author: Mb. Justice Mestbezat,'

text:
    Noden, Appellant, v. Verlenden Brothers, Incorporated.

      Negligence—Master and servant—Duty to instruct—Infant—Dangerous machine.

    Where a boy sixteen years of age is put to work at a machine the belt of which had to be replaced while the machine was in motion, and it appears that the boy received no instructions as to how to perform this duty, but is told in emphatic and profane language by the superintendent after the latter had replaced the belt three times, that he would have to learn to put it on himself, and the boy at the first attempt, is injured, the employer is liable in damages for the injuries sustained.
    Argued Jan. 25, 1905.
    Appeal, No. 254, Jan. T., 1904, by plaintiffs, from order of C. P. No. 3, Phila. Co., March T., 1902, No. 4212, refusing to take off nonsuit in ease of Albert No-den and Howard E. Noden, by Albert Noden his next friend v. Yerlenden Brothers, Incorporated.
    Before Mitchell, C. J., Fell, Blown, Mestbezat and Elkin, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before McMichael, J.
    The facts appear by the opinion of the Supreme Court.

      Error assigned was refusal to take off nonsuit.

      Thomas James Meagher, for appellants.
    The case was for the jury: Welsh v. Butz, 202 Pa. 59; Patterson v. Pittsburg, etc., R. R. Co., 76 Pa. 389; Kehler v. Schwenk, 151 Pa. 505 ; Williams v. Clark, 204 Pa. 416 ; Rummell v. Dilworth, 111 Pa. 343; Doyle v. Pittsburg Waste Co., 204 Pa. 618; Dynes v. Bromley, 208 Pa. 633; Creachen v. Bromley Bros. Carpet Co., 209 Pa. 6.

      George L. Crawford of Crawford ¿f- Loughlin, for appellee,
    cited: Fletcher v. Traction Co., 190 Pa. 117; Rummell v. Dilworth, 131 Pa. 509; Melchert v. Brewing Co., 140 Pa. 448 ; Allison Mfg. Co. v. McCormick, 118 Pa. 519; Gillen v. Rowley, 134 Pa. 209; Greenway v. Conroy, 160 Pa. 185; Kaufhold v. Arnold, 163 Pa. 269 ; Baldwin v. Urner, 206 Pa. 459 ; Penna. R. R. Co. v. Bell, 122 Pa. 58; Connerton v. Del. & Hudson Canal Co., 169 Pa. 339 ; Custer v. R. R. Co., 206 Pa. 529; Scanlon v. Phila. R. T. Co., 208 Pa. 195; Welsh v. Butz, 202 Pa. 59; Patterson v. R. R. Co., 76 Pa. 389; Williams v. Clark, 204 Pa. 416; Kehler v. Schwenk, 151 Pa. 505; Doyle v. Pittsburg Waste Co., 204 Pa. 618; Dynes v. Bromley, 208 Pa. 633.
    March 6, 1905:
   Opinion by

Mb. Justice Mestbezat,'

The plaintiff, a boy of sixteen, was injured while in the employ of the defendants operating a garnett machine, which is used for tearing up the waste accumulated in making cotton and woolen goods. His duties required him to feed the. machine by placing the waste upon the apron and to remove it after it had passed through the machine and fallen to the floor. A rope belt ran from the speed wheel, near the bottom of the machine, to the small; cone wheels on the hub of the large cylinder about the middle of the machine. There were three wheels of different diameters on the hub of the cylinder and the belt was tightened or slackened, thereby accelerating or diminishing the speed of the machine, by placing the belt on the larger or lesser wheels. The day the plaintiff began operating the machine the belt came off of one of the cone wheels and he notified the underboss who replaced it on the wheel. The second day thereafter it again came off. He then notified the superintendent who replaced it and admonished the boy that he would have to learn to put the belt on himself. The morning of the fourth day of the boy’s employment, July 8, 1901, the belt again left the cone wheel and was replaced by the superintendent who again in very emphatic and profane language told the boy that he would have to learn to put the belt on himself. During the afternoon of that day, the belt again came off the wheel and the boy, pursuant to the former instructions and command of the superintendent, attempted to replace it when his hand was caught between the belting and the cone wheel and was badly injured.

Prior to this engagement the boy had not operated a machine of this character and was ignorant of the mode of operating it. The instructions he received before entering upon his work are shown by his testimony as follows: “ Q. Did you receive any instructions, and if so, tell us what you did receive, from anybody with respect to the use of this machine? A. I received about ten minutes’ instructions from Mr. Heaps (the superintendent). Q. What did he tell you ? A. He told me how to feed this machine, and he told me not to oil it nor clean it while in running. Q. Anything else? A. No, sir. Q. Did he give you any instructions with respect to stopping and starting the machine? A. No, sir.” Subsequently on cross-examination he said that the superintendent “ showed me about ten minutes how to run the machine,” but this testimony must be considered in connection with his testimony in chief in which he states what his instructions were.

We think the learned judge erred in granting á nonsuit and withdrawing the case from the jury. There was no opinion filed and we are not advised of his reasons nor of those of the cpurfc in banc in declining to take off the nonsuit. We will not refer to all of the many recent decisions of this court in which the duty of the employer to instruct youthful and inexperienced employees engaged in operating dangerous machines is discussed and determined. Two or three cases will suffice. In Rummel v. Dilworth, 131 Pa. 509, Williams, J., delivering the opinion, says : “ If the business is one with which he is not familiar, he has a right to expect that its dangers will be pointed out to him, and that he will be instructed in those things necessary for him to know in order to his own safety. He cannot be held to assume the risk of dangers of the existence of which he has no knowledge. In the case of young persons, it is the duty of the employer to take notice of their age and ability, and to use ordinary care to protect them from risks which they cannot properly appreciate, and to which they should not be exposed. The duty in such cases to warn and instruct grows naturally out of the ignorance or inexperience of the employee, and it does not extend to those who are of mature years, and who are familiar with the employment and its risks.” This doctrine is reiterated in Kehler v. Schwenk, 151 Pa. 505, and in the opinion, delivered by Green, J., it is said: “ It will be seen from this decision (Rummel v. Dilworth), that in actions by young persons against their employers, we recognize as sources of liability, the inexperience of the servant, and the want of specific instruction as to the dangers of the service, and we suspend the rule that the servant assumes the risk of the service when he has not knowledge by experience, or by specific instruction.” And in Tagg v. McGeorge, 155 Pa. 368, this court, speaking through Mr. Justice Dean, said : “ In the text-books, and with rare exceptions in all the adjudicated cases, the rule laid down in substance is : When young persons without experience are employed to work with dangerous machines, it is the duty of the employer to give suitable instructions as to the manner of using them, and warning as to the hazard of carelessness in their use; if the employer neglects this duty, or if he give improper instructions, he is responsible for the injury resulting from his neglect of duty.”

Howard Noden, the plaintiff, was about sixteen years of age when the defendants put him to work on this machine. This was his first experience in operating a garnett machine and he was wholly without knowledge as to his duties in performing the service. There can be little doubt that replacing the belting on the cone wheel or removing it from one wheel to the other in changing the speed of the machine while it is in motion is a dangerous employment for one unfamilar with, and uninstructed, how to do it. Hence, the youth and inexperience of the plaintiff imposed upon the defendants the duty of giving him proper instructions as to the risks incident to the performance of the work and how to avoid them, as well as instructions as to the manner in which he could perform the service with safety to himself. The duty to instruct is imperative unless the child not only knows the danger incident to a discharge of his duties, but also appreciates the danger and knows how to avoid it: Welsh v. Butz, 202 Pa. 59.

Whether such instructions were given, and if given, were proper and sufficient, were questions for the jury. We have quoted the plaintiff’s testimony on the subject. If that is credible, the instructions given him were confined to the manner of feeding the machine with the admonition not to clean or oil it when in motion. So far as the testimony discloses, the belt had to be replaced while the machine was in motion, and the plaintiff received no instructions as to how to perform that duty. It is true he saw the superintendent and his assistant replace the belt, but that this gave him very little information as to the manner of performing the service safely appears from the fact that he was injured the first time he attempted to replace the belt. The act of replacing the belt by a person skilled in the work would not of itself necessarily be adequate instructions to a youth who had no knowledge of the machine or the mode of operating it. If he is expected to perform a service of this character, certainly hazardous when performed with the hand, his instructions should not be limited to seeing the act done, but should be sufficient to enable one of his age and experience by the exercise of care to do the work with safety to himself.

It is claimed by the defendants that the act of replacing the belt on the cone wheel was not dangerous, that the plaintiff was fully instructed how to do it; and that his injuries resulted from his own carelessness. If these are the facts in the case, the defendants are not liable in this action. Bnt whether they are mere allegations or facts, is clearly a question for the jury as the case was presented at the trial in the court below.

The judgment is reversed with a procedendo.


source: Caselaw Access Project

author: Mr. Justice Fell,

license: Public Domain

text:
    Fox, Appellant, v. Seabury.

      Contract—Consideration—Failure of consideration.

