously defined an intervening equity: Cadbury v. Nolen, 5 Pa. 320; Penna. R. R. Co. v. Berry, 68 Pa. 272; Bisbing v. Third Nat. Bank, 93 Pa. 79; Reber v. Herring, 115 Pa. 599; Richards v. Willard, 176 Pa. 181.
    There was no evidence of the falsity of the statements alleged to have been made by the president of the Trust Mutual Relief Association to defendant and relied upon as fraudulent.
    The business of the company having admittedly been continued subsequent to defendant’s becoming a member, the burden was upon the defendant to show that there were no intervening equities which required him- to be held, which burden was not met: Howard v. Turner, 155 Pa. 349; Fire Ins. Co. v. Boggs, 172 Pa. 91; Daley v. Iselin, 212 Pa. 279.

      The uncontroverted evidence, including the books of the company containing entries made by the defendant himself, and the correctness of which he does not dispute, shows that equities had intervened.

      M. Hampton Todd, with him George Bradford Carr, for appellee.
    We submit that this instruction is well within the rule laid down by this court in Sunbury Fire Ins. Co. v. Humble, 100 Pa. 495. See also New Era Life Assn. v. Weigle, 128 Pa. 577; Fire Ins. Co. v. Boggs, 172 Pa. 91; Dettra v. Kestner, 147 Pa. 566; Susquehanna Mut. Fire Ins. Co. v. Oberholtzer, 172 Pa. 223.
    February 26, 1906:
   Opinion by

Mr. Justice Elkin,

The first five assignments of error are predicated on the theory that the burden of proof was on the defendant to show not only that his policy of insurance was obtained by fraud, but in addition that there were no intervening equities. Fire Insurance Company v. Boggs, 172 Pa. 91, is relied on to sustain this contention. The question before the court in that case was the sufficiency of the affidavit of defense, and not the burden of proof. The affidavit of defense was held to be sufficient because it set up fraud in obtaining the contract, and also averred that there were no intervening equities. It was not held that defendant must affirmatively show that there were no intervening equities, but that inasmuch as he did aver there were none, it was a good defense to the action. It is quite another thing to say that the defendant was required to assume the burden of showing that there were no intervening equities. Ordinarily, the burden of proof is on the plaintiff, and we see no -reason why it should be shifted in this case.

The rule that fraud between the original parties cannot be set up as a defense when the rights of third parties have intervened has been held to apply to the members of mutual fire insurance companies. In Dettra v. Kestner, 147 Pa. 566, this court stated the rule as follows: “ Where the rights of innocent third parties have not intervened the principle contended for by defendant is applicable. In such case fraud justifies rescission of the vitiated contract, and as far as possible remits the parties to their former condition; but when, as in this case, the rights of innocent third parties have intervened, and it is essential to their protection that a contract, otherwise vitiated by fraud, and therefore voidable, should be sustained, equity requires that it be upheld.”

The facts of the case at bar do not distinguish it in principle from the case cited. The fraud set up by defendant in the court below will not avail him as a defense as against the rights of bona fide creditors and members of the corporation who became such after the date of the contract of membership entered into by him. The appellant, who is the receiver of the insolvent corporation, in order to liquidate the claims of these innocent third parties having intervening equities, instituted this suit to collect the amount of an assessment authorized by the court having jurisdiction of the receivership proceedings. The only question for determination at the trial was whether there were intervening equities arising subsequent to the date of the membership of defendant in the corporation. The burden was on the plaintiff to affirmatively establish the intervening equities in order that the defense of fraud set up should not avail.

This brings us to the consideration of the seventh assignment of error which relates to the instruction of the learned trial judge in defining intervening equities, wherein he said: But it is for you to determine from the evidence whether any equity and any rights of any bona fide creditors had intervened, that is, come in between, after the fraud was discovered.” This definition of an intervening equity was erroneous and no doubt inadvertently given by the learned court. An intervening equity is not necessarily one that “comes in after the fraud is discovered.” The rights of creditors and of members which attached after the date of the contract of membership entered into by defendant and before the fraud was discovered and notice thereof given the insurance commissioner are intervening equities. A right which has attached between the date of membership and the discovery of the fraud has intervened within the meaning of the law and is therefore an intervening equity. The defendant became a member of the corporation on May 8, 1897, and did not discover and give notice of the fraud until almost two months later, so that it was only necessary for appellant to show that the equities intervened after May 3, while under the instructions of the court the jury would be led to believe that the intervening equities, must have- attached two months later when the fraud was discovered. A number of policies had been issued and the rights- of some- creditors had attached between May 3, the date of membership, and the time when the fraud was discovered. The rights of these parties had intervened and were protected' under the rule stated.

