text:
    Staebler, Appellant, v. Warren-Ehret Company.

      Negligence — Master and servant — Vice principal — Foreman—Safe place to work.

    1. A vice principal, for whose negligence an employer will be liable to other employees, must be either one in whom the employer has placed the entire charge of the business, or of a distinct branch of it, giving him not merely authority to superintend certain work or certain workmen but control of the business, and exercising no discretion or oversight of his own; or, secondly, one to whom he delegates a duty of his own which is a direct, personal and absolute obligation, from which nothing but performance can relieve him.
    2. The power to hire and discharge men is a circumstance to be considered in determining whether an employee is a vice principal, but the mere power to hire or discharge does not make a vice principal except as to the nondelegable duty of selecting competent servants.
    3. A mere authority to superintend a certain class of work or a certain party of men does not'make a vice principal.
    4. The duty to provide a safe place in which to work does not extend to the guarding of each place to which workmen may be sent to do a particular piece of work. The employer’s duty is performed by providing adequate means of making the place reasonably safe. He is not required to supervise the details of the work and he is not responsible for an error of judgment by a competent foreman who is in charge of the work.
    5. In an action against a roofing company to recover damages for death of a roofer, it appeared that the deceased was sent with other men under a foreman to put a tar roof on a car bam. The defendant had provided rubber shoes for the men, and guard rails to be fastened to the edge of the roof. The deceased started to put up the guard rails, but was stopped by the foreman who told him to go on with the work of laying the roof, that the roof was safe without guard rails, but that he would put them on after the first sheet of paper had been laid. The deceased worked an hour and a half on the roof when he slipped and fell off the edge. It appeared that the foreman worked with the other men, and that they followed his directions. He was also empowered to hire and discharge men, but it was not shown that he had ever done either. Held, that a nonsuit was properly entered.
    Argued Oct. 22, 1908.
    Appeal, No. 118, Oct. T., 1908, by plaintiff, from order of C. P. No. 3, Allegheny Co., Nov. T., 1905, No. 486, refusing to take off nonsuit in case of Mary Staebler, Executrix of Xavier Staebler, deceased, v. WarrenEhret Company.
    Before Mitchell, C. J., Fell; Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass by Xavier Staebler to recover damages for personal injuries. Before Kennedy, P. J.
    From the record it appeared that the plaintiff died pending the suit, and that his executrix was substituted as plaintiff of record.
    The circumstances of the accident are stated in the opinion of the Supreme Court.
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was refusal to take off nonsuit.

      H. Fred Mercer, for appellant.
    — It is a well-settled rule of law that the master must adopt, provide and maintain reasonably suitable instruments and means with which to carry on his business, so that his servant may perform his duties with relative safety and without exposure to dangers which are not reasonably incident to his employment: Rummell v. Dilworth, 111 Pa. 343; Lewis v. Seifert, 116 Pa. 628; Trainor v. R. R. Co., 137 Pa. 148; Ross v. Walker, 139 Pa. 42; Lillie v. American Car & Foundry Co., 209 Pa. 161; Schiglizzo v. Dunn, 211 Pa. 253; Gilbert v. Elk Tanning Co., 221 Pa. 176; Provost v. Ice, etc., Co., 185 Pa. 617; Bennett v. Standard Plate Glass Company, 158 Pa. 120; Smith v. Tube Company, 183 Pa. 485; Casey v. Paving Company, 198 Pa. 348.
    The case was for the jury: Schiglizzo v. Dunn, 211 Pa. 253; Maines v. Harbison-Walker Co., 213 Pa. 145.

      Wm. S. Dalzell, of Dalzell, Fisher & Hawkins, for appellee,
    cited: Prevost v. Citizens’ Ice, etc., Co., 185 Pa. 617.
    January 4, 1909:
   Opinion by

Mr. Justice Fell,

Xavier Staebler was a roofer who had been in the employ of the defendant two years before the accident which resulted in his injury. He was sent with four other men to put a tar roof on a car barn. These men were all under the charge of Ewing, a foreman. The defendant had provided rubber shoes for the men to wear and guard rails to be fastened to the edge of the roof, when necessary to secure their safety. Soon after the men went on the roof, Staebler proceeded to put up the guard rails but was stopped by Ewing, who told him to go on with the work of laying the roof, that the roof was safe without guard rails, but that he would put them on after the first sheet of paper had been laid. Staebler worked an hour and a half on the roof, when he slipped and fell off the edge. The negligence alleged was the failure to place guard rails on the roof.

Unless Ewing was a vice principal for whose negligence his employer could be held responsible, the plaintiff’s case was not made out. He was not in any sense a vice principal. The testimony was that Ewing had charge of the work of putting on this roof, and that the other workmen received orders from him and followed his directions. He worked with the men under him and did the same kind of work, and at the time of the accident he was engaged in tacking paper on the roof. His duty was to work with the men under him and to see that they did their work properly on a particular piece of work to which he was sent. “A vice principal, for whose negligence an employer will be liable to other employees, must be either one in whom the employer has placed the entire charge of the business, or of a distinct branch of it, giving him not merely authority to superintend certain work or certain workmen but control of the business, and exercising no discretion or oversight of his own: N. Y., L. E. & W. Railway Co. v. Bell, 112 Pa. 400; or, secondly, one to whom he delegates a duty of his own which is a direct, personal and absolute obligation, from which nothing but performance can relieve him: Lewis v. Seifert, 116 Pa. 628; Ross v. Walker, 139 Pa. 42; Prescott v. Ball Engine Co., 176 Pa. 459:” Prevost v. Citizens’ Ice, etc., Co., 185 Pa. 617. It was testified that Ewing had power to hire and discharge men, but it was not shown that he had ever done either. The power to hire and discharge men is a circumstance to be considered in determining whether an employee is a vice principal, but the mere power to hire or discharge does not make a vice principal except as to the nondelegable duty of selecting competent servants: 26 Cyc. 1315; nor does “a mere authority to superintend a certain class of work or a certain party of men :” N. Y., L. E. & W. Railway Co. v. Bell, 112 Pa. 400.

The duty to provide a safe place in which to work, to which much of the appellant’s argument is directed, does not extend to the guarding of each place to which workmen may be sent to do a particular piece of work. The employer’s duty is performed by providing adequate means of making the place reasonably safe. He is not required to supervise the details of the work and he is not responsible for an error of judgment by a competent foreman who is in charge of the work: Durst v. Steel Co., 173 Pa. 162; McHugh v. Steel Co., 219 Pa. 644.

.The judgment is affirmed.


source: Caselaw Access Project

author: Me. Justice Bbown,

license: Public Domain

text:
    Pittsburg and West End Railway Company, Appellant, v. Point Bridge Company.

      Street railways — Bridge company — Tolls—Jurisdiction —Equity.-

    A court of equity has no jurisdiction to enforce the collection of tolls by a bridge company from a street railway company which has a charter right to use the bridge of the bridge company, merely because a decree had been entered fourteen years before at the'instance of the bridge company fixing a certain rate of tolls to be paid by the railway company for a period of five years. Such tolls in arrears, like rent in arrears, can only be collected in an action at law.
    Argued Oct. 22, 1908.
    Appeal, No. 119, Oct. T., 1908, by plaintiff, from degree of C. P. No. 2, Allegheny Co., April T., 1892, No. 113, on bill in equity in case of the Pittsburg and West End Passenger Railway Company v. the Point Bridge Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Bill in equity for an injunction. Before Over, J., specially presiding.
    The facts are stated in the opinion of the Supreme Court.
    The court entered the following decree :
    And now, to wit: May 16, 1908, this cause came on to be further heard at this term, and was argued by counsel, and, upon consideration thereof, it is ordered, adjudged and decreed as follows, to wit:
    1. That the Pittsburg and West End Passenger Railway Company pay to the Point Bridge Company, as compensation or tolls for all cars which passed over the Point bridge from June 1, 1896, to November 12, 1897, at the rate of $8,000 per annum, the total sum of $11,550, with interest thereon at the rate of six per cent, from November 12, 1897, amounting to $7,260, making a total of $18,810.
    2. That the Pittsburg and West End Passenger Railway Company pay to the Point Bridge Company, as compensation or tolls for cars which crossed the Point Bridge from November 12.1897, to November 12,1907, at the rate of $8,000 per annum, the total sum of $80,000, together with six per cent interest thereon, computed upon the basis of the monthly payment due •of $666.66, amounting to $26,050, making a total of $106,050.
    3. That until further order of this court, the Pittsburg and West End Passenger Railway Company shall pay to the Point Bridge Company as compensation for such use of its bridge, in quarterly payments, at the rate of five cents per single trip for each car crossing said bridge.
    4. That the costs of this proceeding, accruing from the filing of the petition by the Point Bridge Company for the adjustment of tolls, be paid by the 'respondent, the Pittsburg and West End Passenger Railway Company.
    And now, to wit: May 16, 1908, this cause came on to be further heard at this term, and was argued by counsel, and upon consideration thereof, it is ordered, adjudged and decreed as follows, to wit:
    1. That the Pittsburg and West End Passenger Railway Company pay to the Point Bridge Company, as compensation or tolls for all cars which passed over the Point bridge from June 1, 1896, to November 12, 1897, at the rate of $8,000 per annum, the total sum of $11,550, with interest thereon at the rate of six per cent, from November 12, 1897, amounting to $7,260, making a total of $18,810.
    2. That the Pittsburg and West End Passenger Railway Company pay to the Point Bridge Company, as compensation or tolls for cars which crossed the Point bridge from November 12.1897, to November 12,1907, at the rate of $8,000 per annum, the total sum. of $80,000, together with six per cent interest thereon, computed upon the basis of the monthly payment due, of $666.66, amounting to $26,050, making a total of $106,050.
    3. That until further order of this court, the Pittsburg and West End Passenger Railway Company shall pay to the Point Bridge Company quarterly statements of the number of cars crossing the Point bridge from and after November 12, 1907, and pay to the Point Bridge Company, as compensation for such use of its bridge, in quarterly payments, at the rate of five cents per single trip for each car crossing said bridge.

