author: Me. Justice Mesteezat,

text:
    Pursel, Appellant, v. Reading Iron Company.

      Practice, G. P. — Parties — Action allegata and probata.

    1. Where a suit is brought in the name of an administratrix on a deed or contract, and subsequently an amended statement is filed setting forth a later agreement differing in certain of its terms from the earlier one, and the cause of action is declared to be in the heirs and not in the administratrix of the deceased, the action cannot be sustained by putting in evidence the earlier writing and showing that the defendant had failed to comply with its terms.
    2. The plaintiff cannot recover in a suit where he avers in his pleadings a cause of action in one party and proves a right to recover in another party.
    Argued Feb. 26, 1912.
    Appeal, No. 6, Jan. T., 1912, by plaintiff from order of C. P. Montour Co., June T., 3909, No. 46, refusing to set aside nonsuit in case of William R. Pursel, Surviving Administrator of Daniel Pursel, deceased, now Blanche E. Pursel, substituted plaintiff, v. The Reading Iron Company.
    Before Fell, C. J., Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.

      April 15, 1912:
    Assumpsit to recover minimum royalties. Before Evans, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned was refusal to take off nonsuit.

      James Mercer Davis, with him A. S. Ashbridge, Jr., and John Warren Davis, for appellant.
    The administrator, and not the heirs, is the proper party plaintiff in this suit: McClure’s App., 72 Pa. 414; Gideon’s Est., 2 W. N. C. 355; Chew v. Chew, 3 Grant 289; Chew v. Chew, 28 Pa. 17.
    And the law requiring the administrator to sue for these royalties is not changed by the alleged agreement of February 16, 1883, made between some of the heirs of Daniel Pursel and the Montour Iron and Steel Co.: McManus v. Cassidy, 66 Pa. 260.

      Jefferson Snyder, with him James Scarlet, Ralph Kisner and Grant Herring, for appellee.
    The suit is brought in the name of the administrator of Daniel Pursel, deceased, and the proof shows that if any one is entitled to recover the heirs are entitled and not the administrator: Gallagher v. Hicks, 216 Pa. 243; McKeever v. Westmoreland Coal Co., 219 Pa. 234; Connery v. Brooke, 73 Pa. 80; Creveling v. Wood, 95 Pa. 152; Kendall v. Klapperthal Co., 202 Pa. 596.
   Opinion by

Me. Justice Mesteezat,

The nonsuit was properly entered in this case on the ground of the variance between the probata and the allegata. The action was brought in the name of the administratrix of Daniel Pursel, and the original statement averred her right to recover on the deed or contract of 1862. The statement was amended by the averment of the agreement of February 16, 1883. The amended statement avers that by the agreement of 1883 “the original agreement (of 1862) hereinbefore set forth was modified in that the price per gross ton was reduced from seventy-five cents for soft iron ore to fifty cents, and from thirty-seven and one-half cents for hard limestone iron ore to twenty-five cents; and the payment of the minimum royalty of seventy-five cents per ton on five thousand tons, whether mined or not, was postponed to January 1, 1885.” This agreement was executed by the heirs of Daniel Pursel, deceased, and the Montour Iron and Steel Company and, except as therein modified, “continued, ratified and confirmed” the original agreement between Daniel Pursel and Waterman and Beaver. The amended statement, therefore, declared the cause of action to be in the heirs and not in the administratrix of Daniel Pursel. The action could not be sustained by putting in evidence the deed of 1862 and showing that the defendant had failed to operate the ore banks to their minimum capacity. This would have been sufficient under the original statement, but under the amended statement it was wholly inadequate. Such proof showed that the right of action, if any, was in the administratrix and this did not accord with the allegata in the amended statement. If the plaintiff: intended to rely upon the deed of 1862 between her decedent and Waterman and Beaver, there could have been no purpose in making the amendment. The terms of the agreement of 1883, between the heirs and the Montour Iron and Steel Company, were at least in part different from those of the original agreement, and recited that “the said rents or royalties . . . have passed by descent to” the heirs of Daniel Pursel. Whatever may have been the intention of the plaintiff in amending the statement by introducing the agreement of 1883, the amended statement clearly disclosed an agreement between the heirs and the Montour Iron and Steel Company relative to royalties on ores taken from these premises, and that the cause of action, if any, for the royalties claimed is in the heirs and not in the administratrix of the decedent.

What, if any, party is entitled to recover for minimum royalties alleged to be due from the defendant need not be determined here. It is sufficient to say, in support of the nonsuit, that when the plaintiff rested, the testimony tended to show a right to recover in her, while the statement disclosed a cause of action in the heirs of the decedent. A plaintiff cannot recover in a suit where he avers in his pleadings a cause of action in one party, and proves a right to recover in another party. The other questions discussed on the argument need not be considered.

The judgment is affirmed.


source: Caselaw Access Project

author: Mr. Justice Potter,

license: Public Domain

text:
    Hilliard v. Sterlingworth Railway Supply Company.

      Receivers — Accounts — Exceptions—Touching account.

    1. An order refusing a request that the accounts of a receiver be vouched by the court, will not be reversed where it appears that the account contained hundreds of items, and that although warned by the court to file specific exceptions, the exceptants had only filed an exception of a general character.
    2. Exceptions to the payment of compensation to persons employed by a receiver will not be sustained where it appears that the person employed was so employed by an order of court from which no appeal was taken, and that the compensation was not improper.
    3. An exception to the account of a receiver raising questions as to the propriety of sales made by him, will not .be sustained where it appears that such .sales had been made by order of court and thereafter confirmed without any appeal taken from the decree confirming the sale.
    4. Exceptions to an allowance claimed by a receiver as counsel fees and for his own compensation will not be sustained where no abuse of discretion in the court below is shown.
    . 5. Where a receiver has purchased the property of the trust 'estate by leave of court, and after the sale to him has been con-firmed, operated it on his own account and afterwards organized a corporation for that purpose, no question can be raised at the audit of bis account as to bis conduct of tbe business after tbe sale of tbe property to bim bad been confirmed.

      Appeals — Assignments of error — Decrees.
    6. An assignment of error to an order or decree, -without quoting tbe order or decree of which complaint is made, is incomplete, and will not be considered.
    Argued March 4, 1912.
    Appeals, Nos. 283 and 284, Jan. T., 1911, by defendant, from decree of C. P. Northampton Co., April T., 1907, No. 1, dismissing exceptions to account of receiver in case of Clinton Hilliard, et al., v. Sterling-worth Railway Supply Co.
    Before Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Exceptions to accounts of William J. Kuebler, Receiver of Sterlingworth Railway Supply Co.
    The opinion of the Supreme Court states the case.

      Errors assigned were in dismissing exceptions to account of receiver.

      John G. Johnson, with him Bernard Gilpin, for appellants.
    It is submitted that this case should be sent back to the court below that the questions of surcharge may be heard and determined in an orderly wav and that the receiver may produce the vouchers showing the disposition of the moneys of the corporation defendant in his hands for the law holds “him strictly responsible for property placed in his hands and imposes upon him the duty of fully accounting for it”: Pangburn v. American Vault, Safe & Lock Co., 205 Pa. 93.

      H. J. Steele, with him F. W. Edgar, for appellee.
    After a receiver has followed in good faith the orders of the court, it is submitted that the propriety of such orders and expenditures thereunder cannot now be questioned : Palmer v. Truby, 136 Pa. 556; Gillespie v. Blair Glass Co., 189 Pa. 50; Woolsey v. Cummings Car Works, 33 N. J. Eq. 432.
    April 15, 1912:
    Exceptions to receivers’ accounts must distinctly specify the matters to which objection is taken: Felton v. Felton, 47 W. Va. 27 (34 S. E. Repr. 753); Strauss v. Casey Machine & Supply Co., 69 N. J. Eq. 19 (60 Atl. Repr. 402); Greeley v. Provident Savings Bank, 103 Mo. 212.(15 S. W. Repr. 429); Parker’s App., 61 Pa. 478.
    It is not necessary in all cases that the court hear evidence as to the amount of compensation to be allowed a receiver’, as counsel fees: Welch v. Renshaw, 14 Colo. App. 526 (59 Pac. Repr. 967); Stuart v. Boulware, 133 U. S. 78 (10 Superior Ct. Repr. 242); Trustees v. Greenough, 105 U. S. 527.
   Opinion bt

Mr. Justice Potter,

The accounts of William J. Kuebler as Receiver of the Sterlingworth Railway Supply Company were filed in the Court of Common Pleas of Northampton County. Exceptions were filed thereto, by Frank W. Coolbaugh, a creditor, and by Edward Yan Orden, Trustee in Bankruptcy of the Supply Company. The exceptions were dismissed and the accounts were confirmed. Both of the exceptants have appealed from the decree. The assignments of error are identical in each appeal, and the appeals were argued as one, and both will be disposed of in this opinion.

