author: Mr. Chibe Justice Mitchell,

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

      Election law — ■Payment o} tax — Assessment—Qualified elector.

    Where real estate is assessed in a firm name, and it appears that the property is actually owned by the two members of the firm as tenants in common, and that the tax has been paid, the members of the firm have paid a tax sufficient to become qualified electors within the meaning of the election laws.
    The constitution makes no requirement that the tax shall be assessed against the elector by name, or personally, or as owner of property in severalty. If it is against ascertained property, and he, being in fact the owner, pays it, the requirement is fulfilled, A blunder of the assessor in the form of the assessment cannot deprive the elector of his constitutional right.
    On a judicial inquiry into an elector’s right to vote the court may go behind the tax records and ascertain the real facts.
    Argued Oct. 21, 1905.
    Appeal, No. 150, Oct. T., 1905, by plaintiff, from judgment of O. P. Washington Co., May T., 1905, No. 117, for defendant on quo warranto in case of Commonwealth ex rel., Owen C. Underwood, District Attorney, v. John F. Shrontz, Jr.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Petition for quo warranto.
    It was claimed in the petition that John F. Shrontz, Jr., was not a qualified elector eligible to a borough office.
    McIlvaine, P. J., stated the facts to be as follows :
    John F. Shrontz, Jr., is a native born citizen of the United States, twenty-six years old and has resided with his father continuously in the fifth ward of the borough of Washington, Pennsylvania, for more than three years last past. At the borough election held February 21, 1905, he was elected to the office of councilman of the fifth ward. On the day of the election his right to vote was challenged on the ground that he had not' paid a state or county tax within two years next, preceding the day of the election. The election board, after a hearing on the question, accepted his ballot.
    The receipt which the respondent produced before the election board as written evidence of his having paid the required tax was in words and figures as follows:

    What oral evidence was produced before the election board we have no way of knowing, but it was conceded that respondent was one of the owners of the property and a member of the firm of Shrontz Brothers against whom the tax was assessed.
    On August 1, 1904, the respondent’s father, being duly autliorized thereto by the respondent and his brother, Clark Shrontz, paid the state and county taxes assessed against the said lot for and on behalf of the respondent and his brother.
    The court entered judgment for defendant on the commonwealth’s demurrer to defendant’s answer.

      Error assigned was the judgment of the court.

      T. F. Bireh, with him Owen O. Underwood, district attorney, Parker, Mellvaine Clark and Bonnans £ Brownson, for appellant.
    The phraseology of the constitution was interpreted as early as Catlin v. Smith, 2 S. & R. 267, to mean that such state or county tax shall have been assessed upon him individually : Gillin v. Armstrong, 12 Pliila. 626; White’s Election, 4 Pa. Dist. Rep. 363; Northrup’s Election, 5 Law Times (N. S.), 1.

      James P. Eagleson, with him Boyd $ E. E. Crumrine, for appellee.
    Section 18, Act of April 3, 1851, P. L. 320 (Purd. 245), provides that “ electors only shall be eligible to borough offices; ” and no statute nor decision can add to or take from the qualifications of an elector prescribed by the constitution: Page v. Allen, 58 Pa. 338 ; McCafferty v. Guyer, 59 Pa. 109.
    Such cases as the present do not seem to have got beyond the lower courts, and therefore the cases we cite are not controlling, but merely advisory: Elkin v. County Commissioners, 25 Pa. C. C. Rep. 531; Hughes’s Election, 3 Lack. Jur. 313 ; White’s Election, 4 Pa. Dist. Rep. 363; Griffith’s Election, 1 Kulp, 157; Brislin’s Election, 6 Kulp, 562; State v. Livingston, Houst. Cr. Cas. (Del.) 109 ; Humphrey v. Kingman, 46 Mass. 162.
    January 2,1906:
   O pinion by

Mr. Chibe Justice Mitchell,

On the admitted facts the appellee was a qualified elector, entitled to vote at the election, and therefore eligible to office. He was a natural born citizen, upwards of twenty-one years of age, and having regard to the substance of the qualification by payment of a tax, he had complied with that requirement. The appellant argues that there was a defect in the form of the assessment which destroyed its efficacy. The tax was assessed against certain property in the name of Shrontz Brothers, but it' was admitted that Shrontz Brothers were the appellee and his brother who were owners as tenants in common of the land assessed. It also appeared that this fact was known to the assessor and was intended to be truly set forth hi the assessment. Even without this, however, the conclusion would have been the same. No error of the assessor, accidental or otherwise, could deprive an elector of his right if in fact he was qualified. The distinction is well taken by the learned judge that the appellee’s vote might have been, properly refused at the election because he was not armed with the proper evidence of his right, but in a judicial inquiry into the existence of the right, the court is not debarred from ascertaining the actual facts no matter what the prima facie case presented by the tax receipt.

The constitution regards substance, not mere form. It makes no requirement that the tax shall be assessed against the elector by name, or personally, or as owner of property in severalty. If it is against ascertained property and he, being in fact the owner, pays it, the requirement is fulfilled. As the learned judge below said, if the assessment had been in the names of John E. Shrontz, Jr., and Clark Shrontz individually as tenants in common, there could have been no question about the tax payment, and if the expression Shrontz Brothers in fact meant the same thing the result would be the same. A blunder of the assessor in the form of the assessment could not deprive the elector of his constitutional right.

Catlin v. Smith, 2 S. & R. 267, is cited as deciding that the tax must be assessed against the elector individually. That expression is used in the case but in an entirely different sense from that now sought to be given to it. That was an action against the inspector of an election for refusing the plaintiff’s vote. Under the constitution of 1790 the requirement was that the elector should have paid a tax “ which shall have been assessed at least six months before the election.” On demurrer to the declaration it appeared that the tax had been laid on the county six months before, but that the plaintiff had not been assessed until the day before the election when he had himself put on the list by the asséssor and paid the tax. The court held the payment insufficient. The plaintiff, said Tilgh-MAíf, C. J., “ insists that the constitution intends a tax laid and assessed on property and persons in general at least six months before the election. But this will not accord either with the sense in which the words had been generally used or with the reason for introducing them into the constitution. The voter is to have paid the tax assessed, not upon others but himself. A tax assessed upon others is no tax as to him.” That is the sense in which the words, “ assessed upon him individually ” were used. There is nothing in that case that touches the question raised now.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Potter,

license: Public Domain

text:
    McNeil, Appellant, v. Clairton Steel Company.

      Negligence — Master and servant — Contributory negligence — Nonsuit.
    In an action against a steel company to recover damages for personal injuries sustained by the employee of another company, it appeared that at the time of the accident plaintiff was engaged in putting up structural work at the plant of the steel company. A small car operated by electricity ran upon a track past the point where he was at work. In order to permit the car to pass it was necessary to depress a guy rope temporarily in use, and this the plaintiff did by standing on it. He steadied himself in this position by reaching out to the girder or channel upon which the rails were laid, and in so doing inadvertently put his hand upon the rail. It was not necessary for him to do this. The car had passed him once before and ho had depressed the rope in the same way and steadied himself by putting his hand on the flange of the girder below the rail. Held, that a nonsuit was properly entered.
    Argued Oct. 24, 1905.
    Appeal, No. 43, Oct. T., 1905, by plaintiff, from order of C. P. No. 3, Allegheny Co., Aug. T., 1903, No. 479, refusing to take off nonsuit in case of Prank McNeil v. Clairton Steel Company.
    Before Mitchell, C. J., Fell, Bbown, Mestbezat, Potteb, Elkin, and Stewabt, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Kennedy, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was order refusing to take off nonsuit.

      Ralph P. Tannehill, with him Thos. M. Rody P. Marshall, for appellant, cited:
    North Penna. R. R. Co. v. Kirk, 90 Pa. 15; Penna. R. R. Co. v. Fortney, 90 Pa. 323; Lee v. Woolsey, 109 Pa. 124; Lehigh Valley R. R. Co. v. Greiner, 113 Pa, 600; Davidson v. Ry. Co., 171 Pa. 522; Gray v. R. R. Co., 172 Pa. 383; Musick v. Latrobe Boro., 184 Pa. 375; Manayunk, etc., Stable Co. v. Traction Co., 7 Pa. Superior Ct. 104.

      Greorge E. Shaw, of Reed, Smith, Shaw $ Beal, for appellee.
    January 2,1906:
   Opinion by

Mr. Justice Potter,

The appellant in this case complains of the refusal of the court below to take off a judgment of compulsory nonsuit. The action was brought to recover damages for the loss of three fingers of the right hand, by the plaititiff. At the time of the accident he was engaged in putting up structural work at the plant of the defendant company. A small car, operated by electricity, ran upon a track, past the point where he was at work. In order to permit the car to pass, it was necessary to depress a guy rope temporarily in use, and this the plaintiff did by standing on it. He steadied himself in this position by reaching out to the girder or channel upon which the rails were laid, and in so doing inadvertently put his hand upon the rail. It was clearly unnecessary for him to do this. The car had passed him once before and he had depressed the rope .in the same way, and steadied himself by putting his hand on the flange of the girder below the rail.

The trial judge says, in his opinion refusing to take off the non-suit : “ The rail was laid on a beam which was wider than the base of the rail, and it is plain that there was no necessity for plaintiff putting his fingers over the top of the rail. He could just as well have steadied himself, while standing on the rope to depress it, by placing his hand on or holding to the beam or lower part of the rail, and thus have escaped injury.” The rail was not high in the air, but seems to have been only five or six feet from the ground, while the rope which was to be depressed was only about a foot from the ground. The accident was evidently the result of the carelessness of the plaintiff in putting his fingers upon the track, rather than against the flange below the rail. He knew the car was advancing towards him and that it would pass him, for he was depressing the guy rope in order that it might do so. We see no error in the refusal to take off the nonsuit.

The assignment is dismissed and the judgment is affirmed.


author: Mr. Justice Stewabt,

text:
    McKee v. Crucible Steel Company of America, Appellant.

