author: Mr. Justice Brown,

text:
    Roland v. Philadelphia & Reading Railway Company, Appellant.

      Negligence — Railroads—Grade crossings — Safety gates — Watchman.
    1. In a case against a railroad company growing out of an accident at a grade crossing, the failure of the company to have the safety gates lowered is evidence of negligence on the part of the defendant to be taken into consideration by the jury in passing upon that question, but is not, in itself, without regard to anything that is proven, conclusive evidence of negligence.
    2. The fact that a watchman may not have been able to read or write, nor tell the time by watch or clock, is immaterial if there is nothing to show that he was not able to discharge the duties for which he was employed, or that his alleged ignorance contributed in any way to an accident at the crossing.
    Argued Feb. 16, 1909.
    Appeal, No. 250, Jan. T., 1908, by defendant, from judgment of C. P. Lebanon Co., June T., 1907, No. 163, on verdict for plaintiff in case of Christiana Roland v. Philadelphia & Reading Railway Company.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for death of plaintiff’s husband. Before Ehrgood, P. J.
    The opinion of the Supreme Court states the case.
    Verdict and judgment for plaintiff for $9,000. Defendant appealed.
    Errors assigned among others were (3) in charging the jury that the defendant was negligent; (6) answer to plaintiff’s seventh point, which was as follows:

      7. If the jury believe that the watchman employed by the defendant company at the Front street crossing could not read or write, could not read the time table of the trains or the rules and regulations governing his conduct, and could not tell the time by the watch or clock, he was incompetent to perform the duties of his position, and if the defendant company, with knowledge of these facts retained him in its employ, it was guilty of negligence. Answer: That is affirmed. [6]

      Charles H. Killinger and Howard C. Shirk, for appellant.—
    The fact that the safety gates are open does not excuse the failure to stop, look and listen: Greenwood v. Railroad Co., 124 Pa. 572; Lake Shore, etc., Ry. Co. v. Frantz, 127 Pa. 297; Burd v. P. W. & B. R. R. Co., 25 W. N. C. 250.
    There was no admission made by the defendant in the trial of this case that there had been any negligence on its part; that was entirely a question for the jury under conflicting parol testimony.
    The law seems well established that the fact that safety gates are open, while it may be evidence of negligence, is not negligence per se: Lake Shore, etc., Ry. Co. v. Frantz, 127 Pa. 297; Matthews v. Railroad Co., 161 Pa. 28.
    The employment of a watchman unable to read, write, speak English, or tell the time by the clock, does not in itself establish the negligence on the part of a railroad company, in an action wherein such defects do not contribute to the accident: Mo. Ry. v. Jackson, L. R. 3 App. Cas. 198.

      Robert L. Adams, with him Paul G. Adams and John Benson, for appellee. —
    Where there are safety gates and a gateman, and where the traveler’s view is obstructed, he is not guilty of negligence per se in driving across the railroad tracks at the beckoning of the gateman on duty, without stopping: Penna. R. R. Co. v. Horst, 110 Pa. 226; P., W. & B. R. R. Co. v. Conway, 112 Pa. 511; P. & R. R. R. Co. v. Boyer, 97 Pa. 91; Fennell v. Harris, 184 Pa. 578; Coleman v. Penna. R. R. Co., 195 Pa. 485; Ayers v. Railway Co., 201 Pa. 124; McCarthy v. P. & R. Ry. Co., 211 Pa. 193.

      May 17,1909:
    . Safety gates are not only an absolutely sure way of warning travelers of the approach of trains when closed, but the Supreme Court has also held that when open they blunt the edge of caution and are an actual invitation to the traveler to cross: Roberts v. Canal Co., 177 Pa. 183; Cohen v. P. & R. Ry. Co., 211 Pa. 227; Railway Co. .v. Frantz, 127 Pa. 297; P. & R. R. R. Co. v. Killips, 88 Pa. 405.
   Opinion by

Mr. Justice Brown,

The negligence of the defendant company and the contributory negligence of the deceased were for the jury. Neither question could have been taken from them. The contributory negligence of the deceased was submitted under instructions free from error, but the negligence of the defendant was taken from the jury, the trial judge instructing them that it had been negligent. For this error the judgment must be reversed.

As the team approached the crossing the safety gates were up. From the testimony of Mohn, a witness to the accident, called by the. plaintiff, it is uncertain whether the watchman or gateman was at the crossing at the time the team was approaching; but because the undisputed evidence was that the gates were up, the court declared, as a matter of law, that the defendant was negligent, and instructed the jury to so find without regard to any other testimony in the case. By this they, of course, understood that the negligence which made the railroad company responsible for the collision was the failure to have the gates lowered as the team approached. The failure to have them lowered was evidence of negligence on the part of the defendant, to be taken into consideration by the jury in passing upon that question, but was not, in itself, without regard.to anything else that was proven, conclusive evidence of negligence: Lake Shore & M. S. Ry. Co. v. Frantz, 127 Pa. 297; Matthews v. Philadelphia & Reading R. R. Co., 161 Pa. 28. From other testimony in the case, if believed by the jury, they could fairly have found that the defendant had not been guilty of negligence. Witnesses called on its behalf testified that, for a distance of over seventy feet between a cooper shop and the track on which the collision occurred, there was an unobstructed view of 1,300 feet in the direction from which the train was coming; that between the watch box and the track — a distance of more than forty feet — there was such a view of from 1,500 to 1,800 feet; that the whistle was blown at the whistling post east of the crossing and the bell rung from that point up to the crossing. If the jury had believed this, a proper conclusion might have been that the company had not been negligent; but they were not permitted to consider this testimony, and the first and third assignments of error must be sustained.

Another error into which the court fell was in affirming plaintiff’s seventh point. The watchman may not have been able to read or write, nor to tell the time by watch or clock, but there was no evidence that he could not see and hear a train approaching, whether running on schedule time or not. There was nothing to show that he was not able to discharge the duties for which he was employed, and his alleged ignorance, as set forth in the point, had no relevancy to the issue and did not contribute in the slightest degree to the accident.

The judgment is reversed and a venire facias de novo awarded.


source: Caselaw Access Project

license: Public Domain

text:
    Riley, Appellant, v. Pittston Coal Mining Company.

      Negligence — Master and servant — Oiling machinery — Act of June 2, 1891, P. L. 176.
    1. A boy seventeen years of age who gets into close proximity to dangerous machinery while it is in motion for the purpose of oiling it, and slips and is caught in the moving machinery, is guilty of contributory negligence under sec. 8, art. V of the Act of June 2,1891, P. L. 176, which forbids any person oiling dangerous parts of machinery while it is in motion.
    2. Complaint cannot be made by a servant that a safe place was not provided for him by his master, when it appears that he was injured while oiling dangerous machinery when it was in motion.
    3. A plaintiff in an accident case who was injured while oiling machinery is not entitled to have the jury pass upon the dangerous character of the machinery where he has averred in his pleadings that the machinery was dangerous, and such averment is established by his own evidence.
    Argued April 12, 1909.
    Appeal, No. 306, Jan. T., 1908, by plaintiffs, from order of C. P. Luzerne Co., May T., 1906, No. 359, refusing to take off nonsuit in case of Francis Riley, by his next friend and father, Anthony Riley, and said Anthony Riley in his own right v. The Pittston Coal Mining Company.
    Before Mitchell, C. J., Fell, Beown, Pottee and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Halsey, J.
    At the trial the court entered a nonsuit saying:
    The allegation of the plaintiff is that this machinery was constructed in violation of the mine act of 1891, and as a result of such construction this boy plaintiff was injured; that there was negligence on the part of defendant and as a consequence the defendant ought to be responsible for the injury that plaintiff received. The mine act of 1891 provides that no person under fifteen years of age shall be appointed to oil the machinery, and no person shall oil dangerous parts of such machinery while it is in motion. You will recall the testimony of young Riley that he went to this moving machinery on the opposite side of this sprocket wheel where the box is, that he had an oil can with a spout on it six or seven inches long, that he oiled the box, the journal that was in the box, and that having oiled that part of it, he started around the end of the box for the purpose of reaching the box on this side in which the journal was located, to oil that, and while he was in motion for the purpose of reaching the box on the opposite side where the journal was, for the purpose of oiling it, he slipped upon the sheet-iron and went down into the sprocket wheel and was injured.
    The rule of law is that it matters not how negligent the defendant may be, if the plaintiff himself is negligent in the slightest degree which inured and resulted in and caused him the injury for which he brings his action, he cannot recover. He was there and oiled that journal in that box when it was in motion. He started around to oil the journal in the opposite box while the machinery was in motion, and he slipped upon the sheet-iron and went down into the box and was injured, and therefore he violated this part of the act of assembly: “And no person shall oil dangerous parts of machinery while it is in motion.” He was guilty of negligence in oiling this machinery while it was in motion, and under this act of assembly is responsible for his negligence and therefore it becomes our duty to sustain this motion for a nonsuit. The nonsuit is allowed with the usual rule to show cause why the same shall not be taken off.

      Error assigned was refusal to take off nonsuit.