Seventh assignment of error- sustained, judgment reversed and a venire facias de novo- awarded.


author: Mr. Justice Mestrezat,

text:
    Goff, Appellant, v. City of Philadelphia.

      Negligence — Municipalities—Streets—Sidewalks—Contributory negligence —Province of court and jury.

    In an action against a city by a. woman fifty-two years old to recover damages for personal injuries sustained by a fall on a sidewa-lk, it appeared that one week prior to the accident a plumber employed by the owner of the property in front of which plaintiff fell dug a trench- across the sidewalk. One, if not more of the witnesses, testified positively that the ditch was left unfilled and was not rammed, and that the pavement was not relaid. Other witnesses for the plaintiff did not support this testimony: One witness at least noticed the depression into* which plaintiff fell and that it had been in the same condition since the plumber left it the. week before. It appeared that the night was dark, that there was no light near the place and the. plaintiff had no prior knowledge of the condition of the sidewalk. Plaintiff testified that she was walking carefully and looking ahead as she proceeded. Held, (I) that the conflict among the plaintiff’s witnesses as to the condition of the- trench did not take the case from the jury; (2) that the question of the city’s constructive notice was for the jury; and (3) that the question of plaintiff’s contributory negligence was for the jury.
    Argued Jan. 18, 1906.
    Appeal, No. 260, Jan. T., 1905, by plaintiff, from order of C. P. No. 4, Pbila. Co., June T., 1904, No. 1,965, refusing to take, off nonsuit in case of Ellen Goff v. City of Philadelphia.
    Before Mitchell, C. J., Fell, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Carr, J.

      The circumstances of the accident are stated in the opinion of the Supreme Court.

      Error assigned was refusal to take off nonsuit.

      Ulysses S. Koons, with him Henry E. Lallou, Jr., and W. H. G. Gould, for appellant.
    The case was for the jury: Burns v. Bradford, 137 Pa. 361; Philadelphia v. Smith, 23 W. N. C. 242; McLaughlin v. City of Corry, 77 Pa. 109; Kibele v. Philadelphia, 105 Pa. 41; Rosevere v. Osceola Mills Boro., 169 Pa. 555; Lohr v. Philipsburg Boro., 156 Pa. 246; Vanderslice v. Philadelphia, 103 Pa. 102; Weed v. Village of Ballston Spa., 76 N. Y. 329; Chicago v. Fowler, 60 Ill. 322; City of Salina v. Trosper, 27 Kansas, 544; Carrington v. St. Louis, 89 Missouri, 208 (1 S. W. Repr. 240); Parsons v. Manchester, 67 N. H. 163 (27 Atl. Repr. 88); Bruch v. Philadelphia, 181 Pa. 588; Dougherty v. Philadelphia, 210 Pa. 591; Aiken v. City of Phila., 9 Pa. Superior Ct. 502; Burger v. Phila., 196 Pa. 41; Rimby v. Phila., 208 Pa. 119; Johnson v. Phila., 208 Pa. 182; Butcher v. Phila., 202 Pa. 1; Iseminger v. Water & Power Co., 209 Pa. 615.

      Charles E. Bartlett, assistant city solicitor, with him W. C. Wilson and John L. Kinsey, city solicitor, for appellee,
    cited: Burns v. Bradford City, 137 Pa. 361; Honickson v. Philadelphia, 12 Pa. Dist. Rep. 279; Boro. of Susquehanna Depot v. Simmons, 17 W. N. C. 362; Painter v. Mayor, etc., of Pittsburg, 46 Pa. 213; Reed v. Allegheny City, 79 Pa. 300; Edmundson v. R. R. Co., 111 Pa. 316; Thomas v. Railway Co., 191 Pa. 361.
    February 26, 1906:
   Opinion by

Mr. Justice Mestrezat,

This was an action by the plaintiff, the appellant here, to recover damages for injuries which she sustained by falling into an opening in the sidewalk -on Oakford street in the city of Philadelphia. At the conclusion of her testimony on the trial of the case the learned judge granted a nonsuit which he subsequently refused to take off. The court assigned.no reasons for granting the nonsuit, nor was an opinion filed setting forth any reasons why the court refused to take off the nonsuit. We are at a loss to know the learned judge’s reasons for his action, as we are clearly of the opinion that he committed manifest error in directing a nonsuit.

