text:
    Cooper v. Altoona Concrete Construction & Supply Company, Appellant.

      Appeals — Assignments of error — Unnecessary assignments.

    1. Assignments of error should be confined to the substantial and material questions necessary to a proper determination of the issues in controversy. Two assignments should never be made when one will cover the ground.

      Lateral support — Promise of care — Charge of court.

    2. In an action to recover damages for injuries to a building resulting from an excavation made by the defendant on an adjoining lot, where it appears that the defendant before he made the excavation promised that he would be particularly careful and guard plaintiff’s wall, such promise is no justification for an instruction to the jury that the law would impose on the defendant the duty of unusual caution and care in making the excavation.
    3. An owner of land cannot disturb the land of the adjoining owner by withdrawing lateral support, but if he does, the damages resulting will only be for the injury to the land, and not to the building. If the excavator has made a promise to be very careful he has no higher duty to perform than his promise implies, and the law does not impose upon him the duty of unusual caution and care.
    4. The excavator is not answerable in damages unless the excavating was done in a negligent and careless manner, or unless the plaintiff was misled to his injury by the promise of the defendant to do the work in a particular manner. In either event it is for the jury to say whether under all the facts and circumstances the excavating was done in a negligent and careless manner, and if so, did the wall fall as a result of that negligence.
    5. If the excavator changes the plan promised without giving ample notice to the adjoining owner, he takes the chances of having a jury say he was negligent under the circumstances.
    Argued April 17, 1911.
    Appeal, No. 240, Jan. T., 1910, by defendant, from judgment of C. P. Blair Co., June T., 1910, No. 123, on verdict for plaintiff in case of Lloyd Cooper v. The Altoona Concrete Construction and Supply Company.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Reversed.
    Trespass to recover damages for injuries to a building and its contents. Before Baldridge, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $1,686.45. Defendant appealed.

      Errors assigned were (1-35) various rulings and instructions sufficiently appearing by the opinion of the Supreme Court.

      Thomas H. Greeny and A. V. Dively, with them E. G. Brotherlin, for appellant.
    In order to recover there must be want of due care or skill or positive negligence. Matulys v. Coal & Iron Co., 201 Pa. 70; McClelland v. Schwerd, 32 Pa. Superior Ct. 313.
    Where weighty structure^ contribute to the injury there can be no recovery: Richart v. Scott, 7 Watts, 460; Shultz v. Byers, 53 N. J. Law, 442 (13 L. R. A. 569). Transportation Co. v. Chicago, 99 U. S. 635.
    Lateral support extends to ground only in its natural state: McGettigan v. Potts, 149 Pa. 155; Schultz v. Byers, 53 N. J. Law, 442 (13 L. R. A. 569); Gildersleeve v. Hammond, 109 Mich. 431 (33 L. R. A. 46).
    The landowner must protect his own buildings.

      Thomas C. Hare, for appellee.
    We concede the rule that an owner of land is entitled to lateral support for his ground in its natural state and does not include such support for the protection of buildings, or other structures placed upon it. That rule, however, applies only in case of an excavation made “without negligence” and “with ordinary care and skill” and is subject to the qualification that one excavating upon his own land shall use ordinary care to cause no unnecessary damage to his neighbor’s property in so doing: McGettigan v. Potts, 149 Pa. 155; Matulys v. Coal & Iron Co., 201 Pa. 70; Hennicker v. Lepper, 6 L. R. A. (N. S.) 243; Dunlap v. Wallingford, 1 Pitts. 127; Larson v. Railway Co., 110 Mo. 234 (16 L. R. A. 330).
    May 8, 1911:
   Opinion by

Mr. Justice Elkin,

This is an action of trespass to recover damages for injuries to a building and its contents resulting from an excavation made by appellant on an adjoining lot. At the outset attention of counsel is called to the numerous, and, as we view it, unnecessary multiplication of specifications of error. There are thirty-five assignments which is perhaps six times as many as really necessary to raise all the legal questions involved here. The aim of our system of pleading and practice is to reduce all matters in controversy between contending parties to simple definite issues. When appeals are taken to this court the assignments should be confined to the substantial and material questions necessary to a proper determination of the issues in controversy, the fewer the better. Two assignments should never be made when one will cover the ground. It is scarcely possible to think of a case of this character in which it is necessary to assign thirty-five errors in order to bring to the attention of this court the real questions relied on by an appellant. The multiplication of assignments weakens rather than strengthens a case.

We do not agree that judgment non obstante veredicto upon the whole record should have been entered for defendant by the learned court below as is contended by appellant. This was a case for the jury and we are only concerned to know whether it was properly submitted. It will be impossible to discuss all of the assignments without unduly prolonging the opinion. We have concluded that the judgment should be reversed and will indicate in a general way our reasons for reaching this conclusion. The whole case turns upon the instruction given by the learned trial judge as to a promise alleged to have been made by an officer of the appellant company to the appellee, an abutting owner, concerning the protection of his wall while the excavating was being done. This promise was as follows: “We are going to be very careful. We are going to take it out in sections and shore it up as we go along. We don’t want to have any accident and don’t want to kill anybody and will be very careful.” In instructing, the jury as to this question the learned trial judge said: “If such a promise was made by Mr. Brandt that he would be particularly careful and guard his wall then the law would impose on him a duty of unusual caution and care; more than ordinary caution and care, unusual caution and care.” This instruction was substantially repeated in several parts of the charge and taken in connection with the manner in which the whole case was tried and submitted to the jury, constitutes in our opinion, reversible error. We agree-with the contention of the learned counsel for appellant that in the absence of this promise it is doubtful whether there could be a recovery for injuries to the buildings and other property resulting from the withdrawal of lateral support because of the lack of affirmative evidence tending to show actual negligence. There is no difficulty about the general rules of law applicable to such cases. The owner of the lot on which the excavating was done had the unquestioned right to do, or have done, all that was done. He could not disturb the land of the adjoining owner by withdrawing lateral support, but if he did, the damages resulting would only be for injury to the land and not to the building. Cooper was bound in law to support and protect his own building. The excavator on the adjoining lot was only bound to use due care so as not to negligently or carelessly inflict an injury upon the property of his neighbor. However, in all such cases, there are reciprocal duties which the adjoining owners owe to, each other. These rights and duties should be carefully-guarded in order that each owner while in possession and enjoyment of his own property shall have due regard for the rights of his neighbor. When excavations are to be made under such circumstances, it is both wise and prudent that the adjoining owners should agree as to the manner in which the excavating shall be done, in order that each may enjoy his own rights and protect his own property. If, then, the excavator make a promise to the adjoining lot owner that he will excavate in a certain way, and this method is satisfactory to both parties, it is not placing any undue burden upon him to require it to be done in that way, or at least to give notice if the plan agreed upon be changed, so that the adjoining owner may have the opportunity of taking the necessary steps to protect his property. We agree, therefore, with the learned court below that the appellee so far as he had any duty to perform had a right to rely under the circumstances on the promise thus made. The promise, however, did not place upon appellant a greater burden than he voluntarily assumed. The promise was to be careful and excavate in sections and shore up as the work proceeded. He was not bound to do anything more than he promised and had no higher duty to perform than his promise implies. The instruction of the trial judge to the effect that in view of his promise the law imposed upon him the duty of unusual caution and care was erroneous. It might have misled the jury. He might have done all he- promised to do and still the building of appellee might have fallen. If so, there would be no liability in damages. But under the instruction the jury might have concluded that his duty required him to take such unusual caution and care as to prevent the wall from falling under any circumstances. The mere fact that the wall fell did not in itself create a liability on the part of appellant to pay damages for injuries thus resulting. It might have fallen even if the work had been done as appellant promised to do it. This might have resulted from defects in the wall, or in the foundation, independently of any negligent act on the part of appellant, or without reference to the failure to excavate in the manner promised, and if so, there could be no recovery because the negligence complained of, or the failure to do the work in the manner promised which is the same thing, would not under such circumstances be the cause of the injury. All of these things are for the jury under proper instructions from the court. Appellant is not answerable in damages unless the excavating was done in a negligent and careless manner, or unless appellee was misled to his injury by the promise of appellant to -do the work in a particular manner. In either event it is for the jury to say whether under all the facts and circumstances the excavating was done in a negligent and careless manner, and if so, did the wall fall as a result of that negligence? The adjoining owner in every such case must take the necessary steps to protect his own buildings, or he must agree with the excavator on a method of doing the work which will an-. swer the same purpose. If the parties agree as to the method of excavating, and this method is followed by the excavator, and the adjoining wall, notwithstanding the method agreed upon, falls, the excavator would be relieved from damages. If the excavator change the plan promised without giving ample notice to the adjoining owner, he takes the chances of having a jury say he was negligent under the circumstances. A review of the record convinces us that the rights and duties of the parties were not clearly set forth in the -charge to the jury, and a higher duty was imposed upon the appellant than the law requires. We do not pass upon the merits of the numerous assignments of error for the reason that they relate to incidents of the trial and can be corrected, if need be, when the case is again tried.

Judgment reversed and a venire facias de novo awarded.


source: Caselaw Access Project

author: Mr Justice Elkin,

license: Public Domain

text:
    Reeder v. Lehigh Valley Coal Company, Appellant.

      Negligence — Mines and mining — Trolley wire in mine — Guarding wire — Statutory duly■ — Act of June 2,1891, P. L. 176 — -Mine foreman— Fellow servant — Master and servant.