Counsel for appellee filed a motion to quash these appeals, upon the ground of informality in several respects. The final decree of the court below is not assigned for error, nor were the opinions of the court below printed, or presented by appellants, whea the appeals were argued in this court. ■ Assignments of error to orders and decrees have been made, without quoting the order or decree of which complaint is made. Such assignments are incomplete, and. should not be considered : Cessna’s Est., 192 Pa. 14. The motion to quash might very properly be sustained. But of the fourteen assignments of error filed, only one was pressed at the argument, or supported in the printed brief. That was the fourteenth, which alleged error in the refusal of a request that the accounts of the receiver be vouched by the court. In denying this request the court referred to the reasons for its action set forth at length in its opinion filed April 11,1911. He there said, “We have carefully examined these accounts. If there was anything the matter with the accounts, it would have been easy for the exceptant to indicate it. We will not require an accountant to bring all his books and vouchers before the court on a general exception.” This position was well taken. The requirement that an ex-ceptant should specify wherein an account is wrong, instead of relying upon a general objection, is so reasonable that it needs no argument in its support Aside from this by a previous order, the court below had warned exceptants that the exceptions to the accounts of the receiver must be specific, and not general, and must be filed in writing, verified by affidavit. The record shows that the receiver filed three accounts; one covering the period from the date of his appointment, February 12, 1907, to April 1, 1908. A supplemental account brought it down to May 1, 1908, and the final account covered the period from May 1, 1908, to February 23, 1911. These accounts contained hundreds of items, of the receipts and expenditures in the ordinary routine of the business as conducted by the receiver. Apparently the entries were made as a matter of clerical routine by those in charge of the accounts, and it was asking but little of the exceptants to point out any items deemed objectionable, among so many which presumably were correct. The final account was filed February 27, 1911. The case was set down for hearing on March 27, upon motion for the absolute confirmation of the three accounts and final report of the receiver, and for his discharge. On March 18, 1911, exceptions were filed to the accounts by each of tbe present appellants, being tbe same in each case, and on March 27, argument was had on these exceptions. On April 11, the court made an order dismissing the exceptions other than the first, ninth, tenth and eleventh, which were reserved for further hearing. On April 21, a hearing was had on the reserved exceptions, and testimony taken. It was not until after this date that exceptants filed a paper requesting that the accounts be vouched by the court. Under the circumstances, and in the absence of any specific exception to any item of the accounts, we think that the court below very properly exercised its discretion in refusing to reopen the case and require the production of the mass of vouchers, which would have been required to meet the general request of exceptants for the vouching of all the items. In its opinion of April 11, 1911, the court below points out that it had given notice that any questions legitimately arising as to the surcharge of the receiver, and as to the propriety of any of the credits claimed by him, would be considered upon exceptions to the accounts, filed with definite specifications in accordance with the rules of court. If appellants had any meritorious objections to make to the accounts, they were at liberty to present them in the proper way. They apparently did not see fit to do so. We are satisfied that the fourteenth assignment, which is the only one which was pressed upon the oral argument, is without merit. While the other assignments of error were not urged in the argument, they were not formally abandoned, and they have therefore been carefully examined.

The first assignment is to the dismissal of an exception to the payment of salary to the general manager employed by the receiver.' He was employed by an order of court made March 23, 1907, to which there was no exception, nor was there any appeal taken therefrom. It is not contended that the salary paid to him was excessive or more than his services were worth. The second assignment alleges error in dismissing an exception to the purchase by the receiver of the real estate and plant of the company. Express permission was given by the court to the receiver to bid at the sale. Exceptions to the sale were filed May 24, 1909, by Van Orden, trustee, one of the appellants, and these exceptions were dismissed, and the sale confirmed absolutely. No appeal was taken from the decree confirming the sale. The third and fourth assignments allege error in. dismissing exceptions relating to the sale by the receiver of machinery, tools, etc., for less than the alleged value thereof. .It was asked that the receiver be surcharged upon that account, and objection was also made to the credit claimed for the payment of the purchase money to the receiver individually on account of the mortgage which he held upon the property sold. The sale for the price received and the application of the purchase money to the mortgage were both expressly authorized by order of the court made November 9, 1907. Subsequently, the court granted, and after-wards discharged, a rule to show cause why the order of sale should not be vacated and set aside. No appeal was taken from this order. The fifth, sixth, and seventh assignments allege error in dismissing exceptions requesting that the receiver should be charged with the value of certain patent rights, furniture and fixtures, patterns, etc. These were sold under an order of sale of September 24, 1908, and the sale was after-wards confirmed, and no appeal was taken from the decree of confirmation. The eighth assignment alleges error in dismissing the eighth exception, which asked that the receiver be surcharged with the amount of certain receiver’s certificates used for the payment of claims of creditors, which had matured prior to the receivership. Appellants pointed out nothing, in the accounts upon which this particular exception was based. The •ninth and tenth assignments allege error in dismissing the ninth and tenth exceptions to the allowance claimed by the receiver for counsel fees and for his own compensation. Appellants do not show that there was any abuse of the discretion which is vested in the court below in such matters, nor did they offer any evidence to overcome the presumption that the allowance made by the court below was proper. The eleventh assignment alleges error in dismissing the eleventh exception, to the payment of the compensation of one of the skilled rhechanics employed by the receiver in conducting the business. There was testimony that the services rendered by this employee were both necessary and profitable, and that the compensation was reasonable There was no testimony to the contrary. The twelfth and thirteenth assignments of error are to the exclusion of offers of testimony made by appellants on the final hearing. The first offer was to show that the receiver, after he had purchased the plant of the company by leave of the court, and after the sale to him had been confirmed, operated on his own account, and afterwards organized a corporation for that purpose. Any evidence as to his conduct of the business thereafter was entirely irrelevant to the inquiry. The second offer of evidence was to show that the manager employed by the receiver had been paid for services in matters not included in the accounts. No credit for any such payment was claimed in the accounts, and this offer was therefore irrelevant, and was properly excluded.

A number of the exceptions above considered related to sales of the property of -the company made under the order of the court, and afterwards confirmed by it. No appeals were taken from such decrees of confirmation. A decree confirming a sale made under an order of court is a definitive decree from which an appeal will lie: Robinson v. Glancy, 69 Pa. 89; Snodgrass’s App., 96 Pa. 420; Titusville Oil Exchange’s Dissolution, 10 Pa. Superior Ct. 496. The questions sought to be raised concerning these sales were therefore res adjudicata, and the exceptions were properly overruled.

The specifications of error are all dismissed, and the decree of the court below is affirmed.


author: Mr. Justice Mestrezat,

text:
    Robson, Appellant, v. Lehigh Valley Railroad Company.

      Negligence — Railroads — Braheman—Overhead bridge — Master and servant — Assumption of rislc — Case for jury.

    1. Where on an issue of assumption of risk by a servant who has sustained injuries, the facts are controverted or such that different inferences may be drawn therefrom, the question as to the assumption of risk should be submitted to the jury under proper instructions from the court.
    2. In an action against a railroad company to recover damages for the death of a brakeman who was killed by his head coming in contact with an overhead bridge while he was riding at night on the top of a freight car on a side track, the question of the assumption of risk by the deceased is for the jury, where it appears that the deceased was an extra brakeman; that the side track was not guarded by dangling ropes near the bridge, as were the main tracks; that the testimony of the defendant’s employees to the effect that the deceased knew of the bridge, was contradicted; that there was testimony that the deceased had never been under the bridge before; and the proof shows that the space between the top of the car and the span of the bridge was only slightly less than the height of an ordinary man, so that it was difficult to determine under the circumstances whether it was safe to stand erect on the top of the car in passing under the bridge.
    Argued March 4, 1912.
    Appeal, No. 54, Jan. T., 1912, by plaintiff, from judgment of C. P. Northampton Co., Feb. T., 1911, No. 17, on verdict for defendant in case of Helena Bobson, by her next friend Edward Robson, v. Lehigh Talley Railroad Company.
    Before Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.

      Trespass to recover damages for the death of plaintiff’s husband. Before Stewart, J.
    The circumstances are narrated in the opinion of the Supreme Court.
    At the trial the court gave binding instructions for defendant.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendant.

      W. H. Kirkpatrick, of Kirkpatrick & Maxwell, for appellant.
    Cases are exceptional in which the court may direct a verdict for the defendant on the strength of testimony presented by him. They never arise where there is a real controversy as to the facts or doubts as to the inferences to be drawn from them: Rauch v. Smedley, 208 Pa. 175; Penna. R. R. Co. v. Weiss, 87 Pa. 447; Devlin v. Beacon Light Co., 198 Pa. 583; McCafferty v. Penna. R. R. Co., 193 Pa. 339.
    A list of Pennsylvania cases in which brakemen have been held to have assumed the risk of objects overhead or near the track, together with the time of their acquaintance with the danger in each case, follows: Pitts. & Connellsville R. R. Co. v. Sentmeyer, 92 Pa. 276; Brossman v. R. R. Co., 113 Pa. 490; Stoneback v. Thomas Iron Co., 17 W. N. C. 295; Boyd v. Harris, 176 Pa. 484; Fulford v. R. R. Co., 185 Pa. 329; Kelly v. R. R. Co., 11 Atl. Repr. 659.
    A case almost precisely similar is Robel v. Chicago, Etc., Ry. Co., 35 Minn. 84 (27 N. W. Repr. 305).
    See also St. Louis, Ft. S. & W. R. R. Co. v. Irwin, 37 Kansas 701 (16 Pac. Repr. 146); Louisville N. A. & C. Ry. Co. v. Wright, 115 Indiana 378 (16 N. E. Repr. 145; 17 N. E. Repr. 584).