      4. Either party hereto at any time may, during the continuance of this order, make application to the court, and for proper cause, may move a modification of paragraph third of this decree or such other and further order in this case as may, under the circumstances then existing, be proper.
    5. That the costs of this proceeding, accruing from the filing of the petition by the Point Bridge Company for the adjustment of tolls, be paid by the respondent, the Pittsburg and West End Passenger Railway Company.

      Error assigned was the decree of the court.

      Edwin W. Smith, of Reed, Smith, Shaw & Beal, for appellant.
    The court may not enter a money decree for back tolls including a time covered by a pending suit at law: Beaver County v. Central Dist., etc., Co., 219 Pa. 340; City of Eau Claire v. Payson, 107 Fed. Repr. 552.

      A. M. Thompson, with him W. B. Rodgers and Chas. K. Robinson, for appellee.
    — The court had jurisdiction over the parties in this case and the power on petition to determine the compensation which should be paid to the bridge company: Winton's App., 97 Pa. 385; Root v. Woolworth, 150 U. S. 401 (14 Sup. Ct. Repr. 136); Conklin v. Foster, 57 Ill. 104; Hohman’s App., 127 Pa. 209.
    January 4, 1909:
   Opinion bt

Me. Justice Bbown,

In 1892 the Pittsburg and West End Passenger Railway Company, the appellant, having by its charter and an ordinance of the city of Pittsburg the right to operate a street railway over certain streets in the city to the Point bridge, and to cross the same, filed a bill to enjoin the Point Bridge Company, the appellee, from interfering with its right of passage over the bridge. On this bill a decree was made, restraining the bridge company from interfering with the right of the complainant to use the bridge and directing that for the use of it there should be paid $8,000 per annum, payable monthly, with the provisos that, “this right, shall not control for the use of said bridge for a longer period than five years from this date,” and that, “either party hereto at any time may, during the continuance of this order, make application to the court, and, for proper cause, may move a modification of this decree or such other and further order in this case as may, under the circumstances then existing, be proper.” This decree was affirmed: Pittsburg and West End Passenger Railway Co. v. Point Bridge Co., 165 Pa. 37. Since the expiration of the five-year period fixed in the decree no agreement has been made between the railway company and the bridge company as to the rates of toll to be charged, and none has been paid. On April 4, 1896, the stock of the Point Bridge Company was sold to the city of Pittsburg, and all of it is now owned by the city except eight shares of the common stock, six of which are held by the following municipal officers, each owning one share: George W. Guthrie, mayor of the city; John B. Larkin, controller; J. F. Steele, treasurer; J. P. Shaw, director of the department of charities; E. R. Walters, president of select council; Thomas F. McGrath, a member of common council. One of the remaining eight shares stands in the name of Frank Ridgway, deceased, who was director of the department of public safety, and the other in the name of James W. Clarke, deceased, who was director of the department of public works. Since the purchase of this stock by the city the Point bridge has been under the direct supervision and control of the department of public works of the city, and no tolls have been demanded from anyone except the Pittsburg and West End Passenger Railway Company. By lease dated January 1,1898, that company leased to the West End Traction Company all of its lines of railway and franchises, and, by leases from the West End Traction Company and its lessees, the right is now vested in the Pittsburg Railways Company to operate cars on the line of the Pittsburg and West End Passenger Railway Company and to cross the said bridge. The few remaining facts found by the court below need not be repeated, for they throw no light on the fundamental question of its jurisdiction in this proceeding.

On October 11, 1906, the appellee presented a petition to the court below, praying for a decree to fix the rate of compensation which the Pittsburg and West End Passenger Railway Company should pay it for the use of the bridge in the operation of cars over it from November 12, 1897, to date. We know of no place in equity proceedings or pleadings to which this petition belongs, and the learned pleaders for the appellee have not told us how they designate it. The averments leading up to the prayer are but recitals of conditions existing between November, 1897, and October, 1906, and while they are evidently relied upon as an excuse for the delay in instituting this proceeding, there is nothing in them to justify it.

The error into which the court below fell was that, by the decree of 1892, a “franchise” or “right” was granted to the appellant to operate its cars across the bridge. Its right to use the bridge as a part of one of the highways of the city existed independently of any action by the court, and could not have been taken from it by that tribunal. The right belonged to it under its charter from the moment the city of Pittsburg, by the ordinance of March 31, 1879, granted it permission to operate a street railway over certain streets from Fifth avenue and Liberty street to Stone Tavern. When the bridge company in 1892 attempted to interfere with the exercise of this right, the bill was filed to restrain it, and the complainant asked the court to fix and declare what reasonable toll should be, paid in the future. In making the decree prayed for the court but recognized the clearly existing right of the railway company to cross the bridge, which right it not only did not give, but could not have given to the appellant. Under art. XVII, sec. 9 of the constitution that right could have come only from the city, from which it did come, and all that the court did was to impose, at the request of the complainant, the terms for a fixed period upon which its cars should cross the bridge. The words of the decree are, “this rate shall not control for the use of said bridge for a longer period than five years from this date,” and then follows leave to either party to make application during the five years, but not afterwards, for a modification of the decree and for such further order as, “under the circumstances then existing,” might be proper. After the expiration of the five-year period no right was preserved or continued to the appellee by the decree. On November 12, 1897, it had served its purpose, and thereafter could be invoked only to enforce, in a proper proceeding, payment of the tolls that had accrued during the five-year period. It was not a fixed basis for what the railway company should continue to pay and the bridge company receive after that period, and this is conceded by the appellee in its averment that the rate after November 12, 1897, should be much greater than $8,000 a year. After November, 1897, the appellee never fixed any rate of toll to be paid by the railway company and never attempted to collect anything from it for the use of the bridge from that time until it asked the court, in October, 1906 — nearly nine years afterwards— to fix the amount to be paid for back tolls. The only reason given for this present proceeding is that, as the court, in 1892, had fixed, at the request of the railway company, the rate to be paid by it for the use of the bridge for five years, it ought now, against the protest of that company, to so stretch its'jurisdiction as to fix back tolls to be paid for ten years. Broad as are the powers of an equity court, they have never been known to reach a controversy between a landlord and his tenant, where the only question is how much back rent is due. This is the bald situation here. Even if the appellee, upon the expiration of the five-year period, or immediately thereafter, might have asked the court for a decree fixing the rate of tolls to be paid in the future, it did not do so, but after nine years resorted to this proceeding in a court of equity to recover for past lawful use and occupation of its property. Though reference is made in it to the proceeding in 1892, the latter forms no part of it. The complainant here was the respondent there in a bill to restrain it from interfering with vested rights, and now, merely because a decree was made in that case, at the request of the appellant, fixing the rate of tolls to be paid for a period of five years, a court of equity is to be made a collecting medium, instead of a court of law, where, and where alone, if there be any liability on the part of the appellant, it is to be enforced by the ordinary action for reasonable compensation for past lawful use and occupation of appellee’s property. Authority to sustain the appellee can nowhere be found. Berks County v. Reading City Passenger Railway Co. et al., 167 Pa. 102, cited by the court below and relied upon by counsel for appellee, announces no such doctrine as we are asked .to sanction. The court was without jurisdiction either to fix a rate to be paid for' the past use of the bridge or to decree payment of any sum, even if one had been agreed upon by the parties.

After June 1, 1896, the city of Pittsburg having at that time control of the bridge, the appellant failed to make further payments, and, upon appellee’s amendment to its original petition, which, as amended, may be regarded as one asking the court to enforce payment of a balance due it under the decree of 1892, it was decreed that the appellant pay, for the use of the bridge from June 1, 1896, to November 12, 1897, rental at the rate of $8,000 per annum, with interest, amounting to $18,810. In 1898, upon the correct theory that the decree of 1892 was but a substitute for an agreement between the parties as to the rate of toll 'to be charged and paid, an action, which is still pending, was brought by the appellee on the law side of the court to recover the amount due from June 1, 1896, to November 12, 1897. That action is an adequate remedy for the recovery of any sum that may be due for the use of the bridge during the five-year period, and to that remedy, invoked by the appellee, we leave it.

For want of jurisdiction by the court to entertain the petition, the decree upon it is reversed at the appellee’s costs.


author: Mr. Justice Fell,

text:
    Rabinowitz v. Silverman, Appellants.

      Evidence — Impeachment of witness — Evidence of compromise.

    1. While an offer of compromise is not admissible as evidence of liability, the distinct admission of a fact by one of the parties is not to be excluded because it was made in connection with a proposition looking to a compromise. There is less reason for excluding the proof of a statement by a witness in conflict with his testimony at the trial because in the same conversation a compromise is suggested.