    1. When failure to perforin a statutory duty is set up as the basis of a claim for damages the burden is on the party so claiming to point to the statute which expressly imposes the duty. When the legislature takes a step in advanod of the common law and imposes additional burdens upon an employer in order to meet the neccessities of modem industrial growth, the new duties thus imposed should be so clearly set forth as to leave no doubt as to the legislative intention.
    2. There is nothing in the Act of June 2, 1891, P. L. 176, to include a trolley wire in the designated kinds of dangerous machinery which were required by the act to be: “protected by covering or railing so as to prevent persons from inadvertently walking against or falling upon the same; ” but although this is the case, a duty yet exists upon the owner of the mine in installing an electric trolley system to provide safety appliances, such as are in general use in the business of mining, and also to keep such system inspected and properly maintained.
    3. Where a mining company permits a usual passageway for its workmen to become covered with several inches of water, so that the workmen make use of a less desirable and more obstructed passageway on the other side of the tunnel, and one of the workmen in carrying a keg of powder along such passageway inadvertently brings the keg in contact with an unguarded trolley wire which the company had permitted to sag, and an explosion occurs, and another workman is injured, such workman may recover damages from the mining company for his injuries, if the workman carrying the keg was not guilty of contributory negligence.
    4. Rule 43 of the mining act of 1891, contemplates the use of one passageway for men and coal cars at the same time.
    5. Where a miner in carrying a keg of powder along a passageway in a mine brings it in contact with an unguarded trolley wire which had been permitted to sag, and an explosion takes place resulting in an injury to a fellow workman, the contributory negligence of the miner carrying the keg of powder, is a question for the jury where the evidence is not entirely clear that the danger from the sagging trolley wire was so open and obvious as to warrant the court in saying as a matter of law that the workman should have seen and avoided it. If the jury finds that the workman who carried the keg was not guilty of contributory negligence, the fellow servant rule cannot be invoked by the mining company to relieve it from liability for the personal injuries suffered by the other miner.
    6. The electric trolley system of a mine, like all the other underground workings, should be under the supervision of the mine foreman, and if he has been negligent in permitting an unguarded trolley wire to sag, causing an injury to a miner, the owner of the mine will not be liable for the injuries sustained; but where there is evidence that the electric trolley system has been placed under the charge of an electrical engineer acting under the direction of the mine superintendent, it is for the jury to say whether the wire was in charge of the mine foreman, or of the electrical engineer acting under the authority of the superintendent, and not subject to the orders of the mine foreman.
    Argued Feb. 13, 1911.
    Appeal, No. 279, Jan. T., 1910, by defendant, from judgment of C. P. Schuylkill Co., Nov. Term, 1906, No. 68, on verdict for plaintiff in case of Martin Reeder v. Lehigh Valley Coal Company.
    Before Fell, C. J., Mestkezat, Potter, Elkin and Moschzisker, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Broom, J.
    The facts are stated in the opinion of the Supreme Court.
    The trial judge charged in part as follows:
    The plaintiff also claims that the defendants were negligent and failed to carry out the law in having a live electric wire within reach or touch of passers-by unprotected, under the act, as has been read to you, requiring them to have guards at all dangerous places. It is true, the act of assembly does not specifically mention electric wires, but we call your attention to the fact that when this act of assembly was passed electric appliances were hardly in use in mines, and not being in use as means of transportation, we should say, in gathering the intent of the legislators, that their not being specifically named may be accounted for by that fact. The plaintiff’s position is that they are dangerous in themselves'and liable to come in contact with persons passing to and fro, and that it is such a failure to comply with the spirit, if not the letter of the law, that the defendants should be held responsible for any accident that may occur by reason of their having that wire as stated uncovered, or unprotected.”
    Of course, we do not mean, when we say uncovered, that it should be insulated by covering all over the wire, because then the trolley could not act; there must be contact between the wire and the trolley wheel, but some guard, such as a trough, an inverted trough made of wood, or other substance, that would make it difficult for any person to come in contact with the wire, especially with a keg of powder, or almost with anything else. We say to you that, if you believe that the defendant violated the law by not having that wire protected, under the evidence and the law as we have given it to you, then the defendant company was negligent. And, if it failed to have a proper, that is, a safe and dry passageway for its workmen to go to and from their work, and by reason of either one or both of these conditions existing, an accident occurred, that then this defendant company would be liable for any damages resulting from an accident occurring as we have stated.] [2]
    [The plaintiff claims that the defendant violated the mine law in two several respects especially: first, that under the mine law the defendant was bound to furnish a safe and dry passageway for men to go to and from work. They claim that in this instance there was no passageway at all; that the railway, if there had been no cars there, would have been a safe and dry passageway, so far as the passageway itself was concerned, but, inasmuch as it was used for transporting cars loaded and empty, that that is not what is contemplated in the act of assembly; that it does not mean that the defendant had a right to combine a transportation way for coal, and so forth, with a passageway for men, as it would be impossible for men and the coal cars to go through that passageway either way at the same time.
    They also claim that the gutter which was from two to three feet wide at the lower side of this tunnel was not such a passageway as is contemplated by the act of assembly; that it was not practicable for men to go to or from their work in that drain or gutter; that there was running water there, draining from the whole colliery, naming the number, or at least a number of gangways that were drained, we think there were five. We say to you that under our construction of the law the defendant had no right to say that a drainage way met the requirements of the act which says that they shall furnish a safe and dry passageway to go to or from the work.] [3]
    [We say further that if this jury finds that the defendant company was negligent in having that live wire there, and by reason of the presence of that wire and its coming in contact with a keg of powder the explosion of that keg of powder was caused, and though that keg of powder was placed there, even intentionally, or inadvertently by James Smith, and that the plaintiff had nothing to do with the touching of that, or had in no way control of it, then the plaintiff would be entitled to a verdict. And we say that whether the plaintiff provided a safe and dry passageway or not, provided the question of the passageway had nothing to do with the plaintiff. The matter of the passageway did have to do with Smith, because Smith did not use the safe and dry passageway. The explosion was occasioned by his using a passageway that was not contemplated to be used by the defendant company. But if this accident occurred, even though James Smith did not use a proper passageway, by reason of an explosion for which James Smith jointly with the defendant company was responsible, and the plaintiff, though he may have used a wrong passageway himself, and you believe that he would have been burned whether he would have been to the one or the other side of this trip, the plaintiff would be entitled to recover, as his presence and his action had nothing to do with the accident, nor anything to do with the result of the accident, if you believe the testimony as it stands here uncontradicted on that point.] [5]
    Verdict and judgment for plaintiff for $6,500. Defendant appealed.

      Errors assigned among others were (2, 3, 5) above instructions, quoting them, and (7) refusal of binding instructions for defendant.

      Daniel W. Kaercher, with him Samuel H. Kaercher and Frank W. Wheaton, for appellant.
    The unbending test of negligence in methods, machinery and appliances is the ordinary usage of the business: Dalton v. Towanda Borough, 215 Pa. 402; Kelher v. Schwenk, 144 Pa. 348; Keenan v. Waters, 181 Pa. 247.
    The trial judge was clearly in error in directing attention of the jury solely to the conditions on the east or low side of the tunnel, when the conditions on the high or west side met all the requirements of the mine law: Welch v. Carlucci Stone Co., 215 Pa. 34; Politowski v. Burnham, 214 Pa. 165; Ross v. Walker, 139 Pa. 42.
    The master does not insure his employees against each other, nor is he bound to supervise and direct every detail of their labor. They must exercise their own senses: Lehigh Valley Coal Co. v. Jones, 86 Pa. 432.
    Where the injury complained of is due to the negligence of a fellow workman, the master is responsible neither in law or morals: Durkin v. Kingston Coal Co., 171 Pa. 193; Ross v. Walker, 139 Pa. 42; Myers v. Edison Electric Illuminating Co., 225 Pa. 387; Kuhns v. Frick Coke Co., 216 Pa. 385; Coleman v. Keenan, 223 Pa. 29.

      A. D. Knittle, for appellee.
    It is the master’s positive duty to protect his men by furnishing them with a reasonably safe place to work in: Gulla v. Lehigh Valley Coal Co., 28 Pa. Superior Ct. 11; Burns v. Vesta Coal Co., 223 Pa. 473; Weaver v. Iselin, 161 Pa. 386; Vanessee v. Coal Co., 159 Pa. 403; Silliman v. Marsden, 9 Atl. Repr. 639.
    If an employer takes part of the mine from the charge of the mine foreman, and an accident happens there, the company is liable: Silliman v. Marsden, 9 Atl. Repr. 639; Burns v. Vesta Coal Co., 223 Pa. 473; Vanessee v. Coal Co., 159 Pa. 403.

