text:
    McKahan v. The Baltimore & Ohio Railroad Company, Appellant.

      Negligence — Railroads—Grade crossing — “Stop, look and listen” — Non-suit — Contributory negligence.

    1. In an action against a railroad company to recover damages for death of plaintiff's husband, a nonsuit should be entered where it appears from the testimony of her own witnesses that at the time of the accident the deceased, who was driving a double team, stopped at a point 225 feet from the grade crossing, from which point only the stack of an engine or smoke issuing from it could be seen in the direction from which the train was coming, and that he then proceeded at a good gait down to the crossing, with all view from the direction of the approaching train cut off by an embankment and other obstructions until he reached a siding, where, if he had stopped, nineteen feet from the main track, he would have had an unobstructed view of the track for a distance of 2,000 feet in the direction from which the train was coming.

      Trial — Misconduct of juror — Continuance—Withdrawal of juror.

    2. Where an improper remark and a misstatement of the law are made by the trial judge during an argument on a motion for a nonsuit, and this is followed by applause from the audience in the court room, in which one of the jurors impaneled in the case joins by clapping his hands, it is reversible error for the court to refuse to withdraw a juror and continue the case. Under such circumstances the court should on the instant, and of its own motion, take notice of the misconduct of the juror, and, after discharging him from further service, continue the case, and impose a proper penalty upon him.

      Argued Oct. 15, 1908.
    Appeal, No. 61, Oct. T., 1908, by-defendant, from judgment of C. P. Washington Co., Feb. T., 1907, No. 107, on verdict for plaintiff in case of Caroline MeKahan v. The Baltimore & Ohio Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for death of plaintiff’s husband. Before McIlvaine, P. J.
    The facts are stated in the opinion of the Supreme Court. Verdict and judgment for plaintiff for $5,000. Defendant appealed.
    ■ Errors assigned were in refusing binding instructions for defendant, and in refusing to withdraw juror and continue the case.

      Norman E. Clark, with him Winfield McIlvaine, for appellant.
    — A nonsuit should have been entered: Boltz v. R. R. Co., 212 Pa. 154; Corcoran v. R. R. Co., 203 Pa. 380; Urias v. R. R. Co., 152 Pa. 326; Keppleman v. Ry. Co., 190 Pa. 333; Mankewicz v. R. R. Co., 214 Pa. 386; Knox v. Ry. Co., 202 Pa. 504; Reading & Columbia R. R. Co. v. Ritchie, 102 Pa. 425; Kinter v. Penna. R. R. Co., 204 Pa. 497; Dryden v. Penna. R. R. Co., 211 Pa. 620; Coppuck v. R. R. Co., 191 Pa. 172; Lees v. R. R. Co., 154 Pa. 46.
    In view of the unusual and remarkable demonstration which occurred in the trial of this case, the court should have sustained our motion to withdraw a juror and continue the same: Penna. R. R. Co.’s Case, 213 Pa. 373; Fisher v. Penna. Co., 34 Pa. Superior Ct. 500; Saxton v. Rys. Co., 219 Pa. 492.

      J. M. Patterson, for appellee.
    — The case was for the jury: Ellis v. Lake Shore, etc., Ry. Co., 138 Pa. 506; Phila., etc., R. R. Co. v. Ervin, 89 Pa. 71; Keiser v. Lehigh Valley R. R. Co., 212 Pa. 409; Seifred v. R. R. Co., 206 Pa. 399; Laib v. R. R. Co., 180 Pa. 503; Coolbroth v. R. R. Co., 209 Pa. 433; Confer v. R. R. Co., 209 Pa. 425; Cromley v. R. R. Co., 208 Pa. 445; Toban v. Coal Co., 24 Pa. Superior Ct. 475; Newton v. R. R. Co., 18 Pa. Superior Ct. 18; Muckinhaupt v. R. R. Co. 196 Pa. 213; Penna. R. R. Co. v. Ogier, 35 Pa. 60; Bard v. Phila. & Reading Ry. Co., 199 Pa. 94; Elston v. R. R. Co., 196 Pa. 595.
    There was no error in refusing to withdraw a juror: Com. v. Jongrass, 181 Pa. 172; McClain v. Com., 110 Pa. 263.
    January 4, 1909:
   Opinion by