    In an action to recover one half of commissions for sale of real estate it appeared that the defendant was the agent of the owner for the sale of the real estate. Plaintiff claimed that he was entitled to one half of the commissions by reason of an agreement between himself and defendant. Defendant offered testimony which showed that plaintiff was the confidential agent and adviser of the owner, and that when he learned of the owner’s agreement with defendant, he came to the latter and threatened that unless he was given a share of the commissions stipulated for, he would procure the cancellation of the agreement, and prevent the acceptance of any purchaser that might be secured; that the sole inducement for the making of the agreement was the plaintiff’s threat that by the unwarranted use of his personal influence with the owner, he would prevent the defendant from deriving any advantage from the agreement. Held, that plaintiff was not entitled to recover.
    Argued Jan. 25, 1905.
    Appeal, No. 336, Jan. T., 1904, by plaintiff, from decree of C. P. No. 1, Phila. Co., Dec. T., 1903, No. 1000, dismissing bill in equity in case of George Fox v. James M. Seabury, A. S. L. Shields, and the Fidelity Trust Company et al., Trustees of Andrew M. Moore, deceased.
    Before Mitchell, C. J., Fell, Becwn, Mestjrezat and Elkin, JJ.
    Affirmed.
    Bill in equity for an injunction to secure the payment to plaintiff of one half of a judgment.
    The opinion of the Supreme Court states the case.

      Error assigned was the decree of the court dismissing the bill.

      Henry J. Scott, with him W. Wilson Oarlile, for appellant.

      E. O. Michener, with him A. S. L. Shields, for appellees,
    cited: Penna. R. R. Co. v. Flanigan, 112 Pa. 558; Everhart v. Searle, 71 Pa. 256; Addison v. Wanamaker, 185 Pa. 536 ; Finch v. Conrade, 154 Pa. 326; Rice v. Davis, 136 Pa. 439; Kauffman v. Keiper, 5 Northampton, 244.
    March 6, 1905:
   Opinion by

Mr. Justice Fell,

The material allegations in the bill are that the defendant, Seabury, was the agent of Andrew M. Moore for the sale of certain real estate; that in consideration of the plaintiff’s promise to co-operate with him to secure a purchaser he agreed to pay the plaintiff one half of the commissions he should receive, and that he assigned to him a one half interest therein; that a purchaser was secured and in an action against the executors of the will of Andrew M. Moore, Seabury recovered a judgment for §19,527.66 for commissions earned; that this judgment was assigned by him to another of the defendants with knowledge by the assignee of the plaintiff’s equitable interest in it. The prayers are for an injunction to restrain the collection of the judgment by legal process, its assignment by the use plaintiff, and its payment by the executors, and for an order to pay the fund into court for distribution.

The substance of the answer of Seabury in denial of the plaintiff’s right is that the agreement to divide commissions was without consideration, that no services were rendered by the plaintiff and that he did nothing to aid in effecting a sale. It is averred that the plaintiff was the confidential agent and adviser of Andrew M. Moore and, having learned of this agreement with Seabury, came to the latter and threatened that unless he was given a share of the commissions stipulated for he would procure the cancellation of the agreement and prevent the acceptance of any purchaser that might be secured; that the sole inducement for the making of the agreement'was the plaintiff’s threat that by the unwarranted use of his personal influence with Moore, he would prevent Seabury from deriving any advantage from the agreement.

These averments were fully sustained by the. testimony and the court found that the plaintiff was regarded by the parties as the agent of Moore, who had no knowledge of his agreement to share commissions; that all he did in the matter was to procure at the instance of the purchaser an extension of time for the completion of the contract to buy, and “ that he never did anything to help Seabury earn the money for which the latter now has judgment in court.” It follows from these findings that the bill was properly dismissed.

The decree is affirmed at the cost of the appellant.


author: Mr. Chief Justice Mitchell,

text:
    Wallace v. Henderson, Appellant.

      Negligence—Master and servant—Rigger—Breaking of rope.

    In an action by a rigger against his employer to recover damages for personal injuries sustained by the breaking of a rope, where the negligence charged was in furnishing tools which were not safe and proper for use in combination, the case is for the jury, where the evidence shows that the rope in question though spliced and the block through which it ran, were apparently both in good condition and safe tools for appropriate work, but not adapted to be used together, the rope being too large to pass safely through the block; that when the splice reached the block it jammed, and under the strain from the engine, the block split and the rope instead of running smoothly in the groove of the sheave slipped off and was cut in two by the sharp edge of the broken block.
    In an accident case it is not error to refuse to affirm a point of defendant setting forth the negligence of a fellow servant as the cause of the accident, without any reference in the point to the fact disclosed by the evidence, of a concurrent act of negligence on the part of one of the defendants.
    Not decided whether the concurring negligence of a fellow servant with the negligence of the master will, or will not, relieve the master of liability.
    Argued Jan. 26, 1905.
    Appeal, No. 294, Jan. T., 1904, by defendants, from judgment of C. P. No. 1, Piula. Co., March T., 1903, No. 1775, on verdict for plaintiff in case of William F. Wallace, v. Henderson & Brother.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Beitler, J.
    At the trial it appeared that plaintiff, a rigger in the employ of the defendants, was injured on December 20, 1,902, by the breaking of a rope while working in and about the works of the Edison Light Company at Twenty-seventh and Christian streets in the city of Philadelphia. The allegation of negligence was that the defendant did not supply a block sufficiently large to enable a rope which had been spliced to pass through the block without being subjected to such a strain as to break. The circumstances of the accident appear by the opinion of the Supreme Court.
    Defendants presented these points:
    1. Under all the evidence the verdict must be for the defendants. Answer: Refused. [1]
    3. Where the cause of the accident was the gross carelessness of one of the plaintiff’s coworkmen, in that he rigged a fall in such a manner as to cause the rope to break or cut, knowing it would cut and break, the defendants are not responsible and your verdict should be for the defendants. Answer: Refused. [2]
    Verdict and judgment for plaintiff for $15,000. Defendants appealed.

      Errors assigned were (1, 2) above instructions, quoting them.

      John Gr. Johnson, with him M. W. Sloan, for appellants.
    There was no duty upon the part of the employers to furnish additional blocks until they knew they were required, because of the happening of something after the first supply had been made. The duty of notification was upon the employees. Their failure to perform it was the negligence of a coemployee, for which the employers were not responsible to a fellow workman.
    Even if it be the duty of the employer to inspect from time to time in order that he may ascertain whether accidents have occurred, and if he is not entitled to rely upon the employees to report such accidents, there was no such duty in the present case: Ryan v. Cumberland Valley R. R. Co., 23 Pa. 384; Baker v. Allegheny Valley R. R. Co., 95 Pa. 211; Mullan v. P. & S. M. S. S. Co., 78 Pa. 25; Prescott v. Engine Co., 176 Pa. 459 ; Honifius v. Engineering Co., 196 Pa. 47 ; Dyer v. Bridge Co., 198 Pa. 182; Finnerty v. Burnham, 205 Pa. 305 ; Kitchen v. Riter-Conley Mfg. Co., 207 Pa. 558; Phila. Iron, etc., Co. v. Davis, 111 Pa. 597; McClain v. Henderson, 187 Pa. 283.

      Thomas Learning, with him John R. K. Scott, for appellee.—
    Where a servant is injured by the negligence of the master in supplying an unsafe tool, his right of action exists even if there is another joint tort feasor, to wit: another servant. The master and the other servant are jointly and severally liable for the whole consequence.
    In the only Pennsylvania case in which the point has ever been suggested, the assignment of error was abandoned upon the argument as worthless: Kaiser v. Flaccus, 138 Pa. 332.
    While the Pennsylvania decisions are silent on this subject, yet the learned trial judge is fully sustained by analogy.
    Thus, the contributory negligence of a driver will not be attributed to a person in his vehicle : Borough of Carlisle v. Brisbane, 113 Pa. 544; Finnegan v. Foster Township, 163 Pa. 135.
    Nor will the contributory negligence of the driver of a street car at a steam railroad crossing be attributed to a passenger in the street. car: O’Toole v. Pittsburg, etc., R. R. Co., 158 Pa. 99.
    Nor will the contributory negligence of a parent be attributed to a child when the child sues for its own injuries: Kay v. Penna. R. R. Co., 65 Pa. 269.
    Nor will the negligence of a tenant in failing to notify a gas company of an escape of gas be imputed to the landlord in his action against the gas company for damages to the premises : Northern Liberties Gas Co. v. Breslin, 4 Walk. 384.
    The decisions of Pennsylvania on the subject of defects in hoisting apparatus follow. Elevator cases are omitted. They, however, show a like tendency to hold defendants to an increasingly strict obligation: Mullan v. P. & S. M. S. S. Co., 78 Pa. 25; Baker v. Allegheny Valley R. R. Co., 95 Pa. 211; Prescott v. Engine Co., 176 Pa. 459; McClain v. Henderson, 187 Pa. 283; Honifius v. Engineering Co., 196 Pa. 47; Dyer v. Pittsburg Bridge Co., 198 Pa. 182; Finnerty v. Burnham, 205 Pa. 305; Kitchen v. Riter-Conley Mfg. Co., 207 Pa. 558.
    March 6, 1905:
   Opinion by

Mr. Chief Justice Mitchell,

The rope though spliced, and the block, were apparently both in good condition and safe tools for appropriate work, but not adapted to be used together, the rope being too large to pass safely through the block. Hence, when the splice reached the block it jammed, and under the strain from the engine, the block split and the rope instead of running smoothly in the groove of the sheave, slipped off and was cut in two by the sharp edge of the broken block, and started the chain of causes which produced the accident. The negligence charged, therefore, was in furnishing tools which were not safe and proper for use in combination. The evidence made this clearly a question for the jury.

