text:
    Shaffer v. Beaver Valley Traction Company, Appellant.

      Negligence — Street railroads — Streets—Obstructions—Failure to warn —Contributory negligence — Exposure to danger.

    1. In an action for damages for the death of plaintiff’s husband against a street railway company, the plaintiff offered evidence that the defendant company had excavated a strip eleven feet wide in the highway alongside their existing track, which occupied one side of the street, thus leaving a strip of undisturbed paving only seven feet wide between the opening and the curb; that deceased and a companion were led to attempt to pass with a loaded wagon over this narrow strip by the defendant’s failure to bar the whole width of the street, and by circumstances making it seem that this was the proper highway; that the wagon upset while the deceased, standing in the excavation, and his companion, who was leading the horse, were endeavoring to get it out of the hole into which it had slipped; that just as it was falling over, one of the defendant company’s cars ran past and stopped; and that deceased was then found under the trucks of the car, dead. Held, that the case was for the jury, and the evidence sufficient to sustain a verdict for the plaintiff.
    2. Where a man finds himself placed in a dangerous position by the negligence of another, without his fault, and on striving to extricate himself, not having time to deliberate, happens to select a method not the best, which if he had had time to consider, he might not have taken, the law will not impute contributory negligence to him as readily as if he had had time to choose with judgment.
    Argued Oct. 11, 1910.
    Appeal, No. 148, Oct. T., 1910, by defendant, from judgment of C. P. Beaver Co., June T., 1907, No. 190, on verdict for plaintiff in the case of Mathilda Shaffer v. Beaver Valley Traction Company, operating the Freedom and Conway Street Railway.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin and Moschzisker', JJ.
    Affirmed.
    Trespass for death of plaintiff’s husband.
    The facts appear in the opinion of Holt, P. J., overruling motion for judgment non obstante veredicto as follows:
    i In this case the plaintiff averred negligence on the part 5 of the defendant company in making an excavation in Third avenue, in the borough of Freedom, for the purpose of laying a second track, and not properly barricading and putting up signals on it. to protect the public from injury while using said street; and that the plaintiff’s husband, who was not acquainted with the said street, was passing along the same, on the night of October 27, 1906, and while exercising due care, by reason of the absence of sufficient barricades and proper signals to give him warning of the danger, and while endeavoring to extricate himself from a perilous position, and without fault or negligence on his part, was struck by one of the cars operated by the defendant.
    For some time prior to the accident the defendant was engaged in constructing a second track in the borough of Freedom for its street railway. The track in operation at that time was on the southerly side of Third avenue at the point in question. The space lying between the said track and the curb on the northerly side of the said highway was paved with fire bricks, and was ordinarily used by the public. For the purpose of laying the second track, the bricks between the easterly rail of the said track and a point about seven feet from the northerly curb line on said street were taken up, and an excavation made some nineteen inches in depth for the full width thereof, leaving about seven feet of space between the edge of the excavation and the curb on the eastwardly side of said highway.
    On the night in question, the plaintiff’s husband, and one John J. Graham, came from a point in Allegheny county, with a one-horse wagon load of moving, and reached the southerly end of the said excavation after dark. During the time said work was in progress, the public travel had been directed upon the existing street car track. The track laid upon said street was so close to the southerly side of said highway that there was no room to drive between the poles on the south side of said street and the said track. Part of the earth that had been taken from said excavation was thrown to the southerly side of the existing track, in heaps, and at a few places along the line of the said track passing places for vehicles were made between the property line south of the said existing track. The said excavation extended in under the ends of the ties of the track that was already upon the highway. The space lying between the easterly curb line and the edge of the said excavation was used by persons in the employ of the defendant in hauling the earth taken from the said excavation, so that there appeared to be a beaten track near the southerly end of the said excavation, leading from the said seven-foot space of pavement to the track of the defendant company. When the plaintiff’s husband and the said John J. Graham approached the southerly end of the said excavation, according to the testimony offered in behalf of the plaintiff, they saw the excavation, the earth that had been taken therefrom and piled southwardly of the said track, a red lantern resting on a tie near the said track, and a barricade immediately opposite the end of the said excavation, and that there was no barricade to the entrance upon the seven-foot strip of paved street lying next to the northerly curb line. They also noticed what appeared to be a definite or defined way leading across from the existing track to the said paved space next to the northerly curb line, and, believing that the seven-foot space of pavement to the right was intended as the proper driveway for persons proceeding northwardly on said highway, the husband of the plaintiff and the said Graham entered upon the said piece of pavement, the plaintiff’s husband getting down into the excavation for the purpose of observing whether or not the wheels of the wagon would come too close to the edge, so as to warn Graham, who led the horse on the paved part of the street. After proceeding about 100 feet along the street, they came to a trolley pole, or pole of some kind, that was placed some inches beyond the curb line in the street, which necessitated Graham leading the horse closer to the excavation, in order to pass the said pole, and as he did so the hind wheel of the wagon caused the pavement to cave in, and the wheel to go over into the excavation. Some bricks were placed under the wheel, and in front of it, in an effort to bring the wheel back to the part of the paved street, the husband of the plaintiff remaining in the excavated part of the street to see whether or not the wheel would properly mount the brick. When Shaffer started the horse the wagon with the load of moving upset, and just as the wagon was falling over, one of the cars of the defendant went past and stopped a short distance therefrom. Graham was under the impression that Samuel Shaffer, the plaintiff’s husband, was under the load of moving, and called to those in charge of the car to render him assistance to get him out. It was found, however, that Shaffer was under the front truck of the defendant’s car, and when he was taken out he was dead. The plaintiff’s theory of the accident is, that Samuel Shaffer in an effort to escape injury from the falling wagon and the load of moving sprang suddenly up on the street car track, just as the car was approaching, and that he was run down and killed by it. There is no evidence to show how Shaffer got on the track. The motorman testified that just as he was passing the wagon he noticed something falling towards the car.
    The defendant’s evidence tended to prove that the whole of the said street, except the part occupied by the street car track, had been securely barricaded, and red lights placed on such barricade early in the evening of the day of the accident, and that such other precautions were taken as to properly warn the traveling public as to the dangerous condition of the said highway. The defendant also takes the position that the plaintiff’s husband was guilty of contributory negligence in placing himself in the position in which he was immediately preceding the falling of the wagon and the load of moving, and in entering upon the part of the said highway lying between the track and the curb on the northerly side of the said street. On the question of contributory negligence this is a very close case. We are not satisfied, however, that contributory negligence was conclusively proven. We think that it was a question for the consideration of the jury. As to the question of barricades and lights, there is no doubt in the mind of the court about the sufficiency of the evidence to carry the case to the jury. It was clearly the province of the jury to determine whether or not the plaintiff’s husband was guilty of contributory negligence in entering upon that part of the highway between the defendant’s track and the curb on the easterly side of the street. The main difficulty arises as to the alleged negligence of Samuel Shaffer after the wheels of the wagon slipped over the edge of the embankment into the excavation. It was for the jury to determine whether or not the defendant by its negligence put the plaintiff’s husband in a perilous position, or in the position in which Shaffer and Graham were at the time. If it did, it seems to us that it was also for the jury to decide whether or not Shaffer did what a reasonably prudent and cautious person would have done in the circumstances, or failed to do something in the circumstances which such a person would not have failed to do. Did Shaffer, in an instinctive effort to protect himself from the falling wagon and load of moving, and without fault on his part, make an error of judgment, and spring suddenly upon the track of the defendant, and receive the injury which caused his death? This was, we think, a matter peculiarly within the province of the jury to determine.

      Where a man finds himself suddenly placed in a dangerous position by the negligence of another, without his fault, and in order to extricate himself from such danger, not having time to deliberate and judge the best way of so doing, happens to select a method of doing so which was not the best, and which, if he had time to consider, he might not have taken, the law would not impute to him contributory negligence so readily as if he had time to choose with judgment. All that it requires of him is to do as a prudent man would do under the circumstances : Kreider v. Lancaster, Elizabethtown & Middletown Turnpike Co., 162 Pa. 537.

      Error assigned was in refusing binding instructions for defendant and in overruling motion for judgment non obstante veredicto.

      D. A. Nelson, for appellant.
    The case is ruled by the principle of Winner v. Oakland Twp., 158 Pa. 405, and Pittsburg Southern Ry. Co. v. Taylor, 104 Pa. 306.
    The deceased assumed the risk: Hill v. Twp. of Tionesta, 146 Pa. 11; Penna. R. R. Co. v. Werner, 89 Pa. 59; Twp. of Crescent v. Anderson, 114 Pa. 643; Forks Twp. v. King, 84 Pa. 230.
    The accident was not a natural and probable consequence of the alleged negligence: Chittick v. P. R. T. Co., 224 Pa. 13; Huston v. Fremansburg Boro., 212 Pa. 548.
    The proximate cause of the injury was plaintiff’s lack of prudence: Herr v. City of Lebanon, 149 Pa. 222; Sprowls v. Morris Twp., 179 Pa. 219.