      Thomas F. Farrell, with him James L. Lenahan, for appellants. —
    The proof is that the plaintiff, at the time he fell under the wheel, was not actually engaged in oiling the machinery, but was walking around from one oil box to the other. The prohibition of the statute applies only to the actual act of oiling while the machinery is in motion.
    We maintain that the proximate and sole efficient cause of this accident was the presence of the piece of sheet-iron upon which plaintiff slipped, which was negligently erected and maintained by defendant in proximity to the machinery in which plaintiff was injured. Plaintiff's alleged violation of the statute by oiling the machinery while in motion, and his presence about the machinery for that purpose, was only the condition that made the accident possible; it merely furnished the occasion of the accident, but was not the cause of it and in no way contributed to it as a cause: Farley v. Charleston Basket, etc., Co., 51 S. C. 222 (28 S. E. Repr. 193); Baughman v. Railroad Co., 92 Pa. 335; Railway Co. v. Boudrou, 92 Pa. 475; Creed v. Railroad Co., 86 Pa. 139; Artherholt v. Motor Co., 27 Pa. Superior Ct. 141; Sharrer v. Paxson, 171 Pa. 26; Gray v. Scott, 66 Pa. 345; Besecker v. Railroad Co., 220 Pa. 507; McCabe v. Philadelphia, 217 Pa. 140; Gannon v. Wilson, 18 W. N. C. 7; Hollis v. Widener, 221 Pa. 72.
    The parts of the machinery oiled by the plaintiff in this case were not “dangerous parts” in contemplation of the statute; and it was at least for the jury to say whether the machinery and the act of oiling it were of such a dangerous character as to convict plaintiff of contributory negligence: Kay v. Fredrigal, 3 Pa. 221; Carn v. Fillman, 10 W. N. C. 152; Lenahan v. Coal Mining Co., 12 L. R. A. (N. S.) 463; Gallenkamp v. Garvin Machine Co., 179 N. Y. 588 (72 N. E. Repr. 1142); Sullivan v. Cordage Co., 222 Pa. 40; Stehle v. Machine Co., 220 Pa. 617; Coolbroth v. Penna. R. R. Co., 209 Pa. 433; Ryan v. Ardis, 190 Pa. 66; Merriman v. Phillipsburg Boro., 158 Pa. 78.
    May 17, 1909:

      Benjamin R. Jones, with him Lawrence B. Jones, for appellee.
    —The lower court held, and very properly, that even though defendant were negligent in the matter alleged, the plaintiff’s negligence in oiling this machinery while it was in motion, in violation of the statute, was contributory, and prevented recovery: Lenahan v. Pittston Coal Mining Co., 218 Pa. 311; Best v. Staple Co., 218 Pa. 202.
    Both the first and second declarations contain admissions that the machinery in question is dangerous, and such admissions may properly be taken as the statement of the plaintiff himself that the fact is so: 1 Greenleaf on Evidence, sec. 171; Truby v. Seybert, 12 Pa. 101; Frost v. Hirsch, 16 Pa. Dist. Rep. 831.
   Opinion by

Mr. Justice Brown,

Appellant was employed by the appellee to oil its machinery in connection with a conveyor or scraper-line used to convey culm to a washery. On September 15, 1905, when he was in his seventeenth year, he sustained the injuries for which he seeks compensation in this action. The accident occurred when he was alongside of the machinery for the purpose of oiling it while it was in motion. A nonsuit was directed on what the court below properly regarded as his contributory negligence in view of his disregard and violation of the Act of June 2, 1891, P. L. 176, which provides for the health and safety of persons employed in and about the anthracite coal mines. By' sec. 8 of art. 5 of that act'it is directed that no person under fifteen years of age shall be employed to oil machínery, and no person shall oil dangerous parts of it while it is in motion. The circumstances under which the appellant was injured appear from the following extracts from his testimony: “ I started out to oil the breaker half-past eight, eight o’clock I guess it was, and I walked to that scraper-line and oiled one box and went to walk across to the other. Q. What did you do when you went to the box? A. I stood there and oiled it, then I went to walk across to oil the other box and there was a piece of sheet-iron run out from under; was covered with culm dirt. I walked across, slipped on the sheet-iron, slipped in. I catched hold of the sheet-iron, pulled it in with me and it bent in a loop and the scraper-line broke. . . . Q. What happened when you were drawn in? A. After I was drawn in, the scraper-line broke. Q. How far were you drawn in? A. Up to my shoulders. Q. When you were drawn in, where were you squeezed, between the paddles and what? A. Between the paddles and the sheet-iron. . . . Q. I wish you would tell just how you were squeezed and where you were squeezed. I don’t think you told it very clearly. A. I walked down to the oil box and oiled it. I fell in the scraper-line and the scraper-line catched my shoes first and pulled me all the way in until I come to here. They stuck then and broke. . . . Q. When you were oiling that machinery it was going, was it not? A. Yes, sir. Q. You had no business down at that wheel at all unless you went there to oil, did you? A. No, sir. Q. And at the time you was hurt you were there for the purpose of oiling that wheel? A. Yes, sir. Q. And you had oiled one box? A. Yes, sir. Q. And you started around the wheel while it was in motion to oil the other? A. Yes, sir.”

The first reason urged for asking that this case be sent to a jury is that the appellant was not guilty of contributory negligence under the act of 1891, because at the time he was caught by the moving machinery he was not actually oiling it. This narrow construction of the act would in many instances defeat its very purpose, which is to protect oilers from all dangers connected with oiling machinery, and one of these certainly is getting into close proximity to it while it is in motion for the purpose of oiling it. An oiler approaching, passing around or bending over moving machinery for the purpose of his employment, though not- pouring oil upon it, is just as likely to be caught by it as when actually oiling it, and what this appellant did was clearly within the prohibition of the statute. He had just finished oiling one box, and, as he started around the revolving wheel to oil another, slipped and was caught in the moving machinery. Being of an age that made his employment lawful, his contributory negligence stands in the way of his recovery: Lenahan v. Pittston Coal Mining Co., 218 Pa. 311.

It is next contended that, even if it be conceded that the appellant is to be regarded as having been engaged in the work of oiling at the time he was injured, his act was not the proximate cause of his injury and did not contribute to it, the same having resulted from an intervening cause — the negligence of the defendant in not providing him a safe place in which to do his work. We are not prepared to say that any such negligence was shown on the part of the defendant, and it is not necessary that we pass upon that question, for complaint cannot be made by a servant that a safe place was not provided for him when he is injured in doing that which he was expressly forbidden to do, either by his master or by the written law of the land. What happened to this appellant could not have happened if he had not been doing a prohibited thing.

Lastly, it is urged that the jury ought to have been permitted to pass upon the question of the dangerous character of the machinery. All moving machinery from contact with which one is liable to be injured is dangerous, and such was the character of the machinery in this case. In the first statement filed by the plaintiff it is described as dangerous, and in the second or amended one there is a similar averment by implication in the complaint that it was unguarded. These averments were established by the evidence, and under it the court could not have permitted the jury to find otherwise.

Judgment affirmed.


author: Mr. Justice Mestrezat,

text:
    Cornely, Appellant, v. Zentmyer.

      Mines and mining — Coal lease — Unpaid rentals — Assignment of lease — Ejectment—Conditional verdict.

    Where a coal lease for ninety-nine years provides for a minimum royalty, and it appears that neither the lessee nor his assignee has ever taken possession of the coal, or performed any of the covenants of the lease, the assignee cannot recover the coal in ejectment without paying the minimum royalties in arrears.
    Argued April 20, 1909.
    Appeal, No. 200, Jan. T., 1908, by-plaintiff, from judgment of C. P. Clearfield Co., Sept. T., 1906, No. 131, on verdict for plaintiff in case of W. P. Comely v. Porter B. Zentmyer and Thomas McGlynm
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Ejectment for coal in Bigler township. Before A. O. Smith, P. J.
    The facts appear by the opinion of the Supreme Court.
    The court charged in part as follows:
    As we look at this case then, gentlemen of the jury, it is simply a question of law which we have determined in favor of the defendants, that they are entitled to a verdict at your hands, to be released however to the plaintiff upon the payment of the back royalties due to them since their purchase, amounting to $16,155.34. The time in which he is required to pay that, however, is a matter for the jury, and he is entitled in such conditional verdict to a reasonable time. What that reasonable time is of course we cannot control and it is wholly for the jury. In the argument of counsel, the counsel for plaintiff contended they ought to have a year, while the counsel on the other side contended it should not exceed six months. It is wholly for the jury.
    The form of the verdict being in this language: We, the jury, find in favor of the defendants for possession of the two seams of coal in the lease contract of June 23, 1886, to be released to the plaintiff on the payment by the plaintiff of the sum of $16,155.34 royalties due under said lease contract within the period of months. It is your province then, gentlemen of the jury, to find your verdict fixing the time which they shall have for repayment. Take this case then, gentlemen, and pass upon that single question, bringing in a verdict in the form otherwise as I have given you.
    The jury returned a verdict for plaintiff in the form stated in the charge.

      Error assigned among others was above instruction.

      Harry Boulton, of Gordon & Boulton, and Oscar Mitchell, for appellant. —
    By the agreement made between the Whiteside heirs and Barnes & Parker a sale in place was made of the coal in the two veins under the “Joseph Bullock” tract and there was a complete severance of the estate in the coal from that of the surface: Lazarus’s Est., 145 Pa. 1; Sanderson v. Scranton, 105 Pa. 469; Kingsley v. Hillside Coal & Iron Co., 144 Pa. 613; Finnegan v. Stinemen, 5 Pa. Superior Ct. 124; Timlin v. Brown, 158 Pa. 606; Duff’s App., 21 W. N. C. 491; Coolbaugh v. Coal Co., 213 Pa. 28; Denniston v. Haddock, 200 Pa. 426; Hosack v. Crill, 18 Pa. Superior Ct. 90.
    When there is a sale of coal in place by an agreement the royalties arising from same are personalty, and in case of death of the lessor are distributed as personalty: Lazarus’s Est., 145 Pa. 1; Maffet’s Est., 8 Kulp, 184; Fairchild v. Fairchild, 9 Atl. Repr. 255.
    If the contract of June 22,1886, is a lease, and appellees are entitled to the royalty accruing under the same, appellant contends the covenants to pay royalty were suspended during the time the appellees held possession against him: Bauders v. Fletcher, 11 S. & R. 419; Ross v. Dysart, 33 Pa. 452; Tiley v. Moyers, 43 Pa. 404; Pier v. Carr, 69 Pa. 326; Duff v. Wilson, 69 Pa. 316; Oakford v. Nixon, 177 Pa. 76..