The second assignment of error is the refusal to affirm defendants’ point that “ where the cause of the accident was the gross carelessness of one of the plaintiff’s coworkmen, in that he rigged a fall in such a manner as to cause the rope to break or cut, knowing it would cut and break, the defendants are not responsible and your verdict should be for the defendants.” This point could not have been affirmed as it stood, because it did not fully and accurately represent the case as presented by the evidence. It appeared that whether dangerous or not when used with what is known as a “ straight lead,” as to which the testimony is not entirely clear, the rope and block had in fact been so used without accident up to the day of plaintiff’s injury. But on that day the workman in charge had substituted what is known as a “ crooked lead,” that is a pull around a corner or angle instead of a straight pull, necessitating the passage of the rope through a block at the angle. All the witnesses agreed that such “ crooked lead ” subjected the rope to a severer strain and hence was more dangerous. The act of the fellow workman in making this change is the “ gross carelessness ” mentioned in appellants’ point. But the point was defective in overlooking the testimony that the change was made necessary by the act of one of the appellants themselves on that morning in taking away the engine which had been used up to that time, and thus compelling resort to another engine which owing to its position could only be used with a “ crooked lead.” The statement in the point, therefore, that the “ cause of accident was the gross carelessness of one of plaintiff’s coworkmen ” was a partial and incomplete statement of the case as it stood on the evidence, and could not have been affirmed.

Whether if the point had fully covered the case it could have been affirmed is not altogether clear. It is founded- on the view that where injury occurs to an employee through the joint negligence of the employer and a coemployee the former is not liable. The current of authorities is distinctly the other way. In Pennsylvania the point does not seem to have been expressly decided. Appellants cite Philadelphia Iron and Steel Co., v. Davis, 111 Pa. 597. In that case a heavy fly wheel which was driven in contact with a cog wheel on a shaft after being in use two or three years showed a tendency to work loose and slide along the shaft. To remedy this defect two clamps were put on the wheels to keep them in contact. On -the day of the accident one of the clamps broke and flew off with great force, but fortunately injured no one. The engineer, without reporting the break to the superintendent of the mill, continued the operation, until a few hours later the other clamp burst and the plaintiff was injured. The trial judge charged that if the wheel was a dangerous appliance with the two clamps, of which there was evidence, the fact that it was more so with only one would not relieve the employer from liability. This was held to be error, this court saying that the breaking of the first clamp was notice to the engineer that the whole strain which had been borne by the two clamps would now come on the single remaining one, and “ under such circumstances we cannot resist the conclusion that the proximate cause of the plaintiff’s injury was the carelessness of a fellow workman.” The decision is thus put upon the ground that the negligence of the employer and the coemployee were not strictly concurrent but were separated by such an- interval of time and change of conditions as made that of the employer a remote and not a proximate cause of the injury. The case, however, as far as it goes, leans towards appellants’ view.

On the other hand, in Kaiser v. Flaccus, 138 Pa. 332, the trial judge expressly charged that “ the concurring negligence of a fellow servant with the negligence of the master will not relieve the master of liability,” and the case was affirmed per curiam without further comment on this point than that the assignment of error upon it was “ practically abandoned on the argument.” This was in accordance with the weight of the authorities in other states. See the cases collected in 12 Am. & Eng. Ency. of Law, (2d ed.), 905-8.

The question where a tool sent out in good order becomes defective and dangerous during even a long operation, how far the employer can be held liable without express notice, does not arise in this case, as the evidence is that the employer, one of appellants, was present and superintending the operation at or shortly before the accident.

Judgment affirmed.


author: Pep, Curiam:,

text:
    Forsythe, Appellant, v. Philadelphia.

      Road law—Widening street—Damages—Dedication.

    Where a church moves back a wall -so as to increase the width of its front pavement by six feet, and it appears from all the circumstances connected with the recession that it was the intention of the church to dedicate the strip of six feet to the public use, a subsequent owner cannot claim damages from the city because, under an ordinance passed after the recession, the street line was moved back five feet and owners were forbidden in re-erecting buildings to build beyond that line. The owner may, however, resume possession of one foot of the strip; but as to the remaining five feet the ordinance took nothing from him to which he ever had title.
    Argued Jan. 26, 1905.
    Appeal, No. 207, Jan. T., 1904, by plaintiff, from order of C. P. No. 4, Phila. Co., June T., 1902, No. 1088, sustaining exceptions to report of referee in case of William F. Forsythe to use of Anthony M. Zane, to use of Holstein DeHaven v. Philadelphia.
    Before Mitchell, C. J„9 Fell, Brown, Mestrezat and Elkin, JJ.
    Affirmed.
    Appeal from jury of view.
    Exceptions-to report of John M. Scott, Esq., referee.
    Auhenried, J., filed the following opinion :
    The plaintiff owns a large lot of ground on the northwest corner of Fifteenth and Chestnut streets, in the city of Philadelphia.
    This is described by his deed as fronting on Chestnut street, as originally laid out, i. e., of the width of fifty feet. In 1885, under authority bestowed by an ordinance of the city, the bureau of surveys increased the width of Chestnut street, as laid out on the city plan, to sixty feet, and shifted its north line live feet further north than it had originally been located. Thenceforth it was unlawful for the owners of land abutting on Chestnut street to erect any new structure to the south of the line thus established.
    In 1902 the plaintiff built upon his land a large office building. The south wall of this edifice he was under the ordinance and the action of the bureau of surveys above referred to, obliged to set on the new street line thereby established, thus losing, it is claimed, the use of a strip of land five feet wide running westward from Fifteenth street across the entire front of his lot between the present building line and that originally fixed.
    On petition of the plaintiff the court of quarter sessions appointed a jury of view to assess the damages which he claimed he had sustained by the widening of Chestnut street in front of his property, and upon his appeal to this court from the jury’s award, the matter was referred, by agreement, to John M. Scott, Esq., for consideration. The case now comes before the court upon the exceptions of the city of Philadelphia to the referee’s report, by which the plaintiff was awarded as damages the sum of $49,952.50.
    The exceptions filed raise four questions, viz.: First, whether the strip of ground between the present north line of Chestnut street and the north line of that street as laid out originally on the city plan, extending across the plaintiff’s entire south front, was not dedicated to the public use for street purposes forever by one of the plaintiff’s predecessors in title; second, whether, in estimating the effect of the widening of Chestnut street on the plaintiff’s land, the referee should not have considered, in connection with the lot whose title is vested in him, but which he holds for a party of investors alluded to in the report as the Boston syndicate, the lot of ground held for the same syndicate by another trustee, which bounds the plaintiff’s land on the north and with it originally formed one parcel; third, whether in considering the plaintiff’s injury the referee applied the proper measure of damages; fourth, whether the award of damages to the plaintiff is not excessive in its amount.
    Under the view which we feel constrained to adopt upon the first of the questions, it becomes unnecessary to decide, or even discuss, the others presented. We cannot but observe, however, in passing, that the amount of damages found for the plaintiff by the referee is out of all proportion to the verdicts sustained by this court in favor of the owners of other Chestnut street properties situated similarly to that involved in these proceedings and diminished in area by the widening of that street.
    The facts found by the referee or established by the evidence submitted to him, so far as they bear upon the question of dedication, are as follows: When, in September, 1901, the plaintiff acquired title to this piece of land on the northwest corner of Fifteenth and Chestnut streets, described as containing in front on Chestnut street, laid out fifty feet wide, 132 feet and extending in depth northward of that'width along Fifteenth street 178 feet to Ranstead street; the land was the site of an old church built, approximately, in the middle of it, having an open space or yard in front of it and an open space on each side of it within the lot lines. The pavement along the north side of Chestnut street in front of this property was made of flagstones, which extended from the curb-line northward eighteen feet to a line approximately six feet north of what was the original north line of the street. Where the flagging ended there extended across the front of the lot from Fifteenth street to the west boundary a low, but massive, coping of granite. The surface of the lot to the north of this coping was elevated three feet or more above the level of the footwalk on Chestnut street, and was flush with the top of the coping. Access to the churchyard was afforded by steps leading up from the Chestnut street sidewalk, but not projecting beyond the line of the coping.
    Prior to April, 1881, this lot of ground was inclosed by a high brick wall, which, along its Chestnut street front, was built upon the original north line of that street. The wall projected into Chestnut street beyond the line upon which the front walls of all the buildings on the north side of Chestnut street between Fifteenth and Sixteenth streets were set. Most, if not all, of the lots lying to the west of the property were subject to a restriction which prevented the erection' of any structure thereon within six feet of the original north line of the street.
    At the date last referred to the possibilities of this part- of Chestnut street as a locality for shops and retail stores were becoming-recognized, and owners and dealers in real estate anticipated a great rise in the value of property in this vicinity. From these expectations, however, it seemed that the properties on the north side of Chestnut street between Fifteenth and Sixteenth streets must be excluded. The projection of the churchyard beyond the- fronts of the houses to the west of it threw those structures into the background, while the narrow footwalk in front of the church property and the unattractive expanse of brick wall which it presented to passersby discouraged all hopes- of their development for business purposes.
    The land with which we are now concerned was then owned by the rector, churchwarden and vestrymen of the Church of the Epiphany. Whether or not that corporation shared in the wishes of its neighbors for the adaptation of the vicinity to business purposes with a view to an advantageous sale of its property such as was subsequently effected, it appears to have been willing to remove what everybody then regarded as the drawbacks of the neighborhood. It certainly had the widening of the street in front of the church in contemplation as early as October, 1880, for, on the twelfth of that month, its vestry authorized its warden and secretary to agree “ to restrict the front line of the church ” to that of the other properties in the block, provided that the neighbors would contribute -$250 toward the cost of setting back the wall. The agreement thus authorized, however, was not entered into owing to the unexpected cost of moving that wall and paving the footway.
    On March 21, 1881, the councils of Philadelphia, by an ordinance which recited that a voluntary recession had been made by many of the owners of property on the north side of Chestnut street between Fifteenth and Sixteenth streets with a view to widening that street, and that its widening should be legally established, authorized the department of surveys to widen Chestnut street, between the streets named, on the city plan to conform to the house line by adding to it on its north side a strip six feet wide, so that its new north line should- lie thirty-one feet north of its former center line, provided that' there should be no expense involved to the city thereby, and that the benefits assessed should amount to a sum equal to the'damages awarded. On April 19, 1881, the vestry of the Church of the Epiphany appointed a committee to take charge of the resetting of the front line of the church, provided that a certain sum should be contributed therefor by the owners west of the church. Four days later this committee let the contract for the removal of the front wall of the church, the flagging of the Chestnut street sidewalk, and the erection of a granite coping upon the line of the fronts of the buildings to the west, and reported to the vestry one month- subsequent that certain moneys had been subscribed by the neighboring owners forgetting back the front line of the church. On July 27,1881, the work contracted for was completed, and on January 8,1882, the committee in charge of it reported to the vestry that the-old wall and railing had been replaced by a new granite coping on the new building line, and that, owing to the.energy of Mr. George M. Connarroe, to whom was largely due the passage of the ordinance establishing the new building line: on the. north side of Chestnut street from Fifteenth street to Sixteenth street, the neighboring property owners had contrib-.uted to cover the expense, because they believed themselves benefited by the improvement and widening.
    On these facts the referee finds that the city had failed to establish a dedication by the Church of the Epiphany of the six-foot strip along the south end of its lot to public use for-street purposes, basing this opinion on the proposition that “ dedication to the public of all or part of- an alleged highway is always a question of intention, and when the circumstances of an owner building from the regular street line instead of. on-it-can be referred- to a matter connected with his own interest or convenience, there is no just room for inferring any. intention inconsistent with the continued right of private domain; ”
    ■This proposition of law, quoted by the referee from the opinion.of the court in Biddle v. Ash, 2 Ashmead,- 211, is undoubtedly sound, but we are unable to agree in the conclusions to support which he cites it. The principle has been misapplied to the facts of the case through what seems .to be a misunderstanding of its true scope.
    All that the rule referred to means is that the. effect of the physical opening of land to public use as evidence of an intent on the part of its owner to abandon or dedicate it permanently to the public is annulled by the presence - of private purposes of his own, with which such an opening is consistent. The courts have never held that where the physical opening to use by the public can be explained on the ground of the owner’s private convenience or advantage his purpose to dedicate to the public may not be established by other evidence, as, for example, by his deed or by his contemporaneous declarations. To put a concrete illustration of our meaning, we apprehend that if the owner of a lot builds back from the street line saying that he throws the space between that line and his house front into the street for public use, it is impossible to escape from the conclusion that he intends to make a dedication of the strip, even though it may be that without such a recession the construction of his front steps would be impossible, in view of municipal regulations forbidding their protrusion beyond the established building line. In Bornot v. Bonschur, 202 Pa. 463, a “ throwing out ” of land under such circumstances was treated by the Supreme Court as a dedication of the excluded area to public use as part of Chestnut street.
    In the case before us the referee, finding that the setting back of its south boundary wall to the line of the fronts of the buildings to the west and the erection on that line of a low granite coping instead of the brick wall, was not inconsistent with a purpose on the part of its vestry to beautify and improve the church property, decides, apparently on that ground alone, that the Church of the Epiphany had no intention to dedicate permanently to public use the strip of land left to the south of the coping. In our opinion, he should have taken into consideration as bearing upon the question of the intention of the church:
    1. The fact that not only was the six-foot strip left outside of the granite coping, but its grade was brought into conformity with that of the Chestnut street sidewalk; and its surface was so paved with flagstones as to become an integral part of the footway.
    2. The approbation expressed by the committee of the church vestry in its report of January 3, 1882, of the efforts of Mr. Connarroe to secure the passage of the ordinance of 1881, for the establishment of the new building line on the north side of Chestnut street.
    3. The negotiations carried on by the vestry, through its committees, with the neighbors, both prior to and immediately after the passage of the ordinance of 1881, for the accomplishment of the very purposes of that ordinance, viz.: the widening of Chestnut street, between Fifteenth street and Sixteenth street, at the expense of the neighbors and without cost to the city of Philadelphia.
    4. The fact that the cost of the changes along the south end of the churchyard was to a great .extent defrayed from the contributions of the neighboring property owners, and the unlikelihood that such contributions would have been forthcoming in face of an intention on the part of the church to grant the public a mere license over the six-foot strip, revocable at will.
    5. The language of the resolutions of the church vestry and the reports of its committees as recorded, repeated use being made of such expressions as “ the restricting of the front line,” “ the resetting of the front line,” “ the setting back of the front line ” and “ the new granite coping on the new building line.”
    6. The fact that the improvement of the vicinity of the church and its development for business purposes depended on the permanent widening of Chestnut street, and that the church corporation was interested proportionately with its neighbors in securing such an improvement and development.
    From these considerations, it is quite manifest that it was the intention of the vestry of the church to abandon forever to public use as part of Chestnut street the strip of ground lying to the south of the coping set up in 1881. Doubtless its members regarded the ordinance passed in that year as effective to widen Chestnut street to the line of the houses west of the church property, and they made haste to comply with its provisions. It would be difficult to account for the practical coincidence of the enactment of that ordinance and the letting of the contract for setting back the boundary wall to “ the new building line ” on any other theory. It is of no consequence that they may have been in error as to the effect of the ordinance. They waived the supposed right of the church to compensation for the land they threw out into the street, in view of the contributions of the neighbors toward the cost of the coping and flagging; and they abandoned the land to public use with no intention ever to resume possession of it.

