author: Mr. Justice Moschzisker,

text:
    Hufnagle v. Delaware & Hudson Company, Appellant.

      Jury and jurors■ — Challenges for cause — Employer and employee'.

    1. No person should be permitted to serve on a jury who stands in any relation to a party to the cause that would carry with it prima facie evident marks of suspicion of favor, as where a litigant is in. a position where he might exercise a control over a juror, such as the relation of master and servant or that of employer and employee. The rule is applicable to a miner and colliery superintendent employed by a mining company.

      Evidence — Official records — Weather bureau — Diaries—Opinion—■ Condition of land — Competency of witnesses — Waters—NegligenceN
    2. The regular official record of a weather bureau as to the amount of precipitation each day may fairly be considered proper evidence but this does not cover a mere diary kept by some one other than the witness testifying, several years before the witness became attached to the weather bureau, especially where the matter sought to be proven by such diary is in no sense scientific data but consists largely of the individual opinion of the person who made the entries.
    3. Where a weather bureau official has given data as to the temperature and precipitation on the dates of a certain flood, and also given his professional opinion as to what would and what would not constitute an extraordinary precipitation, giving figures, it is for the jury to determine whether or not the particular flood was an extraordinary one, and there is no necessity for the witness’s opinion on the subject.
    4. Where the plaintiff and his witnesses give testimony sufficiently describing the character and condition of his property before certain floods, which are alleged to have done damage to such property, after which witnesses are offered to state the expense of restoring the land to its prior condition, the fact that some of these witnesses have not gained their knowledge of the condition of the land prior to the floods by personal investigation will not debar them from giving the cost of restoring the property to the condition the other witnesses say it was then in.

      Practice, (J. P. — Trial—Charge—Language of points.

    5. The trial judge is not bound to adopt the language of points, but may choose his own form of expression, and if it gives the law fully and with substantial accuracy, nothing further is necessary.
    Argued Feb. 23, 1910.
    Appeal, No. 253,
    Jan. T., 1909, by defendant, from judgment of C. P. Lackawanna Co., Sept. T., 1902, No. 774, on verdict for plaintiff in case of J. G. Hufnagle v. Delaware & Hudson Company.
    Before Fell, C. J., Brown, Mestrezat, Potter and Moschzisker, JJ.
    Affirmed.
    Trespass for damages for flooding land by impeding natural flow of a river. Before Staples, P. J., specially presiding.
    The facts appear in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $10,000. Defendant appealed.'

      Errors assigned were the improper admission and rejection of evidence, improper charge and erroneous refusal to charge the jury as requested by defendant, and in sustaining challenges of jurors.

      James H. Torrey, of Welles & Torrey, with him Willard, Warren & Knapp, for appellant.

      M. J. Martin, with him John P. Kelley, R. W. Rymer and I. H. Burns, for appellee.
    — One who is in the employ of one of the parties was incompetent as a juror at common law and is generally so regarded at the present time: Central R. R. Co. v. Mitchell, 63 Ga. 173; Hubard v. Rutledge, 57 Miss. 7; Railroad Co. v. Mask, 64 Miss. 738 (2 So. Repr. 360); Burnett v. Burlington, etc., R. R. Co., 16 Neb. 332 (20 N. W. Repr. 280).
   Opinion by

Mr. Justice Moschzisker,

March 14, 1910:

At the trial in the court below it was charged that the defendant by the construction of a narrow gauge mine railroad, and by the deposit in the bed of the stream of material from an old mine drift, had so obstructed the channel of a river that the water became dammed up and broke the banks, overflowing and causing serious damage to plaintiff's property. Holes o'r ravines were washed in the surface, and large quantities of culm were deposited upon the land of the plaintiff. The injury occurred during certain floods in the years 1901 and 1902.

The defendant denied that the river broke the banks because of any obstructions placed therein by it; contending that the breaks had come from the natural force of the stream in flood times, and that the overflow had followed well defined water channels over the land of the plaintiff; further, that the floods in question were extraordinary in character,' and the real damage was not caused by the breaking of the banks of the river, but by the overflow of a creek in the vicinity which carried culm and ashes down upon the land of the plaintiff. The defendant claimed that the railroad track complained of could not have caused the damage which came from the early flood of 1901, since it was not constructed until a later period. A verdict was rendered for the plaintiff, and the defendant has taken an appeal to this court. There are twenty-seven assignments of error, which for the purposes of our present consideration may be grouped into four classes: (1) The rulings of the trial judge in sustaining challenges to certain jurors. (2) Rulings on evidence. (3) Answers to certain of defendant’s points. (4) Complaints against portions of the charge.

In the calling of the jury counsel for the plaintiff challenged two of the panel for cause, alleging that they were employed by the defendant company. The court sustained the challenge stating: “Taking it as a fact that the only ground for challenge for cause is that these two jurors are simply employees, one a miner and the other a division superintendent of some of the collieries of the defendant Company, the court is of opinion that the challenge should be sustained.” While no Pennsylvania case with facts precisely like the one under consideration has been called to our attention, yet the general principle is laid down in our cases that no person should be permitted to serve on a jury who stands in any relation to a party to the cause that would “cany with it prima facie evident marks of suspicion of favor,” as where a. litigant is in a position where “he might exercise a control over the juror,” such as the relation of master and servant: Pipher v. Lodge, 16 S. & R. 214; Harrisburg Bank v. Forster, 8 Watts, 304; Cummings v. Gann, 52 Pa. 484. In the present case the trial judge applied the rule to the relation of employer and employee, and in this there was no error.

We find no reversible error in any of the rulings of the trial judge on the admission or rejection of evidence. The only assignments under this heading which require special notice are those going to the rulings upon the testimony of the weather bureau official, and upon the testimony of certain witnesses as to the expense of restoring the land to its condition before the flooding. The weather bureau station was about six miles from the location of the land in question. The official in charge was permitted to read from the records and to testify at large upon the temperature and precipitation at or about the times of the various floods complained of, and to tell the nature thereof, whether rain or snow. Being then asked to turn to his journal and having done so he gave an answer which did not contain exact data, but stated facts concerning the weather at a certain time; namely, that it had caused the rivers and streams to rise rapidly and to overflow low lying adjacent lands; that certain lives had been lost, and “had it not been for the warning to prepare for floods and the snow melting rapidly the loss of life and damage would doubtless have been greater.” An objection to this answer was sustained and the testimony ordered stricken from the record, the trial judge stating: “The court is of opinion that the regular official record of the weather bureau as to the amount of precipitation each day might fairly be considered proper testimony, but as to the mere diary kept by some one in the office we clearly think it is objectionable, because it is largely the opinion of the man who writes it.” It is true that in answer to a leading question as to Avhether the diary was required to be kept by the Government and was one of the official records, the witness said “Yes.” But it appeared that the book had not been kept by the witness, but by someone in the office several years before he had become attached to the station. Under these circumstances, considering the fact that the matter sought to be proven by the diary was in no sense scientific data, but consisted largely of the individual opinion of the person who made the entries, there was no error in its exclusion. The question was put to this witness “I will ask you whether from the records which you have in your office and to which you have referred in your opinion the storm of February 26th, 27th and 28th, 1902, was or was not an extraordinary flood?” The question was objected to and the objection sustained. The witness was not upon the ground in 1902. He could and did give the data as to the temperature and the precipitation on the dates in question, and he also expressed his professional opinion as to what would and what would not constitute an extraordinary precipitation, giving figures; as these data were before the jury, it was for them to determine the question of the character of the flood from the evidence, and there was no necessity for the witness’s opinion on the subject. Counsel for the defendant offered to “ show the precipitation immediately prior to October 12th, 1903, for the purpose of showing that there had been a considerable flood at that time, which in connection with the testimony of Mr. Kemp as to the time when some of the photographs were taken would tend to explain to the jury the conditions as they appear in these photographs.” The offer was objected to and the objection sustained, the trial judge saying: “This is a kind of argument from premises to conclusion, the court believes is based upon premises too uncertain to permit the fact going to the jury to determine the matter.” The flood of October 12, 1903, was not directly in issue, and as the matter offered was on a collateral point, it was within the discretion of the trial judge to say whether or not he would allow it.

The plaintiff and his witnesses gave testimony sufficiently describing the character and condition of his property before the floods which caused the damage; thereafter witnesses were offered to state the expense of restoring the land to its prior condition. The fact that some of these witnesses had not gained their knowledge of the condition of the land prior to the floods by personal investigation would not debar them from giving the cost of restoring the property to the condition the other witnesses said it had then been in.

As to the refusal to expressly affirm certain of the defendant’s points, we may say that the trial judge is not bound to adopt the language of points, but may choose his own form of expression, and if it gives the law fully and with substantial accuracy, nothing further is necessary: Com. v. Lewis, 222 Pa. 302. In the present case the points in question were sufficiently covered in the general charge, which was all that the defendant was entitled to ask.

It would serve no useful purpose to further discuss the various assignments, except to state that none of them show anything approaching reversible error. The case was submitted to the jury in a comprehensive and accurate charge wherein all of the issues were plainly pointed out with clear and relevant instructions on the law; and at the end the trial judge said: “The Court desires to know from counsel on both sides if it has omitted to charge upon any substantial matter, or made any mistake.” To which counsel for the defendant answered “No.” The complaints now made concerning abstract parts of the charge are without merit and cannot be sustained.

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


source: Caselaw Access Project

author: Mr. Justice Potter,

license: Public Domain

text:
    Mackey, Appellant, v. Philadelphia & West Chester Traction Company.

      Negligence — Street railways — Right angle collision — Contributory negligence — Private driveway — Four horse team — Heavy wagon.

