author: Mr. Justice Potter,

text:
    Merrigan, Appellant, v. Evans.

      Negligence — Inference of negligence — Court and jury — Duty of court.

    In an action to recover damages for negligence, it is always a preliminary question of law for the court, whether any fact has been established by the evidence, from which an inference of negligence can reasonably be drawn. If, no such fact appears, there is nothing to submit to the jury.

      Negligence — Mines and mining — Safety appliances — Evidence.
    A mine foreman is not chargeable with negligence, in failing to adjust in a particular manner a safety device for derailing a car, where there is no evidence to justify the conclusion that the failure to adjust in the manner specified prevented the practicable use of the device, or contributed in any way to the happening of the accident. .
    Argued Feb. 21, 1908.
    Appeal, No. 242, Jan. T.,1907, by plaintiff, from judgment of C. P. Lackawanna Co., Jan. T.-, 1906, No. 118, on verdict for defendant in case of Patrick Merrigan v. Alban Evans.
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s son. Before Newcomb, J.
    At the trial it appeared that the defendant was a .certified mine foreman, in charge of a mine of the Scranton Coal Company. On August 5, 1905, James Merrigan, a minor son of the plaintiff, was killed in the mine while at work as a driver of a mine car.
    The circumstances of the accident are stated in the opinion of the Supreme Court.
    Yerdict and judgment for defendant. Plaintiff appealed.

      Error assigned among others was the charge of the court.

      Chas. P. O’Malley and Everett Warren, of Willard, Warren & Knapp, with them F. E. Boyle, for appellant.
    The violation of a statutory duty is evidence of negligence: Lederman v. R. R. Co., 165 Pa. 118; Connor v. Traction Co., 173 Pa. 602; Durkin v. Kingston Coal Co., 171 Pa. 193.
    The common-law presumption is that everyone does his duty until the contrary is proved; and in the absence of all evidence on the subject, the presumption is that the decedent observed all the precautions which the law prescribes, before he attempted to cross defendant’s road: Haverstick v. Penna. R. R. Co., 171 Pa. 101; Hanna v. Ry. Co., 213 Pa. 157; Unger v. R. R. Co., 217 Pa. 106; Lilly v. R. R. Co., 107 N. Y. 566 (14 N. E. Repr. 503).
    Since the passage of the Act of June 2,1891, P. L. 176, and art. XII, sec. 50, the common-law duty to furnish a reasonably safe place in which the employees are to work is placed upon the mine foreman. That there was evidence to go to the jury on this question in the present case, we think is beyond doubt: Durkin v. Kingston Coal Co., 171 Pa. 193; Kless v. Youghiogheny Mining Co., 18 Pa. Superior Ct. 551; Vanesse v. Catsburg Coal Co., 159 Pa. 403; Cambria Iron Co. v. Shaffer, 8 Atl. Repr. 204 ; Stillman v. Marsden, 9 Atl. Repr. 639 ; Gulla v. Leigh Valley Coal Co., 28 Pa. Superior Ct. 11; Penna. Coal Co. v. Nee, 13 Atl. Repr. 841; Trainor v. Phila. & Reading Ry. Co., 137 Pa. 148; Tissue v. B. & O. R. R. Co., 112 Pa. 91; Woodward v. Shumpp, 120 Pa. 458.

      James E. Burr, for appellee.
    If the court decided right the judgment must stand, no matter what reasons were given by the judge deciding the case: Brew v. Hastings, 206 Pa. 155; Corgan v. Coal Co., 218 Pa. 386.
    It was the duty of the plaintiff (a) to show some negligence upon the part of the defendant, which was the proximate cause of the accident, and, if such negligence were clearly imputed to , him, (b) the plaintiff could not recover if his deceased son was guilty of contributory negligence, or (c) if the negligence of a fellow servant caused the injury: Christner v. Coal Co., 146 Pa. 67; Titus v. R. R. Co., 136 Pa. 618; McCool v. Lucas Coal Co., 150 Pa. 638; Oil City Fuel Supply Co. v. Boundy, 122 Pa. 449.
    April 20, 1908:
   Opinion by

Mr. Justice Potter,

In this case the defendant, who was the mine foreman, was charged with neglect of duty under the statute in not providing and maintaining in good order a safety block or some other device to derail or block mine cars when running away on a slope. The appliance which seems to have been in customary use for this purpose in the mines was a crude sort of derailing device, consisting of a heavy block of wood which when in use ivas braced against an upright prop at one end, and extended over the rail at the other so as to intercept and throAv from the track a runaway car. It is undisputed that such a block was provided at this particular place by the defendant, and no fault Avas found Avith its quality or character. It-is averred only that the block Avas not permanently attached to the prop, so that it might be swung around, as a gate works upon its hinge. This would undoubtedly have added to the ease of working, but it Avas not shown that the lack of fastening interfered with the effective use of the block. In fact, it Avas used for the purpose intended by the deceased and his felloiv drivers Avithout complaint for a period of two weeks or more prior to the accident. It appears from the evidence that it Aims the duty of the drivers, of whom deceased Avas one, to place the block in position after putting a car in a chamber. Whether or not the deceased placed this particular oar which escaped from the miners Avho loaded it, was not shoAvn. But if he did, then he failed to block the track and guard against the runaway. Either he or one of his fellow drivers was apparently at fault in this respect. The block was a secondary or emergency obstacle, not intended to come into play, except in case of the breaking away of a car from its primary means of control.

The learned trial judge instructed the jury, that the test of the liability of the defendant was whether he honestly exercised his judgment in supplying a suitable block in proper place, relying on his belief that sufficient effort would be made' to use it by those having occasion to do so. In his opinion refusing a new trial, the learned judge concedes that this was not the proper test of negligence, to be applied to the conduct of the defendant, but that it should have been measured by the rule requiring reasonably safe appliances to work with, in accordance with the ordinary usages of the business.

But the preliminary question remains, which was one of law for the court, as to whether any fact was established by the evidence, from which an inference of negligence could reasonably be drawn. The negligence, if any there be, must in some way be connected by evidence with the accident. If the fact that the head-block was not fastened to the upright post b¿T a hinge had any effect in causing the accident, it ought to have been made a matter of evidence; but nothing of the kind was shown. We find nothing in the testimony to justify the conclusion that if the head-block had been, hinged to the post, the deceased would have escaped the injury which befell him. The head-block was not used, as under' the evidence it clearly might have been, and no reason for its non-use was given. As the trial judge says, if there were any evidence either that deceased or others who were called upon to use the block, had been told by the foreman that it was not in condition for use, or if it had appeared that an effort had been made by the deceased to operate it, which had failed ; or that, having been placed in position on the track, it proved inefficient, a different question would have been presented. But, as the evidence stands, we see nothing to justify the conclusion that the injury was the result of the fact that the head-block was not hinged to the post. The alleged negligence was not, therefore, connected with the accident as having caused it or contributed to its happening.

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


source: Caselaw Access Project

author: Mr. Justice Stewart,

license: Public Domain

text:
    Lillibridge’s Estate.

      Wills — Probate—Witnesses—Execution.
    Where an instrument propounded as a will speaks for itself, and by its terms is a testamentary disposition of property, if legal proofs be furnished of its execution, the law will presume that the maker signed it with full understanding, and that he intended it to be his will. It is not necessary that the attesting witnesses should know at the time of the attestation that the instrument is a will; nor is it necessary that the testator himself should have in terms requested them to sign and witness it; nor is it necessary that the paper should have been read to the testator in their presence.
    Argued Feb. 24, 1908.
    Appeal, No. 321, Jan. T., 1907, by Sarah O. Lillibridge, from decree of O. C. Lackawanna Co., sustaining appeal from register of wills in Estate of George Jerome Lillibridge, deceased.
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Reversed.
    Appeal from register of wills. Before Sando, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned was in sustaining the appeal from the register of wills.

      William A. Wilcox and A. A. Vosburg, for appellant.
    The paper was a will in form, and, therefore, the animus testandi is presumed. In. such case, it is only necessary to prove the signing of the will, as this in law constitutes the execution of it: Scott’s Estate, 147 Pa. 89; Kisecker’s Estate, 190 Pa. 476.
    It is only where the paper offered for probate as a will, is not a will in form, that parol testimony is necessary of declaration upon the part of the testator that the paper was intended to be his will. In other words, to show the testamentary intent: Scott’s Estate, 147 Pa. 89 ; Carson’s App., 59 Pa. 493 ; Rice’s Estate, 176 Pa. 298 ; Comb’s App., 105 Pa. 155; Schouler on Wills (2d ed.), p. 344, sec. 326 ; 1 Jarman on Wills, 80 and 81; Dean v. Dean, 27 Vt. 746 ; Kisecker’s Est., 190 Pa. 476.