      The conclusion that we have thus reached as to the intention of the church authorities as to the strip thus excluded from the churchyard is not shaken by the fact that, in December, 1896, when the church property was conveyed to Mr. Wanamaker, his deed described the lot as fronting on Chestnut street “ fifty-feet wide,” and as still having its original depth of 178 feet to Ranstead street. The language of the description of the property in this deed is significant only of the notorious reverence of all scriveners for old descriptions, and their inclination to follow them with superstitious accuracy, verbatim et literatim.
    Nor can we see any force in the argument that it is unlikely that, in 1881, the Church of the Epiphany dedicated the ground in question to public use, because, during all the fifteen years which elapsed before the property was sold to Mr. Wanamaker, no effort was made by its officers to secure the correction on the assessment lists of the city of the description under which it was always assessed by the change of its depth as thereon given from 178 feet to 172 feet. Daring the whole of that period the church property was exempt from taxation, so that the accuracy of its description for assessment purposes and the correctness of its assessed valuation were matters of no importance whatever to the corporation ; and it is entirely unlikely that any of its officers knew just how the property was entered on the tax books. With the acts or omissions of subsequent owners in relation to this matter we are not concerned. It is the question whether, in 1881, the rector, churchwarden and vestrymen of the Church of Epiphany intended to dedicate to public use this strip of land that we have to, deal with; and on that question the acts of their successors in • the title can throw no light whatever.
    We conclude, therefore, that the strip of land for whose taking by the city the plaintiff asks to be compensated forms a part of the six-foot strip which was, in 1881, dedicated to pubr lie use as part of Chestnut street by the Church of the Epiphany, under which the plaintiff claims; and that, while, under Bornot v. Bonschur, 202 Pa. 463, the plaintiff may resume possession of the northern portion of that strip (j. e., of a strip of the width of one foot, extending across his entire front), the city ordinance of 1884 takes from him nothing to which he is, or ever was, entitled, when it prevents him from building to the south side of the north line of Chestnut street as now established.
    Having lost nothing, the plaintiff can have no recovery. We sustain the 25th, 26th, 27th, 29th, 34th, 37th, 42d, 44th, 45th, 47th, 48th, 49th, 50th, 51st, 55th, 61st and 63d exceptions, reverse the finding of the referee and enter judgment for the defendant.

      Errors assigned were in sustaining exceptions to the referee’s report.

      E. 0. Miehener, with him J. Quincy KunsieJcer, for appellant,
    cited: Ferdinando v. Scranton, 190 Pa. 321; Gowen v. The Phila. Exchange Co., 5 W. & S. 141, 144; Neill v. Gallagher, 10 Phila. 172; Root v. Commonwealth, 98 Pa. 170, 176; Griffin’s Appeal, 109 Pa. 150, 155 ; Commonwealth v. P. &. R. R. R. Co., 135 Pa. 256; Weiss v. South Bethlehem Borough, 136 Pa. 294; Duncan v. Hanbest, 2 Brewster, 362; Waggeman v. North Peoria, 155 Ill. 545 (40 N. E. Repr. 485) ; Morrison v. Marquardt, 24 Iowa, 35 ; Com. v. Baldwin, 11 W. N. C. 446.