      Krebs & Liveright, with them Bell & Hartswich 'and James H. Kelley, for appellees. —
    The plaintiff is not entitled to have possession to mine and remove the coal without compliance with the terms of the contract.
    May 17, 1909:
    The agreement of June 22, 1886, was at most a conditional sale: Denniston v. Haddock, 200 Pa. 426; Coolbaugh v. Coal Co., 213 Pa. 28; Gallagher v. Hicks, 216 Pa. 243.
    Admitting, for the sake of the argument, that the royalties are purchase money he must pay what purchase money he owes before being entitled to maintain this action. He neither paid nor tendered the same: Eberly v. Lehman, 100 Pa. 542; Bell v. Clark, 111 Pa. 92; Parry v. Parry, 130 Pa. 94.
   Opinion by

Mr. Justice Mestrezat,

The heirs of Robert Whiteside, deceased, by an “agreement of lease” dated June 22, 1886, let to Thomas Barnes and William Parker all the coal in two certain seams or veins in and underlying a certain tract of land in Clearfield county for a term of ninety-nine years. The consideration or royalty to be paid was ten cents per ton and the lessees were to ship not less than 20,000 tons a year, and were to pay the royalty on that amount whether it was shipped or not. If the lessees failed to pay the royalty on coal which had not been shipped in any year, they were to receive a credit on the succeeding year’s shipment for the amount of the overpayment. The lessees assigned their “right, title, and interest in and to” the lease to Comely, the plaintiff, by a writing dated May 21, 1905. It does not appear that the lessees or their assignee ever had possession under the lease or performed its covenants. The defendants claim title from the heirs of Robert Whiteside by virtue of certain legal proceedings in the courts of Clear-field county, not necessary to be referred to more particularly. It appeared on the trial that there are royalties amounting to more than $16,000 due and unpaid to the lessors or the parties holding their title. The court directed the jury to find a verdict for the defendants to be released to the plaintiff on the payment of the royalties due and unpaid within such time as the jury might determine. Judgment was entered on the verdict, and the plaintiff has appealed.

We need not discuss or determine the many questions raised in the arguments of counsel. It is sufficient to say that under the undisputed evidence in the case the learned judge of the court below was clearly right in directing a conditional verdict. It is all the plaintiff was entitled to, and it was a charitable concession on the part of the defendants to accede to it. Conceding the plaintiff to be a grantee of the coal, as he claims, he is out of possession and seeks to recover it by virtue of an executory contract with the terms of which it is admitted he has not complied. It is settled law that a plaintiff under such circumstances is not entitled to the specific performance of a contract, or to the possession of the real estate which he claims by virtue of the contract. If he invokes the equitable powers of the court to enforce the contract, the duty is cast upon him to show that he himself has complied with its terms. The plaintiff occupies the position of the lessees. By the assignment of the lease to him, he simply took all their “right, title and interest,” and, therefore, he must comply with the terms of the contract, just as they would have been compelled to do, had they attempted to assert their title against the lessors or those claiming under them. This he has failed to do. As said in Kreutz v. McKnight, 53 Pa. 319, a case very similar to the one in hand, “the infirmity of the plaintiff’s case is, that there was an utter failure to show performance or offer of performance of his covenants.” In that case it is held that “the lessee being out of possession, he could not recover in ejectment without showing performance or an offer of performance of his covenants.”

The defendants who claim under the Whiteside heirs and have been in possession of the premises for nearly ten years are not seeking to annul or set aside the agreement under which the plaintiff claims. All they ask is that he, standing in the shoes of the lessees, pay the purchase money due on the contract. It would be most inequitable without prepayment of the unpaid royalties to permit the plaintiff to take possession of the premises after the great lapse of time during which the lessors or those holding under them have been deprived of the royalties due them. It would be analogous to the case of a tenant attempting to prevent payment of rentals by collusion with an undertenant which caused Chief Justice Woodward in Kreutz v. McKnight, 53 Pa. 319, to remark: “It would be an intolerable hardship to landlords, if tenants once in possession could allow themselves to be ousted by intruders for more than half the term, neither tenant nor intruder rendering the stipulated rent.” The defendants are not claiming royalty for any coal which they or their lessees mined and removed. That is not included in the verdict as is shown by the court’s charge.

The judgment of the court below is affirmed.


text:
    Harrier, Appellant, v. Dale.

      Negligence — Master and servant — Evidence of relation of master and servant — Case for fury.

    In an action by a boy to recover for personal injuries sustained while working at a corn husker owned by the defendant, the latter denied that he had employed the plaintiff, and testified that he had leased the corn husker to another person, and that such person had employed the plaintiff to work at the machine. Plaintiff’s father testified that the defendant had employed his son, and it also appeared that the accident occurred in the defendant’s barn, and when the plaintiff was husking defendant’s corn, and that defendant had asked the boy to work the machine; and according to one of the witnesses had stated that he had so employed the boy. The evidence for the plaintiff tended to show that he had never previously worked at a corn husker, and that neither the defendant nor anyone else had given him any instructions how to work it. Held, that the case was for the jury.
    Argued April 21, 1909.
    Appeal, No. 293, Jan. T., 1909, by plaintiffs, from judgment of C. P. Clearfield Co., Sept. T., 1907, No. 391, on verdict for defendant in case of Rex N. Harrier, by his next friend, James Harrier, and James Harrier v. David Dale.
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before. A. O. Smith, P. J.

      The facts are stated in the opinion of the Supreme Court.
    The court gave binding instructions for defendant on the ground that the evidence showed that there was no relation of master and servant between defendant and plaintiff.
    Verdict and judgment-for defendant. Plaintiffs appealed.

      Error assigned was in giving binding instructions for defendant.
    S. V. Wilson with him Thomas H. Greevy, for appellant.—
    When the facts on which the right to recover rest are controverted, it is the duty of the court to leave them to the jury: City of Harrisburg v. Saylor, 87 Pa. 216; Pender v. Raggs, 178 Pa. 339; Smith v. Harvey, 4 Pa. Superior Ct. 377; Central Coal & Iron Co. v. Grider, 65 L. R. A. 455; Nyback v. Lumber Co., 48 C. C. A. 632; Stork v. Philadelphia, 199 Pa. 462.
    Plaintiff was entitled to proper instructions before being put to work at the machine: Noden v. Verlenden, 211 Pa. 135; Kehler v. Schwenk, 151 Pa. 505; Doyle v. Waste Co., 204 Pa. 618; Staddon v. Chapman Mineral Co., 33 Pa. Superior Ct. 475; Strawbridge v. Bradford, 128 Pa. 200; Brislin v. Coal Co., 20 Pa. Superior Ct. 234; Greenan v. Eggeling, 30 Pa. Superior Ct. 253; Welsh v. Butz, 202 Pa. 59; Lebbering v. Struthers, 157 Pa. 312; Gilbert v. Tanning Co., 221 Pa. 176; Wessel v. Steel Co., 28 Pa. Superior Ct. 332; Neilson v. Hillside Coal & Iron Co., 168 Pa. 256; Dougherty v. Dobson, 214 Pa. 252; Sheetram v. Trexler Stave, etc., Co., 13 Pa. Superior Ct. 219.

      Thomas H. Murray, with him J. P. O’Laughlin, Hazzard A. Murray and Oscar Mitchell, for appellee. —
    The testimony both on part of the plaintiff and of the defendant shows that Rex N. Harrier was hired by Joseph A. Smeal and that he was his servant : Butler v. Townsend, 126 N. Y. 105 (26 N. E. Repr. 1017).
    Joseph A. Smeal, by the uncontradicted evidence, having the control of the machine, and operating it under his lease, was an independent contractor, and the appellee was not liable for his negligence, if he was negligent: Smith v. Simmons, 103 Pa. 32; Harrison v. Collins, 86 Pa. 153; McCullough v. Shoneman, 105 Pa. 169.

      May 17, 1909.
    The burden of proof is on appellant to show that he was employed by the appellee, but he has failed to do it: Hunt v. Penna. R. R. Co., 51 Pa. 475; Hyatt v. Johnston, 91 Pa. 196.
    The law is settled that an employee, in accepting employment assumes all risks ordinarily incidental thereto, and all other risks, open and obvious, the dangerous character of which he has had an opportunity to observe: Bowen v. Penna. R. R. Co., 219 Pa. 405; Yant v. Roelofs, 217 Pa. 535; Burns v. Johnstown Pass. Ry. Co., 213 Pa. 143.
   Opinion by

Mr. Justice Mestrezat,

The questions in this case depend upon oral testimony and we think they were for the jury. The alleged lease or hiring by Smeal from Dale, the defendant, of the thresher and corn husker was not in writing. The authority of Smeal to operate and control both machines depends upon oral testimony, and the relation existing between Smeal and Dale was necessarily for the jury under the testimony in the case.

Did the relation of master and servant exist between the minor plaintiff and the defendant at the time the former was injured by the corn husker? The plaintiff alleges that it did and introduced testimony to sustain his contention. Smeal employed the boy through his father to measure grain as it came from the thresher. Smeal and his assistants including the boy spent about ten days in operating the threshing machine in the vicinity of their home in Clearfield county. They then returned and placed the thresher in the defendant’s barn where was also the corn husker. Both machines, it is conceded, were owned by the defendant. Two or three days after the parties had returned from their threshing tour, the boy was put to work to feed the corn husker which was then being operated in the barn for the purpose of husking the defendant ’s corn. The boy testified that when he went to work on the morning of the day when the accident occurred the defendant asked him to feed the machine, and told him that Mr. Smeal would assist him. He further says that while at work there he boarded with the defendant; and that he saw Smeal pay the money received for threshing to the defendant Dale.

Robert Harrier, the plaintiff’s brother, testified that he was at the defendant’s house on the evening of the accident. He went there to get his brother to accompany him to church. He asked Mr. Dale where he could find his brother, and Dale replied that he was hurt and had been taken to a doctor. Dale further said on this occasion, according to this witness, that, “Ferd Mains was to come and feed the machine, and as Ferd didn’t come I had no other hand and I put your brother at it.”