      April 20, 1908:

      S. B. Price and Joseph O' Brien, of O'Brien & Kelley, with them Willard Warren & Knapp and Thos. K. Wells, for appellee,
    cited : Hock v. Hock, 6 S. & R. 47.
   Opinion by

Mr. Justice Stewart,

The paper propounded as the last will of George Jerome Lillibridge is upon its face a last will and testament. It so purports and is susceptible of no other meaning. The execution of the instrument by George Jerome Lillibridge is attested by two subscribing witnesses, both of whom testified before the register that they saw the testator sign his name to the instrument. The register on this state of facts very properly admitted the will to probate. On appeal from his decree, the learned judge of the orphans’ court set aside the probate, on the ground,-that upon the hearing on the appeal it was made to appear that neither attesting witnesses knew, at the time they attested the execution, that the instrument was a will; that the paper was not read to the testator in their presence, and that the testator himself had not in terms requested them to sign as witnesses. Neither of these things was essential to the proof of execution. "Where an instrument speaks for itself, and by its terms is a testamentary disposition of property, if legal proofs be furnished of its execution, the law will presume that the maker signed it understandingly, and that he intended it to be his will. We so held in Kisecker’s Estate, 190 Pa. 476, distinguishing between the cases where the instrument was of doubtful purport and those where it was clearly and manifestly of testamentary character. The ruling there was in exact accord with all our cases. We have uniformly held that the necessity for two subscribing witnesses relates only to the formal execution of the paper; and we have just as .uniformly held that where the instrument is in terms a will, it is wholly immaterial that the witnesses did not know that the paper was a will, or were without knowledge that it had ever been read to the testator. It is quite as immaterial here that they signed as witnesses without having been specifically requested to do so by the testator. Many a will has been executed with formal attestation when the testator was so enfeebled that it was beyond his power to express any such request; but never has one been refused probate for any such reason. • Both these witnesses say that their attestation was in the presence of the testator. The law will presume that it was with his knowledge and approval. It was error to set aside the probate in this case. On the appeal from the probate there was a request for an issue devisavit vel non to determine questions of testamentary capacity and undue influence. The court having set aside the probate, this matter was not considered. In reversing the decree, we do so without prejudice to the right of the appellants from the decree of probate, to renew their application for an issue.

Decree reversed at the costs of the appellants.


author:
Mr. Justice Stewart,
      Mr. Chief Justice Mitchell,

text:
    Commonwealth v. Deitrick, Appellant.

      Criminal law — Murder—Burden, of proof — Accidental killing — Reasonable doubt — Evidence.
    Where a felonious killing is charged, the burden rests throughout on the commonwealth to show beyond a reasonable doubt that the killing was intentional and willful, and where the evidence taken as a whole, that is to say, the evidence produced on both sides, raises a reasonable doubt in the minds of the jury as to whether the killing was accidental or intentional, they must acquit the accused, for the reason that the commonwealth has failed to meet the requirements as to proof.
    On the trial of an indictment for murder the court charged as follows: “Whether or not the killing of the deceased was accidental, becomes an important question for us to determine from all the credible — from the preponderance of the evidence in the case. If you should reach the conclusion from the evidence, from the preponderance of the evidence, that the deceased came to his death through the accidental discharge of the pistol, then it would be your duty to acquit the defendant; if on the other hand, however, you should-reach the conclusion from the preponderance of the credible evidence in the cause, that the prisoner unlawfully and maliciously slew and killed the deceased, then we will say to you, it would be your duty to convict him.” Held, that the instruction was erroneous inasmuch as it applied to the defense of accidental killing, the rule of evidence which governs the cases where the defense is insanity.
    Where the defense is an accidental killing, no exception to any general rulé is asserted, and instead of admitting the intentional act charged in the indictment, the defense directly challenges and controverts it. When this is the case, it is not a question of preponderance of evidence with'respéct to the matter of defense, but whether the effect is to leave a reasonable doubt in the minds of. the jury as to whether the killing Was intentional. If such doubt remains it must operate to ' acquit.

      Criminal law — Murder—Charge—Conflicting instructions.

    A verdict of guilty in a murder case will be set aside where it appears that the trial judge in the course of his charge submitted two eomflicting measures of proof to the jury, one of which was erroneous, and it is impossible to tell from the consideration of the charge as a whole which of the conflicting directions was observed by the jury.

      Criminal law — Murder—Witnesses—Eyewitnesses to occurrence — Discretion of district attorney.

    On the trial of an indictment for murder the district attorney is not required to call all eyewitnesses to the occurrence. Much is left to his discretion under the general direction of the trial judge. He does his ' whole duty, if -he gives notice to defendant of his determination not to call a particular eyewitness, so that the defendant may be afforded the opportunity to call him if he desires.

      Criminal■ law-. — Murder—Witness—Contradiction of party’s own witness. . ,

    The rule that a party calling a witness is not permitted to ask leading questions and is bound by his testimony, is liberally construed in modern practice, with a large measure of discretion in the court to permit parties to elicit any material truth without regard to the technical consideration of who called the witness. It is a discretion not susceptible of exactly defined limits-beforehand, but to be exercised in the interest of justice and a fair trial under circumstances as they arise.
    On a second trial of an indictment for murder a witness for the commonwealth testified that one shot had been fired by the prisoner. He was asked, whether since the first trial, at which he had given similar testimony, he had not stated that two shots wore fired. Upon his denial that he had so said, the commonwealth was permitted to call witnesses to testify that he had made such a statement. In reference to this testimony the court charged the jury that the witness’s statement put of court was not substantive evidence that two shots had been fired, :but at-most it would only be considered as neutralizing the witness’s testimony on the stand to the effect that but one shot had been fired, and that the jury should give the statement no other or different weight. Held, that the admission of the testimony with the instructions relating to it was without error.

      Criminal law — Murder—Degree 0} murder — Autrefois acquit — Twice in jeopardy.

    A conviction of murder in the second degree operates as an acquittal of the higher crime of murder of the first degree, and on the second trial, the prisoner cannot be convicted of murder of the first , degree. The trial judge at the second trial commits no error in charging the jury that there can be no conviction of murder of the first degree.
    It is for the jury and not for the court to determine the degree of murder where the case upon its facts admits of either finding; but where there is that in the case which, by operation of law, eliminates the higher degree, it is as much the duty of the judge to instruct with respect to this, as it is to instruct with respect to the law generally. Such instruction cannot be considered as a determination of the degree by the trial judge; it is a determination by the law.
    Mitchell, C. J., dissents.
    Argued March 2, 1908.
    Appeal, No. 237, Jan. T., 1907, by defendant, from judgment of O. & T. Montour Co., Feb. T., 1906, No. 1, on verdict of "guilty of murder of the second degree in case of Commonwealth v. Peter Deitrick.
    Before Mitchell, C. J., Fell, Brown, Elkin and Stewart, JJ.
    Reversed.
    Indictment for .murder. Before Evans, P. J. See 218 Pa. 36.
    At the trial the defense was an accidental shooting of the deceased while the prisoner was handling a revolver. John Woll, a witness for the commonwealth, who had testified at the first trial that only one shot had been fired, repeated the same testimony at the second trial. He was asked whether he had not made statements in the interval between the two trials in the presence of two persons to the effect that two shots had been fired. The question was allowed. [1] Woll denied that he had made such statement. The court then admitted under objection and exception the testimony of the two persons to whom Woll was alleged to have made the statement as to the two shots. [2, 3]
    The court charged in part as follows :
    [In this case the commonwealth presses for a verdict of murder in the second degree. The commonwealth does not press for a verdict of murder in the first degree, and you, therefore, cannot convict the-defendant of murder in the first-degree.] [4]

      [Whether or not the killing of the deceased was accidental, therefore, becomes an important question for you to determine from all the credible, from the preponderance of the evidence in the case. If you should reach the conclusion from the evidence, from the preponderance of the evidence, that Jones, the deceased, came to his death through the accidental discharge of the pistol, then it would be your duty to acquit the defendant. If, on the other hand, however, you should reach the conclusion, from the preponderance of the credible evidence in the'cáuse, that the prisoner unlawfully and maliciously shot and killed Jones, the deceased, then we will say to you it would be your duty to convict him.] [5]
    [The witness, James Woll, one of the eyewitnesses of this shooting affair, and whom it was the duty of the commonwealth to call, it was claimed by the commonwealth, took the commonwealth by surprise by testifying upon the stand that but one shot was fired, when, since the last trial and prior to his testimony now, he had stated to two of the commonwealth’s witnesses that two shots were fired. The commonwealth alleges that she had reason to believe that Woll would testify from the stand according to his statements made to these witnesses. We permitted, under the circumstances, the commonwealth’s counsel to inquire of the witness Woll whether he had not, on a certain occasion and at a designated place, to persons named, stated that two shots had been fired, and upon his denying it we permitted the persons to be called to testify to the statements made by him previously, viz.: that two shots were fired.' We did this, and we call your particular attention to this, not for the purpose of adducing substantive evidence of itself to prove that two shots were fired; but we permitted it only to neutralize the evidence given by the witness Woll, and we say to you that you must treat it only in that way and in no other way. That is, that you must not take these statements of Woll’s made to these witnesses about two shots being fired as proof that two shots were fired, but that you may take them as neutralizing the statement made by the witness Woll on the stand that only one shot was fired.] [7]
    Verdict of guilty of murder of the second degree. The prisoner appealed.