      J. Sharp Wilson, with him Thomas M. Marshall and ■Body P. Marshall, for appellee.
    The deceased was not bound to use the very best judgment, having been placed in a position of difficulty by the act of the defendant, and was in no fault if he acted in good faith and with reasonable prudence: Penna. R, R, Co. v. Werner, 89 Pa. 59; Malone v. R. R. Co., 152 Pa. 390; Ham v. Canal Co., 155 Pa. 548; Kreider v. Turnpike Co., 162 Pa. 537.
    January 3, 1911:
    A negligent act may be the proximate cause of an injury, though not the sole or immediate cause, where the intervening act is set in motion or evidenced by the negligent act and the consequence is one that should have been foreseen: Dannenhower v. W. U. Tel. Co., 218 Pa. 216; Plymouth Twp. v. Graver, 125 Pa. 24; Cameron v. Citizens’ Traction Co., 216 Pa. 191; Eagle Hose Co. v. Electric Light Co., 33 Pa. Superior Ct. 581.
   Per Curiam,

The judgment is affirmed for the reasons stated in the opinion of the learned judge of the common pleas in discharging the rule for a new trial.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Fox, Appellant, v. Loller.

      Appeals — Opening judgment — Review.
    1. The judge of the common pleas is in the best situation to reach a correct conclusion from conflicting testimony upon a rule to open a judgment, and his order opening a confessed judgment will not be reversed except for manifest error.

      Judgment — Promissory notes — Judgment by confession — Fraud,— Findings of fad.

    2. An order opening a judgment entered by confession based on a finding that the testimony tended to establish a combination on the part of the plaintiff and others to obtain notes for large sums without giving real value therefor, is fully justified by evidence that the defendant was an infirm old man, in a measure incapacitated for the intelligent transaction of business; that he had been induced by plaintiff and others to join with them in business enterprises of which he had no knowledge; that his son-in-law, whose business experience was limited and who had joined with plaintiff in some of these enterprises, was his adviser and attorney in fact; and that plaintiff procured from defendant over $11,000 in money and notes for $200 000 in return for worthless stocks.

      Argued Oct. 12, 1910.
    January 3, 1911:
    Appeal, No. 53, Oct. T., 1910, by equitable plaintiff, from order of C. P. Green Co., Nov. T., 1903, No. 38, making absolute rule to open judgment in case of A. E. Fox, for the use of John A. Howard, Receiver of the First Citizens’ Bank of Cameron, v. Lizzie B. Loller, Administratrix of W. J. Bryan, deceased.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Rule to open a judgment entered by confession on a note containing a warrant of attorney. Before Holt, P. J., specially presiding.
    The facts appear in the opinion of the Supreme Court.

      Error assigned was in making the order opening judgment, which order was as follows:
    “Now, December 30, 1909, this case came on to be heard on petition, answer and evidence taken upon rule, and after argument of counsel, upon due consideration, it is ordered, adjudged and decreed that the judgment in this case be and the same is hereby opened and the administratrix of the estate of W. J. Bryan, the defendant, is let into a defense. It is further ordered that the note as filed shall stand in lieu of a declaration, and that the petition to open judgment shall stand in lieu of an affidavit of defense, and that the case shall upon the entry of a plea by the defendant be at issue without further pleadings on the part of either party, and that the issues so made shall be tried by a jury of the country.”

      James E. Sayers and Walter Lyon, with them T. S. Riley and Alfred Caldwell, for appellants.

      D. S. Walton, with him W. A. Hook, for appellee.
   Per Curiam,

This appeal is from an order making absolute a rule to open a judgment for $5,000 entered by confession on a note containing a warrant of attorney. The note was one of ten notes given at the same time and in the same transaction, amounting in all to $82,000. A rule to show cause was granted in each case and the rules were all made absolute. By agreement, the decision in this appeal is to govern all the cases. We have examined the voluminous testimony in support of and against the rules fully enough to ascertain that there was testimony, which if believed, sustains the action of the court. The judge of the common pleas is in a much better position to reach a correct conclusion from conflicting testimony than we are, and his order opening a confessed judgment will not be reversed except for manifest error: Massey v. Blair, 176 Pa. 34.

The main features of the case disclosed by the testimony were these: The defendant was an old man, mentally and physically weak and in a measure incapacitated for the intelligent transaction of business. He was induced by the plaintiff and others associated with him to join with them in a number of business enterprises of which he had no knowledge; his adviser and attorney in fact was his son-in-law, who had joined with the plaintiff and his associates in some of these enterprises and whose business experience and knowledge was such as he acquired in his vocation as a singing school teacher. The net result was that the plaintiff and his associates procured from the defendant $11,000 in money and his notes for over $200,000. He in return received from them nothing but worthless stocks in corporations in which they were interested. The learned judge who heard the case found that the testimony tended to establish a combination on the part of the plaintiff and others to obtain the notes of the defendant for large sums of money without giving any real value therefor. This finding is sustained by the testimony and fully justifies the order made.

The judgment is affirmed.


author: Mr. Justice Mestrezat,

text:
    Thompson’s Estate.

      Wills — Intention of testator — Certainty of language — Expenses of administration — Widow’s exemption — Intestacy.
    1. Where there is no ambiguity or uncertainty in the language used by a testator in disposing of his estate, and no conflict in the different provisions of the will, his intention must be ascertained from the words employed in the will; and no rules of construction, or general scheme of distribution attributed to the testator, can be permitted to defeat it.
    •2. Where a testator has first provided for his wife, giving her one-half of all his personal property less $2,500, the income from the real estate until same is sold, and the use of his house, following this with certain pecuniary bequests to collaterals, and concluding with separate directions to the executors to sell the personal property as soon as convenient, and to sell the real estate as soon as they think best, with power to dispose of it in fee or for a term of years, the widow, by accepting the terms of the will, is entitled under its provisions to one-half of the whole personal estate which the testator owned. If the remaining half is in excess of the amount required to pay the pecuniary legacies, debts, expenses, and the widow’s exemption, the widow’s share is undiminished by expenses of administration, and unreduced by the payment of any part of the exemption.

      Widow’s election — Undisposed residue — Intestacy.
    3. The election of a widow to take under the will of her deceased husband is in lieu of her interest in the part of the estate as to which there is a testacy, and does not deprive her of her right to a share in the residue undisposed of, but as to which there is an intestacy.

      Real Estate — Direction to sell — Reconversion.
    4. In the settlement of an estate where there is an intestacy as to the real estate, the mere direction to sell is for convenience of distribution among the parties under the intestate laws, and therefore does not work a conversion so as to change the course of inheritance, and the proceeds must be distributed as land.

      Practice, O. C. — Administration—Blending of accounts.

    5. It is bad practice to blend administration and distribution accounts. The orphans’ court should of its own motion refuse to confirm an administrator’s account which contains items of distribution.

      Wills — Intestacy—Presumption.
    6. Where a testator makes provisions for his wife and directs the payment of certain money legacies and in a later provision directs the sale of Ms real estate, but fails to dispose of a residue of the personal estate and any part of the proceeds of the real estate, there is an intestacy as to such residue and proceeds, notwithstanding the presumption against intestacy.
    Argued Oct. 12,1910.
    Appeals, Nos. 21 and 41, Oct. T., 1910, by Martha A. Thompson, widow, and Eliza Martindell, sister oí the testator, from decree of O. C. Washington Co., May T., 1908, No. 81, dismissing exceptions to adjudication in Estate of Jackson L. Thompson, deceased.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Exceptions to adjudication. Before Taylor, J.
    The facts appear in the opinion of the Supreme Court.

      Errors assigned on behalf of the widow, appellant, were among others, in dismissing exceptions to auditor’s supplemental report, as follows:
    1. The auditor erred in deducting the executors’ commissions and other expenses from the total estate before allowing the widow’s legacy.
    2. The auditor erred in distributing the residue to collateral heirs in not allowing widow one-half the residue.
    6. The auditor erred in deducting the widow’s $300, exemption before allowing her legacy, thus taking one-half of $300, from her legacy.

      Error assigned on behalf of the sister, Eliza Martin-dell, appellant, among others was in overruling exception to auditor’s supplementary report, as follows:
    11. The auditor erred in awarding to Mrs. Eliza Martin-dell the sum of $2,053.91, which was less than the amount to which she was by law entitled.

      B. W. Irwin, with him E. G. Wilson, Thomas Patterson, and James A. Wiley, for Martha A. Thompson, appellant.
    The testator clearly intended personalty to embrace his property of every description, which intent will rule: Jacobs’s Est., 140 Pa. 268; Metz v. Metz, 7 Pa. Dist. Rep. 194; McClure’s App., 72 Pa. 414; Painter, v. Painter, 220 Pa. 82.
    January 3, 1911:
    The presumptions against intestacy apply only to cases of doubtful construction and where the words of the will clearly do not cover the entire estate, they cannot be enlarged by construction: Bredlinger’s App., 2 Gr. 461; Schmidth’s Est., 183 Pa. 641; Ryon’s App., 124 Pa. 528; Filbert’s Est., 195 Pa. 295.
    The fact that the widow is given a legacy in no way interferes with her right to share in the residue of which testator died intestate: Darrah v. McNair, 1 Ashmead, 236; Carman’s App., 2 Pennypacker, 332; Act of April 8, 1833, P. L. 315.

      Norman E. Clark, with him Winfield Mcllvaine, for Eliza Martindell, appellant, and appellee,
    cited: Bruckman’s Est., 195 Pa. 363; Shedden’s Est., 210 Pa. 82; Jackson’s App., 126 Pa. 105.
   Opinion by

Mr. Justice Mestrezat,

Jackson L. Thompson died December 14, 1906, testate leaving to survive him a widow, Martha A. Thompson, two sisters, Eliza Martindell and Permelia Hanna, and several collateral heirs. His will was dated November 12, 1906, probated December 26, 1906, and letters testamentary were granted to the executors named therein.