      2. The right to discredit a witness by proof of contradictory statements without having first called his attention to them, is a matter that rests in the sound discretion of the court.
    3. A failure to lay a foundation for'the impeachment of a witness, becomes immaterial if the witness is recalled and given an opportunity to explain or reconcile an alleged statement made by him with his testimony.
    Argued Oct. 22, 1908.
    Appeal, No. 94, Oct. T., 1908, by defendants, from judgment of O. P. No. 1. Allegheny Co., June T., 1903, No. 361, on verdict for plaintiff in case of Louis L. Rabinowitz v. Tanhel Silverman et al.
    Before Mitchell, O. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Scire facias sur mortgage. Before Ford, J.
    At the trial when the plaintiff was on the stand in rebuttal plaintiff’s counsel proposed to prove by the witness an admission made by Yictor Silverman, the son of defendant in this case, as to the indebtedness existing from Mr. Silverman to Mr. Rabinowitz, to wit: That on or about September 24, 1907, when the testimony of Mrs. Amy S. Barrimore was being taken on deposition at the office of W. O. McNary, Esq., in the Frick building, there were present the notary public, the stenographer, Mr. Langdon, S. S. Robertson and W. O. McNary,- attorneys for Tanhel Silverman, Tanhel Silverman, himself, Yictor Silverman, his 'son, Mrs. Barrimore and EL S. McKinley, representing George O. Burgwin and Mr. Rabinowitz.
    That after the testimony was all taken, and Mr. Rabinowitz was about to leave the office and was standing with Mr. McKinley, Yictor Silverman walked up to Mr. McKinley and asked him if he, Yictor Silverman, could have a talk privately with Mr. Rabinowitz. That Mr. McKinley told him he did not see any reason why not. Yictor Silverman then asked Mr. Rabinowitz to go into one of the private offices, of which there were two. That after Yictor Silverman and Mr. Rabinowitz got into this office and were alone, Yictor Silverman closed the door and said to Mr. Rabinowitz, “ Did you hear Mrs. Barrimore’s testimony?” Rabinowitz said, “Yes.” Yictor said, “ The same thing I will swear to, and the same thing my uncle will say. Now would you like to get $6,000 with your counsel’s fees, or would you like to continue the case ? That is all the money my father has to pay, and he cannot pay any more.” Rabinowitz told him, “No, I cannot do it.” I told him I gave $10,000 to your uncle. Yictor says, “We know that everybody lost money on him, and I don’t know why you should not lose some of the money.”
    Then Rabinowitz told him, “ I cannot give you an answer now, but I will let you know before I go to New York.” Yictor said to him, “Well, let me know.” I said, “Yes.” He said, “ Where.” I said, “Where would like to have it ? ” He said, “ In Rabinowitz’s brother’s office.” Rabinowitz told him all right, that he would send for Yictor on Saturday before he went to New York. That before Rabinowitz left the office Yictor Silverman said to him, “ If you will mention anything in court that we spoke of together, then I will swear I never said anything.”
    Further, that Mr. Rabinowitz left this office and went to Mr. Burgwin’s officej and saw Mr. McKinley, and told Mr. McKinley in the presence of Miss Wylie, Mr. Burgwin’s stenographer, what was said. That Mr. McKinley told Mr. Rabinowitz that he had better wait until Mr. Burgwin came home from the east, and talk about the matter with him.
    That when Mr. Burgwin came home on Friday, Mr. Rabinowitz told the circumstances, and Mr. Burgwin told him it was for Mr. Rabinowitz to decide.
    That on Saturday morning about ten o’clock Rabinowitz came over to his brother’s office, and told those there that he would like to send for Yictor Silverman. That his brother’s boy went to Silverman’s house, and said to Yictor Silverman, “ My uncle would like to see you.” That Yictor said, “ Go home, and I will be there inside of ten minutes.” That after ten minutes passed, the bell rang, they opened the door, and a little girl came to the door. The little girl asked for Mr. Rabinowitz. Mr. Rabinowitz came out into the hall, and said, “ What do you want to see me for ? ” The little girl said, “ My mother wants to see you.” She said Mrs. Silverman. Mr. Rabinowitz said, “ I don’t know Mrs. Silverman, and I don’t have anything to talk to Mrs. Silverman about.” That Rabinowitz sat in the house until one or two o’clock and left for Mr. Burgwin’s office. When he got to the office, Mr. Burgwin’s office boy said, “ Just now the telephone bell rang; someone wanted to see you and said in case you came you should wait in the office.” That Rabinowitz waited in the office about half an hour and the telephone rang again, and when he came to the telephone Yictor Silverman was on the telephone. That Yictor Silverman said, “ Are you Mr. Rabinowitz?” Mr. Rabinowitz said, “Yes.” “Will you please come to your brother’s office, I want to see you ? ” Rabinowitz told him all right, he would be there in half an hour. That when he came into his brother’s office Yictor Silverman was waiting for him in the front office. That Yictor said to him, “ Have you made up your mind to anything ? ” Rabinowitz told him, he had not made up his mind at all. Then Yictor repeated the same thing, and said, “ Well, you had better take the $6,000 with your counsel’s fees, for otherwise we will go ahead and fight the case.”
    This offer was made at side bar.
    Objected to by the defense as incompetent and irrelevant, partly hearsay and partly immaterial.
    The Court: Portion of the offer relating to the acknowledgment of the indebtedness of Mr. Silverman, at the termination of the taking of Mrs. Barrimore’s testimony, might be competent ; outside of that, the balance is clearly incompetent. The objection to the offer as at present made is sustained. Exception noted to plaintiff.
    Mr. McKinley: Then we offer so much of the foregoing offer, to wit: The conversation which occurred between Mr. Rabinowitz and Mr. Silverman at the time mentioned in the foregoing offer, in which there was an acknowledgment of indebtedness, or tending to show an acknowledgment of indebtedness through Mr. Silverman to Mr. Rabinowitz.
    Objected to by the defense as incompetent and irrelevant. For a further reason that, on any theory of agency, it could not be anything but an offer of compromise; for a further reason, that no ground has been laid for contradiction of the witness.
    The Court: The objection is overruled and the testimony admitted in so far as it relates to anything said by Victor Silverman in recognition to the existing indebtedness secured by the mortgage. But all testimony in relation to any offer by the way of compromise made is excluded.
    Exception noted by the defense.
    Mr. McKinley : “ Q. Mr. Rabino witz, were you in McNary’s office on or about September 24, 1907, when the deposition of Mrs. Amy Barrimore was taken in this case? A. Yes, sir. Q. Will you state who was present there ? A. Mr. McNary, Mr. Robertson, Mrs. Barrimore, Mr. Tanhel Silverman, Mr. Victor Silverman and myself, Mr. McKinley and Miss Wylie, the stenographer. Q. Did you have any conversation with Victor Silverman after the testimony was taken? A. Yes, sir. Q. Please tell us how that occurred ? ”
    The Court •: “ Was that in the presence of these parties whose names you have given, Mr. Robertson and the rest of them ? ”
    Mr. McKinley : This part I am asking about was in the presence of all these parties.
    Mr. McKinley : “ Q. What occurred there ? A. After the testimony was taken and everybody was going to go home, Victor Silverman said to Mr. McKinley, ‘ I would like to see Mr. Rabino witz.’ He said, You can see him if you want.’ He called me into his, McNary’s, private office and closed the door. Q. He called you into the private office and closed the door? A. Yes, sir. Q. Then what did he say ? A. He says to me, Did you hear Mrs. Barrimore’s testimony ? ’ I told him I did.”
    Objected to by the defense.
    “ Q. Have you testified that Mr. Victor Silverman and you went into this private office together ? A. Yes, sir. Q. Now, you had some conversation there for a few minutes, didn’t you? A. Yes, sir. Q. And after this conversation what did you say to Victor Silverman and what did he say to you about this mortgage? A. I told him, £ You know your uncle owes me $10,000.’ He said to me. £ We know all that.’ That is what he says to me. £ But,’ he says,£ Everybody lost money on him, and I don’t see why you shouldn’t lose any.’ Then I told him, £ I cannot do it.’ He says, £ My father has $6,000.’ — Q. Don’t tell us that. That would not be admissible under the rulings.”
    Verdict and judgment for plaintiff for $13,782.99. Defendants appealed.

      Error assigned was rulings on evidence, quoting the bill of exceptions.

      S. S. Robertson, with him W. O. McNary, for appellants.

      Earry S. McKinley, with him H. & G. G. Burgwm, for appellee.
    January 4, 1909:
   Opinion by

Mr. Justice Fell,

This was a scire facias on a mortgage. The defense was that only a part of the consideration named in the mortgage had been received by the mortgagor, and that this had been repaid by him. At the trial the defendant’s son testified that he was present when the repayment of the money was made and that the mortgagee had promised to satisfy the mortgage the next day. In rebuttal testimony was received under objection that this witness after the date of the payment alleged had stated that he then knew that his father owed the whole amount of the mortgage. The witness was afterwards recalled and testified that he had made no such statement.

The objections urged to the admission of this testimony were that the statement, if made, was in connection with a compromise offered, and also that ground had not been laid for contradiction of the witness by first calling his attention to the subject. The offer of testimony was made at side bar and the court very carefully excluded any reference to a proposed compromise and admitted only the bare statement of the witness as to the fact of his knowledge that the whole amount was due. While an offer of compromise is not admissible as evidence of liability the distinct admission of a fact by one of the parties is not to be excluded because it was made in connection with a proposition looking to a compromise: Arthur v. James, 28 Pa. 236. There is less reason for excluding the proof of a statement by a witness in conflict with his testimony at the trial because in the same conversation a compromise was suggested.

The right to discredit a witness b,y proof of contradictory statements, without having first called his attention to them, is under our later decisions a matter that rests in the sound discretion of the court: Cronkrite v. Trexler, 187 Pa. 100. A failure to lay a foundation for the impeachment of the witness became immaterial, since he was recalled and given an opportunity to explain or reconcile the statement with his testimony.

The judgment is affirmed.


author: Me. Justice Stewaet,

text:
    Meade v. Pittsburg Railways Company, Appellant.

      Negligence — Street railways — Master and servant — Defective brake— Notice to employer — Promise of employer.