      Errors assigned were (1-3) rulings on evidence, quoting the bill of exceptions; (4, 5, 7) above instructions, quoting them.

      Grant Herring, with him S. P. Wol/oerton, 8. P. Wol/oerton, Jr., and Thomas Welsh, for appellant.
    A party cannot discredit his own witness by proving his contradictory statements upon other occasions, but must be restricted to proving the facts otherwise by other evidence : Stearns v. Merchants’ Bank, 53 Pa. 490 ; Fisher v. Hart, 149 Pa. 232 ; Hacker v. Oil Refining Co., 73 Pa. 93 ; Smith v. Hagey, 14 Pa. Dist. Rep. 775.
    Under this act of assembly it is made the exclusive duty and province of the jury to ascertain the degree of murder; Com. v. Sheets, 197 Pa. 69 ; Com. v. Sutton, 205 Pa. 605 ; Com. v. Fellows, 212 Pa. 297; Rhodes v. Com., 48 Pa. 396.
    A mere preponderance of proof is not sufficient to convict any man : Com. v. Deitrick, 218 Pa. 36 ; Com. v. Webster, 59 Mass. 295.

      H. M. HineMey, with him O. P. Gearhart, district attorney, for appellee.
    The testimony to contradict Woll was properly admitted : Bank of Northern Liberties v. Davis, 6 W. & S. 285; Stearns v. Bank, 53 Pa. 490 ; Farmers’ Mut. Fire Ins. Co. v. Bair, 87 Pa. 124; McNerney v. Reading, 150 Pa. 611; Gantt v. Cox, 199 Pa. 208; Com. v. Wickett, 20 Pa. Superior Ct. 350.
    Upon the reversal of the conviction, the trial and conviction are not a bar to a new trial upon the count on which the verdict of guilty was rendered; but a reversal does not disturb the verdict of acquittal upon the other counts: People v. Dowling, 84 N. Y. 478 ; Robinson v. State, 21 Texas App. 160 (17 S. W. Repr. 632); People v. Gilmore, 4 Cal. 376; Brennan v. People, 15 Ill. 511; State v. Tweedy, 11 Iowa, 350; State v. Ross, 29 Mo. 32; State v. Ball, 27 Mo. 324; State v. Martin, 30 Wis. 216 ; Slaughter v. State, 25 Tenn. 410.
    Notwithstanding the fact that certain portions of the charge taken by themselves might be objectionable, yet, if the charge as a whole contains proper instructions to the jury, this court will not reverse : Williams v. Com., 29 Pa. 102; Kilpatrick v. Com., 31 Pa. 198 ; Alexander v. Com., 105 Pa. 1; McCloskey v. Bell’s Gap R. R. Co., 156 Pa. 254; Com. v. Johnson, 133 Pa. 293 ; Com. v. Zappe, 153 Pa. 498 ; Com. v. Buccieri, 153 Pa. 535 ; Com. v. Mika, 171 Pa. 273.
    April 20, 1908:
   Opinion by

Mr. Justice Stewart,

The appellant, charged, with the felonious killing of James A. Jones, has had two trials, each resulting in a verdict of guilty of murder in the second degree. On appeal from the first conviction, we were constrained to reverse and direct a new venire because of manifest error in the charge of the court, too prejudicial to the defendant to be overlooked. The defense set up was that the killing was accidental; that the pistol was discharged in sport with no purpose to inflict injury upon anyone. The instruction to the jury in unmistakable terms imposed on the defendant the burden of proving his defense beyond reasonable doubt. We held, in strict accord with settled principles, and in fine with all our own adjudications, that where a felonious killing is charged, the burden rests throughout on the commonwealth to show beyond a reasonable doubt that the killing was intentional and willful, and that where the evidence taken as a whole, that is to say, the evidence produced on both sides, raises a reasonable doubt in the minds of the jury as to whether the killing was accidental or intentional, they must acquit the accused, for the reason that the commonwealth has failed to meet the requirements as to proof. The opinion filed in that appeal, 218 Pa. 36, makes it unnecessary to say anything here in support of the rule. Quite as serious a mistake was made on the last trial, and in the same connection. On the second trial as on the first, the defense rested wholly and exclusively on an accidental killing, and with respect to this defense the jury were charged as follows: “ Whether or not the killing of the deceased was accidental, therefore, becomes an important question for us to determine from all the credible — from the preponderance of the evidence in the ‘case. If you should reach the conclusion from the evidence, from the preponderance of the evidence, that Jones, the deceased, came to his death through the accidental discharge of the pistol, then it would be your duty to acquit the defendant, if on the other hand, however, you should reach the conclusion from the preponderance of the credible evidence in the cause, that the prisoner unlawfully and maliciously shot and killed Jones, the deceased, then we will say to you, - it would be your duty to convict him.” The error here is too patent to require discussion ; it applies to the defense of accidental killing, the rule of evidence which governs in cases where the defense is insanity. Because sanity is the normal condition of men, and insanity a defense set up to an act which otherwise would be a crime, we have held that the burden rests upon the defendant of proving his abnormal condition, and that by a preponderance of evidence : Meyers v. Commonwealth, 83 Pa. 131. Where the defense is an accidental lolling, no exception to any general rule is asserted; and instead of admitting the intentional act charged in the indictment, the defense directly challenges and controverts it. When this is the case, it is not a question of preponderance of evidence with respect to the matter of defense, but whether the effect is to leave a reasonable doubt in the minds of the jury as to whether the killing was intentional. If such doubt remains it must operate to acquit. The error here complained of is not technical, but fundamental, since it was a virtual denial to the defendant of a right he has with all others, when charged with the commission of crime, to a fair trial according to the law of the land. Uniformity of rule in the administration of justice can only be disregarded at the expense of that equal and exact justice to all, which it is the great object of our government to secure. True it is, that in other parts of the charge the trial judge directed the jury that in order to convict the defendant, the testimony on behalf of the commonwealth must satisfy their minds of his guilt beyond a reasonable doubt; and it is insisted that such unqualified instructions correct the misdirection referred to. Taking the charge as a whole, it is impossible to tell which of the conflicting directions was observed by the jury. Certain it is that the misdirection of which complaint is made was not withdrawn ; nor does it appear from the charge that the subsequent instruction was intended by way of correction. The jury had submitted to them two conflicting measures of proof; which they adopted no one can tell. In Commonwealth v. Gerade, 145 Pa. 289, the charge of the court was open to the same criticism, and the case was reversed, the same error being assigned. We there said : “But with two measures of proof before them one substantially correct, and the other erroneous, how is it possible for us to determine which the jury adopted? There should be nothing left to conjecture, especially in a capital case. It is enough to know that the jury may have been misled by erroneous instructions on a point vital to the defense.” The fifth assignment of error is sustained.