After directing his body to be decently interred in the Beallsville cemetery and that a suitable monument be erected, and without directing the payment of his debts and the expenses of administration, the will provides: "As to such estate as it hath pleased God to intrust me with I dispose of the same as follows, viz.: — I give and bequeath to my beloved wife Martha A. Thompson, one-half of all my personal property, less twenty-five hundred dollars which is one-half of her personal estate, all my household furniture, one-half of the income from my real estate, until said real estate is sold. And the use of my house which I now occupy so long as she desires to live therein, free of rent and taxes.” This provision is followed by certain pecuniary bequests to his sisters and others aggregating $40,200, with the direction that $1,000 of each of sixteen of the legacies of $2,000 each, shall be paid within one year after his decease, and the balance after the estate is settled up. The will then provides as follows: “I direct that all my personal property be sold by my executors, hereinafter named, as soon after my decease as convenient. As to such real estate as I shall die seized and possessed of I order and direct to be sold by my executors hereinafter named as soon as they think best and to effectuate this my intention I do hereby vest in my said executors full power and authority to dispose of my real estate in fee simple or for a term of years or otherwise in as full and large a manner in every respect as I could myself do, if living.”

With the will was filed an election by Martha A. Thompson, the widow, dated December 25, 1906, to “accept under the will of my deceased husband.”

Accounts were filed by the executors on February 12, and April 13, 1908, showing the gross personal assets of the estate to be $98,541.81, and the proceeds of real estate to be $8,537.50. The total debts and expenses, as disclosed by the accounts, were $9,136.38, leaving a net balance of personal estate for distribution of $89,405.43.

An auditor was appointed to make distribution of the fund in the hands of the executors. In making the distribution, the auditor held under his interpretation of the will, that the testator did not die intestate as to any part of his estate; that one-half of the entire estate, less $2,500, should go to the widow, then the other legacies and the expenses of settling his estate should be paid, and the residue should go to the next of kin exclusive of the widow. He held that the realty was converted by the terms of the will to personalty, the one-half of which was bequeathed to the widow. Exceptions to the report were filed by the widow, alleging error in not reducing the executors’ commissions and in not awarding her the interest which had accrued since the filing of the executors’ accounts. Exceptions were also filed by Mrs. Eliza Martindell, one of the surviving sisters of the testator, who alleged that the auditor had erred in awarding to the widow any part of the proceeds of the real estate and in awarding to her one-half of the personal estate without any deduction for debts, expenses of administration, etc. The court sustained the widow’s exceptions to the extent of reducing the executors’ commissions, and also sustained Mrs. Martindell’s exceptions and directed the debts and expenses of administration to be deducted from the fund before allotting to the widow the one-half of the personal estate. The widow and Mrs. Martindell have both appealed to this court.

Numerous assignments of error have been filed by each of the appellants but we need not consider them seriatim. The questions raised by the assignments require the construction of the testator’s will, and the fund for distribution, the estate of the testator, must be distributed in accordance with the proper interpretation of the instrument.

There is no occasion to invoke the aid of artificial rules of construction in the interpretation of the testator’s will. There is no ambiguity or uncertainty in the language used by him in disposing of his estate. Hence, his intention must be ascertained from the words employed in the will, and neither surmises as to such intention nor the application of rules of construction can be permitted to defeat it. While it is true that in construing any part of a will the entire instrument must be considered, yet this rule, like all other rules of interpretation, is only available when a necessity for its application arises. There can be no such necessity when the testator uses language that is plain and certain in its meaning, and there is no conflict in the different provisions of the will. A general scheme of distribution cannot be attributed to the testator which will defeat the intention to dispose of the estate clearly disclosed by the plain and express language of the will.

In the case at bar the testator first provides for his wife. He gives her one-half of all his “personal property,” less $2,500, all of his household furniture, one-half of the income from his real estate until it is sold, and the use of his home so long as she desires to live there. In no other part of the will does he refer to his wife, or make any provision for her. Standing alone, these bequests are as plain as language can make them. If the testator had concluded the instrument with these provisions of the will, there certainly could be no difficulty in ascertaining his intention, or what part of the testator’s estate the legatee took. This must be conceded. In addition to the other bequests .contained in this paragraph, the widow takes the one-half of the personal estate which the testator had at the time of his death. That is, she is entitled to one-half of his goods, chattels, securities and moneys. Under no pretense could the words “personal estate” have been construed to include the real estate, so as to give her the one-half of it. The testator knew that he was possessed of both personal and real estate, and he recognized the distinction between them. There is nothing, however, in the language of the bequest that confers upon the widow the right to participate in the real estate or its proceeds. Instead of bequeathing her the one-half of the personal estate, he might have specified the particular personal property which he possessed, and the one-half of which he gave her, but his bequest is sufficiently specific to limit it to personalty, and to exclude her from participation in the realty.

It is contended by the widow, and it was so held by the orphans’ court, that the personal property bequeathed the widow in the first paragraph of the will includes the proceeds of his real estate; that the subsequent direction to the executors to sell the real estate worked a conversion and the proceeds became personal property within the meaning of the bequest to the widow; and that, therefore, she was entitled to one-half of such proceeds in addition to the one-half of the personal property. But this contention we do not deem tenable. It is not supported by a proper interpretation of any part of the will, and rests upon a misapprehension of the purpose of the testator in directing his executors to sell his real estate. After he had bequeathed the one-half of his personal property to the-widow in the first part of the will, the testator subsequently and in the latter part of the instrument directed his executors to sell both his personal and real estate. All the bequests contained in. his will were made prior to the direction to sell the property. The purpose the testator had in view in directing the real as well as .the personal estate to be sold was for distribution. The widow would be entitled to one-half of the proceeds of the personal property. The testator may have supposed that it would require the proceeds of the real estate to pay the other legacies given in the will. He had no thought of converting the real estate into personal property for the purpose of bringing it within the terms of the bequest to his widow. If such had been his intention, he could and doubtless would have directed in the first instance the sale of all his personal and real property, the proceeds to form a common fund, and would have bequeathed the one-half of it to his widow. This, however, he did not do.

It is contended and so held by the court below that it was the intention of the testator to put the proceeds of the sale of the property in a common fund, and dispose of the entire estate as money, because “he directs that both his personal and real estate should be sold.” We do not think the mere direction to sell the personal and real estate warrants the conclusion that he intended to make a common fund of the proceeds of sale, and distribute the proceeds of the real estate as personalty. It is inconceivable that he would have undertaken to accomplish this purpose in the indirect method pursued in the will, when he could briefly have bequeathed her the one-half of the whole estate. Throughout the instrument he recognizes the distinction between his personal property and real estate. He does this in the very paragraph in which he makes the bequests to his wife, and in connection with the bequests. He gives her the one-half of the personal property, and the one-lialf of the income from his real estate. Subsequently, and after the bequest of all the legacies, he directs, in separate clauses, his executors to sell his personal property and his real estate, but does not direct the application of the proceeds of either, nor state a purpose for converting the property into money. Neither does he indicate in any part of the will an intention to distribute the proceeds of the real estate as personal property.

We think the widow is entitled to the one-half of the whole personal estate which the testator owned at the time of his death. There is no more reason why it should pay the debts and the expenses of administration of the estate than the other legacies. The amount of her legacy was made certain by the language used, the one-half of the personal estate, and the will having directed the personal estate to be sold, the testator contemplated his widow receiving one-half of the proceeds of the sale. By this means the amount of the legacy was definitely fixed, and the other one-half of the personal estate being sufficient to pay all the pecuniary legacies, the debts and the expenses of administration, the widow’s legacy cannot be diminished by the payment of the debts and expenses out of her share of the estate. We think this interpretation will carry out the intention of the testator. He bequeathed his widow “one-half of all my personal property,” and unless the full one-half, undiminished by the debts and expenses of administration of the estate, is received by her, the manifest intention of the testator will be defeated.

The Act of April 14, 1851, P. L. 612, 1 Purd. 1092, provides that the widow of any decedent, dying testate or intestate, may retain property belonging to the estate to the value of $300. As there is sufficient personal estate to pay this exemption and all the legacies, including that of the widow, it follows that the widow’s legacy cannot be abated or reduced by requiring any part of the exemption to be paid out of it. With equal reason, the other legacies should pay their proportionate part of the exemption, but it has not been suggested that they are subject to abatement for that purpose.

The account of the executors shows that the proceeds of the personal property are in excess of what is required to pay the debts, expenses of 'administration, and the legacies, including the widow’s legacy. As the testator did not direct otherwise, the law requires that they be paid out of the personal estate. This leaves a residue of the personalty and all the proceeds of the real estate to be disposed of. There is no residuary clause in the will, and the testator has not otherwise provided for the distribution of the residue of the estate. It is clear, therefore, that as to this fund there is an intestacy. The- testator may or may not have intended to dispose of it, or may have thought he had done so, but in view of the fact that he did not devise or bequeath it, it is idle to speculate on his intentions. We must assume that he intended to die intestate as to the undisposed part of his estate. The court cannot conjecture the testator’s intentions and supply the omission. The presumption that he did not intend to die intestate as to a part of his estate, must fall when confronted with the fact that he did die intestate as to that part of the estate. There being an intestacy as to the residue of the estate, including all the real estate, it must be distributed to those entitled under the intestate laws of the commonwealth. The election of the widow to take under the will does not deprive her of the right to a share of the residue of the estate, of which the testator died intestate. The bequest to the widow was not a fractional part of the whole estate bequeathed in lieu of dower, as in Jackson’s App., 126 Pa. 105, but was a bequest of an interest in part of the testator’s personal property. Her election to take the legacy under the will was in lieu of her interest in the part of the estate as to which there was a testacy, but not as to the part of the estate as to which there was an intestacy: Carman’s App., 2 Penny. 332; Reed’s App., 82 Pa. 428; De Silver’s Est., 142 Pa. 74.