      Negligence — Master and servant — Unsafe appliance.

    In an action against a steel company by an employee to recover damages for personal injuries, the case is for the jury, where it appears that the accident happened by reason of the absence of a bolt or rivet in the machinery, that the bolt or rivet had not been in its place for months, and that the defect in the machinery could not have been revealed to the plaintiff except by very special investigation.
    In such a case questions put to witnesses, which admitted and invited answers that regarded absolute safety, should be ruled out, inasmuch as all that is required to exonerate an employer is that the machinery be reasonably safe; but if it appears that the defendant could not have been prejudiced by the answers in view of very careful instructions in the charge, the judgment will not be reversed.
    Argued Oct. 24, 1905.
    Appeal, No. 36, Oct. T., 1905, by defendant, from judgment of C. P. No. 2, Allegheny Co., Oct-Term, 1902, No. 433, on verdict for plaintiff in case of George McKee v. The Crucible Steel Company of America.
    Before Mitchell, C, J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Frazier, P. J.
    At the trial plaintiff’s counsel asked witnesses the following questions:
    “ Q.. Mr. Guenther, if you had known there was no bolt here, or that it had been allowed to get out and had not been replaced, would you have regarded that as a safe place to work ?
    Objected to by Mr. Castle as incompetent, irrelevant and immaterial, and not binding upon defendant in this matter.
    Objection overruled and bill sealed. [2]
    “ Q. Mr. Baer, if you had known that this bolt, if it ever had been put in, had gotten out, and that there was nothing supporting it except this hanger without any bolt, would you have regarded it as safe ? A. I would have gotten it fixed.
    ■ Objected to by Mr. Castle : This is objected to as not the test of negligence.
    Objection overruled and bill sealed. [8]
    “ Q. Well, Mr. Holdred, when they were carrying the material out to the end of this rail, would you have considered it safe to have used it, if you had known that the bolt had gotten out and had not been replaced at that end ? ”
    Objected to by Mr. Castle : Your honor will note my objection as before, and in addition now, we have discovered that the employees are using that for some other purpose than it was evidently designed for. I add that as a further objection.
    Objection overruled and bill sealed. [4]
    Verdict and judgment for plaintiff for $4,200. Defendant appealed.

      Errors assigned were (1) in not giving binding instructions for defendant; (2-4) rulings on evidence, quoting the bill of exceptions.

      Homer L. Castle, of Stone Stone, for appellant,
    cited: Finnerty v. Burnham, 205 Pa. 305; Baker v. Allegheny Valley R. R., 95 Pa. 211.

      J. S. Ferguson, with him John G-. Silveus and William P. Carter, for appellee,
    cited: Baker v. R. R. Co., 95 Pa. 211; Lininger v. Westinghouse Air Brake Co., 210 Pa. 62 ; McGonigle v. Kane, 20 Colo. 292 (38 Pac. Repr. 367) ; B. & Y. Turnpike Road v. Leonhardt, 66 Md. 70 (5 Atl. Repr. 346) ; Lewis v. Seifert, 116 Pa. 628.
    January 2, 1906.
   Opinion by

Mr. Justice Stewabt,

Defendant company made no attempt to meet the evidence offered on behalf of the plaintiff, but at its conclusion moved the court to direct a verdict in favor of the defendant. The court’s refusal to so direct constitutes the principal assignment of error.

Plaintiff was employed in defendant’s mill, the work assigned him being the removal of steel plates from the anvil after they had been hammered. To facilitate this work a contrivance, very simple in its construction, was used. An ordinary steel rail, some eighteen or twenty feet in length, was suspended from the beam above, and held in place, about twenty-five feet above the heads of the workmen below, by two hangers, one at either end of the rail, or approximately so. Along this rail ran a trolley, an iron rod from which extended down to the anvil, fitted at the lower end with clamps or hooks. It was the business of the plaintiff to adjust these clamps and hooks to the steel plates that had been hammered, and then, as they were suspended from the rail above, push them along the trolley until the place was reached where they were to be deposited. While he was so engaged, the end of the rail farthest from the anvil separated from the hanger on which it rested, with the result that the end being without support fell, striking the plaintiff and inflicting upon him serious hurt. The hanger and rail were not in any way tied together, that is to say, nothing kept the rail in place in the hanger but its own weight. The force of the burdened trolley running against the hanger would almost necessarily have the effect of driving the hanger back towards the end of the rail, and this, if repeated often without correction or readjustment, would, in all probability, result in pushing it entirely clear of the rail. Indeed, this is the only explanation of this particular accident that is suggested, and it is accepted by both sides as the true explanation. The rail inclined somewhat upward from the anvil, and so permitted the trolley to return for its next burden without force being applied. At the lower end of the rail, that is, the end nearest the anvil and beyond the hanger, there was a bolt through the rail which prevented any separation between the hanger and the rail at that end ; at the other end there was a place in the rail for the bolt, but it clearly appears that there was no bolt there when the accident occurred, and witnesses testified that, from the appearance of the hole, none could have been there for months. It does not appear that the absence of this bolt would have made the contrivance insecure for the party handling it, except as the trolley was pushed against the hanger. The hanger could only be reached by the trolley by the application of force since it was up grade to that point.

Was the contrivance, in the condition stated, reasonably safe for the use intended? The court below thought this was a question for the jury, and submitted it to them in a charge so clear and impartial, that no exception is taken but to the fact of submission. We think the facts afforded sufficient basis for the inference of negligence by the jury. This, of itself, ■ without more, would make a submission imperative. The rail along which this trolley ran was about twenty feet in length, including the part that extended outside the hangers. Until about a year before the accident, the plates carried on the trolley were discharged at a point about half the length of the rail from the anvil, and while the work was so conducted, only half the length of the rail being traveled, the hanger or trolley did not come together; but the size of the plates being then increased, greater space was required for their discharge, and it became necessary to use the rail along its entire length, so that the trolley was liable at any time in such use to strike the hanger. In testifying on this point, the witness, Holdred, says: “You had to get away out of the road so a fellow on the back end of the hammer could work, and you had to run it (the trolley) away out.” We have here the explanation of how the accident occurred, showing conditions which invited disaster, so long as there was nothing to arrest the outward push of the hanger by the trolley. A simple bolt or rivet would have averted all danger, but neither was there. The defendant company is chargeable with knowledge of the conditions that- there existed for so long a period. If it did not know that the increased size of the plates made it necessary to use the rail for its entire length, in order to deposit the plates in the place where they were required, it ought to have known it; if it did not know that there was no bolt or rivet in the end of the rail to keep the hanger in place, it ought to have known that fact, for it was responsible for the changed condi-, tions that made such bolt necessary to safety in the operation of the trolley. It is not simply a case that would warrant an inference of negligence by the jury; it is a case which, upon its admitted facts, would seem to make such conclusion almost unavoidable. The obligation and duty were wholly with the defendant company. No duty rested on plaintiff to investigate whether there was a bolt in the rail; he had a right to assume that something adequate was there to keep the hanger in place. The absence of everything of this kind was not such a manifest and conspicuous fact that he was bound to observe it. It could not have been revealed to him except by very special investigation, for it was at least twenty feet above his head. The witness, Holdred, whose testimony is above referred to,' says: “ Yes, sir, and you could not see that thing (the connection between the hanger and the rail), it’s about twenty feet high and it is all steam above the hammer, and sometimes you couldn’t see five feet up.”

We refer to this feature of the case only that the actual situation may appear. Whether plaintiff contributed by negligent omission or commission to the accident, was for the jury, and this, with the question of defendant’s negligence, was submitted. A verdict for the plaintiff resulted, which it is conceded accords with reasonable compensation for the injury sustained. It was for the jury to say whether, under the law as given by the court, that compensation should be required of defendant.

The other assignments of error relate to rulings of the court with respect to questions put by defendant’s counsel to witnesses who were interrogated as to the safety of the trolley appliance. Objection was made that the questions as put admitted and invited answers that regarded absolute safety, whereas all that is required to exonerate the employer is that the machinery be reasonably safe. The objection was well taken. The court should have required counsel to so frame the question that the witness would know the standpoint from which he was to speak; failing to do this the objection should have been sustained. In view of the very careful instructions from the court in its charge, as to the duty that rests on the employer with respect to the machinery he provides, for those in his service, we are satisfied that in this particular case, the defendant could not have been prejudiced by the answers elicited by the questions objected to. But for this, these assignments might seriously imperil the judgment in the court below. It is of course very familiar law to those accustomed to deal with such questions, that it is only reasonable safety that is required in this connection, and all that is necessary to relieve from liability; but it would be a great mistake to assume that the average person who comes into court to testify, is acquainted with it. Asked whether it would be safe to work with or about machinery under certain conditions shown to exist, such person, except as he is instructed as to the measure of safety he is to regard, would speak from the standpoint of his own individual notions as to what the law ought to require of the employer, and not what it does, or else from the standpoint of absolute safety. It is enough to know that prejudice would likely result from such a course. The defendant was saved that prejudice by the subsequent action of the court; but the better and safer plan is to avoid the error in the first instance.

The assignments of error are overruled and judgment affirmed.


author: Per Curiam,

text:
    McMullin v. Reid,. Appellant.