    1. In an action for damages for death resulting from a right angle collision between an electric railway car and a team, where the conditions at the place of crossing were such that the motorman saw or ought to have seen the team in the act of crossing, at a distance far enough ahead of him to have stopped his car and avoided the collision, if his oar had been under control, the failure of the motorman to control his car calls for explanation, and the question as to whether he was negligent is for the jury; and in determining the question it is proper for them to take into consideration whatever special or accidental feature of the time or place, that might excuse the motorman.
    2. In a suit to recover damages for death where it appears that the decedent drove a four horse team attached to a heavy oil wagon out of a private lane onto a public highway situated on a hill and was struck by a trolley car while crossing the second track of a double track street railway located on the highway, the questions of negligence and contributory negligence are for the jury where the testimony is to the effect that the driver stopped the team not more than eight feet from the first rail of the first track; that both he and his companion looked both ways and agreed that no car was in sight; and that in the direction up hill from which the car came that struck them they had a clear view of 560 feet to the top of the hill, and that they were also in clear view of the motorman from that point.
    3. The question of contributory negligence upon the part of the driver of a team, in such a case as the above, can only properly be determined by the judge as a matter of law, when the evidence is clear and undisputed, that in attempting to cross the tracks, he drove in front of an approaching car, when it was so near to him that the motorman could not reasonably be expected to stop his car in time to prevent the collision. But when there is testimony, that with a long and unobstructed view of the tracks, no car was to be seen when the driver reached the edge of the line of the tracks, and that the space between the point where a possible approaching car would appear and the line of the crossing was such as would seem ample under ordinary circumstances to permit of a safe passage, the question of negligence and contributory negligence should be left to the jury.
    4. In an action against a street railway company to recover damages for death resulting from a right angle collision between a car and a team, the absence of a burning headlight, or a failure to sound a gong or ring a bell are not material evidence of negligence on the part of the company, where it does not appear that the absence of such warnings caused or contributed to the accident.
    Argued Feb. 7, 1910.
    Appeal, No. 195,
    Jan. T., 1909, by plaintiff, from judgment of C. P. Delaware Co., March T., 1908, No. 84, refusing to take off nonsuit in case of Anna B. Mackey v. The Philadelphia & West Chester Traction Co.
    Before Fell, C. J., Brown, Potter, Elkin and Moschzisker, JJ.
    Reversed.
    Trespass for damages for death. Before Broomall, J.
    The facts appear in the opinion of the Supreme Court.

      Error assigned was refusal to take off nonsuit.

      W. Roger Fronefield, for appellant.
    — The; jury may infer negligence from the fact, that a car has run into a wagon at a grade crossing, after the motorman saw, or in the exercise of due care should have seen, a wagon on the track 560 feet away, when the car should have been stopped in 200 feet: Pittsburg, etc., Ry. Co. v. Dunn, 56 Pa. 280; Citizens Passenger Ry. Co. v. Foxley, 107 Pa. 537; Johnson v. Railway, 160 Pa. 647; Evers v. Phila. Trac. Co., 176 Pa. 376; Lenkner v. Citizens Traction Co., 179 Pa. 486; Jones v. Traction Co., 201 Pa. 344; Davidson v. Traction Co., 4 Pa. Superior Ct. 86; Hanlon v. Traction Co., 28 Pa. Superior Ct. 223; Vincent v. Lehigh Valley Transit Co., 220 Pa. 350.

      William I. Schaffer, for appellee.
    — On the proofs the decedent was guilty of contributory negligence: Keenan v. Union Traction Co., 202 Pa. 107; Smathers v. Pittsburg & Butler Street Ry. Co., 226 Pa. 212; McCracken v. Consolidated Trac. Co., 201 Pa. 378; Timler v. Phila. Rapid Transit Co., 214 Pa. 475; Moser v. Union Traction Co., 205 Pa. 481; Houston v. Consolidated Traction Co., 28 Pa. Superior Ct. 374.
    The driver of a team must look before he comes to the track on which the car is running: Ehrisman v. Harrisburg Pass. Ry. Co., 150 Pa. 180; Wheelahan v. Phila. Traction Co., 150 Pa. 187; Darwood v. Union Traction Co., 189 Pa. 592; Pieper v. Union Traction Co., 202 Pa. 100; McCracken v. Consolidated Traction Co., 201 Pa. 378; Kennan v. Union Traction Co., 202 Pa. 107; Burke v. Union Traction Co., 198 Pa. 497; Timler v. Phila. Rapid Transit Co., 214 Pa. 475.
   Opinion by'

Mr. Justice Potter,

March 21, 1910:

The plaintiff brought this action to recover damages for the death of her husband, which resulted from an accident alleged to have been caused by the negligence of an employee of the defendant company. The court below entered judgment of compulsory nonsuit, and refused to take it off. The question is, was there at the trial any evidence of negligence which ought to have been left to the jury. The facts of the case are simple. The defendant company has a double track electric railway laid upon the Philadelphia and West Chester turn-, pike. On February 13, 1908, about four o’clock in the afternoon of a foggy day, James S. Mackey, husband of the plaintiff, accompanied by L. R. Dennis, drove a four-horse team attached to a heavy oil wagon, out of a private driveway on the south side of the highway, up nearly to the line of the tracks. At that point the tracks run east and west, and are located on the southerly side of the road. The team was stopped when the noses of the leading horses were not more than eight feet from the first rail of the first track. One witness puts the distance at about three feet. While the team was standing, the men looked both ways and compared notes and agreed that no car was in sight, and that it would be safe to proceed. The line of the railway came down grade to the point where they were standing, from the east, and continued to descend for some distance further. The fog lay in the valley, but towards the top of the hill, — the direction from which the car that struck them came — the view was clear and the tracks were in plain sight for a distance of 560 feet. Any car approaching from the east, and within that distance, could be seen. If the testimony for the plaintiff is to be credited, ’ there was no car coming from the east in sight, or within a distance of 560 feet from the place where the team was standing, when the men looked up the tracks in that direction. The team was then started forward upon a walk, as the -witness Dennis testified, after they saw that there was no danger; the leading horses passed across the first track and the space between the two tracks, and cleared the second track; but while the wheel horses were yet upon the second track they were struck with great force by an approaching westbound car that came down the hill. The wheel horses were torn from the -wagon and killed; Mackey, the driver, was killed, and Dennis was thrown from the wagon and severely injured. The car ran some 200 feet or more beyond the place of the accident before it could be stopped. The witness who testified to the fact of stopping the team and looking for an approaching car was injured in the collision; and had no recollection of the precise circumstances of the collision itself. He said he did not see the car which struck them. As the driver of the team, Mr. Mackey, was killed, his evidence was not to be had. But in addition to the positive evidence of the care which he exercised, not only in looking for an approaching car as he came to the edge of the first track, but in stopping his team and listening as well, it may be presumed in the absence of any testimony to the contrary that he also continued to look for an approaching car, until his leading horses were entering upon the line of the second track. Whether he was negligent or not, in entering upon this track when he did, would be a question of fact for the jury. If the car was then in sight, and too close to justify him in proceeding, that was a matter for the defense to show.

If it be true that no car was in sight when the driver started his team across the tracks then it necessarily follows that when the approaching car from the east reached a point where the team and wagon could be seen by the motorman, the team must have been in the act of crossing. As the car came over the brow of the hill, and when it was yet some 560 feet distant from the crossing -and the team, the motorman must have had warning that the track in front of him was not clear; it was then incumbent upon him to get his car under good control and approach the crossing with caution, prepared to stop, if necessary. That he did not under these circumstances have his car under such control as would enable him to stop within a distance of 560 feet is a fact from which negligence upon the part of the motorman might very reasonably be inferred by the jury. Common experience and observation show that, under all ordinary circumstances, such a distance is at least four or five times as much as is required for the stopping of an electric car. The failure of the motorman to control his car within so great a distance certainly called for explanation, and if it was owing to some special or accidental feature of the time and place, which would relieve the motorman from the charge of apparent negligence, such evidence would be for the proper consideration of the jury. The fact that the motorman was running down grade at the time would only emphasize the need for keeping his car under such control as to enable him to have due regard for the safety of others who might be lawfully using the highway, or crossing the tracks at right angles.

The principal matter in which negligence is charged against the defendant company in plaintiff's statement of claim, is in running the car at an undue rate of speed, and without having it under proper control, so that it could be brought to a stop within a reasonable distance, when the motorman saw, or in the exercise of due care should have seen, that a team was crossing the track at a considerable distance ahead of him. It was for the jury to say whether and how far the evidence as to this point was to be believed, and whether or not an inference of negligence in this respect upon the part of the motorman was to be drawn. There were other minor matters of alleged negligence, which under the evidence were not very material, such as the failure to show a burning headlight. It was not shown that the fog had anything to do with the accident, or that the headlight if lighted would have been of any use. The daylight was sufficient to permit a clear view to the top of the hill, from whence the car came. So with regard to the allegation of a failure to sound a gong or ring a bell. No necessity for any such warning appeared except as it affected the ability to control the car; so long as the car was under good control, and could be stopped within a reasonable distance in ease of need, as at a crossing, or to avoid injury to others lawfully using the highway, the question of speed was not material. The motorman would have no right to run deliberately into a team or vehicle upon the track in front of him, no matter how slowly he might be approaching. The essential requirement is that the movement of the car be kept under due control, so as to avoid a collision if possible.

As to the question of contributory negligence upon the part of the driver of the team, in such a case as this, that can only properly be so pronounced by the judge as a matter of law, when the evidence is clear and undisputed, that in attempting to cross the tracks, he has driven in front of an approaching car, when it was so near to him that the motorman could not reasonably be expected to stop his car in time to prevent the collision. But when there is testimony as in this case, that with a long and unobstructed view of the tracks, no car was to be seen when the driver reached the edge of the line, and that the space between the point where a possible approaching car would appear and the line of the crossing was such as would seem ample under ordinary circumstances to permit of safe passage: when, notwithstanding such an alleged situation, during an attempted crossing of the tracks, a collision occurs, it seems to us that the questions of negligence and contributory negligence should properly be left to the determination of the jury.

