author: Pee Curiam,

text:
    LeMoyne, Appellant, v. Washington County.

      Hoad law — County roads — Act of June 26, 1895, P. L. 336 — Collateral attack on order of court — County commissioners — Equity.
    An order of the court of quarter sessions approving the construction of a county road under the Act of June 26, 1895, P. L. 336, based on the finding of the grand jury, cannot be attacked collaterally on a bill in equity to restrain payments to contractors for the construction of the road, on the ground that the estimate of the cost and expenses of the proposed improvement was grossly inaccurate, or that some witness examined before the grand jury was mistaken in what he said, or submitted to them as the probable cost of the improvement. The ox-der can only be attacked on the ground that intentional fraud was practiced on the grand jury and the court by the county commissioners, or some one in their behalf.
    In such a case it is the duty of the county commissioners to make the improvement as indicated on the survey and plans filed in court and submitted to the grand jury, and it is not legally necessary that the plans give the details of the pi'oposed improvement; and it is a matter within the discretion of the county commissionex-s whether bids be taken for a fixed sum to complete the improvement, or for a schedule of prices for the work to be done by the piece.
    The Act of June 26, 1895, P. L. 336, puts a limit on the levy that can be made in any one year and on the amount of bonds that may be issued, but it does not indicate the character of road that shall be built or limit the cost per mile for building it; that is left largely to the disci’etion of the county commissioners, subject of course to the limitation that is upon all public officers who are quasi trustees, that they act in good faith and do not pay excessive and unreasonable prices for the kind of work they have done.

      County commissioners — Meetings—Awarding contracts.

    County commissioners ought to keep written minutes of their meetings at which they award contracts to improve county roads, which would show when the matter was considered and how each commissioner voted, and they are censurable for not doing so; but a bid or a proposal can be legally accepted by a full board after discussion and deliberation by an agreement not arrived at through parliamentary forms. A motion formally made and seconded and voted upon is not necessary to the legality of the agreement of all the members of the board that the bid of a particular bidder shall be accepted.
    Argued Oct. 21, 1905.
    Appeal, No. 116, Oct. T., 1905, by plaintiffs, from decree of C. P. Washington Co., No. 1461, in equity in case of Julius LeMoyne and William Hough v. Washington County et al. County Commissioners et al.
    Before Mitchell, C. J., Fell, Brown, Mestbezat, Potteb, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction. Before McIlvaine, P. J.
    From the record it appeared that on July 17,1903, the court of quarter sessions made an order approving the construction of a road as a county road under the Act of June 26, 1895, P. L. 336 from Claysville to Burnsville, a distance of about three miles. This order was based upon the action of the grand jury in approving the construction of the road. The contract for the construction was awarded by the commissioners to Zelt & Brothers. After the road was completed the complainants filed a bill in equity in which they prayed as follows:
    1. For an injunction from further carrying out said contract, or any part thereof.
    2. That the county commissioners and county treasurer be restrained from issuing or paying any orders on said contract.
    3. 4. That the contract be declared illegal and void.
    5. That the commissioners be required to answer and to produce on hearing all bids received and the contract executed.
    6. For other appropriate relief.
    The court found, inter alia, as follows :
    11. The written estimate of the engineer, John McAdam, of the cost and expenses of the contemplated improvement of this three-mile section of the road laid before the grand jury was $2,739.86 per mile or $8,219.58 for the three miles of road; the actual cost under the Zelt contract is about $12,600 per mile or $37,911.66 for the three miles and sixty feet. McAdam’s estimate was evidently erroneous, not apparently so on its face, but on account of mismeasurements or mistake in calculation made by tbe person making tbe written estimate.
    12. On June 11, 1904, tlie county commissioners and N. C. Hunter, a contractor who was a successful bidder for one of the other seven sections of road, the improvement of which the grand jury approved, agreed on a case stated for the opinion of the court to determine whether his contract (and incidentally all the others that had been entered into by the commissioners under like circumstances) was ille'gal for the reason that the improvement would cost greatly in excess of the estimate submitted to the grand jury. In an opinion and decree of this court on its law side, filed on June 22, 1904, to 61 August Term, 1904, it was adjudged that the cost of roads constructed under the act of 1895 might legally exceed the estimate submitted to the grand jury, if no fraud was practiced upon the grand jury and the engineer was honestly mistaken in his estimate. Of this opinion and decree the plaintiffs had constructive notice, and no money was paid Zelt & Brothers until after the decree was filed.
    18. The evidence in this case is not sufficient to show and it does not show that the county commissioners, J. F. McClay, S. F. Scott and J. B. Gibson, either jointly or individually or in collusion with any other person, were guilty of any corrupt practices or actual fraud or of consciously doing any wrong either in the letting of tbe contract for the improvement of the road in question or in carrying out and performance of that contract.
    14. The evidence in this case does not show, and none was offered to show, that the sum of $37,911.66 is an excessive and unreasonable price for the construction of the three miles and sixty feet of road constructed as the defendants, Zelt & Brothers, were required to construct it, nor does it show that $4.40 per cubic yard for putting down six inches broken stone foundation and three inches of ballast in place, when the stone had to be quarried in and near Washington and transported the long distance to reach the place where they were used, was an excessive and unreasonable price therefor.
    * * «■ •* * * * *
    SUMMARY OK ADJUDICATION.
    For the convenience of those interested we give a summary of our decision.

      We hold:
    1. That the decree of July 17, 1903, of the court of quarter sessions made the section of road in question “ a county road.”
    2. That all proceedings which led up to that decree were regular in form.
    8. That neither the validity of the finding of the grand jury on which the decree is founded nor the decree itself could be questioned in this proceeding except on the ground that intentional fraud-was practiced upon the grand jury and court by the county commissioners, who are defendants in this ease, or by some one in their behalf, and there is no such allegation in the plaintiffs’ bill.
    4. The decree based on the finding of the grand jury, like a judgment based on the verdict of a petit jury, cannot at this late day be collaterally attacked on the ground that the estimate of the cost and expenses of the proposed improvement of this section of road was grossly inaccurate, or that some witness examined before the grand jury was mistaken in what he said or submitted to them as to the probable cost of said road improvement.
    5. The section of road in question being decreed “ a county road,” the county commissioners had power and it was their duty to improve it as indicated on the survey and plans filed in court and submitted to the grand jury, and it was not legally necessary that the plans give the details of the proposed improvement.
    6. It was a matter in the discretion of the county commissioners whether bids be taken for a fixed sum to complete the improvement or for a schedule of prices for the work to be done by the piece.
    7. It was a matter in their discretion to determine to what bidder they would award the contract, and if they after inquiry believed that the lowest bidder was not responsible they could reject him.
    8. There is no evidence in this case that the county commissioners corruptly or fraudulently rejected the lowest bidder or abused the discretion vested in them.
    9. County commissioners ought to keep written minutes of their meetings at which they award contracts to improve county roads which would show when the matter was considered and how each commissioner voted, and they are censurable for not doing so, but a bid or a proposal can be legally accepted by a full board after discussion and deliberation by an agreement not arrived at through parliamentary forms. A motion formally made and seconded and voted upon is not necessary to the legality of the agreement of all the members of the board that the bid of a particular bidder shall be accepted.
    10. That the bid of Zelt & Brothers was legally accepted by the full board after discussion and deliberation, and the written contract executed in pursuance thereof by affixing the seal of the county and the signatures of a majority of the commissioners thereto, is binding on the county.
    11. The evidence shows that the commissioners went about the improvement of the roads that were decreed “ county roads ” not having in view any limit upon the cost of the improvement but on the theory that the improvement must be made at whatever expense to the county they would cost at prevailing prices for work and material; but it does not show that they were guilty of any corruption or actual fraud in the matter or had any intention of illegally spending the county’s money.
    12. The act of 1895, commonly known as the Flinn law, puts a limit on the levy that can be made in any one year and on the amount of bonds that may be issued, but it does not indicate the character of road that shall be built or limit the cost per mile for building it; that is left largely to the discretion of the county commissioners, subject of course to the limitation that is upon all public officers who are quasi trustees, that they act in good faith and do not pay excessive and unreasonable prices for the kind of work they have done. This makes it possible to have “ high-priced road ” commissioners, and “ low-priced road ” commissioners ; and whether S3,000 per mile or $13,000 per mile roads shall be built is not a question of law to be settled by a court of equity in an injunction proceeding, but a political question or a question of public policy to be settled by the tax-paying voters at the polls when they elect county commissioners.
    13. The evidence shows that Zelt & Brothers had completed the work under their contract before this bill was filed, and there is no evidence that they had any knowledge of any irregularity of action or misconduct on the part of the county commissioners, or that the prices they charged in the aggregate for the work they did is excessive and unreasonable, and the plaintiffs’ remedy is not to enjoin the payment of their claim by the county but to pursue the county commissioners on the law side of the court if they have done any wrong in the premises that makes them liable for misspending the county’s money..
    14. The plaintiffs delayed filing their bill until after the rights of innocent parties had intervened and by their laches have lost their right to the remedy of injunction, if they ever had it.
    The court dismissed the bill.

      Errors assigned were various findings and the decree of the court.