As tending to establish the relation of master and servant between Dale and the boy, the above testimony was corroborated by James Harrier, the father of the minor plaintiff. He admits that the boy was employed through him, and that Dale, the defendant, paid him for the boy’s services, but says his son was employed to work about the steam thresher and not the corn husker. It further appears from the plaintiff’s testimony that Smeal directed all threshing bills to be paid to Dale; that if Smeal received any part of the pay for the work he turned it over to the defendant; that the latter furnished the oil for the thresher, and paid for the repairs and for the coal when the machine left Dale’s premises to be operated at some other point. Dale employed other help to assist in operating the machine and husking the corn on the day of the accident. He himself was in and about the barn at such times as he would return with a load of corn from the field to the barn.

If the evidence of the plaintiff is believed by the jury we are unable to see why it does not make out a case of employment of the boy by Dale. The machine at which the boy was put to work belonged to Dale and was on his premises. He was directed by Dale to feed the machine. It was Dale’s corn that was being husked. Dale furnished coal and oil for the machine and paid for the repairs. He employed others to assist in operating the machine. Smeal retained no part of the money received for threshing, but directed it all to be paid to Dale. Smeal offered to pay the boy for assisting him in threshing wheat by giving an order on Dale. This testimony, if believed, was sufficient to establish the relation of master and servant between Dale and the injured boy.

On the part of the defendant it is denied that he had anything whatever to do with employing the boy to work at either the threshing machine or the corn husker. He alleges that there was an oral agreement between him and Smeal by which Smeal hired or leased both machines from him for a consideration agreed upon between them, that the machines were operated and controlled by Smeal, that the boy was employed by Smeal to work at both machines and that at the time the boy was injured by the corn husker the machine was being operated and controlled by Smeal under the alleged hiring or lease. The defendant denies that he put the boy to work at the corn husker or had anything whatever to do with employing him for such service. He also denies that he ever admitted that he asked or directed the boy to work at the machine. In other words, the defendant’s position is that he let both machines to Smeal who had absolute control over them and operated them entirely independently of the defendant.' It is needless to say that if the testimony satisfied the jury of the correctness of the defendant’s contention the plaintiff was not entitled to recovery. It is manifest, however, that the existence or nonexistence of the. relation of master and servant between the defendant and the injured boy at the time of the accident was for the jury under the evidence submitted.

The negligence alleged in the statement on which the plaintiff seeks to recover is the failure of the defendant to instruct the boy as to the performance of his duties in feeding the corn husker. It is conceded that the defendant gave the boy no instructions. . It is claimed, however, that Smeal gave him proper instructions. This is denied by the boy, who testifies that he received no instructions from Smeal or any other person other than to feed the machine. That instructions how to operate the corn husker were necessary and should have been given the boy we think is apparent without discussion. The machine was manifestly a dangerous one, and it is evident that the boy was not familiar with it. He had never worked about such a machine, his previous employment having been ordinary farm work, and he knew nothing about feeding or operating a corn husker. It is not necessary that a machine should be in a manufactory to make it dangerous or that instructions need not be given to one unacquainted or not familiar with its operation because it is used elsewhere than in a manufactory. Whether the boy had sufficient knowledge to understand and avoid the danger incident to his employment at the machine was, under the testimony, for the jury. If he had such knowledge and did not use it and avoid the danger he was negligent. This was likewise a question for the jury. The simple fact that the rollers which caused the boy’s hand to be crushed could be seen was not of itself sufficient to convict the boy of negligence. Such rollers we have reason to know from cases in this court are causing accidents almost daily to those whose youth or inexperience prevents them from protecting themselves while engaged in operating the machine. If it be conceded that the boy saw Smeal on one occasion clean the machine with his hands and relieve it from the corn which clogged the rollers, it does not follow that this was sufficient instruction to the boy to enable him to avoid the danger. In fact, it appears that the machine ought not to have been cleaned with the hands, but by something held in the hands suitable for the purpose.

The burden of proof was on the plaintiff, and it was incumbent upon him to establish the negligence alleged in the statement before he was entitled to recover. It was his duty to satisfy the jury that the defendant was responsible for negligence which resulted in his injury, and failing in this no responsibility rested on the defendant for the plaintiff’s injuries. The evidence produced on the trial below, we think was sufficient to submit to the jury in support of the plaintiff’s claim and, therefore, the learned judge was in error in withdrawing the case from the jury and directing a verdict for the defendant.

The first assignment of error is sustained, and the judgment is reversed with a new venire.


text:
    Alexandria Water Company v. National Surety Company, Appellant.

      Contract — Building contract — Payment—Engineer’s estimate — Principal and surety.

    1. Where a building contract provides that payment to the contractor shall be made on the engineer’s estimates, but no form of estimate is prescribed, a payment on an oral estimate, if made without fraud or collusion, is a proper one, and cannot be set up by .the contractor’s surety as such a violation of the contract as will relieve the surety from liability.
    2. A construction contract provided that on completion of the work, to the satisfaction of the owner’s engineer, and before final payment of balance due, the contractors “shall give satisfactory evidence, if called for, that all bills and claims against the contractors that in any way might remain as a lien against the work, are fully paid and discharged.” No inquiry was made by the owner prior to the final payment to the contractors about unpaid claims or liens. Held, that the surety of the contractor could not allege that such omission on the part of the owner was a breach of the contract which would relieve the surety from liability for the amount of a mechanic’s lien which the owner had been compelled to pay.
    3. In "such a case the stipulation of the contract required the contractors to furnish satisfactory evidence of the payment of claims and liens, but it did not impose upon the owner' the obligation to require satisfactory evidence of the absence of such claims and liens. The stipulation was for the protection of the owner, and as it was optional with the owner to call for such evidence, failure to call for it was no violation of the agreement.
    Argued April 22, 1909.
    Appeal, No. 118, Jan. T., 1909, by defendant, from judgment of C. P. Huntingdon Co., Sept. T., 1904, No. 12, on verdict for plaintiff in case of Alexandria Water Company v. National Surety Company.
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Assumpsit on a bond of suretyship. Before Woods, P. J.
    At the trial under the instruction of the court the jury returned a verdict for plaintiff for $14,520.64.
    On a motion for judgment non obstante veredicto, Woods, P. J., filed the following opinion:
    William M. Powell & Company entered into a written contract with the Alexandria Water Company, to install a water system in the borough of Alexandria, of said county. Under the terms of said contract the said William M. Powell & Company agreed, inter alia, as follows:
    “The said party of the second part agrees to execute to the said party of the first part bonds in amount equal to the amount of this contract for constructing a plant with said security for the faithful performance of this contract and indemnify the said party of the first part from loss, costs, or damages for or by reason of any liens, claims, or demands for material.”
    In pursuance to the provision contained in said agreement, the said William M. Powell & Company produced a bond executed by the National Surety Company, whereby the said National Surety Company became surety for the said William M. Powell & Company for the faithful execution of said water system.
    Among the conditions of the said bond is the following:
    “Now, if the above bounden principals shall, well and truly keep, do and perform, each and every, all and singular, the matters and things in said contract set forth and specified to be by the said principals, kept, done and performed at the times and in the manner in said contract specified and shall pay over, make good and reimburse to the above named obligee (water company of Alexandria), all loss and damage which said obligee may sustain by reason of failure or default on the part of the said principals (William M. Powell & Company), then this obligation shall be void, otherwise shall remain in full force and effect.”
    Following the above condition of said .bond there are certain things to be performed by the defendant in this case which read as follows:
    “Recovery hereunder against the surety company shall be subject to the following conditions precedent:
    “1. The obligee shall perform the covenants performable by the obligee of the said contract.
    “ 2. The obligee shall immediately notify the surety by registered letter addressed to the surety at its principal offices in the city of New York, of any default in any manner as and when such default shall occur by the principals of any matter and thing performable by the principals specified in the said contract.
    “ 4. Any failure of the obligee to comply to the requirements of the said conditions precedent shall relieve this surety from all liability under this bond.”
    The water system was completed on or about December 1,1903, and on or about January 16,1904, the Alexandria Water Company was notified by the said American Car & Foundry Company that the said William M. Powell & Company had failed and neglected to pay for the cast iron pipe and specials which had been used by the said contractors in the construction of the said water system, and upon the said day the Alexandria Water Company, by its attorney, notified the defendant, the National Surety Company, of said default on the part of said William M. Powell & Company, and suit was brought to recover the costs of said pipe by the American Car & Foundry Company. The suit, American Car & Foundry Company v. The Alexandria Water Company and William M. Powell & Company, was tried and finally determined in favor of the American Car & Foundry Company and the Alexandria Water Company were compelled to pay to the said American Car & Foundry Company, the amount of said judgment.
    This suit is now brought against the National Surety Company, the defendant, to recover the amount for which the Alexandria Water Company was compelled to pay and is founded upon the bond given by the National Surety Company to indemnify the said Alexandria Water Company against any default on the part of William M. Powell & Company. In the trial of the case, after the plaintiff had rested, the defendant by their attorneys asked the court to direct a compulsory nonsuit for the reasons at that time stated; the court then reserved its decisions and directed the defendant to proceed with its defense. At the close of the testimony the attorney for the defendant asked the court to direct a verdict for the defendant for the reasons assigned in the request for a compulsory nonsuit, which reads as follows:
    1. Because the plaintiff has not exhibited such a case by its pleadings and evidence as entitles it to a recovery against the defendant.
    2. The contract to which the bond in suit refers, and which by its terms is made a part thereof, and the performance of which on the part of the obligee is made a condition precedent to liability on the part of the defendant, or the right to recover thereon against the defendant, provides that monthly estimates be made upon which payment shall be made from time to time, less ten per cent, which estimates shall be made upon the first of the month, and the testimony on the part of the plaintiff shows affirmatively that no such estimates were made as was provided by the contract.
    3. Because it appears by the testimony on the part of the plaintiff that no monthly estimates whatever were made except those made on October 10 and November 10. The portion of the contract here invoked, which prescribed the duty of the plaintiff respecting the estimates, is as follows (23 of specifications): “On the first of each month the engineer will estimate the quantity of work done during the month previous; 90 per cent of the work so estimated shall be paid for within ten days. On the completion of the entire work the contractor shall be paid 90 per cent of the final estimate. One-half of the balance, or 5 per cent shall be retained until the work had been tested satisfactorily to the engineer and the remaining 5 per cent shall be retained for a period of four months as a guarantee that the contractor will repair any leaking joints or irregularities in the street surface that may develop after the work has been accepted. If the contractor shall fail to repair and make good any defects that may develop during that period, the Water Company reserves the right to use the money retained for that purpose.”
    4. Because it appears by the testimony of the plaintiff that no estimate whatever was made for work done in the month of November, and no estimate whatever was made for work thereafter done.
    5. Because the alleged additional contract made after the completion of the work was in fact for work done under the contract, and is nowhere separated from the contract except by the averments in the plaintiff's pleadings or statement. That in fact that work was an extension of the work which is alleged to have been completed on November 30, 1903, and that it consisted substantially of an extension of pipe which had been previously laid. That it was arranged for in the early part of November, nearly a month before the time stipulated that the contract work was to be done; that the material which entered into the alleged new contract was blended with material under the contract proper; that the payments for it and for the contract proper were blended, that the credits were blended as appears both by the oral testimony and by the writings exhibited by the plaintiff. Furthermore that it entered into the lien, and constituted a part thereof, and there was single recovery for the items constituting the lien, part of which were upon the original contract and part of which were upon the alleged additional contract, and being a part of the contract proper, and differing in no essential from it and from other work done under it, it could only be contracted for upon the conditions and stipulations provided in the contract for additional work, or extension of the work under the contract, none of which are either alleged or shown to have been complied with. The portion of the contract imposing upon the plaintiff its duties with respect to such additional work is as follows: “It is mutually agreed between the parties to this agreement that if any change, alteration or omissions or additions are made in the .work during the progress of the work, and such changes, alterations, omissions or additions are ordered by the engineer in writing the same shall be made and performed by the parties of the second part, according to the prices agreed upon for that particular portion of the work on which the said parties of the second part may be engaged; or in the event that no price for additional work ordered by the engineer has been agreed upon, the same shall be performed by the said party of the second part at the price to be agreed upon before such extra work has been commenced.”
    6. Because the plaintiff company failed to retain the ten per cent as provided by the’contract 'upon estimate made in making the final payment, and also failed to comply with the other provisions of the contract relating thereto.
    7. For the reason that it appeared by the testimony of the plaintiff’s treasurer that no inquiry whatever was made as to the existence of liens against the property, or whether or not there has been any default in any of the stipulations, prior to the time that final payment was made, was a failure of duty upon the part of the plaintiff in its relation to the defendant as surety both by reason of that relation and also by reason of what appears in the fourth paragraph of the contract of September 8,1903, which by the terms of the bond is made part of the bond, to wit:
    “4. It is understood and agreed that when the work contemplated in this agreement shall have been performed agreeably to the specifications and to the satisfaction of the engineer and before final payment shall have been made, the parties of the second part shall give satisfactory evidence, if called for, that all bills and claims against the said parties of the second part that in any way might remain as a lien against the work, are fully paid and discharged.”
    The first reason is to the effect that the plaintiff has not exhibited such a case by its pleadings and evidence as entitles it to a recovery against the defendant. This reason will be considered in connection with the other reasons.
    The second, third and fourth have reference to the performing of certain conditions on the part of the Alexandria Water Company, as contained in the agreement between William M. Powell & Company and the Alexandria Water Company in the construction of the said water system, with special reference to that part of the agreement which provides that monthly estimates be made upon which payments shall be made from time to time. It is provided that these estimates shall be made by the engineer and shall be paid for within ten days. The evidence shows that these payments were made on October and November upon written estimates from the engineer. Mr. Phillips further testifies that he made the last payment on a settlement with Mr. York, the engineer. The contract does not say that these estimates must be in writing, but that the estimates must be by the engineer. We are satisfied that this was a substantial compliance with the condition of the contract, and therefore these reasons are overruled.
    The fifth partakes of the alleged additional contract made after the completion of the work, and it is claimed by the defendant that this contract is nowhere separated from the alleged contract except by the averments in the plaintiff's pleading or statement. Under the original contract all additions to the work were to be under the supervision of the engineer. The evidence in this case shows that Mr. Phillips entered into a new and separate contract with William M. Powell & Company to. run a short pipe line to the Pennsylvania railroad station, and the evidence further shows that this contract was made entirely independent of the engineer who had charge of the original contract; the prices paid for the pipe were different, and the evidence shows that it was done for other considerations. We do not think that the Alexandria Water Company violated the provisions of the original contract in this particular.
    We do not think that the sixth reason is sustained by the evidence.