The appellant is a woman of about fifty-two years of age. On the evening of March 10, 1904, she left her home at 2,625 Oakford street and walked westward on the north side of the street intending to go to a trimming store on the corner of Twenty-eighth and Oakford streets. .As she was passing the premises at 2,705 Oakford street she fell into a hole in the pavement and was seriously injured. It appears from the evidence that, about one week prior to the time the appellant was injured, a plumber in the employ of the owner of the property, in front of which she fell, dug a trench or ditch from the house across the sidewalk for the purpose of making connections with the water main laid in the street. This ditch was about three or four feet deep and from one and one-half to two feet in width. It is claimed on the part of the appellant, and at the trial she introduced testimony to show, that on the completion of the plumber’s work, about one week prior to the accident, that the ditch was not refilled with dirt, that the dirt was not rammed as it should have been, and that the bricks which had been taken up at the commencement of the work were not relaid over the ditch so as to restore the pavement of the sidewalk to its former even condition. The testimony tended to show that at the time of the accident there ivas a depression in the pavement, where the ditch had been dug, from the curb to a point near the steps of the-house excepting about six inches or a foot in the middle of the pavement, that the depression was the width of the ditch and from six inches to one foot in depth.

The accident occurred between 7:30 and 8 o’clock in the evening. The appellant says it was dark and that there was no light near the place where she fell. She had no prior knowledge of the condition of the sidewalk. She says that she was walking carefully, looking ahead of her as she proceeded along the pavement, that it seemed to be very dark and that she did not see the depression in the pavement before she fell.

As has been said, it is not known why the court entered a compulsory nonsuit, but it is argued on the part of the appellee that the testimony of the appellant was very indefinite as to how the accident occurred, that some of the evidence tended to show that, at the completion of the work by the plumber, the ditch had been refilled and the pavement had been relaid at that point, and that the city had no notice, actual or constructive, of the alleged defect in the pavement. It is therefore contended on the part of the appellee that, in the language of its counsel, “ taking all the circumstances of the case, the plaintiff’s indefinite testimony and the evidence produced by her, the learned court did not err in granting a nonsuit.” It is further claimed on the part of the appellee that the appellant was not using care as she walked along the sidewalk, and that therefore she was guilty of contributory negligence.

It is true that the witnesses on the part of the appellant did not all agree as to the ditch having been refilled by the plumber, but at least one, if not more, of the witnesses testified positively that the ditch was left unfilled and was not rammed, and that the pavement was not relaid. This was sufficient to carry the question to the jury. The court is not justified in withdrawing a question of fact from the jury, as we have frequently said, because the witnesses for the plaintiff disagree. It is the province of the jury, and not that of the court, to pass upon the credibility of the witnesses and to determine which of them they will believe.

If, as contended by the appellant, a hole or depression of this size and character was left in the pavement for at least six or seven days, it was a question for the jury to determine whether the city had or had not constructive notice of it. The evidence tends to show that this is a thickly settled community'', and that many people pass along the sidewalk of that street in the vicinity where this accident occurred. The jury, therefore, might very reasonably find that if the city had done its duty the depression in the pavement would have been discovered ; and if it was known to the city it was clearly its duty to have taken the necessary precautions to protect people who had occasion to use the sidewalk at that place. The learned counsel for the appellee seems to think that unless all people who passed this point saw the depression that the city could not be charged with constructive notice of the defect. Such is not the law, but, as said in Rosevere v. Osceola Mills Borough, 169 Pa. 555, “ it is not a question whether all passers-by actually noticed the defect but whether it was noticeable. The rule as to the defect being of such a character as to be of itself notice to the authorities, does not require that every passer-by did actually notice it, but that they might have noticed it if they had consciously seen it. . . . If the hole was of such a character as to be noticeable to those who looked, it is all the law requires.” There was at least one witness and probably more who noticed the depression into which the appellant fell and, taking into consideration the size and the character of the hole, it was a question for the jury whether, if the city officers had been exercising a reasonable supervision, they would not have discovered it.