Since the case must go back for another trial, an expression of view with respect to the questions raised by other assignments seems to be required. There were but two eyewitnesses to the occurrence. On the first trial, as on the last, both these witnesses testified that the defendant had fired but one shot. The contention of the commonwealth was, notwithstanding this testimony, that he had fired two shots. Whether one or two was a most material fact in the case; for if two, the defense of an accidental killing would have absolutely nothing to support it. The commonwealth relied upon the circumstance that the revolver, with which the shooting was done showed two empty shells, and the additional fact that the defendant declared that he had shot into the ceiling, which testimony could only be explained on the theory that two shots had been fired. Both eyewitnesses were called as witnesses for the commonwealth. The second to be called was Woll. Having testified that but one shot was fired, counsel for the prosecution were permitted to inquire of the witness, by way of laying ground for contradiction, whether he did not since the former trial state that two shots were fired. Upon his denial that he had so said, counsel were permitted to call witnesses to testify to such declarations made by him. This is assigned for error. Manifestly in calling Woll as a witness the prosecuting officer had regard to a supposed rule-in criminal procedure requiring the commonwealth to call all eyewitnesses to the occurrence. The impression that there is such a rule very widely obtains, but it is without judicial sanction. The disregard of it, if it ever existed, never of itself resulted in a reversal. In all such cases very much must be left to the discretion of the district attorney, under the general direction of the trial judge. There may be, often are, justifying if not compelling reasons why a prosecuting officer should not be' required to call each and every eyewitness. For instance, if he is satisfied from contradictory statements ■ that any witness has made,, that tlm witness is wholly unreliable, it is asking too much that he accredit him by calling him to the stand. lie does his whole duty in such case, if he gives notice to the defendant of his determination not to call the witness, so that he may be afforded the opportunity to call him if he desires. It is, of course, the duty of a district attorney to present all the testimony on. the material facts, whether adverse to the defendant or favorable to him. We said as much in Commonwealth v. Keller, 191 Pa. 122; but by this nothing more is to be understood than that there must not be a withholding of testimony by the prosecuting officer for no other reason than it Avould be favorable to the defendant. In the very recent case of Commonwealth v. Danz, 211 Pa. 507, it was assigned for error that the prosecuting officer had failed to call as a witness the physician who made the examination of the exhumed body of the party killed. We there said: “ Under the circumstances there was no duty on the part of the district attorney to call McFarland as a Avitness for the prosecution, quasi judicial officer though he be, as much concerned to see that no innocent person suffer as to see that no guilty man escapes. His full duty to the prisoner was discharged when he notified her that he Avould not call him, coupled Avith the notice that she must do so if she thought the testimony would help her.” In Donaldson v. Commonwealth, 95 Pa. 21, we said, with reference to the failure of the district attorney to call a certain Avitness, that the call-. ing of the witness Avas demanded equally by the cause of humanity on the one hand or of justice on the other; and yet notwithstanding, the conclusion there Avas : “We do not reverse for this reason, and do not sustain the fifth assignment of error which raises the question, but merely express our opinion as to what should have been done under the peculiar circumstances of this case.” The rule with respect to hostile and adArerse Avitnesses might well apply here, if Woll was called under a isupposed legal requirement; but it is not necessary to invoke such rule; nor is it necessary that surprise on the part of counsel at the attitude of the witness should have been asserted. However much it was insisted upon formerly that a party could not be allowed to impeach by contradiction witnesses called by himself, the rule which prevented it has not only been much relaxed, but, as Mr: Wigmore in his treatise on evidence shows, has been in most jurisdictions wholly abrogated. In England, where it had its origin, some features of it, preserved by statute, yet remain, but the very marked tendency in this country is to escape from it entirely. Our own state furnishes no exception. In Gantt v. Cox & Sons Co., 199 Pa. 208, speaking by the present chief justice, we said : “ The rule that a party calling a witness is not permitted to ask leading questions and is bound by his testimony, is liberally construed in modern practice, with a large measure of discretion in the court to permit parties to elicit any material truth without regard to the technical consideration of who called the witness. It is a discretion not susceptible of exactly defined limits before hand, but to be exercised in the interests of justice and a fair trial under circumstances as they arise.” It is complained that the effect of allowing such an examination, and admitting in evidence the contradictions, was to bring into the case Woll’s declarations that two shots were fired, as substantive evidence in support of the commonwealth’s theory ; but any such result was so carefully guarded against by the trial judge as to make it impossible. In express terms he told the jury that Woll’s statements out of court, to the effect that two shots had been fired, were not substantive evidence that two shots had been fired; that at most they could only be considered as neutralizing his testimony on the stand to the effect that but one shot had been fired, and that the jury should give them no other or different weight. Exception is taken to the use of the word neutralizing” by the court in this connection ; but it was entirely appropriate as will be seen from the following quotation which we take from Wigmore on Evidence, sec. 1018 : The prior self-contradiction is not used assertive^, i. e., we are not asked to believe his prior statement as testimony, and we do not have to choose between the two (as we do choose in the case of ordinary contradictions of other witnesses). We simply set the two against each other, perceive that both cannot be correct, and immediately conclude that he has erred in one or the other — but without determining which one. It is the repugnancy and inconsistency, that demonstrates his error, and not the superior credibility of the prior statement: Thus, we do not in any sense accept his former statement as replacing his present one; the one simply neutralizes the other as a trustworthy one.” There was no error in admitting the evidence ; and the court sufficiently guarded its effect.

The other assignment of error relates to the instruction of the jury that, under the circumstances of the case, there could be no conviction of murder in the first degree. Of course, it is always for the jury, and never for the court, to determine the degree of murder, where the case upon its facts admits of either finding; but where there is that in the case which, by operation of law, eliminates the higher degree, it is as much the duty of the judge to instruct with respect to this, as it is to instruct with respect to the law generally. Such instruction cannot be considered as a determination of the degree by the trial judge; it is a determination by the law. There does exist a contrariety of view as to the effect to be allowed on a second trial — obtained at the instance of the defendant — of a conviction on the first of a lower grade of offense than the highest charged in the indictment. The great weight of authority in other states is, that such conviction operates as an acquittal of the higher grade, and that on a second trial, there can be no conviction of an offense of higher grade than that of which defendant was convicted. This view we regard as the better one, more consistent with reason and principle, and, what is more to the purpose than any individual opinion, it is the one adopted in our state. In Hollister v. Com., 60 Pa. 103, we have a clear recognition of this view of the law. We quote from the opinion of Chief Justice Thompson: “There is one matter on the face of this record which we cannot forbear noticing, namely, that this defendant was tried before this trial on the same indictment, and was acquitted of the burglary and larceny laid in the first count, but found guilty in the second, viz.: for inciting Harris to commit the crime laid in the first count. On application by the prisoner for a new trial the court granted it, but on the second trial held him to answer as before the whole indictment. Was this right? We think not. It is laid down in 3 Wharton’s Criminal Law, last ed., sec. 3250, that ‘Where there has been an acquittal on one count, and a conviction on another, a new trial can be granted only on the count on which there has been a conviction; and it is error on a second trial to put the defendant on trial for the former.’ Commonwealth v. Gabor, 209 Pa. 201, is au authority no less explicit. It is there said: “In.the present case the indictment was for murder, but the verdict was guilty of manslaughter. Under the decisions in this state the verdict of manslaughter was so far an acquittal of murder that the ap- . pellant cannot now be found guilty on that indictment of any higher grade than manslaughter.”

Nowhere can be found a more satisfactory vindication of the rule here asserted than' in the opinion of Chief Justice Folgae in the case of People v. Dowling, 84 N. Y. 478. lie there says: “ The matter at the bottom is the constitutional provision that no person shall be expected to be twice put in jeopardy for the same offense; and yet new trials are granted in criminal cases on the motion of the accused, and if he gets a new trial he is thus subject to be put twice in jeopardy. This is done on the ground that by asking for a correction of error made on the first trial, he does waive his constitutional protection and does himself ask for a new trial, though it bring him twice in jeopardy. The waiver of constitutional protection unless it be expressly of the benefit of a verdict of acquittal, goes no further than the accused himself extends. His application for a correction of the verdict is not to be taken as more extensive than his needs. He asks a correction of so much of the judgment as convicted him of guilt; he is not supposed to ask for correction or reversal of so much of it as acquits him- of offense. He therefore waives his privilege as to one, and keeps it as to the other. The waiver is construed to extend to the precise thing as to which relief is sought.” Any different rule than that here indicated would, as we view it, be a serious impairment of a defendant’s right to immunity from a second trial for the same offense, when a jury of his peers in a proper judicial proceeding has once found him not guilty. And this was the effect of the first verdict in this case with respect to the charge of first degree murder.

We find no merit in any of the assignments of error except the fifth. The error there complained of requires a reversal of the judgment.

Judgment reversed and venire de novo awarded.

Mr. Chief Justice Mitchell,

dissenting:

That the commonwealth is bound to prove every element of the crime charged, by evidence which leaves no reasonable doubt, and that the jury should be clearly and positively so instructed, is not to be questioned. But I do not understand it to be the law that the judge is bound to repeat and reiterate this caution at every point in his charge where he takes up a different aspect of the case or a different line of the evidence. On this point as on every other, the charge should be regarded as a whole and its correctness estimated by its general effect on the jury. “ A charge must be considered and interpreted as a whole. If so interpreted, it is a correct exposition of the law, and an adequate and impartial presentation of the case, it will be sustained, although portions of it, torn from their proper connection, may suggest error:” Commonwealth v. Johnson, 133 Pa. 293 (305).

In the present case the killing was not denied, the only defense being that the discharge of the pistol was accidental. On the previous trial the jury had unfortunately been instructed that the defense must be established beyond a reasonable doubt. This was held to have put an undue burden on the prisoner: Com. v. Deitrick, 218 Pa. 36. At the present trial the learned judge, clearly having in mind this undue burden, charged the jury,' “Whether or not the killing of the deceased was accidental, therefore, becomes an important question for you to determine from all the credible — from the preponderance of the evidence in the case. If you should reach the conclusion from the evidence, from the preponderance of the evidence, that Jones, the deceased, came to his death through the accidental discharge of the pistol, then it would be your duty to acquit the defendant. If, on the other hand, however, you should reach the conclusion from the preponderance of the credible evidence in the cause, that the prisoner unlawfully and maliciously shot and killed Jones, the deceased, then we will say to you it would be your duty to convict him.”

I am of opinion that this was a correct statement of the law. The prisoner had been flourishing an empty revolver and boasting of his skill as a marksman. On being taunted by the deceased as to his markmanship he went into another room, got a loaded revolver and almost immediately leveled it at the deceased and fired. The legal presumption that a man intends the natural and usual consequences of his act raises a clear inference that this was murder, and if no evidence to the contrary had been given, the jury would have been bound to so find it. But the prisoner undertook to show that it was an accident and was. bound to satisfy the jury of that fact by a preponderance of the evidence. It has been so held in regard to self-defense, Alexander v. Com., 105 Pa. 1 (10), and the same principle should apply to reduce what is presumptively a murder to an accidental killing. It is true that when this case was here before (218 Pa. 36) some authorities were referred to which hold that accident is not an affirmative defense which puts the burden of proof on the prisoner like self-defense, and while I must concede that the tendency of the language used is to credit those authorities, yet the decision was put upon another and entirely sound ground. The rule contended for is illogical, wrong in principle and in true policy, and ought not to be considered adopted in Pennsylvania without more direct and cogent reasons than have yet been presented.