      The seventh and last reason has reference to the following claims in said original agreement:

      “ It is understood and agreed that when the work contemplated in this agreement shall have been performed agreeably to the specifications and to the satisfaction of the engineer and before final payment shall have been made the parties of the second part shall give satisfactory evidence, if called for, that all bills and claims against the said party of the second part that in any way might remain as a lien against the work, are fully paid and discharged.” And it is claimed by the defendant that because the Alexandria Water Company, the plaintiff, did not demand evidence of the payment of all bills and claims against the contractor before the final settlement with them that there was a breach of a contract and, therefore, the surety is discharged. Under this clause of the contract it does not provide that it was necessary for such a call for said evidence of payment of bills, but it provides that the contractors shall, if called for, give such satisfactory evidence.
    This original contract is made a part of the bond upon which suit is brought in this case, and the fact that the Alexandria Water Company did not call for such evidence does not relieve the defendant because that is one of the risks assumed by the defendant when it became surety. They had it in their power to call for these satisfactory evidences of payment if they saw fit, and they cannot now escape liability because the plaintiff in this suit failed to call for such satisfactory evidences of payment. The position taken by the defendant is that these conditions precedent were to be fully and literally complied with on the part of the plaintiff in this suit.
    In all the positions taken by the defendant there is no contention that the surety was in any way prejudiced or injured, but claimed that there having been, as it contends, a noncompliance with the strict interpretation of the contract, that it is, therefore, relieved of any liability. While the rule of law is that where a party secured, does some act which changes the position of the surety to his injury or prejudice, the surety is no longer bound, yet that act must be to the detriment of the surety. When the act of the obligee is a breach of the contract it must be to the prejudice of the surety company before it can be relieved. “ If there was change in the contract that would affect the surety or increase his liability he would be discharged:” Miller v. Eccles, 155 Pa. 36. It has been held in Holme v. Brunskill, L. R. 3 Q. B. Div. 495: “Whenever it is self-evident that the alteration or departure is neither a substantial one nor one that can be prejudicial to the surety, it is regarded as an immaterial one.”
    The defendant company became surety for William M. Powell & Company to indemnify the Alexandria Water Company against any default on the part of the contract, and unless the Alexandria Water Company was guilty of nonperformance of the contract so as to increase the risks of the National Surety Company, the defendant, it would not be relieved.
    We have given this case a great deal of thought and have reached the conclusion that there has been no material or substantial variations from the original contract on the part of the Alexandria Water Company and that the defendant has not been prejudiced by any behavior on the part of the plaintiff in connection with the contractors under the original contract and that nothing has been shown by which the defendant can be discharged from liability.
    The defendant is a compensated surety company having for its object, “The guaranteeing of the fidelity of persons holding places of public or private trusts. Guaranteeing the performances of contracts other than insurance policies and executing or guaranteeing bonds and undertakings required or permitted in all acceptances or proceedings or by law allowed.” The very loss which the plaintiff in this action sustained arose by reason of William M. Powell & Company failing to pay for material which they purchased from the American Car & Foundry Company and for which a judgment was obtained on a mechanic’s lien through the courts, and this is one of the very conditions in the contract and for which the defendant in this case became surety for William M. Powell & Company; and for which they indemnified the Alexandria Water Company. To be sure the water company had certain duties to perform, but we fail to find in all the evidence any material or substantial variation from the contract, between the water company and William M. Powell & Company, on the part of the plaintiff in this action; they had reason-to rely upon the National Surety Company for protection. If the water company deviated from the original contract it in no way worked an injury or prejudiced the surety. To our mind the water company did everything, under the contract, to protect the defendant in this case.
    DECREE.
    And now, March 10,1909, the motion and reasons for a compulsory nonsuit are overruled, and the motion and reasons for a judgment for the defendant, are refused and overruled, to which the defendant excepts and bill sealed.

      Error assigned was in entering judgment on the verdict.

      John D. Dorris and Thomas H. Murray, for appellant.
    The violations of the contract, even if they would appear to be immaterial, relieved the surety, and entitled it to binding instructions, as requested under this evidence: Miller v. Stewart, 22 U. S. 680; Bessemer Coke Co. v. Gleason, 223 Pa. 84; Smith v. U. S., 69 U. S. 219; Bensinger v. Wren, 100 Pa. 500; Nesbitt v. Turner, 155 Pa. 429; Austin Mfg. Co. v. Duerr, 19 Pa. Superior Ct. 560; Bauschard v. F. & C. Co., 21 Pa. Superior Ct. 370; National Surety Co. v. Long, 125 Fed. Repr. 887; McMicken v. Webb, 47 U. S. 292; Giddings v. Ins. Co., 102 U. S. 108; Rice v. Fidelity, etc., Co., 103 Fed. Repr. 427; Jeffries v. Ins. Co., 89 U. S. 47; Ætna Life Ins. Co. v. France, 91 U. S. 510; Lawhon v. Toors, 84 S. W. Repr. 636.
    The payments without estimate was such a violation of the condition of the bond as relieved the surety: Fidelity & Dep. Co. v. Agnew, 152 Fed. Repr. 955; Lawhon v. Toors, 84 S. W. Repr. 636; Nat. Surety Co. v. Long, 96 S. W. Repr. 745; Bell v. Paul, 35 Neb. 240 (52 N. W. Repr. 1110).
    The alleged separate contract was for work which was obviously an extension of a pipe already laid by the seventh paragraph of the contract.
    The failure to make any inquiry whatever as to existence of claims or liens before final payment was a violation of the fourth paragraph of the contract and of the condition of the bond and released the surety: Lichtenthaler v. Thompson, 13 S. & R. 157; Everly v. Rice, 20 Pa. 297; Fegley v. McDonald, 89 Pa. 128; Commercial Nat. Bank v. Henninger, 105 Pa. 496; Bank v. Concord, 15 N. H. 119.