      John E. Maurer, assistant city solicitor, with him John L. Kinsey, city solicitor, for appellee,
    cited: Bornot v. Bonschur, 202 Pa. 463; Griffin’s App., 109 Pa. 150; Spring v. Pittsburg, 204 Pa. 530; Waters v. Philadelphia, 208 Pa. 189; Pittsburg, etc., Ry. Co. v. Dunn, 56 Pa. 280; Commonwealth v. Shoemaker, 14 Pa. Superior Ct. 194; Witman v. Smeltzer, 16 Pa. Superior Ct. 285; Richardson v. City of McKeesport, 18 Pa. Superior Ct. 199.
    March 6, 1905 :
   Pep, Curiam:,

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


author: Mr. Justice Potter,

text:
    Sturzebecker, Appellant, v. The Inland Traction Company.

      Negligence—Joint tort feasors—Street railways—Amendment.

    When suit is brought against two defendants for joint negligence, there can be no recovery upon the joint action, where it appears that there was no community of fault by the two defendants in the act which occasioned the injury. In such a case the plaintiff may, at the trial, amend his statement and proceed against the party liable under the proofs adduced, subject to the defendants’ right to plead surprise. If no amendment is made the court will enter a nonsuit.
    Argued Jan. 30, 1905.
    Appeal, No. 159, Jan. T., 1904, by plaintiff, from order of C. P. Montgomery Co., June T., 1903, No. 11, refusing to take off nonsuit in case of Annie H. Sturzebecker v. The Inland Traction Company and The Philadelphia and Lehigh Valley Traction Company.
    Before Mitchell, C. J., Dean, Fell, Potter, and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for injuries to land.
    The facts are stated in the opinion of the Supreme Court.

      JError assigned was refusal to take off nonsuit.

      JBJenry Freedley, with him A. JR. Place, for appellant.
    A. A. Larzelere, for appellees.
    March 6, 1905 :
   Opinion by

Mr. Justice Potter,

Two defendants, The Inland Traction Company and The Philadelphia and Lehigh Valley Traction Company, were here sued as joint tort feasors. The statement alleges that The Inland Traction Company located and constructed a trolley railway in front of and over the lands of the plaintiff, and ‘‘ about the time of the said construction, leased to or in some other manner unknown to the plaintiff, merged with the said defendant The Philadelphia and Lehigh Valley Traction Company, and thereafter by virtue of said merger, operated the said railway.”

The plaintiff complains of injury from two cases: First, from the construction, and, second, from the operation of the railway. By the construction, she says the defendants broke down, destroyed and blocked her drain pipes, resulting in the flooding of her greenhouse. By the operation of the railway and the rumble and jar of the passing cars, she alleges that her greenhouse is shaken and the glass therein broken; also that electricity escapes and charges the heating pipes.

Upon the trial, at the close of the plaintiff’s testimony, judgment of compulsory nonsuit was entered. In his opinion refusing to take off the nonsuit, the trial judge says that there was not a particle of proof that there had been any lease or merger between the two companies, nor was there any evidence that The Philadelphia and LehighValley Traction Company had done any act or thing of which plaintiff complained. Our reading of the testimony bears out this statement of the trial judge. The case seems to be absolutely bare of any evidence of any concert of action between the two defendants. It is stated by counsel for appellee in his argument, that when the motion for a nonsuit was made in the court below, the trial judge reminded counsel for appellant of his right to amend his declaration, and proceed against one or the other of the defendants separately. But the suggestion was not accepted and the appellant insisted upon standing upon the statement and the evidence as they were. There is no apparent reason for the position thus taken by the plaintiff. It would seem to be a work of supererogation to review the decisions in which we have held that when a joint tort is alleged in the declaration, a joint tort must be pi’oved, ixi order to sustain the action. But the fact that this appeal is now before us, indicates that it may be useful to again call attention to what has been decided in Pennsylvania, with reference to this point.

Beginning with Howard v. Union Traction Co., 195 Pa. 391, we pointed out, that when suit is brought against two defendants for joint negligence, there can be no recovery upon the joint action, where it appears that there was no community of fault by the two defendants in the act which occasioned the injury. As we then stated, the opinion of the court below'in that case, by Judge Bbitlbe, “ contains a very clear and forcible exposition of the whole subject and a sufficient reference to the authorities which control the question.”

Then coming down the line, in Dutton v. Lansdowne Boro., 198 Pa. 563, we said: “ But where the declaration is for a joint tort, and the case goes to the jury as against both defendants, if under such circumstances the evidence fails to show that the defendants were joint tort feasors, it is error-to permit a recovery against one or both. Such a case would show, not a mere misjoinder of parties, but a misjoinder of causes of action.”

The evil of joining promiscuously in an action different defendants without regard to the lack of concerted action among them, is thus noted in Wiest v. Electric Traction Co., 200 Pa. 148 : “ This case is an illustration of a practice which is not to be commended. Joining several parties as defendants without regard to the question of the tort being joint, does, no doubt, relieve the plaintiff of the responsibility of finding out, before beginning his action, who is justly chargeable with the wrong causing the injury, as it leaves that question to be developed at the trial. The plaintiff may profit by the contention which naturally arises among the defendants in which each seeks to charge the other. But such a course does not tend to an orderly trial, nor the attainment of justice.”

In Hart v. Allegheny County Light Co., 201 Pa. 234, suit was brought against an electric light company and a telephone company jointly. We said: “ This action was brought against two defendants as joint tort feasors. The evidence failed to show any concert of action, or any joint trespass, by the defendants, and under the principle of Wiest v. Electric Traction Co., 200 Pa. 148, a separate recovery should not have been allowed against one defendant in the absence of the proper amendments to the pleadings. The point should, however, have been brought to the attention of the court at the trial.”

The language of a portion of the opinion in Wiest v. Electric Traction Co., 200 Pa. 148, is qualified or explained in Rowland v. Phila., 202 Pa. 50 as follows (p. 51) : It was not intended to intimate that a mistake in bringing a joint action could not be cured by proper amendment. The thought was not fully developed, but the conditions presented emphasized the necessity for amendment. In saying that ‘ where a plaintiff in an action of trespass to recover damages for negligence declares for a joint tort, and the evidence shows no joint action by the defendants, a verdict and judgment against one defendant for a separate tort should not be permitted,’ the statement stopped short of a' repetition of the familiar principle alluded to in the earlier part of the same opinion that the allegations and the proofs must agree.”

Under the circumstances referred to, the obvious method of bringing about this result, the proof being already in, is to amend the declaration, changing it from one charging a joint tort, to one for a several liability. “The right to such an amendment could hardly be questioned. For whether the tort was joint or not, the defendant was liable to a separate action, for the reason that' even in case of a joint tort, the liability is both joint and several; it is not apparent, therefore, how under any circumstances the defendant could be harmed by the allowance of the amendment. The cause of action, which is the alleged negligence of the defendant, remains identically the same. His position becomes practically the same as though a separate action had been brought in the first instance, and to this he had always been liable.” “ But the allowance of the amendment carries with it the customary right of the defendant to plead surprise, and should fairly entitle him to the benefit of a continuance. This would enable him, when the case comes up for trial, to meet it upon the evidence against himself alone and freed from the embarrassment of codefendants, with whom he should never have been joined. While the granting of a continuance would as in other cases, rest in the sound discretion of the trial judge, yet its allowance would under such circumstances seem to be so manifestly proper as to make it the rule. This would provide a remedy for the mischief referred to in Wiest v. Electric Traction Co., 200 Pa. 148 and would prevent the cumulation upon one defendant of the effect of the testimony offered against all.” And again in Minnich v. Lancaster, etc., Electric R. R. Co., 203 Pa. 632, a case in its facts similar to the one at bar, this court said: “ Where in an action’ of trespass a joint tort is alleged, it must be proved, and if the proof is only of a tort by one defendant, or of two torts by different defendants, the action cannot be sustained against any of them. In such case the plaintiff may amend his declaration and proceed against the party liable under the proofs adduced, subject to the defendant’s right to a continuance.”

In Goodman v. Coal Township, 206 Pa. 621, after citing most of the foregoing eases, we said : “ There can be no doubt, under the above authorities, that the torts here complained of were separate, not joint. Neither under the facts as set forth in the plaintiff’s statement nor as shown upon the trial was there any concert of action apparent between the township and the railway company. Upon the record as it stood at the time of the trial, and upon the plaintiff’s evidence, no verdict could have been properly rendered against anyone, and the defendants were entitled to binding instructions in their favor.”

In the ease at bar, as the appellant alleged a joint tort, and failed entirely to prove any concert of action between the defendants, his case was at an end- as his pleadings then stood. He might have amended his declaration and proceeded against one or the other defendant for separate torts, but this counsel declined to do. Nothing then remained for the trial judge but to enter a judgment of nonsuit.

The assignments of error are overruled and the judgment is affirmed


author: Mb. Justice Fell,

text:
    Shelly, Appellant, v. Philadelphia & Reading Railway Company.

      Negligence—Railroads—Sparks—Fires—Evidence.

    In the absence of direct evidence of the origin of a fire that is imputed to the negligence of a railroad company in not providing spark arresters, evidence of the unusual throwing of sparks by the company’s engines and of other fires started by them at about the time of the fire in question is admissible. This rule obtains also where there is uncertainty as to the engine that caused the fire and it cannot be shown that the fire proceeded from a particular engine. This class of testimony is admissible because of the failure of direct proof and of the necessity of resorting to'the proof of 'circumstances as the best evidence and the only evidence of which the case admits.
    Where, however, the fire is shown to have been caused only by sparks from a particular engine that passed near the time when it started, the evidence must be confined to the condition of that engine and evidence of negligence in the general management and operation of the company’s engines is not admissible.
    When it is alleged that a particular engine caused the injury complained of, the inquiry is limited to the condition of that engine at the time, and testimony tending to show defects in other engines is irrelevant.