The question of the appellant’s contributory negligence was also for the jury. The rule in such cases is correctly laid down in Bruch v. Philadelphia, 181 Pa. 588, where it is said: “ The public, walking on the pavements of a large city, are not bound to exercise extraordinary care; care, according to the circumstances, is all the law enjoins. They have the right to assume the pavements are reasonably safe, and that they, by the ordinary use of their eyes, at an ordinary pace, can safely walk on them.” The appellee’s counsel manifestly misconstrues or overlooks the appellant’s testimony as to the care she exercised in walking along the pavement at the time she was injured. The appellant testified : “ It seemed to be very dark, and I was walking along carefully and I could not really see anything, as I thought it was the clear pavement. ... I did not see anything only what I thought was a clear pavement.” She further testified that she looked straight ahead of her as she walked along the pavement and that it was so dark that she could not see a step ahead of her. It is apparent under this testimony that the court below committed clear error in holding as a matter of law that the appellant was guilty of contributory negligence.

It was also suggested by the appellee’s counsel that the city was relieved from liability for damages for the injuries sustained by the appellant on the ground that the pipe was laid by a plumber who was an independent contractor. This position, however, we do not regard as well taken for the reason that, if the evidence is believed, the work had been completed by the plumber for about one week prior to the accident and thereafter' he exercised no control or supervision over the place or the work. Daring the week intervening between the completion of the work and the day the appellant was injured the city permitted the dangerous depression to remain in the sidewalk. The appellant was not injured while the pipe was being laid and the work was being done by the plumber, but after the latter had completed all that he had to do in and about the work. It was therefore incumbent upon the city, if it had notice of the depression, to have the defect removed and the pavement put in a reasonably safe condition, so. that thepublic could with safety use it.

The second assignment of error is sustained, and the judgmet is reversed with a procedendo.


author: Per Curiam,

text:
    Gochnauer, Appellant, v. Union Trust Company.

      Affidavit of defense — Escrow—Delivery.
    In an action by the grantor against the depositary of an escrow for delivery to the grantee without performance of the required conditions, an affidavit of defense denying the breach of the conditions is sufficient to prevent judgment.
    Argued Jan. 17, 1906.
    Appeal, No. 354, Jan. T. 1905, by plaintiff, from order of C. P. No. 2, Phila. Co., Sept. T., 1905, No. 1,725, discharging rule for judgment for want of a sufficient affidavit of defense in case of George C. Gochnauer v. The Union Trust Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Rule for judgment for want of a sufficient affidavit of defense.
    The averments of the statement and of the affidavit of defense are set forth in the opinion of the Supreme Court.
    The court discharged a rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of the court.

      R. W. Woods, with him L. M. Schoch, for appellant.

      James Collins Jones, for appellee.
    February 26, 1906:
   Per Curiam,

The plaintiff’s cause of action as set forth in a very long and diffuse statement amounts in brief to this, that plaintiff being the owner of a certain mill property, agreed to sell it on certain conditions, in pursuance of a plan for a combination or trust of flouring mills, and for that purpose made and delivered in escrow to an officer of the defendant company, a deed for said mill; that thereupon the defendant undertook to see that all the conditions upon which the conveyance was to become operative, should be fulfilled before the delivery of the said deed ; that the president of the defendant, being one of the promoters of the proposed combination, made certain promises to plaintiff as to the use of the moneys paid in, etc., whereby the latter was induced to deliver the deed in escrow and to accept a certain form of receipt for it, and finally that in violation of its duty under the agreement defendant had delivered the deed to the grantee without the performance of the conditions.

The affidavit of defense by the president of the defendant company denied that he was one of the promoters of the combination or that he or his company had any relation to the transaction or assumed any duty in regard to it other than as holder of the escrow in accordance with an agreement in writing and a receipt duly set forth as exhibits to the statement and the affidavit; and denied any breach of the agreement on the part of himself or the company. So far as appears the affidavit is a plain categorical denial of the cause of action set up in a statement which in itself indicates a trial upon full evidence and not on mere averments as its appropriate tribunal.

Judgment affirmed.


author: Pee Cubiam,

text:
    Chroust, Appellant, v. Acme Building and Loan Association.

      Negligence — Streets—Public street — Obstruction—Evidence.
    In an action to' recover damages for injuries sustained by a fall on land adjoining a house, no recovery can be had where the evidence fails to show that the place where the accident occurred was a public street.

      Negligence — Streets—Obstruction of sidewalk — Landlord and tenant.

    An owner out of possession of premises which are in the actual occupation of a tenant cannot be held liable for injuries sustained from a fall over an obstruction on the sidewalk, if there is no proof of an obligation to repair and notice of the necessity to do so.
    Argued Jan. 17, 1906.
    Appeal, No. 236, Jan. T., 1905, by plaintiff, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1901, No. 2,298, on verdict for defendant in case of Frank J. Chroust v. Acme Building and Loan Association.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries sustained by a fall over an obstruction on what was alleged to be a sidewalk of a public street. Before Willson, P. J.
    At the trial it app'éared'tháf plaintifTfell over a water drain pipe on land adjoining a house owned by the defendant.