      Account stated — Submission of account — Evidence.
    In an action on an account stated, where the evidence tends to show a course of dealing between the parties, that the plaintiffs submitted a statement of account to the defendant, with demand for payment and notice that the collateral would be sold in fifteen days and that the defendant had made no answer to the statement when suit was brought twenty-five days thereafter the case was properly left to the jury to find an account stated.
    Argued Oct. 24, 1905.
    Appeal, No. 56, Oct. T., 1905, by defendant, from judgment of C. P. No. 2, Allegheny Co., Oct. T., 1904, No. 51, on verdict for plaintiffs in case of M. K. McMullin and E. A. Clark, trading as M. K. McMullin & Company, v. William Reid.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit on an account stated. Before Shafer, J.
    Verdict and judgment for plaintiffs for $66,159.58.
    On a motion for a new trial, Shafer, J., filed the following opinion:
    • The plaintiffs having brought an action of assumpsit against defendant on an account stated, the defendant filed an affidavit of defense in which he denied that he ever had any dealings with the plaintiffs. The evidence showed that M. K. McMullin had originally dealt as a stockbroker with the defendant and had undertaken to carry for him certain stock. That some time after the transaction was begun between the parties, McMullin took into partnership with him a young man in his office named Clark, and that thereafter the style of the firm was M. K. McMullin & Company. That of this change the defendant had no formal notice, but that at the time of the formation of the partnership the letter heads were changed and the letters thereafter sent to the defendant in relation to the matter were written on the letter heads of McMullin & Company, and were sometimes signed McMullin & Company, and sometimes McMullin. That statements were sent regularly, from time to time, of the condition of the accounts to the defendant, the old printed form being used, and in some instances the words “ and company ” being added to the name of McMullin, and in others this was neglected, and that notes were renewed by the defendant sometimes in the name of Mc-Mullin, and sometimes in the name of McMullin & Company. That after the defendant had been in default for a considerable time in paying interest and notes which had fallen due, a statement of account showing a certain balance in favor of the plaintiffs was, oil June IT, 1904, served upon the defendant at his home in the city of Detroit, Michigan, accompanied with a written demand for the payment of the amount and a notice that unless payment was made, the collateral held by McMullin & Company would be sold fifteen days thereafter.
    This suit was brought July 11, 1904, no answer of any kind having been received by the plaintiffs from the defendant, and no commuication having in the meantime passed between them. The defendant offered no evidence. We are of opinion that there was enough in the evidence to show a course of dealing between the plaintiffs as partners and the defendant upon which an account stated might be founded. There being some parol evidence, although very little, of the dealings of the parties upon which the account stated is founded, there may be some question whether it was proper to leave it to the jury to find whether under all the circumstances an account had been stated between the parties, or whether that should have been determined as a matter of law. The question was submitted to the jury, but this, if erroneous, did the defendant no harm. If the question is one of law for the court we are of opinion that the circumstances showed an account stated. The motion for a new trial is therefore refused.

      Error assigned was in refusing binding instructions for defendant.

      Walter Lyon, of Lyon, McKee $ Mitchell, for appellant.

      J. S. Ferguson, with him E. Gr. Ferguson, for appellees.
    January 2, 1906 :
   Per Curiam,

Judgment affirmed on the opinion of the court below.


author: Mr. Justice Elkin,

text:
    Grogan v. Pennsylvania Railroad Company, Appellant.

      Negligence — Railroads—Fences—Trespassers.
    It is not the duty of a railroad company which owns real estate abutting on a street or highway, to construct or maintain a fence sufficiently strong and adequately safe, to provide against a contingency arising by reason of a crowd of trespassers coming upon the property inclosed, and pushing the fence over on a person walking on the street; and this is the case although some of the trespassers were employees of the railroad company.
    Brown, Mestrezat and Potter, JJ., dissent.
    Argued Oct. 24, 1905.'
    Appeals, Nos. 59 and 60, Oct. T., 1905, by defendant, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1903, No. 460, on verdict for plaintiff in case of Patrick and Mary Grogan v. The Pennsylvania Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before McClung, J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for Mary E. Grogan for $3,000 and for Patrick Grogan for $485. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      M. W. Aoheson, Jr., of Patterson, Sterrett Acheson, for appellant.

      E. O. MoGirr, with him John Marrón, for appellee,
    cited: Schilling v. Abernethy, 112 Pa. 437 ; Shearman & Redfield on Negligence, 5th ed., sec. 39; B. & O. R. R. Co. v. Sulphur Springs Independent School Dist., 96 Pa. 65 ; Scott v. Hunter, 46 Pa. 192; Herr v. City of Lebanon, 149 Pa. 222.
    January 2, 1906:
   Opinion by

Mr. Justice Elkin,

There can be no recovery of damages in this case without announcing the rule, that it is the duty of the owner of real estate abutting on a street or highway, to construct and maintain a fence sufficiently strong and adequately safe, to provide against a contingency arising by reason of a crowd of trespassers coming upon the property inclosed and pushing the fence over on a person walking on the street.

The defendant is the owner of a tract of land abutting on Carson street in the city of Pittsburg around which it caused a fence to be erected, one part of which is near the property line which divides the lot inclosed from the street named. The fence was built for the use and protection of the defendant. In the building of the fence it owed no particular duty to any one. Whether it was six feet high or three ; whether it was built of stone, boards or iron, were matters entirely within the discretion of the defendant, and about which the plaintiff and the public had no concern. The defendant was ordinarily under no duty to build a fence of any particular degree of strength or indeed to build a fence at all. On the principle, however, that no one can use or maintain bis property in such a dangerous or unsafe condition as to endanger the life, limb or property of others, the defendant was under the duty of maintaining its fence strong and safe enough to resist such forces or conditions as should have been foreseen by ordinary forecast.

In MeGrew v. Stone, 53 Pa. 436, Mr. Justice Agnew stated the rule in the following language :

“ The general rule is that a man is answerable for the consequences of a fault which are natural and probable and might therefore be foreseen by ordinary forecast, while it is true that if his fault happened to concur with something extraordinary and therefore not likely to be foreseen he will not be answerable for the unexpected results.”

Again, Mr. Justice Strong in Phila. & Reading Railroad Co. v. Hummell, 44 Pa. 375, said:

“ It is true that what amounts to ordinary care under the circumstances of a case is generally to be determined by the jury, yet the jury cannot hold parties to a higher standard of care than the law requires and they cannot find anything negligence which is less than a failure to discharge a legal duty.”

We concede that under ordinary circumstances it would 'be for the jury to determine whether the defendant used proper care in the construction and maintenance of the fence. But the defendant company did not owe a legal duty to the plaintiff or any one else to construct and maintain the fence so strong that a crowd of trespassers, wrongfully coming upon its land, could not.push it over and thus cause the injury complained of. There can be no negligence in a legal sense, unless there is a violation of the legal duty to exercise care.

In the present case the inquiry is, were the consequences such as should have been foreseen by ordinary forecast and provided against? It was not the duty of the defendant company to foresee and provide against the contingency of forty or fifty trespassers coming upon its land for the purpose of witnessing an arrest by a police officer in the public street, and, while thus gratifying their idle curiosity, climb upon, lean against and push over the fence, causing the injury for which damages are sought to be recovered. This is a higher standard of care than the law requires, and it is the duty of the court to say so.

In this case the defendant stands in the same position as every other owner of real estate., Its rights, duties and liabilities are no greater and no less. The rule established in this case will apply, not to common carriers as such, but to the real estate owners of the commonwealth.

It is conceded that the accident would not have occurred except for the fact that a crowd of forty or fifty persons, without authority, came upon the land of the defendant, climbed upon or leaned against the fence so that it gave way and injured one of the appellees who was walking on the street below. The direct cause of the accident was the negligent act of these trespassers, which under the law it was not the duty of the defendant to provide against.

The contention that some of these trespassers were employees of the defendant and that their negligent acts can be visited upon the company is without merit. Their duties as employees did not call them to climb upon, or to lean against the fence, or to be at that place in the performance of their work. In these respects they acted entirely outside of their duties as employees and were trespassers as much as the other persons assembled in that crowd.

Our attention has been called to a number of cases relating to questions of concurrent negligence and proximate cause, cited by the learned court below and relied' upon by counsel for appellees here. We do not deny the doctrine of these cases, but they apply only where negligence by the defendant is established. If no negligence by the defendant is shown, questions of concurrent negligence and proximate cause do not arise.

Assignments of error sustained, judgment reversed, and it is now ordered that judgment be entered in the court below for defendant.

Brown, Mestrezat and Potter, JJ., dissent.


text:
    Mulvaney, Appellant, v. Pittsburgh Railways Company.

      Negligence — Street railways — Crossings—Evidence—Presumption.
    In an action to recover damages for the death of plaintiff’s son a non-suit is properly entered where it appears that the deceased, a man thirty-six years of age, was struck by one of the defendant’s cars at midnight, at or near a street crossing; that the car was brilliantly lighted so that it could be seen 250 or 300 feet away, and there is no evidence of undue speed, or of a failure to give notice of the car’s approach, although there is a doubt as to whether the front headlight was burning.
    Argued Oct. 25, 1905.
    Appeal, No. 64, Oct. T., 1905, by plaintiff, from order of C. P. No. 2, Allegheny Co., July T.? 1902, No. 863, refusing to take off nonsuit in case of John Mulvaney v. Pittsburg Railways Company.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed'.
    Trespass to recover damages for death of plaintiff’s son. Before Rodgers, J.
    The facts are stated in the opinion of the Supreme Court.

      ‘Error assigned was the order of the court refusing to take off nonsuit.

      Rody P. Marshall, with him James B. Brew, for appellant.

      James C. Gray, with him Clarence Burleigh and Wm. A. Challener, for appellee.
    January 2, 1906:
   Per Curiam,

. The.plaintiff’s son, thirty-six years of age, was struck by one of the defendant’s cars at midnight, at or near a street crossing.' The car was well lighted, and there was no evidence of undue speed or of a failure to give notice of its approach. The only support the plaintiff’s case had was the presumption that the deceased had exercised reasonable care, and the assumption that the headlight was not burning. The only effect of the presumption was to establish, prima facie, the absence of contributory negligence, and there was no satisfactory evidence that the headlight at the front of the car was not burning. No witness who saw the accident was called. It was shown that the lights at the front and at the back of the car would not both burn at the same time, and a witness who saw the car at a distance of 250 feet, after the accident, thought, but was not willing to testify, that the light at the back of the car was then burning. Proof that the rear light was burning after the accident, when the car had stopped and the body of the deceased was being removed from the street back of it, was not ground for the inference that the front light was unlit when the car was in motion, nor would the fact, if established by proof, have warranted a recovery, because the car was brilliantly lighted and was seen by a number of witnesses when 250 or 300 feet from it. The plaintiff having failed to establish any ground of recovery the nonsuit was properly entered.