      Boyd Crumrine, with him James P. Eagleson, E. E. Crumrine and N. R. Criss, for appellants.
    Jurisdiction was not given to the grand jury and court, to approve and decree the reconstruction of the township road in this case into a county road, for the reason that not only the surveys and plans but also the estimate of cost were entirely insufficient: In re Anderson, 109 N. Y. 554 (17 N. E. Repr. 209) ; Noble v. Thompson Oil Co., 79 Pa. 354; Fowler v. Eddy, 110 Pa. 117 ; Gordon’s App., 93 Pa. 361; Middletown Road, 15 Pa. Superior Ct. 167 ; Com. ex rel. v. Risser, 3 Pa. Superior Ct. 196; Southampton Twp. Election, 27 Pa. C. C. Rep. 246.
    But if jurisdiction were given, upon the surveys and plans and estimate submitted, then the estimate of cost was a limitation upon expenditure which could not lawfully be materially exceeded, and the contract executed with Zelt & Brothers whereby the cost would exceed the estimate was illegal and void: Erie v. Brady, 150 Pa. 462; Reading v. O’Reilly, 169 Pa. 366 ; Lehigh County v. Kleckner, 5 W. & S. 181; Hague v. Philadelphia, 48 Pa. 527; Shaefer v. Schuylkill County, 19 Pa. C. C. Rep. 508; Bradford County v. Horton, 6 Lacka. Leg. News, 306.
    Neither the county commissioners nor the bidders having knowledge from the surveys and plans of the quantity, character and quality of the work to be done, the contract let in this case, upon specific bids per cubic yard or square yard, etc., was contrary to public policy, unauthorized and void: Anderson’s Case, 109 N. Y. 554 (17 N. E. Repr. 209).
    The contract in this case being illegal and void upon the grounds hereinbefore stated, of which the contractors were bound to take notice when they entered into it, equity has power, even though the work was completed, to enjoin the payment of a balance of the contract price remaining unpaid when the bill was filed: O’Malley v. Olyphant Borough, 198 Pa. 525 ; Sutro v. Pettit, 74 Cal. 332 (16 Pac. Repr. 7).

      T. F. Birch, for J. F. McClay and S. F. Scott, appellees.

      Norman F. Clark, with him W. S. Parker and Winfield Mellvaine, for Zelt & Brothers, appellees.
    November 4, 1905:
   Pee Curiam,

The decree is affirmed on the summary of adjudication by the learned court below.


source: Caselaw Access Project

author: Pee Cueiam,

license: Public Domain

text:
    McDermott v. Bennett, Appellant. Johnston v. Bennett, Appellant.

      Judgment — Opening judgment — Attorney and client.

    A rule to open a judgment entered on a judgment note given to counsel by a client when in serious difficulties, will be allowed, where the affidavit for the rule avers fraud and coercion, and the circumstances are such as to justify judicial investigation.
    Argued Oct. 24, 1905.
    Appeals, Nos. 32 and 33, Oct. T., 1905, by defendant, from orders of C. P. No. 3, Allegheny Co., Aug. T., 1903, Nos. 240 and 241, refusing rules to open judgment in cases of Frank P. McDermott v. Laura Biggar Bennett and Aaron E. Johnston v. Laura Biggar Bennett.
    Before Mitchell, C. J., Fell, Brown, Mestbezat, Potteb, Elkin and Stewabt, JJ.
    Reversed.

      Petition for rule to open judgment.
    Petition for the rule averred as follows:
    That Frank P. McDermott secured by fraud and coercion a certain judgment note of $1,500 in the month of July, 1903; the nature of such fraud and coercion will more fully be shown by revelation of all the. circumstances connected with the same, to wit: On or about the month of September, A. D. 1902, in the,city of Long Branch, Monmouth county, New Jersey, your petitioner • was charged with the crimes of perjury and conspiracy by one Peter J. McNulty, an executor of the will of Henry M. Bennett — -said perjury and conspiracy being charged against your petitioner because she established her wifehood to H. M. Bennett, and because she proved the death of a posthumous child as a result of said marriage. That your petitioner iti the month of November, 1902, surrendered herself voluntarily into the custody of said court of Monmouth county; that about the month of December, 1902, she was indicted for said crimes by the grand jury of Monmouth county; that on representation' to the general sessions court of Monmouth county, New Jersey, that she being unable to retain counsel— she being penniless — the said court assigned Messrs. Frank P. McDermott and Aaron Johnston, both of the Monmouth county bar, to defend her.
    That upon being so assigned, the said Johnston and McDermott immediately visited said petitioner and codefendants in the jail of Monmouth county and told said petitioner that her interests in said trial could not be successfully guarded and that trial would not be very well prepared or conducted, except petitioner would sign an agreement wherein she promised to pay said McDermott and Johnston and one Joseph Noonan the sum of $10,000 jointly; said agreement, which cannot be found, was based on the consideration above, and on the promises of said McDermott and Johnston to procure bail for codefendants of petitioner who were indicted for the same crimes, and on consideration of the expenditure of necessary disbursements at trials, and of expenses of an appeal to a higher court if a conviction would. result; that said agreement provided, among other things, that no part of said moneys in said agreement would be. asked for until said petitioner’s estate, under the will of Henry M. Bennett, was satisfactorily settled, and that at no time was she to pay said McDermott and Johnston any more than one-third of her actual income as received from said estate. That each and every condition of said agreement was and is violated by said McDermott and Johnston. Your petitioner further shows that since and before and at the times she was charged with said crimes that she was ill in body and mind, and that the conduct of said attorneys has been of such unfairness to petitioner that she has suffered very much. That your petitioner further shows that said attorneys at the time they were assigned by said court to defend petitioner they visited her in the Monmouth county jail, and told her that owing to the prejudice entertained towards her, that they could not fully defend her except she would sign the said agreement ; that they spent nothing in the way of disbursements; that they discouraged publicly many offers of bail for her co-defendants ; that they neglected to get evidence on the demand of her codefendants that they alone could get; that they positively repudiated voluntary witnesses who offered their services in her behalf; that all the witnesses who appeared at petitioner’s trial were treated with indifference by said attorneys; that all expenditures of moneys at the trial and for appeal were paid by said petitioner. That your petitioner’s codefendants were convicted (your petitioner being acquitted) of said crimes, December 24,1902; that on or about the first day of July, 1903, the last day on which briefs could be filed on the appeal of the codefendants to the supreme court of New Jersey, said attorneys notified your petitioner that except she paid the money due on said agreement or gave judgment notes of $1,500 each to them, and also a $1,500 judgment note to lawyer Noonan, that no appeal would be filed, and that her codefendants would have to serve their sentences of two years and a half, and pay a fine of $1,000 each, and that she would, as a result, never appear before the world as innocent. That at the time this misrepresentation was made, the appeal and briefs were actually on file in the supreme court of Trenton, New Jersey, as petitioner found out later on ; that on this fraudulent and cruel representation your petitioner executed said judgment notes in lieu of said agreement. That before she executed said notes, said attorneys made a written agreement connected with the same to the effect that no attempts would be made to collect on said notes or force the collection on same, until she were able to pay.
    The court refused the rule.

      Error assigned was the order of the court discharging the rule;

      Charles R. Carruth, for appellant.
    Where the confidential relation exists between the parties, the party in whom confidence is placed is held to the strictest responsibility. The burden is upon him .to show that the transaction between him and his principal, by which he derives a benefit, was fair, conscientious and beyond the reach of suspicion; Darlington’s Estate, 147 Pa. 624; O’Hara v. Baum, 82 Pa. 416; Humphrey v. Tozier, 154 Pa. 410.
    A judgment will be opened where it appears that it has been confessed for more than in equity or good conscience was owing by the defendant: Saunders’s App., 19 W. N. C. 507.

      Thomas Patterson,- of Patterson, Sterrett Acheson, for appellee. — At no place in the petition, either directly or inferen'tia-lly, does the petition aver that the services of counsel were not worth ' the amount for which' the judgment notes were given.
    To justify the opening of a judgment entered on warrant of attorney or by confession, it should appear that the judgment was originally confessed for more, than in equity and good conscience was then owing by the. defendants therein: Saunders’s App., 19 W. N. C. 507.
    November 4, 1905:
   Pee Cueiam,

These two cases are substantially alike and were argued together.

The appellant in her affidavit for a rule to open the judgments sets out that the. notes were given to counsel by a client who was in serious difficulties under circumstances which, even if they should not be shown to amount to fraud and coercion as charged, are certainly such as to justify full investigation.

Order reversed and rule, directed to be allowed.


author: Peb Cubiam,

text:
    Sheehan v. Pittsburg, Appellant.