      May 17, 1911:
    If it is the duty of the company, under the act of 1891, to protect this wire so the men could not inadvertently come into contact with it, then there could be no question of assumption of risk by the plaintiff, because nothing but absolute performance of a statutory duty would relieve an employer: Gulla v. Lehigh Valley Coal Co., 28 Pa. Superior Ct. 11; Penna. R. R. Co. v. Ogier, 35 Pa. 60; Cannon v. Traction Co., 194 Pa. 159; Baker v. Northeast Borough, 151 Pa. 234; Hookey v. Oakdale Borough, 5 Pa. Superior Ct. 404.
    The combined or concurrent negligence of the master and a fellow servant is no defense to the master: Kaiser v. Flaccus, 138 Pa. 332; Johnson v. Bruner, 61 Pa. 58; Burrell Twp. v. Uncapher, 117 Pa. 353; McKenna v. Gas Co., 198 Pa. 31; Kirchner v. Smith, 207 Pa. 431; Wolcutt v. Erie Coal & Coke Co., 226 Pa. 204; Dempsey v. Buck Run Coal Co., 227 Pa. 571.
   Opinion by

Mr Justice Elkin,

The negligence relied on to sustain a recovery in the present case is óf a threefold character; first, failure to provide a safe and sufficient passageway for the men in going to and from their work; second, failure to properly guard the trolley wire which it is alleged was a statutory duty from which nothing but performance would relieve appellant; and third, that the trolley wire was insufficiently inspected and negligently maintained, and was not under supervision of the mine foreman but was: in charge of an electrician employed by the superintendent. The learned trial judge instructed the jury that it was the duty of appellant to guard the trolley wire by an inverted trough, or in some other safe way, in order to protect the men from inadvertently coming in contact with it as they passed through the tunnel. This instruction was based on the theory that a statutory duty to guard the trolley wire was imposed upon appellant by article V, sec. 5, of the Act of June 2, 1891, P. L. 176. This section provides that: “All machinery used in or about the mines and collieries, and especially in breakers, such as engines, rollers, wheels, screens, shafting and belting, shall be protected by covering or railing so as to prevent persons from inadvertently walking against or falling upon the same.” Trolley wires are not included in the enumeration of the kinds of dangerous machinery and appliances to be protected by a covering or railing. The learned trial judge suggested as a reason for not including trolley wires in the enumeration of the dangerous kinds of machinery named in the act, that the use of electricity had not been introduced in the operation of mines at the time of its passage. It is doubtful whether this statement is in accordance with the facts relating to the use of electricity in mining operations. It may not have been in general use, but it was in use for some purposes in many mines, and in some mines an electric haulage system had been installed prior to the passage of the act. However, the point at issue does not depend upon the history of the introduction and use of electricity in mining operations. When failure to perform a statutory duty is set up as the basis of a claim for damages, the burden is on the party so claiming to point to the statute which expressly imposes the duty. When statutory duties are imposed we must look to the statute to ascertain what the duties are. Such duties are presumed to be different in kind and degree from those imposed by the common law, else there would be no necessity for the legislation. Statutory duties do not arise by implication but must be imposed by express legislative authority. When the legislature takes a step in advance of the common law and imposes additional burdens upon an employer in order to meet the necessities of modern industrial growth, the new duties thus imposed should be so clearly set forth as to leave no doubt as to the legislative intention. There should be no such thing as a doubtful statutory duty. The section of the act of 1891 relied on in the present case requires all dangerous machinery used in or about mines, such as engines, rollers, wheels, screens, shafting and belting to be protected by a covering or railing. There is nothing in the language used to indicate an intention to include a trolley wire in the designated kinds of dangerous machinery. This may have been an oversight, or it may be that dangers of this character were not anticipated, but in either event the result is the same, because the act is entirely silent on the subject of guarding trolley wires. Again, it must not be overlooked that a trolley wire cannot be insulated or covered without interfering with the function it performs in transmitting the electric current. Under these circumstances it is not for the courts to say there was a statutory duty in this respect when the statute did not so provide. We, therefore, hold that there was no statutory duty requiring appellant to guard the trolley wire by placing an inverted trough over it. Notwithstanding what has been said about there being no statutory duty, it does not follow that no duty rested upon appellant in the installation and maintenance of an electric haulage system. The test of liability in the present case is not failure to perform a statutory duty, but whether appellant failed to provide an electric haulage system of the usual and ordinary character used in mining operations. The employer is not bound to provide the safest machinery or the newest and most approved appliances. He has performed his duty in this respect when he provides appliances such as are in general use in the business, trade, or industry in which he is engaged: Kehler v. Schwenk, 144 Pa. 348; Keenan v. Waters & Son, 181 Pa. 247. It is always important to keep in mind in this class of cases that the test of liability is not danger but negligence, and negligence is never imputed from the employment of methods or machinery in general use in the business: Reese v. Hershey, 163 Pa. 253. As we understand the facts of the present case, it is not contended that the electric haulage system was defective in construction, or that it was different from other systems in general use in the operation of mines, but it is asserted that it was not carefully inspected or properly maintained. There is some evidence tending to show that the trolley wire had been allowed to sag between the brackets, or perhaps had pulled loose from its fastenings at the brackets, until it hung within a few inches of the top of the loaded cars.. As a result of this sagging it is contended that the situation became dangerous to the men in lifting their kegs of powder as they attempted to cross between the cars from the west to the east side of the tunnel. It may very well be argued that if the trolley wire had been maintained in its proper position the accident would not have occurred because in that event there would have been sufficient space between the top of the loaded cars and the suspended trolley wire in which the kegs of powder could be safely carried over. In this connection it is important to keep in mind the exact situation as bearing on the duties of the employer on one side and the rights of the employees on the other. Appellant was not bound to furnish a different kind of trolley wire or to place it in a different position in the mine. If it appeared as a fact that the trolley wire had been properly installed and had remained in its original position, no negligence could be imputed to the mining company because one of its employees inadvertently or otherwise, placed the keg of powder in contact with it. The mere happening of the accident did not prove negligence. There can be no recovery in this case unless the sagging of the trolley wire was the proximate cause of the injuries which resulted from the explosion.

There is another branch of the case that must be considered in this connection. It is alleged that the mining company did not provide such a passageway for the men to pass through the tunnel as the act of 1891 requires. Rule 43 of this act provides as follows: “Every passageway used by persons in any mines and also used for the transportation of coal or other material, shall be made of sufficient width to permit persons to pass moving cars with safety, but if found impracticable to make any passageway of sufficient width, then holes of ampler dimensions, and not more than one hundred and fifty (150) feet apart, shall be made on one side of said passageway. The said passageway and safety holes shall be kept free from obstructions and shall be well drained. ...” The passageway on the low or east side of the tunnel answered the requirements of the act as to space and width, but it is contended that it was rendered unfit for use by the miners because it was used as a drainage channel for the mine and several inches of water constantly flowed through it. If it were not for the water running through this passageway we would be compelled to say it was ample to meet the requirements of the statute, and that the employees wére bound to use it, or take their chances in entering the mine by a more dangerous way. We cannot believe, however, that the legislature intended the miners to wade through several inches of water in going to their work through a tunnel in which a safe passageway must be provided. Under these circumstances appellee and his fellow workmen were justified in making use of the less desirable and more obstructed passageway on the west side of the tunnel. Appellant could have avoided the water difficulty by paving over the drainage channel and thus have provided a safe passageway for its men as well as drainage for its mine. It did not do so and it is not therefore in position to set up as a defense in this suit that it had provided a safe passageway on the east side of the tunnel and that the men were guilty of contributory negligence in choosing a more dangerous entrance to the mine.

The passageway on the west side was ample except as obstructed for forty or fifty feet near the point where the accident occurred. As before stated, we think the men were justified under the circumstances'in making use of this passageway. When they found themselves in a position where they could go no farther on account of the loaded trip of cars narrowing the space to pass through, it became necessary for them to return to a place of safety. Whether they were guilty of contributory negligence in what was subsequently done in an attempt to find a safe place was a question for the jury.

It is suggested in the argument for appellant that - the trial judge in effect charged the jury that the mining company did not have the right to combine a transportation way for coal with a passageway for men on account of the dangers that might result by using the passageway for men and coal cars at the same time. Such an instruction would be clear error. Rule 43 contemplates the use of one passageway for both purposes. It expressly provides that the passageway "shall be made of sufficient width to permit persons to pass moving cars with safety.” If separate passageways were required there would be no necessity for all the safeguards to men required by this statutory rule. The requirements of the rule are based upon the use of a common passageway for the transportation of coal as well as for the men.

Again, it is argued with much force, that if there was any negligence in the case at bar, it was the negligence of the mine foreman, or of the miner who caused the explosion in attempting to carry his keg of powder over a car of coal, and as both were fellow servants of appellee, there can be no recovery of damages for the injuries sustained. If the facts upon which this position is based be conceded, it would be a correct statement of the rule of law. The accident occurred on September 16, 1905, and the right to recover depends upon the law as it stood at that time. There can be no recovery if the injuries for which damages are claimed resulted from the negligent act or acts of a fellow servant: Mansfield Coal & Coke Co. v. McEnery, 91 Pa. 185; Redstone Coke Company v. Roby, 115 Pa. 364; Hall v. Simpson, 203 Pa. 146. James Smith, the miner who carried the keg of powder alleged to have caused the explosion, was a fellow servant of appellee, and, if his negligence caused the injuries, the right of action is barred. Was he so clearly guilty of contributory negligence as to require the court to so declare as a matter of law, or was this a question of fact for the jury? This is the real question on this branch of the case, and whether it was for the court or for the jury depends upon the facts proven at the trial. An employee is presumed to know and appreciate the obvious, and his duty requires him to exercise his senses so as to avoid open and apparent dangers: Kuhns v. Frick Coke Co., 216 Pa. 385; Vant v. Roelfs, 217 Pa. 535; Myers v. Edison Electric Illuminating Co., 225 Pa. 387. There is no difficulty about the rule announced in these and other cases of a similar character. When the rule is applicable it must clearly appear from the evidence that the danger was so open and obvious as to require an employee in the proper exercise of his senses to see and avoid it. ‘When it is so open and obvious it is the duty of the courts to so declare. After a careful review of the testimony in the present case we are in some doubt as to the proper application of the rule. In other words, it is not entirely clear that the danger from the sagging trolley wire was so open and obvious as to warrant the court in saying as a matter of law that James Smith should have seen and avoided it. We agree that he and all other employees were bound to know of the installation of the electric haulage system and of the location of the trolley wire over the west side of the track and above the coal cars. But this very knowledge may have misled them because if the wire had been in its proper place there might have been sufficient space to carry the keg of powder safely over. We think it would do violence to the rule for the court to hold that James Smith was bound to know that the trolley wire broke loose from its fastenings and hung several inches lower than it usually did. The situation has something to do with the question. The accident occurred in a tunnel in a coal mine. The space was narrow and limited. The tracks were occupied by a trip of coal cars at the point where the explosion occurred. The employees were apprehensive for fear the trip of cars might move before they could reach a place of safety. Under these circumstances it was for the jury to say whether due care had been exercised by the fellow employees under the circumsta.nces. We therefore hold that as to James Smith and his fellow miners the question of- contributory negligence was for the jury.