    1. An employee who continues to use a machine which he knows to be dangerous takes upon himself the risk of injury therefrom; but this rule is inapplicable if the risk does not threaten immediate danger, and the employee continues in the employment in pursuance of a promise of the employer to remedy the defect.
    2. Where a motorman operates a street car for two days knowing the defective condition of the brakes of the car, but with a promise at the close of each day that the defect will be corrected, and on the third day takes out the car with the assurance that the brakes have been repaired, and for several runs is able to control the brakes, but with the use of greater force, and finally on his last run the car gets beyond his control, and he is injured, the question of the company’s negligence is a question to be decided by a jury.
    Argued Oct. 21, 1908.
    Appeal, No. 101, Oct. T., 1908, by defendant, from judgment of C. P. No. 4, Allegheny Co., Third T., 1907, No. 359, on verdict for plaintiff in case of John Meade v. Pittsburg Railways Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Swearingen, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $1,800. Defendant appealed.

      Error assigned was in submitting the case to the jury.

      James C. Gray, with him Clarence Burleigh and William A. Challener, for appellant,
    cited: Brownfield v. Hughes, 128 Pa. 194.

      Body P. Marshall, with him Thomas M. Marshall, for appellee,
    cited: Held v. Glass Co., 207 Pa. 534; Schiglizzo v. Dunn, 211 Pa. 253.
    January 4, 1909:
   Opinion by

Me. Justice Stewaet,

The plaintiff was a motorman in the employ of defendant company. On the afternoon of February 28, having made his last run for the day, he was returning his car to the barn. In going down a steep grade the car got beyond his control, jumped from the track, and ran into a building at the side. In the accident he received the injuries for which he seeks to recover in this action. He attributes his inability to control the car to defective brakes. He had been operating this car for several days. He testifies that the first day he operated it he found that the brakes were not in proper condition, and that he reported this fact when he turned the car in, and asked that it be repaired. The next day he found the same difficulty in applying the brakes. He again reported the defect, and was assured that the brakes would be attended to. On the morning of the 28th he was assigned to the same car, and on returning it about ten o’clock in the forenoon he again reported that the brakes would not work. Reporting in the afternoon for duty he found workmen engaged on the car, and the foreman then told him that it was all right, and that he could run it safely. He found that in operating the brakes that .afternoon more force than was usually applied was required to make the brakes operate; but notwithstanding, he made his trips without accident, until the mishap occurred which resulted in his injury. A verdict for the plaintiff was followed by a motion for judgment non obstante. The refusal of the motion is assigned for error.

Of the reasons in support of the motion but three call for consideration; the others have regard not to the sufficiency of the evidence to sustain the verdict, but to the effect of defendant’s evidence, all of which was a matter entirely for the jury. It is insisted (1) that the evidence did not show that plaintiff’s injuries resulted from negligence on the part of the defendant; (2) that the plaintiff assumed the risk; and (3) that he was guilty of contributory negligence. We must assume the facts to be as testified to by the plaintiff; the jury so found. Defendant owed to the plaintiff the duty to furnish him with a car which could be operated in safety. This, according to his testimony, it did not do. The car escaped from his control because the braking appliances were out of order and defectiye; the jumping of the car from the track resulted; the collision in which plaintiff received his injuries was an immediate consequence. All this could be fairly derived from the plaintiff’s testimony. That the jury allowed this testimony to prevail, 'notwithstanding the alleged inconsistencies therein, and what defendant insists was more than countervailing testimony on his part, cannot be made the subject of complaint here.

The plaintiff with full knowledge of the fact that the brakes were defective, continued to operate the car. An employee who continues to use a machine which he knows to be dangerous takes upon himself the risk of injury therefrom; but this rule is inapplicable if the risk does not threaten immediate danger, and "the employee continues in the employment in pursuance of a promise of the employer to remedy the defect : Brownfield v. Hughes, 128 Pa. 194. Where the danger threatened is so obviously imminent that any reasonable person must have appreciated it, continuance in employment under such circumstances implies an assumption of risk, and the court may so adjudge it as a matter of law; but this case does, not fall within this rule. Plaintiff had operated the car for two days before, knowing the condition of the brakes, but with a promise at the close of each day that the defect would be corrected. During this time, notwithstanding the defect, he was able to keep the car so far under control that no accident happened. Certainly the court could not under such a state of facts hold as matter of law that the plaintiff had assumed the risk. This was a question for the jury. So, too, was the question of contributory negligence. It would be a duty resting on the plaintiff upon discovering a defect in the car threatening danger, to report such circumstances at once to his employer, or return the car to the barn as the case might require. Plaintiff when he received the car at the barn in the afternoon, received assurance that the brakes had been repaired. He made several runs .thereafter during which he was able to control by the brakes, and he supposed they were all right, except that greater force had to be applied to them to make them work. After his last run he started with the car to the barn, and it was while he was on the way there that the accident occurred. Whether he exercised reasonable promptitude in advising his employer, and in his attempt to return the car, the jury alone could decide. We see no error in the court's action.

Tudgment affirmed.


author: Mr. Justice Stewart,

text:
    Lloyd v. Haugh, Appellant.

      Common carriers — Warehouse and storage company — Moving household goods.

    1. Anyone who holds himself out to the public as ready to undertake for hire or reward the transportation of goods from place to place, and so invites the custom of the. public, is in the estimation of the law a common carrier.
    2. Where an incorporated company chartered to do a general warehouse and storage business holds itself out to the public by various methods of advertising as engaged in the general moving and hauling of household goods, it is a common carrier within the meaning of the law, and this is the case although it claims the right to select those whom it will serve, and its custom is to discriminate, accepting some and rejecting others, as it may choose.
    3. Where such a company is sued for the loss of goods the burden is on it, in seeking to escape liability, to show that the loss is to be referred to some one of the exceptions to the common-law rule. '

    4. Where a common carrier makes a contract with a husband for transportation of his own household effects without mention being made of his wife’s goods, and the carrier accepts the wife’s goods without distinguishing them from those of the husband, it is liable for the loss of the wife’s goods as well as those of the husband.
    5. The right of action against a common carrier for goods lost or damaged while in the carrier’s custody follows ownership of the goods, and anyone having a beneficial interest in them may maintain the action. If the action is in tort it should be brought by the owner of the goods, whether he be consignor, consignee or a third person. Anyone having a beneficial interest in the goods may maintain an action for damages thereto.
    6. It is a matter of no consequence at whose hands a common carrier may have received goods for transportation, and it does not concern him to know who is the real owner of the goods.
    7. In an action against a common carrier to recover for the loss of goods destroyed by fire, the carrier is liable where there is no evidence to indicate any particular cause for the fire; and it is immaterial that spontaneous combustion may have been a possible' cause. Spontaneous combustion, where loss of goods results, would seem to imply negligence in a greater or less degree.
    8. In an action against a common carrier to recover for the loss of household effects, clothing and other personal belongings, the just rule of damages is the actual value of the thing destroyed to him who owns it, taking into account its cost, the practicability and expense of replacing it, and such other considerations as in the particular case affect its value to the owner. Mere market value is not a true measure of compensation in such a case.
    Argued Oct. 22, 1908.
    Appeals, Nos. 77 and 78, Oct. T., 1908, by defendant, from judgments of C. P. No. 3, Allegheny Co., Aug. T., 1905, Nos. 642 and 643, on verdicts for plaintiffs in cases of William F. Lloyd v. Haugh & Keenan Storage & Transfer Company and Maude P. Lloyd v. Haugh & Keenan Storage & Transfer Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter', Elicin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for the loss of household effects. Before Kennedy, P. J.
    At the trial it appeared that the plaintiffs delivered to the defendant household goods and personal effects to be hauled from Pittsburg to Sewickley. At a point about halfway between these places one of the wagons containing the goods burst into flames and was destroyed with its contents in a few minutes.
    At the trial the court charged in part as follows:
    This case has taken a great deal of time in its trial, much more than it should have, if we had known the whole situation and the facts in the start. [As you have heard from the rulings of the court, much that would ordinarily have been for your consideration has been stricken out by the ruling of the court, so that your duty is very much simplified; in other words, I can say to you, you have but one duty to perform and one thing to ascertain, namely, the value of the goods of the plaintiffs that were lost while in the custody or possession of this defendant.] [1] There are two separate cases here, and you will have to find two verdicts, one in favor of Mr. Lloyd and one in favor of Mrs. Lloyd. [The defendant is a corporation engaged in the general business of hauling or moving, among other things, household goods and effects; and some time in the month of May, 1905, about two years and eight months ago, this defendant undertook to move the household goods and effects of these two plaintiffs from their residence, on Moore-wood avenue, in the eastern part of the city, to Shields station, on the Fort Wayne road, some distance below Allegheny City, perhaps sixteen or eighteen miles, and in accordance with that undertaking the defendant received into its possession on May 22 or 23, 1905, these goods, which it is claimed have been lost or destroyed, belonging to the plaintiffs.] [2] [As you have heard, the court has ruled that this defendant is a common carrier under the law, and is, therefore, liable for the loss of the goods of these plaintiffs; so that you have no business with the determination of the question as to whether the defendant was negligent in the carrying of the goods or not, but the sole question for your determination is the value of the goods that were lost while in the custody of the defendant.] [3] It seems that on May 23, these goods while in the course of transportation by the defendant to Shields station, there being six loads altogether, one of these wagon loads was destroyed by a fire at or near Dixmont station, on the same railroad, and the plaintiffs claim, and are entitled to, the value of those goods which were so lost or destroyed. These goods, the value of which you have to determine, are claimed by the plaintiffs to be of great value. Those of Mr. Lloyd are claimed to be worth between $2,100 and $2,200, while those belonging to Mrs. Lloyd are claimed by her to be worth between $3,500 and $3,600, the two claims amounting to between $5,000 and $6,000. [These plaintiffs ask a verdict from you for the amount claimed by them, and they have offered a large amount of testimony showing the value of these goods.] [4] The defendant has offered a large amount of testimony tending to show the value. 'While the plaintiffs claim these amounts, the defendant maintains that the value is not anything like the value set up by the plaintiffs. The defendant claims that many of the articles going to make up these large amounts were not worth anything at all, or, if worth anything, that it would be very small in market value. [Now, the value that you are to ascertain for these goods that were lost while in the custody of the defendant, is what is called the market valuation of these goods; that is, as to a great portion of the goods here that were lost. As to the goods of a personal nature, such as wearing apparel and other goods or effects of a personal nature, and which have no market value — and there seems to be a great many of that kind here — as to those that have no market value, the rule which you will follow is their value to the plaintiffs, not any fanciful or imaginary value they may have put on the articles as may be worth to them only, but what is the value of those articles in money to them — not any valuation outside of their money value. That is the rule which you will follow in estimating the amounts to be awarded to thése plaintiffs, severally. I cannot give you any other rules than what I have stated for you to follow in making up your verdicts to these plaintiffs. You will follow your own good judgment in getting at it from all this mass of testimony, and it will be your duty to consider it all. It is not necessary for me to go over the testimony in detail, but you must consider it all in trying to reach a fair market value for these goods that were lost or destroyed while in the custody of the defendant corporation. And as to the others, such as I have mentioned, of a personal nature, that have no market value, you will ascertain what is their value in money to these several plaintiffs.] [5]
    Yerdict and judgments for William F. Lloyd for $1,720 and for Maud P. Lloyd for $2,860. Defendant appealed.