We are of opinion that under the evidence, this case as presented was not one for the court to determine as matter of law, but that with proper instructions, it should have been submitted to the jury.

The judgment is reversed with a procedendo.


text:
    Moon v. Matthews, Appellant.

      Negligence — Automobiles—Chauffeur—Scope of employment — Master and servant — Disobedience of orders — Use of automobile by owner’s family.

    1. In an action to recover damages for injuries sustained from being struck by an automobile at a time when the defendant owner was not an occupant, where it is shown that the automobile belonged to the defendant, and at the time of the accident was being operated by his regular chauffeur, not upon any errand of the latter or to serve the latter’s purposes, but in obedience to the order of a member of defendant’s family; that the occupants of the car were friends of defendant, and guests of his sister, and the errand upon which the car was taken was entirely proper and fitting in itself, the burden is upon the defendant to show that the chauffeur was not acting within the scope of his employment, and upon the business for which he was employed by his master, and the fact that while acting for the master he may have disobeyed his commands does not take the act out of the scope of his employment.
    2. In such a case, the court is not constrained to enter judgment for defendant non obstante veredicto by evidence of the defendant and his sister to the effect that defendant had forbidden the chauffeur to take out the car unless the defendant was with it, where it also appears from the evidence that upon the morning after the accident, defendant and his sister called upon plaintiff, discussed the accident with him and tried to arrange a settlement; that defendant at that time asked plaintiff to send him his doctor’s bill and the bill for repairing the carriage and all other repairs, and that neither then nor any time before suit was brought did it appear that the defendant disclaimed liability upon the ground that the chauffeur was not acting for the master at the time of the accident.
    3. Where a servant, who is employed for the special purpose of operating an automobile for the master, is found operating it in the manner such machines are usually operated, the presumption naturally arises that he is running the machine in the master’s service. If he is not, this fact is ’peculiarly within the knowledge of the master, and the burden is on him to overthrow this presumption by evidence which the law presumes is in his possession.
    4. Since the scope of the servant’s employment is necessarily dependent on circumstances, a hard and fast rule cannot be laid down as to the scope of any particular employment; and it is ordinarily a question for the jury whether or not a particular act comes within the scope of a servant’s employment.
    Argued Feb. 7, 1910.
    Appeal, No. 272,
    Jan. T., 1909, by defendant, from judgment of C. B. Bucks Co., May T., 1907, No. 9, on verdict for plaintiff in case of Alfred H. Moon v. Charles J. Matthews.
    Before Fell, C. J., Brown, Potter, Elicin and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Stout, J.
    The facts appear in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $5,166. Defendant appealed.

      Errors assigned were (1) in refusing binding instructions for defendant; and (2) in refusing to enter judgment for defendant non obstante veredicto.

      John G. Johnson, with him J. Hibbs Buckman gnd William C. Ryan, for appellant.
    — The plaintiff must show not only that the person in charge of the car was defendant’s servant but that at the time he was engaged on the master’s business: Lotz v. Hanlon, 217 Pa. 339; Sarver v. Mitchell, 35 Pa. Superior Ct. 69; Durham v. Strauss, 38 Pa. Superior Ct. 620; Quigley v. Thompson, 211 Pa. 107; Guille v. Campbell, 200 Pa. 119; Rudgeair v. Reading Traction Co., 180 Pa. 333; Murphey v. Phila. Rapid Transit Co., 30 Pa. Superior Ct. 87.

      Harmon Yerkes, of Yerkes, Ross & Ross, with him Gilkeson & James, for appellee.
    — If a wrongful act is committed in the course of the master’s business the master is liable, notwithstanding such act may have been in direct violation of his instructions: McClung v. Dearborne, 134 Pa. 396; Phila., etc., R. R. Co. v. Brannen, 17 W. N. C. 227; Penna. R. R. Co. v. Vandiver, 42 Pa. 365; Ahern v. Melvin, 21 Pa. Superior Ct. 462; Shaw v. Reed, 9 W. & S. 72.
    The question whether a servant was acting within the scope of his employment when he committed a negligent act, is a question of fact for the jury: Guinney v. Hand, 153 Pa. 404; Simmons v. Penna. R. R. Co., 199 Pa. 232; Hestonville Pass. R. R. Co. v. Grey, 1 Walk. 513.
   Opinion by

Mr. Justice Potter,

March 21, 1910:

In this action the plaintiff sought to recover damages for injuries received in a collision between a buggy in which he was riding and an automobile owned by the defendant, and operated by his chauffeur. The accident happened upon a dark night. Plaintiff was driving along the road, when he saw and heard the automobile approaching. He turned as far as possible to the right side of the road to let it pass, but, according to his testimony, the automobile came directly towards him, struck his buggy, and he either jumped or was thrown into the road, and severely injured. It was admitted that the automobile was owned by defendant and that the chauffeur was employed by him to care for and operate that particular vehicle. The trial judge submitted to the jury for their determination, as questions of fact, whether the accident was caused by the negligence of the chauffeur, whether the plaintiff was guilty of contributory negligence, and whether at the time of the accident the chauffeur was acting within the scope of his employment, and was upon his master’s business. Upon all these matters, the jury found in favor of the plaintiff..

The first and second assignments of error raise the question whether the court should not have taken the case from the jury and directed a verdict for defendant, or entered judgment non obstante veredicto in his favor.

Counsel for appellant maintain that at the time of the accident the chauffeur was not engaged in the master’s business, and was acting in disobedience of his orders. This claim is based upon evidence offered by the defendant, tending to show that he had forbidden the chauffeur to take out the car unless the defendant was with it, and that upon the night of the accident the car was taken out by the chauffeur, under the direction of the sister of the defendant, who made her home with defendant, and was regarded as a member of the family. It was not pretended that the chauffeur was acting in any way upon his own business. Miss Alice Matthews testified that she made up her party for an automobile ride, expecting to get her brother’s consent when he came home, but as he was late in arriving she ordered the chauffeur to take out the automobile upon her own responsibility. It also appears from the evidence that upon the morning after the accident, defendant and his sister called upon plaintiff, discussed the accident with him and tried to arrange a settlement. Defendant at that time asked plaintiff to send him his doctor’s bill and the bills for repairing the carriage and all other repairs. Neither then nor at any time before suit was brought did it appear that the defendant disclaimed liability upon the ground that the chauffeur was not acting for the master at the time of the accident. It seems to have been set up for the first time, as a matter of defense, at the trial. It has been held that the facts and circumstances at the time of an accident may raise a presumption that the regular chauffeur employed by the owner and in charge, was acting within the scope of his employment. In Long v. Nute, 123 Mo. App. 204, Bland, J., said (p. 209):

“ Where a servant, who is employed for the special purpose of operating an automobile for the master, is found operating it in the usual manner such machines are operated, the presumption naturally arises that he is running the machine in the master’s service. If he is not so running it, this fact is peculiarly within the knowledge of the master, and the burden is on him to overthrow this presumption by evidence which the law presumes he is in possession of.”

In the case of Guinney v. Hand, 153 Pa. 404, it appeared that the plaintiff was injured by a beer wagon belonging to defendants, and in charge of a driver employed by them. Judgment on a verdict for plaintiff was affirmed, Chief Justice Sterrett saying (p. 410): “The question whether Carroll (the driver) was acting within the scope of his employment, etc., was clearly a question of fact for the jury.”

In Simmons v. Penna. R. R. Co., 199 Pa. 232, we said (p. 238): “Since the scope of the servant’s employment is necessarily dependent on circumstances, a hard and fast rule cannot be laid down as to the scope of any particular employment; and it is ordinarily a question for the jury whether or not a particular act comes within the scope of a servant’s employment.”

In the case at bar, the defense depended entirely, upon the oral testimony of the defendant and his sister, as to the instructions given to the chauffeur, for the use of the automobile. Clearly the chauffeur was not out upon any errand of his own. He was directed to take the machine out by a member of defendant’s family, and he did so. Was it for him, under such circumstances, to dispute the right of a member of the family to order the machine out? Was he to presume that permission of the owner had not been obtained? The facts of this case distinguish it clearly from those in Lotz v. Hanlon, 217 Pa. 339. There the plaintiff simply showed that the defendant owned the machine; and rested. The defendant then called a witness, presumably the chauffeur, whose testimony was not contradicted in any maimer, and from which it appeared conclusively that the use of the machine by the driver on the evening when the accident occurred was wholly unlicensed, was for his own convenience and pleasure, and entirely apart from his master’s business. Under such circumstances, the owner was naturally held not liable for the conduct of the chauffeur.

So in Sarver v. Mitchell, 35 Pa. Superior Ct. 69, the plaintiff showed that the car was registered in the name of the defendant, and that the chauffeur had been seen driving his car before. The defendant then took the stand and admitted that the car belonged to him, and that the chauffeur was in his employ, and then the defendant testified that he had gone over to New York and had forbidden the chauffeur to take the machine out of the garage while he was away. The people who were in the machine at the time of the accident were the chauffeur’s personal friends, and he had them out on a pleasure trip. Here there was no real testimony tending to impeach the testimony of the defendant, and as the Superior Court said (p. 72) “all the attending circumstances, as narrated by the plaintiff’s witness who was in the party at the time the child was killed, tending to show that the occupants of the car were personal friends of the chauffeur, and not of the defendant.” And the case was ruled upon the ground that there was no evidence to show that at the time of the accident the car was being used in or about the business of its owner.

But in the present case the facts were entirely different. It was shown that the automobile belonged to defendant, and at the time of the accident was being operated by his regular chauffeur, not upon any errand of his own, or to serve his own purposes, but in obedience to the order of a member of defendant’s family. That the occupants of the car were friends of defendant, and guests of his sister, and the errand upon which the car was taken was entirely proper and fitting in itself. Under such circumstances, the burden was upon the defendant to show that the chauffeur was not acting within the scope of his employment, and upon the business for which he was employed by his master. The test is, whether the act was done in the prosecution of the business in which the servant was employed to assist. If it was, the master is responsible. The fact that while acting for the master he may have disobeyed his commands, does not take the act out of the scope of his employment: McClung v. Dearborne, 134 Pa. 396. The present case as made out by the evidence of the plaintiff was sufficient to warrant a recovery. Whether or not it was overcome by the testimony offered by the defendant was for the determination of the jury.