      Error assigned was in giving binding instructions for defendant.

      Jere J. Crowley, with him Thomas W. Barlow and Charles C. Lister, for appellant,
    cited: Paul v. Carver, 26 Pa. 223; Patterson v. Harlan, 124 Pa. 67; Cox v. Freedley, 33 Pa. 127; Briegel v. Philadelphia, 135 Pa. 451; Mintzer v. Hogg, 192 Pa. 137; Lohr v. Philipsburg Borough, 156 Pa. 246; Duncan v. Philadelphia, 173 Pa. 550; Dutton v. Lansdowne Borough, 198 Pa. 563; Falls v. Reis, 74 Pa. 439; Trutt v. Spotts, 87 Pa. 339; Transue v. Sell, 105 Pa. 604; In re Pearl Street, 111 Pa. 565; Dobson v. Hohenadel, 148 Pa. 367; Firmstone v. Spaeter, 150 Pa. 616; Bliem v. Daubenspreck, 169 Pa. 282; Fitzell v. Phila., 211 Pa. 1.

      Ira J. Williams, with him A. J. Wilkinson and Alex. Simpson, Jr., and Francis Skunk Brown, for appellee.
    February 26, 1906:
   Pee Cubiam,

The learned’ judge at the trial’ directed a verdict for defendant on several' grounds, among which were, first, that there was no sufficient evidence that Retta street, the place of the accident, was a public street, and, therefore, no evidence to show any duty of the defendant to the plaintiff in regard to the obstruction over which he- fell. And, secondly, that even conceding defendant’s title to the center of the street there was no evidence that the obstruction existed at the time defendant leased the premises to- Kauffman. Even if the obstruction was one which the owner in any event was bound to remove,, an owner out of possession of premises which are in the actual occupation of' a tenant cannot be held liable without proof of an obligation to repair and notice of the necessity of doing’ so: Lindstrom v. Penna. Co., 212 Pa. 391. There was no such evidence in this case.

Judgment affirmed..


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    Mahoney v. Philadelphia Rapid Transit Company, Appellant.

      Negligence — Street railways — Passengers—Open summer cars — Protection 0f passengers — Running chains.

    In an action by a passenger against a street railway company to recover damages for personal injuries sustained while alighting from a car, it appeared that the defendant operated open summer cars on a double-track railway. These cars were equipped on both sides with short chains running from post to post inclosing the ends of the passageway between the seats. The chains were ordinarily left hanging down, and were only put up and into use when the tracks approached each other in the center of the highway, and it was necessary to protect passengers from descending on the left-hand side of the car, and being run over by cars on the other track. It was not shown that the chains were used for any other purpose, or that they were ever put up on the right hand-side to protect passengers from danger on the highway. At the time of the accident the car in which plaintiff was riding was' stopped in such a position that a portion of the car extended along a ditch or gutter on the right-hand side of the roadway. Plaintiff attempted to alight immediately opposite the place where she had been sitting, and fell into the ditch. If she had moved a step or two along the running board she could have alighted safely. The negligence alleged in the statement of claim was the improper stopping of the cars at the point in question. The trial judge eliminated this ground as a question in the case, and of his own initiative left it to the jury to determine whether it was or was not negligence to fail to use the chain on the right-hand side of the car at the point in question. Held, that a judgment for plaintiff should be reversed.
    Mesteezat, J., dissents.
    Argued Jan. 18, 1906.
    Appeal, No. 220, Jan. T., 1905, by defendant, from judgment of C. P. No. 2, Phila. Co., March T., 1904, No. 1,830, on verdict for plaintiff in case of Jeremiah F. Mahoney and Catharine M. Mahoney, his wife, v. Philadelphia Rapid Transit Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Sulzberger, P. J.
    The facts relating to the accident are stated in the opinion of the Supreme Court.
    The court refused binding instructions for defendant.
    Verdict for Catharine M. Mahoney for $3,500 and for Jeremiah F. Mahoney $853. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      Thomas Leaming, with him Thad. L. Vanderslice, for appellant.
    That defendant is not responsible for the peculiarities of the road upon which a passenger alights from a street car, was decided by this court in Keator v. Scranton Traction Company, 191 Pa. 102. See also Scanlon v. Philadelphia Rapid Transit Co., 208 Pa. 195; Bland v. Roxborough, etc., Ry. Co., 13 Pa. Superior Ct. 93.