Mr. Justice Brown,

In the opinion of the court overruling the motion of the defendant for judgment non obstante veredicto this case is said to be a close one. On the question of the contributory negligence of the deceased it cannot be so regarded. From the testimony of plaintiff’s witnesses but one inference is possible as to his conduct in approaching the crossing, and it was, therefore, for the court to so declare. Failure to discharge this duty resulted in a finding by the jury which is not a true one.

Charles McKahan, the husband of appellee, drove into the borough of Claysville with a double team on October 17, 1906, and, after remaining there a short time, started for his home by way of Bell avenue. Driving along this route it was necessary for him to pass over the track of the appellant company, running east and west and crossing the avenue at right angles and at grade. In attempting to cross the track his team was struck by a locomotive drawing a caboose and he and the horses were killed. The crossing is an admittedly dangerous one, and its danger was well known to the deceased, who had constantly crossed it for many years. The danger in going south over it is due to the character of the approach from the north — the direction from which the deceased came.' The locomotive was coming from the west, and the view of the track in that direction is obstructed for quite a distance north of the defendant’s roadbed. At a point about 225 feet north of the crossing McKahan stopped. The railroad track could be seen there looking to the east, but not to the west, though the smokestack of an engine approaching from the west could be seen. After four sections of a train had passed from west to east the deceased started his horses, but his view of the track to the west from the point at which he stopped was cut off down to the crossing by an embankment and other obstructions until he reached the first or mill siding. Between this siding and the main track of the railroad company there was another siding, on which there were no cars. Between the north rail of the main track, laid on the south side of the railroad company’s right of way, and the south rail of the mill switch or siding,'on which some cars were standing, there was a clear space of 19 feet, commanding an unobstructed view of the main track for a distance of 2,000 feet to the west. From the time the deceased started from the point about 225 feet from the crossing he did not stop again, but went on at a good gait until his team was struck. F. J. Egan, the proprietor of a planing mill on the east side of Bell avenue near the crossing, was one of plaintiff’s witnesses and saw the collision. He testified that he was in his office when the train whistled; that he looked out of a window and saw McKahan pass by his planing mill, about 130 feet from the main track; that McKahan was going toward the crossing when the train whistled; that witness ran out and called to him to stop, knowing that if he went ahead he would be caught; that he did not stop, but drove straight on to the track, and the engine struck one of the horses just back of the foreleg. The testimony of this witness is that the deceased “did not stop at all as he went on” by the planing mill to the main track.

The foregoing facts all appear from the testimony of plaintiff’s witnesses, and the nonsuit asked for should have been granted. Instead of that disposition of the case it was submitted to the jury on the theory of the presumption that the deceased had stopped, looked and listened at a point beyond the mill siding, where he had a view to the west for a long stretch, and, in the opinion overruling the motion for judgment for the defendant, the court regarded this presumption as strengthened by the testimony of a witness that McKahan was pulling the lines as the horses reared up. This occurred just as the engine struck them, and cannot be regarded as any evidence of the exercise of care by the deceased. The horses, when driven by him to the point of death, would naturally have reared up, and he then would instinctively have tried to save himself, but it was too late for him to do what he ought to have done before he attempted to cross. The presumption that he had exercised care was completely overcome by the witness for the plaintiff, who saw' just what he did, and reference need not be made to similar clear testimony of the witnesses for the defendant. Though the whistle had sounded a signal that the locomotive was approaching, McKahan drove right onto the track in the face of a fruitless effort to stop him. The case is not even one of stopping at a point where a view of the track could have been had in the direction from which the locomotive was coming, for at the point where McKahan stopped he could have seen nothing but the smokestack of an approaching engine, or the smoke emitted from it, and he then proceeded for more than 200 feet with all view of the track cut off, without stopping until he drove in front of the locomotive, the approach of which he concededly would have seen if he had stopped at the south rail of the mill switch. Under no one of our cases can this judgment stand. Among those that are conclusive against it are Urias v. Pennsylvania R. R. Co., 152 Pa. 326; Corcoran v. Pennsylvania R. R. Co., 203 Pa. 380, and Blotz v. Lehigh Valley Railroad Company, 212 Pa. 154.