      Contract — Municipal contract — Opening street — Delay.
    Where a municipal contract for the construction of a street is based on the assumption by both the city and the contractor that the complete right of way had been secured by the city, a delay caused by the failure to obtain the complete right of way is not within the meaning of a provision of the contract that all loss or damages from unforeseen obstructions and difficulties and from delay, should be borne by the contractor. In such a case a provision of a contract for extension of time only on the written assent by the director of public works is not applicable.
    Where a municipal contractor is delayed in completing his work by the fault of the city, he may either abandon the work, or continue it and claim the damages caused by the city’s fault.
    Where a dispute between a municipal contractor and a city as to grading is one of amount alone, and it appears that the city might have settled the amount conclusively by measuring and certifying it, but did not do so, the question in dispute is for the jury.
    Argued Oct. 25, 1905.
    Appeal, No. 85, Oct. T., 1905, by defendant, from judgment of C. P. No. 2, Allegheny Co.,, Oct. T., 1901, No. 300, on verdict for plaintiffs in case of John C. Sheehan et al. v. City of Pittsburg.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit on a municipal contract for the construction of a street. Before Frazer, P. J.
    At the trial it appeared that on September 16,1896, the city of Pittsburg entered into a contract with W. E. Howley & Co. for the construction of a street known as the Grant Boulevard. This contract was subsequently assigned to Werneberg, Sheehan & Company, plaintiffs. Both parties to the contract assumed that the complete right of way had been acquired by the city. It turned out that this was not the case, and that by reason of the delay in securing the right of way the contractors were subjected to a large loss.
    The contract contained the following provisions :
    “ All loss or damage arising out of the nature of the work to be done under this contract or from any unforeseen obstructions or difficulties, which may be encountered in the prosecution of the same, or from the action of the elements, or from any encumbrance on the line of the work, shall be sustained by the parties of the second part ” (the contractors).
    “ No charge shall be made by the contractor for any hindrance or delay from any cause during the progress of the work, but it may justify his asking an extension of the time allotted for completing the same sufficient to make allowance for the detention to be determined by the director of the department of public works ; provided, the contractor shall give said director immediate notice in writing of the cause of the detention.”
    In addition to the loss caused by delay plaintiffs claimed to recover for a quantity of filling as to the amount of which they offered evidence.
    Verdict and judgment for plaintiffs for $128,995.01. Defendant appealed.

      Errors assigned were various instructions.

      William Watson Smith, assistant city solicitor, with him T. D. Carnahan, for appellant.

      Thomas Patterson, of Patterson, Sterrett Acheson, with him William W. Wishart and John W. Kephart, for appellees.
    November 4, 1905.
   Peb Cubiam,

Notwithstanding the breadth of the language of the agreement that all loss or damages from unforeseen obstructions and difficulties and from delay, were to be borne by the contractors, it-.is clear that the delay from the city’s failure to obtain complete right-of way was not in the class of difficulties and delays -which were in the minds of the parties, for the agreement itself was based on the assumption by both parties that the complete right of way had been secured'so that the work could be begun at any point and proceed without intei’ruption.

For- the same reason .the provision for extension of time only on written assent by the director of public works is not applicable.

There was therefore no breach of the agreement by the plaintiffs .which prevented them from recovering, and the authorities are clear that they were not bound to abandon the work or to be taken as having waived the delay caused by the city. While they might have abandoned it they had the option to continue and claim the damages caused by the city’s fault.

The dispute as to grading was one of amount alone. The director of public works might have settled the amount conclusively by measuring and certifying it, but he did not do so. It was therefore a question for the jury.

Judgment affirmed.


author: Per Curiam,

text:
    Jones v. Weir, Appellant.

      Equity — Equity practice — Failure to find facts — Receiver.
    The Supreme Court will reverse a decree of the court of common pleas appointing a receiver where the court below made no findings of the facts upon which the decree was based.
    Argued Oct. 31,1905.
    Appeal, No. 274, Jan. T., 1905, by defendant, from decree of C. P. York Co., Aug. T., 1905, No. 2, appointing a receiver in case of Simeon M. Jones v. Thomas Weir.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Bill in equity for an injunction and a receiver. Before BitTENGER, P. J.
    From the record it appeared that the court entered a decree appointing a receiver without any findings of fact or opinion filed.

      Error assigned was the decree of the court appointing a receiver.

      N. Sargent Ross, of Ross $ Brenneman, with him Thomas H. Greevy, for appellant.

      Edward B. Scull, with him George E. Neff and Henry O. Niles, for appellee.

      November 4,1905 :
   Per Curiam,

The court below made no findings of fact, and there is therefore nothing of record to sustain its decree. This is a plain disregard of the equity rules, and if we should consider the merits of the case in its present condition we should be obliged to examine the evidence in detail, make the findings of fact for ourselves, and thus assume the duties of the court of first instance.

The decree is reversed and the injunction dissolved, with directions to the court to vacate the appointment of the receiver, and compel an immediate accounting by him. The case may then proceed in the regular way to final hearing.


author: Pee Cubiam,

text:
    Masseth's Estate.

      Wills — Probate—Issue devisavit vel non — Testamentary capacity.

    On a petition for an issue devisavit vel non it appeared that the will in dispute contained seventeen clauses giving legacies and bequests of money and specific articles of personal and household use to nineteen different persons. According to the testimony of the counsel who drew the will testatrix dictated all these items to him from memory and without suggestion from others. The will was not read over to testatrix at the time she signed it. The attorney who drew the will testified that he wrote it according to her instructions, and that his omission to read it to her was by her own command. There was testimony as to delusions on the part of the testatrix, but it appeared that these arose from her habit of taking narcotics for the relief of pain. It appeared, however, that these delusions were not continuous, and did not affect the testamentary act. Held,, that the court committed no error in refusing an issue.
    The fact that a will is not read over to testator at the time of its execution is only material, when there is doubt whether the will correctly expresses the testator’s intent.
    Argued Oct. 19, 1905.
    Appeal, No. 69, Oct. T., 1905, by Margaret F. Campbell, from decree of O. C. Butler Co., refusing an issue devisavit vel non in Estate of Araminta Masseth.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Petition for an issue devisavit vel non. Before Galbreath, P. J.

      The facts are stated in the opinion of the Supreme Court.

      Error assigned was decree refusing an issue.
    ’ Thomas E. Greer, with him W. S'. Thomas, John M. Greer and John B. Greer, for appellants.

      W. H. Lusk and T. O. Campbell, for appellees, were not heard.
    November 4, 1905 :
   Pee Cubiam,

The will of testatrix bears strong intrinsic evidence of her possession of a sound memory as to her possessions, and a clear view of what she wanted to do with them. There are seventeen clauses giving legacies and bequests of money and specific articles of personal and household use to nineteen different persons, and according to the testimony of the counsel who drew the will she dictated all these items to him from memory and without suggestion from others. It would require very clear evidence of want of testamentary capacity to overcome this prima facie case, and no such evidence was presented: Kane’s Estate, 206 Pa. 204.

There was testimony to delusions on the part of the testatrix, but they were fairly accounted for by her habit of taking narcotics for the relief of pain. The learned judge below found that they were not continuous and did not affect her mind as to matters involved in the making of her will. He therefore rightly held that they should be disregarded: Shreiner v. Shreiner, 178 Pa. 57.

The fact that the will was not read over to her at the time she signed it is not material. Such fact only becomes important when there is doubt whether the will correctly expresses the testator’s intent: Hess’s Appeal, 43 Pa. 73. In the present case there is nothing to raise such doubt. The attorney who wrote the will testified that he wrote it according to her instructions, and that his omission to read it to her was by her own command.

Decree affirmed at costs of appellant.


author: Mr. Justice Bbown,

text:
    Commonwealth ex rel. v. Collier.

      Public officers — Board of revision — County officers — Appointment—Judicial functions — Constitutional law.

    The three persons who compose the board for the assessment and revi- . sion of taxes created by the Act of March 24, 1905, P. L. 47, for counties containing a population of not less than 300,000, nor more than 1,000,000, are not county officers, and the direction of the' act that they shall be appointed by the courts of common pleas of the proper county, is constitutional. Sección 2 of article XIV of the constitution which declares that county officers shall be elected at the general elections, has no application to the board created by the act of March 24, 1905.

    The provision in section 21 of article V of the constitution, that judges shall-be exempt from the imposition of nonjudicial duties, applies only to judges of the Supreme Court.
    Argued Oct. 23, 1905.
    Petition for mandamus, Oct. T., 1905, No. 118, in suit of Commonwealth ex rel. Hampton L. Carson, Attorney General of the Commonwealth of Pennsylvania, v. Frederick H. Collier, Marshall Brown, James R. Macfarlane, Robert S. Frazer, John D. Shafer, James S. Young, John M. Kennedy, Samuel A. McClung and John A. Evans, Judges constituting the several courts of Common Pleas of Allegheny County, Pennsylvania, being the Fifth Judicial District.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Petition for mandamus to compel the judges of the several courts of Allegheny county to appoint three persons as a “ board for the assessment and revision of taxes ” in and fbr the county of Allegheny, state of Pennsylvania, as provided by section 1 of the Act of Assembly, approved March 24, 1905, P. L. 47.