But it is argued it was the duty of the mine foreman to see that the trolley wire was maintained in good repair, and if there was any negligence in this respect it was the negligence of the mine foreman for which appellant is not liable. It has been held in a long line of cases that the mine owner is not liable for the negligent acts of a mine foreman committed in the discharge of duties imposed upon him by law and in and about those workings over which he exercises supervision. From Lehigh Valley Coal Co. v. Jones, 86 Pa. 432, and Durkin v. Kingston Coal Co., 171 Pa. 193, to Golden v. Mount Jessup Coal Co., 225 Pa. 164, this rule has remained unbroken. It may therefore be said to be settled law. It is contended for appellee that the appellant company cannot claim the protection of this rule in the present case because the electric haulage system was not under the supervision of the mine foreman and that it was installed, maintained and kept in repair by the company itself which employed through its superintendent an electrical engineer for this purpose. We see no reason why the electric haulage system like all other underground workings should not be under the supervision of the mine foreman. Rule 1, of article 12, of the act of 1891, provides that the mine owner, '' shall place underground workings thereof, and all that is related to the same, under the charge and daily supervision of a competent person, who shall be called 'mine foreman.’ ” Rule 2 provides for the employment of a sufficient number of competent assistants when the mine foreman cannot personally attend to all of his duties. These assistants when so employed are under the control and subject to the orders of the mine foreman. Rule 13 makes it the duty of the mine foreman, or his assistants when so employed, to examine at least once every day all slopes, shafts, main roads, traveling ways, signal apparatus, pulleys and timbering and see that they are in safe and efficient working condition. Clearly, therefore, the framers of the statute had in contemplation that all of the underground workings should be in charge of the mine foreman, and the wisdom of so providing is not open to doubt. In dangerous work of this character it is a wise precaution to have a competent mine foreman duly certified by the commonwealth with certain statutory duties to perform as a protection to the health and safety of the men thus employed as well as to the property of the mine owner. But the owner can claim the protection of the law only so far as he complies with its provisions. If the mine owner elect to take certain parts of the machinery and appliances out of the charge of the mine foreman and exercise direct supervision through the superintendent over the same, the law will not give him the protection he would otherwise be entitled to if all of the underground workings had been committed to the care and supervision of a properly certified mine foreman. In other words, the mine owner is only relieved from responsibility for the acts of the mine foreman in connection with the underground workings committed to his care. If all of the underground workings are committed to the care of the mine foreman as the law clearly contemplates they should be, it then becomes the duty of the mine foreman to see that all of the safeguards required to protect the men are provided, and negligence in the performance of these statutory duties by the mine foreman cannot be imputed to the owner. We think it would be safer and wiser for all parties concerned if all the underground workings should be committed to the care and supervision of the mine foreman and then there would be no division of authority. When, however, this is not done, and accidents occur, courts must accept the facts as presented and apply the law accordingly. The exception to the general rule is pointed out in Wolcutt v. Erie Coal & Coke Company, 226 Pa. 204. There is testimony in the case at bar tending to show that the electric haulage system, including the trolley wire alleged to have caused the explosion, was not committed to the care of the mine foreman, but was in charge of an electrical engineer acting under the direction of the mine superintendent. If this be the fact, appellant is not in position to claim protection on the ground that it was the duty of the mine foreman to see that the trolley wire was properly maintained. At least under these circumstances it was for the jury to say whether the trolley wire was in charge of the mine foreman, or of the electrical engineer acting under the authority of the superintendent and not subject to the orders of the mine foreman. We find it impossible to discuss every question raised, but have indicated our general views as to the issues involved as a guide to all concerned when the case is again tried.

The first, second, third, fourth and fifth assignments of error are sustained.

Judgment reversed and a venire facias de novo awarded.


author: Mr. Justice Elkin,

text:
    Pauza v. Lehigh Valley Coal Company, Appellant.

      Negligence — Damages—Mortality tables — Evidence—Capitalisation of future payments.

    1. When mortality tables are introduced into evidence it is the duty of the trial judge to instruct the jury that the tables are not to be accepted as establishing the expectancy of the life of the injured party, but only as an aid in arriving at what that expectancy might be in view of all the conditions surrounding the particular life in question. Such conditions are to be considered as the party’s prior state of health, character and habits, perils of employment, personal characteristics and other circumstances surrounding his own life.
    2. When future payments are to be capitalized in a verdict, the plaintiff is only entitled to their present worth, and the jury should have such guidance from the court as will give them an intelligent understanding of what this means.

      Evidence — Hearsay—Cross-examination—Striking out evidence.

    3. Where a witness has testified that an act was done by a particular person, but on cross-examination admits that he had learned from other parties that the act was done by the person he had named, it is the duty of the court to strike out the testimony offered in chief, as hearsay evidence.

      Negligence — Master and servant — Mines and mining — Safe appliances.

    4. Where in an action to recover damages for personal injuries, it appears that the negligence complained of was the leaving of a trolley line unguarded, and the evidence is that the electric system was of the usual and ordinary character in general use in mines, and that it had been properly installed, it is reversible error for the trial judge to charge that “it is the province of this jury to use your judgment as reasonable men, as to what is a proper installation and construction of a dangerous appliance under all the circumstances and conditions as testified to you, in that tunnel.”
    5. An employer is not bound to provide the safest machinery or the newest and most approved appliances. He has performed his duty in this respect when he furnishes those of the ordinary character in general use in the business in which he is engaged.
    6. In an action against the owner of a mine to recover damages for personal injuries alleged to have been caused by leaving a trolley line unguarded at a dangerous place in the mine, where the evidence is contradictory as to whether the mine foreman, or the superintendent, had charge of the electric system, the case is for the jury.
    Argued Feb. 13, 1911.
    May 17, 1911:
    Appeal, No. 19, Jan. T., 1911, by defendant, from judgment of C. P. Schuylkill Co., Nov. T., 1906, No. 67, on verdict for plaintiff in case of Paul Pauza v. Lehigh Valley Coal Company.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Brumm, J. See Reeder v. Lehigh Valley Coal Co., ante, p. 563.
    The opinion'of the Supreme Court states the case.
    Verdict and judgment for plaintiff for $7,250. Defendant appealed.
    J

      Errors assigned were various rulings on evidence and instructions.

      Daniel W. Kaercher, with him Samuel H. Kaercher, and Frank W. Wheaton, for appellant.

      A. D. Knittle, for appellee.

   Opinion by

Mr. Justice Elkin,

We have concluded that there must be a reversal in this case on other grounds and do not think it necessary to decide whether the court erred in admitting the mortality tables after the case was closed and arguments to the jury made. When the case is again tried the mortality tables may be offered in evidence in a regular way and at a proper time. When such tables are introduced, it is the duty of the trial judge to carefully guard the effect to be given them by the jury. Unless this is done in a very pointed and direct way by the court, the jury may be misled as to the value and weight to be attached to this character of evidence. The important fact for the jury to determine is the life expectancy of the injured party. This depends more upon his prior state of health, character and habits, perils of employment, personal characteristics, and other circumstances surrounding his own life, than it does upon the average expectancy of other lives based upon mortality tables. The trial judge should instruct the jury that these tables are not to be accepted as establishing the expectancy of the life of the injured party, but only as an aid in arriving at what that expectancy might be in view of all the conditions surrounding the particular life in question. It is not sufficient to instruct the jury that the tables are some aid but not conclusive in determining the life expectancy of the injured party. All the circumstances affecting the probable duration of life disclosed by the evidence should be called to the attention of the jury in order that they may have an intelligent understanding of what their duty is in determining the life expectancy in the particular case submitted to them. The duty of a trial judge in treating evidence of this character is pointed out in Steinbrunner v. Railway Co., 146 Pa. 504; Campbell v. York, 172 Pa. 205; Kerrigan v. Railroad Co., 194 Pa. 98; Seifred v. Railroad Co., 206 Pa. 399.

We think the learned trial judge erred in not striking out the testimony of the plaintiff called to our attention by the third assignment of error. This witness testified in chief that the keg of powder carried by James Smith was exploded by coming in contact with the trolley wire. On cross-examination he admitted that he did not know James Smith but that he had afterwards learned from other parties that it was James Smith who carried the keg of powder that was exploded. This was clearly hearsay evidence and if these facts had appeared when it was offered in chief, it would have been the duty of the court to exclude it. When these facts were subsequently disclosed it was equally his duty to strike it out when the motion was made to do so. It was error to refuse this motion.