But, even if the case were for a jury, the judgment would have to be reversed for the misconduct of a juror following an improper remark and a misstatement of the law by the trial judge during the argument on the motion for a nonsuit. Counsel for the defendant stated in that argument that the case was one of a railroad so constructed across a public road ' that there was no point where a traveler could stop, look and listen, and, as he avers, before he could follow this with the statement that there was such a point beyond the mill siding, he was interrupted by the court with the remark that, if that were so, “the railroad ought certainly to have had somebody there to give warning.” This was followed by applause from the audience in the court room, in which one of the jurors impaneled in the case joined by clapping his hands. A motion was promptly made by counsel for the defendant for the withdrawal of a juror and the continuance of the case until the next term, which was refused. On the instant, the court should, of its own motion, have taken notice of the misconduct of the juror and, after discharging him from further service and continuing the case, imposed a proper penalty upon him. This was due to the orderly administration of justice and to the court’s own dignity. Neither the trial judge’s “knowledge of the offending juryman” nor his apology can be regarded as an excuse for the court’s failure to discharge its duty, and, in neglecting to do so, the case went on, in the face of defendant’s protest, before at least one juror who had shown himself unfit to try it. In view of his open exhibition of feeling and his applauding concurrence in the incorrect statement of the court that it was the duty of the defendant to have had somebody at the crossing to give warning, it was the appellant’s clear right to ask that he be declared disqualified to further sit in judgment between it and the plaintiff, for the case could not safely be thereafter committed to him by any admonition of the trial judge in his charge that it would have to be considered and disposed of by the jury “without any reference to that little incident” and the expression of confidence by the court that the offending juror would so dispose of it. The impression made upon the mind of the juror by the reipark of the judge was manifestly against the defendant and not likely to be changed by anything submitted by it in its defense. Those of us who have had experience in jury trials know that impressions once made are not easily erased, in spite of all the caution jurors may receive from the court: Shaeffer v. Kreitzer, 6 Binn. 430. “It is one thing to prevent the entry of an influence into the mind and quite another to dislodge it; as well might one attempt to brush off with the hand a stain of ink from a piece of white linen; one in the very nature of things is just as impossible as the other:” Orlady, J., in Fisher v. Pennsylvania Co., 34 Pa. Superior Ct. 500.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Justice Stewart,

license: Public Domain

text:
    Stremme v. Dyer, Appellant.

      Trial — Charge of court — Harmless error — Negligence.
    1. On the trial of a negligence case defendant sought to establish a different cause for the accident than that asserted by plaintiff, denying that the trestle fell because of defective construction, and attributing its fall to negligent use of same by plaintiff and a fellow workman. In referring to this latter feature, the trial judge in his charge spoke of it as “the only defense set up in this case by the defendant.” Held, that the connection in which the remark occurs in the charge, and the very full instructions given on the other question — the sufficiency of the trestle— prevented any misleading effect.

      Negligence — Fall of trestle — Evidence—Opinion of witness.

    2. In an action to recover damages for personal injuries caused by the falling of an alleged defective trestle, a witness for the plaintiff, a carpenter of experience, who had helped to cut and saw the timber used in the construction of the trestle, may testify that in his judgment the structure was unsafe, and this is the case although he may not have actually inspected the parts in place at the point where the structure broke.
    3. In such a case a witness for defendant having testified to the strength of the trestle in question, was asked whether he had known in his own experience trestles to break in consequence of lateral pressure from cumulative deposits of earth upon one side of the structure. The question was disallowed on the ground that it did not appear that the conditions were the same; nor was it proposed to prove that they were. Held, that the evidence was properly excluded.