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


author: Per Curiam,

text:
    Schley, Appellant, v. Susquehanna & New York Railroad Company.

      Negligence — Railroads—Passenger—Passenger sleeping.

    1. One who remains in a railway car twenty-five minutes after it has reached his station, which is the terminus of the road, cannot be regarded as a passenger, and as such relieved of the burden of proof of negligence.

      Evidence — Province of court and jury — Verdict—Binding instructions.

    2. The court may consider the defendant’s testimony in directing a verdict for the defendant, when the testimony is credible and is not contradicted or at variance with that of the plaintiff.

      Evidence — Province of court and jury — Capricious disbelief — Verdict.
    3. When testimony is not in itself improbable, is not at variance with any proved or admitted facts, or with ordinary experience, and comes from witnesses whose candor there is no apparent ground for doubting, the jury is not at liberty to indulge in a capricious disbelief. If they do so, it is the duty of the court to set aside the verdict; and where that is the case, the court may refuse to submit it at all and direct a verdict accordingly.
    Argued Feb. 15, 1910.
    Appeal, No. 285,
    Jan. T., 1909, by plaintiff, from judgment of C. P. Lycoming Co., June T., .1907, No. 320, on verdict for defendant by direction of the court in case of George Schley v. Susquehanna & New York Railroad Company.
    Before Fell, C. J., Mestrezat, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass for damages for personal injuries. Before Ormerod, J., specially presiding.
    The facts appear in the opinion of the Supreme Court.

      Error assigned was in directing a verdict for defendant.

      M. C. Rhone, with him A. R. Jackson, for appellant.
    — The court could not hold as a matter of law that the relation of carrier and passenger liad ended before the accident: Penna. R. R. Co. v. Kilgore, 32 Pa. 292; Lyons v. Penna. R. R. Co., 129 Pa. 119; Bass v. Cleveland, etc., Ry. Co., 105 N. W. Repr. 151.

      Seth T. McCormick, with him C. H. McCauley, for appellee.
    — Where a passenger has had reasonable time and opportunity to leave the car and does not do so, he thereby forfeits the rights due him as a passenger: Glenn v. R. R. Co., 165 Ind. 659 (75 N. E. Repr. 282); Fremont, etc., R. R. Co. v. Hagblad, 101 N. W. Repr. 1033; Chicago & A. Ry. Co. v. Tracey, 109 Ill. App. 563; Houston, etc., R. R. Co. v. Batchler, 83 S. W. Repr. 702; Chicago, etc., Ry. Co. v. Barrett, 16 Ill. App. 17; Jeffersonville, etc., R. R. Co. v. Parmalee, 51 Ind. 42; Kaase v. Gulf, etc., Ry. Co., 92 S. W. Repr. 444; Chicago, etc., R. R. Co. v. Frazer, 2 A. & E. R. R. Cases (N. S.), 206.
   Per Curiam,

March 21, 1910:

The plaintiff was injured while in a combination passenger and baggage car that had been detached from a train and was standing on a siding in a yard at a station at the end of the defendant’s road. The car had reached the station twenty-five minutes before the accident. It had stood there on the main track ten minutes and had then been placed on the siding, where it was struck by a freight car and derailed.

The plaintiff had got on the car twelve miles from the station at which he was injured. He testified that he had been drinking and had a bottle of whiskey with him and drank while on the train; that he went to sleep when three miles from the station and from that time he knew nothing until after the accident. The only evidence in support of the allegation of negligence was that the brake of the freight car did not hold. The brakeman called by the plaintiff was unable to explain why it did not hold, and it was not shown that it was defective before the accident. The conductor, called by the defendant, testified that, when the train reached the station and other passengers had got off, he went to the plaintiff and awoke him, told him they were at the end of the line and to get off; that he supposed the plaintiff had got off before he directed the removal of the car to the siding, but afterwards saw him in the car when it was in motion and told his flagman to get him off when the car stopped. A brakeman testified that he saw the plaintiff walk from the passenger to the baggage department of the car while it stood on the siding.

According to the plaintiff’s testimony, the burden of proof of negligence was on him because he was not a passenger when injured. He had remained in the car twenty-five minutes after it had reached the station. According to the undisputed testimony of the defendant’s witnesses the plaintiff was aroused from his sleep at the station and was awake in the car ten ,or fifteen minutes after it had been placed on'the siding. The'court was justified in considering this testimony in directing a verdict. “When the testimony is not in itself improbable, is not at variance with any proved or admitted facts, or with ordinary experience, and comes from witnesses whose candor there is no apparent ground for doubting, the jury is not at liberty to indulge in a capricious disbelief. If they do so, it is the duty of the court to set aside the verdict;-and where that is the case, the court may refuse to submit it at all and direct a verdict accordingly:” Lonzer v. Railroad Co., 196 Pa. 610.

The judgment is affirmed.


text:
    Coyne, Appellant, v. Lakeside Electric Railway Company.

      Negligence — Lessor and lessee — Railroads—Electric railways — New parties — Amendment—Statute of limitations.

    In an action against an electric railway company to recover damages for personal injuries, a motion to amend the record by striking out the name of the defendant and substituting the name of another corporation, its lessee, will be denied where the statute of limitations has become a bar.

      Argued Feb. 15, 1910.
    Appeals, Nos. 300 and 301,
    Jan. T., 1909, by plaintiffs, from judgments of C. P. Schuylkill Co., March T., 1907, Nos. 145 and 149, on verdicts for defendant in cases of Patrick J. Coyne, Sr., and Sara A., his wife, v. Lakeside Electric Railway Company and Margaret L. Coyne v. Lakeside Electric Railway Company.
    Before Fell, C. J., Mestrezat, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Shay, P. J.
    The facts appear in the opinion of the Supreme Court.

      Error assigned was in directing verdict for defendant.

      M. A. Kilker, with him A. C. Sherman, for appellants.

      R. H. Koch, with him F. J. Laubenstein, for appellee.
   Per Curiam,

March 21, 1910:

These actions grew out of the same accident and were tried together. The only question raised by the appeals is whether the court erred in overruling the plaintiff's motion to amend the record by striking out the name of the defendant and substituting the name of another corporation, its lessee. The accident happened February 11, 1906. The motion to amend was made March 26, 1908, after the testimony at the trial was all in and it had been shown that the defendant named in the writ was the lessor of the railroad and had nothing to do with its operation. The statute of limitations had become a bar to a new action. The mistake was not, as in Wright v. Eureka Tempered Copper Co., 206 Pa. 274, in bringing the right de- ^ fendant into court under a wrong name, but in suing the wrong party. The well-defined limitation of the right of amendment is that a new cause of action shall not be introduced or new parties brought in after the statute of limitations has become a bar: LaBar v. Railroad Co., 218 Pa. 261; Holmes v. Railroad Co., 220 Pa. 189.

The judgment is affirmed.


text:
    Stevenson, Appellant, v. Bannan.

      Contract — Commission on sale — Owners in common — Partition— Vendor and vendee.

    A clause in an agreement to the effect that the party of the first part, owner in common with a coal company of certain coal lands “ does hereby employ the party of the second part to procure for him a purchaser for said coal lands, in case the same shall be offered for sale in the course of said partition proceedings, and in case such purchaser shall be found, the party of the first will pay to the party of the second part the sum of ten per centum of the amount which he shall receive for his interest in said tract, whether said sale shall be made in the course of said partition proceedings or not, and whoever may be the purchaser thereof; and shall also include any amount received from the said coal company as a settlement in said partition proceedings, it being the understanding of the parties hereto that a partition of said premises is essential to a successful sale thereof, and that the finding of a purchaser who will buy said land in case it shall be offered for sale in the course of said proceedings, is essential in order for a successful prosecution thereof” is to be construed to mean that the compensation of ten per centum hinges on the procuring of a purchaser, ready, able and willing to buy the land in question, providing it shall be offered for sale, and not that the ten per cent, commission is to be paid in the event of a settlement of the partition proceedings by a sale between'the . owners in common.
    Argued Feb. 15, 1910.
    Appeal, No. 353,
    Jan. T., 1909, by plaintiff, from order of O. P. Schuylkill Co., March T., 1909, No. 197, discharging rule for judgment for want of a sufficient affidavit of defense in case of J. G. Stevenson v. Francis B. Bannan, Executor of John Bannan, deceased.
    Before Fell, C. J., Mestrezat, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit on a written agreement.
    Rule for judgment for want of a sufficient affidavit of defense.
    The facts appear in the following opinion by Shay, P. J.:
    This is an action founded on an agreement entered into between Francis B. Bannan, of the one part, and J. G. Stevenson; of the other. In his statement, the plaintiff, Stevenson, alleges that the defendant is indebted to him in the sum of $3,800, being ten per cent, of the purchase price of a tract of land which the defendant, Francis B. Bannan, held in common with the Philadelphia & Reading Coal & Iron Company. To the statement defendant has filed a demurrer, the important parts of which are as follows:
    “Defendant demurs specially, and not generally, to the whole statement, and for cause of demurrer shows, that no liability is shown to be due from the defendant to the plaintiff under the several averments set forth in plaintiff’s statement of claim.”
    He also files an affidavit of defense, on which the above rule is taken, and in his affidavit sets forth that he “ denies that the plaintiff procured for him a purchaser for the lands described in the plaintiff’s statement, as stated in the agreement of April 21, 1907, and denies that he performed any of the undertakings expressed or implied therein set forth on plaintiff’s part expressly or impliedly to be performed by him.
    “Defendant further avers that said plaintiff had nothing whatever to do, in any respect, with the partition proceedings between the defendant and the Philadelphia & Reading Coal & Iron Company, referred to in plaintiff’s statement.
    “Defendant further avers that plaintiff has nothing whatever to do with the negotiations between the defendant and the Philadelphia & Reading Coal & Iron Company, which resulted in a sale of the interests of the John Bannan estate in the Keffer lands, to the said Philadelphia & Reading Coal & Iron Company.
    “Defendant denies that there is any liability set out in the plaintiff’s statement of claim.
    “Defendant denies that he owes the plaintiff ten per cent, of the purchase price received from the Philadelphia & Reading Coal & Iron Company for the land described in said partition proceedings.”
    The whole question at issue here hinges on the construction of the following clause in the agreement, to wit:

      “Now this agreement witnesseth, that the party of the first part does hereby employ the party of the second part to procure for him a purchaser for said coal lands, known as the Keffer Improvement Tract, in case the same shall be offered for sale in the course of said partition proceedings; and in case such purchaser shall be found, the party of the first part will pay to the party of the second part the sum of ten per centum of the amount which he shall receive for his interest in said Keffer Improvement Tract, whether said sale shall be made in the course of said partition proceedings or not, and whoever may be the purchaser thereof; and shall also include any amount received from the said Philadelphia & Reading Coal & Iron Company as a settlement in said partition proceedings. It being the understanding of the parties hereto that a partition of said premises is essential to a successful sale thereof, and that the finding of a purchaser who will buy said land in case it shall be offered for sale in the course of said proceedings, is essential in order for a successful prosecution thereof.”
    We do not construe this agreement to mean that the plaintiff shall do nothing, but that his compensation of ten per centum hinges upon the fact of his procuring a purchaser who is ready, able and willing to buy the land in question, providing it is offered for sale.
    On first blush, the plaintiff's contention might appear to be the correct one, that even though no sale were effected other than to the Philadelphia & Reading Coal & Iron Company, who would take in partition proceedings, he was then to receive the ten per centum; but on reading the whole of the above clause, there can be no doubt that the meaning of this clause is that the plaintiff was to have a purchaser ready, able and willing to buy, in order that the partition proceedings might be carried to their final consummation. The statement does not allege that the plaintiff had procured a purchaser, as above set forth, or, in fact, that he had procured any purchaser, but seems to rely upon the fact that the property was sold in the course of partition proceedings, to the Philadelphia . & Reading Coal & Iron Company, and that his duties were performed.

      With this view of the case we cannot agree, and we think that the construction of the contract is as we have stated above. It was incumbent upon this plaintiff to procure a purchaser before he was entitled to any compensation; and as he has not alleged this in this statement, his statement is defective, as it does not contain an allegation of performance upon his part. We have concluded, however, to overrule the demurrer and the motion for judgment for want of a sufficient affidavit of defense, and dispose of this question on the trial of the case; for, if the plaintiff can prove that he had a purchaser able, willing and ready to buy, then we think he would be entitled to his compensation under this contract, otherwise not; but for the present we will overrule both motions and dispose of whatever questions may arise upon the trial of this case.
    And now, May 17, 1909, the demurrer is overruled, and the motion for judgment for want of a sufficient affidavit of defense is also overruled or discharged.

      Error assigned was in discharging rule for judgment for want of a sufficient affidavit of defense.

      William Wilhelm, with him George W. Dyson, for appellant, cited:
    Ryon v. Starr, 214 Pa. 318; Turner v. Baker, 225 Pa. 359; Owens v. Wehrle, 14 Pa. Superior Ct. 536.

      George M. Roads, for appellee, cited:
    Murphy v. Cappeau, 147 Pa. 45; Ensign v. Kindred, 163 Pa. 638; Wilson v. Trust Co., 225 Pa. 143; Byrne v. Hayden, 124 Pa. 170; Gere v. Unger, 125 Pa. 644; Fritz v. Hathaway, 135 Pa. 274.
   Per Curiam,

March 21, 1910:

The terms of the agreement on which the action is founded are not clear, but it appears from them that it was the intention of the parties that the plaintiff should procure a buyer, not that he should be paid a commission in any event. The order of the court discharging the plaintiff’s rule for judgment is affirmed for the reasons stated in the opinion of Judge Shay.


text:
    Milliken’s Appeal.

      Executors and administrators — Decedents’ estates — Accounts—Petition for review.

      1. A review of an executor’s account can be had as a matter of right in two cases only; for error on the face of the record, and for new matter that has arisen since the decree. It may be allowed ex gratia for after-discovered evidence as to facts on which the decree was founded, when it is shown that the evidence could not have been procured before the decree by the exercise of due diligence.
    2. A petition for review of the first and a supplemental account, of the executors of an estate presented a year after the final confirmation of these accounts, alleging as the only reason for the review that the commissions allowed the executors were excessive, is without merit, where it appears that the petitioners for the review were of full age, were present or represented at the audit of the accounts, and therefore had their day in court.
    Argued Feb. 15, 1910.
    Appeal, No. 312,
    Jan. T., 1909, by Alice N. Milliken et al., from order of O. C. Schuylkill Co., March T., 1907, No. 19, dismissing petition for review of executors’ accounts in estate of Allan C. Milliken, deceased.
    Before Fell, C. J., Mestrezat, Elicin, Stewart and Moschzisker, JJ.
    Affirmed.
    Petition for review of executors’ accounts. Before Wilhelm, P. J.
    The facts appear in the opinion of the Supreme Court.

      Error assigned was the dismissal of the petition.

      Guy E. Farquhar, with him Otto E. Farquhar, for appellants.

      H. Gordon McCouch, with him Norman S. Farquhar, for appellees.
   Per Curiam,

March 21, 1910:

This appeal is from an order dismissing a petition for a review of the first and a supplemental account of the executors of the will of Allen C. Milliken. The first account was confirmed absolutely March 14, 1907, and the supplemental account September 12, 1907. The petition for a review was presented to the court September 7, 1908. The only reason alleged for a review was that the commissions allowed the executors were excessive. If there was any merit in the reason set up, a sufficient answer to the petition was that the appellants had had their day in court. They were of full age, and were present or represented at the audits of the accounts. A review can be had as a matter of right in two cases only: for error on the face of the record, and for new matter that has arisen since the decree. It may be allowed ex gratia for after-discovered evidence as to facts on which the deeree was founded, when it is shown that the evidence could not have been procured before the decree by the exercise of due diligence: Green’s App., 59 Pa. 235; Le Moyne’s App., 104 Pa. 321. In this case there was no error on the face of the record, and no allegation of new matter or of after-discovered evidence.

The order of the court is affirmed at the costs of the appellants.


text:
    Purcell, Appellant, v. Riebe.

      Negligence — Sidewalks—Defects in pavement — Building operations— Temporary pavement — Overlapping—Pedestrian—Contributory negligence — Choice of ways.