      E. J. Fox, with him J. TV. Fox, for appellee.
    Where the testimony in support of an action is a mere scintilla may that opposed to it is so overwhelming that no real controversy is raised and where the jury could not find for the plaintiff without a capricious disregard of apparently truthful testimony probable in itself and not at variance with any admitted or proved facts, a verdict and be directed for the defendant: Cromley v. Penna. R. R. Co., 211 Pa. 429; Holland v. Kindregan, 155 Pa. 156; Lonzer v. Lehigh Valley R. R. Company, 196 Pa. 610; Keiser v. Lehigh Valley R. R. Company, 212 Pa. 409.
    April 15, 1912:
    “A servant who has had full opportunity of knowing the danger and risk of his employment but makes no complaint to his employer as to the danger to which he is exposed, but continues to work voluntarily notwithstanding, assumes the risk of injury from the dangers to which he is exposed:” Schneider v. Philadelphia Quartz Company, 220 Pa. 548; Simmons v. Southern Traction Company, 207 Pa. 589; Myers v. Edison Elec. Illum. Co., 225 Pa. 387; Sandt v. North Wales Foundry Co., 214 Pa. 215.
   Opinion by

Mr. Justice Mestrezat,

This was an action of trespass brought to recover damages for the death of the plaintiff’s husband who was killed while employed as an extra brakeman shifting freight cars in the defendant’s yard at South Bethlehem, Pennsylvania. The learned judge of the court below directed a verdict for the defendant on the ground that by the undisputed testimony of the defendant’s witnesses the deceased knew or should have known of the danger and, therefore, assumed the risk which resulted in his death. We think the learned judge misapprehended the effect of the testimony and his duty in the premises.

Fred Robson was employed by tbe defendant as an extra brakeman in its freight yard at South Bethlehem in the latter part of the year 1909. His duties consisted in “letting off brakes and changing cars once in awhile, sometimes giving signals to the engineers,” coupling cars, etc. While thus engaged on a side track, on the night of December 28, 1909, he was knocked off the top of a freight car and killed by coming in contact with a bridge which spans the company’s tracks and yard. The only witness of the occurrence was William Bush, the conductor of the crew with which Robson was working. He testified that he was standing on the grab-iron on the right-hand side of the rear car, and that Robson, when he last saw him, about half a minute before the accident, was on top of that car. When the car was about two car-lengths beyond the bridge, Bush felt something strike him on the shoulder and, looking down, saw Robson’s body on the ground between the two cars. He did not see Robson fall and heard no sound.

The bridge which caused the accident crosses the four main tracks and fifteen sidings of the defendant’s road at a height of eighteen feet and one inch. The space between the top of the cars on which Robson was working and the bridge was four feet and eleven inches. Robson was about five feet seven inches tall, and hence the bridge was eight or nine inches too low to allow him to pass when standing erect on the top of a car. Neither could a man of ordinary height standing on a car, it will be observed, pass under the bridge with safety. There were no lights under the bridge or in the yard, but a few city lights on top of the bridge. There were “tell tales” or dangling ropes to warn brakemen of the approach to the bridge over two of the main tracks but none over the sidetracks. Whether it was customary to use signals of approach to bridges under such circumstances was, under the evidence, a disputed fact.

The statement alleges that the defendant company was negligent in maintaining and permitting to be maintained the bridge over the tracks in such proximity to the top of the cars as “to make the place an unsafe and improper one for the performance of the duties of a brakeman upon freight or box cars running over defendant’s tracks at that point,” and in not warning or instructing the deceased by the maintenance of “tell tales” or other effective device of the danger caused by the improperly constructed bridge. The real defense, and the one on which the learned judge ruled the case, was that the danger of coming in contact with the bridge was an open and obvious one which Robson knew or by the exercise of ordinary prudence or care should have known, and that, therefore, he assumed the risk incident to the service. The plaintiff denies that the deceased knew or had the opportunity by observation of knowing the danger, and hence could not have assumed the risk of being struck by the bridge while engaged at his employment. This raised an issue of fact which, under the evidence submitted, was necessarily for the jury. The fact was not admitted or conclusively established by evidence, but was contraverted and depended entirely on oral testimony. In such cases, the credibility of the witnesses is for the jury, and it is for them to determine whether the testimony adduced on the trial establishes the facts at issue between the parties. This is the well settled rule. In 26 Cyclopedia of Law and Procedure 1478, the rule is stated thus: “Where on an issue of assumption of risk by a servant who has sustained injuries, the facts are contraverted, or such that different inferences may be drawn therefrom, the question as to assumption of risk should be submitted to the jury under proper instructions from the ■ court.” If there is no controversy as to the facts or doubt as to the inferences to be drawn from them, the court may direct a verdict for the defendant on the strength of- his own testimony, but, as we have frequently said, such cases are exceptional. In the case at bar the learned judge, "after the plaintiff had made out a prima facie case, directed a verdict for the defendant company on the testimony of its two conductors, two brakemen, and train-master who were in its employ at the time of the accident and at the time of the trial. In fact, the judge apparently thought that it was his duty to hold as a matter of law that because Robson was working about the bridge at the time he was killed he assumed the risk of the service regardless of the facts necessary to charge him with notice of the danger. He says in the charge: “It can’t be disputed, it seems to the court, that where a man is working in and about a bridge, such as this was, engaged in drilling cars, he must be held to have knowledge of the height of that bridge and of the height of the car on which he is working.” This error and misconception of the effect of the testimony of the defendant’s employes resulted in the erroneous withdrawal of the case from the jury.

The witnesses on the strength of whose testimony the court directed the verdict were all in the service of the defendant company and to that extent were interested. The testimony of the witness Bush was in part contradicted. The jury Avould have been justified in finding that Robson worked only four nights in the defendant’s freightyard. This was inferentially established by the failure of the defendant company to produce its other time sheets, and could also have been found from the testimony of the defendant’s Avitnesses. Robson lived at Easton, twelve miles distant from South Bethlehem, was employed as an extra brakeman, and was sent to one place or another as his services were needed. The •testimony relied on by the court to sustain its action in directing the verdict shows at most that Robson worked only four nights in the South Bethlehem yards, and that the crews with Avhich he worked passed frequently under the bridge. It fails to show that he had passed under the bridge while riding on the top of a car, or, in fact, that he had passed under the bridge at all until the night of the accident. The collision with the bridge which resulted in Robson’s death occurred the first time he passed under the bridge the night of the accident. If the testimony of Robson’s brother is credible, Bush told him that Robson had never been under the bridge prior to the time he was killed. Bunstein, a freight conductor, worked with Robson one night and the crew went under the bridge, but he does not testify that Robson was on top of a car at that time. Hann, a brakeman, worked one night with Robson and the crew passed under the bridge, but he did not know whether Robson was with it or in another part of the yard shifting cars. Kelly, a brakeman, worked with Robson three nights and the crew went under the bridge, but they did no work on the siding where Robson was killed. Ault, the trainmaster and the defendant’s remaining witness, testified from time-slips that Robson worked four nights in the yard and that the crew went under the bridge. It will be observed that, conceding the credibility of the defendant’s witnesses, their testimony did not conclusively show that, except the night he was killed, Robson was on the top of a car when he passed under the bridge or that he went under the bridge at all on either of the other three nights he worked in the yard. The most that can be said is that the testimony, if believed, would warrant the jury in drawing the inference that he might have been on the top of the car at some time during his service in the yard. It would also justify the conclusion that he saw the bridge and knew its location. But the vital question to be determined by the testimony was whether Robson knew or by the exercise of ordinary prudence should have known the proximity of the top of the cars to the bridge and the danger arising therefrom. A knowledge of the existence of the bridge does not presume a knowledge of its height above the trains that pass under it. Common experience teaches the difficulty in accurately determining the height of an object under such circumstances. Standing on the ground or on the top of a car at any distance from a bridge, it certainly would be extremely difficult for the brakeman to determine whether standing erect on the top of the car he could safely pass under the bridge where there was only eight inches difference between his height and the space between the car and the bridge. Had this space not exceeded two or three feet the difficulty of passing the bridge would have been obvious and the inability of one standing erect on a car to pass safely would have been apparent. Such, however, was not the fact; on the contrary, the height of the bridge was sufficient to induce the belief without close observation that the brakeman could pass in safety. Robson might have gone under the bridge on the top of a car without knowing the exact distance between the car and the bridge. He might have been in a stooping position, and, his attention at the time being directed to the performance of his duty he might have failed to observe the exact distance between the car and the bridge. So far as the evidence discloses he may not have been on the top of the car at all on any one of the three previous nights he was at work in the freight yard. He had some duties to perform which did not require him to be on top of the car. If he- is to be charged with knowledge of the distance of the bridge above the car and hence of the danger of passing under the bridge, it is incumbent upon the defendant to show that he had the opportunity to know and appreciate the danger. Whether that burden was met was clearly a question for the jury and not the court to determine.