      John A. Ward, for appellee.
    While the failure to stop even with the platform may not have been negligence, the misleading of plaintiff by the warning chains on the safe side, so that she alighted from the unsafe side, was undoubtedly a fact to be submitted to the jury, and they have found by their verdict that it was negligence: Philadelphia City Passenger Ry. Co. v. Hassard, 75 Pa. 867.
    February 26, 1906:
   Opinion by

Mr. Justice Potter,

The defendant company in this case operated a system of double-track electric railway upon the old York road. At certain points the tracks are laid close together, in the usual way, in the central part of the road, while at other places they diverge and occupy the sides of the highway, and at such points the central portion of the road is left as the main driveway for other vehicles.

Open summer cars were in use upon the railway at the time when the accident occurred. As is well known, passengers enter and leave these open cars by means of a running board extending along the sides. Wherever the double-track system is in use it is a matter of common observation that means are used to prevent passengers from leaving the cars upon the left-hand side, as they would thereby be put in danger from a car approaching upon the opposite track. For this purpose a sliding bar running the length of the car is sometimes used, or short chains running from post 'to post and closing the ends of the passageway between the seats, answer the same purpose. In the present case such chains were employed. As the cars are reversible, bars or chains are provided for both sides of the car, but the side left open for the use of the passengers is, naturally and properly, the right-hand side of the car, that being nearest the sidewalk wherever double tracks are laid.

On the evening of September 20, 1903, after dark, one of the defendant’s cars, south bound, upon which the plaintiff was riding, stopped at a point known as Seventieth avenue. There was a ditch or gutter at the side of the roadway at that point, across which a bridge had been thrown. In coming to a standstill the motorman did not bring the rear of his car quite even with the end of the bridge. But this fact was apparently not noticed by Mrs. Mahoney, for, instead of taking a step or two along the running board, she attempted to alight immediately opposite the place where she had been sitting, and consequently stepped into the ditch and was injured.

The negligence complained of at the trial was not the failure of the motorman to bring the rear of his car to a point even with the end of the bridge, for it was conceded that, for the purposes of this case, the defendant company could not be held guilty of negligence in thus stopping the car, and this question. was entirely eliminated from the case by the trial judge. He. said to the jury : “ If the car for any reason had its head at the middle of that platform, a man could not complain because he could not get into the back seat from the bridge ; and, moreover, he could not complain about getting off. There was no duty upon the company to align its car with that bridge.” But the learned judge went on to say to the jury that the only contingency upon which he could see that the plaintiff had any right to recover was, that the defendant company might be found guilty of negligence in failing to put up the chains upon the right-hand side of the car where the plaintiff got off. He seemed to think that some duty rested upon the company to make use of a chain at that particular time and place, to deter the plaintiff from getting off upon the right-hand side of the car. We are not able to find in the evidence anything upon which to base the suggestion that the chains, as provided by the company, had any other purpose than that of guarding passengers against the danger of being struck by a car coming from the opposite direction, while attempting to alight from the left-hand side. The theory advanced by the court was that the unused chains on the right-hand side of the car should have been put at the moment to a new use, and one not contemplated or intended by the company. This suggestion seems to have originated with the learned trial judge, as no mention of the use of the chains in any way whatever is made in the statement of claim filed on behalf of the plaintiff. Nor is there any intimation therein that the defendant company was guilty of any negligence in failing to interpose the chain as a means of deterring passengers from alighting on the right-hand side of the car.

The act of negligence charged in the declaration is that of stopping the car when the forward part only was opposite or even with the platform, while the rear part of the car was yet opposite the ditch. But, as we have already pointed out, the trial judge declined to submit the case to the jury under this allegation. The only tiling which he left to the jury to decide was whether or mot what he termed the “ unsafe side ” had the chains down, and that therefore a warning which .should have been supplied was lacking. But clearly, under the evidence, the right-hand .side of the car cannot be deemed an unsafe side from which to alight. Under ordinary circumstances it is obviously the safe and prudent thing for a passenger to leave the car upon the right-hand side. At the time of the accident, and under the particular circumstances, i't was perfectly safe for the passengers to alight from .all of the -seats in front of that occupied by the plaintiff. If she had taken a single step forward before stepping from the running board, she would have alighted in safety. If there was any duty -upon the defendant company under the circumstances, i-t would have been that of giving warning at the precise moment of leaving the car. To this end no chain was necessary, as a simple word from the conductor would have been all that was required. The chain was not intended for any such momentary purpose. Any such use of it would have required that it be put up just before the car stopped, and kept in place until the car passed this particular point. We do not find anything in the evidence to justify the theory that the chains were intended to be opened and closed opposite each row of seats from time to time, as a means of warning passengers against alighting at places where irregularities in the surface of the roadway may have existed. This was manifestly not the purpose for which the chains were supplied ; their office was a more permanent one, and was to prevent passengers from dismounting upon the side next to the adjoining track, with the attendant peril of stepping in the way of another car.