    1. A mere elevation in a pavement is not negligence per se. The law does not require perfect sidewalks; the standard is reasonable safety.
    2. Where in the construction of a building it becomes necessary to excavate the pavement or sidewalk, and, after the excavation and while the building is being erected, the contractor maintains a plank sidewalk, composed of planks two inches in thickness which overlap in the center of the pavement, making a step two inches high extending the width of the sidewalk, a woman who is injured by tripping on the overlapping planks is not entitled to recover where it appears from the testimony that she had passed the point in question a number of times, had seen the work in progress, knew that the pavement had been removed, the temporary structure put up, knew that there was a safer way on the other side of the street and on a rainy, dark night chose the way of danger.
    3. Where a person, having a choice of two ways, one of which is perfectly safe, and the other of which is subject to risks and dangers, voluntarily chooses the latter and is injured, such person is guilty of contributory negligence and cannot recover.
    Argued Feb. 16, 1910.
    Appeal, No. 364,
    Jan. T., 1909, by plaintiffs, from judgment of C. P. Schuylkill Co., Jan. T., 1906, No. 138, on verdict for defendant by direction of the court in case of Michael Purcell and Margaret Purcell v. Herman Riebe.
    Before Fell, C. J., Mestrezat, Elicin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass for damages for personal injuries.
    Verdict and judgment for defendant.
    The facts appear in the following opinion by Shay, P. J.:
    This was a suit brought by Michael Purcell and Margaret Purcell against Herman Riebe, a contractor, to recover damages for personal injuries sustained by Margaret Purcell in passing over the pavement in front of a building being erected by the said Herman Riebe, on the night of September 11, 1905. Herman Riebe had the contract for the erection of a new tank building in the borough of Tamaqua, and in the process of the construction of this building it was necessary to excavate the pavement or sidewalk for the purpose of a cellar, which was afterwards covered over with a flag pavement resting on steel I-beams. After the excavation, and while the building was being erected, Riebe maintained a plank sidewalk, composed of planks two inches in thickness. About the center of this pavement these planks overlapped, making a step two inches high, extending the width of the sidewalk.
    The plaintiff in her testimony admitted that she had passed over this pavement at least sixteen times before the night of the accident. She knew that building operations were going on there; she knew that the other side of the street was unobstructed and safe for passage. She- testified that on the night in question it was raining; that it was after dark, between seven and eight o’clock, when she came along there on her way to church; that she did not see this step, although she had passed over it, as we said before, at least sixteen times. She tripped and fell, and sustained some injury. The young man who went to her rescue testified that he saw this obstruction; that the light from the store window to the building in process of erection permitted him to see it, and he avoided this step.
    At the end of the plaintiffs testimony we were asked to direct a nonsuit, but we refused because there was nothing in the testimony at that time to determine how long the pavement had existed in that condition, or how often this woman had passed over it. At the end of the testimony of the defendant this point was cleared up, and the evidence was undisputed, as we have detailed above. We, therefore, gave binding instructions in favor of the defendant, and in this conclusion we think we were correct.
    A mere elevation in a pavement is not negligence per se. This has been held frequently by our higher courts, as in the case of Mason v. Phila., 205 Pa. 177; King v. Thompson, 87 Pa. 365; Wright v. Lancaster, 203 Pa. 276; Reed v. Tarentum Boro., 213 Pa. 357; Borough of Easton v. Neff, 102 Pa. 474. In Beck v. Germantown Cricket Club, 37 Pa. Superior Ct. 521, Mr. Justice Morrison says: “The happening of an accident on the sidewalk is not enough to establish negligence on the part of the person whose duty it is to construct and keep the sidewalk in repair. A mere depression of one-fourth of an inch in a board of a plank sidewalk otherwise sound and in good condition, is not sufficient to carry the question of the negligence of the owners of the sidewalk to a jury. It is only requisite that the sidewalk should be maintained in a reasonably safe condition. When we consider the standard of ordinary usage, in regard to slight depressions in sidewalks and pavements, it was unreasonable for the court to consider so slight a depression in a sidewalk as a dangerous defect. The law does not require perfect sidewalks; the standard is reasonable safety.”
    Again, we think the plaintiff was clearly guilty of contributory negligence. Having passed over this very sidewalk for sixteen times prior to the night of the accident, at least, if she had used her eyes she would undoubtedly have known that this inequality existed in the temporary sidewalk erected at this building, and, as we said in directing the verdict, the fact that building operations were going on there was notice to her of a change of condition, and she should have exercised more care than ordinarily is required in passing over the sidewalks of a city. She could have taken the other side of the street, which was free from obstructions and perfectly safe to walk upon. As we say, the fact that building operations were going on there, that stone was piled upon both sides of this walk, was notice to any person that the pavement was not in its ordinary condition, and when persons choose to go the more dangerous route when there is another route which they can take which is not dangerous, and they are injured, the risk is their own, and they cannot recover. We think the case of Haven v. Bridge Co., 151 Pa. 620, is very similar to the one at bar, where the Supreme Court say: “Where a person, having a choice of two ways, one of which is perfectly safe, and the other of which is subject to risks and dangers, voluntarily chooses the latter and is injured, he is guilty of contributory negligence and cannot recover.” In the opinion of the court they say the following: “Just so in the present case. The plaintiff knew that the footway was being destroyed. She knew that men were at work taking up the planks, and that necessarily there would be obstructions in the form of loose planks and openings in the footway, but she plainly thought there was no danger, and apparently did not even look for obstructions. She had a perfectly safe way to go, by simply keeping on the path over the roadway on which she was walking. But she chose the other and more dangerous way and, of course, she took her chances. But the visible signs of the actual work going on and the destruction of a large part of the footway which she says she saw, were amply sufficient to apprise her of the dangers to be avoided.” So here, this woman had passed this point a number of times, had seen the work in progress, knew that the pavement had been removed and this temporary structure put up, knew that there was a safer way. on the other side of the street, and on rainy, dark night she chose the way of danger, and in our opinion has no right to recover: Forks Township v. King, 84 Pa. 230; Bechtel v. Mahanoy City Boro., 30 Pa. Superior Ct. 135; Hill v. Tionesta Township, 146 Pa. 11; Bailey v. Brown Township, 190 Pa. 530.
    We will not consume more time in distinguishing the long list of cases cited by plaintiffs’ counsel in support of his motion for a new trial. It suffices for us to say that we have gone over them carefully and do not think that the facts in those cases are the same as in the one at bar. In our judgment, the present case is ruled by those we have cited above, and we, therefore, overrule the motion for a new trial.
    And now, June 21, 1909, the motion for a new trial is overruled, and judgment is directed to be entered for the defendant sur verdict upon payment of the jury fee.

      Error assigned was in directing verdict for defendant.

      J. O. Ulrich, for appellants, cited:
    Conyngham v. Motor Co., 15 Pa. Superior Ct. 573; Swanwick v. Monongahela City, 36 Pa. Superior Ct. 628; Chambers v. Braddock Boro., 34 Pa. Superior Ct. 407; Brown v. Milligan, 33 Pa. Superior Ct. 244; Conroy v. Pittston, 222 Pa. 1; Reynolds v. Phila., 221 Pa. 51; March v. Phœnixville, 221 Pa. 64; Moore v. Wilkes-Barre, 218 Pa. 302; Steck v. Allegheny, 213 Pa. 573; Mountz v. North Versailles Township, 223 Pa. 163.

      George M. Roads, with him R. Albert Freiler, for appellee, cited:
    Mason v. Phila., 205 Pa. 157; King v. Thompson, 87 Pa. 365; Kelchner v. Nanticoke, 209 Pa. 412; Wright v. Lancaster, 203 Pa. 276; Reed v. Tarentum Boro., 213 Pa. 357; Beck v. Germantown Cricket Club, 37 Pa. Superior Ct. 521; Shallcross v. Phila., 187 Pa. 143; Robb v. Connellsville, 137 Pa. 42; Stackhouse v. Vendig, 166 Pa. 582.
   Per Curiam,

March 21, 1910:

The judgment is affirmed on the opinion of the learned judge before whom the case was tried.


text:
    Gensler, Appellant, v. Kemble.

      Negligence — Landlord and tenant — Open gate — Passerby—Nuisance— Interference with public travel — Nonsuit.
    1. In a suit against the owner of a property to recover damages for injuries sustained by the plaintiff in running against a gate, opening outward on the sidewalk, which had been left open by a son of the tenant in possession of the premises, a nonsuit is properly entered.
    2. A gate which is simply used ordinarily for a person to get in and out of his yard to get on the sidewalk, although it opens outward, is not a nuisance per se and is not negligence per se, but may become a nuisance by its negligent use and interference with public travel.
    Argued Feb. 16, 1910.
    Appeal, No. 4,
    Jan. T., 1910, by plaintiff, from judgment of nonsuit of C. P. Lebanon Co., March T., 1909, No. 6, in case of Andrew C. Gensler v. George E. Kemble.
    Before Fell, C. J., Mestrezat, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    The facts appear in the following opinion by Ehrgood, P. J.:
    This suit was brought to recover damages for injuries alleged to have been sustained by the plaintiff in running against an open gate at the property of the defendant. The property at the time of the alleged injury was in the occupancy and possession of a tenant whose son left the gate stand open in running to a fire, and the plaintiff also in his haste to get to the fire ran against the gate, it leading to the yard and opening outward on the sidewalk, and the plaintiff contends that the owner of the property, the defendant, should be held liable in damages for having a gate on his premises'which opens outward on the sidewalk.
    A gate which is simply used ordinarily for a person to get in and out of his yard to get on the sidewalk, although it opens outward, is not a nuisance per se and is not negligence per se, but may become a nuisance by its negligent use and interference with public travel. If there was a negligent use of the gate, it was not by the defendant, but by his tenant, and the landlord is not liable for the negligence of his tenant. Moreover, the plaintiff should also have seen that the gate was open as well as those behind him. The nonsuit, under the testimony, was properly entered.
    And now, July 8, 1909, the motion to take off the nonsuit is refused.

      Error assigned was refusal to take off nonsuit.

      Robert L. Adams, with him Paul G. Adams and J. G. Adams, for appellant.
    No paper-book or appearance for appellee.
   Per Curiam,

March 21, 1910:

The judgment is affirmed for the reasons stated in the opinion of Judge Ehrgood.


text:
    Jones, Appellant, v. Marion Coal Company.

      Appeals — Entry of judgment — Judgment non obstante veredicto — ■ Payment of jury fee. — Time for appeal informal judgment — Act of March 29,1805, 4 Sm. L. 242, sec. 12 — Quashing appeal.

    1. A judgment entered upon the record as follows: “And now, January 2nd, 1909, the rule for a new trial is discharged. The rule for judgment non obstante veredicto is made absolute, and judgment is now entered for defendant. Same day exception is granted as to the plaintiff” must be appealed from within six months from the date therein given, and an appeal taken July 19, 1909, will be quashed, although it appears from the record that upon January 20, 1909, some one paid a jury fee, and filed the receipt and thereupon judgment for defendant was again noted.
    2. The Act of March 29, 1805, 4 Sm. L. 242, sec. 12, providing for the payment of a jury fee, and the entry of judgment upon a verdict, has no reference to a judgment entered directly by the court.
    Argued Feb. 21, 1910.
    Appeal, No. 269,
    Jan. T., 1909, by plaintiff, from judgment of C. P. Lackawanna Co., Sept. T., 1907, No. 1,677, for defendant non obstante veredicto in case of Thomas H. Jones v. Marion Coal Company.
    Before Fell, C. J., Brown, Mestrezat, Potter and Moschzisker, JJ.
    Appeal quashed.
    Assumpsit for breach of contract/ Before Carpenter, J.
    The facts appear in the opinion of the Supreme Court.

      Error assigned was entry of judgment for defendant non obstante veredicto.

      C. P. O’Malley, with him O’Brien & Kelly and James F. Bell, for appellant.

      Frank E. Donnelly, with him Frederic W. Fleitz, for ap-' pellee.
   Opinion by

Mr. Justice Potter,

March 21, 1910:

This is an appeal from the entry of judgment in favor of the defendant non obstante veredicto, by the court of common pleas of Lackawanna county. The entry of judgment is thus set forth upon the record: “And now, January 2, 1909, the rule for a new trial is discharged. The rule for judgment non obstante veredicto is made absolute, and judgment is now entered for the defendant. Same day exception is granted to the plaintiff.” No appeal was taken from this judgment until July 19,1909, which was more than six months from the entry of the judgment, and it cannot therefore be allowed.