But if I am wrong in this, and conceding for the present that the part of the charge quoted was erroneous, yet it was abundantly cured by the context.

' After defining murder and the statutory distinction of degrees the judge charged that all murder not of the first, is necessarily of the second degree. Murder in the second degree includes all unlawful and malicious killing, evincing depravity of heart, but where no intention to kill has been established by the evidence to the satisfaction of the jury, and beyond a reasonable doubt.”

He then considered manslaughter and the bearing of intoxication, etc., using this emphatic language: “ In every criminal trial there are two rights which belong to the accused and which attach to him at every stage of it, and in every view of it. These are the presumption of innocence, and the benefit of the reasonable doubt. The presumption of innocence must be overcome by proof, and by proof which will leave in the minds of the jury no reasonable doubt of guilt. In trials for murder, as in all others of a criminal nature, the defendant is entitled to the benefit of what is known as a reasonable doubt, that is, the feeling of uncertainty as to the guilt of the accused, which remains in the mind of an honest man after a full, fair and conscientious consideration of all the evidence.”

And, finally, after reviewing the evidence and defining specifically the different verdicts which the jury might find, he closed his charge by repeating the caution, “ As before intimated, before you convict the prisoner you should be satisfied of his guilt beyond a reasonable doubt. If there is a reasonable doubt in your minds of his guilt, then he should be acquitted.” The jury retired for deliberation with these words in their ears, and it does not appear to me possible that the dullest mind could have failed to appreciate the prisoner’s rights on this subject.

I agree that in the choice of evils incident to the imperfection of human tribunals it is better that a guilty man should escape than that an innocent one should be convicted, but I do not believe in magnifying trivial breaches of technical rules, which could not possibly have had any effect on the real merits of the case, into errors which call for a reversal of the judgment.

By the first jury’s want of nerve to do its duty a murderer whom any honest and courageous jury would have convicted in the first degree without leaving the box, has escaped the gallows certainly, and now is to be given a third chance to go free altogether. I do not believe that the law requires any such failure of justice.


text:
    Connolly, Appellant, v. Union League of Philadelphia.

      Negligence — Proof—Unanticipated accident — Assumption of risk.

    In order that there may be recovery of damages therefor, negligence must be proven; it is not to be assumed from thé mere happening of an accident.
    Where the owner of premises makes no representation as to the condition of a cable, and where the workman employed by an independent contractor to repair a shaft in which it runs, makes his own examination of the surroundings, and satisfied himself as to the safety of the applianees, and has full control of them, the owner is not responsible for damages resulting from the breaking of the cable, where no reason to anticipate such breaking is shown, and no satisfactory reason therefor appears.
    This is particularly true where it appears that the workman was engaged for days in the shaft, working within reach of the cable, and discovered no defect in it, made no complaint and took no precautions to avoid possible injury to himself from the breaking.
    Argued March 24, 1908.
    Appeal, No. 45, Jan. T., 1908, by plaintiff, from order of O. P. No. 5, Phila. Co., Sept. T., 1904, No. 1,610, refusing to take off nonsuit in case of Frank J. Connolly v. The Union League of Philadelphia.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Martin, P. J.
    The facts are stated in the opinion of the Supreme Court.
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was refusal to take off nonsuit.

      John H. Eow, for appellant.
    In this case the plaintiff was actually doing work for which the defendants had contracted with his employers, and as such employee had been at work for some days previous to the accident, and, consequently, was there on lawful business, and had the right to believe that the premises were reasonably safe, and that all reasonable care had been used by the defendant to protect him in order that no injury might occur: Severy v. Nickerson, 120 Mass. 306; Larmore v. Iron Co., 101 N. Y. 391 (4 N. E. Repr. 752); Pender v. Baggs, 178 Pa. 337; Pottstown Iron Co. v. Fanning, 114 Pa. 234; Phila. & Reading R. R. Co. v. Spearen, 47 Pa. 300; Schilling v. Abernethy, 112 Pa. 437; Duffy v. Sable Iron Works, 210 Pa. 326 ; Bright v. Barnett & Record Co., 88 Wis. 299; Indermaur v. Dames, L. R. 1 C. P. 274; Nichols v. R. R. Co., 83 Va. 99 (5 S. E. Repr. 171); Carleton v. Franconia Iron & Steel Co., 99 Mass. 216 ; Evansville, etc., R. R. Co. v. Griffin, 100 Ind. 221.

      April 20, 1908:
    It was the defendant’s duty to inspect the cable to ascertain if it was safe or fit for use before the plaintiff went to work in the shaft. The plaintiff had the right to assume that the elevator and its cables were safe and fit for use : Sharpley v. Wright, 205 Pa. 253 ; Kay v. Penna. R. R. Co., 65 Pa. 269; Phila. City Pass. Ry. Co. v. Hassard, 75 Pa. 367.

      W. W. Porter, of Porter, Foulkrod & McCullagh, for appellee.
    The nonsuit was proper: Jones v. Traction Co., 185 Pa. 75 ; Reese v. Clark, 146 Pa. 465 ; Welch v. Stone Co., 215 Pa. 34 ; Huey v. Gahlenbeck, 121 Pa. 238.
   Opinion by

Mr. Justice Potter,

In the club house of the defendant there is a shaft running through the various floors of the building and áffording space for the working of a double dumb-waiter apparatus. The Philadelphia Fire Proof Company contracted to line this shaft with fire proofing material, and it sent the plaintiff, its employee, to do the work. The dumb-waiters were box-shaped compartments six feet long and about two feet square, and were operated by a cable running over a grooved iron drum at the top of the shaft, and were so arranged that one of the boxes or cars went up as the other came down. They were operated by electric power, and when the plaintiff went to work upon the shaft he inspected the surroundings and requested the electric power to be turned off, and thereafter moved the waiters up and down by hand power as the progress of his work required. The dumb-waiters were intended to carry food and supplies from floor to floor, and were not intended to carry passengers. When the plaintiff had been engaged upon the work for several days, and while he was working near the bottom of the shaft, one of the dumb-waiter cars or boxes, which at the time was suspended above him, fell and injured him severely. He brought this suit to recover damages, alleging negligence by the defendant in not maintaining the car and its attachments in good and safe condition. At the trial of the cause judgment of nonsuit was entered which the court in banc, after argument, refused to remove.

The question is, was there any evidence of negligence which ought to have been left to the jury ? The accident resulted from the breaking of the cable, but whether or not it was defective’when plaintiff began, work in the shaft, does not appear. The natural inference is, that it was not, or the plaintiff would have discovered the fact as he was working in close proximity to it for several days prior to the accident. No representation seems to have been made by the defendant as to the condition of the shaft, or as to the cars or compartments of the dumb-waiters or their attachments. Apparently the shaft was open to the inspection of the plaintiff, and he made his own examination and satisfied himself as to the safety of the surroundings and of the place in which he was to work. It was all under his own control. He did most of the work while standing on top of the car, using it as a movable scaffold in the shaft, and it was only when lining the shaft near the bottom, that it became necessary to work beneath the car. Even then his testimony shows that he might have guarded himself against the falling of the box, by placing plank or scantling crosswise in the shaft, with the ends resting upon the ■ cross-pieces, just as he did at times in arranging a board updn which to stand while doing the work. The truth seems to be that, although working in the shaft and about the box or car for several days and being within arm’s length of the cable while standing upon the car, he did not discover any defect in the cable, or in the apparatus, and did not deem it necessary to take any precautions against a possible fall of the car,' even when he was working beneath it.

Our examination of the evidence has not disclosed anything from which negligence upon the part of the defendant might properly be inferred. We agree with the learned judge of the court below, that the nonsuit was properly entered, and the judgment is afiirmed.


author: Me. Justice Potter,

text:
    Bloomer v. Snellenburg, Appellant.

      Negligence — Department store — Obstruction of aisle — Contributory negligence.

    Where the owner or occupier of premises, in the prosecution of his own purposes, invites another to come upon the premises, he cannot with impunity expose the visitor to an unreasonable risk of any sort.
    A person walking in the aisle of a large store, where goods are exposed on all sides for inspection and sale, is not required to exercise the same degree of caution to watch for obstructions on the floor, as he would be required to exercise as if he were walking upon a public highway.
    In an action by a woman against the proprietor of a department, store to recover damages for personal injuries, it appeared that the plaintiff entered the store for the purpose of making purchases. While walking along one of the principal aisles in the store she stumbled upon an obstruction or inequality in the passageway caused by an incline which passed from a floor at a higher level at the left side of the aisle to a point even with the passageway at or near the right side. The sides of the incline facing the direction from which those using the passageway approached were perpendicular, and varied in height from about eight inches at one side down to a point at the other. There was no guard rail or warning, and nothing to indicate to those passing, the presence of this obstruction upon the floor extending nearly across the aisle. Held, that the case was for the jury and that a verdict and judgment for the plaintiff should be sustained.
    Argued March 25, 1908.
    Appeal, No. 72, Jan. T., 1908, by defendant, from judgment of C. P. No. 4, Phila. Co., Sept. Term, 1906, No. 2,560, on verdict for plaintiff in case of Bridget D. Bloomer v; Nathan Snellenburg et al., trading as N. Snellenburg & Co.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Audenreid, J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict for plaintiff for $3,000, on which judgment was entered for $2,000, all above that amount having been remitted.