As the case was submitted to the jury only upon a theory as to the use of the chains, which was neither suggested nor charged as negligence in the statement of claim, and was not supported in any way by the evidence, the specification of error is sustained and the judgment is reversed and is here entered for the defendant.

Mestrezat, J., dissents.


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    Engle, Appellant, v. Betz.

      Promissory notes — Judgment note — Possession of note — Evidence—Decedents’ estates — Province of court and jury.

    In an action of assumpsit by an executrix there was evidence that the plaintiff’s testatrix had made a .loan to a corporation of which the defendant was treasurer, and that the defendant had agreed to assume this indebtedness, and gave to testatrix a judgment note of his own for the amount which had been loaned to the company. At the trial the note was found to be in the possession of the defendant. There was also evidence that after the note was given, defendant had assigned to the testatrix an interest in his father’s estate. The assignment recited that it was made to secure the payment of a loan made to defendant by testatrix in a sum which was the same as the amount of the judgment note, and of the original loan to the corporation. The defendant was not permitted to testify, and there was no other evidence in the case. The court entered judgment for defendant on a question of law reserved. The six judges who heard the case on appeal were equally divided in opinion, and the judgment was affirmed.
    Argued Jan. 18, 1906.
    Appeal, No. 339, Jan. T., 1905, by plaintiff, from judgment of C. P. No. 4, Phila. Go., Sept. T., 1903, No. 3,240, for defendant non obstante veredicto in case of Emma B. Engle, Executrix of the Estate of Mary B. Engle, deceased, v. Harry M. Betz.
    Before Mitchell, C. J., Fell, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit to recover the amount of an alleged loan.- Before Audenried, J.
    The court charged as follows:
    This ease is before you in a very unsatisfactory and fragmentary shape. The plaintiff’s testatrix, Mary B. Engle, is dead. That, of course, seals her mouth. It is impossible for her to come here and tell us what she knows about the transaction out of which this suit has arisen. And her death has sealed the mouth of the defendant, Harry M. Betz, as to any transactions that took place between him and Mary B. Engle during her lifetime. The law regards the temptation to twist and distort facts to be so great in the case of a single survivor to a transaction that in the interest of truth and justice it will not permit one party to a contract or transaction to testify to anything transpiring in relation to it during the lifetime of the other party where that other party is deceased.
    As I say, the case comes before you in an unsatisfactory and fragmentary way. I have been in some doubt as to whether there is enough evidence to take the case to you for consideration at all. I have determined on reflection, however, to reserve the Question as to whether any legal evidence which would warrant a verdict in favor of the plaintiff has been presented here, and, subject to that reservation, I leave you to grapple with the testimony that has been produced and tell us what you think about it.
    The plaintiff’s claim appears to have had its inception in a loan made by Mary B. Engle to the Bluegrass Land Company in 1899. It is conceded that Mary B. Engle loaned that company $3,500. At that time the defendant, Harry M. Betz, was the treasurer of the company. It is conceded that for reasons which are unimportant, it was agreed between the defendant and Mary B. Engle in January, 1901, that the defendant would assume the indebtedness of the Bluegrass Land Company to the deceased. Mr. Peace told you that such was the fact when he argued the case to you. In pursuance of this agreement, on January 14, 1901, the defendant gave Mary B. Engle a judgment note for $3,500 with interest. And if that judgment note were produced by the plaintiff in this case, the executrix of Mary B. Engle, the case would be veiy much simpler than that which the facts present. The note, however, is not in the custody or possession of the plaintiff. It is found in the hands of the defendant. The defendant’s counsel admits that the defendant made a note on January 14, 1901, and at that time assumed or agreed to become responsible for the indebtedness of the Bluegrass Land Company to Mary B. Engle and that on that day he owed the plaintiff’s testatrix $3,500. He suggests, by way of defense, however, that whatever may have been the obligation of the defendant to the deceased at that time, it is not to be regarded as any longer existing. He asks you to infer from the fact that the defendant holds the note, given as evidence of the debt, that the debt was paid, or discharged in some way, either paid or forgiven. I am bound to tell you that if there was nothing else in the case except the single fact that the defendant had possession of his obligation to pay this claim, the law would raise a presumption that he was quit of his liability. If there was nothing else in the case except this judgment note in possession of the defendant, ! think it would be my duty to instruct you to find a verdict against the plaintiff and in favor of the defendant on the legal presumption that the debt evidenced by that note is extinguished. But there are other facts in the case.