      Hampton L. Carson, attorney general, and R. H. Jackson, for the petitioners.
    Under the acts, the duties of the board of revision have to do with assessments for taxes for state and county purposes; not exclusively county matters as is the case with the county officers named in the constitution, but with matters of a much broader and different scope. Both state assessment as well as county are made their duty, and each, of equal importance. Not as in the office of treasurer and register, where the duty to the state is made an incident of his office, and the state’s agent simply for convenience, but the duty to the state is primary and requires as much attention as that to the county. Clearly the duties are not primarily county duties, as in the list enumerated in the constitution, and the office of board of revision is not ejusdem generis : Taggart v. Com., 102 Pa. 854.
    The act is not unconstitutional, because the legislature has imposed upon the courts duties that are not judicial: In re Bulger 45 Cal. 553 ; Sturgis v. Spofford, 45 N. Y. 446 ; Ohio State v. Judges, 21 Ohio, 1; Commissioners of Sinking Fund v. George, 47 S. W. Repr. 786; People v. Hurlbut, 24 Mich. 44 ; Commonwealth v. Baxter, 35 Pa. 263 ; People v. Mathewson, 47 Cal. 442.
    This power has been exercised by the legislature, both before and since the adoption of the constitution of 1874, and so by “ long period of acquiescence ” has become an established custom, a legislative exposition equal in force to judicial construction : Moers v. City of Reading, 21 Pa. 188; Cronise v. Cronise, 54 Pa. 255.

      E. 11. Stowe, for respondents.
    November 4, 1905 :
   Opinion by

Mr. Justice Bbown,

If the three persons to compose a board for the assessment and revision of taxes created by the Act of March 24, 1905, P. L. 47, for counties containing a population of not less than 300,000 nor more than 1,000,000 are county officers, the direction of the act that they shall be appointed by the court or courts of common pleas of the proper county is invalid, for section 2 of article XIV of the constitution declares that county officers shall be elected at the general elections. By the 1st section of the same article county officers consist of sheriffs, coroners, protlionotaries, registers of wills, recorders of deeds, commissioners, treasurers, surveyors, auditors or controllers, clerks of the courts, district attorneys, and such others as may from time to time be established by law. With authority thus clearly given to the law making power to add to and increase the constitutional list of county officers, the first question to be considered in this proceeding is, Has the legislature done so in the act under consideration ?

The members of the board created by the act are not declared to be county officers; on the contrary, by directing that they shall be appointed and not elected, the legislature must manifestly be understood as not having intended to create new county officers. In passing the act the guide of its members was the constitution, and with it as an open book before them its unmistakable words were that if new county officers were to be established they would have to be elected and could not be appointed. The legislature further knew from section 3rd of the same article that the constitution contemplates the appointment of officers within a county who are not county officers. The members of the board are not designated in the act as comity officers, and, strictly speaking, they could not be so designated. In Taggart v. Commonwealth, 102 Pa. 354, it is true it is said, “ In determining what class of officials should be designated county officers, the convention manifestly had in view those whose duties were coextensive with the boundaries of the county; ” but a surer test is the character of the duties to be performed by the officers. The duties of a state officer to be performed within a county may be coextensive with and limited to it, but for that reason he is no less a state officer if he acts for the state. The duties to be performed by the board created by the act of 1905 are not for the county alone, but for the state as well. Separate and distinct duties are imposed upon its members. That the commonwealth may receive the tax which it has imposed as a state tax, they are to assess and value a certain species of property, and' the act provides that, “ In so far as respects state taxes, the valuations and assessments shall be made by the board annually, on or before December 31; ” that the county may receive the taxes due it and needed by it for strictly county purposes, they shall assess and value the réaí estate within it, and in so doing they perform no duty for the state.

At times a county officer whose primary duties are to the county, is directed by the state to act for it by virtue of his office. A county treasurer, because he is the appropriate county officer for such a purpose, is designated to collect for the state certain taxes levied by it for state purposes, and so the register of wills by virtue of his office collects the collateral inheritance tax on decedents’ estates; but not so here. The appointment of the board is primarily for the state as well as for the county, and though the former looks to the latter for the payment to it of a certain tax, the legislature does not permit the county through its township and ward assessors to assess and value property upon which the state tax has been imposed, but directs that this board shall be appointed for that specific purpose. Being clearly of the opinion that the members of the board are not county officers, we pass to the next objection raised to the act, which is that it imposes on the court duties that are not judicial.

The executive, legislative and judicial branches of the state government are created by the people through their constitution, and the powers and duties of each are such only as are expressly conferred or imposed, or are inherent by necessary implication. But there are no powers inherent in either of the branches nor duties to be evaded by either of them, if such powers have been expressly withheld from it by the people or duties have been imposed upon it by them; and therefore no duty can be evaded by the executive or judiciary if the people have authorized its imposition by the legislature, their law making power, on either of these branches. In the judiciary article the judges of but one court are exempt from the imposition of non-judicial duties, and from them alone is the power of appointment withheld. “ No duty shall be imposed by law upon the supreme court or any of the judges thereof, except such as are judicial, nor shall any of the judges thereof exercise any power of appointment except as herein provided : ” Const, sec. 21, art. V. Expressio unius est exclusio alterius is no less true of this clause than of any statute ; and it is therefore to be presumed that the people, with the knowledge that for years before they adopted the present constitution judges of the common pleas had been directed by acts of assembly to appoint mercantile appraisers, boards of revision of taxes, and other officers, and were so appointing them, adopted the clause containing the limitation upon this court alone, and left the judges of the other courts to continue to appoint when directed to do so by the legislature.

The real question is not as to the character of the duty to be performed by the courts under the act of 1905, but as to the constitutional power of the legislature to impose it. If that power exists the duty imposed in this clear exercise of it must be performed. Under the conditions existing at the time of the adoption of the constitution the people were able to declare who at that time should be regarded as county officers, but, anticipating the requirements arising from new conditions, power was committed to the legislature of establishing others from time to time, all, however, to be elected. In addition .to new county officers to be elected, the necessity for others, to be appointed, was clearly contemplated in the adoption of the constitution to meet requirements in the growth and development of the state. What those new officers should be could not have been anticipated, and therefore their selection-is not provided for in the constitution; but when new offices are needed the legislature may admittedly create them, and, when created, they may be filled by appointment. They are to be “ appointed as may be directed by law: ” Const, sec. 1, art. XII. The direction of the law is that the board created by the act of 1905 shall be appointed by the court or courts of common pleas of the proper county, and this direction having been made in pursuance of constitutional authority, a constitutional duty arises which cannot be disregarded. This duty having been imposed upon the courts of common pleas of the county of Allegheny, must be performed by the judges composing them. In all matters a court acts through its judge or judges, and when the combined courts of a county are directed to act, they are to act through a majority of their judges forming one body. In the absence of statutory direction as to the manner in which they shall so act, their good judgment will be their guide.

From the answer of the respondents we deem nothing more necessary than this brief expression of our views on the questions raised by them, and, assuming that the duty imposed upon them will be performed, the order asked for by the commonwealth will not now be made.


author: Mb.. Justice Elkin,

text:
    Burns, Appellant, v. Johnstown Passenger Railway Company.

      Negligence — Street railways — Passengers—Summer car — Standing on running board — Contributory negligence.

    The running board of a summer car is not intended for the use of passengers, except as a convenience in getting in and out of the car. A passenger who stands on the running board when there is room inside, or when it is reasonably practicable to go inside the car assumes the risk of his position.
    Where a passenger takes his stand on the running board of a summer car with knowledge of the close proximity of the polos to the tracks, and warns other passengers of the danger, and is subsequently hit by a pole and is killed, no damages can be recovered for his death.
    Mestrezat, J., dissent®.
    Argued Oct. 9, 1905.
    Appeal, No. 176, Oct. T., 1905, by-plaintiff, from order of C. P. Cambria Co., Sept. T., 1904, No. 376, refusing to take off nonsuit in case of Margaret J. Burns v. Johnstown Passenger Railway Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband. Before O’Connor, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Donald F. Dufion, with him Robert F. Creswell, for appellant.
    —The defendant was guilty of negligence which was the proximate cause of the injury complained of: McCaw v. Union Traction Co., 205 Pa. 271.
    There was no evidence to warrant the court in granting a compulsory nonsuit and withdrawing the case from the jury, and if any inference of fact was to be drawn from the evidence in this case, it was within the peculiar province of the jury to do it and not the court: Maynes v. Atwater, 88 Pa. 496; Corbalis v. Newberry Twp., 132 Pa. 9 ; Kuntz v. R. R. Co., 206 Pa. 162; Fisher v. Ry. Co., 131 Pa. 292; Penna. R. R. Co. v. Coon, 111 Pa. 430 ; Neslie v. Pass. Ry. Co., 113 Pa. 300 ;Merriman v. Phillipsburg Boro., 158 Pa. 78.