      Errors assigned among others were (1, 5) above instructions, quoting them.

      F. O. MeGvrr, with him John Marrón, for appellant.
    — Defendant was not a common carrier: Piedmont Mfg. Co. v. R. R. Co., 19 S. C. 353; Verner v. Sweitzer, 32 Pa. 208; Jaminet v. American Storage & Moving Co., 109 Mo. App. 257; Gordon v. Hutchinson, 1 W. & S. 285; Steinman v. Wilkins, 7 W. & S. 466; Willock v. R. R. Co., 166 Pa. 184.
    Under the evidence, it was a question for the jury whether or not the defendant was a common carrier: Pennewill v. Cullen, 5 Harr. (Del.) 238; Avinger v. Ry. Co., 29 S. C. 265; Fuller v. Bradley, 25 Pa. 120; Verner v. Sweitzer, 32 Pa. 208; Harrington v. McShane, 2 Watts, 443; Taylor v. Wells, 3 Watts, 65.
    The defendant was not liable for the loss of Mrs. Lloyd’s goods under the evidence ; the question of spontaneous combustion should have been submitted to the jury: Lawson on Carriers, sec. 14, p. 15.
    The proper measure of damages in this case was not given by the court: International R. R. Co. v. Nicholson, 61 Tex. 550; Gillingham v. Dempsey, 12 S. & R. 183; Warden v. Greer, 6 Watts, 424; Leech v. The Miner, 1 Phila. 144; Fox v. Hayward, 4 Brewster, 32.

      George B. Gordon, with him Wm. Watson Smith, for appellees.
    — The defendant in this case was a public carrier. The evidence establishing this was entirely uncontradicted: Coggs v. Bernard, 2 Lord Raymond, 909; Gordon v. Hutchinson, 1 W. & S. 285; Harrington v. McShane, 2 Watts, 443; Verner v. Sweitzer, 32 Pa. 208; Beckman v. Shouse, 5 Rawle, 179; Jackson Architectural Iron Works v. Hurlbut, 158 N. Y. 34 (52 N. E. Repr. 665); Caye v. Pool, 108 Ky. 124 (55 S. W. Repr. 887); Farley v. Lavary, 21 Ky. L. Rep. 1252 (54 S. W. Repr. 840); Liverpool, etc., Steam Co. v. Phoenix Ins. Co., 129 U. S. 397 (9 Sup. Ct. Repr. 469).
    The law is established by the cases that we have heretofore cited that whether or not a man has the responsibilities of a common carrier is a question of law: Ambler v. Phillips, 132 Pa. 167; Coxe v. Heisley, 19 Pa. 243.

      It was not necessary that the defendant should make a contract with Mrs. Lloyd in order to be liable for the loss of her effects. There was no evidence to submit to the jury that the goods were destroyed by spontaneous combustion. The court’s instructions to the jury as to damages were correct: Laubaugh v. R. R. Co., 28 Pa. Superior Ct. 247; Trout v. Kennedy, 47 Pa. 387; Green v. R. R. Co., 128 Mass. 221; Fairfax v. R. R. Co., 73 N. Y. 167; Parmelee v. Raymond, 43 Ill. App. 609.
    January 4, 1909:
   Opinion by

Mr. Justice Stewart,

We shall not attempt to discuss separately each of the twenty-one assignments of error in these appeals. The learned counsel agree that together they raise but five questions; these we shall consider in the order they have been presented.

1. Was the defendant a common carrier? The learned trial judge held as matter of law that it was. Briefly these were the facts, undisputed. The defendant, an incorporated company, though chartered to do a general warehouse and storage business, does not confine itself strictly to the particular business for which it was chartered, but engages as well in the business of moving household goods in the city of Pitts-burg and vicinity. The president of the company, speaking to this point, says in his testimony that general hauling of household goods is one of the particular lines of business in which the company engages, and that it solicits business of this kind by public advertisements in various ways, by signs upon its wagons, upon fences, when that is allowed, by cards intended for general distribution, and by the bills and tags used in the course of business. These advertisements speak for themselves, and unquestionably establish the fact, independent of everything else in the case, that the defendant does hold itself out to the public as engaged in the moving of household goods, thereby inviting employment along this line. None of these advertisements contain a suggestion of limited liability, or that the company will render such service only as it may select its patrons. Notwithstanding this public committal of the company to a general and undiscriminating service, it is argued that inasmuch as the company claims the right to select those whom it will serve, and because its custom has been and is to discriminate, accepting some and rejecting others, as it may choose, this circumstance makes it a private as distinguished from a common carrier, and exempts it from the obligations and liability which the law imposes on the latter relation. The argument assumes that no legal duty rests upon the defendant to treat alike all applying for its services, and avoid discrimination except upon justifying circumstances. Whether such a duty attaches as a necessary incident to the relation of common carrier, under any and all circumstances, need not be discussed. In Steinman v. Wilkins, 7 W. & S. 466, in speaking of the duty resting on a common carrier, Chief Justice Gibson uses this language : “ He is bound in England by the custom of the realm to carry for all employers at established prices; but it is by no means certain that our ancestors brought the principle with them from the parent country.” Conceding, however, that such a duty rests upon a common carrier, to claim that one is not a common carrier because he has persistently disregarded this duty and has arbitrarily chosen whom he would serve, notwithstanding he has invited the public generally to apply, is to make a public duty determinable by the pleasure of the individual and not by principle or law. We express a doctrine universally sanctioned when we say, that anyone who holds himself out to the public as ready to undertake for hire or- reward the transportation of goods from place to place, and so invites custom of the public, is in the estimation of the law a common carrier: Beckman et al. v. Shouse et al., 5 Rawle, 179; Verner v. Sweitzer, 32 Pa. 208. There is contrariety of view as to whether a single or occasional engagement to transport for hire, will bring one within the class of common carrier; but that question is not here raised. We are dealing with a case where the carrier made the transportation of household goods part of its regular business, advertised that business in a way to solicit custom from the general public. An unavoidable implication arises that it holds itself in readiness to engage with anyone who might apply. What duty we attach to the relation of common carrier is a matter aside from present inquiry ; the question here is not one of duty but of liability. Whatever the duties may be, they do not establish or determine the relation, but result from the relation. If a carrier is sued for breach of legal duty, the first thing to be determined is whether he is a common carrier or a private carrier, for the status must first be determined before the duty can be known to exist. The learned judge correctly held that the defendant here was a common carrier. It follows that the burden was on the defendant, in seeking to escape liability for the goods destroyed, to show that the loss was to be referred to some one of the exceptions to the common-law rule.

2. We are disposing of appeals in two cases. In the one, the plaintiff is William F. Lloyd, and in the other Maud P. Lloyd, his wife. The contract for transportation was made with the husband who applied to the defendant company to transport his household effects, no mention being made of the wife’s goods. The wife was allowed to recover in a separate action for her own loss. In loading and packing, the goods of the wife were not distinguished from those of the husband; both alike were received by the defendant company at the hands of the husband. Appellant insists that inasmuch as the contract was with the husband alone, it covered only his goods, and did not extend to the wife’s. No question was made as to the wife’s ownership; the goods she is here claiming for were admittedly her own. The right of action in all such cases follow's ownership of the goods, and anyone having a beneficial interest in them may maintain the action. If the action against the company is in tort, it should be brought by the owner of the goods, whether he be consignor, consignee or a third person. Anyone having a beneficial interest in the goods may maintain an action for damages thereto: 6 Cyc. L. & P., p. 510, and the authorities there cited. It is a matter of no consequence at whose hands the carrier may have received the goods ; and it does not concern him to know who is the real owner of goods committed to him for transportation. Indeed, under ordinary circumstances, he has no right to inquire, since the law protects him against the real owner if the goods are delivered in pursuance of his employment without notice of his claim : Addison on Torts, sec. 701. The circumstance of ownership can neither add to nor detract from the service that the company engages to render, nor can it make any difference in the consideration, he is to receive. It would be intolerable if everyone delivering goods to an express company, for instance, could be required to first establish his ownership before transportation could be secured. The defendant company makes no pretense that the carrying of the wife’s goods in addition to thbse of the husband, imposed upon it any larger or heavier service than was contracted for, or that it was deceived in any way, or that it would have done less than it did had the ownership of the wife been disclosed.