The cases relied on by the appellee are clearly distinguishable from the one at bar. Pour of' them were cases of nonsuit where the defendant produced no evidence. In another case, binding instructions were given for the defendant. In all of them there was no doubt that the deceased was perfectly familiar with the danger which resulted in his death. That is a question of disputed fact in the present case, and is necessarily for a jury.

The judgment is reversed with a venire facias de novo.


author: Mr. Justice Elkin,

text:
    Pennsylvania Stave Company’s Appeal.

      Taxation — Beal estate — Saw mill — Leasehold.
    1. A manufacturing plant consisting of a sawmill, houses, shops, sheds and barn is taxable as real estate, although the structures stand upon land leased for a term of years with a right in the lessee to remove the buildings and machinery at the end of the term.

      Taxation — Assessment — Valuation—Beal estate — Market value.

    2. The law requires that the valuation of real estate for the purpose of taxation shall be determined upon the basis of market value, or rather upon actual value limited and defined by market value.
    3. Where there is no other real estate of the same kind in the taxing district, and hence no standard by which to measure its value as compared with the value of other property of like character, the assessable value must be determined by taking into consideration those elements which give it a market value, such as machinery, equipment, and permanent improvements to the extent that they may effect the selling price. The cost of the property of this character has no controlling effect.

      4. On an appeal to the Common Pleas from a tax assessment- the proceeding is de novo. A prima facie case is made out by offering in evidence the record of the assessment in the office of the county commissioners, together with such data as was before the board of revision, but this only makes out a prima facie case, and whether it shall be sustained or not depends upon the evidence produced at the hearing.
    5. If the evidence as to valuation be conflicting, some of it sustaining the valuation fixed by the board of revision, the court will be warranted in so holding, but if all the testimony taken at the hearing shows the valuation to be too high, it is the duty of the court to find the facts in accordance with the evidence thus produced.
    Argued March 11, 1912.
    Appeal, No. 136, Jan. T., 1911, by Pennsylvania Stave Company, from decree of C. P. Bradford Co., Sept. T., 1910, No. 220, dismissing assessment from tax settlement.
    Before Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ,
    Reversed.

      Appeal from tax settlement. Before Fanning, P. J.
    From the record it appeared that the Pennsylvania Stave Company leased certain land in 1903 from the Elk Tanning Company and the Union Tanning Company, and erected thereon a manufacturing plant consisting of a saw mill, houses, barn and sheds. The lease provided that the stave company should have the right to remove the structures within one year from the time it had used up timber which the tanning companies had sold to the stave company at the time the lease was executed.
    At the tri-ennial assessment in 1910, the assessor of Barclay township assessed the said mill site, consisting of 26 acres of land to the Pennsylvania Stave Company at $260, and then separately assessed to the said company, its said manufacturing plant as follows: 14 D-Houses $700, 3 Houses $1,000, 10 D-Houses $3,000, 1 B-House $400, Barn and Shop $300, Sheds and Office $3,500, Mill Complete $45,000.
    The Pennsylvania Stave Company contended that it was a tenant holding the said mill site by virtue of a lease, and that the manufacturing plant was placed by it upon the leased lands for a temporary purpose with the right and intention of removing the same as soon as the work is completed, and that the plant is personal property, being trade fixtures upon leased lands, and not real estate, and therefore not liable to taxation for local purposes, and, further contend that the values placed thereon were excessive and much more than the said property would sell for, and appealed from the said assessment as sustained by the Board of Bevision of Taxes, to the Court of Common Pleas.
    The court in an opinion by Fanning, P. J., dismissed the appeal.

      Error assigned} among others, was decree dismissing the appeal.

      Chas. M. Culver and A. F. Jones, of Lewis, Jones & Leiois, for appellant.
    There is no question but that a fixture erected by a tenant upon demised premises for the purpose of carrying on his trade is personal property : Hill v. Sewald, 53 Pa. 271; Voorhis v. Freeman, 2 W. & S. 116; Vail v. Weaver, 132 Pa. 363.
    Even under the common law rule of fixtures as enforced by the English courts, the mill in the case at bar did not become part of the freehold: Rex v. Inhabitants of Otley, 1 Barn. & Adolph., 161; Wansbrough v. Matón, 4 Adolph. & Ellis 884.
    Personal property such as this is not taxable. The law does not subject it to the burden of taxation for local purposes.
    The tax laws must be strictly construed and unless there is an express legislative grant of the power to tax it does not exist: Central Penna. Lumber Co.’s App., 232 Pa. 191; Federal St. & Pleasant Valley Pass. Ry. Co. v. Pittsburgh, 226 Pa. 419; Eastburn’s App., 2 Chest. County 241; McNally v. Field, 119 Fed. Repr. 445.
    The property is not taxable as real estate: Deitz v. Beard, 2 Watts 170; Finan v. Bradford County, 5 Pa. C. C. R. 224; Patterson v. Del. County, 70 Pa. 381; John T. Dyer Co.’s App., 21 Pa. C. C. R. 442; Ridgway v. County Commissioners, 5 Montg. County 25; Crozer v. County Commissioners, 3 Del. County 81; Mellon v. Allegheny County, 3 Pa. D. R. 422; Wilkes-Barre Times v. Wilkes-Barre, 10 Kulp 320; Union Petroleum Co.’s App., 9 Del. County 160.
    The valuation was excessive.
    Market value, that is, the price for which the property will sell at public sale, after proper notice, is the only measure of value for the purposes of taxation: Lehigh & Wilkes-Barre Coal Co. v. Luzerne County, 225 Pa. 267; Lehigh & Wilkes-Barre Coal Co.’s Assessment, 225 Pa. 272; Del., Lackawanna & Western R. R. Co.’s Tax Assessment, 224 Pa. 240.

      Rodney A, Mereur, for appellee.
    The appellants property was taxable as real estate: Bemis v. Shipe, 26 Pa. Superior Ct. 42; Luzerne County v. Galland, 3 Kulp 11; Dravo Contracting Co. v. Grambling, 45 Pa. Superior Ct. 72; Guthrie v. Pittsburgh Dry Goods Co., 47 Pa. Superior Ct. 384; East Lampeter Twp. v. Maignen Filter Plant, 26 Lancaster Law Rev. 396.
    April 15, 1912:
    The valuation placed upon the appellant’s property was not too high: Hamilton Heirs’ App., 14 Pa. D. R. 655; Ferguson v. Lycoming County, 8 Pa. C. C. R. 667; Lehigh & Wilkes-Barre Coal Co.’s App., 14 Luzerne Leg. Register 253; Del. Lack. & West. R. R. Co.’s Tax Assessment, 224 Pa. 240; Garber’s App., 17 Pa. D R. 464; Rockhill Iron & Coal Co. v. Fulton County, 204 Pa. 44; Drake’s Appeal, 5 Northampton County 215; Drake v. Northampton County, 14 Pa. D. R. 688; Bell’s Appeal, 11 Pa. D. R. 732; Com. v. Hanna, 17 Pa. D. R. 308; Irwin Basin Coal Lands Assessment, 17 Pa. D. R. 825.
   Opinion by

Mr. Justice Elkin,

Appellant, a corporation, is engaged in the manufacture of cooperage supplies, and has a plant located in Barclay township, Bradford county. The plant consists of a large and well equipped sawmill, twenty-eight houses, single and double, office, shop, sheds and barn. The buildings are all substantially built on permanent foundations. They stand upon leased ground but belong to appellant company. These permanent structures were assessed as real estate by the local assessors and the valuations so made were returned to the county commissioners for the purpose of taxation. The board of revision sustained the assessment and an appeal was taken to the court below under the Act of April 19, 1889, P. L, 37, and that court sustained the valuation and assessment of the property in question as real estate. The appeal to this court was taken under the Act of June 26, 1901, P. L. 601. Two questions are raised: first, whether the manufacturing plant consisting of a sawmill, houses, shops, sheds and barn are subject to taxation as real estate; and second, whether under the law and facts a proper valuation was made. It is argued for appellant that the buildings are trade fixtures and not real estate. This position is based upon the theory that the stave company is merely a tenant with the right to remove all the buildings when the timber is cut, and that the title to the land upon which the plant is located is in the lumber company. This is an erroneous view to take of the situation. The stave company under its contract with the lumber company has an estate for a term of years in the twenty-six acres of land, and this estate together with the permanent improvements thereon is a proper subject of taxation under the Act of April 15, 1834, P. L. 509, which act as amended by the Act of April 29, 1844, P. L. 486, 497, provides for the taxation as real estate of “houses, lands, lots of ground, and ground rents, mills manufactories of all kinds, furnaces, forges, bloomeries, distilleries, sugar houses, malt houses, breweries, tan yards, fisheries and ferries, wharves,” and other like property. It will be noticed that under the general term “real estate” the act specifically names many kinds of structures to be included as proper subjects of taxation. Houses, mills and manufactories of all kinds are included in the enumeration with the evident intention of making them subjects of taxation as real estate. There is no suggestion that the taxation of houses, mills and factories is made to depend upon the kind or character of the estate the owner may have in the land upon which the buildings are located. The taxing statutes look to the nature of the structure, whether it be permanent or not, rather than to the technical legal distinctions as to what constitutes real estate. If it had been otherwise intended it would not have been necessary to designate the different kinds of improvements which should be subject to taxation as real estate. The legislature had the power to say what kinds of property should be taxed as real estate and it exercised this power in the Acts of 1834 and 1844. The property involved in this proceeding comes within the express provisions of these statutes, and it would be sticking in the bark to hold that this valuable estate should be exempt from taxation because the stave company was not the owner of the fee in the land demised to it for a term of years. In this connection it should not be overlooked that the stave company is the owner of the sawmill, houses, sheds, shops and barn, with the right to remove the same at the expiration of the term, and that during the occupancy of the land, it has an estate in the demised premises. In no proper legal sense can the buildings in question here be considered trade fixtures, nor can they be treated as personal property under our taxing statutes.