      Error assigned was in submitting the case to the jury.

      April 20, 1908:

      George L. Crawford of Crawford <& Loughlin, for appellants.
    Upon the plaintiff’s testimony the facts as to how she stumbled are full and clear, and the questions of the defendant’s negligence and her contributory negligence, upon her admitted testimony, are entirely of law and not of fact, to be disposed of by nonsuit or by binding instructions : Farley v. Traction Co., 132 Pa. 58 ; Strayline v. Phila., 15 Pa. Dist. Rep. 387 ; Robb v. Connelsville Borough, 137 Pa. 42 ; McIlhenney v. Phila., 214 Pa. 44 ; Decker v. East Washington Borough, 21 Pa. Superior Ct. 211; Sickels v. Phila., 209 Pa. 113; Wall v. Lit, 195 Pa. 375; Seddon v. Bickley, 153 Pa. 271; Green v. R. R. Co., 214 Pa. 240 ; Hart v. Grennell, 122 N.Y. 371 (25 N. E. Repr. 354); Diver v. Singer Mfg. Co., 205 Pa. 170 ; Howell v. Union Traction Co., 202 Pa. 338; Crocheron v. Ferry Co., 56 N. Y. 656 ; Larkin v. O’Neill, 119 N. Y. 221 (23 N. E. Repr. 563).

      Arthur S. Arnold, with him John D. Bloomer, for appellee.-
    The circumstances surrounding this woman at the time of the accident make it a case for the jury. There was no legal negligence on her part. She testified she was giving due attention to her progress through the store : Polenske v. Lit Brothers, 18 Pa. Superior Ct. 474 ; Quirk v. Siegel-Cooper Co., 43 App. Div. 464 (60 N. Y. Supp. 228); Hendricken v. Meadows, 154 Mass. 599 (28 N. E. Repr. 1054); Gardner v. Waterloo Cream Separator Co., 111 N. W. Repr. 316 ; Brown v. Stevens, 136 Mich. 311 (99 N. W. Repr. 12); Becker v. Philadelphia, 212 Pa. 379.
   Opinion by

Me. Justice Potter,

The plaintiff in this case entered the department store of the defendants for the purpose of making purchases. While walking along one of the principal aisles in the store, she stumbled upon an obstruction or inequality in the passageway, caused by an incline which passed from a floor at a higher level at the left side of the aisle, tó a point even with the passageway, at or near the right side. The sides of the incline facing the direction from which those using the passageway approached were perpendicular, and varied in height from about eight inches at one side down to a point at the other. There was no guard rail or warning, and nothing to indicate to those passing, the presence of this obstruction upon the floor, extending nearly across the aisle. Plaintiff charges that the placing of such an unguarded obstruction in the passageway was not a reasonable thing to do, and therefore constituted negligence. It is certainly true that where the owner or occupier of premises, in the prosecution of his own purposes, invites another to come upon the premises, he cannot with impunity expose the visitor to an unreasonable risk of any sort, as, for example, to an open hole in a passageway, or to a rope or other obstacle stretched across the aisle, liable to trip the foot. Had the obstacle in this case been of so pronounced a character, no one could question its unreasonableness.

The learned trial judge was of the opinion that under the facts established by the evidence, with regard to the location and character of the obstruction, negligence might be inferred from its existence, and in a very careful charge pointing out that the defendants were bound to do what people of ordinary good judgment and common sense would do, and to refrain from doing that which people of common sense, under all the circumstances, would not do, he left it to the jury to say whether, judged by that standard, the maintenance of th¿ incline in the form in which it was constructed was a careless thing. We think he was right in so doing. So, also, as to the question of contributory negligence upon the part of the plaintiff. That, under the circumstances, was properly left to the jury as a question of fact. Counsel for appellant argued strongly for the application to this case of the more rigid rule which properly governs one walkingupon the public highway. But the circumstances are entirely different. Customers are invited into a store, and to walk along the aisles where goods are displayed upon every hand for the very purpose of catching the eye and attracting the attention of those who use the passageways. It is not reasonable to expect that the same degree of attention shall be bestowed upon the placing of the feet, under such circumstances, as would properly be required outside upon the public highway. The passageway ought to be kept reasonably clear for the use of those who at the time are expected to be, to some extent, using their eyes in the inspection of goods and merchandise spread before them for that purpose. It may be that tbe plaintiff, while looking at the goods around her rather than at the floor at her feet in search of obstacles, was not using the caution which reasonably prudent persons would be expected to use under the circumstances, but that was a question of fact for the jury, and not of law •for the court. It was carefully submitted to the jury in a charge to which no ■ exception was taken by the defendants. ■Counsel for-appellants complain only of the refusal of binding instructions in favor of defendants. To have given such instructions in this case would have been an invasion of the province of the jury.

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


author: Mr. Justice Brown,

text:
    Gresh, Appellant, v. Wanamaker.

      Negligence — Pleadings—Statement of claim — Demurrer.
    In an action against dealers in automobiles to recover damages for personal injuries, plaintiff in her statement of claim averred that an automobile which she had purchased from the defendants some months before had broken down on the road and could not be operated; that she requested defendants to furnish her a competent machinist and chauffeur to accompany her to the country to repair the broken automobile, and bring it to the city where she lived; that in pursuance of this request defendants furnished a man who went with her to the machine and proceeded to repair it so as to bring it back with her to the city; that the man in repairing the machine and bringing it back to the city had absolute and exclusive charge and control of it for and on behalf of the defendants; that defendants’ duty was to furnish plaintiff a careful and efficient man and one familiar with operating an automobile, but, while they sent her one of their servants, or employees, representing him to be a skilled and thoroughly competent machinist and chauffeur, he was unskilled and incompetent to repair the machine, and negligent, careless and reckless in operating it; that when plaintiff was informed by the said employee that the automobile was repaired, she entered it for the purpose of being taken in it by him tó the city, but he operated it in such an incompetent, negligent and careless manner as to cause it, in a very short time after they started, to be violently overturned and broken, and the plaintiff, who was riding therein, was violently thrown out upon the roadway and' under the machine and seriously and grievously injured. Held, (1) that the statement of claim was sufficient to show a good cause .of action, and was not demurrable; and (2) that it was not necessary for plaintiff to aver in her statement that she had promised to pay the defendants for the services of their employee.
    Argued March 27, 1908.
    April 20, 1908:
    Appeal, No. 109, Jan. T. 1908, by plaintiff, from order of C. P. No. 2, Phila, Co., Dec. T., 1904, No. 3,616, sustaining demurrer to plaintiff’s statement in case of Dora A. Gresh v. John Wanamaker et al.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Trespass to recover damages for personal injuries.
    Demurrer to statement.
    The averments of the statement appear by the opinion of the Supreme Court.
    The court sustained the demurrer- to the statement.

      Error assigned was the order of the court.

      J. 8. Freeman, with him A. W. Bomberger, for appellant,
    cited: • McColligan v. Penna. R. R. Co., 214 Pa. 229 ; Stone v. Hills, 45 Conn. 44.

      Edgar W. Zonk, with him W W. Smithers, for appellees,
    cited: Leonard v. Hendrickson, 18 Pa. 40; Hays v. Millar, 77 Pa. 238; Byrne v. R. R. Co., 61 Fed. Repr. 605.
   Opinion by

Mr. Justice Brown,

The judgment from which this appeal was takén was for the defendants on their demurrer to the plaintiff’s statement in an action against them for personal injuries sustained by her through the alleged negligence of one of their servants or employees. No opinion was filed by the court below in sustaining the demurrer, and we cannot,.therefore, tell why it .concluded that the statement did not disclose a cause of action against the appellees.