The instruction complained of in the fourth assignment is clearly erroneous. This instruction was based upon a wrong theory as to the duty of appellant in installing and maintaining an electric haulage system for the operation of its mines. The trial judge instructed the jury that, “it is the province of this jury to use your judgment, as reasonable men, as to what is a proper installation and construction of a dangerous appliance, under all the circumstances and conditions as testified to you, in. that tunnel.” This instruction ignored every proper test of the measure of duty imposed on an employer in such cases and left it to the jury to use their best judgment in determining whether the electric haulage system had been properly installed. This is not the law. The employer is bound to furnish machinery and appliances reasonably safe for the use intended. Reasonable safety within the meaning of the law means that the machinery and appliances furnished must be of the usual and ordinary kind adopted by those in the same kind of business. An employer is not even bound to provide the safest machinery or the newest and most approved appliances. He has performed his duty in this respect when he furnishes those of the ordinary character in general use in the business in which he is engaged: Ford v. Anderson, 139 Pa. 261; Kehler v. Schwenk, 144 Pa. 348; Keenan v. Waters, 181 Pa. 247. The rule is very concisely and clearly stated by Mr. Justice Mitchell in Titus v. Railroad Co., 136 Pa. 618, in the following language: “The unbending test of negligence in methods, machinery, and appliances, is the ordinary usage of the business. No man is held by law to a higher degree of skill than the fair average of his profession or trade, and the standard of due care is the conduct of the average prudent man. The test of negligence in employers is the same, and however strongly they may be convinced that there is a better or less dangerous way, no jury can be permitted to say that the usual and ordinary way, commonly adopted by those in the same business, is a negligent way for which liability shall be imposed.” The instruction to the jury complained of in the assignment now being considered utterly disregards the rule stated in the case just cited. It is not the province of the jury to set up a standard of their own as a test of negligence. They must be guided by the evidence, and the court should carefully instruct them as to the measure of duty which the law requires. In the ease at bar the only evidence on the subject is that the electric haulage system of appellant was of the usual and ordinary character in general use in mines and that it had been properly installed. There was therefore no question of proper or improper installation to submit to the jury. The only question on this branch of the case for the jury was whether appellant was negligent in allowing the trolley wire to break loose from its fastenings and sag over the loaded cars of coal. This question has been discussed in the opinion just handed down in Reeder v. Coal Co., ante, p. 563, and will not be further considered here.

The ninth assignment raises the question whether appellant was relieved from liability upon the ground that the underground workings of the mine were in charge of a certified mine foreman. If the facts were as stated in the point, it should have been affirmed. But as we read the evidence the electric haulage system was not in charge of the mine foreman. At least this was a controverted question, and if so, it was for the jury to say whether the superintendent or the mine foremen had charge of and exercised supervision over the electric haulage system. When the case is again tried all the facts bearing upon this important question should be fully developed so that the court, or the jury, as the facts warrant, may properly determine who was in charge. We have considered this question more fully in the Reeder case and all that was said there applies with equal force here.

We cannot agree, as is contended for appellant, that a verdict should have been directed for defendant, or that judgment non obstante should have been entered upon the whole record. For the reasons stated in the Reeder case in addition to what has been said in the case at bar it would have been error to have withdrawn the case from the jury.

When the case is again tried it will be the duty of the trial judge to carefully instruct the jury as to the proper measure of damages, especially as relates to the anticipation of future payments. When future payments are to be capitalized in a verdict, the plaintiff is only entitled to their present worth and the jury should have such guidance from the court as will give them an intelligent understanding of what this means: Goodhart v. Railroad Co., 177 Pa. 1; Wilkinson v. Northeast Boro., 215 Pa. 486.

The second, second and a half, third and fourth assignments of error are sustained.

Judgment reversed and a venire facias de novo awarded.


author: Mr. Justice Moschzisker,

text:
    Rymowich v. Schuylkill Railway Company, Appellant.

      Negligence — Street railways — Infant—Case for jury.

    In an action against a street railway company to recover damages for injuries to a child five years old, the case is for the jury where the inference can be drawn from the evidence that the motorman did not know that his car had struck the child, which had darted in front of it, until a bystander ran up and told him, that then he made the first effort to stop the car, and that he could have seen the child if he had been keeping the proper lookout.
    Argued Feb. 14, 1911.
    May 17, 1911:
    Appeal, No. 324, Jan. T., 1910, by defendant, from judgment of C. P. Schuylkill Co., March T., 1909, No. 66, on verdict for plaintiff in case of August Rymowich and his daughter Mary (Minor) v. Schuylkill Railway Company.
    Before Fell, C. J., Brown, Mestrezat, Elkin and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Shay, P. J.
    The circumstances of the accident are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $3,000. Defendant appealed.

      Error assigned among others was in refusing binding instructions for defendant.

      James B. Reilly, with him Frank J. Laubenstein, for appellants.

      William Wilhelm, with him G. F. Brumm, for appellee.
   Opinion by

Mr. Justice Moschzisker,

The accident in this case happened on August 11, 1907, at about 4.45 p. m. in the borough of Shenandoah. Although the testimony was not very satisfactorily presented, yet the jury could have found therefrom that the accident occurred at an intersection or street crossing where the cars were in the habit of stopping on signal to let passengers on and off; that the street upon which the car was running was twenty-five feet in width and the space between the curb-line and the car track was eleven feet; that the motorman had a clear unobstructed view ahead of him for about four squares before he came to the place of the accident; that there was no fender on the car, or anything else to prevent the motorman from seeing the surface of the street immediately ahead of him; that the district through which the car was passing was a thickly populated one; that the child who was hurt was about five years of age at the time of the accident; that the whole occurrence took place within the space of a very few minutes; that the child was standing on the pavement and started to cross the street, and “as soon as she got on the first rail the car hit her,” and she was dragged from twenty to thirty feet; that the car had to go nine feet after the front of it had struck the child before its wheels could come in contact with her body; that a man who was standing seventy feet away ran up and “hollered” to the motorman that he had struck the child and that she was under the car; that the motorman then stopped the car in less than hah its length, or within the space of about thirteen feet; that the car was backed up and the child was taken from beneath it with one of its hands cut off.

From the evidence the inference could be drawn that the motorman did not know that his car had struck the child until the bystander ran up and told him, and that he would have seen the child if he had been keeping the proper lookout. There was no testimony indicating any effort to stop the car until the motorman was informed by the bystander that the child was under it. Under these circumstances it was for the jury to say whether the accident was unavoidable because of the sudden darting out of the child or was due to the negligence of the motorman. These issues were fairly and correctly presented to the jury in a charge which is not complained of.

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


text:
    Solt v. Williamsport Radiator Company, Appellant.

      Negligence — Master and servant — Dangerous machinery — Act of May 2, 1905, P. L. 352 — Shifting belts — Contributory negligence.

    1. To do an obviously dangerous thing which one is required to do in order to perform the duties of one’s employment is an assumption of a risk, but not necessarily contributory negligence. If the statutory law requires guards against such a risk, and the employer has failed to comply with such a requirement, the defense of assumption of risk is not available to him, and in the absence of contributory negligence, the plaintiff can recover. But to do an act necessary to the performance of the duties of one’s employment in a way which is obviously dangerous when one can perform the act in another way known to him, which is reasonably safe, is contributory negligence which will bar a recovery, even though the employer may have been negligent in not complying with the requirements of the statute.
    2. Where an employee attempted to adjust a belt while the shaft on which it worked was running at full speed, and it appears from the evidence that this was a very dangerous action and that there was apparent to the workman another and safer way of doing the work than the method pursued, the employee cannot recover from his employer for injuries sustained in the attempt to adjust the belt although the employer had not provided a belt-shifter, as directed by the Act of May 2,1905, P. L. 352.
    Argued Feb. 14, 1911.
    Appeal, No. 370, Jan. T., 1910, by defendant, from judgment of C. P. Lycoming Co., March T., 1910, No. 341, on verdict for plaintiff in case of Conrad F. Solt v. Williamsport Radiator Company.
    Before Fell, C. J., Brown, Mestrezat and Moschzisker, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Hart, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $1,800. Defendant appealed.

      Error assigned among others was refusal of binding instructions for defendant.

      May 17, 1911:

      James B. Krause, for appellant.
    The plaintiff should not be permitted to recover:
    1. Because he appreciated the danger from his own admission.
    2. Because he voluntarily and knowingly assumed the risk.
    3. Because he knew of a safe way.
    4. Because he violated the rule to slow down engine known to him: McKenna v. Atlantic Refining Co., 227 Pa. 124; Bentley v. Planing Mill Co., 38 Pa. Superior Ct. 172; Lee v. Dobson, 217 Pa. 349; Haven v. Bridge Co., 151 Pa. 620; Stirling v. Merchant & Evans Co., 39 Pa. Superior Ct. 42; Devlin v. Iron Co., 182 Pa. 109; N. Y., L. E. & W. R. Co. v. Lyons, 119 Pa. 324; Fulford v. R. R. Co., 185 Pa. 329; Gilbert v. Ry. Co., 128 Fed. Repr. 529; Betz v. Winter, 195 Pa. 346.