      Samuel I. Spyker and Thos. F. Bailey, for appellee.
    We submit that there is no ground for the contention on the part of the appellant that there was any breach of the terms of the contract with reference to the estimates therein provided for: Finney v. Condon, 86 Ill. 78.
    In an action on a fidelity bond, the burden is upon defendant to prove breach of the conditions of the bond, and-not on plaintiff to prove compliance therewith: Sinclair & Co. v. National Surety Co., 107 N. W. Repr. 184; Jones v. Mutual Acc. Assn., 92 Iowa, 652 (61 N. W. Repr. 485).
    A material alteration of a contract without the consent of the sureties, will discharge them, but the addition of a separate and independent agreement which does not, expressly or by fair implication, alter the terms of the preceding contract, or affect the rights and duties thereunder, will not so operate: Barclay v. Deckerhoof, 151 Pa. 374.
    The defendant takes the position that any variance, however minute, from the strict letter of this contract, discharges the surety. We argue in reply, that that is not the law in this country: National Surety Co. v. Long, 125 Fed. Repr. 887; Nesbitt v. Turner, 155 Pa. 429; Austin Mfg. Co. v. Duerr, 19 Pa. Superior Ct. 560; Bauschard Co. v. F. & C. Co., 21 Pa. Superior Ct. 370; Ryan v. Norton, 65 Texas, 258; Simonson v. Grant, 36 Minn. 439 (31 N. W. Repr. 861); Miller v. Stewart, 22 U. S. 680; United States v. Freel, 92 Fed. Repr. 299.
    In the case of an immaterial departure from the strict terms of the contract by the obligee, the surety is not discharged unless his liability is enlarged thereby: New Haven v. National Steam Economizer Co., 79 Conn. 482 (65 Atl. Repr. 959); Miller v. Eccles, 155 Pa. 36; Fitzpatrick v. McAndrews, 2 Pa. Dist. Rep. 713; County of Glenn v. Jones, 146 Cal. 518 (80 Pac. Repr. 695); White v. Life Assn. of America, 63 Ala. 419; People v. Powers, 108 Mich. 339 (66 S. W. Repr. 215); Martin v. Whites, 106 S. W. Repr. 608; Ætna National Bank v. Hollister, 55 Conn. 188 (10 Atl. Repr. 550); Palmer v. Bagg, 56 N. Y. 523; Taylor v. Matteson, 86 Wis. 113 (56 N. W. Repr. 829); Smith v. Molleson, 148 N. Y. 241 (42 N. E. Repr. 669); American Surety Co. v. Pauly, 170 U. S. 133; American Bonding & Trust Co. v. Burke, 36 Colo. 49 (85 Pac. Repr. 692); U. S. Fidelity & Guaranty Co. v. Bank, 233 Ill. 475 (84 N. E. Repr. 670); Guaranty Co. v. Pressed Brick Co., 191 U. S. 416; Surety Co. v. Loan & Trust Co., 98 S. W. Repr. 387; Sinclair & Company v. Surety Company, 107 N. W. Repr. 184; Shreffler v. Nadelhoffer, 133 Ill. 536 (25 N. E. Repr. 630); Alfree v. Gates, 82 Iowa, 19 (47 N. W. Repr. 993); Powers v. Clark, 127 N. Y. 417 (28 N. E. Repr. 402).
    May 17, 1909:
   Opinion by

Mr. Justice Mestrezat,

We need not restate in detail the facts of this case, as the learned trial judge has correctly found and fully stated them in the exhaustive opinion he filed in refusing judgment for the defendant. We think the court below was right in directing a verdict for the plaintiff and, subsequently, in refusing to enter judgment for the defendant.

There is but a single question in the case and that is whether the plaintiff, the Alexandria Water Company, deviated or departed from its contract with William M. Powell & Company, the contractors, so as to release the defendant, the National Surety Company, from the obligations of its contract. Powell & Company entered into a written agreement with the Alexandria Water Company in September, 1903, to construct a gravity water system for the borough of Alexandria, Huntingdon county. One of the provisions of the agreement required the contractors to furnish a bond with security for the faithful performance of the contract and for indemnifying the water company against loss, costs or damages for or by reason of any liens, claims or demands for material, etc. In compliance with this stipulation of the contract, Powell & Company delivered a bond to the water company with the National Surety Company, the defendant, as surety thereon. Recovery on this bond against the surety was made subject to certain conditions precedent, and the defense in this action which is on the bond is that the water company did not comply with some of these conditions, thereby relieving the surety company from its obligation. The American Car & Foundry Company furnished certain material to the contractors for which they filed a mechanic’s lien which was prosecuted to judgment, and the water company was compelled to pay it. The plaintiff is seeking in this action to recover on the bond what it was compelled to pay on the judgment.

The first reason assigned in support of the defense is that the water company made payments to the contractors without any estimate from the engineer as provided in the contract, which required the engineer on the first of each month to make an estimate of the quantity of work done during the month previous. Payments were to be made within ten days after the estimate. Phillips, the treasurer of the water company, testifies that he paid on two estimates, one on October 10, 1903, for the work done in September, and one on November 10, 1903, for the October work. He testifies, and there is nothing in contradiction of his testimony, that the work was completed in strict compliance with the contract on November 30, 1903. The complaint of the defendant is that the engineer made no estimate for the November work. It will be observed that the contract did not require the estimate to be in writing or in any specific form. The total balance unpaid on the contract at the completion of the work was payable by its terms on or before December 10, 1903, except five per cent which was to be held “until the work was tested satisfactorily to the engineer,” and also five per cent which was to be retained as a guaranty that the contractors would repair any imperfections in the work. The water system was completed to the satisfaction of the water company within the time provided in the agreement, and hence the company was relieved from the necessity of retaining five per cent of the final estimate until the work was tested. It seems from the evidence that there was some difficulty in determining the balance due on the contract, but it was finally adjusted between the parties. Part of this balance was paid December 4, and the residue on December 11, 1903. It appears that the engineer had made some mistakes, and as soon as they were corrected the balance due on the contract was paid. Mr. Phillips testified: “I change the word to addition instead of modifications. Q. Then you made certain additions to the estimate furnished by the engineer, and settled on that basis, made the final payment? A. We did.” This settlement was made by the treasurer of the water company with a representative of Powell & Company, the contractors, and a check was given to the order of the contractors for the balance found to be due on the contract. While Mr. Phillips calls this a final statement and not an estimate yet it is apparent, from his own testimony, that the settlement was made on an estimate of the engineer. In fact, we are at a loss to see how the balance due could have been otherwise ascertained. Under the terms of the contract, a simple oral declaration by the engineer as to the amount due would have been an “estimate,” and this manifestly was furnished to the representatives of the water company and the contractors. The balance as shown by this estimate would have been paid at once on the completion of the contract had not an error been discovered in the engineer’s estimate, the correction of which required a few days’ delay. Had the water company paid to the contractors on December 1, what the engineer regarded as the balance due, we apprehend that the defendant in this action could not have successfully invoked as a defense the failure of the engineer to have made a formal estimate of the amount due for November. The contention here has no better basis to support it. There is no allegation of fraud or collusion between the water company and the contractors concerning any matter arising out of the contract. Nor is there any allegation that the water company did not pay Powell & Company the balance in full due on the contract. It is not claimed that the surety company was prejudiced or injured by any act of commission or omission on the part of the Alexandria Water Company. We think the plaintiff complied with its agreement with the contractors in securing estimates from its engineer, and that, therefore, there was no breach of this covenant which will avail the defendant in this suit.

There is no merit in the contention of the defendant that the work was not completed on November 30, 1903, as required in the agreement. The only witness testifying on the subject says that it was completed on that date. He was the treasurer of the water company, paid the money due the contractors, and it was his duty to know when the work was finished. There was another contract between the water company and the contractors for some additional work, the laying of a pipe to carry the water to the Pennsylvania Railroad station. The only evidence on the question conclusively shows that this contract was separate and distinct from the written contract between the parties, that it was made without the knowledge of the water company’s engineer and that he had nothing to do with or control over the work to be done under it. The loss sought to be recovered in this action does not arise out of that contract. The American Car & Foundry Company’s claim which the plaintiff paid and which it seeks to recover here was not for work done and materials furnished in pursuance of the supplemental or additional contract.