      Percy Allen Rose, with him Forest Rose and W. Horace Rose,
      for appellee.
    Aside from his. knowledge of the danger of his position, under ordinary circumstances, it was the duty of the deceased to exercise a reasonable effort to secure either a seat or standing room inside of the car, but having disregarded his knowledge of the danger of his position and it being possible for him to find room on' the inside of the car by the exercise of but a slight effort, he assumed the risk of his position and, having been injured in a way against which he could have easily guarded, there can be no recovery: Thane v. Scranton Traction Co., 191 Pa. 249 ; Bard v. Penna. Traction Co., 176 Pa. 97; Bumbear v. United Traction Co., 198 Pa. 198; Woodroffe v. Ry. Co., 201 Pa. 521; Aikin v. Frankford, etc., R. R. Co., 142 Pa. 47 ; Monongahela City v. Fischer, 111 Pa. 9; Oil City Fuel Supply Co. v. Boundy, 122 Pa. 449; Mattimore v. Erie City, 144 Pa. 14.
    January 2, 1906:
   Opinion by

Mb.. Justice Elkin,

Even if it be conceded that the defendant company was negligent in constructing and maintaining the poles supporting the trolley wires in too close proximity to the tracks, it does not necessarily follow that there can be a recovery in this case. The real question in dispute is whether the testimony shows such contributory negligence on the part of the deceased as will defeat plaintiff’s claim in this action. The learned trial judge in the court below directed a compulsory nonsuit, which on motion made, he refused to take off, from which rulings this appeal is taken. The deceased was standing on the running board of an open summer car at the time the accident occurred. We have frequently said that the running board of a car is not intended for the use of passengers except as a convenience in getting in and out of the car. A passenger who stands on the running board when there is room inside, or when it is reasonably practicable to go inside the car, assumes the risk of his position : Bard v. Pennsylvania Traction Co., 176 Pa. 97; Thane v. Scranton Traction Co., 191 Pa. 249; Bumbear v. United Traction Co., 198 Pa. 198. It follows therefore that a passenger who is injured while standing on the running board must show by affirmative testimony that it was not practicable for him to go inside the car before he can sustain an action for damages.

We have some doubt whether the evidence offered by appellant has met this standard of requirement, but, even conceding, under the circumstances as disclosed by the testimony, it was a question for the jury to determine whether it was practicable for the deceased to go inside the car, still there can be no recovery because of the negligence of the deceased in another respect. The danger, if any, from the poles could have been avoided by the exercise of reasonable care. Did he exercise the reasonable care required under the circumstances, The learned trial judge held that he did not. In this there was no error. The deceased had placed himself on the running board where he assumed the risk of his position, unless he relieved himself by showing that it was not practicable for him to go inside, and in addition he knew of the close proximity of the poles to the tracks, and warned other passengers of the danger. Three or more passengers standing in front of him and one or more back of him passed the pole without being injured. These passengers were standing on the same running board, and were subject to the same danger if such it was. They all avoided the danger of the poles about which the deceased had warned them and it is clear he could have avoided it by the exercise of reasonable care.

If he knew the danger, and he did, and could have avoided it by reasonable care, and of this there is no doubt, it was his duty to do so, and having failed to perform his duty in this respect, he was guilty of contributory negligence and there can be no recovery in this case.

Judgment affirmed.

Mesteezat, J., dissents.


author: Mr. Justice Potteb,

text:
    Maines, Appellant, v. Harbison-Walker Company.

      Negligence — Master and, servant — Dangerous machinery — Risk of employment — Notice to master.

    In an action by an employee against his employer to recover damages for personal injuries, the plaintiff testified that he considered the cogwheels on a machine at which he worked were dangerous, and that he had complained of it to the defendant’s master mechanic. In reply he was told by the master mechanic that the latter would like to change the position of the cogwheels, but that the superintendent would not give him time to do so, but, he added, “I will change them on Sunday.” The change was not made then, and thereafter plaintiff repeatedly called the attention of the master mechanic to the condition of the cogs. He testified that he did this as often as three or four times a week during a period of some six weeks, and that the answer was that the change would be made on Sunday, when the machinery was idle. Finally, on a certain Monday, plaintiff again called attention" to the fact that the change had not been made, and again the promise was renewed, that the cogwheels would be changed the following Sunday. The plaintiff continued to work during that week. On the succeeding Monday morning he went to the mill at a very early hour, about three o’clock in the morning, as was his duty, and he then found that the promise had again been broken, and no change in the position of the cogwheels upon the emptier had been made. He began work, however, and during the manipulation of the machinery in the effort to get it started, the sleeve of his right arm caught in the cogs, his arm was drawn in, and so badly mangled, that amputation was necessary. Held, that it was error to enter a compulsory nonsuit.
    Under the peculiar circumstances of this case, the conclusion as to whether the plaintiff was negligent in continuing his work on the morning of the accident, was a question of fact, which should have been left to the determination of the jury.
    Argued Oct. 10,1905.
    Appeal, No. 183, Oct. T., 1905, by-plaintiff, from order of C. P. Cambria Co., Sept. T., 1902, No. 263, refusing to take off compulsory nonsuit in case of Daniel Maines v. The Harbison-Walker Company.
    Before Mitchell, C. J., Fell, Brown, Mesteezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before O’Connor, P. J.
    The facts are stated in the opinion of the Supreme Court.
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      jError assigned was order refusing to take off nonsuit.

      Thomas II. Greevy, with him Charles Geesey and A. V. Dively, for appellant.
    A time limit in which to repair even if made cannot absolve the employer from liability for an accident that may occur after that, if the employer has acted in such a manner with the employee as to inspire him with confidence that the danger will be remedied. The only question then is, did the employee in continuing the operation of the machine after the alleged time limit rely upon the promises of the employer that the danger would be remedied ? And this question is solely for the jury: Mansfield Coal & Coke Co. v. McEnery, 91 Pa. 185; Patterson v. R. R. Co., 76 Pa. 389; Reese v. Clark, 198 Pa. 312; Williams v. Clark, 204 Pa. 416 ; Held v. American Window Glass Co., 207 Pa. 534; Fick v. Jackson, 3 Pa. Superior Ct. 378 ; Schiglizzo v. Dunn, 211 Pa. 253; Ross v. Ry. Co., 8 Fed. Repr. 544; Conroy v. Vulcan Iron Works, 6 Mo. App. 102; Rothenberger v. Milling Co., 57 Minn. 461 (59 N. W. Repr. 531); Republic Iron & Steel Works v. Gregg, 71 S. W. Repr. 900; Illinois Steel Co. v. Mann, 100 Ill. App. 367; Rice v. Eureka Paper Co., 66 N. E. Repr. 979; Illinois Cent. R. R. Co. v. North, 97 Ill. App. 124; Webster v. Coal & Coke Co., 201 Pa. 278.

      Ji. A. Menderxon, for appellee.
    A servant may rely on the promise of his master to repair defects in the place where the labor is to be performed only so long as is reasonably necessary to make the repairs, and if he continues in his employment after the lapse of such time he will be considered to have waived the defects and to have assumed the additional risk: Illinois Steel Co. v. Mann, 170 Ill. 200 (48 N. E. Repr. 417) ; Hough v. Ry. Co., 100 U. S. 213; Eureka Co. v. Bass, 81 Ala. 200 (8 So. Repr. 216) ; Dowd v. R. R. Co., 57 Atl. Repr. 248 ; Houston City v. Owen, 67 S. W. Repr. 788; McClusky v. Coal Co., 61 N. E. Repr. 804; Stalzer v. Packing Co., 84 Mo. App. 565.
    Where a servant after the master’s failure for a reasonable time to repair defective machinery as promised continues in the service, he cannot recover for a consequent injury: Stalzer v. Jacob Dold Packing Co., 84 Mo. App. 565.
    The authorities hold that where no definite time is fixed by the parties in which to repair, the servant may continue at work a reasonable time without assuming the risk: Illinois Steel Co. v. Mann, 170 Ill. 200 (48 N. E. Repr. 417) ; Harris v. Hewitt, 64 Minn. 54 (65 N. W. Repr. 1085); Counsell v. Hall, 145 Mass. 468 (14 N. E. Repr. 530) ; Hough v. Ry. Co., 100 U. S. 213.
    Where the parties fix a definite time, and the servant continues to work after that time knowing that the repairs have not been made, and that the promise of the master has been broken, then it is for the court to determine as a matter of law that the servant has assumed the risk: Trotter v. Furniture Co., 101 Tenn. 257 (47 S. W. Repr. 425) ; Eureka Co. v. Bass, 81 Ala. 200 (8 So. Repr. 216).
    While the general rule as to the assumed risk by a servant of the dangers that he is aware of, is settled by many decisions of the courts of this state, the law as to the exception of the master’s promise to repair has not been as fully developed as it has been by the courts of other states. The exception to the general rule, to wit, the master’s promise to repair, is recognized in a number of decisions in this state, but no mention is made as to what length of time the master has to make the repair, or whether the servant reassumes the riskmfter the promise to repair has been broken: Patterson v. R. R. Co., 76 Pa. 389; Brownfield v. Hughes, 128 Pa. 194; Webster v. Coal & Coke Co., 201 Pa. 278 ; Fick v. Jackson, 3 Pa. Superior Co. 378 ; Madara v. Iron & Steel Co., 160 Pa. 109; Schiglizzo v. Dunn, 211 Pa. 253.
    The exception to the general rules is founded upon a promise, either expressed or. implied. A mere complaint by the servant to the master will not vary the general rule : Nuss v. Rafsnyder, 178 Pa. 397 ; Diehl v. Lehigh Iron Co., 140 Pa. 487.
    January 2, 1906:
   Opinion by

Mr. Justice Potteb,

The Harbison-Walker Company is engaged in the manufacture of fire brick and owns works at Blandburg, Cambria county, Pa. During the process of manufacture at these works, the fire clay, after being ground, was placed in circular pans for the purpose of mixing. The mixed clay was formerly shoveled out of the pans by hand, and placed upon trucks to be conveyed to the molds. But later, an improvement was introduced, called a “pan emptier” to carry the mortar from the pans to the trucks. This emptier consisted of a frame, carrying a revolving belt, passing around a roller at each end. The belt was operated by cogwheels at the upper end. Three pans were in use by the defendant, at this place, each pan having an emptier. The plaintiff was a pan tender; and was in charge of pan No. 3. . The cogwheels upon the emptier at this pan, were upon the side next to the workman. It appears from the evidence that there was no necessity for the cogwheels to he so placed, but that they could just as well have been changed, so as to be at the back of the belt, or upon the far side of it, from the pan tender. In fact they were so placed upon the “ emptiers ” at the other two pans used by the defendant company. The change in position of the cogwheels could easily have been made at any time when the machinery was at rest. The only danger from the cogwheels being upon the outside or front-of the belt, was the liability to the workmen of getting caught between the wheels, as they revolved.