3. It appearing that the defendant was a common carrier and the loss of the goods having been shown, its liability for the goods became fixed, except as it could bring the loss within one of the common-law exceptions. In the effort to do this it utterly failed. The theory defendant advanced was that the goods were consumed by the fire originating in spontaneous combustion. We by no means concede that this would’ be such a vis major as would relieve from liability. Spontaneous combustion, where loss of goods results, would seem to imply negligence in greater or less degree. But however this may be, spontaneous combustion was merely shown to be a possible cause ; and the expert who testified to this was careful to say, that the evidence in the case did not indicate any particular cause of the fire, and that no substance had been mentioned which would refer it to spontaneous combustion. The court very properly held that the evidence was not sufficient to justify a finding in accordance with the theory advanced.

4. The true measure of damages in cases of this character is compensation. The market price of an article is only a means of arriving at compensation ; it is not in itself the value of the article, but is evidence of value. The law adopts it as a natural inference of fact, but not as a conclusive legal presumption. It stands as a criterion of value because it is a common test of the ability to purchase the thing: ” Kountz v. Kirkpatrick, 72 Pa. 376. “ What a thing will bring in the market at a given time is ( perhaps the measure of its value then; but it is not the only one Trout v. Kennedy, 47 Pa. 387. Many of the goods for which compensation is here asked, were of such a character that their market value could not compensate for their loss, as, for instance, clothing and other personal belongings. It cannot be said that they had no value in the open market, since at public auction they would most likely have brought something, but manifestly the price they would have there commanded would not represent their value to the owner. Therefore, it is that other considerations than market value govern, with respect to those things which have peculiar value to the owner and little or none in a general market. Where this is the case the just rule of damages 'As the actual value of the thing destroyed to him who owns it, taking into'account its cost, the practicability and expense of replacing it, and such other considerations as in the particular case affect its value to the owner : Sedgwick on Damages, sec. 251. And this was the measure that the jury in this case was instructed to observe. It is true that with respect to many of the goods, including many of the kind of which we have here been speaking, the plaintiffs gave nothing beyond a description of the articles and their cost; but the defendant could and did on cross-examination inquire into the length of time they had been in use and other matters affecting their value to the owners. From such data as they had before them it was for the jury to determine the compensation by the standard we have indicated. - The instruction of the court on this point was as follows : The value of these goods that were lost in the custody of the defendant, is what is called the market value; that is, as to a great portion of the goods, As for the goods of a personal nature, such as wearing apparel, and other goods and effects of a personal nature, and which have no market value — and there seems to have been a great many of that kind here — as to those that have no market value, the rule which you will follow is their value to the plaintiffs, not any fanciful or imaginary value they may have put on the articles as may be worth to them only, but what is the value of these articles in money to them — not any valuation outside of their money value.” This is a clear, concise and correct statement of the true rule. The assignments of error are overruled.

The judgment is affirmed.


author: Per Curiam,

text:
    Real Estate & Mortgage Company, Appellant, v. Cook.

      Equity — Equity practice — Responsive answer — Evidence—Purchase of stock.

    Where a bill in equity is filed by a partnership against a clerk in its employ to compel the transfer of certain shares of stock alleged to have been purchased by the defendant with moneys furnished by the plaintiffs, and the defendant files an answer denying that he had ever agreed to purchase the stock for plaintiffs, and avers that the moneys paid to him were moneys due him by the plaintiffs, and such responsive answer is met only by the uncorroborated testimony of one of the partners, the bill will be dismissed.
    Argued Oct. 23,1908.
    Appeal, No. 7, Oct. T., 1909, by plaintiff, from decree of C. P. Beaver Co., March T., 1907, No. 5, dismissing bill in equity in case of Real Estate & Mortgage Company v. Will R. Cook and Keystone Driller Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity to compel the transfer of stock. Before Holt, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was decree dismissing the bill.

      W. A. McConnel, for appellant.

      Arthur E. Barnett, for appellees.
    January 4, 1909:
   Per Curiam,

The plaintiff is a partnership engaged in the real estate business. It is alleged in the bill filed that the defendant, Cook, was a clerk in its employ, and was directed by it to purchase the right to subscribe for certain shares of stock to be issued by the Keystone Driller Company, was furnished the money with which to make the payment necessary to secure the right; that in disregard of his duty he purchased the right and subscribed to the stock in his own name and refused to transfer the stock to the plaintiff.

It is denied by the answer that there was a direction or an agreement to purchase the stock for the plaintiff or that money was received for that purpose. It is averred that the defendant learned from a source disconnected with his employment that the right to subscribe to some stock might be bought, and asked one of the partners to back him in the purchase to the extent of the money then due him by the partnership, and also asked him whether he would like to have some of the stock. The partner agreed to furnish the money as requested, but gave no answer as to his desire to purchase. The next day he told the defendant that he would take all the stock he could get up to an amount named. At that time neither of them knew what amount of stock could be bought, or whether any could certainly be secured. The money furnished was less than half the money due the defendant by the partnership.

After the bill had been filed, the defendant transferred to the plaintiff the right as to one-half of the stock, and the controversy related to the other half. The answer was fully responsive to any allegation in the bill from which an agency or a trust could arise as to the remaining stock. It was therefore conclusive in favor of the defendant unless overcome by the testimony of two witnesses or of one witness and such corroborating facts and circumstances as were equal to the testimony of another witness: Mason v. Smith, 200 Pa. 270. There was no substantial corroboration of the testimony of the partner. The most that was shown was that in a conversation with a third party the defendant had spoken of an'interest of the partner in the purchase. This, however, was entirely consistent with the transaction as set out in the answer.

The decree is affirmed at the cost of the appellant.


text:
    Weidman v. United Cigar Stores Company, Appellant.

      Contract — Hiring—Term of hiring — Intention.
    1. In a contract of hiring, where no definite period is expressed, in the absence of facts and circumstances showing a different intention, the law will presume a hiring at will. The fact that the hiring is at so much per week or month or year will raise no presumption that the hiring was for such period. Where, however, a contrary intention can be fairly derived from the contract itself, the law will allow such intention to prevail; and where the contract is in writing, the court, in construing the instrument, will take into view the situation of the parties, and the objects they had in view.
    2. Where a written contract for the purchase of a store and fixtures from two partners also provides for the employment of the two partners, by the purchaser, at a stated salary per year, as general managers of the store in question and other stores conducted by the purchaser, the contract so far as it relates to the employment will be construed as a hiring by the year, and not as a hiring at will. Such a contract shows that the employment was stipulated for as a consideration moving to the vendors.
    Argued Oct. 23, 1908.
    Appeal, No. 121, Oct. T., 1908, by defendant, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1904, No. 250, on verdict for plaintiff in case of Charles Weidman v. United Cigar Stores Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit for salary. Before Evans, J.
    The facts are stated in the opinion of the Supreme Court.
    The court charged in part as follows:
    If Mr. Weidman is entitled to recover then he is entitled to recover the balance of this year’s salary, less what he could have reasonably earned had he used due diligence to get other employment.
    Verdict and judgment for plaintiff for $1,913.50. Defendant appealed.

      Errors assigned were charge of the court as above and in refusing binding instructions for defendant.

      A. Leo Weil, with hito Charles M. Thorp, for appellant.—
    There was no hiring by the year: Coffin v. Landis, 46 Pa. 426; Martin v. Life Ins. Co., 148 N. Y. 117 (42 N. E. Repr. 416); Edwards v. Ry. Co., 121 N. C. 490 (28 S. E. Repr. 137); The Pokanoket, 156 Fed. Repr. 241; Finger v. Koch & Schilling Brewing Co., 13 Mo. App. 310; Haney v. Caldwell, 45 Ark. 156; McCullough Iron Co. v. Carpenter, 67 Md. 554 (11 Atl. Repr. 176); Greer v. Arlington Mills Mfg. Co., 43 Atl. Repr. 609; Kansas Pacific R. R. Co. v. Roberson, 3 Colo. 142.

      Charles A. O’Brien, with him Charles W. Ashley, for appellee.
    — The hiring was for a year: Kirk v. Hartman, 63 Pa. 97.
    January 4, 1909:
   Opinion by

Mr. Justice Stewart,

In a contract of hiring, where no definite period is expressed, in the absence of facts and circumstances showing a different intention, the law will presume a hiring at will. The fact that the hiring is at so much per week or month or year will raise no presumption that the hiring was for such period. Where, however, a contrary intention can be fairly derived from the contract itself, the law will allow such intention to prevail; and where the contract is in writing, the court, in construing the instrument, will take into view the situation of the parties, and the objects they had in view. The present case is to be adjudged in the light of these well-established rules. The plaintiff and his partner were the owners of a cigar and tobacco store in the city of Pittsburg. The defendant company owned and conducted several stores of like character in the same city with headquarters in New York, where they also own and conduct other stores of like kind. By written article of agreement the company contracted with the plaintiffs for the purchase of the latter’s store in Pittsburg. The clause in the article under which the question arises is as follows: “Immediately upon the completion of said inventory and appraisement, the said first parties shall become and be responsible for the general management of all- the stores of the said second party in Allegheny County, Pennsylvania, each giving his entire services as such; the said Charles Weidman to receive the sum of $3,300 per year and the said Charles J. Moye to receive the sum of $2,200 per year for such services as aforesaid.” If this clause were the whole of the agreement, the rule first above stated would unquestionably require us to construe the hiring to be at will. But it is only part of the agreement which, because it embraces other matters, contains several parts, mutually depending on each other and necessary to be brought under the same view, in order to ascertain the meaning of the parties. The prime object of the agreement, regarded as a whole, was to effect .a purchase of the store owned by plaintiff and his partner, to the end that it might become one of the associated stores owned and conducted by the defendant in the city of Pittsburg. It was above all things a contract of sale. It recites a covenant on part of plaintiff and his partner, to sell and convey to the defendant company the stock of materials and the fixtures in their store, upon terms and conditions thereafter expressed. The first of these conditions is that the price is to be determined by inventory and appraisement; the second, that upon completion of sale the plaintiff and his partner were to pass into the employment of the defendant company as general managers of all its stores in Allegheny county. It is not only a reasonable, but we think an almost necessary inference, that the employment here stipulated for was part of the consideration on which the agreement to sell rested. If the business that plaintiff and his associate were engaged in had been a profitable one, it is hardly probable that they would have been content to part with it for simply what the store and fixtures would be found to be worth on an appraisement. If not a business success, it is no more probable that defendant company would be desirous to place men who had failed to make a success of a single store in charge of an extensive group of stores of its own. So far as the future employment entered into the contract, it was of largest concern to those who were to be employed. We think the contract clearly shows that the employment was stipulated for as consideration moving to the vendors. If correct in this, then it is manifest that the parties intended something wholly different from that which the law will presume from the language used in the hiring clause of the agreement. If the future employment of the plaintiff was part of the consideration of the sale, certainly it was not contemplated that so much of the consideration was to be subject to disappointment at the pleasure or caprice of the employer. To impose on this contract a strictly legal construction of the terms used in the hiring clause, would allow the employer, for no breach whatever on the part of the plaintiff, to deprive the latter of his employment within the first hour after he had entered upon his duties. Any such'construction would lead to. results which could not reasonably have been intended, and would be in plain disregard of the true meaning and spirit of the agreement. The court's refusal to give binding instructions, and later to enter judgment non obstante,'was rested on other considerations than those we have indicated. We place our affirmance of the judgment solely upon the reasons we have indicated. The assignments of error are overruled.