It is provided in the construction contract that on completion of the work to the satisfaction of the water company’s engineer and before final payment of the balance due, the contractors “shall give satisfactory evidence, if called for, that all bills and claims against the said party of the second part that in any way might remain as a lien against the work are fully paid and discharged.” No inquiry was made by the water company prior to the final payment to the contractors about unpaid claims or liens, and it is contended by the defendant that this was a breach of the contract which relieves the surety company from liability in this action. It will be observed that the bond given by the defendant was to protect the plaintiff, inter alia, from loss by reason of such claims and liens. If, therefore, the defendant’s contention is sustained the very purpose of the bond is nullified and the plaintiff is in the same position as though no bond had been given. The defendant should make out a very strong case and show conclusively that its interpretation of the contract is correct before a court should give a construction to the agreement which would result in such consequences. The position taken by the defendant practically relieves it from all liability upon the bond and makes the plaintiff become its own surety for claims and liens which it was compelled to pay by reason of the default of the contractors. The condition precedent with which the plaintiff was required to comply before it could maintain an action on the bond against the surety was that it should observe the terms of its contract with the contractors. The stipulation of the agreement just quoted requires the contractors to furnish satisfactory evidence of the payment of claims and liens, but it does not impose upon the water company the obligation to require satisfactory evidence of the absence of such claims and liens. The stipulation was for the protection of the water company and is a covenant on the part of the contractors that they would furnish information if called for. It was optional with the water company whether it should call for the evidence of payment and discharge of claims and liens, and, therefore, the failure to call for such evidence was no violation of the agreement. It may well be, and presumably is, the fact that the water company had evidence satisfactory to itself that all bills and claims against the contractors were paid when it made the final payment due under the contract. Though the evidence was satisfactory to it, the company was evidently misinformed or misled, as it was subsequently compelled to pay a claim which was a lien against its property. . The very purpose of the bond in suit was to protect it against such loss. It was liable to err in its judgment or in its action with the contractors, and to sustain a loss by their noncompliance with the agreement, and the purpose of requiring the bond was to protect it from loss caused by any default of the contractors which was not attributable to its own violation of duty to the surety company. If the contract required the water company to be absolutely certain of the discharge of all claims and liens prior to making the final payment due on the contract, as a condition precedent to a recovery on the bond, there was no reason or necessity for the company requiring a bond at all. The construction placed upon this stipulation of the contract by the defendant deprives the plaintiff of the protection which it was manifestly the purpose of the bond to afford.

The judgment of the court below is affirmed.


author: Pee Curiam,

text:
    Newton v. Emporium Borough, Appellant.

      Road, law — Paving—Petition of owners — Conditional signature— Tenants in common.

    1. A petition to confer jurisdiction on a borough council to pave a street must be signed unconditionally by the owners of the necessary two-thirds of the feet frontage thereon, in order to fully and legally bind the petitioners. The addition of the word “ conditionally ” after a signature, and without specifying what the condition is, renders the signature invalid, inasmuch as it puts the council upon notice that there is some condition attached to the signing, and any condition whatever will render the signature void.
    2. The signer of the petition to pave a street cannot withdraw his signature after the council has passed the ordinance prayed for by the petition. He may withdraw it, however, before any action has been taken by notice to the proper officers.
    3. Where property abutting on a street is owned by tenants in common, all of the tenants in common must sign the petition for the paving in order that the property should be counted in the two-thirds of the feet frontage necessary to sustain the petition.
    Argued March 15,1909.
    Appeal, No. 307, Jan. T., 1908, by defendant, from order of C. P. Cameron Co., Oct: T., 1908, No. 15, quashing ordinance in case of Emily N. Newton et al. v. Emporium Borough.
    Before Mitchell, C. J.,Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Appeal from ordinance authorizing the paving of a portion of Fourth street in the borough of Emporium.
    Hall, P. J., filed the following opinion:
    ■The town council of the borough of Emporium adopted an ordinance in due form requiring the curbing and paving of a certain part of Fourth street, in the borough of Emporium. The ordinance recited that whereas the petition of two-thirds of the owners of property representing not less than two-thirds in number of feet of the properties bounding or abutting on the part of Fourth street between the west end of the brick paving now on Fourth street and the west side of Wood street has been presented to the council of the borough of Emporium requiring the said council to-require the curbing and paving of said street, between the said points, with brick, stone or or other suitable material and to collect two-thirds of the cost and expense of the same from the owners of the real estate on said street; therefore, it was ordained and enacted that the said paving should be done.
    Emily M. Newton and four others, owners of property abutting on that portion of Fourth street, affected by the ordinance, filed their appeal from said ordinance and presented their petition asking that it be quashed. The grounds alleged in the petition are that the borough council was without jurisdiction to pass the ordinance for the reason that the necessary two-thirds of the owners of property, representing not less than two-thirds in number of feet of the property fronting and abutting on that part of Fourth street, proposed to be paved, had not signed the petition.
    It appears from the testimony that the total frontage of the property abutting on that portion of Fourth street, proposed to be paved, is 1,757 feet seven inches, and two-thirds of this would be 1,171 feet eight and two-thirds inches. The sole question to be determined in the case is whether the abutting property owners representing two-thirds frontage signed the petition to the council requesting that this paving be done, thereby conferring upon it the necessary jurisdiction to pass the ordinance. The borough claims that the signers to the petition represent 1,245 feet, while the petitioners claim the petition in fact, only represents 1,098J feet. The difference of 146| feet arises out of a dispute as to what effect should be given to three signatures appearing on the petition, to wit: those of M. C. Tulis, John Hogan, and John F.-Parsons. We will consider them in their order.

      It is the uncontradicted testimony that M. C. Tulis is the owner of seventy-one and one-half feet and that he signed the petition, appending, however, to his signature the word “ conditionally.” He testifies that the petition was presented to him by a member of the town council and that he stated to him at the time that he signed the petition on the condition that the sewers should first be improved, as he thought it would be money wasted to pave the street before that was done. There is no evidence, however, that this conversation was ever repeated to the town council while in session or that any legal notice was given them as to what was meant by the word “ conditionally” which followed his signature. We may, therefore, assume as a matter of law that the town council had no such official knowledge.
    We think there can be no question that a petition to confer jurisdiction on a borough council to pave streets must be signed unconditionally by the owners of the necessary two-thirds of the feet frontage thereon, in order to fully and legally bind the petitioners. In the case of Von Steen v. Beatrice, 36 Neb. 421 (54 N. W. Repr. 677), the condition was that the grade should be satisfactory and that the trees should not be molested. The supreme court of Nebraska said: “We agree with the district court that the petition to confer upon the council jurisdiction must be unconditional, and that no argument is required to prove that the signatures should have been rejected.” The Nebraska statute is different from ours only in the respect that it requires the petition to be signed by a majority of the owners representing a majority of the feet frontage, instead of two-thirds, and that it imposes the whole cost of the paving upon the abutting owners instead of two-thirds thereof. To the same effect is the case of Batty v. Hastings, 63 Neb. 26 (88 N. W. Repr. 139). In the case of Norwood v. Mills, 8 Ohio, 669, the signature was by the owner of the fee conditioned on the tenant's agreement to pay the costs, and the decision of the court was to the same effect. In all three of the decisions above- cited, however, the condition was specified and the next question to be considered is whether the mere adding of the word “conditionally” to the signature, without specifying what the condition was, would be sufficient to render it invalid. We are reluctantly forced to the conclusion that it would, for the reason that the act-requires .the signature to be absolutely unconditional. The fact that the word “conditionally” followed the signature put the council upon notice that it was not such an unconditional signature as the law requires but that there was some condition attached to it, and it was entirely immaterial what that condition might be. The mere fact that there was any condition at all rendered the signature void for the purposes of conferring jurisdiction upon the council. This signature, therefore, must be rejected.
    John Hogan is the owner of fifty feet frontage abutting upon that portion of the street proposed to be paved. He signed the petition, but subsequently wrote a letter to the council withdrawing his name. This letter he handed to the chief of police for presentation to the council and it appears that it was read at the council meeting after motion had been made and seconded that the ordinance be passed, but before the vote was taken. It is contended by the counsel for the appellants that unless otherwise provided by charter, signers of a petition are free to withdraw their names at any time before the municipality has acted upon the same, and a number of decisions from the courts of last resorts of other states have been cited in support of this position. The law, however, seems to be otherwise in Pennsylvania. As I understand it, the rule is that a petitioner is free to withdraw his name at any time before jurisdiction has attached, but cannot do so thereafter. In this case if Hogan had served his notice on the proper officers of the corporation before the meeting or had appeared and served the notice before the petition was presented at the meeting, we think it would have been sufficient, but the evidence in this case shows that his notice was not presented to the council until after the petition had been presented and a vote was about to be taken upon the passage of the ordinance. There is no precisely similar case in Pennsylvania, but the principle I have laid down is asserted as to a petitioner before a grand jury in Tullytown Borough, 1 Pa. Dist. Rep. 292; Borough of Quakertown, 3 Grant, 203; and the precise question in this case was covered in White v. Buffalo, 43 N. Y. Super. Ct. 180, where it was held that when a petition, duly and regularly signed and submitted, asking for local improvements, was before a common council for consideration, the council was not bound to examine a remonstrance filed by some of the petitioners asking to have their names struck from the petition. This signature is, therefore, sustained.
    John F. Parsons, one of the petitioners, is the owner individually of fifty feet frontage of the abutting property, and is the owner as'a tenant in common of the undivided one-half interest in another fifty feet. As to the fifty feet that he owns individually there is no question, but the counsel for the appellants contends that the fifty feet in which he owns an undivided one-half interest should not be counted at all, as the petition is not signed by his tenant in common. The counsel for the appellee, on the other hand, contend that as he is the owner of the one-half interest in this fifty feet, twenty-five feet, or one-half of it, should be counted. The position of the appellee in regard to this matter cannot be sustained upon any theory either of law or common sense. The law requires the petition to be signed by the owners of the property. This means by all of the owners in any given piece of property. To hold otherwise would be to hold that if all the property on any block were owned by tenants in common, the holder of an undivided l-100th interest in the same might cause the block to be paved and the lien therefore to attach to the property, although the owners of the other 99-100ths interest were opposed to it. The position that the proportionate part of the frontage representing the proportion of the cotenant's interest may be counted upon his signature is equally untenable. The petitioner in this case does not own twenty-five feet of this property. His interest is an undivided interest in every foot of it, and no particular foot frontage may be set aside for him, because in every foot so set aside his cotenant would be an equal owner. We are of the opinion, for these reasons, that the signature of John F. Parsons cannot be counted for the fifty feet frontage owned by himself in common with Ella Parsons.
    Disregarding the seventy-one and one-half feet represented by the conditional signature of M. C. Tulis and the twenty-five feet, which it is claimed by the appellee should be allowed on the fifty foot lot owned by John F. and Ella Parsons, and allowing the fifty feet represented by the signature of John Hogan, we find that the total frontage represented by the petition is 1,148-?,- feet, which is less than the necessary two-thirds required by the act of assembly.
    We have arrived at this conclusion, only after a most careful consideration and very reluctantly, because we feel that in the end it can be of no practical benefit to anyone, and that its effect will be merely to delay, for a time, a very desirable and much needed improvement in the borough of Emporium. If there were an appeal from our decision we would feel very much disposed to hold that the Tulis signature was valid in the absence of a condition specifically stated, hoping that the appellate court might sustain us in the interest of the progress and welfare of the town, but as there is no such appeal, and therefore, no redress if we should be in error, we are bound under our conscience and our oath to decide the case strictly under the law as it now exists and as we understand it.