      John J. Reardon, for appellee.
    The ease was for the jury: Lewis v. Seifert, 116 Pa. 628; Winters v. Boll, 204 Pa. 41; Sturtz v. R. R. Co., 225 Pa. 249; Lebbering v. Struthers, Wells & Co., 157 Pa. 312; Jones v. American Caramel Co., 225 Pa. 644.
   Opinion by

Mr. Justice Moschzisker,

■ On May 23, 1909, the plaintiff, a man then forty-nine years of age, while working at the manufacturing establishment of the defendant company, suffered a fracture of the left arm, which necessitated its amputation. He had been employed by the defendant for about two years before the accident, and had been working for nearly two months at the particular kind of employment in which he suffered his injury. In the manufacture of radiators the defendant used what are termed “rattlers,” horizontal iron drums in which are placed the rough castings for the purpose of cleaning and smoothing. It was part of the plaintiff’s duty to keep these rattlers running. They were revolved by means of belts extending to and connected with pulleys on a line-shaft attached to the ceiling some ten or twelve feet overhead. When the plaintiff came to work on the morning of the accident he found that one of these belts was off the line-shaft pulley. The defendant had no belt-shifters or other mechanical contrivances for the purpose of throwing the belts on or off , and it was the habit of the men employed about the establishment to replace them by climbing a ladder to the line-shaft and adjusting the belts by the aid of a piece of wood or stick, which was kept for that purpose; and this the plaintiff attempted to do. He testified: “I crawled up on there [the ladder] to put that belt on. I was holding the belt in the one hand and the stick in the other, and I shoved it in as carefully as I could, but the stick catched, and my arm went right under, but after that, I do not know what happened.” He said that it was all over so quickly that he could not tell exactly how the accident occurred, but that he thought his arm must have got caught between the belt and the pulley. He further stated that the shaft was running “full blast”; and the uncontroverted testimony of the defendant shows this to have been between 270 and 280 revolutions per minute. The plaintiff said that he had attempted to put the belt on “just as I had seen others put them on.” He also said, “I think that [slowing down] would be the right way to put on belts, as near as I can tell you,” and “to stop the engine — would be the safest way, I think.” In answer to the question, “Then you think, if the line-shaft was slowed down, you could put on the belt without any danger?” he said, “It stands to reason that a fellow could put it on easier than running full speed.” And he admitted that he had known the line-shaft to have been “slowed down — once in a while, but not very often,” for the purpose of putting on belts. Certain testimony of the defense relied upon by the plaintiff shows an admission on the part of several of the witnesses that they did not always have the engine closed down when readjusting the small belts, and that they used their own “judgment” in the matter, and were “willing to take a chance occasionally”; but these same witnesses all said that it was a dangerous thing to do, one of them stating that to put on a belt when the machinery was in full operation was at “the risk of your life.”

While the trial judge affirmed a request for charge to the effect that “the plaintiff used the most dangerous method for adjusting a belt to a fast revolving line-shaft pulley,” yet he refused to give binding instructions for the defendant, and after the verdict was rendered for the plaintiff the court below refused to enter judgment non obstante veredicto. There are several assignments of error, but it is only necessary for the purpose of determining this case to pass upon the seventh and eighth which go to the points just indicated.

The Act of May 2, 1905, P. L. 352, sec. 11, provides: “The owner or person in charge of an establishment where machinery is used shall provide belt-shifters or other mechanical contrivances for the purpose of throwing on or off belts or pulleys.” The noncompliance of the defendant with the provisions of this act constituted negligence, and if the plaintiff was not plainly guilty of contributory negligence, the case was for the jury; but if his own negligence did contribute to the accident, then binding instructions should have been given in favor of the defendant: Jones v. American Caramel Co., 225 Pa. 644.

To do an obviously dangerous thing which one is required to do in order to perform the duties of one’s employment is an assumption of a risk, but not necessarily contributory negligence. If the statutory law requires guards against such a risk, and the employer has failed to comply with such a requirement, the defense of assumption of risk is not available to him, and in the absence of contributory negligence, the plaintiff can recover. But to do an act necessary to the performance of the duties of one’s employment in a way which is obviously dangerous when one can perform the act in another way known to him, which is reasonably safe, is contributory negligence which will bar a recovery, even though the employer may have been negligent in not complying with the requirements of the 'statute.

The testimony in this ease justifies but one conclusion, and that is that the plaintiff undertook to do an obviously dangerous act when he attempted to adjust the belt while the shaft was running at full speed. “Where two ways of discharging the service are apparent to an employee, one dangerous and the other safe or reasonably so, the employee must select the latter, whether or not it is the less convenient to him; and if he chooses the former, and the danger is such that a reasonably prudent man would not incur the risk under the same circumstances, he is guilty of such negligence as will bar a recovery, although the master may also have been negligent:” 20 Am. & Eng. Ency. of Law (2d ed.), 146. The habitual carelessness of his fellow workmen does not justify the plaintiff, and it will not do to say that he lacked proper instructions or appreciation of the danger, for he was a mature man who had been working around machinery for a considerable length of time before the accident, and in addition to this he acknowledges in his testimony that there was another and safer way of doing this work than the one he pursued. This unfortunate man has suffered a great loss, but, since his own carelessness contributed directly to the happening of the accident, the law does not permit him to recover, and the case should not have been submitted to the jury.

The assignments of error before designated are both sustained, the judgment of the court below is reversed and is here entered for the defendant.


text:
    Frantz v. Citizens Electric Company, Appellant.

      Negligence — Electric light company — Exposed wire — Contributory negligence — Question for jury.

    Where an electric light company for its own convenience attaches a high tension wire, which had sagged from its own pole, to a neighboring telephone pole, with defective insulation at the point of attachment, and thereafter an employee of the telephone company, who has no knowledge of the presence of the wire, climbs the pole and is killed by contact with the wire, the electric light company will be liable in damages for his death, and it cannot claim that the deceased was guilty of contributory negligence in not looking up when he climbed the pole, where all the witnesses with experience in this kind of work testified that he climbed the pole in the usual and proper maimer.
    Argued Feb. 15, 1911.
    May 17, 1911:
    Appeal, No. 23, Jan. T., 1911, by defendant, from judgment of C. P. Lycoming Co., Sept. T., 1910, No. 325, on verdict for plaintiff in case of Susan R. Frantz v. Citizens Electric Company.
    Before Fell, C. J., Brown, Mestrezat, Elkin and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for the death of plaintiff’s husband. Before Hart, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $3,500.

      Error assigned among others was in refusing binding instructions for defendant.

      John O. Reading, for appellant.
    The deceased was guilty of contributory negligence: Haertel v. Penna. Light & Power Co., 219 Pa. 640; McCauley v. Traction Co., 13 Pa. Superior Ct. 354; Carroll v. R. R. Co., 12 W. N. C. 348; Warner v. Ry. Co., 141 Pa. 615; Shalleross v. Philadelphia, 187 Pa. 143.

      C. E. Sprout, of Sprout & Cupp, with him W. H. Hill, for appellee,
    cited: Newark Electric Light & Power Co. v. Garden, 78 Fed. Repr. 74; Fitzgerald v. Edison Electric Illuminating Co., 200 Pa. 540; Combs v. Del. & Atlantic Tel. & Tel. Co., 218 Pa. 440; Turton v. Powelton Electric Co., 185 Pa. 406.
   Opinion bt

Mr. Justice Elkin,

We are asked to say the learned court below committed error in not declaring as a matter of law that the deceased husband was guilty of contributory negligence. At the trial the questions of negligence and of contributory negligence were submitted to the jury in a charge fair to both parties and free from just criticism by either. No complaint is made as to the manner in which the questions were submitted, but it is argued with force and ability that the decedent was so clearly guilty of contributory negligence that the duty rested on the trial judge to so declare as a matter of law. This position is predicated upon the theory that it was the duty of the lineman to look up as he ascended the pole, and if he had done so, he would have seen the dangerous wire at the point where the insulation had worn off, and if he had seen the uninsulated wire, or could have seen it by the exercise of reasonable care, it was his duty to avoid such an obvious danger. The difficulty with this position is that there is no imperative rule requiring a person climbing a telephone pole to constantly look up, and the testimony of all the witnesses in the case at bar, familiar with pole climbing, is that the decedent climbed the pole in the usual and proper manner. Under these circumstances it would be most arbitrary for the eourts to say as a matter of law that the lineman who met his death in the performance of his duties, did not climb the pole in a proper manner, when all the witnesses with experience in this kind of work testified he did. We agree it is the duty of an employee to use due care so as to avoid open and obvious dangers. A servant cannot take his chances by recklessly and heedlessly running into danger, and then hold the master answerable in damages for injuries resulting from his own folly. But that is not this case. After a careful examination of this record we cannot say that the decedent recklessly and heedlessly came in contact with the defective wire which caused his death. We start with the presumption that the decedent did his duty, but it is argued that this presumption is overcome by the witness who saw him climb the pole. This only .means that he did not look up after he started to climb, and the expert pole climbers testified that it was necessary for him to watch his feet as he ascended because of the condition of the pole. He was an employee of the telephone company and not of the appellant company. There is nothing in the evidence to show that he had any knowledge of the fact that the electric high tension wires were attached to the telephone pole. When originally installed these wires were attached to the electric poles and ran parallel with the telephone wires. While they were strung near the telephone poles, they did not touch them, unless as they might come in contact by swaying back and forth. The swaying of the wire no doubt accounts for the insulation wearing off where the wire rubbed against the telephone pole, and also for the burned and charred condition of the pole at the point of contact. This defective condition existed for many weeks, perhaps several months, at least long enough to affect appellant company with constructive notice, if it did not have actual notice as the testimony strongly indicates. Prior to the accident someone, presumably in the interest of the appellant company, fastened these high tension wires to the telephone pole by means of wooden brackets and glass insulators, but neglected to repair the defective insulation. This briefly stated was the situation on the morning of the accident when the decedent, engaged in taking down dead wires of the telephone company, began to climb the pole. All this was done without the consent of the telephone company and must have been intended as a protection to the wires of the appellant company, which so far as is disclosed by the testimony was a trespasser in thus making use of the telephone pole to serve its own purposes. There is nothing in the evidence indicating that the decedent was advised or knew that a high tension electric wire had been fastened to the telephone pole. It is true that by looking up the pole decedent could have seen, and no doubt did see, the electric wire attached to the telephone pole as above indicated. There was nothing, however, in the appearance of the wire to indicate whether it was of low or high tension. It might have been a low tension service wire of the electric company, and if so the current carried would not be sufficiently strong to cause his death, and the same may be said of the low tension wires used by the telephone company. Again, he had a right to assume, in the absence of notice or knowledge to the contrary, that the wires were properly insulated and in safe condition. In this situation the decedent climbed the pole for the purpose of performing the duty for which he was employed. While doing so he came in contact with the highly charged wire of the appellant at the point where the insulation had worn off and received an electric shock from which death resulted. Under these circumstances, the only question to be determined here is whether the contributory negligence of the decedent was for the court or for the jury. We think it was the province of the jury to say whether under the facts disclosed by the testimony the decedent exercised due care in climbing the pole. The present case in many aspects is ruled by Combs v. Telegraph & Telephone Company, 218 Pa. 440.