As to the valuation a different question arises. When the case on appeal came into the court below the proceeding was de novo. A prima facie case was made out by offering in evidence the record of the assessment in the office of the county commissioners together with such data as was before the board of revision, but this only made out a prima facie case, and whether it should be sustained or not, depends upon the evidence produced at the hearing. If the evidence as to valuation be conflicting, some of it sustaining the valuation fixed by the board of revision,-the court would be warranted in so holding, but if all the testimony taken at the hearing shows the valuation to be too high, it is the duty of the court to find the facts in accordance with the evidence thus produced. As we read the record, all of the evidence shows that the valuation fixed by the board of revision was too high and clearly it was sufficient to overcome the prima facie case. The law requires that the valuation of real estate for the purpose of taxation shall be determined upon the basis of market value, or rather upon actual value limited and defined by market value: Phila. & Reading Coal and Iron Co. v. County Com’rs. 229 Pa. 460. This is a statutory requirement and cannot be ignored. It seems to us that the learned court below overlooked this positive rule in determining what was a proper valuation in the present case. Something is said in the opinion of the learned court below about uniformity of taxation, which as a general rule is a controlling principle. It is difficult to give effect to this principle in the case at bar, because there is no other property in the township or county like that here involved, and with which a comparison can be made. The property in question here is taxed as real estate, but there is no other real estate of the same kind in the taxing district, and hence no standard by which to measure its value as compared with the value of other property of like character. In such a case the assessable value must be determined by taking into consideration those elements which give it a market value. Cost value of such a property is not as a rule a proper measure of market value, and under our statutes should not be given controlling effect in ascertaining assessable value. All elements of intrinsic value tending to give the property a market value should be considered, such as machinery, equipment, and permanent improvements, to the extent that they may affect selling price. These elements of value were properly taken into consideration by the witnesses produced at the hearing, but they all fixed the market value much below the valuation ascertained by the Board of Revision. In tax cases, like all others, courts must be guided by the evidence in determining what are proper valuations. In the present case we cannot escape the conclusion that the valuation was fixed without reference to the evidence and for this reason we have concluded to reverse the decree and remit the record for the purpose of having the valuation ascertained upon a proper basis under the law and the facts.

Decree reversed and record remitted with instructions to ascertain the assessable value of the property in question upon the basis of market value taking into consideration all elements of value which affect selling price. Cost of this appeal to be paid by appellee and in the court below as there directed.


author: Me. Justice Moschziskee,

text:
    Madden v. Lehigh Valley Railroad Company, Appellant.

      Negligence — Railroads — Braheman—Death—Evidence.

      1. In cases to recover damages for death, although there must of course be affirmative proof of negligence before recovery can be had, it is not always essential that there be an eye witness of the occurrence. The proof may be furnished by the circumstances themselves; the test is whether they are such as to satisfy reasonable and well balanced minds that the accident resulted from the negligence of the defendant.
    2. In an accident case, before the maxim, volenti non fit injuria, can be invoked, it must be shown that the person injured or killed not only knew, or had full opportunity to know the circumstances, but that he appreciated, or should have appreciated the extent of the danger, and that he voluntarily exposed himself to it.
    3. In an action against a railroad company to recover damages for the death of one of its brakemen, a verdict and judgment against the company will be sustained where the evidence showed that at the time of the accident, the defendant was standing on the steps of the tender of a freight engine which was backing into a switch to couple a car, that the deceased with his right hand had hold of the grab bar to keep himself in place, while in his left hand he had a lantern with which he was giving signals to the engineer, that suddenly the lantern flickered up and the decedent went down out of sight of the engineer; that at the point where the deceased fell there was a pile of ashes of a depth of two feet covering the ends of the sleepers; and that the situation of the decedent’s body in relation to the pile of ashes justified an inference that the ashes came in contact with his feet and pushed or dragged them from under him, causing him to fall.
    4. Where there is any doubt that an employee was acquainted with the risk, the determination of the question is necessarily with the jury.

      Argued March 11, 1912.
    Appeal, No. 117, Jan. T., 1912, by defendant, from judgment of C. P. Bradford Co., Feb. T., 1909, No. 119, on verdict for plaintiff in case of Flossie M. Sheldon Madden v. Lehigh Valley Railroad Company.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ,
    Affirmed.
    Trespass to recover damages for the death of plaintiff’s husband. Before Cameron, P. J., specially presiding.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $2,750. Defendant appealed.

      Error assigned was in refusing binding instructions for plaintiff.

      Lilley é Wilson, for appellant.
    The trouble with the plaintiff’s case is, that it rests wholly upon a supposable theory not supported by established facts: Philadelphia & Reading R. R. Co. v. Schertle, 97 Pa. 450; Cavanaugh v. Allegheny County Light Co., 226 Pa. 86; Burrell v. Gowen, 134 Pa. 527; Welsh v. R. R. Co., 181 Pa. 461; Wannamaker v. Burke, 111 Pa. 423; Alexander v. Water Co., 201 Pa. 252; Ford v. Anderson, 139 Pa. 261; Ill. Central R. R. Co. v. Cathey, 70 Miss. 332 (12 So. Repr. 253); Wintuska v. R. R. Co., 14 Ky. Law Rep. 579 (20 S. W. Repr. 819).
    Decedent assumed the risk: Reese v. Clark, 146 Pa. 465; Cracraft v. Limestone Co., 210 Pa. 15; Meixner v. Brewing Co., 210 Pa. 597; Fulford v. R. R. Co., 185 Pa. 329; Diehl v. Iron Co., 140 Pa. 487; Rumsey v. R. R. Co., 151 Pa. 74; Nuss v. Rafsynder, 178 Pa. 397; Bowen v. Pa. R. R. Co., 219 Pa. 405; Green and Coates Street Railway Company v. Bresmer, 97 Pa. 103; Brossman v. R. R. Company, 113 Pa. 490.

      April 15, 1912:

      Chas. M. Culver and E. M. Dunham, with them D. O. Decker, for appellee,
    cited Allen v. Williard, 57 Pa. 374; Phila. & R. R. R. Co. v. Huber, 128 Pa. 63; Tucker v. Ry. Co., 227 Pa. 66; Hoffman v. Clough, 124 Pa. 505; Patterson v. R. R. Co., 76 Pa. 389; Kehler v. Schwenk, 151 Pa. 505.
   Opinion by

Me. Justice Moschziskee,

The plaintiff was the wife of Clarence Sheldon at the time of his death; she afterwards intermarried with one Madden. On January 14, 1908, Sheldon had his head cut off while in the employ of the defendant company. The circumstances under which this occurred are fairly outlined in the following excerpt from the opinion of the court below: “Along the main line of the defendant’s railroad there are two switches side by side, seven feet four inches apart at the place where the accident occurred............ The defendant company sometime in November, 1907, deposited ashes between these switches filling the entire space............to a depth of two feet at the deepest place, and sloping down to the rail on each side, covering the ends of the sleepers. ........ The decedent was head-brakeman on a local freight, and had ridden over the ground where the ashes were deposited a great many times since they were put there. On the night of the accident the engine of the local freight was backing down into the switch to couple a car: The decedent was standing on the steps on the right hand side of the tank or tender near the rear end thereof on the side where the ashes lay. He had hold of the grab-bar to keep himself in place, with his right hand and had a lantern in his left, with which he was giving signals to the engineer to guide him in backing the engine and tender to the car that was to be coupled. The engineer says he was watching the signals when all at once the lantern flickered up, and the decedent went down out of sight. ' He stopped his engine, got down to look for him, and found his shoulders laid against the engine trucks, and his feet laid upon the ashes between the two switches, and his head nearly under the front of the pilot; his body at right angles with the track, and his shoulders lying against the wheels of the engine............. The lower step is a foot above the surface of the rail; the steps are about even with the sides of the tank, and are twenty-eight inches outside of the rail toward the ashes and a foot above the rail; this would place his feet out twenty-eight inches toward where the ashes were about two feet deep......... The switches were seven feet and four inches apart; if the ashes were two feet high in the center and sloped gradually to the surface of the rail, that would make them two feet high, forty-four inches outside of the rail, and the highest point would be sixteen inches from the step........... Some of the witnesses said the steps scraped through the ashes at the point where the accident occurred and that the ground was'frozen..........”