We have held that the bequest to the widow of one-half of all the testator’s personal property did not include the proceeds of the real estate, and as to that he died intestate. As pointed out above, the direction to sell the real and personal estate was in two separate clauses of the will, and there was no intention to produce a common fund for distribution. In neither instance did the testator direct the sale for any specific purpose, or direct the manner in which the proceeds should be applied or distributed. If he had devised the proceeds of the real estate to specific legatees, it is clear that they could have elected to take the land as such. As there was an intestacy as to the real estate, the mere direction to sell was for the convenience of distribution among the parties entitled under the intestate laws, and, therefore, did not work a conversion so as to change the course of inheritance: Glentworth’s Est., 221 Pa. 329; Painter v. Painter, 220 Pa. 82. In the former case it is said (p. 331): “The direction to sell was merely for convenience of distribution, and as conversion never operates, except to carry out the intention of the testator, it could not in this case alter the course of inheritance.” The proceeds of the real estate, therefore, must be distributed as land.

The widow is entitled to interest on her legacy, if we understand the facts correctly, but it is claimed that it was allowed. The court’s opinion on the exception to the auditor’s report gives us no light on the subject. The matter can be adjusted when the case is remitted to the orphans’ court.

We desire to direct attention to the improper practice which seems to prevail in the court below in regard to blending administration and distribution accounts. Both accounts are open to this criticism, and by reason of it our work has been made more laborious in reviewing this record. On both the debit and credit sides of the two accounts, items of administration and distribution are mixed with each other. The distribution account as filed is not even a separate account attached to the administration account, but the items of administration and distribution are all in the same account. Neither account shows, as it should, the balance for distribution after the payment of the debts and expenses of administration. Of this practice Chief Justice Gibson said more than half a century ago, in Yundt's Est., 6 Pa. 35, 36: “An absurd, but favorite notion prevails among those who have to do with the settlement of estates in the orphans’ court, that it is not only possible, but preferable, to blend a distribution account with the administration account; and thus settle the whole estate at a dash. Those who suppose so know little of the mischiefs of confusion, or the value of order.” We have uniformly condemned the practice. Items of distribution are not properly a part of an administration account, and the decree of confirmation is not conclusive evidence of their payment. The orphans’ court may and should of its own motion refuse to confirm such an account.

We are of opinion that:

1. The widow is entitled to the one-half of the personal property or its proceeds, less $2,500, excluding' the proceeds of- the real estate, together with the household furniture, one-half of the income of the real estate until sold, and the use of the house, free of rent and taxes.

2. The widow’s legacy should not be reduced by deducting therefrom her exemption of $300 or any part thereof. The exemption must be paid out of the other one-half of the proceeds of the personal estate.

3. The will did not work a conversion of the real estate so as to make it personalty for any purpose, and it must be distributed as real estate, the widow being entitled to her share thereof under the intestate laws.

4. The testator died intestate as to the real estate, and the residue of the personal estate undisposed of by his will.

In so far as the matters complained of in the assignments of error in both appeals are not in accord with the views above expressed, the assignments are sustained and the decree is reversed and the record is remitted to the orphans’ court of Washington county to make distribution in accordance with this opinion. The costs of these appeals to be paid out of the personal estate fund for distribution.


author: Mr. Justice Brown,

text:
    Toward v. Meadow Lands Coal Company, Appellant.

      Negligence — Master and servant — Mines and mining — Defects in works or plants — Act of June 10, 1907, P. L. 523.

    1. No employer is exempt from the operation of the Act of June 10, 1907, P. L. 523, so far as it relates to delects in the works or plant under his direct control, and of which defects he can have knowledge by the exercise of ordinary care.
    2. Mule holes in mines, made for the purpose of preventing mules, while not working, from straying and being a source of danger to employees on mine cars, are part of the works of the mine owners, and failure to provide bars, gat es or hitching posts to keep the mules in is a failure of duty by the mine owner, and a “defect in the works” under the act of 1907 which, if found to have caused or contributed to the injury of an employee, renders the owner liable regardless of proof of negligence of a coemployee.
    Argued Oct. 12, 1910.
    Appeal, No. 47, Oct. T., 1910, by defendant, from judgment of C. P. Washington Co., May T., 1909, No. 93, on verdict for plaintiff in case of Gertrude B. Toward v. Meadow Lands Coal Company.

      Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass for death of plaintiff’s husband. Before McIlvaine, P. J.
    The facts appear in the opinion of the Supreme Court.
    The defendant presented the following point:
    If the jury find that said Miller discovered soon after he left the mule in the mule hole, that the mule had disappeared from the mule hole where he had left it unfastened, and did not look it up himself, or inform its driver or the boss-driver of its disappearance (the driver and boss-driver being in his immediate neighborhood in the mine), and he, knowing that the motor was being operated that day and that it might soon be run past the open end of the mule hole, then the accident in which the plaintiff’s husband was killed was the result of the carelessness of the fellow servant, Miller, and no negligence therefor could be attributed to the defendant company, and the verdict of the jury should be for the defendant. Answer: This point as a whole is refused. The fact that the carelessness of the fellow servant, Miller, was the cause of the accident does not relieve the defendant from liability, if it in any of the ways pointed out in the act of June 10, 1907, contributed to the injury. If the carelessness of Miller recited in the point was the sole cause of the injury of the deceased, then the verdict should be for the defendant. [2]
    Verdict for plaintiff in the sum of $4,833.33, and judgment thereon. Defendant appealed.

      Errors assigned among others was (2) in refusing defendant’s point as above.

      Boyd Crumrine and J. C. Boyer, with them E. E. Crumrine, for. appellant.
    In the absence of evidence that it was necessary, proper and customary that mule holes should be furnished with bars or gates, the employer is not bound to provide them: North Central Ry. Co. v. Husson, 101 Pa. 1; Titus v. R. R. Co., 136 Pa. 618.
    January 3, 1911:
    The accident was the direct result of the negligence of a fellow servant: Lehigh Valley Coal Co. v. Jones, 86 Pa. 432; Keystone Bridge Co. v. Newberry, 96 Pa. 246; Redstone Coke Co. v. Roby, 115 Pa. 364; Spees v. Boggs, 198 Pa. 112.

      B. B. Barr, with him John F. Cox and Albert S. Sprawls, for appellee.
    The mule holes were part of defendant’s plant or works, within the meaning of the act of June 10, 1907: Yarmouth v. France, L. R. 19 Q. B. D. 647; Ryalls v. Mechanics’ Mills, 150 Mass. 190 (22 N. E. Repr. 766).
   Opinion by

Mr. Justice Brown,

The husband of the appellee was a motorman in charge of an electric motor car in one of the mines of the appellant. On January 7, 1909, as he was taking this car along the main entry towards the shaft, it ran into a mule on the track and he was thrown from his seat and killed. That the mule got on the track as the result of the negligence of some one is a self-evident proposition. It had been placed temporarily in a mule hole a short time before by one of the drivers, and, not having been fastened, strayed out on the track. There was no bar or gate across the mule hole, and whether there was a post inside of it to which the mule could have been tied was a disputed question of fact. The jury might fairly have found from all the testimony in the case that the sole efficient cause of the collision between the motor car and the mule, which resulted in the death of the motorman, was the negligence of Miller, a coemployee of the deceased, in putting the mule in the hole and leaving it there unhitched, contrary to the orders that had been given to him by his superiors; and they were instructed that, if they should so find, the plaintiff could not recover. But a further instruction to them was, that even if they should find Miller to have been negligent, and at the same time should find that the defendant had been negligent in not providing means for keeping the mules safely in the mule holes when not at work, such negligence on the part of the defendant would make it liable under the Act of June 10, 1907, P. L. 523, which provides, "That in all actions brought to recover from an employer for injury suffered by his employee, the negligence of a fellow-servant of the employee shall not be a defense, where the injury was caused or contributed to by any of the following causes: namely, — Any defect in the works, plant, or machinery, of which the employer could have had knowledge by the exercise of ordinary care; the neglect of any person engaged as superintendent, manager,, foreman, or any other person in charge or control of the works, plant, or machinery; the negligence of any person in charge of or directing the particular work in which the employee was engaged at the time of the injury or death; the negligence of any person to whose orders the employee was bound to conform, and did conform, and, by reason of his having conformed thereto, the injury or death resulted; the act of any fellow-servant, done in obedience to the rules, instructions, or orders given by the employer, or any other person who has authority to direct the doing of said act.” Under the testimony, which need not be recited, the question of the defendant’s negligence in failing to equip the mule hole with a hitching post, or' anything else to which the mule could have been fastened, was for the jury, and, the defendant having been found negligent in this respect, the only real question in the case is as to its liability under the act of 1907, if Miller, the coemployee, was also guilty of negligence.