The plaintiff had worked for years about the premises and was familiar with the machinery. He testified that he considered the arrangement of the cogwheels on this particular emptier, as dangerous; and that he had complained of it to the master mechanic. In reply he was told by the master mechanic that he would like to change the position of the cogwheels but that the superintendent would not give him time to do so. But he added “ I will change them on Sunday.” The change was not made then, and the plaintiff testifies that he thereafter called the attention of tbe master mechanic to the condition of the cogs repeatedly; as often as three or four times a week during a period of some six weeks, and that the answer was that the change would be made on Sunday, when the machinery was idle. Finally, on Monday, April 29, 1901, the plaintiff again called attention to the fact that the change had not been made, and again the promise was renewed, that the cogwheels would be changed the following Sunday. The plaintiff continued to work during that week. On the succeeding Monday morning, May 6, he went to the mill at a very early hour, about three o’clock in the morning, as was his duty, and he then found that the promise had again been broken, and no change in the position of the cogwheels upon the emptier had been made. He began work, however, and during the manipulation of the machinery in the effort to get it started, the sleeve of his right arm caught in the cogs, his arm was drawn in, and so badly mangled, that amputation was necessary.

This action was brought to recover for the damages thus caused. Upon the trial, a compulsory nonsuit was entered, upon the ground that the plaintiff by continuing to work with dangerous machinery after the time, when he was promised that the dangerous condition should be remedied, took the chances, and could not recover for the negligence of his employer. It is conceded by counsel for the appellee, that the question as to whether the defendant was negligent, and whether the danger from the cogwheels was so imminent and obvious, that a man of ordinary prudence would refuse to work about them, were questions for the jury. But it is contended that the master mechanic promised to make the change at a definite time, that is, on Sunday, .and when he failed to do so, the servant was not justified in continuing to work, except at his own risk. It must be noted, however, that the evidence does not show that the promise was limited to any particular or definite Sunday. But the Sunday following each complaint seems to have, been intended, as the next convenient .season, to make the change. The plaintiff says that the promise was made to him, time after' time, and that he continued to work upon the strength of the promise, which was apparently renewed from week to week. The question, therefore, is whether the plaintiff was negligent in continuing to work in the face of the fact that not only one promise of the employer had been violated, but a series of them. Or to put it in another way, had he at the time of his hurt, any reasonable expectation of the fulfillment of the promise, which had been made and broken, and renewed and broken, a number of times before ? It is not disputed that, if no exact or specified time is fixed, for the restoration of safe conditions, the suspension of the master’s right to avail himself of the defense of the servant’s knowledge of the defect, continues for a reasonable period. What that reasonable period is, would ordinarily be a question of fact for the jury.

Under the peculiar circumstances of this case, we feel impelled to hold that in spite of the plaintiff’s knowledge that the fulfillment of the promise had again been delayed, it was still an open question whether he was not justified in continuing to perform his duties. ■ Had but one promise been given, and that one broken ; had there been no renewals of the assurance previously given, from time to time, the case would be different. Certainly it was within the power of the master to ■take upon himself the risk of the work, and beyond doubt, the effect of the promise was to assume that risk, during the period covered by the promise. This protected the plaintiff until the morning upon which he was hurt. For clearly he worked under the promise until the close of the week, on Saturday. The change was to have been made under the last promise, upon the next day, Sunday. The plaintiff went to work before daylight on the following morning, Monday, and was hurt, almost immediately. Until then he had no opportunity to know that the change had not been made. We cannot say, therefore, that the mere fact that he observed immediately after the expiration of the time fixed, that the cogwheels had not yet been changed, and that he did not then (in consequence) at once refuse to go on with his work, is to be treated as controlling this case, as a matter of law. We think that under the peculiar circumstances here shown, the conclusion as to whether the plaintiff was negligent in continuing his work at the time, was a question of fact, which should have been left to the determination of the jury.

The assignment of error to the refusal to take off the compulsory nonsuit is sustained. The judgment of the court below is reversed, and a writ of procedendo is awarded.


author: Mr. Justice Fell,

text:
    Morgan v. Westmoreland Electric Company, Appellant.

      Negligence — Electric light company — Exposed wire — Pleadings—Construe-live notice.

    In an action against an electric light company to recover damages for death of plaintiff’s son, the statement charged that defendant maintained and operated two lines of wires extending from its main line to the cross arms of a pole which sustained a number of telephone wires; and that it “negligently and carelessly allowed and permitted said two wires without proper insulation to be placed on a cross arm of said pole thereby charging said arm and braces attached with a powerful current of electricity.” The case was tried upon the theory that the placing of the wire on the cross arm was a part of the construction. Held, (1) that the averment gave notice to the defendant that the plan of construction was brought into question; (2) that if there was doubt as to the sufficiency of the averment, it was too late to raise it after a trial on the merits.
    In an action against an electric light company to recover damages for death caused by an exposed wire, there was evidence tending to show that the manner in which the electric wires were carried through a network of telephone wires was faulty, and that the wire alleged to have caused the injury had been in use a number of years, and had sagged, and that its insulation had worn off. The court charged that with respect to faulty construction, notice was unnecessary since the defendant must be held to have notice of what it had designedly done; and with respect to a defective state of repair, it must be held to know that which supervision reasonably exercised would have disclosed. Held, that the instruction was correct.
    In an action against an electric light company to recover damages for the death of plaintiff’s son, an employee of a telephone company, it appeared that the defendant for a consideration permitted the telephone company to string a large number of telephone wires on one of its poles. The telephone wires were in themselves harmless, and death by electricity could have been caused only by the deceased coming into contact with some object charged with a powerful current. It appeared that there were eleven cross arms, and that the electric light wires were attached to the faces of the seventh and eighth cross arms. Under the cross arms were iron braces. The covering of the electric light wire on the seventh cross arm was worn off at its point of contact with an iron bolt which passed through a brace. It was customary for persons inspecting the wires to use the braces as an aid in climbing and as supports. The deceased while engaged in the duty of inspecting, was killed by an electric shock, and his body was found on the wires supported by the fifth cross arm.. There was no direct evidence that the deceased was killed by coming into contact with the charged iron brace, but the position of his body indicated that he had been above the fifth cross arm and in close proximity to the brace of the seventh cross arm. Held, that the evidence was sufficient to sustain the finding of the jury that the death was caused by contact with the charged iron brace.
    Argued Oct. 10, 1905.
    Appeal, No. 5, Oct. T., 1905, by defendant, from judgment of C. P. Westmoreland Co., Feb. T., 1904, No. 366, on verdict for plaintiff in case of Elizabeth Morgan v. Westmoreland Electric Company.
    Before Mitchell, C. J, Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s son. Before McConnell, J.
    At the trial it appeared that the plaintiff’s son, William G. Morgan, met his death on September 16,1903, while inspecting telephone wires for his employer, the Westmoreland Telephone Company.
    The circumstances connected with the accident are stated in the opinion of the Supreme Court.