In submitting the questions involved, the trial judge, inter alia, said: “Prom this evidence, and the evidence as to the depth of the ashes, the form the ashes were left in, and the shape of the steps on which decedent stood when the accident occurred, the plaintiff asks you to say, that the ashes piled up as they were along the railroad came in contact with the feet of the decedent, and pushed or dragged them from under him, causing him to fall on the rail, thus causing his death............. If you are satisfied by a preponderance of the evidence that the accident was thus caused, there is another question to be considered by you before you can find for the plaintiff; and that is, did the decedent know, or did he have, with ordinary prudence and under the circumstances, the means of knowing the dangerous character of this pile of ashes, if it was dangerous, and that the presence of the ashes made the discharge of his duties more dangerous. If you find that he knew it or by the exercise of ordinary care and prudence under the circumstances he had the means of knowing and should, have known the dangerous character of the ashes, he assumed the risk arising from the presence of the ashes, and therefore, the plaintiff cannot recover............. If you find, however, that he had not that knowledge, and had not the means of obtaining that knowledge by the use of ordinary care and prudence under the circumstances, and further find that he met his death by the negligence of the defendant in placing and keeping those ashes where they were, without contributory negligence on the part of the decedent, it will then be your duty to consider the damages that plaintiff has sustained by reason of the death of her husband.”

The defendant contends that the evidence was not sufficient to show that the ashes caused or contributed to Sheldon’s death; that, if this is not so, then it was clear that Sheldon had notice of the danger and it was one of the risks of his employment; and, lastly, that the fellow-servant rule would defeat a recovery. After a study of the evidence and a consideration of the authorities relied upon, we do not think any of these contentions can be sustained.

While no witness was able to give direct testimony describing exactly what happened at the precise time of decedent’s fall to the ground, yet from the evidence of those who actually saw and knew the details, the facts stated by the court below could justifiably be found and the jury could have reasonably concluded that Sheldon was in a position where his heel would come in contact with the ashes, and that this caused the accident which brought about his death.

“In cases to recover damages for death, although there must of course be affirmative proof of negligence before recovery can be had, it is not always essential that there be an eye witness of the occurrence. The proof may be furnished by the circumstances themselves; the test is whether they are such as to satisfy reasonable and well-balanced minds that tbe accident resulted from tbe negligence of the defendant:” Ferry v. Phila. Rapid Transit Co., 232 Pa. 403. For other applications of this rule see McManamon v. Hanover Township, 232 Pa. 439; Tucker v. Pittsburgh C. C. & St. L. Ry. Co., 227 Pa. 66; Phila. & R. R. Co. v. Huber, 128 Pa. 63. The present case falls under the principle of these authorities; the strong probability is that the accident occurred as found by the jury, and no other reasonable theory upon which to account for it is suggested by the evidence. We conclude that the court below committed no error in holding the evidence sufficient to support the verdict.

The piles of ashes presented a temporary danger incident to the place in which Sheldon was employed rather than one of the regular risks of his employment. Before the maxim, volenti non fit injuria, can be invoked, it must be shown that the plaintiff not only knew, or had full opportunity to know, the circumstances, but that he appreciated, or should have appreciated, the extent of the danger, and that he voluntarily exposed himself to it. “This makes the question of assumption of risk, one of fact, unless from the nature of the case it is clear of dispute in this connection:” Valjago v. Carnegie Steel Co., 226 Pa. 514, 519. Although the decedent passed the point where he was killed just before the accident and had been over it in the performance of his duties at other times, it is not clear that he was in a position to see and appreciate the danger presented. Particularly is this so when we consider the testimony of the defendant’s witness Kane, — its supervisor of tracks who had charge of the deposit of ashes in question, — to the effect that so far as he could see they presented no danger. This apparently was an instance where the risk was. difficult to estimate, and under such circumstances the case was for the jury. “Where there is any doubt whether the employed was acquainted or should have been acquainted with the risk, the determination of the question is necessarily for the jury:” Rummell v. Dilworth, 111 Pa. 343, 351. On this general subject see also Stewart v. Central R. R. of N. J., 235 Pa. 311. The words used by Chief Justice ' Sterrett, in Vorhees v. Railway Co., 193 Pa. 115, 120, “Whether from his experience, or from opportunities of examination afforded him before the time of the accident or otherwise, he knew, or ought to have known, the danger ..........were necessarily questions of fact for the jury,” are appropriate here. It only remains to be said that the fellow-seryant rule has no application to this case.

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


author: Mr. Justice Mestbezat,

text:
    Kelley v. Lehigh Valley Railroad Company, Appellant.

      Railroads — Passengers — Assault on passenger by braheman— Case for jury — New trial.

    1. In an action by a passenger against a railroad company to recover damages for personal injuries from blows inflicted upon him by defendant’s brakeman with a ventilator stick, while he was alighting from a train, a verdict and judgment for the plaintiff will not be set aside and a new trial granted, where the evidence is conflicting as to whether the plaintiff misconducted himself, and as -to whether the brakeman was acting in self defense, and this is the case although the court as a juror might have been strongly inclined to find for the defendant, and although the defendant's case was supported by a greater number of witnesses.
    2. The weight of the evidence is not to be determined by the number of witnesses nor is the verdict to be set aside because the greater number of witnesses testified against the finding. The credibility of witnesses is for the jury, and their manner, their motive, their bias, the inherent improbability of their story, or the want of accurate recollection may discredit their testimony and justify a jury in disregarding it altogether.

      Practice O. P. — Trial — Jury—Conduct of tipstaff — New trial.

    3. A new trial will not be granted because of the alleged refusal to report a request by the jury to the judge for further instructions, because such a request was made on a Sunday, where it appears that although one or more of the jurors may have desired further instructions yet there is nothing to show an actual request by the jurors to the tipstaff, and no juryman, when their sealed verdict was opened made objection to the conduct of the tipstaff; nor will a new trial be granted on the ground alleged that a juror had told the tipstaff that his health would be endangered by the jury remaining out another night, where there is no evidence to show that any such statement was made, or that the juror was not in good health, and the juror himself when the sealed verdict -was opened, made no complaint of the conduct of the tipstaff.

      JRailroads — Passenger — Assault of passenger — Brakeman — Evidence — Harmless error.

      4. In an action by a passenger against a railroad company to recover damages for personal injuries sustained by an alleged assault by a brakeman, it is harmless error, if it is error at all, to permit a witness to testify as to the duty of a brakeman, if the witness testified to nothing that conflicted with the duties prescribed by the rules of the defendant company which were in evidence.
    Argued March. 11, 1912.
    Appeal, No. 253, Jan. T., 1911, by defendant from judgment of C. P. Bradford Co., Sept. T., 1909, No. 265, on verdict for plaintiff in case of Albert L. Kelley v. Lehigh Valley Railroad Company.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries, sustained by an alleged assault by one of defendant’s brakemen. Before Fanning, P. J.
    The facts are stated in the opinion of the Supreme Court.
    The jury returned a verdict for plaintiff for $2,000.
    The defendant moved for a new trial assigning, inter alia, the following reasons:
    “IV. The verdict is against the weight of evidence and charge of the court.”
    “V, That during the consideration of the above case by the jury, on Sunday, February 27, a request was made by some of the jurors to Charles Daugherty, tip-staff in charge, that they desired to have the testimony of Thomas O’Donnell read to them, and was informed by the tipstaff, that ‘that could not be done, that the court would not do any business on Sunday.’ And further, that the tipstaff was notified by the jurors that they could not agree, and asked the tipstaff in charge to call the court in, so they could be discharged, and the tipstaff notified them, ‘they would have to stay until Monday morning, as the court would not do any business on Sunday,’ and that A. J. Fisher, one of the jurors, was sick, and in poor health and considering that for him to remain out, under the circumstances, another night, would endanger his health, and was therefore compelled to agree to a verdict, rather than to endanger his health, and possibly, his life.”
    “VI. That the verdict is not supported by the testimony in the case. That the clear weight of testimony was for the defendant, and therefore the verdict is legally and morally wrong, and should be set aside.”

      Errors assigned were (1, 2) refusal of new trial and (3) ruling on evidence referred to in the opinion of the Supreme Court.

      R. W. Barrett, with him E. H. Boles, for appellant.
    We think the court erred in not setting aside the verdict and granting to the defendant a new trial, as the verdict was clearly against the weight of the credible evidence ; and such refusal under the reasons assigned, was an abuse of the court’s discretion: Greb v. Pennsylvania R. R. Co., 41 Pa. Superior Ct. 61; Rudgeair v. Reading Traction Co., 180 Pa. 333; Pitts., Allegheny & Man. Passenger Railway Co. v. Donahue, 70 Pa. 119; Zuber v. Geigar, 2 Yeates 522; Chahoon v. Hackley, 5 Kulp 397; Emmet v. Robinson, 2 Yeates 514; Holden v. R. R. Co., 169 Pa. 1; Sloan v. Ry. Co., 225 Pa. 52.

      There is no doubt about the authority of the court, where a jury is out over Sunday, considering their verdict, that upon request some part, or any part, or all of the testimony previously taken on the trial of the case in court, upon notifying the respective parties to be present: Huidekoper v. Cotton, 3 Watts 56; Com. v. Marrow, 3 Brewster 402; Com. v. Marra, 8 Phila. 440.