      Trial — Construction as to testimony — Recollection of testimony — Jury.
    4. Where the trial judge and counsel differ as to their recollection of the testimony, and the judge instructs the jury that it is for them to determine from their own recollection what the witness said, the judgment will not be reversed, even though the judge may have made a mistake in the facts.

      Negligence — Trestles—Defective work — Evidence.

      5. Where an issue in an accident case turns on the sufficiency of a trestle, and a witness testifies that there was very little cribbing and that the mud sills rested immediately upon the ground, it is proper for the court to instruct the jury to consider in connection with the sufficiency of the trestle the ground on which it was built and the character and foundation on which it rested.
    Argued Oct. 16, 1908.
    Appeal, No. 87, Oct. T., 1908, by defendant, from judgment of C. P. Washington Co., May T., 1907, No. 178, on verdict for plaintiff in case of John T. Stremme v. John T. Dyer.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Taylor, J.
    The injuries complained of resulted from the fall of a trestle.
    At the trial Geo. L. Gibson, a witness for plaintiff, was asked these questions:
    “Q. What kind of tools did you use to cut off those poles? A. Cross-cut saw. Q. How did you measure the angle at which the batter ends were cut off? A. Guessed at it. Q. Did you have a square or any instrument? A. No, sir. Q. Well, did they fit accurately then? A. No, sir, some of them didn’t and some of them did. Q. How much variation was there?”
    Mr. Murdoch: I would like to know whether the witness is talking about the piece of trestle that fell down or some other.
    “Q. You are referring entirely to this part of the trestle, to the part of the trestle that fell down? A. Yes, sir. Q. Now, in case the ends of those battered posts did not fit, how were they made to fit? A. How is that? Q. How were they fastened? A. Spiked them, as they could. Q. Now, describe how they failed to fit the cap and sill? A. Well, I don’t know how them fit down there, I know some of them didn’t fit very good other places.”
    Mr. Murdoch: There, if the court please, is just what I anticipated, that the witness is talking about something else all the time.
    The Court: He said at this place where the trestle fell down.
    Mr. Murdoch: I move that the witness’s answer be stricken out as not responsive to the question and as referring to something that is irrelevant in the case.
    The Court: I do not suppose the witness could identify these particular bents, but how was the three-legged trestle constructed, particularly at this point where it collapsed. Not strike it out, but direct the jury’s attention to the place where the trestle fell and bill sealed for the defendant. [1]