      The court charged in part as follows :
    [The manner of conducting the current through between the strands of the telephone company’s wires and along the cross arm on which they are supported has been referred to and you must determine, by an application of the test that we have given you, whether such construction is faulty. If faulty and defective, and by reason of that fault and defect, the plaintiff’s decedent has been injured — if that has been the proximate cause of the plaintiff’s injury, then there would be a right to recover. .... In so far as construction is concerned the defendant company needs no notice. Having itself constructed it, it has all the notice that is necessary.] [1]
    Defendant presented these points:
    2. Even if the jury should find that these two electric wires or either of them were defectively insulated, the defendant would not, on that account, be liable for the death of plaintiff’s decedent, there being no evidence that the defendant had notice of the defective insulation, and no evidence as to the cause of the defect. Ansiver: Wo have already spoken at some length on that point in the general charge. The question referred to in this point cannot with propriety be disposed of as a question of law by the court. There is evidence respecting the manner in which the wires were carried through on the cross arms which tends to show the mode adopted from the beginning to have been faulty in construction. With respect to such faulty construction, if it exists, no notice is necessary. With respect to the wires being in a defective state of repair notice is necessary, but it may be constructive as well as direct. There is testimony bearing on the ordinary life of insulation and also on the length of time these wires had been in use. There is testimony tending to show that the wire had sagged from its proper position and that the insulation was worn off at the point of contact with the carriage bolt. If the insulation was in fact removed by erosion, the consideration of the question of the duration of time while that process was going on is not irrelevant. There is evidence that several years before a wire on the upper cross arm, when it had become displaced, caused a lineman to receive a shock. Although that specific displacement of the other wire was at once remedied and did not exist at the time of the accident, yet it may be considered specific notice of the danger attending a displacement of the wire and an admonition with respect to the thoroughness with which inspection should be maintained. The high voltage of the current is also an admonition with respect to what thoroughness of inspection is due. The defendant may be held responsible for defects in the state of repair of its appliances of which it has express notice and also for accidents arising from defects which this supervision, reasonably exercised, would have disclosed. Whether there was a long or a short period of displacement of the wire and wearing of the insulation which an ordinary diligent examination exacted by the circumstances would have disclosed, is a question for the jury, especially when we consider the nature of the inspection which the defendant company’s testimony shows was made. The question of notice seems to us to be one not to be disposed of as a question of law by the court and the point is therefore refused.] [2]
    6. Under all the evidence in this case and under the pleadings, your verdict must be for the defendant. Answer : This point is refused for the reasons that are already indicated. [3]
    Verdict and judgment for plaintiff for $3,000. Defendant appealed.

      Errors assigned were (1, 2) above instructions, quoting them.

      John B. Head, with him B. S. Atkinson, W Q. Peoples and J. S. Moorhead, for appellant,
    cited: Savitz v. R. R. Co., 199 Pa. 218 ; Rotsell v. Warren Borough, 10 Pa. Superior Ct. 283; McGinnis v. Kerr, 204 Pa. 615.

      Curtis H. Gregg with him Sidney J. Potts, for appellee,
    cited: Quigley v. Penna. R. R. Co., 210 Pa. 162 ; Suburban Electric Light Co. v. Nugent, 34 Atl. Repr. 1069; Rauch v. Smedley, 208 Pa. 175 ; McCafferty v. Penna. R. R. Co., 193 Pa. 339 ; Devlin v. Beacon Light Co., 198 Pa. 583 ; Ulingsworth v. Boston Electric Light Co., 161 Mass. 583 (37 N. E. Repr. 778) ; Dwyer v. Buffalo General Electric Co., 20 App. Div. 124 (46 N. Y. Supp. 874).
    January 2, 1906:
   Opinion by

Mr. Justice Fell,

Three questions are presented by the specifications of error: 1. Did the issue raised by the pleadings include the subject of the original construction of the appellant’s lines of electric light wires? 2. Was there sufficient evidence of constructive notice of defective insulation to sustain a recovery on the ground of failure to maintain the wires in a safe condition ? 3. Did the .evidence warrant the conclusion that defective insulation of one of the wires was the proximate cause of the accident ?

It is averred in the declaration that the appellant owned, maintained and operated two lines of wires extending from its main line to the cross arms of a pole which sustained a number of telephone wires; that, not regarding its duty to maintain these wires in a safe condition, it “ negligently and carelessly allowed and permitted said two wires without proper insulation to be placed on a cross arm of said pole, thereby charging said arm and braces attached with a powerful current of electricity.” The placing of the wire on the cross arm was a part of the construction, and the averment gave notice to the appellant that the plan of construction was brought into question. The case was tried upon this theory. Testimony as to the construction as it existed at the time of the accident was admitted without objection that it did not support the declaration, and affirmative evidence was introduced by the appellant to show the plan of original construction. If there is doubt as to the sufficiency of the averment, it is too late to raise it after a trial on the merits, in which the question was treated by both parties as a part of the issue.

On the question of constructive notice the instruction was that with respect to faulty construction notice was unnecessary since the appellant must be held to have notice of what it had designedly done : and with respect to a defective state of repair, it must be held to know that which supervision reasonably exercised would have disclosed. This instruction was correct. It was called for because there was evidence tending to show that the manner in which the electric wires were carried through a network of telephone wires was faulty, and that the wire alleged to have caused the injury had been in use a number of years and had sagged and that its insulation had worn off.

The main contention of the appellant is that there was not sufficient evidence of any negligent act that was the proximate cause of the accident to warrant the submission of the case to the jury. It appears from the evidence that the appellant permitted for a consideration a telephone company to use one of its poles. On this pole there were eleven cross arms, which supported 180 telephone wires. The cross arms.were twenty-two inches apart, and each one was supported by iron braces which extended down the pole to within a few inches of the next lower arm. The appellant’s electric light wires were attached to the faces of the seventh and eighth cross arms, and extended across the lines of telephone wires. They were held in place at the cross arms by the use of porcelain knobs, and their insulation was by cotton covering ordinarily used for inside wiring. These wires had been in use seven years, and the covering of the wire on the seventh cross arm was worn off at its point of contact with an iron bolt which passed through a brace. It was customary for persons climbing among the wires for the purpose of inspecting or repairing them to use the braces as an aid in climbing and as supports. The appellee’s son was in the employ of the telephone company and Was last seen alive when at about the fifth cross arm. He was killed by an electric shock, and his body was found on the wires supported by this cross arm. Evidently he had been above these wires or his body would not have fallen on them, and when above them he would have been in close proximity to the brace of the seventh cross arm, w'hich was charged with electricity, and its position was such that he probably would have grasped it in climbing.

There was no direct evidence that the deceased was killed by coming into contact with the iron brace. But direct evidence was not essential. The cause of death might properly be inferred from the location of his body with relation to the dangers to which he was exposed. The telephone wires were in themselves harmless, and death by electricity could have been caused only by the deceased coming into contact with some object charged with a powerful current. This object was at hand in a position where any one climbing the pole would be likely to touch it. Conditions were shown to exist which indicated very clearly the cause of death, and no other cause being shown the jury, were warranted in finding that this was the cause.

The judgment is affirmed.


author: Mr. Justice Elkin,

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

      Negligence — Railroads—Grade crossing- — “Stop, look and listen ” — Death—• Presumption — Evidence.
    The presumption is that one about to cross a railroad track at grade did his duty by stopping, looking and listening, and this presumption can only be overcome by testimony showing or tending to show that he failed to observe the precautions required by law.
    In an action against a railroad company to recover damages for the death of plaintiff’s husband at a grade crossing, the evidence tended to show that at the place of the accident the railroad tracks ran north and south a short distance west of and parallel with a river. Between the river and the railroad was a public road, also running north and south, on which the deceased was driving. An ice house 739 feet and a battery wall 363 feet, both south of the crossing, were located between the public road and the railroad. From the battery wall there was a down grade until the road reached a bridge which crossed a small stream 109 feet south of the crossing. The road at the bridge was twelve feet below the level of the railroad tracks. At the crossing there were five tracks. The deceased was driving his team north on the road. At the ice house he stopped his team and looked for trains. He again stopped at the battery wall, got off his wagon, walked around his horses, then stood on the wheel of his wagon and once more looked for trains. He then proceeded on his way until he reached the bridge, where 'he stopped and looked another time. He was not seen by any one, so far as the testimony disclosed, from the time ho stopped at the bridge, until he was struck and killed by a train running north on the third track. Held, that it was error to enter a compulsory nonsuit.
    Argued Jan. 18, 1905.
    Appeal, No. 181, Jan. T., 1904, by plaintiff, from order of C. P. No. 5, Phila. Co., Dec. T., 1902, No. 4066, refusing to take off nonsuit in case of Sarah Hanna v. Philadelphia and Reading Railway Company.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Trespass to recover damages for death of plaintiff’s husband. Before Ralston, J.
    At the trial the court in awarding a nonsuit said:
    The deceased was driving on the river road, which runs in a generally northerly direction and parallel with the tracks of the defendant company. Upon reaching an ice house at the side of the road, a distance of 789 feet from the railroad crossing, lie was seen to stop and rest Ms horses. He then drove on until he reached a place known as the “ battery wall,” 368 feet from the crossing, and on a level with the tracks. At this point he was seen to look south along the railroad tracks. He then drove on and was next seen with the hind wheels of his wagon resting upon a bridge over a small stream 109 feet from the railroad crossing and twelve feet below the level of the tracks. At this point, the road curved, and the grade sloped upward to the crossing. Immediately to the south, on the first and second tracks, there were stationary coal cars extending some distance below the crossing.
    The plaintiff’s horses were struck by a north-bound express train as they got upon the third track. The deceased was thrown from his wagon and killed. There was evidence by the witnesses who saw the accident that they hearcl no whistle blown or gong sounded. The question to be considered is, whether or not his death was due to contributory negligence. He was shown to stop, look and listen, at a point 363 feet from the crossing, which is too remote to comply with the rule of law. He was next seen to stop at a point 109 feet from the crossing, and twelve feet below the grade. There is no testimony to show that he had a view of the tracks from this place, on the contrary, Harry Nippes and Thomas E. Murry testified that it was necessary to walk up to the tracks in order to see an approaching train. In the opinion of the court, if the deceased had looked at a proper place before driving upon the track, he would have seen the train approaching. As his view of the tracks was obstructed by the coal cars, it was his duty to alight from the wagon and lead his horses to a point where he could see. If he had done this he would have seen the train. He must, therefore, either have seen the train and driven directly in front of it, or he must have tried to cross the tracks without looldng; in either case he was negligent.
    The nonsuit is granted.