      Stephen II. Smith and David E. Kaufman, for appellee.
    A railroad company is liable for injuries resulting from the negligence, violence or carelessness of its servants, in removing from the cars a passenger who refused to pay his fare or produce a ticket: Penna. R. R. Co. v. Vandiver, 42 Pa. 365; Sharrer v. Paxson, 171 Pa. 26; Artherholt v. Erie Electric Motor Co., 27 Pa. Super. Ct. 141; Phila., Etc., R. R. Co. v. Alvord, 128 Pa. 42; McFarlan v. Pa. R. R. Co., 199 P. S. 408; Greenwood v. Union Traction Co., 30 Pa. Superior Ct. 488.
    The weight of the evidence is not a question of mathematics, but depends on its effect in inducing belief: Braunschweiger v. Waits, 179 Pa. 47; Grupp v. Rapid Transit Co., 42 Pa. Superior Ct. 271; Cromley v. R. R. Co., 211 Pa. 429; Reel v. Elder, 62 Pa. 308; Kelly v. Traction Co., 204 Pa. 623; Harlow v. Homestead Boro., 194 Pa. 57; Kitler v. Street Ry. Co., 27 Pa. Superior Ct. 602; Flower v. Houghton, 12 Pa. D. R. 8.
    The testimony of jurors is not admissible for the purpose of impeaching their own verdict: Cluggage v. Swan, 4 Binn. 150; Ring v. Baker, 4 W. N. C. 185; Smalley v. Morris, 157 Pa. 349; Swope v. Crawford (No. 2), 17 Lancaster Law Rev. 196; Tewksberry v. Boyle, et al., 5 Kulp 496; Megargel v. Waltz, 21 Pa. C. C. R. 633.
    Judicial business in civil cases on Sunday is in violation of the rule of the common law and our statutes: Stern’s Appeal, 64 Pa. 447; Rheem v. Carlisle Deposit Bank, 76 Pa. 132; Whiteside v. Flora, 12 Pa. D. R. 153.
    Whatever may be the practice in other jurisdictions it is not and has not been the practice in this county to instruct juries or to read testimony to them on Sunday.
    April 15, 1912:
    That it is not ground for a new trial that jurors asked the officers in charge for information or testimony which the officer refused, or to which request he made no reply, has been held in the following cases: State v. Griffin, 71 Iowa 372 (32 N. W. Repr. 447); State v. Barker, 43 Kan. 262 (23 Pac. Repr. 575); State v. Stark, 72 Mo. 37.
   Opinion by

Mr. Justice Mestbezat,

On June 14, 1909, Albert L. Kelley, the plaintiff, purchased a ticket at Pittston for Laceyville, a station on the line of the defendant company’s road beyond Tunkhannock, and boarded a train for his destination. When the conductor examined the ticket he informed the plaintiff that the train did not stop at Laceyville and that he must get off at Tunkhannock, and take a later local train for Laceyville. He punched the ticket, made an endorsement on it, and handed it back to the plaintiff. These facts are not in dispute. The plaintiff claims that as he was leaving the train at Tunkhannock he was assaulted and severely injured by the defendant’s brakeman while descending the steps to the ground. He alleges that he was struck on the back of the head and pushed from the train, that his right ankle joint was sprained, the outer ligaments of the ankle were ruptured, and that he was otherwise injured. He further claims that he was assaulted by the brakeman after he had passed from the steps of the car to the ground and while he was still near the train.

The defendant admits that the plaintiff was required to leave the car at Tunkhannock, but alleges that he was not assaulted nor forcibly ejected, that he was intoxicated and, as he was descending the steps of the car, was very abusive and turned upon the brakeman, who put his hands on the plaintiff’s shoulders, turned him round, and “sent him down the steps.” As to what occurred after the plaintiff reached the ground, the defendant claims that the plaintiff went some distance from the car, procured a large chunk of coal, and was in the act of striking the brakeman when the latter hit him with the ventilator stick on the hand and, as he turned, struck him on the back.

This action was brought by the plaintiff to recover damages for the injuries inflicted by the brakeman on the plaintiff as the latter was leaving the defendant’s train. The jury returned a verdict in favor of the plaintiff, and from the judgment entered thereon this appeal was taken. The first and second assignments allege the court erred in refusing to grant a new trial, and this is the principal reason assigned by the defendant for the reversal of the judgment. The case was submitted to the jury in a charge to which no exception was taken, and in which the rights and duties of the passenger and the carrier were accurately and clearly defined. The learned judge charged that if the plaintiff was unlawfully assaulted by the brakeman while acting within the scope of his authority and in the performance of the duties assigned him, there could be a recovery, but if he was misconducting himself on the train, as alleged by the defendant, and the brakeman did not assault or strike him and used only such force as was reasonably necessary to get him to leave the train, the plaintiff would have no reason to complain and would have no action against the company for anything that occurred on the car or in going down the steps. As to what occurred after the plaintiff was on the ground or platform, the court instructed the jury that if he was unlawfully assaulted by the brakeman while the latter was acting within the scope of his authority, and he did not by his own unlawful act precipitate or cause the trouble, or by his negligence and conduct assist in producing it, there could be a recovery for the injuries sustained. The jury was also told that if the injuries received were the result of the plaintiff’s own negligence, violent and unlawful acts, if these contributed as a producing cause, if he was guilty of a prior assault and was hit by the brakeman, who had reason to believe from his attitude and manner and speech that he was in danger, and no more force was used than appeared to be reasonably necessary to protect himself, or eject the plaintiff from the train, there could be no recovery by the plaintiff for the injuries he sustained.

The plaintiff’s own testimony fully sustained his contention as to what occurred at the time of the alleged assault. He was accompanied by his brother who purchased a ticket at the same time, entered the car with him, occupied the same seat, and was immediately in front of the plaintiff as the two were descending the car steps in leaving the train. The brother corroborated the testimony of the plaintiff as to what occurred while they were leaving the car and after the plaintiff was on the ground. They both denied that the plaintiff was intoxicated and that there was any improper conduct or unbecoming language used by him on the occasion. The plaintiff’s story was further corroborated by certain admissions made by the trainmen and contradictions of each other by the defendant’s witnesses. The brakeman admitted in his testimony that he pushed the plaintiff off the steps after he had threatened him. One of the physicians testified that the plaintiff had a raised lump at the base of the skull in the back of the neck, which, it is claimed, must have been produced by a blow struck while the plaintiff was descending the steps in view of the admission of the brakeman that he only struck the plaintiff twice after he had reached the ground and neither time at this place on the body.

The defendant introduced several witnesses, the greater number being employees of the company, who contradicted the testimony of the plaintiff and Ms witnesses. The defendant’s theory of the case was that the plaintiff was intoxicated, used abusive and unbecoming language in the car when he was informed that he must leave it because the train did not stop at Lacey-ville, that the brakeman did not strike the plaintiff as he was leaving the car, and that after the plaintiff had reached the ground he ran some distance, procured a lump of coal and was in the act of striking the brakeman when the latter, in self defense, struck the plaintiff Avith the ventilator stick. It is denied that more force was used in ejecting the plaintiff than was reasonably necessary to accomplish the purpose. There was ample testimony on the part of the defendant company to sustain its contention, and the jury would have been warranted in returning a verdict in its favor. We have carefully read the testimony and would, as a juror, have been strongly inclined to find that the defendant’s contention was supported by the evidence. This, however, is not the test to be applied by an appellate court in determining whether the court below erred in refusing to grant a new trial. If it were, the judge would take the place of the jury and that tribunal would become a useless part of the machinery in the administration of justice. The only ground upon which we can reverse a court for refusing to grant a new trial is for a manifest abuse of its discretion. It is the function of the jury to determine the facts of the case; the duty of the court to determine and instruct the jury as to the law. If, therefore, there is evidence submitted sufficient to warrant the jury in finding a verdict, it cannot be set aside by an appellate court because there was conflicting testimony given by a greater number of witnesses. The weight of the evidence is not to be determined by the number of witnesses, nor is the verdict to be set aside because the greater number of witnesses testified against the finding. The credibility of witnesses is for the jury, and their manner, their motive, their bias, the inherent improbability of their story or the want of accurate recollection may discredit tlieir testimony and justify a jury in disregarding it altogether: Lautner v. Kann, 184 Pa. 334. The testimony of a witness when read may induce belief, but the manner and conduct of the witness on the stand may so discredit him as to justify the jury in excluding the testimony in the consideration of the case. It is the testimony impelling belief in the minds of the jury, and not the number of witnesses, which should control the decision of the disputed facts in the case.

We see no ground for convicting the court below of error in refusing to grant a new trial. There was testimony on the part of the plaintiff, which, if believed, warranted a verdict in his favor. Part of it came from eye witnesses who had an opportunity to see the whole occurrence. These witnesses were corroborated to some extent at least by other facts disclosed by the testimony. The jury, as it was their province, manifestly gave credence to the plaintiff’s fitnesses, and disbelieved the witnesses of the defendant so far as their testimony conflicted with the testimony of the plaintiff. There is no assignment alleging that the evidence was not sufficient to justify the court in submitting the case to the jury. The story of the plaintiff’s witnesses was not an incredible one nor inherently improbable. Apparently the only reason for disbelieving it would be that it was contradicted by a greater number of witnesses called by the defendant. As pointed out above, the preponderance of witnesses in number does not necessarily determine the weight of the evidence.