It does appear from the record that upon January 20,1909, some one paid a jury fee, and filed the reóeipt, and thereupon judgment for defendant was again noted. But the real and formal judgment in this case was entered by the court, as above set forth, upon January 2, 1909. And it is the entry of that judgment which is here specified as error. Furthermore, that judgment was not entered upon the verdict of the jury. It was entered in opposition to, and notwithstanding the verdict. The Act of March 29, 1805, 4 Sm. L. 242, sec. 12, providing for the payment of a jury fee, and the entry of judgment upon a verdict, had no reference to a judgment entered directly by the court. Under the Act of April 22, 1874, P. L. 109, which provides for the trial of civil cases by the court without a jury, there is a distinct provision in sec. 5, that no jury fee shall be required to be paid, on entering judgment upon the decision of the court. This would seem to indicate a legislative intent to require payment of the jury fee only where the judgment is entered upon the verdict. Liability for the payment of the jury fee is not, however, the point here involved. We have to deal only with the entry of the judgment by the court. We find by investigation that in order to facilitate the collection of the jury fee, the courts of common pleas throughout the state generally provide by rule that no judgment shall be entered on any verdict without the special order of court, until the sum of $4.00, required by the act of March 29, 1805, shall have been paid by the party for whom the verdict has been given. But in the present case, the court not only made a special order for judgment, but it entered the judgment directly, on January 2, 1909. That was a final judgment in favor of the defendant. It is that judgment of which plaintiff complains, and he was bound to take his appeal within six months from the date of its entry. He did not do so.

Appeal quashed.


text:
    Wiggins v. Columbian Fireproofing Company et al., Appellants.

      Contracts — Building contracts — Floors—Carrying capacity — Estimate —Guarantee—A rckitect — Final certificate — Leases.
    1. Where an estate owns certain store properties which are destroyed by fire, and after the fire gives a lease to the then tenants for a building to be erected, employs an architect for the new building, and enters into a written contract with a builder to construct the building according to plans and specifications, the floors to be according to the “slow burning” plan, and after the work is commenced the owner decides to change the floors to a patented concrete plan, which matter is referred to the architect, who receives two letters from the patent holders, offering to put in the floors and giving specifications and details of construction and naming a price, the letter also containing a guarantee that the floors would carry a live load of 130 pounds per square foot, and the architect does not accept this offer on behalf of the owners but requests the builders to submit a proposal to change the style of the floors, and the builders reply in writing giving an estimate, but making no reference to the two letters from the patent holders, and the architect writes to the builders authorizing them to proceed as per the estimate “said sum to cover the five floors in accordance with the accompanying letters” of the patent holders, and thereupon the builders enter into a contract with the patent holders to put in their flooring to the “satisfaction, approval and acceptance” of the architect, the contract between the estate and the builders does not include a guarantee that the floors will carry a live load of 130 pounds a square foot and the builders cannot be held liable for a subsequent settling of the floors due to a less live weight capacity, the flooring having been constructed according to the plans, etc., and the approval of the architect having been given after a test had been made in his presence.
    2. Where a building contract provides that alterations may be made by the owner subject to the approval of the architect without vitiating the contract, that a final certificate shall be issued by the architect as to the balance due, that such certificate shall be conclusive evidence of the performance of the contract, and that the decision of the architect shall be final and binding on all parties, the final certificate of the architect is a conclusive decision that the contractors have properly discharged their duties and complied with their contract.

      Equity — Equity jurisdiction — Landlord and tenant — Multiplicity of ■ suits — Trial by jury — Demurrer—Answer—Jurisdiction—Waiver.
    3. Where, in such case, the estate sues the tenant for rent retained as damages, and the patent holders sue the builders for withholding a balance due for constructing the floors, and the estate sues the builders to recover the cost of strengthening the floors and for the rent retained by the tenants, and the estate also sues the architect, a bill filed by the builders against the estate, the tenants, the patent holders, and the architect, praying that a determination of the respective liabilities of all the parties and the enjoining of the suits at law against the builders will be dismissed as against the tenants, for the reason that the plaintiffs and the other defendants have no real concern with the points in dispute between the tenants and their landlord, and those questions in no way so intermingle with the questions in controversy between the other parties as to give any sufficient reason why they should be drawn out of their regular course at common law.-

      4. The tenants in such a proceeding will not be held to have submitted themselves to the jurisdiction of the court, although they filed no demurrer, where in their answer they state that they had no interest in the litigation, except as to the rental, and as to this they were entitled to trial by jury, and they further in their answer pray that they might be permitted to avail themselves “of all matters of defense in law of which they might avail themselves by demurrer or plea in bar, with the same force and effect as though they had filed a separate demurrer or plea in bar,” and where it further appears that almost two years before the final decree they moved to dismiss the bill as to them, demanding trial by jury and again at the hearing raised the point that the bill should be dismissed as to them because of want of jurisdiction.
    Argued Jan. 5, 1910.
    Appeals, No. 207,
    Jan. T., 1909, by Sarah .Harrison and Theodore L. Harrison, Executors, and the Philadelphia Trust, Safe Deposit & Insurance Company, Co-executor and Trustee, and No. 220, Jan. T., 1909, by Showell & Fryer, Ltd., from decree of C. P. No. 4, Phila. Co., June T., 1905, No. 5,214, on bill in equity in case of John R. Wiggins, W. H. Walls and F. K. Worley, trading as John R. Wiggins & Co., v. Columbian Fireproofing Company; Sarah Harrison and Theodore L. Harrison, Executors under the Will of Joseph Harrison, Jr., deceased, and the Philadelphia Trust, Safe Deposit & Insurance Company, Coexecutor and Trustee under said Will; Showel & Fryer, Ltd., and Edgar V. Seeler.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed with a modification.
    Bill in equity. Before Willson, P. J.
    The facts appear in the opinion of the Supreme Court.

      Error assigned in each appeal was the decree of the court.

      Frank P. Pritchard, with him Townsend, Elliott & Townsend, for appellants in appeal, No. 207, and for Harrison Estate, appellees, in appeal, No. 220.

      B. F. Pepper, with him G. W. Pepper, for Edgar V. Seeler.

      Joseph DeF. Junkin, for Showell & Fryer, appellees in appeal, No. 207, and appellants in appeal, No. 220.
    — The court was without jurisdiction to entertain the bill against these defendants: Wiser’s App., 9 W. N. C. 508; Silvis v. Clous, 1 Pa. Superior Ct. 41; Adams’s App., 113 Pa. 449; Klein v. Bank, 44 Legal Int. 144; Shillito v. Shillito, 160 Pa. 167.
    There is no such multiplicity of suits with regard to Showell & Fryer as will give in this proceeding any jurisdiction as to them: Hale v. Allinson, 188 U. S. 56 (23 Sup. Ct. Repr. 244); Webb v. Parks, 110 Ga, 639 (36 S. E. Repr. 70); North Penna. Coal Co. v. Snowden, 42 Pa. 488; Norris’s App., 64 Pa. 275.

      Alex. Simpson, Jr., with him Ernest L. Tustin, for John R. Wiggins & Co., appellees.
    — A court of equity can properly and most efficiently deal with the matters involved in the various litigations referred to: Brush Elec. Light Co.’s App., 114 Pa. 574; Bierbower’s App., 107 Pa. 14; Penna. R. R. Co. v. Bogert, 209 Pa. 589; Corbe v. Burkert, 33 Pa. Superior Ct. 317; Simpson v. Summerville, 30 Pa. Superior Ct. 17; McGowin v. Remington, 12 Pa. 56; Ahl’s App., 129 Pa. 49; Hanna v. Clark, 189 Pa. 321.
   Opinion by

Mr. Justice Moschzisker,

March 28, 1910:

The estate of Joseph Harrison, Jr., owned certain store properties which were destroyed by fire. Showell & Fryer, Limited, were the tenants, and after the fire they were given another lease for a building to be erected. E. V. Seeler was employed as the architect for the new building. The proper representatives of the Harrison estate entered into a written contract with John R. 'Wiggins & Co., to construct the building according to certain plans and specifications. The floors were to be according to the “slow burning” plan. After the work was commenced the owner decided to change the floors to a patented concrete plan known as “ Columbian Fire Proofing.” This matter was referred to the architect, and he received two letters from the Columbian Fireproofing Company offering to put in the floors, giving specifications and details of construction and naming a price. These letters also tendered a guarantee that the floors would be thoroughly first class in every particular and would carry a live load of 130 lbs. per square foot. The architect did not accept this offer on behalf of the owners, but requested Wiggins & Co., to submit a proposal to make the change to the Columbian system. Wiggins & Co. replied in writing giving an estimate, but making no reference to the two letters from the Columbian company. The architect wrote to Wiggins & Co., authorizing them to proceed at once with the substitution of the Columbian system as per their estimate, “ said sum to cover the five floors iu accordance with the accompanying letters of the Columbian Fireproofing Company.” Thereupon Wiggins & Co. entered into a contract with the Columbian company to put in their flooring to the “satisfaction, approval and acceptance of Edgar V. Seeler, architect of said building.” After the work was completed a test was made in the presence of the architect. Mr. Seeler was satisfied with the test and gave his final certificate to the owners, who thereupon sent a check to him for the balance of the contract price, and this was turned over to Wiggins & Co. The tenant went into occupancy of the building. The Columbian company complained to the architect that the floors were being overloaded, causing a deflection of a girder. Seeler visited the building, but did not notice anything “amiss with the floors.” Three days later the owners received notice that the floors were settling and notified the architect. On inspection he found that the floors had deflected, and promptly notified Wiggins & Co. that another test would have to be made. The owners had another test made by cutting a panel in the concrete floor area and loading this isolated portion. The result showed a live load capacity of only fifty pounds instead of 130 pounds. An arrangement was then made that Wiggins & Co., without prejudice to anyone’s rights, should strengthen the floor for an additional sum of $7,800, which was paid to them. The tenants retained and refused to pay over $11,000 rent, claiming that amount as damages. The Harrison estate sued Showell and Fryer for this rent. Wiggins & Co. refused to pay the Columbian company the balance due to it for constructing the floors, and they brought suit against Wiggins & Co. The Harrison estate sued Wiggins & Co. to recover the price paid to them for strengthening the floors and the rent retained by the tenants; and they also sued Seeler, the architect. Whereupon, Wiggins & Co. filed a bill against the Harrison estate, owners, Showell & Fryer, tenants, the Columbian company, subcontractors, and Seeler, architect, praying that each of the defendants should answer; that the first two should make discovery of the terms and conditions of the lease between them and of all their claims relative to the rent; that the first and fourth should make discovery of the terms of the contract between them; that the respective liabilities of all the parties should be determined and a decree entered requiring such payments to be made by one to the other as should be found to be just and equitable: and that the first and third of the defendants be enjoined from prosecuting their suits against the plaintiffs. When the bill came on for hearing, it was decreed: first, that Wiggins & Co. pay the Columbian company the full sum claimed by them; second, that Showell & Fryer pay to the Harrison estate a certain sum for rent; third, that the estate pay to Seeler the balance due to him for commissions as architect; fourth, that the estate was not entitled to recover anything from Seeler; fifth, that the estate was not entitled to recover anything from Wiggins & Co.; sixth, the Columbian company was restrained from further prosecuting its suit .against Wiggins & Co.; seventh, the estate was restrained from further prosecuting their action against Wiggins & Co.; eighth, it was ordered that each party pay his own costs.