      Error assigned was refusal to take off nonsuit.

      Eranh M. Cody, of Cody & Develin, for appellant.
    All the cases upon the question of the presumption of the law that the decedent performed his duty, it is reépectfully submitted, sustain the plaintiff’s contention : Lehigh Talley R. R. Co. v. Hall, 61 Pa. 361; R. R. Co. v. Weber, 76 Pa. 157; Schum v. R. R. Co., 107 Pa. 8 ; Cromley y. R. R. Co., 208 Pa. 445 ; McGill v. Ry. Co., 152 Pa. 331; Weiss v. R. R. Co., 79 Pa. 387 ; R. R. Co. y. Ritchie, 102 Pa. 425; Longenecker v. R. R. Co., 105 Pa. 328 ; Haverstick v. R. R. Co., 171 Pa. 101; Roberts v. D. & H. Canal Co , 177 Pa. 183.
    Whether or not the decedent stopped at a proper place before crossing is for the jury : Whitman v. R. R. Co., 156 Pa. 175, 100 feet away; Cookson v. Ry. Co., 179 Pa. 184, 175 feet away; Elston v. R. R. Co., 196 Pa. 595, ninety feet away; Seifred v. R. R. Co., 206 Pa. 399, sixty feet away; Muckinhaupt v. R. R. Co., 196 Pa. 213; R. R. Co. v. Huff, 8 Atl. Repr. 789, forty-five feet away ; R. R. Co. v. Heileman, 49 Pa. 60; Ellis v. R. R. Co., 138 Pa. 506, thirty-three feet away; Urias v. R. R. Co., 152 Pa. 326, eighteen feet away; McGill v. Ry. Co., 152 Pa. 331, within thirty feet; Newhard v. R. R. Co. 153 Pa. 417.
    It is submitted, further, that before recovery can be barred, it must be clear and undisputed that the person killed did not comply with the rule, or that if he did so, he must have heard or seen the approaching train. If there be any doubt upon these points, the case must go to the jury: McNeal v. Ry. Co., 131 Pa. 184; Ely v. Ry. Co., 158 Pa. 233; Davidson v. Ry. Co., 171 Pa. 522; Gray v. R. R. Co., 172 Pa. 383.

      Gravin W. Hart, for appellee,
    cited: Kinter v. Penna. R. R. Co., 204 Pa. 497.
    January 2, 1906 :
   Opinion by

Mr. Justice Elkin,

This is an action of trespass to recover damages for the death of the plaintiff’s husband, who was struck and killed by a train of the defendant company at a grade crossing.

At the place of the accident the railroad tracks run approximately north and south, a short distance west of, and parallel with, the Schuylkill river. Between the river and railroad is a public road, also running north and south, on which the deceased was driving. An ice house 739 feet, and a battery wall 363 feet, both south of the crossing, are located between the public road and railroad. From the battery wall there is a down grade until the road reaches the bridge which crosses a small stream 109 feet south of the crossing. The road at the bridge is twelve feet below the level of the railroad tracks. There are five tracks at the crossing. The deceased was driving a team north on this road. At the ice house he stopped his team and looked for trains. He again stopped at the battery wall, got off his wagon, walked around his horses, then stood on the wheel of - his wagon and once more looked for trains. He then proceeded on his way until he reached the bridge, where he stopped and looked another time. He was not seen by any one, so far as the testimony discloses, from the time he stopped at the bridge until he was struck and killed by a train running north on the third track.

In the court below a nonsuit was granted, the learned trial judge holding that “ if the deceased had looked at a proper place before driving upon the tracks, he would have seen the train approaching. As his view of the tracks was obstructed by the coal cars, it was his duty to alight from the wagon and lead his horses to a point where he could see. If he had done this he would have seen the train. He must, therefore, either have seen the train, and driven directly in front of it, or he must have tried to cross the tracks without looking. In either case he was negligent.” _

The question therefore arises whether under the testimony offered by the plaintiff, it was the duty of the court to hold as a matter of law that the deceased was guilty of such contributory negligence as to preclude a recovery in this action. The evidence does not disclose what the deceased did immediately before starting over the crossing. It does show that he had stopped and looked at the ice house, again at the battery wall, and still again at the bridge. These facts conclusively show that he had exercised the greatest care possible under the circumstances until he reached the bridge. What he did after leaving the bridge is onty a matter of conjecture or inference. Under these circumstances he is entitled, by the settled rule of law, to the presumption that he did his duty, and this presumption can only be overcome by testimony showing that he failed to observe the precautions required by law: Penna. Railroad Co. v. Weber, 76 Pa. 157; Weiss v. Penna. Railroad Co., 79 Pa. 387; Longenecker v. Penna. Railroad Co., 105 Pa. 828; Solium v. Penna. Railroad Co., 107 Pa. 8; Cromley v. Penna. Railroad Co., 208 Pa. 445.

The learned counsel for appellee admits the force and effect of this rule as applied to the present case, but contends that the presumption of the deceased having done his duty is rebutted by the testimony offered by the plaintiff. The answer to this position is that there is no evidence in the case showing what the deceased did immediately before going on the crossing. The learned counsel argues that under the circumstances it was the duty of the deceased to lead his horses to a place where he could see the approaching train, and if he had been leading his horses he could and would have been seen by Mrs. Nippes. This does not necessarily follow. In the first place it is doubtful whether under the facts proven and circumstances established the court was justified in holding as a matter of law that it was the duty of the deceased “ to alight from the wagon and lead his horses to a place where he could see.” The testimony did not clearly show that the view of the deceased was so obstructed as to require him to alight, nor does it show just what position of danger the deceased was in as the train approached, and whether he exercised such care as was required of him under the circumstances. But, even if it be conceded that it was his duty to alight and lead his horses, in the absence of evidence showing that he did not do so, the presumption is that he did perform whatever duty the law required of him.

The testimony of Mrs. Nippes is not sufficient to overcome this presumption. In answer to questions by counsel and court, she testified “ I didn’t see the man.” At another time this witness said, she did not see the man either before or after the accident. It requires a degree of ingenuity, not convincing to the court, to support the contention that the negative testimony of this witness is to be construed into affirmative testimony showing that the deceased had failed in the performance of a legal duty. The witness does not say whether deceased was leading his horses, or walking beside, or sitting upon, his wagon. She does not know where ho was, nor has any other witness testified to the whereabouts of the deceased at the time of the accident. Certainly, such negative, uncertain and unconvincing testimony as this cannot be held to overcome the legal presumption in his favor. On the other hand, the presumption that the deceased did his duty before going on the tracks, is strengthened by his course of action on his way to the crossing. He stopped three times to look for approaching trains, and may or may not have stopped a fourth time.

These facts added to the legal presumption that he exercised due care make a particularly strong case in favor of the plaintiff.

It is earnestly contended that this case is ruled by Kinter v. Penna. Railroad Co., 204 Pa. 497. We think not. In that case it was held to be the duty of Kinter to stop, look and listen at a place where he could see the approaching train. The evidence showed that he did not stop at such a point, and, it being conceded that he could not see where he did stop, it was for the court to say that he had not observed the rule requiring him to look. In the present case there is no evidence to show that the deceased did not stop at a place where he could see the approaching train, or that there was a better place of view where he should have stopped, or that he failed in the performance of any duty required of him by law. On these vital questions the evidence discloses nothing. The legal presumption, in the absence of evidence, is that he did stop at a place where he could see, that it was the proper place .to stop, and that he performed his duty. It is clear, therefore, that the rule in that case is not applicable to the one at bar.

The question of defendant’s negligence has not been raised here, nor was it considered by the court below. When, however, the case is again tried it should not be overlooked that the first and primary question to be determined is the negligence of the defendant. The contributory negligence of the deceased is predicated upon and presupposes the negligence of the defendant. If the testimony does not show negligence by the defendant there can be no recovery no matter how free from negligence the facts show the ‘deceased to be. The defendant is. entitled to the benefit of the presumption that through its agents and employees it did its duty in approaching the crossing. There must be affirmative evidence .to rebut this presumption else there can be no recovery. If the case stands on presumptions alone, no evidence having been offered either as to' the defendant’s negligence or the contributory negligence of the deceased the presumptions would be equal, and the action to recover damages could not prevail. The burden of showing negligence by the defendant rests on the plaintiff and must affirmatively appear from the evidence. It is true there is some evidence, negative in character, of the failure to blow the whistle and ring the bell as the train approached the crossing. Whether this evidence is sufficient to rebut the presumption that these duties were performed is a question not raised by this appeal, and it is therefore unnecessary to review this branch of the case.

Judgment reversed and a procedendo awarded.