      Error assigned was order quashing the order.

      J. C. Johnson, of Johnson & McNamey, for appellant.
    The doctrine of “notice” requires that to be effective and applicable there shall be a duty to inquire on the part of the one notified, as in the case of a creditor or a purchaser: Tabor Street (No. 1), 26 Pa. Superior Ct. 167; Lodge v. Simonton, 2 P. & W. 439; Heister v. Fortner, 2 Binn. 40; Billington v. Welsh, 5 Binn. 129.
    The fifth section of the Act of April 23, 1889, P. L. 44, 1 Stewart’s Purdon, p. 524, P. L. 277, provides that the term “owner” shall be construed to mean all individuals having any title or interest in the property assessed. We submit this means that anyone having any title or interest in a lot is an owner. If we are right, there can be only one construction put upon the word “owner” in the same act; and upon the petition of two-thirds of the owners of property representing not less than two-thirds in number of feet on the street the jurisdiction of the council attaches and the authority to pass the ordinance is complete, and the interest of signers must of course be counted: Bidwell v. City of Pittsburg, 85 Pa. 412; Merritt v. Kewanee, 175 Ill. 537 (51 N. E. Repr. 867); Allen v. City of Portland, 35 Oregon, 420 (58 Pac. Repr. 509); Ferson’s Appeal, 96 Pa. 140.
    May 20, 1909:

      E. H. Baird, for appellees.
   Pee Curiam,

The judgment is affirmed on the opinion of the court below.


author: Per Curiam,

text:
    Fredericks, Appellant, v. Pennsylvania Railroad Company.

      Waters — Flooding lands — Dam—Ice jam — Evidence.
    No recovery can be had against a railroad company for the flooding of lands by an ice jam alleged to have been caused by a dam of the company, where the witnesses for the plaintiff were not present at the time of the flood, were not experts, and their testimony was based only on their opinions, without their stating any fact that would indicate in any way that the dam was the cause of the ice jam.
    Argued March 15, 1909.
    Appeal, No. 382, Jan. T., 1908, by plaintiffs, from judgment of C. P. Clinton Co., May T., 1902, No. 212, on verdict for defendant in case of James W. Fredericks et al. v. The Pennsylvania Railroad Company.
    Before Mitchell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for the flooding of land.
    At the trial the jury on binding instructions returned a verdict for defendant.

      On a rule for a new trial Hall, P. J., filed the following .opinion:
    This was an action of trespass in which the plaintiffs sought to recover from the defendant for damages which were sustained to their lands by reason of an overflow of ice and water, during a flood which occurred in Bald Eagle creek, in March, 1902,- alleging that the overflow of their lands was caused by an ice jam, which occurred at a point in the creek adjacent to said lands,-above a certain dam erected by the defendant company, which it is claimed backed the water for a distance of about two miles and thus caused the ice jam.
    Upon the trial the plaintiffs did not produce a single witness who was present, or who saw the flood when it occurred, but sought to show that the dam was the proximate cause of the overflow by the testimony of witnesses who were not there and who were not experts, but who undertook to say because of their acquaintance with the stream and the premises, that it was their opinion that the dam was the proximate cause of the overflow and the consequent damages which ensued. The court held that the evidence of these witnesses was incompetent to fix the responsibility upon defendant company and must be disregarded, and that in the absence of any proof of facts from which the jury might find that the dam was the cause of the injury, there was nothing to sustain a verdict for the plaintiffs, and directed a verdict for the defendant.
    The plaintiffs’ first to fifth reasons for a new trial are based upon the rulings of the court as to the competency of the opinions of these witnesses as evidence. Their sixth reason goes to the direction of the court to find a verdict for the defendant, and their seventh reason alleges that the court erred in the following portion of its charge to the jury:
    “ I am, therefore, of the opinion that if these plaintiffs were able to show that the damages which occurred to their land from an ordinary flood in the spring of that year was caused by the fact that this dam was in the stream at that time, that is, if they had been able to show that this dam was the cause of an ice jam which caused the water of the creek to overflow and damage the plaintiffs’ land that the plaintiffs could recover damages from the defendant company in this suit. But unfortunately for the plaintiffs they have failed to produce on this trial any witness who was present and saw that flood. Under the decision of the appellate courts of this state in order to recover damages in such a case it is necessary that they should prove affirmatively to the jury that the dam was in fact the direct cause of the damage which they suffered. It is not sufficient that they should be of the opinion that it was the dam that caused the damage, they must show facts to the jury sufficient to satisfy them that it was the actual contributing cause. Now as I recollect the testimony in this case the only thing tending to show that this dam was the cause of the damage to the plaintiffs’ farm is the testimony of three or four different parties who were not there at the time of the flood and did not see the damage occur, but who say that it did occur and that they are of the opinion that this dam must have stopped the ice from running out of that creek, thereby causing an ice gorge, which was the occasion of this overflow. This is their opinion only. So far as they actually knew, this ice gorge, which they locate in the bend of the creek up there against the bluff, may have been caused by the natural location and contour of the stream, and might have occurred even though there had been no dam there, so far as the evidence in this case shows; and, therefore, under the decisions of our Supreme Court I feel it my duty, as a matter of law, to determine that there is not sufficient evidence in this case to go to the jury on the question of damages and to direct a verdict for the defendant.”
    We are of the opinion that this case is ruled by the case of Shaw v. Susquehanna Boom Co., 125 Pa. 324, and notwithstanding the extremely able argument of the counsel for the plaintiffs, we are unable to see any distinction in principle between that case and the case at bar. In that case the plaintiff called quite a number of witnesses who lived along the river opposite the boom for many years, who testified to seeing the jam and flood which followed it; that there was an opening of only 100 feet between the last pier of the boom and the shore of the river; that the ice never went out of a part of the boom until spring; that it was jammed for miles down the river from plaintiffs’ farm. Certain witnesses who had lived on the bank of the river for fifty years testified that they never saw the ice jam so that the high water would not carry it out, until after the boom piers were built. One witness who had lived alongside the boom for thirty years, and who also -knew the river before the boom was constructed, was asked the following question: “ Q. From your knowledge and experience, and your knowledge of the .action of the river, what do you say caused the ice jam in 1884?” Defendant’s counsel objected, because the question asked the opinion of the witness, which is not admissible; the plaintiffs can only show facts, from which the jury are to find the facts; the objection was sustained, and this was one of the grounds of error. The court directed a nonsuit and was sustained by the Supreme Court. The witnesses in that case had vastly greater opportunity to judge than those who testified in this case, for they knew the river before the dam and boom were built; they saw how the ice froze about the piers within the slack water and how it acted and gorged, and many of them were eyewitnesses of the flood. In the present case there was no evidence that any similar ice jam had occurred there, either before or after March, 1902, although the dam had been there since 1835. None of the witnesses could testify as to the action of the stream or of the ice in the flood of 1902, as none of them were there and saw it. All they could do was to express their opinion as to what caused the ice jam and overflow based .upon the facts that it had occurred. In the Boom Company case the Supreme Court says: “The witness, Davis, was asked for his opinion as to the cause of the ice jam in 1884. He was not an expert, and his opinion was not competent under the well-settled rules of evidence. It was the business of the jury to find the cause of the jam from the facts given by the witnesses. . . . The portion of the charge complained of is as follows: ‘There is no evidence whatever in this case which would justify a jury in finding that the defendant is in any way responsible for the injury complained of by the plaintiff. The motion of the nonsuit is allowed.’ An examination of the testimony shows that the learned judge below was entirely accurate in this instruction. There was not a scintilla to show that the works of the boom company had anything to do with the ice jam which caused the injury to the plaintiff’s property. . . . They failed to point out any such testimony, and we were practically asked to assume that because there was an ice jam in the river, the works of the boom company were the cause of it. It was entirely proper for the court below to nonsuit the plaintiff ; it would have been bald error to submit the case to the jury.”
    The present case rests entirely upon the testimony of Abram Bittner, J. H. Fredericks, J. W. Fredericks, J. G. Packer and E. G. Laubach. Not one of these witnesses testify to any facts from which the jury could have found that the flood was caused by this dam. Their testimony was only as to their opinions. They did not see the flood or how it acted or how the ice jam was formed, or that any ice jam was formed, nor did they state any fact as to the appearance of the premises, stream or dam that would indicate in any way that the dam was the cause of an ice jam. Their opinions were based entirely upon the fact that the dam formed a pool as high as its comb, which, however, only raised the water to a point within four and one-half feet of the level of the Fredericks’ farm, and the opening above the comb was some 300 feet in width. They assume this back flow of water as the cause of the ice jam, though there was no evidence of any ice jam ever having occurred there either before or after, and this was an ordinary flood. Their evidence was given without their having any knowledge of the matter or question practically involved and without any suggestion of their being qualified to know or to testify as to the action of the water in this stream after it got above the height of the dam.
    For the reasons under the decision in the case of Shaw v. The Boom Company, above mentioned, we are unable to see that there was any error on the trial or in the direction of the court to the jury. •
    The rule is, therefore, discharged.

      May 20, 1909:

      Errors assigned were the instructions quoted in the opinion of the court below.

      Max L. Mitchell, with him B. F. Geary and W. C. Kress, for appellants.

      T. C. Hipple, with him Henry Hippie, for appellee.
   Per Curiam,

The judgment is affirmed on the opinion of the court below.