      Argued Jan. 30, 1905.
    Appeal, No. 8, Jan. T., 1905, by plaintiff, from judgment of C. P. Montgomery Co., Deo. T., 1903, No. 62, on verdict for defendant in case of Angelina Shelly, Executrix of Moses R. Shelly, deceased v. Philadelphia & Reading Railway Company.
    Before Mitchell, C. J., Dean, Pell, Potter, and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for property destroyed by fire alleged to have been caused by sparks from an engine. Before Swartz, P. J.
    At the trial a witness for plaintiff was asked this question :
    “ Q. What did you observe say within two weeks back, what did you observe this train, this New York milk train, as you call it, do as it came down through Telford ? ”
    Mr. Evans: Objected to that even though evidence is to be admitted of actions prior in time it must be restricted to a shorter period than two weeks because the changes in the engine may become very material in that time.
    The Court: I think two weeks would not be an unusual time, but you must have evidence to show that this was the same engine. It does not follow that the same train, or the same milk train, had the same engine all the time.
    Mr. Larzelere: The furthest we can go to identify this engine is that it was the engine that pulled that train. We do not know its number and we cannot tell that; but the engine that pulled that train we will show for two weeks before.
    The Court: I think until you show that the engine that pulled that train other evenings was the engine that went by the night of the fire, you cannot prove it.
    Mr. Larzelere: That would be imposing on us something that we could not in the nature of things do, and it would be unreasonable to do it. We say that the engine that was attached to this particular train that came down there at ten o’clock each night—we show what it did. Now, of course, presumptively it is the same engine, but whether it is or not I do not see that it would make much difference because it is the engine that is attached to that train.
    The Court: It is the particular engine that we are after.
    Mr. Larzelere: I propose to prove that for a period of two weeks prior to this fire, that the same engine and train known as the New York milk train, as it passed through Telford, emitted sparks and chunks of coal of unusual size.
    The Court: I will admit that if it is the same engine.
    Mr. Larzelere: We will let the defense show that it was another engine.
    The Court: You will have to show it is the same engine before I will admit it.
    Mr. Larzelere: That is my offer.
    The Court: I will admit your offer, but if your evidence does not come up to your offer I will strike out the testimony.
    After the witness and other witnesses had testified, the court made this ruling:
    The Court: I cannot allow this testimony to go in. I think the plaintiff has failed to identify this engine as the same one that passed on the night of the fire. Therefore, I now direct that all evidence that was given by any of the witnesses in relation to an engine that came down with the milk train and saw fire on previous nights, be stricken from the record, and the jury is cautioned particularly that all evidence that was given in relation to an engine throwing out fire for a period of two weeks prior to the time that the Shelly buildings were burned shall not be construed as any evidence at all, and they must dismiss that from their minds, there being no sufficient evidence to identify the engine that passed by there on the other nights as the identical engine that passed by the particular night on which the accident occurred. We all may understand that sometimes it is usual for the same engine to pull the same train, but there is nothing of that character before us. I cannot assume that the railroad company uses the same engine for pulling the same train that passes daily at a particular point. Until that is established I cannot admit the testimony. Exception.

      Errors assigned were (1-5) rulings on evidence, quoting the bill of exceptions.

      N. E. Larzelere, with him A. R. Place, for appellant.
    The identity of the engine on the nights we sought to submit proof of was precisely the same as its identity on the night of the fire. The proposition did not involve any proof of the general condition of defendant’s engine, but was carefully confined within a limited time, to the engine used in pulling that train.
    No authority in Pennsylvania warranted the rejection of plaintiff’s proof: Henderson v. P. & R. R. R. Co., 144 Pa. 461.
    The law did not require plaintiff to prove the number of the engine, and show that the same engine by number always pulled that train: Phila. & Reading R. R. Co. v. Schultz, 93 Pa. 341.

      Montgomery Evans, for appellee.
    When the fire is shown to have been caused, or in the nature of the case could only have been caused, by sparks from an engine which is known and identified, the evidence should be confined to the condition, management and operation of that engine ; and testimony tending to prove negligence in the management or defects in other engines of the company, is irrelevant and inadmissible: Erie Ry. Co. v. Decker, 78 Pa. 293; Albert v. Northern Central Ry. Co., 98 Pa. 316; Jennings v. Penna. R. R. Co., 93 Pa. 337.
    The excluded testimony could add no weight to the proofs as to the behavior of the engine on the night of the fire: Penna. R. R. Co. v. Page, 21 W. N. C. 52; Phila. & Reading R. R. Co. v. Schultz, 93 Pa. 341.
    March 6, 1905:
   Opinion by

Mb. Justice Fell,

This action was to recover for the loss of the plaintiff’s buildings by fire, alleged to have been caused by the negligent operation of an engine on the defendant’s road. It is stated in the declaration that the engine that caused the fire was one that drew a freight train on the south bound track between the hours of nine and ten o’clock p. M. on May 28, 1903. This train was identified by six of the plaintiff’s witnesses as a regular freight train, known as the New York milk train, that passed the station near the plaintiff’s buildings a few minutes before ten o’clock. These witnesses saw the train pass and noticed the throwing of sparks and coals by the engine. No other train going south passed near the time of the fire nor within two hours of it. There was an offer by the plaintiff to prove that the engine on several previous nights within two weeks of the fire and on the night after it threw out coals of an unusual size. The witnesses failed to identify the engine that threw coals on other occasions as the one that drew the train on the night of the fire, and the testimony was struck out by order of the court. All the assignments of error relate to this order.

In the absence of direct evidence of the origin of a fire that is imputed to the negligence of a railroad company in not providing spark arresters, evidence of the unusual throwing of sparks by the company’s engines and of other fires started by them at about the time of the fire in question is admissible. This rule obtains also where there is uncertainty as to the engine that caused the fire and it cannot be shown that the fire proceeded from a particular engine. This class of testimony is admissible because of the failure of direct proof and of the necessity of resorting to the proof of circumstances as the best evidence and the only evidence of which the case admits. Where, however, the fire is shown to have been caused, or in the nature of things could have been caused, only by sparks from a particular engine that passed near the time when it started, tire evidence must be confined to the condition of that engine and evidence of negligence in the general management and operation of the company’s engines is not admissible. When it is alleged that a particular engine caused the injury complained of, the inquiry is limited to the condition of that engine at the time, and testimony tending to show defects in other engines is irrelevant. These rules are clearly stated and the cases ón which they rest are discussed in Henderson v. Phila. & Reading Railroad Co., 144 Pa. 461. They have been adopted in a number of other jurisdictions: 13 Am. & Eng. Ency. of Law (2d ed.), 520, 522.

The main argument for the appellant is in support of the proposition that because the witnesses were not able to identify the engine by its number or otherwise than as the engine that pulled a particular train, the offers of testimony rejected came within the rule stated in Henderson v. P. & R. Railroad Co., 144 Pa. 461, that “ When the particular engine which started the fire cannot be fully identified, evidence that sparks and burning coals were frequently dropped by engines passing upon the same road upon previous occasions is relevant and competent to show habitual negligence.” By being “identified ” it is not meant that the engine should be known by its number, size or shape from all other engines, but that it should be known as the engine to which the probable cause of the fire is traced. The identification is not to distinguish it from other engines generally but to point it out as the engine that caused the injury. In this sense its identification was as complete as if its number had been known to the witnesses. They saw it pass, they knew it drew a train that passed nightly on a fixed schedule, they saw what it did, and that it was the only engine to which the fire could by any possibility be traced.

The judgment is affirmed.


author: Me. Justice Fell,

text:
    Shelly, Appellant, v. Philadelphia and Reading Railway Company.
    Argued Jan. 30, 1905.
    Appeal, No. 9, Jan. T., 1905, by plaintiff, from judgment of C. P. Montgomery Co., Dec. T., 1903, No. 63, on verdict for defendant in case of Moses R. Shelly and G. Frank Dieterly, copartners, trading as Shelly & Dieterly v. Philadelphia and Reading Railway Company.
    Before Mitchell, C. J., Dean, Fell, Potter and Elkin, JJ.
    Affirmed.
    March 6, 1905:
   Opinion by

Me. Justice Fell,

This appeal was argued with No. 8, January Term, 1905, and involves the same question. For the reasons stated in the opinion filed in No. 8, the judgment in this case is affirmed.


text:
    Long, Appellant, v. Lebanon National Bank.

      Execution—Wrongful sale—Action—Res adjudicata.

    In an action for damages for an alleged unlawful sale of plaintiff’s property under a writ of execution issued on a confessed judgment, a nonsuit is properly entered where it appears that every question raised by plaintiff had been carefully investigated, and adjudicated in a proceeding in which the court had discharged a rule to set aside the writ of execution.
    The order of a court discharging a rule to set aside a writ of execution is a final order from which an appeal will at once lie, and it is as conclusive as a decree in equity made on a writ to stay civil process, on any subject considered by the court that was essential or material to the decision on the merits of the right in question.
    A judgment will be conclusive not only as to matters actually litigated and decided but as to every ground of recovery and defense that might have been presented and decided.
    Mestkezat, J., dissents.
    Argued Feb. 16, 1905.
    Appeal, No. 369, Jan. T., 1904, by plaintiff, from order of C. P. Lebanon Co., Sept. T., 1898, No. 5, refusing to take off nonsuit in case of Frank B. Long v. Lebanon National Bank.
    Before Dean, Fell, Mestkezat, Potter and Elkin, JJ.
    Affirmed.
    Assumpsit to recover damages for the alleged wrongful sale of plaintiff’s property. Before Ehrgood, P. J.
    The court entered a compulsory nonsuit whic'h it subsequently refused to take off.