Judgment affirmed.


text:
    Brown v. City of Scranton, Appellant.

      Road law — Change of grade — Municipalities—Railroads—Bond' to indemnify city — Evidence—■Remarles of counsel.

    1. Where a city after having been indemnified against loss by a railroad company institutes proceedings to change the grade of a street in its own name only, and a landowner files a petition for the appointment of viewers to assess damages against the city and not against the railroad company, and the viewers award damages against the city which takes an appeal in its own name, the court of common pleas commits reversible error in directing that an issue shall be framed so as to include the railroad company as a party defendant with the city; and such error is not cured by the filing of a statement of claim, including the city and railroad company as parties defendant.
    2. In such a case the introduction of evidence tending to show the ultimate liability of the railroad company, such as the bond of indemnity, and argument of counsel that the city will suffer no loss because indemnified, are clearly erroneous.

      Practice, C. P. — Trial—Remark of counsel.

    3. On the trial of an issue between a property owner as plaintiff and a city and a railroad company as defendants, to ascertain damages for the change of grade of a street, a remark of plaintiff’s counsel made at the beginning of the trial that one of the defendant’s counsel represented “a good, healthy and robust corporation,” meaning the railroad company, is not ground for a continuance where it appears that the remark was in the nature of a pleasantry, and the jury are immediately instructed to disregard it.

      Road law — Evidence—Expert witness — Cross-examination—Values in neighborhood.

    4. An expert witness called in a proceeding to assess damages for the change of grade of a street cannot be asked on direct examination as to the values of other properties in the immediate neighborhood, although he may be cross-examined as to such values for the purpose of affecting his credibility as a witness.
    Argued Feb. 21, 1911.
    Appeal, No. 199, Jan. T., 1910, by defendant, from judgment of C. P. Lackawanna Co., Sept. T., 1908, No. 1,173, on verdict for plaintiff in case of George W. Brown v. City of Scranton.
    Before Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Appeal from award of viewers. Before Heydt, P. J., specially presiding.
    From the record it appeared that after an appeal had been taken by the city of Scranton from the award of viewers, the court had directed an issue to be framed in which the Delaware, Lackawanna & Western Railroad Company should be made a party defendant with the city. This was done because the railroad company had given a bond of indemnity to the city against any loss resulting from the change of grade of Cliff street, which was the street involved in the petition before the viewers.
    At the trial the following objection was made:
    Mr. Davis: We object to the trial of this case at the present time under the pleadings; it being admitted that the Delaware, Lackawanna & Western Railroad Company is not a party to this case, although in the plea they are named and directed by the court to be made a party.
    Judge Vosbukg: We already have a motion on the record to amend the record by dropping the Delaware, Lackawanna & Western Railroad Company from the record, as a defendant.
    Mr. Davis: I object to any amendment being made at this time. We have a right to go to trial knowing what we have to meet.
    The Court: The motion to amend is allowed. Exception. [2]
    After the trial had begun the following motion was made:
    Mr. Oliver: I ask that a juror be withdrawn, and the case continued, on the ground that Mr. O’Brien, of counsel for the plaintiff, made the remark in open court, that I represented “a good, healthy and robust corporation.”
    I also disclaim appearing here as counsel for the Delaware, Lackawanna & Western Railroad Company, and say that I appear as assisting the city solicitor.
    Mr. O’Brien: We object to the motion to withdraw a juror for the reason that it appearing now that the Delaware, Lackawanna & Western Railroad Company is not in court, that the remark at the farthest stretch of imagination, could not affect the defendant in this case.
    Mr. Oliver: If your honor, please, I would like to have a ruling as to the improper remark of counsel.
    The Court: Counsel for the defendant disclaiming that the Delaware, Lackawanna & Western Railroad Company is a party to this suit, the remark which was attributed to the counsel for the plaintiff can have no bearing or effect in this suit; the motion to withdraw a juror, and continue the case, is denied; to which counsel for defendant except, and at the request of counsel an exception is noted and bill sealed.
    Mr. O’Brien: We have no objection to your honor stating this matter to the jury, and cautioning them that they will not be in any way influenced by the remark, in this case, which was only a humorous one.
    The Court: Gentlemen of the Jury: As you no doubt heard, there was a question arising as to who was the real defendant in this case, and in the bantering backwards and forwards, Mr. O’Brien made the remark that one of counsel for the defendant, had, as I remember it, “a strong, healthy client.” You will disregard the remark entirely. It can make no difference who the defendant’s attorney’s clients are. You will consider this case on the evidence as it will be produced from the witness stand, and upon that alone, and decide it on the merits, regardless of whether the defendant is a corporation, or who is to pay the damages, if anybody has to pay them, just the same as if Mr. O’Brien had not made the remark.
    Mr. Oliver: Counsel for the defendant offer an affidavit by J. H. Oliver, one of counsel, and ask that it be marked filed, and spread upon the record, and that a juror be withdrawn and the case continued.
    “Affidavit of J. H. Oliver, Esq.,
    George W. Brown v.
    The City of Scranton
    In the Court of Common Pleas of Lackwanna County.
    No. Term, 190
    State of Pennsylvania 1 gg . County of Lackawanna /
    “J. H. Oliver, being sworn according to law, doth depose and say that he is of counsel for the City of Scranton in the above entitled case. That at the trial of the above case on the 24th day of March, A. D. 1910, Joseph O’Brien, Esq., of counsel for the plaintiff, the above named George W. Brown, during a discussion as to whether The Delaware, Lackawanna and Western Railroad Company was a party defendant, jointly with the City of Scranton in the said case, addressing the above named J. H. Oliver, made the following statement: ‘You represent a strong, healthy, robust client and you should not be ashamed of them,’ meaning thereby that the said J. H. Oliver represented The Delaware, Lackawanna and Western Railroad Company. ,
    “ (Signed) J. H. Oliver.
    “Sworn and subscribed before me this 24th day of March, A. D. 1910.”
    “(Seal) W. M. Bunnell, Prothonotary.”
    Judge Yosburg: To which we object, of course.
    The Court: Let it be marked “filed.” The motion to withdraw a juror and continue the case is denied. [3]
    The plaintiff made the following offer:
    Judge Vosburg: We propose to show that the Delaware, Lackawanna & Western Railroad Company, and the American Locomotive Company filed the bonds referred to in the ordinance, with the proper custodian, the city solicitor, and to offer them in evidence.
    Mr. Davis: What is the purpose? What is the legal effect?
    Judge Vosburg: We offer it as part of the res gesta?, being papers which are referred to in the ordinance complete, and the files of the city relating to this improvement; we offer these bonds.
    Mr. Davis: This is objected to as incompetent, irrelevant and immaterial; the action of damages, if there be any sustained in this case, is between the plaintiff and the city of Scranton in the matter. Any precautionary measure taken on the part of the city is a matter between the city and the surety in this bond, and has no bearing on the question of damages between' the claimant and the city of Scranton.
    The Court: The objection is overruled, and an exception noted for the defendant. [4]
    At the trial the following occurred:
    Judge Vosburg (continuing to read): “Attached to the ordinance is a bond, The Delaware, Lackawanna and Western Railroad Company, a corporation of the State of Pennsylvania, and the American Locomotive Company, a corporation of the State of New York, in which they are held and firmly bound to the City of Scranton in the sum of twenty thousand dollars. Dated April 4th, 1908 — containing various recitals relating to the vacation of Cliff Street, and the construction of a viaduct, and follows with the following condition: ‘Now, therefore, the condition of the above obligation is such that if the said The Delaware, Lackawanna and Western Railroad Company, and the said American Locomotive Company, their successors or assigns, or any of them, shall indemnify and save harmless the said City of Scranton.’”
    Mr. Davis: We object to the reading of this bond at this time, except you show that the conditions in the bond are complied with.
    The Court: The objection is overruled, and at the request of counsel an exception and bill sealed for the defendant. [5]
    Mr. Oliver: Counsel for the defendant states that Mr. O’Brien, in his closing argument to the jury, stated “that the public treasury was protected in this case, on account of the bond given by the Delaware, Lackawanna & Western Railroad Company and the American Locomotive Company.” Counsel at this time ask that a juror be withdrawn, and the case continued, on account of that remark.
    Judge Yosburg: To which we object.
    Mr. Oliver: The purpose of the remark being to create a prejudice in the minds of the jury, on account of the fact that the two corporations named are involved in this case.
    Judge Vosburg: The remark was in reply to a remark by counsel on the other side.
    The Court: The motion to withdraw a juror and continue the case is denied.
    Mr. Oliver: We ask your honor for an exception, and leave to file an affidavit, before the case is submitted to the jury.
    The Court: At the request of defendant’s counsel, an exception is noted and bill sealed. [6]