It is contended that the act of 1907 does not apply to coal mines, because it does not mention mines or mining. True, mines and mining are not mentioned, but the comprehensive words of the act include "all actions brought to recover from an employer for injury suffered by his employee.” This defendant was the employer of the appellee’s husband and this action has been brought against it for his death, alleged to have been caused or contributed to by the negligence of the employer while he was discharging the duties of his employment. The act does not enumerate the class of employers who are to be subject to its provisions. If it did, those not included in the enumeration would be exempt from its operation, for ex-pressio unius est exclusio alterius: Miller v. Miller, 44 Pa. 170. All employers are within the provision that the negligence of a fellow servant of an injured employee shall not be a defense where the injury is caused or contributed to by any defect in the works, plant or machinery of which the employer can have knowledge by the exercise of ordinary care. Mule holes in mines are part of the works of the mine owners, made so by themselves for the purpose of preventing mules while not working from straying around as walking dangers to employees on or operating mine cars. When mules are put in these holes, without bars or gates to keep them in or hitching posts to which they can be tied, the mine owner takes the risk that they will stray out and bring about collisions with moving cars, and failure to provide means by which they can be kept within the holes is a failure of duty by the mine owner as an employer to his employees. A mule hole without gates or bars, hitching posts or any other device provided by the mine owner by which the mules can be kept within it is a “defect in the works,” and the jury in this case having found such a defect in the works of the appellant, it is not to be permitted, in the face of the act of 1907, to shield itself under-plea or proof of the negligence of Miller, the coemployee of the deceased.

Another contention of the learned counsel for the appellant is that the act of 1907 is unconstitutional, in view of what was held in Durkin v. Kingston Coal Co. et al., 171 Pa. 193. What was there decided was that so much of sec. 8 of art. 17 of the Act of June 2, 1891, P. L. 176, as imposes liability on a mine owner for the failure of a foreman to comply with the provisions of the act which compels the mine owner to employ him and defines his duties is unconstitutional and void. The negligence of a mine foreman is not involved in this action, and the case referred to has no application. It will be time enough to decide whether the act of 1907 is applicable to the neglect of a mine foreman when such a case arises. For the present we pass only upon what is before us, and, in doing so, decide nothing more than that no employer is exempt from the operation of the act of 1907 so far as it relates to defects in the works or plant under his direct control, and of which defects he can have knowledge by the exercise of ordinary care.

There is no error in any of the instructions which are the subjects of the five assignments, and the jury, having found that it was the negligence of the defendant that caused or contributed to the collision which resulted in the death of the appellee’s husband, the judgment is affirmed.


author: Mr. Chief Justice Fell,

text:
    Carothers v. Pittsburg Railways Company, Appellant.

      Practice, C. P. — Trial—Improper remark of counsel as to damages— Withdrawal of juror — Instructions—Duty of care.

    1. In an action for damages for personal injuries, where counsel states to the jury the amount claimed by plaintiff, it is reversible error for the court to refuse to withdraw a juror and continue the case upon defendant’s request.

      Negligence — Railroads—Passengers—Degree of care — Carriers.
    2. It is- error for the court to instruct the jury that a common carrier owes a duty to passengers to use “such a degree of care as would be necessary under all the circumstances of the case as would prevent injury to the passenger,” as such an instruction makes the defendant an insurer.
    3. A carrier for hire is held by law to a high degree of care to prevent injury to its passengers but it is not under a duty to protect them from every injury.

      Argued Oct. 13, 1910.
    Appeal, No. 64, Oct. T., 1910, by defendant, from judgment of C. P. Washington Co., May T., 1909, No. 98, on verdict for plaintiff in case of Robert Carothers v. Pittsburg Railways Co.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Taylor, J.
    The injuries complained of were alleged to have been caused by the negligent starting of defendant’s car while the plaintiff was attempting to board it.
    At the close of his argument, Mr. Levengood, of counsel for plaintiff, stated to the jury that suit had been brought in this case for $25,000 damages.
    Mr. Irwin: We object to the statement of counsel as to the amount of damages claimed in this case, and in order to protect our rights I want to ask your honor to direct. the stenographer to note upon the record that counsel for plaintiff in his closing argument stated to the jury that the suit had been brought for $25,000 damages, and thereupon counsel for the defendants moves the court to withdraw a juror and continue the case.
    (Statement of counsel noted on record by stenographer, as above set forth.)
    Mr. Levengood: If that statement was improper, I would ask your honor to instruct the jury that they should not consider it. I supposed that all the papers went out with the jury, as they do in our state.
    The Court: No, that is not the rule here. We will refuse the motion and seal a bill for the defendant.
    Exception noted for defendant and bill sealed. [1]
    Plaintiff presented this point:
    2. It is the duty of a carrier of passengers for hire to use a high degree of care to prevent injury to such passengers. Answer: Affirmed, that is such a degree of care as would be necessary under all the circumstances of the case as would prevent injury to such passengers.

      January 3, 1911:
    Verdict and judgment for plaintiff in sum of $4,541.

      Errors■ assigned were (1) in refusing to withdraw a juror, as above; (2) in the answer to plaintiff’s second point.

      R. W. Irwin, with him Jas. A. Wiley, for appellant.
    The case is ruled by Quinn v. Philadelphia Rapid Transit Co., 224 Pa. 162; Hollinger v. York Railways Co., 225 Pa. 419.

      E. T. Levengood, of Youngstown, Ohio, with him Alex. M. Templeton, William S. Anderson and W. Noble Anderson, for appellee.
   Opinion by

Mr. Chief Justice Fell,

The plaintiff obtained a verdict for injuries alleged to have been sustained by the starting of the defendant’s car, while he was in the act of getting on it. Counsel for the plaintiff at the close of his argument stated to the jury that the action had been brought to recover $25,000 damages. At the request of the defendant’s counsel the statement was noted on the record and the court was asked to withdraw a juror and to continue the case. The refusal of this request is the subject of the first assignment of error.

The statement by the court or by counsel in the presence of the jury of the amount claimed in the plaintiff’s declaration has been frequently condemned as highly improper. It was said in Reese v. Hershey, 163 Pa. 253, that the reading of the plaintiff’s statement to the jury, including the amount of damages, was exceedingly bad practice, because it tended to get figures and amounts into the jury’s mind without evidence and in Quinn v. Phila. Rapid Transit Co., 224 Pa. 162, that the damages are to be determined from the evidence and not from the estimate of counsel not based on the evidence, and an assignment of error based on the statement by counsel in summing up to the jury of the amount of damages claimed in the declaration was sustained. In Hollinger v. York Railways Co., 225 Pa. 419, the judgment was reversed because the trial judge in charging the jury stated the amount claimed by the plaintiff in his declaration. In this case it was said by Mestkezat, J., that the naming of the amount claimed is a suggestion to the jury which in their minds takes the place of evidence and that “Placing the figures named in the statement before the jury in the court’s charge gives a basis not established by the evidence, on which to calculate the verdict. Admonitions by the court that such is not the purpose in stating the amount claimed will not be sufficient to eliminate it entirely from the minds of the jurors. It will remain with them and, consciously or unconsciously, it will influence them in arriving at a verdict.” Somewhat similar offenses were condoned in Dougherty v. Pittsburg Railways Co., 213 Pa. 346, where counsel inadvertently used the word “Admission” in referring to the uncontradicted testimony as to certain items of loss, the aggregate amount of which he named, and in Brenisholtz v. Penna. R. R. Co., 229 Pa. 88, where counsel stated to the jury that one of the plaintiffs claimed a certain amount. This remark which applied to one only of the plaintiffs, was immediately withdrawn and the jury were instructed to disregard it and it was evident that no harm had been done the defendant by it.

In this case it is just to counsel, who was from another state, to say that the remark complained of was made in good faith, and without knowledge of our decisions on the subject, and to the learned trial judge that he did all in his power, by proper instructions to correct the error complained of. It is better, however, that the rule should be fixed and that cases of this kind should be put in line with Holden v. Penna. R. R. Co., 169 Pa. 1; Wagner v. Hazel Twp., 215 Pa. 219; Saxton v. Railways Co., 219 Pa. 492; Hollis v. Glass Co., 220 Pa. 49, and kindred cases in which this court has taken a stand against every attempt to obtain an unfair advantage in the trial of a cause. The first assignment of error is sustained.

The second assignment of error is also good. The court was asked to charge that “It is the duty of a carrier of passengers for hire to use a high degree of care to prevent injury to such passenger.” The answer was “Affirmed, that is such a degree of care as would be necessary under all the circumstances of the case as would prevent injury to such passenger.” A simple affirmance of this point would not have been error but the added remark made the defendant an insurer of the absolute safety of its passengers. A carrier for hire is held by law to a high degree of care to prevent injury to its passengers but it is not under a duty to protect them from every injury.

The judgment is reversed with a venire facias de novo.


author: Mr. Justice Elkin,

text:
    Burt v. Jessup Steel Company, Appellant.

      Negligence — Master and servant — Defective machinery — Notice to master — Evidence—Fellow servants.