The original statement was amended and, as amended, was again amended. With three attempts made by the pleader to set forth his client’s alleged cause of action, he ought to have succeeded, if she had one. The crude original statement was not withdrawn, and from it and the amendments the following averments can be picked out: The defendants were, in the month of May, 1904, and for some time prior thereto, agents for the sale of a certain make of automobiles known as the “ Ford Automobile ”; the plaintiff purchased one of these machines from them in the month of May, 1904, and operated it until some time in the month of October of the same year, when certain parts of it were broken and it could no longer be operated; she placed it in shelter at a point near Cain Station, between Downington and Coatesville, on the line of the Pennsylvania railroad, and requested the defendants to furnish her a competent machinist and chauffeur from those then in their employ to accompany her to the said Cain Station, repair the broken automobile and bring it and her to Philadelphia ; in pursuance of said request the defendants furnished a man for the purposes aforesaid, who accompanied the plaintiff from Broad Street station, in the city of Philadelphia, to the place where her automobile was in shelter, and thereupon proceeded to repair the same to enable it to be brought back, with her, to the city of Philadelphia; the man so sent by the defendants was their servant and employee, under their sole and exclusive direction and authority, and, in repairing the machine and bringing it back to the city of Philadelphia, had absolute and exclusive charge and control of it, for and on behalf of the defendants; for the purpose of repairing and taking her automobile to the city of Philadelphia it was the duty of the defendants to furnish the plaintiff a careful and efficient man and one familiar with operating an automobile, but, while they sent her one of their servants or employees, representing him to be a skilled and thoroughly competent machinist and chauffeur, he was unskilled and incompetent to repair the machine, and negligent, careless and reckless in operating it; when the plaintiff was informed by the said employee that the automobile was repaired, she entered it for the purpose of being taken in it by him to the city of Philadelphia, but he operated it in such an incompetent, negligent and careless manner as to cause it, in a very short time after they started, to be violently overturned and broken, and the plaintiff, who was riding therein, was violently thrown out upon the roadway and under the machine and seriously and grievously injured. It is urged that the judgment ought to be sustained because there is no averment that the appellant had entered into a contract with the appellees imposing any duty upon them to her. The averments of the statement and amendments must be given their fair and reasonable meaning, which is that there was a contract between the parties, and that the appellees had been negligent in performing their part of it. In averring that she requested them to furnish her with a competent chauffeur and that they agreed to do so, the implication clearly is that the plaintiff was to pay for his services, and it would be a harsh rule of pleading that would deny her reparation for her alleged injuries merely because there has been omitted from her statement an averment of an express promise to pay the appellees for the services of their employee. As unsatisfactory as the statement is in form, in substance it discloses a cause of action, and the judgment must, therefore, be reversed.

J udgment reversed and defendants directed to plead.


author: Mr. Chief Justice Mitchell,

text:
    Commonwealth v. Lombardi, Appellant.

      Criminal law — Murder—Refusal of new trial — Appeals—Assignment of errors — Segregation of fury — Barber.
    On an appeal in a murder case the refusal of the court to grant a new trial is not assignable for error.
    A judgment on a verdict of guilty of murder of the first degree will not be reversed on the ground that the jury were permitted to take their meals in the common dining room of a hotel, to sit on the veranda of the hotel, and to talk with outsiders on the windows of the jury room, where an investigation by the court below shows that the jury was always accompanied by two tipstaves, that they had a separate table for their meals, and that they had no conversation whatever with anyone relating to the case during the progress of the trial.
    Such a judgment will not be set aside on the ground that a barber was permitted to enter the jury room after the jury had been sworn, and “did then and there separately and severally shave the members of the jury,” where, on investigation, it was found that the jury made a request for a barber, counsel on both sides consented, and the court granted the request with strict instructions to the barber not to talk to the jury, and that the only word spoken by the barber was to say “next” when he had shaved one man, and was ready for another.
    It is good practice for the judge even in cases of less grade than murder to instruct and caution the jury about communications with outside parties.
    Argued March 30, 1908.
    April 20, 1908:
    Appeal, No. 56, Oct. T., 1908, by defendant, from judgment of O. & T. Mercer Co., Oct. T., 1906, No. 18, on verdict of guilty of murder of the first degree in case of Commonwealth v. Anebalo Lombardi.
    Before Mitchell, C. J., Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Indictment for murder.
    The opinion of the Supreme Court states the case.

      Errors assigned were (1-15) in overruling various reasons for a new trial.

      J. G. White, with him W JR. Stewart, Fred A. Service and J. M. Campbell, for appellant.

      T. C. Cochran, with him J. A. McLaughry and S. H. Miller, for appellee.
   Opinion by

Mr. Chief Justice Mitchell,

The killing and the circumstances of it were not materially disputed. The only issue, therefore, practically was the degree of the crime. The case was submitted to the jury in a long and careful charge to which no exception was taken, and the jury found a verdict of murder of the first degree. U nder such circumstances serious error should be shown to justify the delay of justice by an appeal.

The defendant went on the premises of the deceased and there fired three or perhaps four shots from a revolver, one or more of which killed the deceased. In view of these facts the claim that the jury were not warranted in finding murder of the first degree is frivolous. The elements of first degree were undisputed and that is all this court is required to inquire into. If the elements are there the conclusion is for the jury-

None of the assignments of error is in proper form, all of them being to the refusal of the court to grant a new trial which is not assignable for error. Apart from this defect of. form none of them involves reversible error. Some of them, however, call attention to irregularities that are always to be avoided if possible and which, therefore, require some notice.

Among the reasons for new trial were: “5th. That during the progress of the trial the jury were allowed to take their meals in the common dining room of the Hotel Humes with the other guests, and that conversation occurred between the jury and others, and that the jury and others conversed while the. former sat on the south veranda of said hotel, and that jurors conversed with outsiders from the third story windows of the jury room, during the progress of the trial. 6th. That a barber was permitted to enter the jury room, where the jury was assembled, after they had been sworn in this case, and did then and there separately and severally shave the members of the jury.”

The learned judge investigated these complaints carefully and his conclusions are best stated in his own words: “ It is true that the jury took their meals in the regular dining room of the hotel, but they were accompanied by two tipstaves and were assigned to a table, by themselves, in the extreme northwest corner of the dining room. It is also true that one evening, or perhaps more than one, the jury sat on the balcony. of the south side of the hotel, where they were also accom-. panied by two tipstaves. This balcony is about t.hree feet, above the level of the sidewalk and is inclosed on all sides by. an iron railing about three feet in height, and no person other than the jury and the tipstaves were at that time on the balcony. It may be that some members of the jury spoke to persons passing along the sidewalk, by bidding them the time of day or something of that kind.

“One of the defendant’s counsel also informed the court since the verdict, that two members of the jury called to him from a window of the jury room on the third floor, and tried to enter into conversation with him. Aside from this statement of counsel, no evidence was offered to show that any member of the jury spoke to any person whatever. But even Conceding that some members of the jury did speak to Of talk with outsiders, the admission of the learned counsel in the written brief, that in none of the instances referred to was a single word said concerning the case in which they had been sworn, takes all of the vitality out of the exceptions now being considered. ... In the same connection, the counsel for the defendant allege and discuss the error of the court in permitting a barber to enter the jury room and shave some or all of the members of the jury. The jury made a request for a barber, counsel on both sides consented and the court granted the request, with strict instructions to the barber that he was not to talk to any member of the jury. Our information is that the only word spoken by the barber while in the jury room was to say ‘next5 when he had shaved one man and was ready for another.”

' Such occurences are always subjects of suspicion and complaint, as well as gross exaggeration as they seem to have been in the present case. But for these very reasons they should be guarded against with unremitting care by the tipstaves and the supervision of the court itself. On the part of jurors they are nearly always due to ignorance, and it is good practice for the judge even in cases of less grade than murder to instruct and caution the jury about communications with outside parties. But it is not always possible, particularly in the limited accommodations of smaller towns during court sessions, to keep the jurors segregated as completely as might be desirable. The day has gone by when jurors were kept without food or fire to coerce an unwilling agreement and jurors are no longer regarded as wrongdoers who want only a chance to violate their duty. Such situations are to be treated with common sense, and while the investigation should be full and searching yet a trial really fair and proper should not be set aside for the mere suspicion or appearance of irregularity shown to have done no actual injury.

This is the uniform ruling of the Pennsylvania cases : Alexander v. Com. 105 Pa. 1; Goersen v. Com., 106 Pa. 477 (see specially the remarks of Ludlow, J., on pp. 492, 493); Com. v. Eisenhower, 181 Pa. 470 ; Com. v. Cressinger, 193 Pa. 326 (338); Com. v. Williams, 209 Pa. 529.

Judgment affirmed and record remitted for purpose of execution.


author: Per Curiam,

text:
    Potter, Appellant, v. Ketterlinus.

      Bailment — Pledge—Trover and conversion — Assignment of debt.

    In an action of trespass for conversion where the plaintiff charges that the defendant had sold certain property which the plaintiff had pledged with him as collateral for debt, in violation of the stipulated conditions of the pledge, a nonsuit is properly entered where the evidence shows that the defendant had not sold the collateral, but had merely assigned the debt to another, and with it his rights over the collateral.
    Argued Jan. 9, 1908.
    April 27, 1908:
    Appeal, No. 147, Jan. T., 1907, by plaintiff, from order of C. P. No. 1, Phila. Co., Dec. T., 1898, No. 147, refusing to take off nonsuit in case of 'Genevieve E. Potter v. John Ketterlinus, trading as Ketterlinus Printing House.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass for conversion. Before Brégy, J.
    The opinion of the Supreme Court states the case.
    The court entertained a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was refusal to take off nonsuit.

      Joseph E. Sagebeer, with him Frank B. Ellis, for appellant.