      “ Q. Now, in case these poles failed to fit on account of the way in which you sawed them, tell the jury how they failed to fit?”
    Mr. Murdoch: If he saw them.
    “ Q. Yes, the ones you saw that didn’t fit at the ends? A. Well, we sawed some too much the one way and some too much the other, some would fit on the butt, and some would fit on the heel, and some were straight poles we sawed and some were a little crooked and would only set on one point and sawed this way too much, and you couldn’t saw them perfectly without laying the line and taking a square.”
    Charles Nixon, a witness called and examined by the defendant, was asked these questions:
    “Q. Did you ever see trestle broken in that way? A. By what way? Q. By the pressure of dumping too much earth on one side? A. Yes, sir. Q. In your own work? A. Yes, sir. Q. Where was the break?”
    Objected to.
    The Court: Let’s keep other trestles out here, particularly on the question of break-down; take this trestle how it was constructed there at the point of accident and let the witness say, with his knowledge of this kind of business, whether it was sufficient to sustain the admitted weight there was upon it.
    Mr. Bane: I move to strike out the answer that the witness gave.
    Mr. Murdoch: Let me ask my question and if it is improper then you can strike out the other. I want to ask him this question, if the opinion that he has expressed of the effect of excessive dumping on one side is based on theory or upon actual observation in other places.
    Objected to.
    The Court: That simply goes to the competency of the witness to express an opinion, to his qualification.
    Mr Bane: We move to strike out his answer that he has seen' other instances where it has broken.
    The Court: I think we will strike it out and seal a bill for the defendant, for the reason that that involves other trestles and would necessarily involve the construction of that trestle and which is not shown to be like this or different, and seal a bill for the defendant. [2]
    The court charged in part as follows:
    [But we have given you the law of contributory negligence and what must result by way of the verdict of a jury where they find that, even though they find that the defendant was negligent, if they find that there was any contributory negligence upon the part of the plaintiff. They do not claim that by way of defense, gentlemen of the 'jury, but they claim that he was injured, not by the defendant’s negligence, but by the negligence of a fellow workman, a fellow servant, as they call it, and that, gentlemen of the jury, I may say is the only defense set up in this case by the defendant.] [3]
    [Now, on the law of the case, gentlemen of the jury, that applies to the facts in this case, to that principle, because that is the defense here, if Murphy, the dump boss there that morning who dumped this dirt there, dumped the dirt all on one side without any knowledge of Gucker or Skelly, who were there, when he had orders and knew as a matter of fact that it had to be equalized, dumped equally on one side and the other, that Murphy violated orders there and Gucker was not there to see that he was violating orders and stop him, and this trestle fell down by reason of the claim that the defendant makes, — the pressure from the dirt being all dumped on one side as they claimed that morning, that would be a negligent act of Murphy, who was a fellow workman along that trestle in different lines of work along with Stremme, the plaintiff in this case. The plaintiff says that those are not the facts in the case. That the doctrine of a coworker or fellow servant here as between Stremme and Murphy does not apply; even if Murphy did dump it all on one side against directions, or, that it was not dumped in a way a skilled foreman ought to have done and he ought to have known better, they say that Gucker was present there and could have seen; that Skelly was there and could have seen that, if it was being dumped all on one side, and they ought to have known that it was not the proper way, and if they were there and saw Murphy dumping it all on one side, then it would be their business to check him and order him to dump on both sides. The plaintiff claims that they were not only there but they were near there ánd saw that, and I believe Mr. Gucker himself said that he was there and saw how the dirt had been dumped that morning. The plaintiff claims further—
    Mr. Murdoch: It is my duty to tell you that Mr. Gucker didn’t say so. The Supreme Court says that this is the point where I must make my objection.
    The Court: It seems there is a great dispute about evidence here. Our recollection—
    Mr. Bane: Mr. Gucker stated that he was out near the end of the four leg trestle.
    The Court: [“ I was there that morning and saw the trains being dumped,” is what I have Mr. Gucker saying, but we say, gentlemen of the jury, to you, that it is your recollection of what the testimony is that controls; where the counsel, or the court do not recollect the testimony the same way, it is up to the jury to say what a particular witness said and their recollection goes and the court’s and the counsel’s are by you disregarded.] [4]
    [The ground over which this trestle was built, that is at the place of the accident, • is a matter that should be taken into consideration by a jury, what kind of earth was immediately under the mud sills, that entered into the construction of the trestle, what was the condition of the ground, was it hard so as the mud sill could lie on the ground itself, only required to be level, or was it soft so that it required a foundation when the weight would come upon it and would not sink into the ground; was it uneven at one end and blocked up at the other by pieces of wood to make the bent level and the mud sill level so the bent which was built upon it would be level? Was it high ground or low ground? was it clay? what was the character of it? because it is a very important matter in the consideration of a case of this kind to determine what the foundation on which the superstructure was dependent, especially when the superstructure went, down and you are trying to arrive at the causes of it.] [5]