      F. L. Hitchcock was examined as follows:
    Mr. Davis: We offer to show by the witness on the stand the market values fixed upon the properties in the immediate locality, by the owners of the same.
    This for the purpose of enabling the jury to have knowledge of the market values of the abutting properties.
    Mr. O’Brien: The counsel for the plaintiff object to the testimony as irrelevant and immaterial for the reason that we have conceded the colonel’s competency to give the value of the property in question. The only way in which this line of inquiry would at all become competent and proper would be as to the qualification of the witness, and that being conceded, the offer is clearly immaterial.
    The Court: I think the courts have decided that damages cannot be arrived at by the comparative values of neighboring properties, and therefore it would be entirely irrelevant. We sustain the objection. At the request of counsel for defendant an exception is noted, and bill sealed. [8]
    Verdict and judgment for plaintiff for $3,000. Defendant appealed.

      Errors assigned were (2-5, 6-8) various rulings as above, quoting the bill of exceptions.
    D. J. Davis, city solicitor, with him D. R. Reese and J. H. Oliver, for appellant.
    The improper conduct and remarks of counsel as to the liability of the Delaware, Lackawanna & Western Railroad Company for damages, if any, were ground for withdrawing a juror: Holden v. R. R. Co., 169 Pa. 1; Walsh v. Wilkes-Barre, 215 Pa. 226; Wagner v. Hazle Twp., 215 Pa. 219; McClosky v. Dubois Borough, 4 Pa. Superior Ct. 181; Hollis v. U. S. Glass Co., 220 Pa. 49; Manigold v. Traction Co., 81 N. Y. App. Div. 381 (80 N. Y. Supp. 861); Fisher v. R. R. Co., 227 Pa. 635; Shaffer v. Kreitzer, 6 Binney, 430; Hamory v. R. R. Co., 222 Pa. 631.

      May 17, 1911:

      A. A. Vosburg, with him Joseph O’Brien, for appellee.—
    The cases are numerous where it has been held that objectionable remarks made by counsel, of a much more serious character than those in the case at bar, would not necessitate the withdrawal of a juror and a continuance of the case; where the trial judge immediately directed the jury not to consider them: United States Circle Swing Co. v. Reynolds, 224 Pa. 577; Cook v. Electric Motor Co., 225 Pa. 91; Moore v. Neubert, 21 Pa. Superior Ct. 144; Com. v. Weber, 167 Pa. 153; Martin v. McCray, 171 Pa. 575; Com. v. McMahon, 14 Pa. Superior Ct. 621.
   Opinion by

Mr. Justice Elkin,

A careful study of this record has convinced us that several substantial and reversible errors crept into the trial of this case by reason of the issue in the first instance having been improperly awarded against the city of Scranton and the Delaware, Lackawanna & Western Railroad Company. This was clear error as a moment’s reflection will show. The proceeding was entirely statutory and the injury, if any, for which compensation is asked, was done by the city in the exercise of its municipal control over the streets. The city took the initiative and by ordinance authorized the improvement to be made. If in the assertion of this municipal power, the property of the complaining abutting owner was taken, injured or destroyed, within the meaning of the constitution, the city alone is answerable to the injured property owner. The parties evidently so understood the law when the proceeding was originally instituted. The appellee filed his petition in the court below asking'for the appointment of viewers to assess damages against the city, not against the railroad company. This was in" accordance with the provisions of the statute, and the viewers so appointed were limited to the inquiry whether the property of the appellee had been injured by the city, and if so, to what extent. When the viewers returned their award to the court, the only parties to the record were the appellee and the city. When the city took an appeal from the award of the viewers, the parties remained the same, and the issue framed by the court should have followed the record by naming the same parties. The court acted without authority in naming the railroad company as a party defendant. Railroad companies have no statutory authority to change the grade of streets or to improve the public highways. This power is very wisely lodged in the municipalities. The vacation of Cliff street, or the change of its grade, could only be done by the authority of the city, and in the manner pointed out by the statute. An injured abutting owner has his remedy in a proper case, but the proceeding is statutory, and should be restricted to the parties actually involved. It may be that the city before proceeding to authorize the street improvement required indemnity from other parties interested in the improvement, but when such security was taken, it inured to the benefit of the city, and did not in any manner change the relative rights and responsibilities of an abutting owner and the municipality. From beginning to end the present proceeding should have been limited to an inquiry involving the rights and injuries of appellee on one side and the duties and obligations of the city on the other. If this simple rule had been followed much confusion would have been avoided and most of the matters about which complaint is made on this appeal would not have arisen. The statement of claim included the city and the railroad company as parties defendant. In so doing counsel for appellee simply followed the direction of the court in awarding the issue, but as has been hereinbefore stated, the court erred in so awarding the issue, and this error is not cured by what subsequently happened. All of the averments contained in the statement connecting the railroad company with the city are foreign to the issue and should not have been included. These averments should be stricken from the record, or, perhaps, when the record is remitted, the matters in controversy between the parties can.be more clearly set forth in an amended statement concisely setting forth the facts upon which appellee relies to recover from the city without any reference to the ultimate liability of the railroad company on its bond of indemnity. The one central and controlling thought to be* kept in mind in the preparation of pleadings and in the trial of the case is that the contrqversy is between the appellee as an abutting owner, and the city. Irrelevant and extraneous matters should be excluded. The introduction of evidence tending to show the ultimate liability of the railroad company, and the argument of counsel that the city would suffer no loss because indemnified, were clearly erroneous. Who has to pay the damages ultimately has nothing to do with the issue tried by the jury, which was, did the appellee suffer any injury to his property and if so, to what compensation was he entitled by way of damages? This court in two recent cases has held it to be reversible error for counsel to introduce immaterial and irrelevant matters of this character for the purpose of influencing the jury to return an increased verdict, or as an invitation to base their findings upon false grounds: Walsh v. Wilkes-Barre, 215 Pa. 226; Hollis v. U. S. Glass Company, 220 Pa. 49. In the case last cited the present chief justice, delivering the opinion of the court, said: “It has been repeatedly held in other jurisdictions that the bringing to the attention of the jury the fact that the defendant in an action for personal injuries was insured by an employers’ liability company, was cause for reversal, whether done by the admission of testimony, or the statement of counsel, or the offers of proofs, or by the questions asked witnesses or jurors.” Thiswas intended as a correct expression of the rule applicable to such cases. It is a sound rule and should not be departed from. As we view this record it was entirely disregarded in the trial of the case in the court below. In the course of the trial there was a constant effort to make it appear that the railroad company would ultimately pay the damages and that the city would be relieved from the burden because protected by a bond. This was all wrong and finds no support in any credible authority.

As to the introduction of the ordinance and the bond in evidence, it may be said that these offers were properly admitted on one ground only, and that is to show there was a valid existing ordinance authorizing the improvement to be made. There was no necessity to read the provisions of either instrument to the jury. The city did not deny that the ordinance had been passed or that the improvement had been made under its authority. There was no question before the jury involving the terms and conditions of the bond. It is apparent that the purpose of reading the bond to the jury was to connect the railroad company in such a way as to indicate its ultimate liability. For this purpose it could not have been admitted in evidence and it should not have been so treated.

Under all the circumstances we would not be warranted in holding that the remark of counsel for appellee about which complaint is made in the third assignment constitutes reversible error. Remarks of this character should be avoided, but as the learned trial judge said, it was rather in the nature of a pleasantry in the early stages of the trial and the jury were immediately instructed to disregard it. It is safer to avoid all such remarks, and counsel always take chances of reversal in making such statements. We have thus indicated in a general way our views as to the proper trial of this case and do not think it necessary to discuss each separate specification of error. When the case is again tried our general observations should be a sufficient guide to all concerned in the conduct of the trial.

We do not agree with the contention of counsel for appellant that appellee failed to make out his case and that binding instructions should have been given for defendant. Nor are we convinced that the positions taken by appellant as indicated by the seventh and eighth assignments of error are tenable. The witness Woodhouse was competent, and as to the witness Hitchcock, it was not competent to prove by Mm on direct examination the values of other properties in the immediate neighborhood for the purpose of instructing the jury as to the market values of properties belonging to abutting owners. Matters- of this kind can be brought out on cross-examination for the purpose of affecting the credibility of witnesses, but we are not familiar with any case which is authority for the position taken by appellant that it was proper to introduce affirmative evidence of this kind on direct examination.

Judgment reversed and a venire facias de novo awarded.