The judgment is affirmed.


text:
    In re Tioga Street.

      Road law — Report of viewers — Confirmation—Refusal of court to rescind confirmation — Notice.—Counsel.
    An order of court refusing to rescind an order of confirmation in a road case, on the ground that the appellant had no .notice of the hearing on exceptions, will not be reversed, where it appears that the case has been in progress for twelve years during which the appellant had represented certain property first as agent of the owner, and after the death of the owner as trustee, that the same attorney had been counsel during the whole period, and that this counsel had notice of the exceptions and participated in the hearing. In such a case the appellant cannot say that counsel was not authorized to represent him, and that he had not had a day in court.
    Argued Oct. 25,1905.
    Appeal, No. 67, Oct. T., 1905, by A. L. Rich, trustee, from order of C. P. No. 3, Allegheny Co., Feb. T., 1892, No. 187, refusing to rescind order confirming report of jury of view In re Tioga street.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Rule to rescind order confirming report of jury of view.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was the order of the court.

      S. W. Cunningham, with him Sion B. Smith, for appellant.

      T. D. Carnahan, with him W. B. Rodgers, for appellee.
    January 2, 1906 :
   Per Curiam,

The proceedings in this case were under the remedial Act of May 16, 1891, P. L. 71, to ascertain and assess the damages, cost and expenses of grading and paving Tioga street. Exceptions were filed to the second report of the viewers by the appellant as agent for the owner in 1893. The owner has since died, and the title to the land has become vested in the appellant as trustee of her estate. In 1904, on notice to counsel of record, who had been in the case from the beginning, and a full hearing by the court, in which he participated, the exceptions were dismissed and the report of the viewers -was confirmed. The assignment of error is to the order of the court refusing to rescind the order of confirmation and to allow the appellant to intervene. The allegations in the petition for a rule to show cause are that the appellant had no notice of the hearing on the exceptions, that counsel was not authorized at that time to represent him, and that the city by delay had lost all right and claim against the property. We have no means of knowing what took place at the hearing on the rule, but as the counsel of record when the report was confirmed had been in the case twelve years and had once secured a reversal by this court, and as the appellant had filed exceptions and had represented as agent the same interests he now represents as trustee, we assume it was found that he was represented by counsel and had had his day in court.

The order of the court discharging the rule is affirmed.


author: Pee Ctteiam,

text:
    Dougherty v. Pittsburgh Railways Company, Appellant.

      Practice — Trial—Withdrawal of furor — Misstatement of counsel.

    Counsel should be held to a strict accountability for language used in addressing the jury, and where willful or reckless misstatements of the evidence are made a juror should be withdrawn or a new trial granted.
    Such an action is not necessary where counsel in summing up the damages states that a certain sum is admitted, but upon being interrupted, at once corrects himself by saying that what he meant was, that the testimony as to the items was uncontradicted, and this is followed by a statement by the court in the charge that no amount had been admitted, and that the amount spoken of as admitted was the amount claimed.

      Street railways — Passenger—Evidence—Presumption.
    Where a passenger on a street railway car is injured by the failure of the brakes to work because of a broken chain, a presumption of negligence arises against the company, and this presumption is not rebutted by proof that the brakes held the car on the previous trip.
    Argued Oct. 25, 1905.
    Appeal, No. 70, Oct. T., 1905, by defendant, from judgment of C. P. No. 1, Allegheny Co., Dee. T., 1902, No. 776, on verdict for plaintiff in case of Josephine Dougherty v. Pittsburgh Railways Company.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before MacFarlane, J.
    At the trial it appeared that the accident was due to the failure of the brakes to work on the car on which the plaintiff was riding as a passenger. The brakes did not work because of a broken chain.
    The court charged in part as follows :
    [When a passenger gets upon a street railway car and pays his or her fare, a contract is made with him or her to be taken safely to destination. So that in this case, all that was necessary for the plaintiff to make out what is called a prima facie case was to prove that she was a passenger for hire on the street railway. The burden of proof is then put upon the defendant to show that there was no negligence at all on its part. As you can see, that rule is a very strict one. As the carrier of passengers must exercise the highest degree of care and use all such appliances as the highest human foresight would suggest under the circumstances, you will see that there are comparatively few cases in which the street car company attempts to show that it is not liable, because there are so few cases where they could escape. Sometimes there is some defective appliance for which they are not responsible, something that they could not have foreseen, some latent defect by reason of which they may escape.
    The case here is in such shape that the defendant has not overcome the burden, or, to use a better expression, has not met his burden of proof. They have shown how the accident happened, that the brake failed to work, but they did not go into details, but put in this evidence so as to show that they were not simply recklessly negligent and careless. They claim it was an accident. Without troubling yourselves about that branch of the case, you have sufficient here on the question of negligence, and the question that you have to determine is how much this young woman was hurt, and if she was hurt, what is her damage.] [2]
    Verdict and judgment for plaintiff for $12,000. Defendant appealed.

      Errors assigned were (1) refusal to withdraw a juror for the reason set forth in the opinion of the Supreme Court; (2) above instructions, quoting them.

      James C. Gray, with him Glarenee Burleigh and William A.

    Ghallener, for appellant, cited: Holden v. Penna. R. R. Co.,
    169 Pa. 1; Forker v. Sandy Lake Borough, 130 Pa. 123.

      Thomas M. Marshall, Jr., for appellee.
    January 2,1906 :
   Pee Ctteiam,

The first assignment of error is to the refusal of the court to withdraw a juror because counsel for the plaintiff in his closing address said that the defendant had admitted that damages amounting to $9,000 or $10,000 had been sustained, when in fact no admission had been made. Counsel should be held to a strict accountability for language used in addressing the jury, and where willful or reckless misstatements of the evidence are made a juror should be withdrawn or a new trial granted, but such action by the court was not called for in this case. There was no contradiction of the plaintiff’s testimony as to the loss she had sustained by being unable to work and of the expenses she had incurred because of her injuries, and the evidence produced by the defendant tended to show what treatment might benefit her and the cost thereof. It was in summing up these items that the statement objected to was made. The counsel was interrupted while making the statement, and he at once said that what he meant was that the testimony was uncontradicted as to these items. This was followed by a statement by the court in the charge that no amount had been admitted by the defendant, and that the amount spoken of as admitted was the amount claimed. The error of counsel was thus corrected without having prejudiced the defense.

The remaining assignment is that in charging the jury the court treated the negligence of the defendant as not being in dispute. Where injury to a passenger is caused by a defect In the means of transportation, there is a presumption of negligence on the part of the carrier. The plaintiff was a passenger in one of the defendant’s cars, and the accident was caused by the failure of the brakes to work because of a broken chain. It was not shown what caused the chain to break nor what its condition was before the accident. The only proof by the defendant was that the brake held the car on the previous trip. This did not rebut the presumption.

The judgment is affirmed.


text:
    Morris v. McCutcheon, Appellant.

      Equity — Specific performance — Agreement to secure creditors- — Trusts and trustees.

    Equity has jurisdiction to decree the specific performance of an agreement on the part of a solvent person, to pledge all his estate, real and personal, to a trustee named to secure creditors named.
    Argued Oct. 25, 1905.
    Appeals, Nos. 71 and 72, Oct. T., 1905, by defendant, from decrees of C. P. No. 2, Allegheny Co., Jan. T., 1902, Nos. 159 and 702, on bills in equity in cases of Joseph C. Morris and Richard R. Brown, trading as Morris & Brown v. James H. McCutcheon et al., and John D. Armstrong, surviving partner of Lathrop R. Bacon & Co., v. James H. McCutcheon et al.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for specific performance.
    Rodgers, J., filed the following opinion :
    1. On May 9, 1901, James II. McCutcheon, one of the defendants, was indebted to plaintiffs in the sum of 1113,676.78, being the balance due on settlement of the accounts at the close of business upon said date for certain shares of capital stock in various corporations bought and sold by plaintiffs in their capacity as stockbrokers of said James H. McCutcheon, who was, and had been for some time prior thereto, plaintiffs’ customer.
    2. One transaction between plaintiffs and James H. Mc-Cutcheon included the purchase of 500 shares of the common stock of the Northern Pacific Railroad Company by plaintiffs on May 9, 1901, which said stock was purchased upon the order of said McCutcheon, and in the purchase thereof said plaintiffs acted as agents and brokers with fidelity and care and without negligence. 200 of said shares were purchased for $450 per share, 100 shares at $500 per share and 200 shares at $400 per share, and the purchase price for all of said shares was paid by plaintiffs to the sellers thereof. The aforesaid transaction embraced a part of the dealings between the parties referred to in the first finding of fact.
    3. Plaintiffs on the same day bought or sold about 1,300 shares of other stocks for James H. McCutcheon, which said purchases or sales were apparently satisfactory.
    4. Plaintiffs on May 7 and May 8, 1901, contracted to pay as agents and brokers for said McCutcheon the sum of $8,460, borrowing premium charges on said Northern Pacific stock, in accordance with the rules and custom of the market, and said payments were rendered necessary by reason of said Mc-Cutcheon’s orders and directions to plaintiffs to carry deliveries of the stock over, and not to buy it in “ to cover ” on said days. Such premiums were contracted in good faith and without negligence by plaintiffs, and were paid by them, the same being included in the indebtedness account referred to in the first finding herein.
    5. Upon the evening of May 9, 1901, after the indebtedness referred to in the first finding herein had been incurred and the account closed, the agreement, exhibit “ A,’’ attached to plaintiffs’ bill was prepared, signed and sealed by all the parties to this bill, said James H. McCutcheon and plaintiffs being represented by counsel, said agreement being executed in the presence of said counsel, having been prepared by counsel rep-