      Error assigned was in refusing to take off nonsuit.

      Cyrus G. Eerr and Samuel Gustine Thompson, with them George B. Woomer, for appellant.
    The dismissal of the petition, if it was anything, was a decree in equity.
    A decree in equity is not, like a judgment at law, necessarily conclusive as to every matter which either was or might have been involved in the decision. Regard must be had to the reasons of the chancellor as well as to his decree: Larkins v. Lindsay, 205 Pa. 534.

      Jefferson Snyder, with him Grant Weidman and Howard C. Shirk, for appellee.
    The matters in controversy were res adjudicata : Fulton v. Hood, 34 Pa. 365; Lippincott v. Whitman, 83 Pa. 244; Kilheffer v. Herr, 17 S. & R. 319 ; Davis v. Tallcot, 12 N. Y. 184; McCann v. Farley, 26 Pa. 173; Loomis v. Lane, 29 Pa. 242; Frauenthal’s App., 100 Pa. 290; Harger v. Commissioners, 12 Pa. 251; Packer v. Owens, 164 Pa. 185; Foote v. Gibbs, 67 Mass. 412; Weigley v. Coffman, 144 Pa. 489 ; Westcott v. Edmunds, 68 Pa. 34 ; Williams v. Row, 62 Pa. 118; Kelsey v. Murphy, 26 Pa. 78; Burke v. Miller, 70 Mass. 114; Tams v. Lewis, 42 Pa. 402; Bell v. Allegheny County, 184 Pa. 296.

      March 6, 1905:
   Opinion by

Mr. Justice Fell,

The single question presented by this appeal is whether in an action for damages for an alleged unlawful sale of the plaintiff’s property under a writ of execution issued on a confessed judgment a nonsuit was properly entered on the ground that the subject-matter of the controversy had been adjudicated in a proceeding to set aside the execution.

The plaintiff in this action was indebted to the defendant in the sum of $36,000 and gave it his judgment note for this amount, payable one day after date. On this note there was an indorsement signed by the maker to the effect that the note was given as a collateral to secure the payment of notes then discounted by the bank and of any renewals thereof. Four months after the date of the note, judgment was entered thereon and a writ of execution issued. The defendant in the judgment, the plaintiff here, presented a petition to the court for a rule to show cause why the writ should not be set aside. The specific ground on which relief was asked was that judgment had been entered and a writ of execution issued in violation of a contemporaneous oral agreement not to enter judgment on the note unless it became necessary to secure the bank against other creditors who might bring suit. In the answer to the petition it was denied that any oral agreement had been made, and it was averred that over $33,000 of the indebtedness remained unpaid with interest on such of the discounted notes referred to in the indorsement as had since matured, and that judgment had been entered in accordance with the terms of the note for the purpose of collecting a bona fide indebtedness. The main controversy at the hearing of the rule was in relation to the oral agreement, but the matter of the plaintiff’s indebtedness on matured notes, while apparently treated as of minor importance, was fully gone into. His testimony was exceedingly vague, and that of the bank’s cashier was clear and distinct that eight notes were then due. The rule was discharged on the grounds (1) that parol evidence was not admissible to vary the terms of the written instrument; (2) that if admissible the preponderance of evidence was in favor of the writing. Leave was given the plaintiff in the judgment to proceed with the execution for such amount as remained unpaid.

The order of a court discharging a rule to set aside a writ of execution is a final order from which an appeal will at once lie: Packer v. Owens, 164 Pa. 185, and it is as conclusive as a decree in equity made on a writ to stay civil process, on any subject considered by the court that was essential or material to' the decision on the merits of the right in question. This is not seriously controverted, but in avoidance of the rule that what has once been finally adjudicated by a court of competent jurisdiction cannot again be made a subject of controversy, it is argued that the court in discharging the rule did not decide that no oral agreement had been made, but only that effect could not be given to the oral agreement set up to alter or vary the judgment note, and that the breach of this agreement may be made the ground of action for damages. This is not the correct view. If the decision is thus restricted, it is still a decision that no valid agreement had been made which prevented the use of the note according to its terms, and hence the writ of execution was properly issued. The decision, however, went further than this. It was not only that such an agreement if established was unavailing but that the testimony failed to establish it.

The second ground of objection to the entry of the nonsuit is that while the bank might enter judgment on the note in order to secure a lien it could not lawfully issue execution in advance of the maturity of the notes to secure the payment of which the judgment was given. It is unnecessary to consider to what extent the bank was restricted in the use of the judgment by the indorsement on the note, or whether if the defendant in the judgment withheld any ground of defense at the hearing of the rule he could afterwards make it available in another proceeding, notwithstanding the general rule that a judgment will be conclusive not only as to matters actually litigated and decided but as to every ground of recovery and defense that might have been presented and decided : Rauwolf v. Glass, 184 Pa. 237. The right to issue execution under the terms of the note and the indorsement was considered at the hearing of the rule. It was brought to the attention of the court by the recital of the indorsement in the petition. The defendant introduced testimony to show that nothing was due at the time the writ was issued. This was met by counter-testimony offered by the bank, and whether anything was then due became the subject of a prolonged and searching inquiry. It thus became a component part of the defense and was necessarily involved in the decision.

Since all the grounds of recovery in the action for damages had been adjudicated against the plaintiff, the nonsuit was properly entered, and the judgment is now affirmed.

Mestrezat, J., dissents.


author: Mb,.' Justice Fell,

text:
    Kittanning Borough v. Thompson, Appellant.

      Road, law—Grade of street—Paper grade—Change of grade—Nuisance—■ Equity.

    The establishment of a paper grade by a borough confers no right on a property owner to enter on a highway and change the natural grade thereof. The streets of a borough are in charge of its municipal authorities and the actual grading can be done only by their authority exercised in the manner prescribed by law.
    Where a property owner in a borough without any authority by ordinance, undertakes to elevate a sidewalk above the natural grade, although to conform to a paper grade established by the borough, and it appears that the proposed sidewalk would be a dangerous public nuisance, the construction of the sidewalk will be enjoined on a bill filed by the borough.
    Argued Jan. 31, 1905.
    Appeal, No. 27, Oct. T., 1905, by defendants, from decree of C. P. Armstrong Co., Dec. T., 1904, No. 148, on bill in equity in case of Burgess and Town Council of Kittanning Borough v. Ellen T. Thompson, Safe Deposit & Title Guaranty Company and Burt Milsora.
    Refore Mitchell, C. J., Dean, Fell, Potter and Elkin, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Patton, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was the decree of the court.

      W. J. Christy and Ross Reynolds, with them J. 3. McCain, for appellants.
    Under the circumstances, the appellants had a right to presume, and were indeed bound to presume, that the streets would be brought up to the established grade: New Brighton Boro. v. Peirsol, 107 Pa. 280; Groff v. Phila., 150 Pa. 591.
    The acts of a municipal corporation may be proved otherwise than by its records or other written documents : Rothwell v. California Borough, 21 Pa. Superior Ct. 234.
    It is difficult to see how a public right can be vindicated in equity without showing that its violation as complained of, will result in immediate and irreparable injury. But if such be the law, the bill to vindicate such right or to restrain its violation' must be brought in the name of the attorney general: Sparhawk v. Union Pass. Railway Co., 54 Pa. 401; Com. ex rel. v. First Nat. Bank of West Newton, 207 Pa. 255.
    An injunction is not of right even to enforce a strictly legal right; it will not be issued when, upon a broad consideration of the situation of all the parties in interest, good conscience does not require it: Mackintyre v. Jones, 9 Pa. Superior Ct. 543.

      McCullough $ Heilman, for appellees.
    No right of action for damages accrues to the property owner affected until the physical change of grade is made upon the ground: Jones v. Bangor Boro., 144 Pa. 634; Delvin v. Philadelphia, 206 Pa. 518.
    To render the acts of officers of municipal corporations in the line of their official duties binding upon the body they represent and admissible as evidence, such acts must be the united action of the body and of a nature to bind the corporation: Waymart Water Co. v. Waymart Boro., 4 Pa. Superior Ct. 211.
    It is competent for a municipal corporation to prosecute a bill in equity to restrain a public nuisance or obstruction to a public highway without joinder of the attorney general: Pittsburg v. Epping-Carpenter Co., 194 Pa. 318; North Manheim Twp’s Appeal, 22 W. N. C. 149; Commrs. of Moyamensing v. Long, 1 Parsons, 143 ; Philadelphia v. Crump, 1 Brewster, 320-327; City of Phila. v. Pass. Ry. Co., 8 Phila. 648.
    Where any change of grade is made otherwise than by authority of law, the remedy of the parties injured thereby, if any, is a common-law action for damages. Under the acts of June 12,1898, and May 16, 1891, damages are recoverable for a lawful, not for an unlawful taking or injury: In Re Shawmont Ave., 5 Pa. Dist. Rep. 190; Pepper v. Philadelphia, 114 Pa. 96 ; Gold v. Philadelphia, 115 Pa. 184.
    March 6, 1905:
   Opinion by

Mb,.' Justice Fell,

This appeal is from a decree enjoining the defendants from, constructing a sidewalk at the intersection of two of the main streets of the borough of Kittanning at an elevation above the existing grade. In 1894 the borough by ordinance established a grade for all its streets, which differed but slightly from the natural grade. Since that time many of the streets have been graded and paved in substantial conformity with the established grade, the borough paying for the street intersections and the owners of the abutting properties paying for the curbing and for the paving of sidewalks and driveways. There has not, however, at all times been a strict conformity with the grade established in 1894. The borough in some instances paved sidewalks on the natural surface or permitted property owners to do so. This was the case at the corner of McKean and Market streets where the defendants’ property is situated. In 1897 the sidewalk on McKean street and on a part of Market street was laid eight inches below the established grade and on the rest of Market street in front of the defendants’ property and in front of the adjoining properties, more than two feet below.