      John Gf. Johnson, with him James Wilson Bayard, for appellee.
   Per Curiam,

Plaintiff declared in trespass (trover) for the conversion of certain stereotype plates, the property of plaintiff, which had been pledged with defendant as collateral security for a debt due him by plaintiff with authority to sell in one of several specified ways, but which plaintiff declared had been sold in disregard of the stipulated conditions. But the plaintiff failed in the proof. All that was shown by the evidence was that the appellee had assigned the debt to him and with it his rights over the collateral. The plates ultimately came into the possession of appellant and the learned judge below was of opinion that no damage had been proved. However this may be, the gist of the action was the conversion and as no conversion was shown the nonsuit was proper.

Judgment affirmed.


author: Pee Curiam,

text:
    Growler Copper Company, Appellant, v. Teti.

      Promissory notes — Delivery—Affidavit of defense.

    In. an action on a promissory note, an affidavit of defense is sufficient which avers that defendent had delivered the note in suit to the treasurer of the plaintiff corporation to be delivered by him to a third person, who was to hold the note in escrow, until the defendant could verify certain representations made to him as to the condition of the plaintiff company; that the treasurer did not deliver the note to the third person, but delivered it to the plaintiff; that the defendant investigated the condition of the company, and after finding that the representations made to him were false, notified the plaintiff that he withdrew the note.
    Argued Jan. 9, 1908.
    Appeal, No. 278, Jan. T., 1907, by plaintiff, from order of C. T. No. 2, Phila. Co., March T., 1907, No. 2,311, discharging rule for judgment for want of a sufficient affidavit of defense in case of The Growler Copper Company v. Hector Teti.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit on a promissory note.
    The defendant filed a supplemental affidavit of defense which was as follows:
    Hector Teti, being duly sworn according to law, deposes and says that, as a further and supplemental defense to the action brought by the Growler Copper Company, a corporation, in the above cause, that the defendant executed a certain promissory note which forms the subject of this suit, but that the said ,note was never delivered. In accordance with the verbal contract entered into at or about the time of the execution of the said note between the defendant and Herbert Mosley, treasurer of the plaintiff company, on behalf of said company, said note was to be delivered to one R. C. Thomas and held by him in escrow until the maturity of the same; that by virtue of the express terms of the said agreement the defendant enjoyed the option until maturity of said note to investigate the financial condition of the plaintiff company, the value of the stock in question and the advisability of the purchase of same, and that, should any of the information given at the time aforesaid by the plaintiff to the defendant prove untrue, or should the defendant deem the stock to be of less value than the contract price, he could, during the said period, exercise the right to withdraw the note in question and to declare the contract void. The defendant ascertained during the said period that many of the representations made as aforesaid were false, one of which was that there was sufficient money in the treasury at said time to construct a smelter for the mine of a capacity of 100 tons a day, and that the mine ivas in a prosperous condition. The defendant found this to be false, and also ascertained that the said Mosley, contrary to his express promises and agreements under which the note was given, had failed to deliver the same to R. C. Thomas, but on the contrary had handed the said note over to the plaintiff, whereupon the defendant, prior to the maturity of said note, about February 8, 1907, exercised his option to withdraw the note and to declare the contract void and accordingly verbally advised the said R. O. Thomas to that effect. The defendant, at or about said time, also advised by letter the defendant company, through the said Mosley as treasurer, to the effect that he had concluded to withdraw the said note for destruc.tion and to declare the contract void.
    All of which the defendant avers to be true and expects to be able to prove upon the trial of the cause.
    The court discharged rule for judgment for want of a suf-’ ficient affidavit of defense.

      Error assigned was the order of the court.

      Wayne P. Rarnbo, with him Ormond Rarnbo and Wm. Hepburn Russell, for appellant.

      April 27, 1908:
    ' J. H. Brinton, for appellee.
   Pee Curiam,

The substance of the affidavit of defense is that the note in suit was never delivered, but was held with the stock in escrow. The facts, particulary as to the alleged misrepresentations, are not clearly or satisfactorily stated, but on the averment of nondelivery enough appears to show that the dispute should go to the jury.

Judgment affirmed.


text:
    Gould, Appellant, v. Brock.

      Insurance — Insurance against result of uncertain litigation — Means of defense — Maintenance.
    A party sued has the right to avail himself of all proper means of defense, not only by the professional assistance of counsel, but also by expert and other testimony, and the experience of persons familiar with the business, and he also has the further right to protect himself by insurance from an adverse result of uncertain litigation.
    An insurance company which has for a consideration insured an owner of an automobile against liability in damages for accidents, cannot be restrained by an injunction from appearing by its own counsel and conducting the defense in an action against the owner of the automobile to recover damages for personal injuries.
    Argued Jan. 9, 1908.
    Appeal, No. 333, Jan. T., 1907, by plaintiff, from decree of C. P. No. 1, Phila. Co., March T., 1907, No. 2,595, sustaining demurrer to bill in equity in case of Claude C. Gould v. John W. Brock, Executor of Robert C. H. Brock, deceased, and Travelers’ Insurance Company 'of Hartford.
    Before Mitchell, C. J., Pell, Brown,' Mesteezat, Potter, Elkin and Stewaet, JJ.
    Affirmed.
    Bill in equity for an injunction.
    The bill averred as follows :
    One of defendants, John W. Brock, is executor of Robert C. H. Brock.
    ■ The other defendant, The Travelers’ Insurance Company of Hartford, is a Connecticut corporation.

      The plaintiff, Olaude C. Gould, sued said Brock, executor, at law to recover damages for personal injuries negligently and unlawfully inflicted upon plaintiff by the deceased Brock, in the running of an automobile, which suit is pending.
    Thereupon the said foreign corporation, not being of kin to the said Brock, and not sustaining any relation to him or to his estate, or to the plaintiff lawfully entitling it to interfere and intermeddle in the said common-law action, has, nevertheless, for hire paid to it by said Brock, undertaken to maintain and conduct the defense against the said action, at its own cost, and according to its sole discretion, and without any expense for costs or reference whatsoever to the said Brock, and for the purpose of obstructing, preventing and defeating plaintiff in his effort to enforce and obtain his just rights ; and, in furtherance of its said unlawful undertaking, has caused to be entered in said common-law action an appearance and plea by its own attorney, ostensibly for said Brock, but in truth and in fact for itself, and proposes to maintain and conduct the defense in said litigation until final judgment, although the plaintiff has and can have no claim or recourse against the said corporation for the damages suffered and claimed by him in said common-law action against Brock.
    By means of the said unlawful contrivance between said Brock and said corporation, and the resulting interference, intermeddling and maintenance by said corporation, the plaintiff is greatly harassed, hindered and prejudiced in his effort to obtain and enforce his just rights, to his irreparable injury and contrary to law and equity.
    The bill prayed for an injunction :
    1. Restraining said corporation from intermeddling in the action at law aforesaid.
    2. Requiring it to withdraw the said appearance and plea.
    3. Restraining Brock from receiving assistance from said corporation.
    4. General relief.
    A demurrer was filed to the bill, which was sustained by the court. ''

      Error assigned was decree of the court sustaining the demurrer.

      April 27, 1908:

      T. A. Fenstermaker, with him James L. Stanton, for appellant.
    As between parties, contracts whose consideration is maintenance will not be enforced : Ormerod v. Dearman, 100 Pa. 561; Burt v. Place, 6 Cowen (N. Y.), 431; Harris v. Brown & Gunther, 9 Pa. Dist. Rep. 521; Brotherson v. Consalus, 26 How. Pr. (N Y.) 213 ; McPherson v. Cox, 96 U. S. 404; Jeffries v. Mutual Life Ins. Co., 110 U. S. 305 (4 Sup. Ct. Repr. 8).

      James Wilson Bayard and Frank P. Prichard, for appel- '■ lees, were not heard.
   Per Curiam,

No cause of action is alleged in the bill which in any view of it can sustain the interference of a court of equity. If there are any available merits in complainant’s case they are maintainable at law.

But there is no, ground either at law or in equity. The right of a party sued to avail himself of all proper means of defense, not only by the professional assistance of counsel, but also by expert and other testimony, the experience of persons familiar with the business, etc., and the further right to protect himself by insurance from an adverse result of uncertain litigation, are beyond question.

There was a time when all insurance, and especially of life, was looked upon with suspicion and disfavor, but it was only because regarded as a species of wagering contract. That time has long gone by. And with the intelligent study of political economy bringing the recognition of the fact that even the most apparently disconnected and sporadic occurrences are subject to at least an approximate law of averages, the insurance against loss from any such occurrence has been ■recognized as a legitimate subject of protection to the individual by a guaranty of indemnity from some party undertaking to distribute and divide the loss among a number of others for a premium giving them a prospect of profit.

There is nothing in this case that even remotely discloses the taint of maintenance, even at common law, much less of the principle of maintenance as administered at the present day with a clearly defined limitation to cases of actually malicious, dangerous or illegal intermeddling with other parties’ litigation': Fenn v. McCarrell, 208 Pa. 615 ; Frankfort Marine, etc., Ins. Co. v. Witty, 208 Pa. 569 ; Dives v. Fidelity & Casualty Co., 206 Pa. 199 ; Phillipsburg Horse Car Co. v. Fidelity & Casualty Co., 160 Pa. 350.

Decree affirmed.