      resenting said James H. McCutcheon, and after having been so executed was deposited with McCutclieon’s counsel, with the understanding that he should be the custodian of it for John L. McCutcheon, who was one of the beneficiary parties to the agreement and trustee under it to carry out its provisions.
    6. Said agreement above referred to was executed after demand made by plaintiffs that their said indebtedness be paid to them forthwith.
    7. There was neither fraud, accident nor mistake in the execution of said agreement.
    8. The said agreement is as follows, to wit:
    “ Exhibit A.’
    "Pittsburg, May 9, 1901. Whereas, James H. McCutcheon is indebted approximately to Lathrop R. Bacon & Co. $70,000, and to Morris & Brown approximately $114,000, and to John L. McCutcheon $15,000, and desires to secure such indebtedness. Now it is agreed that said James H. McCutcheon shall pledge all his estate, real and personal, for the payment of said indebtedness, but that priority shall be given to sixtyeiglit per cent, thereof, that is to say, notes shall be given payable to Lathrop R. Bacon & Co. for say $47,600 (four of $10,000 and one of $7,600), payable four months after date, and notes shall be given to Morris & Brown for $77,520 (seven notes of $10,000 each and one of $7,520 at four months), indorsed by John L. McCutcheon and Thomas G. McCutcheon. The pledge shall be primarily liable for these notes and a note to John L. McCutcheon for $11,880; subject to this primary liability tbe pledge shall be security for the residue of the indebtedness of said James H. McCutcheon to said Lathrop R. Bacon & Co., Morris & Brown and John L. McCutcheon in the proportion of their respective claims. For said residue said James H. McCutcheon shall give his notes to the respective parties at four months. Discounts shall be paid by said James H. Mc-Cutcheon on all notes or renewals. The maker shall have the right to renew any and all notes given by him hereunder from time to time, and as often as he shall reduce the principal of any note ten per centum, and in case of such renewals all parties hereto shall be bound to indorse according to their position on the original notes.

      “ Pledge or mortgage to be made to John L. McCutcheon as trustee under the provisions hereof. Pledge to be for one year. Right in trustee to foreclose after any default on thirty days’ notice to all parties in interest.
    “ Witness the hands and seals of said parties, May 9, 1901.
    “ Morris & Brown, [Seal.]
    “ J. L. McCutcheon, [Seal.]
    “ Jas. H. McCutcheon, [Seal.]
    “ Thomas G. McCutcheon, [Seal.]
    “ Lathrop R. Bacon & Co. [Seal.]”
    9. The eight notes to Morris & Brown, aggregating $77,520, and the five notes to L. R. Bacon & Company, aggregating $47,600, all indorsed to John L. McCutcheon and Thomas G. McCutcheon, were given on May 10, 1901, to Morris & Brown and Bacon & Company, respectively, being drawn at four months and otherwise in accordance with the terms of the agreement set forth in the above finding, but James H. McCutcheon has failed to deliver his notes for the balance due plaintiffs. The notes which were given were designated as provided for in said agreement, and the discounts thereon were pa[d by James H. McCutcheon, and thus said plaintiffs have indulged and given time to James H. McCutcheon to pay said indebtedness as provided in the agreement.
    • 10. Of the indorsed notes to Morris & Brown there are still unpaid and outstanding $50,000 in the form of renewals dated September 10, 1901, and payable on demand. At the request of James H. McCutcheon, John L. McCutcheon and Thomas G. McCutcheon, the said $50,000 notes are held by John L. McCutcheon and Morris & Brown are liable' as first indorsers -thereon, the said John L. McCutcheon being subsequent indorser. '
    11. James H. McCutcheon was, on May 9, 1901, the owner of a large amount of real estate in the county of Allegheny and state of Pennsylvania, and also a large amount of personality, and still is the owner of the realty, to wit: real estate situate on Fifth avenue, -Twenty-second ward, Pittsburgh, and real estate situate on Center avenue, thirteenth ward, Pittsburgh, and that he is still the owner of personal property.
    12. Said James H. McCutcheon refuses to execute and deliver the pledge of his real and personal property as provided in the agreement found in the exhibit set forth in finding No. 8, and in the refusal to perform said agreement he is acting upon the counsel and advice of John L. McCutcheon, one of the defendants hereto.
    13. The said James H. McCutcheon acknowledged the indebtedness to plaintiffs of approximately $114,000, and to L. R. Bacon & Company of $70,000, and to John L. McCutcheon of $15,000, as shown in the agreement hereinbefore found, and agreed therein to pledge all his estate, real and personal, for the payment of said indebtedness, with the agreement that priority should be given to sixty-eight per cent thereof, namely, as far as plaintiffs hereto were concerned to $77,520, covered by the notes above set out, which were indorsed by J ohn L. and Thomas G. McCutcheon, and as to L. R. Bacon & Company to $47,600 notes likewise indorsed, and as to John L. McCutcheon to $11,880. After this primary liability the pledge was to be security for the residue of the indebtedness of the said James H. McCutcheon to plaintiffs and Bacon & Company and J. L. McCutcheon in proportion to their claims ; but the maker was to have the right to renew the notes given by him from time to time and as often as he reduced the principal of any note ten per centum, in which case of renewal all parties were to be bound to indorse according to their positions on the original notes ; that the pledge or mortgage was to be made to John L. McCutcheon as trustee and was to be for one year, with the right to the trustee to foreclose after any default on thirty days’ notice to all parties in interest.
    14. James PI. McCutcheon does not now demand or claim the right to have the notes renewed, and more than one year has elapsed from the time when such pledge or mortgage should have been given under the terms of the contract.
    The transactions involved in the dealings between Morris & Brown and James H. McCutcheon concerning .the Northern Pacific Railroad Company common stock were made in good faith with the intention on the part of both McCutcheon and plaintiffs to make actual delivery of the stock, and as agents of said McCutcheon, plaintiffs had made contracts with other persons for delivery of such stock. These transactions were not gambling transactions.

      CONCLUSIONS OF LAW.
    1. That James H. McCutcheon is indebted to Morris & Brown on the account as embraced in the findings of fact hereto in the sum of $86,156.78, of which said sum $50,000 is due and payable with interest from September 10, 1901, and the balance of said sum, $36,156.78, is due and payable with interest from May 9, 1901.
    2. That James H. McCutcheon should pay unto John L. McCutcheon, the holder of the notes representing the sum of $50,000, the debt and interest thereon, or procure for plaintiffs full acquittance thereof, and in addition thereto should pay to plaintiffs the sum of $36,156.78 with interest from May 9,1901, or failing therein, should execute and deliver unto John L. McCutcheon a pledge in writing of all the real and personal estate by him owned on May 9, 1901, in compliance and performance of the terms of the agreement set forth in the eighth finding of fact, being the agreement marked exhibit “ A.”
    3. That John L. McCutcheon accept the pledge provided for in said agreement and perform the duties of trustee thereunder, or upon his refusal so to do, that a proper pledgee or trustee be appointed in his stead.
    4. That this court has jurisdiction to compel the specific performance of the agreement found to exist between the parties, being exhibit “ A ” attached to the bill of complaint.

      jError assigned was the decree of the court.

      J. S. Ferguson, with him F. G-. Ferguson, for appellant.—
    Equity had no jurisdiction : Long’s App., 92 Pa. 171; Blakeley v. Biscoe, 30 Fed. Cases, 18, 239; Kauffman’s App., 55 Pa. 383; Dech’s App., 57 Pa. 467; Blood v. Crew Levick Co., 171 Pa. 339; Weaver v. Shenk, 154 Pa. 206 ; Stewart v. Mumford, 80 Ill. 192 ; Henderson v. Hays, 2 Watts, 148 ; Friend v. Lamb, 152 Pa. 529; Smaltz’s App., 99 Pa. 310; Zoological Society’s App., 38 Legal Int. 403; Wagner v. Peterson, 83 Pa. 238.

      William M. Hall and Joseph A. Langfitt, with them Clarence Burleigh, William Kaufman and H. W. McIntosh, for appellees.
    —Equity had jurisdiction: In re Strand Music Hall Co., 3 DeG. J. & S. 147; Irvine v. Armstrong, 81 Minn. 216 (17 N. W. Repr. 343); Hicks v. Turck, 72 Mich. 311 (40 N. W. Repr. 339) ; Cole v. Cole, 41 Md. 301; Dean v. Anderson, 84 N. J. Eq. 496; Crawford County v. Bank, 164 Pa. 109; Kirkpatrick v. McDonald, 11 Pa. 387 ; Bierbower’s App., 107 Pa. 14 ; Conyngham’s App., 57 Pa. 474 ; Independent B. & L. Assn. v. Real Estate Title Co., 156 Pa. 181; Northern Cent. Ry. Co. v. Walworth, 193 Pa. 207; Hepworth v. Henshall, 153 Pa. 592; Saeger’s App., 96 Pa. 479; Gregg v. Thurber, 45 Atl. Repr. 241; Bindseil v. Smith, 47 Atl. Repr. 456; Keplinger v. Woolsey, 93 N. W. Repr. 1008; Fryberger v. Berven, 92 N. W. Repr. 1125; Smith v. Bates Machine Co., 182 Ill. 166 (55 N. E. Repr. 69); Mut. Life Ins. Co. v. Pearson, 114 Fed. Repr. 395; Shockley v. Davis, 17 Ga. 177; Triebert v. Burgess, 11 Md. 452; Joneson Chat. Mort., sec. 3; Ceas v. Bramley, 18 Hun, 187 ; Collins v. Buck, 63 Me. 459; Tiernan v. Granger, 65 Ill. 351.
    January 2, 1906 :
   Per Curiam,

These cases differ but slightly in their facts and involve the same questions of law, and were argued together. The findings of fact are fully warranted by the testimony and we are not convinced of error in the conclusions of law.

The decrees are affirmed at the cost of the appellants.


text:
    Buel, Appellant, v. Bergman.

      Malicious prosecution — Charge of court — Probable cause.