The judgment is affirmed.


text:
    Mountz v. North Versailles Township, Appellant.

      Negligence — Township—Hole in road; — Question for jury.

    In an action by a woman against a township to recover damages for personal injuries caused by a fall in a hole in a road, the evidence showed that on one side of the road there was a bank that sloped to a stream several feet below. The bank had in places been worn away by the action of water, and the bed of the road was undermined. At one place where the traveled way was only eight or nine feet wide, there was a hole at the side of the road seven feet deep which had existed there for several weeks. The plaintiff knew of it, and while walking with her daughter on a dark night, tried to avoid it by keeping in the middle of the road. She stepped within eighteen inches of the hole, and the earth gave way under her feet. Held, that the case was for the jury and that a verdict and judgment for plaintiff should be sustained.
    Argued Oct. 23, 1908.
    Appeals, Nos. 175 and 176, Oct. T., 1908, by defendant, from judgment of C. P. No. 1, Allegheny Co., June T., 1903, No. 212, on verdict for plaintiffs in cases of Lawrence Mountz and Margaret E. Mountz, his wife, v. North Versailles Township.
    Before Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Ford, J.
    The circumstances of the accident are stated in the opinion of the Supreme Court.
    Verdict and judgment for Margaret E. Mountz for $6,000 and for Lawrence Mountz for $3,Q00. Defendant appealed.

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

      W. B. Rodgers, with him Stewart M. Cunningham, for appellant.

      I. K. Porter, with him S. Gr. Porter and E. H. Stowe, for appellees.
    January 4, 1909:
   Per Curiam,

Margaret E. Mountz, one of the plaintiffs, was injured by falling into a hole at the side of a public road. The main question presented by the appeal is whether a case of negligence on the part of the township was made out, clear of contributory negligence on her part. On one side of the road there ivas a bank that sloped to a stream several feet below. According to the plaintiff’s testimony the bank had in places been worn away by the action of water, and the bed of the road was undermined. At one place where the traveled way was only eight or nine feet wide, there was a hole at the side of the road seven feet deep. This hole had existed for several weeks. The plaintiff knew of it and while walking with her daughter on a dark night, tried to avoid it by keeping in the middle of the road. She stepped within eighteen inches of the hole, and the earth gave way under her foot. The testimony showed gross negligence by the township authorities and the exercise of care by her. She was not proceeding heedlessly in the presence of a known danger. Whether under the circumstances she should have taken greater care was not a question to be decided by the court.

The judgment is affirmed.


author: Pee Gueiam,

text:
    First Presbyterian Church v. Pittsburg, Appellant

      Road law — Widening of street — Talcing of land — Damages—Charge— Expert witness.

    1. In an action against a city to recover damages for the taking of a portion of plaintiff’s property used for church purposes, in widening a street, the court cannot be convicted of error in charging that: “In estimating the damage sustained by the plaintiff the jury should consider the value of the plaintiff’s whole property for its most valuable use or purpose before the taking and the effect upon its value for such use of the taking of a portion of the land by the city.”
    2. A witness who testifies that he has knowledge of the value of a property before a portion of it was taken by a city, may testify as to such knowledge although he states that he had no knowledge of the value after the taking.
    Argued Oct. 23, 1908.
    Appeal, No. 181, Oct. T., 1908, by-defendant, from judgment of C. P. No. 1, Allegheny Co., Dec. Term, 1903, No. 1,074, on verdict for plaintiff in case of Trustees of the First Presbyterian Church of Pittsburg v. City of Pittsburg.
    Before Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Appeal from report of jury of view. Before MaoearLANE, J.
    The opinion of the Supreme Court states the case.
    Yerdict and judgment for plaintiff for $69,696. Defendant appealed.

      Errors assigned were (1) affirmance of plaintiff’s point, quoted in the opinion, and in permitting a witness for the plaintiff to testify as to the market value of the property before the taking, although he had no knowledge of the value after the taking.

      A. M. Thompson, with him W. B. Rodgers and Lee G. Beatty, for appellant.

      J. M. Stoner, with him R. B. Petty and M. W. Stoner, for appellee.

      January 4, 1909:

   Pee Gueiam,

A part of the plaintiff’s property used for church purposes was taken by the city of Pittsburg- in widening a street. The court affirmed the following point presented -by the plaintiff : “ In estimating the damage sustained by the plaintiff the jury should consider the value of the plaintiff’s whole property for its most valuable use or purpose before the taking and the effect upon its value for such use of the taking of a portion of the land by the city.” It is argued that this instruction limited the finding of value after the taking to the particular use that had been the most valuable use before, while the real test was its highest value for any use for which it was adapted. The words “ for such use ” in the connection in which they were used refer to the most valuable use and not to the particular use that had been the most valuable before, and could not have misled the jury in view of the clear and distinct instruction repeated in the charge that the most valuable use whether for church or business purposes was the use to be considered.

A witness for the plaintiff testified that he knew the value of the property before the taking, but had no knowledge of its value after. Ilis testimony as to the value before was objected to on the ground that he was incompetent to testify as an expert unless he knew the values both before and after the taking. The objection was without merit. The object in view was the ascertainment of the difference in values. That the witness could not testify to this because of his want of knowledge of one of the essential elements in its ascertainment was not a reason for excluding his testimony as to what he knew. If the other element, the value after, was fixed by other testimony, the jury would be in possession of facts to enable them by comparison of the values to fix the damages.

None of the assignments of error can be sustained.

The judgment is affirmed.


text:
    Wilson v. Union Steel Castings Company, Appellant.

      Negligence — Master and servant — Dangerous machine — Inspection— Case for fury.

    In an action against a steel company by an employee to recover damages for personal injuries the case is for the jury where it appears that the plaintiff was hit on the head while at work by a loose pinion falling from a crane which was being operated over his head, and the evidence is conflicting as to whether there had been- any proper inspection of the crane, or any system of inspection adopted by the defendant which might have avoided the accident.
    Argued Oct. 26, 1908.
    Appeal, No. 51, Oct. T., 1908, by defendant, from judgment of O. P. No. 4, Allegheny Co., Third Term, 1907, No. 310, on verdict for plaintiff in case of Thomas Wilson v. Union Steel Castings Company.
    Before Mitchell, C. J., Pell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    At the trial the jury returned a verdict for plaintiff for $3,000.
    On a motion for judgment non obstante veredicto Carnahan, J., filed the following opinion :
    The plaintiff was employed by defendant as a molder. His place of employment was in a mill used for the manufacture of steel castings. He worked underneath an elevated railway track, or runway, upon which was operated a crane, which was moved over the track to various parts of the building by means of electricity. By means of this crane heavy materials were lifted and carried away. There were other cranes in the building; but this particular one was used exclusively in the aisle where the molders worked, was in daily use during working hours, and was almost constantly being moved back and forth over the heads of the various molders while they were engaged at their work. A craneman occupied a small box or cab suspended from the lower part of the crane, and he directed its movements by means of levers in the cab.