    1. In an action by an employee against liis employer to recover damages for personal injuries sustained while working at a machine, where the charge is that the machine became unsafe to operate by permitting shears attached to it to become so dull as to be unfit for use, the burden is upon the plaintiff to show that defendant had notice of the defective condition, or that the defendant should have known if the machine had been properly inspected, and this burden is met by proving notice to the superior in charge of the employees.
    2. In such a case where there is evidence that both the superior in charge of the employees and the machinist whose duty it was to repair the shears had notice of their condition, and the evidence is conflicting as to whether the plaintiff was directed to work on the particular machine at which he .was injured or did so of his own volition, the question of the defendant’s negligence and the plaintiff’s contributory negligence is for the jury.
    Argued Oct. 13, 1910.
    Appeals, Nos. 67 and 68, Oct. T., 1910, by defendant, from judgment of C. P. Washington County, Nov. T., 1908, No. 176, on verdict for plaintiffs in case of Clem O. Burt, a minor, by his father and next friend, John Burt, and John and Emma Burt, parents, v. Jessup Steel Company.
    January 3, 1911:
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Taylor, J.
    The plaintiff, a boy, almost seventeen years of age, was injured while operating a set of scrap shears in defendant’s steel plant. This work he did under the direction of a foreman, having been so employed for six weeks. His machine becoming duff, he reported this to Win Cain, an assistant to the master mechanic, whose duty it was to keep the shears in good condition. He then went to work at another pair of shears, which the previous operator had reported to Cain as being dull about an hour previous. According to plaintiff’s testimony, he did this at Cain’s direction. After working some twenty minutes, during which time the shears jerked and pulled at the iron as if they were dull, his left hand was caught in some way, and so mangled that it had to be amputated.
    Verdict and judgment for plaintiffs, Clem O. Burt for $2,500 and for John and Emma Burt for $1,302.

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

      Harry J. Nesbit, with him John L. Prestley, T. V. Birch, Harry A. Jones, and H. Russel Myers, for appellant.

      R. W. Irwin, with him J. A. Wiley, for appellee.
   Opinion by

Mr. Justice Elkin,

This case was defended in the court below and has been argued here principally upon the ground that Cain was a fellow servant and not a vice principal. This defense is predicated upon the theory that the negligence charged and relied on was the putting of the minor appellee to work on a machine out of order by direction of the vice principal. If this were the only negligence charged there would be much force in the argument of learned counsel for appellant. But we do not so read or understand the averments set out in the statement, and as we view the facts the question of vice principal does not arise. It is true there is such a recital in the declaration but following the recital of facts which led up to the accident there are three separate paragraphs charging negligence of different kinds and character. In one of these paragraphs it is averred that “the said defendant company did not exercise due care in putting and keeping its machinery in proper condition and did hot have the said machine in proper condition when the said plaintiff was put to work upon it. The said machine was out of order and the knives in said machine were dull so that the said machine was not in proper fit condition to put a boy of the age and inexperience of the said plaintiff to work upon it.” This certainly charges the particular machine at which the boy was put to work as being defective and not in proper condition for operating. Later in the statement it is averred that the unsafe and unfit condition of the machine caused the injuries about which complaint is made. This is an answer to the argument made for appellant in which it is stated that it is not alleged that the negligence consisted in allowing the machine to become dull, or in permitting plaintiff to work on a dull machine. If the injuries resulted from the use of a defective machine, or one not in condition to be operated, it is immaterial whether Cain was a fellow servant or a vice principal. Under such circumstances his status as an employee has nothing to do with the case. As we understand it, the negligence charged is not that the machine was defective in construction but that it became unsafe to operate by permitting the shears to become so dull as to be unfit for use. In this connection the burden was on plaintiffs to show that the defendant company Had notice of the defective condition, or that it should have known if the machine had been properly inspected. This burden was met by proving notice to the superior in charge of the boys. It is also in evidence that the machinist whose duty it was to repair the shears had been notified of their condition. There is some dispute as to whether the boy was directed to work on that particular machine or did so of his own volition. But this was a question of fact for the jury. Again, it is urged that the boy was guilty of contributory negligence but this was also a question for the jury. We have concluded after a careful review of the whole record that the negligence of defendant and the contributory negligence of plaintiff were both questions for the jury and that there was no reversible error in their submission.

Judgment affirmed.


author: Mr. Justice Mosohzisker,

text:
    Beaver County v. Beaver Valley Traction Company, Appellant.

      Street Railways — County bridges — Use and occupation — Measure of damages.

    1. A trolley company using a county bridge in the operation of its street cars enjoys a special use different in kind and extent from that of the general public and one for which it may be required to pay rental.
    2. Where a county condemns and lakes over certain bridges in use by a trolley company under agreement with the private owners and after the condemnation the trolley company enters into a contract with the county commissioners for the use of the bridges and the compensation therefor for a stated period of years and after the expiration of this period the trolley company continues to operate its cars across the bridges but declines to make any further payment to the county, the county may recover against the trolley company for the use and occupation of the bridges during this latter period.
    3. In an action brought by a county against a street railway company to recover compensation for the use of county bridges where there is evidence showing defendant’s system of trackage and the population of the territory it had to draw upon; the cost of the respective bridges to the county, and their value in the year of the use sued upon; the amount paid for the repair of ordinary wear and tear incurred and also the general cost of the maintenance of the bridges during that year; the sizes of the bridges'and how they were built; details as to the use made of the bridges by the defendant company; and some light on the general public use as compared to the precise use of the defendant company, it is not error for the court to allow the jury, in the exercise of their best judgment, to determine upon all the evidence what would be fair and proper compensation for the use of the bridges.
    Argued Oct. 13, 1910.
    Appeal, No. 113, Oct. T., 1910, by defendant, from judgment of C. P. Washington Co., Peb. T., 1910, No. 69, on verdict for plaintiff in case of County of Beaver v. Beaver Valley Traction Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit to recover compensation for the use of county bridges. Before McIlvaine, P. J.
    Verdict and judgment for plaintiff for $3,000. Defendant appealed.
    The opinion of the Supreme Court states the case.

      Errors assigned were various instructions of the court.

      B. W. Irwin, with him D. A. Nelson, John H. Murdoch, Edgar B. Murdoch and James A. Wiley, for appellant.
    The defendant company had a vested franchise which was not and could not be divested by the county in the condemnation of the bridges: Hestonville, etc., R. R. Co. v. Phila., 89 Pa. 210; P. & R. R. R. Co. v. Phila., 47 Pa. 325; Penna. R. R. Co.’s App., 93 Pa. 150; Penna. R. R. Co. v. Montg. County Pass. Ry. Co., 167 Pa. 62; Harrisburg, etc., Ry. Co. v. Harrisburg, 149 Pa. 465; Jordan v. Ry. Co., 25 Pa. Superior Ct. 564; Penna. Water Co. v. Pittsburg, 226 Pa. 624; Berks County v. Reading City Pass. Ry. Co., 167 Pa. 102.

      J ames I. Brownson, of Donnan, Brownson & Miller and A. P, Marshall, with them J. L. Holmes, for appellee.—

      January 3, 1911:
    The county may within reasonable limits regulate the manner of the use of the bridge and provide for its repair and require a reasonable compensation for its use: Berks County v. Reading City Pass. Ry. Co., 167 Pa. 102; Beaver County v. Teleg. Co., 219 Pa. 340.
   Opinion by

Mr. Justice Mosohzisker,

The county of Beaver brought an action against the Beaver Valley Traction Company to recover compensation for the use of three bridges during the year 1908. Judgment was entered upon a verdict for the plaintiff, and the defendant has appealed.

These bridges were formerly owned by private corporations, but in the years 1900, 1904 and 1905, they were condemned and taken over by the county. The defendant acquired the right to their use several years prior to the condemnation, but the exact arrangements with the old bridge companies do not appear. The record shows, however: “It is admitted by the plaintiff that at the time the plaintiff condemned these bridges and took them over and made them county bridges defendant was lawfully using the bridges in the operation of its street cars, under arrangements theretofore made with the bridge company. It is also admitted that as between the plaintiff and the defendant all matters in regard to the use of these bridges were adjusted up to the beginning of the year 1908.” Subsequent to the condemnation the defendant entered into a written contract with the county commissioners concerning the use of the bridges and the compensation to be paid during the ensuing three years, which contract expired January 1, 1908. After that date the defendant continued to operate its cars across the bridges but declined to make any further payments to the county.

The defendant contends that since it was in lawful possession of the bridges at the time of their condemnation, the county took them burdened with its vested franchise and is debarred from charging a rental; again, that since the bridges have been declared free they are simply a part of the public highways and a right to charge the defendant no longer exists. In the event of these points being decided against it, the defendant then contends that its liability should be limited to the payment of a fair proportion of the annual expenses of keeping the bridges in repair; and if) maintains that the charge of the trial judge was inadequate in that no positive rule was laid down concerning the measure of damages.

In considering these contentions it is to be noted that no effort has been made to defeat the defendant’s right to use the bridges. The plaintiff concedes that right but insists upon the payment of a fair compensation for such use. It is further to be noted that the question of the ■effect of the condemnation proceedings upon any rights accruing under 'prior contracts between the defendant and the old bridge companies is not in this case. These contracts were ruled out on the objection of the defendant. It affirmatively appears that in 1905 both of the parties to the present controversy treated them as terminated, and entered into a new contract for the term of three years. The expiration of that contract did not leave the bridges free to the defendant; it simply changed the defendant’s duty to pay a proper compensation from a contractual obligation to a common-law liability for use and occupation.

The defendant never had a right to the free use of these bridges. It had the right under its charter and the consent of the local authorities to use the public highways including the bridges, but before it could enter upon the latter it had to gain the consent of the bridge owners, and, if so required, it had to arrange to pay such reasonable compensation by annual rental or otherwise as might be agreed upon, or fixed by the court: Berks County v. Reading City Passenger Ry. Co., 167 Pa. 102; Larue v. Oil City Ry. Co., 170 Pa. 249; Lawrence County v. New Castle Electric St. Ry. Co., 8 Pa. Superior Ct. 313. When the bridges were taken over by the county the liability of the defendant to pay a rental still continued: Beaver County v. Central Dist. & Printing Teleg. Co., 219 Pa. 340. The fact that they then became free highways to the general public would not of itself affect the position of the defendant. In this connection see St. Louis v. Pittsburg Union Teleg. Co., 148 U. S. 92.