    On an appeal from a judgment for defendant in an action for malicious prosecution, the ground of complaint was that there was a failure to instruct the jury that proof that a prosecution was instituted for the purpose of collecting a debt imposed on the defendant the burden of showing probable cause. It appeared that the proofs upon this subject were meager and inferential, and were met by countervailing proof of at least equal force. No specific instructions were asked for on the subject. Held, that the judgment should be affirmed.
    Argued Oct. 25, 1905.
    Appeal, No. 74, Oct. T., 1905, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., Sept. T., 1902, No. 684, on verdict for defendant in case of Fred. Buel, Jr., a minor, by his father and next friend, Fred. Buel, Sr., v. Daniel A. Bergman.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass for malicious prosecution. Before Collier, P. J.
    The opinion of the Supreme Court states the case.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was the charge of the court.

      Franklin A. Ammon, for appellant.
    Where a party uses criminal process to collect a debt or compel the surrender of property, the doctrine of “reasonable and probable cause ” does not avail as a defense. Nor will the law suffer a man to use unlawful means to effect even a just object, without exposing him to all the consequences arising from his improper act: Prough v. Entriken, 11 Pa. 81; Schofield v. Ferrers, 47 Pa. 194 ; Schmidt v. Weidman, 63 Pa. 173; Fillman v. Ryon, 168 Pa. 484.

      A. G. Smith, with him E. L. Kearns, for appellee.
    January 2, 1906 :
   Per Curiam,

This action was to recover damages for a malicious prosecution. The only assignment of error is to the charge. It is conceded that the instruction given as to the law applicable to the action was correct. The ground of complaint is that there was a failure to instruct the jury that proof that a prosecution was instituted for the purpose of collecting a debt imposed on the defendant- the burden of showing probable cause. The proofs upon this subject were meager and inferential, and were met by countervailing proofs of at least equal force, and the question did not become one of such importance in .the case that the failure to refer to it in the charge was error. If specific instructions were desired, they should have been asked for.

The judgment is affirmed.


author: Mr. Justice Fell,

text:
    Reed v. Tarentum Borough, Appellant.

      Negligence — Boroughs—Sidewalk—Standard of care.

    The duty of a borough to supervise its sidewalks and to maintain them in a reasonably safe condition is measured by the standard of reasonable care, and it cannot be left to the judgment or caprice of a jury to establish any other standard. The necessity for and the plan of municipal improvements are matters within the discretion of the municipal authorities. The question of necessity is never for a jury, and the question as to the plan is not whether the best and safest plan has been adopted, but whether that adopted is reasonably safe. The same rule applies as to the duty of maintenance.
    In an action against a borough to recover damages for injuries occasioned by the projection of a paving stone above adjoining stones in a sidewalk, it is reversible error for the court to instruct the jury as follows: “If you find that it did project up as stated by the plaintiff — and some of the defendant’s witnesses show pretty much the same state of affairs — of course there is a difference in their testimony; but if you find that it is a negligent thing for the borough to do, and would fix a better standard for the borough, and think that they ought to have maintained a better and safer sidewalk under the circumstances, and that this was a much traveled street, taking into consideration the size of the place and the number of foot passengers there, then the next question is whether that negligence caused the injury.”
    Argued Oct. 25, 1905.
    Appeal, No. 82, Oct. T., 1905, by defendant, from judgment of C. P. No. 1, Allegheny Co., March T., 1902, No. 198, on verdict for plaintiff in case of E. N. Reed v. Tarentum Borough.
    Before Mitchell, C. J., Fell, Brown, Mestjrezat, Potter, Elkin and Stewart, J J.
    Reversed.
    Trespass to recover damages for personal injuries. Before MacFarlane, J.
    At the trial it appeared that plaintiff’s injuries resulted from a fall occasioned by striking his foot against the edge of a paving stone which projected above the adjoining stones in the sidewalk of a street which was much frequented but poorly lighted. .
    The court charged in part as follows:
    If you find it did project up as stated by the plaintiff — and some of the defendant’s witnesses show pretty much the same state of affairs ; of course there is a difference in their testimony — but if you find that that is a negligent thing for the borough to do, and would fix a better standard for the borough, and think that they ought to have maintained a better and safer sidewalk under the circumstances, and that this was a much traveled street, taking into consideration the size of the place and the number of foot passengers there, then the next question is whether that negligence cause'd the injury. [6]
    Verdict and judgment for plaintiff for $2,510. Defendant appealed.

      Error assigned among others was (6) above instruction, quoting it.

      Nelson Me Vicar, for appellant.

      Daniel Harrison, for appellee.
    January 2, 1906 :
   Opinion by

Mr. Justice Fell,

The plaintiff’s injury was caused by a fall occasioned by his striking his foot against the edge of a paving stone which projected above the adjoining stones in the sidewalk of a much used but poorly lighted street. The instruction in relation to the duty of the borough to supervise its sidewalks and to maintain them in a reasonably safe condition was free from error except the part covered by the sixth assignment of error. This part of the charge left it to the jury to fix a standard for the maintenance of sidewalks and to find the borough negligent if there had been a failure to come up to their conception of what a sidewalk ought to bé. The law fixes the standard of duty as reasonable care, and it cannot be left to the judgment or caprice of a jury to establish any other standard. The necessity for and the plan of municipal improvements are matters within the discretion of the municipal authorities. The question of necessity is never for a jury, and the question as to the plan is not whether the best and safest plan has been adopted but whether that adopted is reasonably safe ; and reasonable safety, as in the case of machinery and methods, is to be determined by the standard of ordinary usage: Borough of Easton v. Neff, 102 Pa. 474; Cauavan v. Oil City, 183 Pa. 611. The same rule applies as to the duty of maintenance. The question in this case was whether the pavement was reasonably safe. This was to be determined by the standard of ordinary usage and not by a standard the jury might set up.

The sixth specification of error is sustained, and the judgment is reversed with a venire facias de novo.


author: Per Curiam:,

text:
    Sanders v. Mamolen, Appellant.

      Will — Devise—Restriction on alienation.

    As a restriction of alienation on the grant of a fee is against the general rule of law, it must be construed strictly.
    Testatrix, after having directed payment of all her debts, devised four-sevenths of the residue of her estate, which consisted of real and personal property, to her daughter, but provided, “that no part or parcel of said property be sold or disposed of until after the death or demise of my daughter, but that it be rented or leased and the sum realized to be divided according to the above provisions.” By a codicil testatrix directed “that if it becomes necessary to dispose of or sell my real estate prior to, or after my death, my daughter shall be entitled to and is hereby authorized to receive her portion annually until the death of her husband, after which she is to receive the full amount of her share.” Held, (1) that under the will there was no restriction upon the daughter but only a direction of the testatrix to her executors; (2) that after the death of the daughter’s husband there was an absolute right in the daughter, or her assignee, to receive the proceeds of the sale of the real estate, and that a title in fee simple was in her under the codicil without regard to the will.
    Submitted Oct. 25, 1905.
    Appeal, No. 14, Oct. T., 1906, by defendant, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1906, No. 64, on case stated in suit of Elizabeth J. Sanders and Alice B. Valentine v. Peter Mamolen.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Case stated to determine the marketable title to real estate. Before Shaeer, J.
    Testatrix by her will directed as follows:
    “ I order that all my just debts, funeral expenses and charges of proving this, my will, be in the first place fully paid and satisfied, and after payment thereof and every part thereof, I giye and bequeath to my daughter, Sarah A. Davis, four-sevenths of the residue, and to my" son, John Ingraham, now residing in Taren turn, Allegheny county, three-sevenths of the remainder. The property devised by this will consists of one house and lot in the village of Tarentum, Allegheny county, Pennsylvania, and I do further will and direct that no part or parcel of said property be sold or disposed of until after the death or demise of my daughter, Sarah A. Davis, but that it be rented or leased, and the sum realized to be divided according to the above provisions. My reason for making the above provision is that my daughter, Sarah A. Davis, remained at home long after she became of age; giving me the benefit of her labor and is now providing a home for me.”
    A codicil to the will was as follows :
    “ I, Nancy Ingraham, the testator in the above will and testament, do make the following provisions, viz.: That if it becomes -necessary to dispose of or sell my real estate prior to or after my death, my daughter, Sarah A. Davis, shall be entitled to and is hereby authorized to lift and receive her portion annually until the death of her husband, William Davis, after which she is to receive the full amount of her share. But if she should die before her husband, the remainder of her portion, if any, to be paid to her children, if of age ; but if not of age, it shall be paid to their guardian, to be given to them when they arrive at the full age of twenty-one years.”
    The plaintiffs in the case stated claimed title from Sarah A. Davis. The defendant agreed to purchase the property for $2,500._
    The court entered judgment for plaintiff for $2,500. Defendant appealed.

      Error assigned -was the judgment of the court.

      R. A. Kennedy, for appellant.
    The clause against alienation in the will of Nancy Ingraham we contend is good, for the reason that it is only a partial restriction, being during the lifetime of a person living at the. death of the testatrix : Williams v. Nisly et al., 2 S. & R. 507.

      Nelson Me Vicar, for appellee.
    The restraint on alienation contained in the will of Nancy Ingraham is illegal and void, for the reason that it is incompatible with the estate granted in fee: Jauretche v. Proctor, 48 Pa. 466; Kaufman v. Burgert, 195 Pa. 274; Brock v. Steel Co., 203 Pa. 249.
    January 2, 1906 :
   Per Curiam:,

The testatrix devised four-sevenths of her estate to her daughter, but provided “ that no part or parcel of said property be sold or disposed of until after the death or demise of my daughter, Sarah A. Davis, but that it be rented or leased and the sum realized to be divided according to the above provisions.”

On this branch of the case the learned judge below well says : “ As a restriction of alienation on the grant of a fee is against the general rule of law, it must be construed strictly, and it requires no very strict construction of the will in question to read it as not being a restriction upon Sarah A. Davis, herself, but only a direction of the testatrix to her executors. It will be observed that the testatrix puts her personal property and the land in question into a common fund for the payment of her debts, and then directs, not that her daughter shall not sell, but that the property shall not be sold till after her daughter’s death, and, in the codicil, directs that if it becomes necessary to sell it, then her daughter shall have a certain share. We think there can be little question that the testatrix did not intend that her daughter, who was the principal object of her bounty, as she says, should not sell, but that the land should not be sold for the purpose of the will unless it was necessary.”