In 1904 the defendants, desiring to erect a building on the site of one that had been destroyed by fire, obtained from the borough engineer the grade lines as established in 1894, and they constructed the building in conformity with these lines. When the building was finished they undertook to elevate the sidewalk in front of it, at one end eight inches and at the other thirty-one inches above the grade at which the sidewalk had been paved seven years before. The elevation proposed would make the sidewalk exceedingly dangerous and practically impassible.

The establishment of a paper grade by a borough confers no right on a property owner to enter on a highway and change the natural grade thereof. The streets of a borough are in charge of its municipal authorities and the actual grading can be done only by their authority exercised in the manner prescribed by law. Unless the defendants showed an authorization by ordinance of council they were trespassers creating a dangerous public nuisance and were properly enjoined. One ground on which the defendants claimed that permission had been given to elevate the sidewalk was that the borough engineer had been instructed by the council, to give the grade lines for the building. The contractor for the building applied to the council for permission to connect the building with the sewer, and acting upon this request a resolution was passed granting “ permission to tap and connect with the sanitary sewer, for sanitary purposes for the Thompson property, corner of Market and McKean streets, and also instruct the engineer to give grade for the same.” If the intention of the council was to give grade lines for any other purpose than the sewer connection, it was to enable the builder to adapt the building to a pavement that might at a future time be constructed at the established grade. Clearly it was not intended to grant the defendants permission to elevate the sidewalk, and no authority to do this can be implied from it.

It is argued that because the defendants were elevating the sidewalk to the established grade they were violating no law, but doing what the law would require to be done when properly set in motion. If this view is correct, any citizen of a borough may at his pleasure assume the control and management of the streets or the performance of the duties of the properly chosen and appointed municipal officers. The finding by the court that no ordinance authorized the physical change of grade and that the defendants’ proofs went no further than to show the approval of a paper grade is conclusive against them.

The borough had a standing to maintain the bill: Pittsburgh v. Epping-Carpenter Co., 194 Pa. 318. At the hearing the court properly excluded the loose statements of members of the council: Chester v. Eyre, 181 Pa. 642.

The decree is affirmed at the cost of the appellants.


text:
    Patterson v. Harrisburg Trust Company, Appellant.

      Negligence—Master and servant—Dangerous machine—Notice.

    Where a workman is injured by the automatic starting of a dangerous machine the employer is liable, if it appears that the machine for five or
    six years before the accident had frequently started in the same way, that this fact was well known in the shop, that the injured man had not been warned of the danger, and was hurt the first day he went to work.
    Argued Feb. 1, 1905.
    Appeal, No. 7, May T., 1904, by plaintiff, from judgment of C. P. Dauphin Co., Sept. T.,1903, No. 251, on verdict for plaintiff in case of Banks Patterson v. Harrisburg Trust Company, receiver of the Dauphin Bridge and Construction Company.
    Before Mitchell, C. J., Dean, Fell, Pottee and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Kunkel, J.
    The facts appear by the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for §1,701.60. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      Lyman I>. Gilbert, with him Philip T. Meredith, for appellant.
    A servant or employee assumes the risk of all dangers in his employment, however they may arise, against which he may protect himself by the exercise of ordinary observation and care, and the master’s liability arises only from the fact that he subjects his servant to dangers which in good faith he ought to provide against; but he is not responsible for those dangers to which the servant voluntarily subjects himself: Pittsburg v. Connellsville R. R. Co. v. Sentmeyer, 92 Pa. 276; Service v. Shoneman, 196 Pa. 63; Corcoran v. Wanamaker, 185 Pa. 496 ; Titus v. Braddock, etc., R. R. Co., 136 Pa. 618; McAvoy v. Penna. Woolen Co., 27 W. N. C. 450.
    As a legal proposition it is submitted that it is not enough to show that the defect existed at the moment of the accident, in support of which the following cases are cited : Mixter v. Imperial Coal Co., 152 Pa. 395 ; P. & R. R. R. Co. v. Hughes, 119 Pa. 301; Mensch v. Penna. R. R. Co., 150 Pa. 598 ; Baker v. Allegheny Valley R. R. Co., 95 Pa. 211.

      James M. Barnett, of Barnett £ Son, with him O. H. Bergner, for appellee.
    It is the duty of an employer to warn an inexperienced employee of dangers not in themselves obvious, which are unknown to the employee, and of which the employer has, or must be presumed to have, knowledge : Creachen v. Carpet Co., 209 Pa. 6; Dynes v. Bromley, 208 Pa. 633 ; Levy v. Rosenblatt, 21 Pa. Superior Ct. 543, 547 ; Tagg v. McGeorge, 155 Pa. 368 ; Welsh v. Butz, 202 Pa. 59 ; Lebbering v. Struthers, 157 Pa. 312.
    Positive proof that the employer had knowledge of the danger is not required. If the evidence is sufficient to warrant the inference that the defendant had, or ought to have had, such knowledge, the case is for the jury: Bier v. Standard Mfg. Co., 130 Pa. 446 ; Mixter v. Imperial Coal Co., 152 Pa. 395, 397; Tissue v. B. & O. R. R. Co., 112 Pa. 91; Mensch v. Penna. R. R. Co., 150 Pa. 598, 603. This proposition is not in conflict with the rule that the employer is not presumed to have knowledge of a latent danger or defect in tools, machinery or materials, for which the cases cited by the appellant, viz : McAvoy v. Penna. Woolen Co., 27 W. N. C. 450; Service v. Shoneman, 196 Pa. 63; Corcoran v. Wanamaker, 185 Pa. 496 ; Baker v. Allegheny Valley R. R. Co., 95 Pa. 211, are authority.
    The employer’s knowledge of a defect may be inferred from the notoriety of its existence or from the length of time it has existed : Walkowski v. P. & G. Consolidated Mines, 41 L. R. A. 33, note VI, b and d.
    The employee does not assume the risk of a danger not ordinarily incident to his employment and not obvious to him : Hoffman v. Clough, 124 Pa. 505 ; O’Brien v. Sullivan, 195 Pa. 474 ; Trainor v. Railroad Co., 137 Pa. 148 ; Penna. R. R. Co. v. Zink, 126 Pa. 288 ; Bannon v. Lutz, 158 Pa. 166 ; Kehler v. Schwenk, 151 Pa. 505.
    March 6, 1905:
   Opinion by

Mb. Justice Fell,

In the business of manufacturing structural iron and steel, conducted by the defendant as a receiver, use was made of a large stationary riveting machine driven by compressed air. The pieces of iron and steel to be riveted were held in place by bolts which passed through them, and were swung from a traveling crane which moved on girders above the machine and carried the pieces between its jaws. In each jaw there was set a cylindrical piece of steel oh which there was a hollow or cup, the size and shape of the head of a rivet. One of the cups was fixed, the other was movable, and its position was changed by the use of a lever. The hot rivets inserted in the holes in the pieces were brought successively in a position where one end of a rivet would fit into the immovable cup. The other cup was then driven forward by turning on the compressed air with such force as to head the rivet. When rivets had been placed in all the holes except those occupied by the temporary bolts, the pieces were carried forward a few inches and the bolts were removed. The pieces were then swung back between the jaws of the machine, rivets placed in the empty holes, and the work of riveting was completed. A number of men were employed about the machine in handling the structural iron, heating and inserting the rivets and adjusting them to the cups, and in removing the temporary bolts.

On the first day of his employment in the shop the plaintiff was directed to remove the bolts. In doing this he stood a foot and a half from the machine and loosened the nuts with a wrench and took out the bolts with his hands. He had been engaged at this work only a few hours when the pieces from which he was removing a bolt swung back between the jaws of the machine, his glove caught on a nut and his hand was carried back between the cups. At the same instant the machine started in motion, the cups closed and his hand was crushed between them.

What caused the machine to start no one seemed to know. The operator was some distance from it and no one touched it at the time. Witnesses, some of whom operated the machine and others of whom had worked about it, testified that frequently it started automatically and that it had done this from the time it was first placed in the works five or six years before, and that this was generally known in the shop. What caused the automatic starting of the machine was not shown further than that it was probably due to the variation of air pressure on the valves. It was shown that the self-action was not due to a condition brought about by wear and tear but that it was an inherent tendency, resulting from the machine’s construction. The danger then to which the plaintiff was exposed was not one ordinarily incident to his employment nor obvious to him. No one would anticipate the sudden starting in motion of such a machine because of some peculiarity of its construction. When it was at rest and no one was near it to start it by accident or design, it was apparently as harmless as any other inanimate and quiescent object, and the plaintiff might assume he was safe in standing close to it where his work required him to be. The danger was a hidden one, of the existence of which it might be inferred that his employer knew or should have known. Against such a danger there was a duty to warn him.

The case was clearly one for the jury and it was submitted in a manner that carefully and fully guarded the defendant’s rights.

The judgment is affirmed.