In the case just cited a charge had been made for the use of certain public streets by the city of St. Louis. The supreme court of the United States said: “It is .... in the nature of a charge for the use of property belonging to the city — -that which may properly be called rental. . . . The use made by the telegraph company, is, in respect to so much of its space as is occupied by its telegraph poles, permanent and exclusive. . . . Whatever benefit the public may receive in the way of transportation of messages, that space is, so far as respects its actual use for the purposes of highway and personal travel, wholly lost to the public. ... To that extent it is a use different in kind and extent to that enjoyed by the general public. Now, .... is there .... anything to inhibit the public from exacting rental for the space thus occupied? Obviously not. . . . While permission to a telegraph company to occupy the streets is not technically a lease, and does not in terms create the relation of landlord and tenant, yet it is giving the exclusive use of real estate, for which the giver has the right to exact compensation which is in the nature of rental.”

In Beaver County v. Telegraph Co., 219 Pa. 340, we said: “In Pennsylvania bridges are treated as part of the highway. . . . The county owns the bridge and maintains it for the comfort and convenience of the traveling public. ... It cannot arbitrarily refuse the use of the bridge for purposes which have been lawfully authorized upon the highways. The county commissioners have, however, the right within reasonable limits to regulate the manner in which the bridge may be used, and may provide for its repair, and require compensation by way of rental. . . . The telegraph company laid its line upon the bridge under agreement with the corporation that was then its owner. It was rightfully upon the structure when it became a county bridge. ... It is the right of the plaintiff to bring an action at law to recover damages for the use of the bridge during the time for which no compensation has been paid.”

In this last case we further said: “We can see no difference in principle between the use made of a bridge by a street railway company and that which is appropriated by the telephone company.” So far as it concerns the point we now have, and then had, under consideration, there is no difference. The traction company defendant in this case and the telegraph company referred to in that case each enjoyed a special use different in kind and extent from that of the general public. Here the defendant not only used the bridges as ways of passage for their cars but it permanently occupied certain spaces by its tracks, poles and wires. It is not asked to pay toll in the popular sense in which that term is generally understood, but it is required to pay a rental for its special use and occupation of the bridges. We conclude that, even though no tolls were collected from the general public, the county had the right to insist upon the payment of a rental by the defendant company, and to include therein a reasonable, proportion of the costs incurred for necessary repairs to the bridge structures.

In a case like this, it is exceedingly difficult to state any exact rule as to the measure of damages. There was evidence showing defendant’s system of trackage and the population of the territory it had to draw upon; the cost of the respective bridges to the county, and their value in 1908; the amount paid for the repair of ordinary’ wear and tear incurred during 1908, and also the general cost of the maintenance of the bridges during that year; the sizes of the bridges and how they were built; details as to the use made of the bridges by the defendant company, and some light on the general public use as compared to the precise use of defendant company. With this evidence in view the trial judge said to the jury: “It (the county) has declared simply for the use and occupancy of the bridges during the year of 1908, — the repairs for ordinary wear and tear have been paid by it and none of them by the company. These repairs are to be considered as an element to increase the rental. The county sues for the use and occupancy of the bridges with the understanding that it has made the necessary repairs, and of course that would make the rental value of the bridges larger. . . . We have narrowed down the contention between the parties to this, — 'What is a fair compensation to the county of Beaver for the use of these three bridges by this traction company during the year 1908, taking into consideration the fact that the county paid all the repairs for the ordinary wear and tear of that bridge, necessary for and chargeable to that year?' ” The court called attention to the several points upon which there was evidence tending to throw light upon the question of the damages, and then said: “It will be for you, .... taking all those things into consideration, taking into consideration that the law is that the ordinary wear and tear repairs of a county bridge occupied jointly as these bridges were, ought to be shared by the two occupants in proportion (as near as possible) to the relative use that they make of it. Now taking these things into consideration and the admitted fact that the defendant company has used this road for the year 1908, try and get together on what is fair to both parties; .... and then return the amount of compensation in dollars and cents, which you believe the plaintiff is entitled to for the use and occupancy of the three bridges during the year 1908.”

We are not convinced of any reversible error in this charge. No requests for special instructions on the measure of damages were handed to the trial judge, and he covered the subject as clearly as could be required under the circumstances. It was for the jury, in the exercise of their best judgment, to determine upon all the evidence what would be fair and proper compensation for the railway company to pay for its use of the bridges during the year 1908, and we cannot say that their verdict is not sustained by the evidence.

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


author: Mr. Justice Beown,

text:
    McMeekin v. Pittsburg Railways Company, Appellant.

      Negligence — Street railways — Evidence—Inadequacy of charge — Measure of damages — Husband and wife.

    1. In an action for damages for personal injuries, sustained as the result of the alleged negligence of the defendant in suddenly starting a car from which plaintiff was attempting to alight, it is not reversible error for the court to permit the plaintiff, in answer to a question about the conditions surrounding the approach to her home, to testify to her experiences closely following the accident, although this does not bear upon the question of the company’s negligence.
    2. Counsel cannot be heard to complain of the inadequacy of an otherwise correct charge, where the court gave them opportunity at the time to call attention to any omissions, and one of the defendant’s counsel stated to the court that there was no omission.

      3. It is not for the court to indicate the amount that should be awarded to a husband for injuries to his wife. This is for the jury alone after taking into consideration all of the facts of the case. In determining the amount the jury may consider the loss of the wife’s services, assistance and companionship in managing his household, and any expenditures he had been put to as the result of her injuries.
    Argued Oct. 13, 1910.
    Appeals, Nos. 161 and 162, Oct. T., 1910, by defendant, from judgment of C. P. Washington Co., May T., 1909, No. 54, on verdict for plaintiffs in case of J. Scott McMeekin and Lulu M. Mc-Meekin, his wife, v. Pittsburg Railways Company.
    Before Fell, C. J., Brown, Mesteezat, Pottee, Elkin, Stewaet and Moschziskee, JJ.
    January 3, 1911:
    Affirmed.
    Trespass for damages for personal injuries. Before McIlvaine, P. J.
    The opinion of the Supreme Court states the case.
    Verdict and judgment for J. Scott McMeekin for $4,000, and for Lulu McMeekin, $6,000. Defendant appealed.

      Errors assigned were ruling on evidence and certain instructions.

      John H. Murdoch, with him Edgar B. Murdoch, for appellant.

      Thomas H. Greer, of John M. Greer and Sons, with him James I. Brownson, John M. Greer and John B. Greer, for appellee.
   Opinion by

Mr. Justice Beown,

On December 14, 1908, Lulu M. McMeekin, one of the plaintiffs below, got upon a car of the Pittsburg Railways Company in the city of Allegheny for the purpose of being carried to Keown station, a point beyond the city limits, but was informed that the car did not stop there and that she must get off and wait for another. According to her testimony, as she was attempting to alight from the car it was started and as a result of its starting, she fell into the street and sustained serious bodily injuries. On the appeals from the judgments on the verdict in favor of her and her husband we have five assignments of error. Only one of them relates to the admission of evidence; the other four complain of certain portions of the court’s charge. Under objection, the following question put to the plaintiff was allowed: “In going from the station to your home describe the conditions surrounding the approach to it. Describe the conditions surrounding the approach to your home.” In answer to this she testified that when she got to Keown station and alighted from the car she was compelled to walk up a hill to her home, about a quarter of a mile distant, over a dirt road; that the weather was cold; that there was no place for her to stop on the road, and she had great difficulty in getting home. While this evidence might have been excluded without just cause of complaint on the part of the plaintiffs, its admission cannot be regarded as reversible error. It did not bear upon the question of the alleged negligence of the company, for that occurred in the city of Allegheny, and the jury certainly understood from the clear charge of the learned trial judge that unless the employees of the defendant company had started the car when Mrs. McMeekin was trying to alight from it, after having been told to get off, there could be no recovery. Her testimony, to which the defendant excepted, was merely an account of her experience closely following the accident, and tended to show that she had done nothing from the time she started from her home until she reached it to intensify the injuries which she had sustained by her fall from the car.

No complaint is made by the second and third assignments that erroneous instructions were given in those portions of the charge which are quoted in them. The complaint is that the court ought to have instructed the jury more fully on the matters to which their attention was called by those portions. At the conclusion of his charge the learned trial judge said to the jury, “And we leave the case with you, unless there is something we have omitted that counsel desire us to call attention to.” The stenographer’s notes show that after this was said one of the counsel for the defendant stated to the court that there was no omission in the charge. In view of this, complaint cannot now be heard of the court’s omission to give fuller instructions to the jury on the matters to which their attention was called in the portions of the charge quoted in the second and third assignments of error, and they are therefore overruled.

The fourth and fifth assignments complain that, in charging on the measure of damages to which the husband might be entitled, no reference was made to the amount to be allowed him. The instructions of the court were that he was to be compensated for the loss of the services, assistance and companionship of his wife in managing his household and for any expenditures he had been put to as the result of her injuries. This was entirely correct: Henry v. Klopfer, 147 Pa. 178; Kelley v. Mayberry Twp., 154 Pa. 440; Platz v. McKean Twp., 178 Pa. 601. The amount of compensation to be awarded to him was what would fairly pay him for his losses resulting directly from the defendant’s negligence. It was not for the court to indicate what this amount should be; that was for the jury alone, after taking into consideration all the facts in the case, and such were the instructions given them. They were clearly not erroneous, and if they were regarded as inadequate, opportunity, as already stated, was given to counsel for the defendant to ask that they be made fuller.