But in addition to this the testatrix by a codicil provided : “ That if it becomes necessary to dispose of or sell my real estate prior to or after my death, my daughter, Sarah A. Davis, shall be entitled to and is hereby authorized to lift and receive her portion annually until the death of her husband, William Davis, after which she is to receive the full amount of her share.” William Davis, the husband, is now dead, and it thus appears that there is a power of sale, with an absolute right in Sarah Davis or her assignee to receive the proceeds. The title is good under the codicil without regard to the previous provisions of the will.

Judgment affirmed.


author: Mr. Justice Potteb,

text:
    Himes, Appellant, v. Pittsburg.

      Road law — Widening street — Life tenant — Rentals—Damages.
    A life tenant is not entitled to recover damages from a city for widening a street, where the evidence shows that the expenses of changing the buildings after the widening of the street were borne entirely by the tenants, and that the rentals after the widening were greater than they were before.
    Argued Oct. 26, 1905.
    Appeal, No. 87, Oct. T., 1905, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1903, No. 451, on verdict for defendant in case of Sophia R. Himes v. City of Pittsburg.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Appeal from report of jury of view. Before Evans, J.
    The court charged in part as follows:
    What was the value of the life estate immediately after this ordinance was passed taking ten feet from this property and giving to the property a sixty-foot street ?
    Those two questions are not so readily solved, I imagine, by the jury, as the ordinary questions involved in such cases as this, for the simple reason that the ascertaining of the value of a life estate is more difficult than ascertaining the value of a fee. They are not in the market to the same extent that fee simple titles are, and, therefore, it is more difficult to determine that question. For that reason we have permitted other evidence not directly bearing upon the question of the value of this life estate, and therefore not directly the measure of damages in this case but having some relation to the value of the life estate and throwing some light upon the true measure of damages in this case, namely, the value of this ■property before and after the taking of that ten feet and the widening of the street. We have, therefore, permitted the plaintiff to show what was the rental value of this property and what was the actual rent being paid for it, and what was the cost of putting the property in necessary repair to conform to the new situation after the widening of the street. All these questions l\ave been admitted here and you have heard witnesses testifying in regard to those questions, namely, as to the ordinary rental value of such property as that at the present time and the rent which this life tenant was getting and what it cost to change this property to conform to the new street as it has been widened by the citjr.
    [Let me say to yon again that those facts are not the basis upon which you find your verdict. That is, the cost to this woman of changing this property, not necessarily the amount of damages which she suffered. They throw some light upon that subject, but the amount of damages which she suffered, if she suffered any at all, is the difference between the value of her life estate before and after the widening of this street.] [1] Keeping that measure of damages in view all the time, you consider these other questions, and if you find that she has been damaged — that her life estate is worth less by reason of the widening of this street and the taking of ten feet off of this land — then to the extent of that depreciation she is entitled to a verdict.
    [If you find that her life estate was worth just as much after this as it was before, then you find for the defendant; because in determining this question you must, of course, take into consideration two facts: This property has lost ten feet of its ground; if is situated now upon a sixty-foot street instead of a fifty-foot street as it was before ; and the testimony of witnesses is that ordinarily the widening of a street benefits the property, but it is for you to determine — -taking those two questions into account, namely, that the property has lost ten feet of its length and that it has a sixty-foot street instead of a fifty-foot street — this question as to whether this property has been depreciated by reason of this improvement.] [2]
    Yerdict and judgment for defendant. Plaintiff appealed.

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

      Wm. M. Hall, Jr. for appellant.

      T. J). Carnahan, with him W. B. Rodgers, for appellee.

      January 2,1906:
   Opinion by

Mr. Justice Potteb,

Counsel for appellant in this case argues that the charge of the court below was inadequate, because the verdict of the jury was against his contention. This does not necessarily follow. The jury may very well have been convinced from the evidence that the plaintiff suffered no damage. In fact it would be most difficult to find any basis in the testimony for any other conclusion. The plaintiff possessed only a life estate in the property. For all practical purposes the value of the life estate was measured by the amount of rent she received. When the city widened and improved the street, it converted ten feet of ground from the front end of the lot into that much additional width to the street. These changes made necessary some alterations in the buildings. But these alterations were all made by the tenants at their own expense, and the plaintiff was not put to one penny of expenditure upon that account. Not only did the tenants bear the cost of the changes, but the evidence -showed that the plaintiff was able to secure an extension of the lease from the same tenants at an increased rental. How could the jury in the face of these facts have found that the plaintiff had suffered any damages ? If they had so found it would have been clearly a mistake. The testimony of Mr. Kelly wherein he attempted to value the life estate in a lump sum was only guesswork. He said himself that he could only give an approximation of the rental value of the property before the change. When pressed for an opinion he sai'd he thought it should rent for $1,500 a year. Yet the evidence showed that as a matter of fact it had been renting for $1,000 a year for several years past. Why should the jury have been influenced by the opinion of a witness who admitted he was not familiar with rentals in that immediate locality ?

We see no error in the charge of the court, it was as ample as the circumstances of the case required, and the measure of damages was properly set forth. Counsel for p] aintiff presented *no additional points for instructions to the jury, nor did he ask for any further elaboration at the time.

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


author: Pee Cue jam,

text:
    Hanforth v. Tarentum Traction Passenger Railway Company, Appellant.

      Negligence — Misleading of jurymen — Affidavit of juror — Evidence—Discretion of court — New trial.

    An affidavit of a juryman that the plaintiff had willfully misled the jury as to the character and extent of her injuries, filed in support of a motion for a new trial, is only evidence addressed to the discretion of the judge, and if the judge refuses a new trial, the appellate court will not interfere.
    Argued Oct. 26, 1905.
    Appeal, No. 95, Oct. T., 1905, by defendant, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1903, No. 585, on verdict for plaintiff in case of Mattie Hanforth and James Hanforth, her husband, v. Tarentum Traction Passenger Railway Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before McCluno, J.
    Verdict and judgment for plaintiff for 12,250.
    In support of a motion for a new trial the following affidavit was filed:
    “ My name is W. D. Hill. I reside at Oakmont. I was one of the jurors in the case of Mrs. Hanforth and her husband against the Tarentum Traction Passenger Railway Company, in which case verdicts were rendered for the plaintiffs on the day of February, 1905.
    “ I am employed by the P. C. & Y. Railway Company, and my office is in Pittsburg at the Lake Erie Railroad station, south side, Pittsburg. I am chief clerk to the secretary and accountant. On the evening of the day on which the verdicts were rendered, at about five o’clock, I boarded a street car at the P. & L. E. depot to come to Pittsburg. As soon as I entered the car I saw the plaintiff, Mrs. Hanforth, her daughter, her daughter-in-law and a young lady who testified in the case; they were all seated on the north side of the car, that is, the left side going towards the Union station. The daughter-in-law had her child with her, and lifted the child onto her knee : the child seemed to me to be standing up on its mother’s knee, but whether or not it was standing or not I do not know, at any rate it was in an upright position, not sitting. Mrs. Hanforth, the plaintiff, was sitting next to her daughter-in-law and reached up with both hands to the child’s bonnet strings and seemed to be tying them; her face was towards me, and she did this without the least expression of pain on her face, in fact, she was smiling, apparently at the child. She raised both arms and extended them towards the child, up to, or nearly at right angles, with her body. Her movement was very much freer and greater than that she displayed ■ to the jury on the trial of the case. When the car reached the Pittsburg side of the river, along about Third or Fourth avenue, she threw the elbow of her left arm up onto the window sill, or the top of the back of the seat, into a position at full right angle with her body, and then raised her hand above or opposite to the top of her head, and apparently was rubbing the steam or frost off the car window.
    “ I watched her pretty closely, because I was interested in the case, as a matter of curiosity, and the movements of her arm on the car convinced me that her testimony, given in the trial of the case, was misleading, and so much so that, if the facts had been known to me before the verdict had been rendered, I could not have agreed to a verdict in her favor.”
    McCluNG, J., filed the following opinion :
    The testimony submitted upon the reargument of this case would not justify us in concluding that the plaintiff had fraudulently misrepresented the fact as to the extent of her disability as to the use of her arm.
    Taking the testimony altogether, we have practically the same case that was submitted to the jury.
    The verdict expresses the judgment of the jury as to the damages sustained, and we cannot disturb it. The rule for a new trial must be discharged.

      Error assigned was refusal of new trial.

      Richard A. Kennedy, with him David Smith and Kelson Me Vicar, for appellant.

      George E. Alter, for appellee.

      January 2,1906:
   Pee Cue jam,

The charge that the plaintiff had willfully misled the jury as to the character and extent of her injuries raised only a question of fact. The affidavit of one of the jury, though tending strongly to establish the charge, was nevertheless only evidence addressed to the discretion of the judge on the motion for a new trial. We see no ground to interfere with his action.