We do not think the conduct of the tipstaff, alleged to be a sufficient reason for a new trial, is to be commended. It was his duty to report to the judge or the court, if in session, any reasonable request of the jury. It was not for him to determine what action the judge would take, or whether the latter would sit on Sunday for the purpose of acting on the request. It is to be presumed that the judge was accessible, and whether it was on a weekday or a Sunday, if a request were made by the jury for further instructions, the tipstaff should have immediately communicated with the judge. But we fail to find in the testimony submitted on the rule any evidence that would warrant us in sustaining the contention of the appellant that the tipstaff was asked by the jury or any member of it to communicate a request for further instructions to the judge, and that his failure to do so had any effect on the jury. It is not at all clear from the deposition what was said by the jury to the tipstaff relative to the matter. It appears that one and possibly more of the jurors desired to be further enlightened about the testimony of a witness. But the deposition does not positively show that any one of the jurors or all of them directed the tipstaff to submit the matter to the judge. Nor does it appear that Juror Fisher told the tipstaff that his health would be endangered by the jury remaining out another night. There is no evidence to show that Fisher was not in good health and was not able for jury service. It appeared that the verdict was sealed and delivered to the court on the following day when all the jurors were present and consented thereto. Fisher made no objection to the verdict, nor did he bring to the attention of the court what was said in the jury room about the desire of the jury for further enlightenment as to the testimony of a witness. The learned judge of the court below did not consider the matter of sufficient importance to even mention it in his opinion overruling the motion for a new trial, and, in view of that fact and that Fisher’s testimony does not show that the alleged misconduct of the tipstaff had any effect on the verdict, we are not inclined to sustain this reason for granting a new trial.

If technically the court should have excluded Mr. Drake’s testimony as to the duties of a brakeman, it was, under the circumstances, harmless error to admit it. He testified to nothing that conflicted with the duties prescribed by tbe rules of tbe defendant company wbicb were in. evidence. The testimony, therefore, did the defendant no harm and its admission is not a sufficient reason for reversing the judgment. The third and fourth assignments are not sustained.

The judgment is affirmed.


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    Shoemaker v. Lehigh Valley Railroad Company, Appellant.

      Negligence — Railroads — Master and servant — Oar inspection.

    1. In an action by a brakeman against his employer, a railroad company, to recover damages for personal injuries resulting from a defective brake, the case is for the jury and a verdict and judgment for the plaintiff will be sustained, where the evidence shows that the defect in the brake was not patent and obvious; that the last inspection was nearly two months before the accident; that the only force applied at the inspection was about fifty pounds, while the necessary strain to which the brake was subjected in ordinary use was three times that weight; and that the plaintiff at the time of the accident only applied force enough to take up the slack in the brake chain, a force not nearly as great as ordinarily applied in setting the brake.
    2. A railroad company cannot be relieved from positive duty to properly inspect a brake by showing a servant employed for this purpose failed in the performance of his duties. The fellow servant rule has no application to such a case.
    Argued March 12, 1912.
    Appeal, No. 21, Jan. T., 1912, by defendant, from judgment of C. P. Bradford Co., May T., 1910, No. 418, on verdict for plaintiff in. case of Otis W. Shoemaker v. Lehigh Valley Railroad Company.
    Before Brown, Mestrbzat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Fanning, P. J.

      At the trial it appeared that the plaintiff was employed as a brakeman by the defendant, and that on October 4, 1909, while at work in the Sayre yards, and in the act of tightening a hand brake, the shaft broke, and the plaintiff fell to the ground and. was injured. Other facts appear by the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $3,208.32. Defendant appealed.

      Errors assigned were (1) refusal of binding instructions for defendant and (2) refusal of judgment for defendant n. o. v.

      R. W. Barrett, with him E. H. Boles, for appellant.
    The burden is upon the plaintiff to show that the defendant company had knowledge of the alleged break prior to the accident, or that the defect was such, that by reasonable inspection, it could have discovered it. In this, the plaintiff has failed, entirely in his proof: Service v. Shoneman, 196 Pa. 63; Kilbride v. Carbon Dioxide & Magnesia Co., 201 Pa. 552; McAvoy v. Penna. Woolen Co., 140 Pa. 1; Mensch v. Penna. R. R. Co., 150 Pa. 598; Dickerson v. Cent. R. R. of N. J., 189 Pa. 567; Phila. & Reading R. R. Co. v. Hughes, 119 Pa. 301; Mixter v. Imperial Coal Co., 152 Pa. 395; Becker v. Central R. R. of N. J., 3 North. County 402; Simpson v. Pittsburgh Locomotive Works, 139 Pa. 245; Allegheny Heating Co. v. Rohan, 118 Pa. 223; Bradbury v. Coal Co., 157 Pa. 231.
    Inspectors and brakemen or trainmen are co-employees or fellow-servants: Smith v. Potter, 2 Am. & Eng. R. R. Cases 140; Nashville, Chattanooga & St. Louis Ry. Co. v. Foster, 11 Am. & Eng. R. R. Cases 180; Mackin v. Boston & Albany R. R. Co., 15 Am. & Eng. R. R. Cases 196.

      April 15, 1912:

      Wm. 6r. Schrier, with him Chas. E. Mills, for appellee.
    It is not only the duty of the master to furnish to its servants suitable and safe appliances with which to work but to see that the appliances are adequately inspected, both visibly and manually as the case may be, from time to time to insure safety: Morton v. R. R. Co., 81 Michigan 423 (46 N. W. Repr. 111); Felton v. Bullard, 94 Fed. Repr. 781; Texas & P. Ry. Co. v. Allen, 114 Fed. Repr. 177.
    The fellow servant rule did not apply: McConnell v. Penna. R. R. Co., 223 Pa. 442.
   Opinion by

Mr. Justice Elkin,

The question for decision here is whether the case was for the jury under the facts. It turns upon the question of the adequacy of the inspection. The defect in the brakes which caused the accident was not patent and obvious and there is no evidence that appellant company knew of the defective condition prior to the accident. If the case rested on the question of prior knowledge of the defective brake there could be no recovery because there was no proof upon which to base such a finding, but that there was a serious defect in the brake is shown by what happened at the time of the accident. The general rule is that the master is not chargeable with knowledge of a latent defect in an appliance which an inspection would not discover, and this rule is relied on by appellant to relieve it from liability in the present case. The brake was inspected in a certain way, but the inspection did not disclose the defective condition. The controlling question, therefore, is whether the inspection which the company caused to be made is a complete bar to a recovery. Was it an adequate inspection, and who is to decide the question of adequacy? Is it to be determined by the court as a matter of law, or by the jury under proper instructions? The learned trial judge submitted it to the jury in a fair and impartial charge free from just criticism. No complaint is made as to the manner of the submission, the position of the appellant being that it should not have been submitted at all. In many cases, no doubt, the trial court would be warranted in saying as a matter of law, the inspection was adequate, and that there could be no recovery because the proofs did not disclose negligence. On the other hand, there are many cases in which it is the province of the jury to pass upon the adequacy of the inspection, and, to say under all the circumstances whether it was sufficient to protect those whose duties required them to make use of the appliance. It is true the master is not required to resort to tests which are impracticable, or unreasonable, or which would be incompatible with the proper transaction of his business, because such tests would make the master an insurer of absolute safety, which is not the law. But the master is bound to make a reasonably careful inspection of tools and appliances provided for the use of his servants, when they come into his hands, and his duty requires him to repeat such inspections from time to time and as frequently as may be necessary, having regard to the exigencies and risks of the business in which he is engaged. It is not essential that the employer should have actual knowledge of the defective appliance, but it is sufficient if he could have known it by the exercise of reasonable care and diligence in making inspections and repairs. The last inspection of the car and brake in question here was made on August 13, 1909, and the accident happened on October 4, 1909. The only force applied at the time of the inspection of the brake in question, as shown by the testimony, was about fifty pounds, while the necessary strain to which the brake was subjected when in ordinary use, was the whole weight of an able-bodied man, and at times a still greater force. In actual use the maximum force frequently applied was 150 pounds and more, a much greater force than was applied by the inspector in testing the brake. The plaintiff at the time of the accident only applied force enough to take up the slack in the brake' chain, a force not nearly as great as ordinarily applied in setting the brake. That it broke under so slight a strain clearly shows the defective condition, and, in our view of the case, the facts were sufficient to warrant the jury in drawing an inference that the defect would have been discovered if the inspection had been adequate. This view finds support in Morton v. R. R. Co., 81 Mich. 423; Felton v. Bullard, 94 Fed. Repr. 781; Texas & P. Railway Co. v. Allen, 114 Fed. Repr. 177; Phila. & R. Railroad Co. v. Huber, 128 Pa. 63. We therefore conclude that the case was for the jury on the question of the adequacy of the inspection, and we find no error in the manner of its submission.

The second position of appellant, that the injuries complained of were occasioned by the negligence of a fellow servant for which the company is not liable, is without merit under the facts of this case. This branch of the case is ruled in principle by McConnell v. Railroad Company, 223 Pa. 442. The master cannot be relieved from a positive duty to properly inspect by showing that a servant employed for this purpose failed in the performance of his duties.

Judgment affirmed.