The assignments of error are overruled and the judgments are affirmed.


text:
    Lanning v. Pittsburg Railways Company, Appellant.

      Negligence — Street railways — Pedestrians—Broken wire — Evidence— Burden of proof.

    1. The rule res ipsa loquitur does not apply when one walking on a street of a municipality is injured by an appliance of a street railway company using electricity upon or over the street. The burden is on the person injured to establish negligence on the part of the company.
    2. In an action against an electric railway company to recover damages for personal injuries alleged to have been received by a pedestrian on a city street as the result of a broken trolley wire, where none of plaintiff’s witnesses in chief testifies that at the time of the breaking of the wire which caused the accident it had not been properly adjusted, fastened or strung, and the testimony of plaintiff’s experts does not tend to establish the negligence alleged as the cause of the accident, it is error to submit the question of defendant’s negligence to the jury on the ground that it could be fairly inferred from all the circumstances, and because no other cause was apparent to which the falling of the wire could be attributed.
    Argued Oct. 13, 1910.
    January 3, 1911:
    Appeal, No. 166, Oct. T., 1910, by defendant, from judgment of C. P. Washington Co., Feb. T., 1910, No. 136, on verdict for plaintiffs in case of J. J. Lanning and Mary Martha Lanning, his wife, v. Pittsburg Railways Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Trespass for damages for personal injuries. Before McIlvaine, P. J.
    The opinion of the Supreme Court states the case.
    Verdict and judgment for J. J. Lanning for $1,000, and for.Mary M. Lanning for $2,266.66. Defendant appealed.
    ' Error assigned among others was in refusing defendant’s motion for judgment n. o. v.

      John II. Murdoch, with him Edgar B. Murdoch, for appellant.
    The rule res ipsa loquitur is not applicable: East End Oil Co. v. Torpedo Co., 190 Pa. 250; Stearns v. Spinning Co., 184 Pa. 519; Aument v. Penna. Tel. Co., 28 Pa. Superior Ct. 610; Cavanaugh v. Light Co., 226 Pa. 86; Joyce v. Black, 226 Pa. 408.

      B. H. Meloy, with him Owen C. Underwood, for appellee,
    cited: Kepner v. Traction Co., 183 Pa. 24; Patterson Coal & Supply Co. v. Pittsburg Railways Co., 37 Pa. Superior Ct. 212.
   Opinion by

Mr. Justice Brown,

On the evening of July 31, 1909, a trolley wire of the defendant company parted at the corner of Pike and Main streets, in the borough of Houston, and Mary Martha Lanning, one of the plaintiffs, who was crossing from Pike over to Main street, was either knocked down by one end of the broken wire or fell in an effort to avoid it. Her fall resulted in the injuries for which damages are claimed in this action brought by her and her husband. The averment in their statement charging the defendant with negligence is that it did not have its trolley and guy wires properly adjusted and fastened, and said wires, on account of improper adjusting and negligent fastening, broke and fell to the ground. The case v/ent to the jury on the question of the defendant’s negligence, and the verdict was for the plaintiffs, upon which judgments were entered.

Whatever may be the rule in other jurisdictions as to the presumption of negligence whenever one traveling on the street of a municipality is injured by an appliance of a company using electricity upon or over the street, our cases recognize no such presumption. With us the rule res ipsa loquitur does not apply in such a case, and the burden was upon the appellees to show more than the mere breaking of the wire: Kepner v. Traction Co., 183 Pa. 24. The burden was upon them to show that the breaking was due to some negligence of the company, and, having charged in their statement the specific negligence which resulted in the breaking, it was upon them to establish that negligence on the trial. Until street railway companies are made insurers of the safety of persons traveling over the streets and highways of the commonwealth against injury from any appliance used in their1 transportation systems, one injured, as this plaintiff was, must prove more than the mere fact of the breaking of the trolley wire. All this seems to be conceded by counsel for the appellees, and the learned trial judge so instructed the jury. The error complained of is that he permitted them to pass upon the question of the defendant’s negligence without any evidence to support it. Whether there was any such evidence was a preliminary question for the court, whose duty it was to have withdrawn the case from the jury if there was no evidence that ought reasonably to have satisfied them of the negligence which the plaintiffs were called upon to prove: McKnight v. Bell, 135 Pa. 358.

There was no direct proof of any negligence that caused the wire to break, but the learned trial judge submitted the question of the defendant’s liability to the jury, because, as he states in his opinion overruling the motion for a new trial and refusing judgment for the defendant, he thought it could be fairly inferred from all the circumstances that the company had either negligently constructed its trolley wire or had failed to keep it in proper repair at the point of the accident, and no other cause was apparent to which the falling of the line could be attributed. The question for the jury was not whether there was no other apparent cause than the defendant’s negligence for the breaking of the wire; the question before them was, Did the negligence of the defendant company cause it to break? If this did not appear, there was no liability upon the defendant. If a jury in an action against a street railway company is to be permitted to find it guilty of negligence because there is no other apparent cause for the act complained of, it is quite safe to assume that in every case the verdict will be for the plaintiff. The appellees were not required to establish the negligence of the defendant by direct or positive proof. Like any other fact, negligence may be, and often is, established by circumstantial evidence; but when such proof is relied upon, it must fairly and reasonably lead to the conclusion that the specific act of negligence existed, as charged, and was the proximate cause of the injury sustained.

No witness called by the plaintiffs in chief testified that, at the time the wire broke, it had not been properly adjusted, fastened and strung. One who saw it drop, when asked whether he knew what caused it to fall, replied that he did not; another, who saw the flash before it fell, made the same answer. And so the testimony of all the other witnesses called by the plaintiffs in chief may be examined in vain to find a word from any one of them which would justify a finding, that the wire had fallen because it had been improperly and negligently fastened. The only expert called by them — S. M. Pollock — described the condition of the overhead wire at the point of the accident and, in doing so, pointed to no defect in it which in his opinion could have caused, or did cause, it to break, and nothing in his testimony tended to show negligence of the defendant which resulted in the breaking. It was shown by some of the witnesses that at or near the point of the accident, and prior thereto, guy or span wires had fallen at times, but, if they did fall, it was not shown what had caused them to fall. Even if it had been shown that they had fallen because they had not been properly fastened, their falling had no connection with the fall of the trolley wire, and, as the court below correctly held, could not be considered as evidence of negligence by the company which caused that wire to fall. The plaintiffs were permitted to show the falling of these other wires simply as evidence of the fact that the defendant company had knowledge that the line at the corner where the trolley wire broke, was liable to get out of order, and, therefore, needed special care and attention.

When the plaintiff rested there was nothing before the jury showing any negligence on the part of the defendant which caused the wire to break, and the company was not called upon to prove anything. It did, however, call witnesses, from whose uncontradicted testimony it appeared that the overhead construction at the comer where the wire broke was proper and the one in ordinary use, and that the line had been duly inspected and kept in repair. This having been the situation when the defendant rested, if the plaintiffs had offered nothing in rebuttal, binding instructions to the jury to find for the defendant, if asked for, could not have been withheld, unless the trial judge was to permit the jury to guess that the company had been negligent. The plaintiffs were permitted in rebuttal to call an expert, whose testimony ought to have been offered in chief, but the trial judge, in his discretion, permitted him to be called out of order because he had not been in court when the case of plaintiffs was being presented. In the opinion sustaining the verdict stress is laid upon his testimony as supporting the theory of the plaintiffs that one of the guy wires had become loose and fallen across the trolley wire, striking the rail below and establishing a short circuit, which either burned the trolley wire in two, causing it to drop, or weakened it in such a way by burning it that it separated and fell. In view of the admission of this witness and of the uncontradicted testimony in the. casé, his theory does not help the case of the plaintiffs. He admitted that if the wire had been burned, the burn could have been distinguished by the eye from a break. There was no proof by the plaintiffs, nor offer to prove, that the wire had parted as the result of burning, while the uncontradicted testimony on the part of an expert witness, who had examined it immediately after it fell, was that it had not been burned, but had broken. The case of the plaintiffs was, therefore, no stronger after the testimony of their witness, called out of order, than it was when they first rested.

While the trial judge correctly instructed the jury that the burden of proof was upon the plaintiffs to show negligence, as the rule res ipsa loquitur did not apply, it is evident that he unconsciously recognized that rule, for he permitted the jury to guess that the fall of the wire was due to its having been improperly and negligently fastened by the defendant. This was not permitted in either Shafer v. Lacock et al., 168 Pa. 497, or McCoy v. Ohio Valley Gas Co., 213 Pa. 367 — the two cases relied upon as authorities for submitting the case to the jury. In the first, the fire which destroyed the house of the plaintiff was caused by a spark or sparks from a fire pot used by servants of the defendants in repairing the roof, who, while the fire was in progress, made declarations to the effect that it had been caused by their carelessness; in the second, gas was leaking from the pipe at the point where the explosion occurred, and the company did not check or moderate its flow, although this could have been done. There is no analogy between these cases and the one now before us. Whatever principle or rule may have been recognized in them applied to the facts as established. Here no facts were established which, under any of our cases, would make the defendant liable. The judgments are, therefore, reversed and judgment is now entered for the defendant.