Judgment affirmed.


author: Mr. Justice Stewart,

text:
    McCoy v. Ohio Valley Gas Company, Appellant. •

      Xegligen.ce — Xatural gas companies — Pipe lines — Master and servant— Presumptions — Evidence.
    In an action against a natural gas company by one of its employees to recover damages for personal injuries sustained while repairing a pipe, it appeared that at the point where the explosion occurred a landslide had pushed some of the sections of the pipe from their original location; to what extent did not appear, but sufficient to cause a leak where two of the pipes joined. Plaintiff had no control over the work but simply obeyed orders; and while the work was being done the company did not check or moderate the flow of the gas, although this could have been done. The defendant claimed that the accident was the result of a latent defect in the pipe. The evidence showed that at the time of the accident there was a pressure upon the pipe of about 225 pounds to the square inch, that the pipe had been in the ground for four years subjected continuously to a usual pressure of about 400 pounds. Before it had been placed in the ground it had been subjected to a test of 800 pounds, and after it had been placed in the ground it had been subjected to another test of 450 pounds. Held, that the case was properly submitted to the jury inasmuch as the circumstances connected with the happening of the accident were sufficient to warrant an inference of negligence in failing to shut off the gas or regulate its flow.
    Argued Oct. 20, 1905.
    Appeal, No. 97, Oct. T., 1905, by defendant, from judgment of C. P. Washington Co., May T., 1904, No. 35, on verdict for plaintiff in case of George McCoy v. The Ohio Valley Gas Company.
    Before Mitchell, C. J., Fell, Blown, Mestbezat, Potteb, Elkin and Stewabt, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before McIlvaine, P. J.

      The facts are stated in the opinion of the Supreme Court.
    Defendant presented the following points :
    5. The uncontradicted evidence in this case being that the defendant followed the usual method and the one invariably adopted by pipe line companies in temporarily repairing lines such as this, and there being no evidence that any accident was liable to occur by reason of the method employed, the plaintiff cannot recover and the verdict must be for the defendant. Answer: Refused- — the case is one for the jury and not the court to determine. [1]
    .6. The .uncontradictecl evidence in this case being that the method pursued by the defendant was not only such as is usually adopted by other corporations conveying natural gas, but that the accident itself was unusual and extraordinary and unforeseen, the defendant cannot be held to the duty of warning the plaintiff against such unforeseen and unexpected accident and the verdict must be for the defendant. Answer: Refused. [2] -
    7. Under all the testimony in this case, the plaintiff cannot recover and the verdict should be in favor of the defendant. Answer: Refused. [8]
    Verdict and judgment for plaintiff for $4,000. Defendant appealed.

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

      A. M. Todd, with him J. A. Wiley, for appellant.
    Plaintiff assumed the risk of his employment: Titus v. R. R. Co., 136 Pa. 618 ; Diver v. Singer Mfg. Co., 205 Pa. 170; Zahniser v. Penna. Torpedo Co., 190 Pa. 350; Simpson v. Locomotive Works, 139 Pa. 245.
    Where an accident results from an unforeseen cause not discoverable in advance of its occurrence, with no visible defect in any part of the machinery, and no knowledge of any defect on the part of the men who were constantly using the machinery, or of the employer, the accident is one of' the ordinary risks of the employment which the servant takes upon himself: Bradbury v. Kingston Coal Co., 157 Pa. 231; O’Dowd v. Burnham, 19 Pa. Superior Ct, 464,

      R. W. Parkinson, Jr., for appellee.
    This is no case of latent defect. The defendant proved that this pipe had all been thoroughly tested both before and after being laid to the ordinary maximum pressure, thus establishing that there was no latent defect in the pipe. The defect was patent. The proximate cause of this blow-out was the negligent permission of an unknown high pressure of gas in a line known to be in an injured and strained condition; and what caused the injury to. the line has no effect to shift the cause : Oil City Gas Co. v. Robinson, 99 Pa. 1.
    Where the plaintiff shows a series of acts from which the inference of negligence arises, that inference is sufficient to carry the case to the jury ; having once arisen, either as matter of law or from affirmative evidence of acts of commission or omission, it remains until overcome by countervailing proof; whether so overcome is a question of fact which the court could not determine: Devlin v. Beacon Light Co., 198 Pa. 583; Kane v. Phila., 196 Pa. 502; Spear v. R. R. Co., 119 Pa. 61.
    The defendant company was dealing with a dangerous substance, and must be held to a high degree of care : Koelsch v. Philadelphia Co., 152 Pa. 355 ; Heh v. Consolidated Gas Co., 201 Pa. 443; Finnerty v. Burnham, 205 Pa. 305; Rummell v. Dilworth, 111 Pa. 343.
    Whether defendant’s representatives in charge were expecting this explosion or not, “ If they ought to have known the danger, as men of ordinary prudence, and yet persisted in maintaining the obstruction, they are responsible: ” Scott v. Hunter, 46 Pa. 192 ; Bennett v. Standard Plate Glass Co., 158 Pa. 120; Smith v. Coal & Iron Co., 186 Pa. 28 ; McGray v. Varnish Co., 7 Pa. Superior Ct. 610 ; Lee v. Electric Light, etc., Co., 140 Pa. 618 ; Williams v. Clark, 204 Pa. 416; Reese v. Clark, 198 Pa. 312; Walbert v. Trexler, 156 Pa. 112; Lehigh Valley R. R. Co. v. McKeen, 90 Pa. 122; Tissue v. Balt. & Ohio R. R. Co., 112 Pa. 91.
    January 2,1906:
   Opinion by

Mr. Justice Stewart,

The plaintiff was injured by an explosion that occurred in the pipe line of the defendant company, at a point where he and others of the company’s workmen were engaged in the work of repairing, under these circumstances;

The pipe line was some three feet underground, and’ at this particular place it followed the side of a hill. A landslide had here pushed some’ of the sections of pipe from their original location, to what extent does not appear, but sufficient to cause a leak where two of the pipes joined. To relieve the line of the pressure and restore it to its place, the earth on the higher side was being removed, and the pipe uncovered so as to admit of its repair. The plaintiff was engaged in this work. It had been ascertained that the leak was about the collar of a joint, but it did not appear that examination had been made to ascertain whether other or further injury had resulted from the slide.

At the time the work was being done there was no interruption in the use of the line; the distribution of gas through the line continued at a pressure of about 225 pounds to the square inch, although by the use of safety valves and gates, which were placed along the line at intervals of three miles, the gas could have been wholly shut off or its flow regulated, at the pleasure of the defendant company, not, however, without serious inconvenience to the consumers who depended on the line for a regular and constant supply. The explosion occurred at the end of the pipe where the leak was discovered to be, breaking out a piece of pipe varying in width from six to ten inches, and extending back from the mouth some three feet. From the opening thus made the gas escaped against the earth about the pipe, and with great violence threw such material as was in' its way against the plaintiff, inflicting upon him serious bodily injury.

This action was brought to recover for the injury thus sustained, and the negligence charged as the basis of the action. was the failure of defendant company to arrest or sufficiently moderate the flow of gas from the line while the plaintiff and his fellow workmen were there engaged.

As will be seen, plaintiff’s case rested wholly upon the inference of defendant’s negligence, no direct evidence of negligence having been adduced. The theory advanced by defendant to account for the explosion was that it occurred in consequence of a latent defect in the pipe.. The question raised on the appeal, and the only question is, was the evi-' dence of defendant’s, negligence sufficient to require a submission to the jury?

Whether the explosion occurred in consequence of the latent defect in the pipe, or from a fracture occasioned by the slide, may now never be determined. In the absence of definite knowledge on this point, was the former cause to be presumed, or, as between two conflicting theories, was the former to prevail ? An unusual condition existed and the unusual had happened in consequence. The landslide had pushed the line out of its true place with one evident and apparent result — a leak, from which gas was escaping. What else in the way of injury to line or pipe resulted from the slide, if any, was not for the plaintiff to know; he could exercise no authority; his duty was to work where he was placed, the operation being wholly and exclusively under the direction and control of defendant’s agents.

The rule in such cases is thus stated by the present Chief Justice, in Zahniser v. Penna. Torpedo Co., 190 Pa. 350 : “ In cases where the duty is not absolute .... it is essential that it shall appear that the transaction in which the accident occurred was in the exclusive management of the defendant, and all the elements of the occurrence within his control, and that the result was so far out of the usual course that there is no fair inference that it could have been produced by any other cause than negligence. If there is any other cause apparent to which the injury may with equal fairness be attributed, the inference of negligence cannot be drawn.”

In the present case we have two apparent causes suggested, the one giving rise to the inference of negligence, the other negativing it. Can the explosion be attributed with equal fairness to either ? If so, it was error in the court to permit the jury to draw an inference of negligence as against defendant. A very brief reference to the facts will show how unequal in force these opposing suggestions are. That of the plaintiff suggests neither difficulty in connection with the occurrence itself nor improbability. The ordinary mind would meet with no surprise in discovering a fracture at the end of the section of pipe where, as in this case, a line three feet underground had been subjected to an external force sufficient to push it from its place and open up a joint through which gas escaped. If otherwise, it is rather remarkable that no effort was made to show that such a result is not, under such circumstances, to be anticipated. On the other hand, the suggestion of the defendant encounters improbabilities which, if they do not make it unreasonable, make it much less credible than that of the plaintiff. According to defendant’s own showing, the pipe before it was in place, had been subjected to a test of 800 pounds pressure to the square inch; after placed in the ground and it had become a part of the line, it was subjected to another test of 450 pounds, and then continuously thereafter, for a period of four years, to the usual pressure of something in excess of 400 pounds. It is, perhaps, possible that notwithstanding all this there was a latent defect in the pipe that caused it to break at this unfortunate moment, under a pressure of 225 pounds, but such bare possibility ought not to prevail against the theory which is both reasonable and probable in all its parts, considered in the light of the evidence.

Can it be said in view of the facts stated and the entire consistency of plaintiff’s theory therewith, that the explosion that injured the plaintiff can, with equal reason and fairness, be attributed to a latent defect in the pipe ? To ask the question is to answer it. As was said in Shafer v. Lacock, 168 Pa. 497, a case where the actual cause of the accident was not clearly disclosed by the testimony, but circumstances were shown warranting an inference of negligence on the part of defendant, “ the occurrence was not in the ordinary course of things, and the circumstances connected with and surrounding it put on them (the defendants)- the duty of showing that it was at least consistent with the exercise of proper care in the performance of their work.”

This duty in the present case called for something more than a theory that was simply conjectural as to the cause of the explosion. Clearly-this was a case where the circumstances connected with the happening of the accident were sufficient to warrant an inference of negligence, and that being so, submission of the question to the jury followed necessarily.

The judgment is affirmed.