      This aisle where the molders were located was thirty or thirty-fi ve feet in width, and the crane was sufficiently large to occupy most of this width overhead. Its movements were subject to the orders of the molder ; that is, when a mold was to be removed, the molder notified the craneman, who then ran his crane to the point desired and lowered the lifting apparatus. The molder then hooked on his mold and it was taken away.
    On the morning of August 8, 1906, at seven o’clock, the plaintiff and other molders went to work at their accustomed places. At about 9:30 a. m. this crane was run along the aisle and stopped immediately over the heads of the plaintiff and another molder. The lifting appartus was lowered aud something was hooked on to it by the molders, but when the crane-man turned on the power to raise the apparatus, with its freight, the machinery failed to work. Looking up from his cab with a view to discovering, if possible, what was wrong, he saw, some eight or nine feet above him, a loose pinion or small cogwheel eight or nine inches in diameter about to fall, having slipped or worked loose from its place at the end of the shaft. Tie immediately gave warning to the plaintiff, who was standing below, but almost at that instant the pinion fell, a distance of some seventeen or eighteen feet, and struck the plaintiff a glancing blow on the head, causing the injury for which damages are here asked.
    At the trial the plaintiff claimed that the defendant was negligent in not having provided a suitable and adequate system of inspection of the cranes used in the mill, and particularly of this crane, and that its negligence in this respect was the proximate cause of the injury. In support of this claim several witnesses who worked alongside plaintiff and in the immediate neighborhood of the place where the crane was used and operated testified that they had seen no regular inspection and that they were there at their work throughout each day. They had seen repairmen occasionally look over the crane, but there was no regularity nor frequency of inspection. They testified that after the accident the inspections were regular every morning.
    In behalf of the defendant it was claimed that the cranes, including this one, were inspected frequently, on Friday and Sunday of each week, by regular inspectors, also by repairmen when making repairs, and also by the cranemen when they oiled the machinery, which was a daily occurrence. Testimony to this effect was given. The operator of this particular crane testified that when he oiled, morning and evening, he inspected this crane. It was not his habit to make a minute or detailed inspection by striking with a hammer this or that pinion, bolt, screw or piece of machinery, but simply to glance over the machine and endeavor to detect by the eye defects that might exist. This crane inspection he had made the evening before when he oiled, but on the morning of the accident he was late and omitted to oil or make such inspec. tion as he usually made when oiling ; that morning he made no inspection at all.
    The defendant claimed and offered testimony to show that these inspections were more frequent and. thorough than those at other similar mills or shops in this locality, and they were sufficient to relieve from the charge of negligence. The plaintiff claimed that the evidence showed a lack of system and a careless, inadequate method of inspection which amounted to negligence. The defendant asked for binding instructions, which were refused, and the case was given to the jury, with instructions to determine whether the system and method of inspection was reasonable and adequate or not — bearing in mind the testimony as to the custom of other similar mills— and if not, whether such inadequacy of inspection was the proximate cause of the injury.
    There was no question of contributory negligence, nor did the court consider that there was any question of risk assumed by the plaintiff that released defendant from liability.

      Error assigned among others was in overruling motion for judgment non obstante veredicto.

      Wm. S. Dalzell, of Dalzell, Fisher ¿- Hawkins, for appellant,
    cited: Smith v. Traction Co., 202 Pa. 54; Hall v. Simpson, 203 Pa. 146; Price v. R. R. Co., 202 Pa. 176; Martin v. Ry. Co., 200 Pa. 603; Titus v. R. R. Co., 136 Pa. 618; Leonard v. Herrmann, 195 Pa. 222; Sage v. B. & O. R. R. Co., 219 Pa. 129.

      Wm. A. Stone, with him Stephen Stone and Albert P. Meyer, for appellee,
    cited: Newton v. Vulcan Iron Works, 199 Pa. 646; Finnerty v. Burnham, 205 Pa. 305; Lillie v. American Oar & Foundry Co., 209 Pa. 161.
    January 4, 1909:
   Per Curiam,

The judgment is affirmed on the opinion of the learned judge below, refusing to enter judgment non obstante veredicto.


text:
    Geiser v. Pittsburg Railways Company, Appellant.

      Negligence — Street railways — Car leaving track — Death of bystander.

    In an action against a street railway company to recover damages for death, the case is for the jury where the evidence shows that the deceased at the time of the accident was a bystander near a switch; that the forward trucks of a car proceeded upon the main track at the switch, while the rear trucks took the switch; that in consequence the rear end of the car flew around, struck a telegraph pole, which broke, and in falling killed the deceased; and that according to the testimony of a witness for plaintiff the switch point was worn flat.
    Argued Oct. 26, 1908.
    Appeal, No. 185, Oct. T., 1908, by defendant, from judgment of O. P. No. 3, Allegheny Co., Nov. Term, 1905, No. 348, on verdict for plaintiff in case of Arnold Geiser v. Pittsburg Railways Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s son. Before Evans, J.
    At the trial the jury returned a verdict for plaintiff for $1,825. On a motion for judgment non obstante veredicto Evans, J., filed the following opinion :
    On the trial of the case it appeared that on August 30,1905, between eleven and twelve o’clock in the morning, the son of the plaintiff was standing at the corner of Plummer and Forty-seventh streets, in the city of Pittsburg. The defendant company has two tracks upon Plummer street, and at the corner of Porty-seventh street has a car barn with a switch from their main tracks into the barn. On the morning in question a car was proceeding along Plummer street, and when the car came to the switch the front trucks either took the switch, and the hind trucks failed to take it and proceeded along the main track, or the reverse, the front trucks proceeded on the main track, and the rear, trucks took the switch, according to whether the testimony of the plaintiff or the defendant states the facts. The rear end of the car flew around, struck a telegraph pole near where young Geiser was standing, broke the pole, and in falling it struck Geiser and killed him. The allegation of negligence was a defect in the switch. Prank Gottschalk, a witness produced by the plaintiff, testified as to the condition of the switch. After testifying that some two weeks before the accident he was passing along there, and the wheel of his wagon was caught in the switch, he testified: “ Well, as my wagon was caught I got a bar, and the switch was worn out flat. Q. What part of the switch ? A. The end of it. Q. The point? A. Yes, sir. Q. And for what distance back was it worn flat, how far from the point back did the flatness extend ? A. I don’t know how long that point ivas, it was worn back quíte a bit. Q. Show us with your hands how far ? A. I would say about that far (indicating).”
    Mr. Challener; for the defendant: “ Q. Well, you indicate about four inches?”
    Mr. Marshall, for the plaintiff :• Six inches.
    Mr. Marshall: “ Q. Por that distance, between four and five inches back, you say the point of the switch was worn flat ? A. Yes, sir. Q. How often did you drive past there from the time that you particularly noticed the condition of this switch up until the time of the accident ? A. Two months. Q. How often did you drive past there during that two months ? A. Every day Q. Now had there been any change made in that switch from the time you got your wagon caught in there up until the day of this accident ? A. No, sir. Q. It was still in the same condition? A. Yes, sir.”
    Mr. Challener: “ Q. Did you notice whether or not the switch was thrown to allow a car to go in on a switch, or thrown so as to allow a car to go along the main track at that time ? A. Why, it was for the straight track.”
    Charles Lentz, a witness produced by the plaintiff, testified as follows: “Q. You area stepson of Arnold Geiser, the plaintiff in this case? A. Yes, sir. Q. Did you, on the day of this accident to your half-brother, go and examine this switch? A. I did. Q. Did you examine the point of that switch? A. Yes, sir; I did, I looked at it. Q. What was the condition of the point of that switch ? A. It was worn off at the top, it was thicker at the bottom than it was at the top, the back was worn off. Q. How far was it worn off at the top ? A. I guess it must have been from four to six inches at least. Q. Did you examine the switch back where it was attached to the rail, to see whether it was loose or not ? A. It was tight all right. Q. When did you examine it ? A. I guess it was about an hour and a half afterwards that I came along there. Q. Had you heard of the accident ? A. Yes, sir; the minister told me.”
    With the exception of the testimony of Gottschalk that he had some two weeks prior to the accident gotten his wheel fastened in this switch, the above is the only testimony on the part of the plaintiff as to any defective condition of the switch. He got the wheel of his wagon fastened while driving in an opposite direction from that in which this car was going, and his wheel was fastened between the switch and rail of the main track. The question presented is : does the testimony of the plaintiff that the switch point was worn flat justify the jury in drawing the inference that the accident to the car was occasioned by that condition of the switch point, and was tb,e condition of the switch point such as to impute negligence to the defendant company in permitting it to remain in that condition ? It is still the rule of law that the happening of the accident, in cases such as this one, is not evidence of itself of negligence, but the quantum of proof necessary to establish negligence, under certain circumstances, need be very slight. In Shearman and Redfield on Negligence, secs. 59 and 60, quoted with approval in the case of Shafer v. Lacock et al., 168 Pa. 497, this rule is laid down: “ The accident, the injury, and the circumstances under which they occurred are, in some cases, sufficient to raise a presumption of negligence, and thus cast on the defendant the burden of establishing his freedom from fault. When a thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen, if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from a want of care.”
    Applying that principle to the case at bar, we have the fact that it rarely happens that the forward trucks of the car will proceed upon the main track, and the rear trucks take the switch. If some obstruction has been negligently placed upon the track, causing the car to jump from the track upon which it was proceeding, that would naturally have affected the front truck as readily as the rear. N o ordinary condition of the tracks of the defendant company explains this accident. As we have suggested, no sudden emergency of something upon the track would explain why one pair of trucks of the car proceeded in its regular way, and the other set of trucks did not. In the case of Matthews v. Pittsburg & L. E. Railroad Company, 18 Pa. Superior Ct. 10, Mr. Justice Orlady, after citing the principle quoted from Shearman and Redfield, sec. 59, says: “ While the burden of proof is on the plaintiff in such cases, it is not required that the facts be established by direct or positive proof; like any other fact, it may be established by circumstantial evidence; and on account of the great difficulty in proving negligence in such cases any proper evidence from which negligence may be inferred is sufficient to throw the burden on the defendant. There may be no direct proofs of negligence, yet the way in which an injury is done may be such that negligence is the most probable hypothesis' by which it can be explained; and when this is so the defendant must disprove negligence by showing that he exercised care.”
    The case of Small v. Pittsburg Railways Company, 216 Pa. 581, we do not think rules this case. In that case the plaintiff’s testimony clearly shows that the accident was caused by the icy condition of the tracks, a condition which was not under the control of the defendant company. We are of the opinion that there was. sufficient evidence of negligence here to take the case to the jury. Let judgment be entered upon the verdict.

      Error assigned, was in entering judgment on the verdict.

      Wm. A. Ghallener, with him Glarence Burleigh and James G. Gray, for appellant.

      Body P. Marshall, with him Thomas M. Marshall, for appellee.
    January 4, 1909:
   Per Curiam,

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