    The defendant, on May 6, 1901, executed to Mary B. Engle an assignment of his interest in his father’s estate, which is duly acknowledged and which has since been recorded. The purpose of the execution of this assignment, according to its terms, was that it might secure the payment of a loan made to the defendant by Mary B. Engle in the sum of $3,500. If the loan herein referred to. is identical with the loan that Máry B. Engle made to the Bluegrass Land Company, the obligation to pay which was assumed by Harry M. Betz on January 14, 1901, then this assignment or transfer of the defendant’s interest in his father’s estate to her for the purpose of securing its repayment is evidence that that indebtedness was at that time still existing, that he still owed her the money, and it is very persuasive evidence. Of course, if it had reference to some loan which she had contracted to make him and which had not yet been made, that is, if it had reference to some other loan than the loan I have referred to, it would have no effect as evidence whatever in this case in the way of overcoming the presumption that the judgment note was discharged, arising from the fact that Betz had possession of it. Is there any evidence to indicate that there were other dealings between Mary B. Engle and the defendant than that which arose out of her loan originally made to the Bluegrass Land Company ? I know of none at all. The parties to this assignment are the same as the parties to the judgment note. The amount of debt which is secured by this assignment is identical with the amount of the debt owing on the judgment note. It is a question as to the identity of the loan referred to in the assignment, with the indebtedness which it is admitted Harry M. Betz on January 14, 1901, undertook to be responsible for to Mary B. Engle. That is a question of fact I am going to leave to you. You must determine that question for yourselves. If you think there is no identity between the indebtedness or loan of $8,500 then you may disregard this assignment as having any effect as evidence to indicate that the indebtedness that it was admitted Betz assumed was still existing when that transfer was made. If, on the contrary, you regard this, evidence of indebtedness of $8,500 as referring to that same debt, then this assignment is, as I have said, very persuasive evidence that when he executed this instrument to Mary B. Engle, Betz still owed her the amount of money he had undertaken to pay her, that he had not extinguished the debt by payment and that she had not forgiven it to him. There was nothing to weaken the effect of this assignment or transfer as evidence of the existence of the debt for whose recovery the plaintiff has sued this defendant, produced in the shape of a check or any other form, to indicate that Mary B. Engle had discharged Harry M. Betz from what is admitted he undertook to become responsible for to her. The only support for the theory that he is discharged from that obligation is the presumption of payment arising from his possession of his judgment note. If you believe this debt that Betz assumed to pay Mary B. Engle is still existing, in other words, that it has not been discharged by the defendant, the plaintiff is entitled to a verdict for the full amount of her claim with interest on it from the date of January 6, 1901. Back of that you must not go in your computation of interest. The judgment note evidences the settlement of the terms of the arrangement under which Betz became responsible for the repayment of Miss Engle’s loan to the Bluegrass Land Company.
    You understand that your verdict will be taken subject to the reservation of the question as to whether there is any legal evidence whatever which will justify the submission of the case to you.
    Verdict for plaintiff for $4,345.85.
    The defendant subsequently made the following motion:
    And now to wit: February 13, 1905, the defendant by his attorney, William H. Peace, moves the court to enter judgment for the defendant non obstante veredicto, on the point reserved, whether under all the evidence, the verdict should not be for the defendant.
    The court entered judgment for defendant on point reserved non obstante veredicto.

      Error assigned was in entering judgment for defendant non obstante veredicto.

      W. A. Gray, for appellant.

      William H. Peace, for appellee.
    February 26, 1906:
   Per Curiam,

This case, as tbe learned judge remarked at the trial, was presented to the jury in a very unsatisfactory and fragmentary shape and the condition was not improved by the shifting and not altogether consistent forms in which the question was reserved on which judgment was entered for the defendant non obstante veredicto. The judges of this court who heard the argument being equally divided, the judgment is affirmed.