Both Showell & Fryer and the representatives of the Harrison estate have appealed. The first of the appeals suggests many questions; but the only one which it is important to consider arises out of the complaint that the court below fell into error in assuming jurisdiction of the bill as to the appellants, as they were thereby deprived of their right to trial by jury. The contention on the other side is that all of the matters in dispute were so interlaced that it was practically impossible, or certainly difficult and inconvenient, to dispose of them separately, and on that ground and to avoid a multiplicity of suits, the bill should be sustained. Further, that no demurrer having been filed and the trial having been had, it is now too late to raise the question. Although appellants did not file a demurrer, in their answer, after making the discovery prayed for, they set up that: “They have no further interest in, or liability to the complainants as to the matters complained of as set forth in their bill, and cannot be compelled to have their rights and liabilities as to the said rental determined in this proceeding; that they are entitled to their trial by jury.” The answer ends with a prayer that they may be permitted to avail themselves “of all matters of defense in law of which they might avail themselves by demurrer or plea in bar with the same force and effect as though they had filed a separate demurrer or plea in bar.” In June, 1907, at least seven months before the adjudication, and almost two years before the final decree, they filed a motion to dismiss the bill as to them, averring that they had made full discovery as to all matters concerning which they had been interrogated, and demanding a trial by jury of the questions in controversy between them and their landlords, separate and apart from any disputes which their landlords might have with others concerning the erection and construction of the building. At the trial the appellants again raised the point that the bill should be dismissed as to them because of the want of jurisdiction. On this state of facts it cannot be said that the appellants submitted themselves to the jurisdiction of the court. Whenever an attempt is made to remove a pending cause from the common law into equity on the ground of its inseparable connection with other litigation or to avoid multiplicity of suits, if the case is not brought directly within the principle of a preceding authority, it must be decided upon its own merits, by considering the points involved, the adequacy of the legal remedy, the substantial convenience to be served, the relations of the parties to one another, and the results that would follow if jurisdiction were assumed or denied, and by keeping constantly in mind the right to have controverted questions of fact decided by a jury in all cases ordinarily triable according to the course of the common law, unless there is present a good and substantial recognized reason why the equitable remedy should prevail. The plaintiff and other defendants had no real concern with the points in dispute between these appellants and their landlords, and those questions in no way so intermingled with the questions in controversy between these other parties as to give any sufficient reason why they should be drawn out of their regular course at common law into this equity proceeding. There was no inadequacy in the remedy at law which had been invoked against the appellants, nor was there any great convenience to be served, or inconvenience to be avoided, by forcing their case into equity. The bill should have been dismissed as to these appellants.

In the other appeal, the representatives of the Harrison estate assign twenty errors, but the view which we have just indicated in disposing of the first appeal makes it unnecessary to discuss many of these assignments. These appellants contend that the court below fell into error in not finding that the contract between them and. Wiggins & Co. included a guarantee that the floors would have a live weight capacity of 130 pounds to the square foot, and in not holding Wiggins & Co. liable to them for a breach of that guarantee. The trial judge held that there was no guarantee that the floors would bear any particular weight; that the first test was justifiably regarded by the architect as a sufficient one,, and it was in point of fact a more proper test than the second; further, that the final certificate of the architect was in the nature of an award which Wiggins & Co. were entitled to stand upon; and that Wiggins & Co. had fully performed their contract in accordance with its terms. The learned court below was entirely right in its construction of the contract between Wiggins & Co. and the appellants when it said: “I do not consider that the contractors guaranteed that the floors would bear any particular weight, or that they undertook to do anything else than to construct those floods according to the particular system, as specified, subject to the approval of the architect and the building inspectors.” As to this the appellants contend that the letter from the architect, to Wiggins & Co. wherein it is stated, “said sum to cover five floors in accordance with the accompanying letters of the Columbian Fireproofing Company under date of May 7th and June 7th,” in view of the letters referred to, which read, “We guarantee our floors to carry the loads required and to be thoroughly first class in every respect,” and, “In this proposition we guarantee to carry a live load of 130 pounds per square foot to be tested according to the building laws of the City of Philadelphia,” must be taken as imposing these guarantees upon Wiggins & Co. Under the surrounding circumstances such a construction would be unwarranted. The plain meaning of the letter from the architect to Wiggins & Co. was that for the sum named they were to construct all five floors of the building in accordance with the specifications and details set forth in the letters from the Columbian company, and not that they were to assume the guarantee offered by the Columbian company. The suggestion that the Columbian flooring should be substituted for the “slow burning” came entirely from the appellants. They dealt with the Columbian company and the correspondence was entirely between their architect and that concern. If they desired the guarantee offered by the Columbian company in its letters, they should have gone about securing it in a proper way; or if they desired the guarantee of Wiggins & Co., they should have requested it; and if Wiggins & Co. had seen fit to give a guarantee, they could have protected themselves by a counter guarantee from the Columbian company. As it was, there was no guarantee of a particular load bearing capacity by anyone.

We have carefully examined all of the evidence bearing on the question of the tests, and we cannot say that the trial judge was wrong in his conclusion that the architect was justified in treating the first test as a proper and sufficient one. In the language of the court below, the architect’s “ decision was based upon evidence in regard to the strength of the floors that he deemed sufficient and convincing. The building inspectors made no objection to the work, and by their allowing the building to be occupied, they may be regarded as satisfied with it.”

The contract for the original erection is dated May 22, 1902, and provides: “The owner, subject to the approval of the architect, may make alterations, which shall be acceded to by .the contractor, without in any way violating or vitiating the contract,” and, “When the work embraced in this contract is completed to the satisfaction of the architect .... there shall be issued by the architect a final certificate of the balance due the contractor. . . No certificate given or payment made under this contract except the final certificate or final payment shall be conclusive evidence of the performance of the contract,” and, “The decision of the architect .... as to any question arising out of the case shall be final and binding on all parties to this contract.” The trial judge properly ruled that the final certificate of the architect was a conclusive decision that the contractors had properly discharged their duties and complied with their contract: Sicilian Asphalt Paving Co. v. Williamsport, 186 Pa. 256.

As well stated by the learned court below, the losses in this case “have occurred by an unusual combination of circumstances exhibiting not negligence or misconduct so much as ignorance and timidity in connection with the use of structural devices that were not fully understood and trusted.” Be this as it may, the appellants omitted to exact any guarantee of a particular weight capacity, and the floors were constructed in accordance with the plans and specifications dictated by them; if the floors failed to come up to their expectations and to meet the needs of the building, the contractors are not to be blamed: Filbert v. Phila., 181 Pa. 530; Harlow v. Homestead, 194 Pa. 57. But the appellants say, if the estate has no recourse against the builders, it should be allowed to recover its losses against the architect. The trial judge has found that the architect was in no way responsible for the substitution of the Columbian flooring; that he was warranted in believing that the building was intended for use only as a retail grocery store, and not as a warehouse; that the test of the floor was reasonable and made in good faith, and its result was not such as to justify a rejection or impose upon the architect the duty of making another test before final acceptance; that he had fully performed all of the obligations of his employment and was guilty of no negligence in the discharge of his professional duty or in giving the final certificate and making the final payment to Wiggins & Co. The architect was no more responsible than the contractors for the unfortunate losses which the owners have been obliged to bear. The appellants indulged in an experiment which did not prove an entire success, and they alone must bear the consequent loss and expense.

None of the parties defendant excepting Showell & Fryer has raised any question as to the jurisdiction of the court. On the questions between the plaintiffs and the other defendants, a careful reading of the testimony and a consideration of all the documentary proofs fail to show any manifest error in the findings of the trial judge, or in the conclusions of law based thereon.

The seventh assignment of error in the first appeal, to the effect “That the bill should be dismissed as to Showell & Fryer, because of want of equitable jurisdiction over them” is sustained, and they are discharged with their costs; without prejudice to the right of the proper representatives of the Harrison estate to proceed with their action at law against these appellants.

In the appeal of the representatives of the Harrison estate we do not pass upon the assignments of error going to the questions between them and Showell & Fryer. The other assignments are overruled in accordance with the views which we have expressed in this opinion.

The final decree of the court below is affirmed with the modification that the third paragraph adjusting the accounts between the Harrison estate and Showell & Fryer is stricken therefrom. The costs of the defendants Showell & Fryer are to be paid by the plaintiffs, John R. Wiggins & Co. The costs of the plaintiffs, John R. Wiggins & Co., and the costs of this appeal, other than those incurred by Showell & Fryer, are to be paid by the defendants the. representatives of the Harrison estate named upon the record.