      [If you find, gentlemen of the jury, under all the evidence in the case that Murphy is the man that is responsible for this accident and that he was violating not only orders but he was doing this thing in a negligent manner that his judgment ought to have told him better, why then your verdict would be for the defendant, that is if you find that it was Murphy’s negligence that injured the plaintiff. On the other hand, if you find that it was not Murphy’s negligence or that Murphy’s negligence would be Dyer’s or Gucker’s negligence by virtue of what he has already said about him being there or about what passed between him and Murphy just before the accident, if Gucker was there and saw the dirt being unloaded on one side and made no objection to it and that the trestle was insufficient, whether it fell from that cause or not, to sustain the weight put upon it, then you would pass to the next question and find how much you would allow the plaintiff by way of pecuniary compensation for the injury he has sustained.] [6]
    Defendant presented these points:
    4. If the evidence shows that the trestle would not have fallen except for the fact that Murphy, as dump foreman, dumped too large an amount of wet earth against one side of the trestle, the verdict must be in favor of the defendant. Answer: That is affirmed, if the jury further find that the superintendent, Mr. Gucker, did not tell Murphy, the dump foreman in charge of the plaintiff’s dump train, to dump on the side he had been dumping the morning of the accident till noon and then change the platform for dumping to the other side, or unless the jury further find that the superintendent, Gucker, was not present the morning of the accident when the dirt was being dumped there. [7]
    5. If the jury find from the evidence that Murphy, the dump foreman, in charge of the dump on the morning when the accident happened, either through mistake or carelessness on his part, put an undue strain upon the trestle by improperly dumping all the earth against one side of it, and that the earth was of such a nature that being so dumped it endangered the safety of the trestle, and further find that by reason of so doing the trestle was affected in such way as to cause the accident, then the jury are instructed that in such a state of facts the defendant, John T. Dyer, would not be responsible for the injury caused thereby and that if they so find the verdict must be in favor of the defendant. Answer: That is affirmed, gentlemen of the jury, if the jury find that Mr. Gucker had no knowledge that the earth was being dumped there in the morning and could not have had under the circumstances and if he had no knowledge or had this conversation with Murphy, and you should find as Gucker testified.
    These two points, gentlemen of the jury, the fourth and fifth, we think we have covered them in our general charge, but in order that you may fully understand them they are simply this: that if Gucker had no knowledge or under the circumstance reasonably could not have had any knowledge that Murphy was dumping all that dirt that morning on one side, then it was Murphy’s fault that this thing went down, if it went down from dumping too much earth on one side, and Dyer would not be liable, because that would be the negligence of a fellow workman. But the point is here, if Gucker was present there that morning, the man that was representing Dyer, the defendant in this case, and saw Murphy dumping all on one side, which he now gives as the reason why this trestle went down and that it would not stand the dumping all on one side, then it would be for you to say whether or not Gucker did not allow something to be done that under the circumstances with his knowledge of what would necessarily occur, taking from what he now says, and he remained silent and did not correct Murphy but allowed it to go on, then he would have knowledge of Murphy’s negligent act and if he did not call him to account for it and stop it before the real injury resulted, why he would have knowledge of one of his employees doing a negligent act and it would be his duty under the circumstances as a matter of law, if that was a fact, to call him to account before anything happened. But you could not hold Gucker accountable for that if he was not there or, if he was there, had no knowledge that this earth was being dumped on one side, and the trestle went over for that reason, why then he having employed a competent man in the first place, you would have to first-bring knowledge home to him that the man he employed was acting in a negligent manner. I think we have made that clear, gentlemen of the jury. [8]
    Verdict and judgment for plaintiff for $5,975. Defendant appealed.

      Errors assigned were (1, 2) rulings on evidence, quoting the bill of exceptions; (3-8) above instructions, quoting them.

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

      Andrew M. Linn, with him John C. Bane, for appellee.
    January 4, 1909:
   Opinion by

Mr. Justice Stewart,

The plaintiff, a railroad engineer, was put in charge by the defendant of an engine employed in hauling cars loaded with earth from one point where it was excavated, upon and over a temporary trestle, to a dumping ground at either side of the trestle. On this particular occasion, as the train of cars his engine was hauling reached the place where the earth was to be discharged, the trestle gave way, and engine and cars were precipitated to the ground below. In the accident plaintiff received the injuries for which he seeks to recover. The negligence charged was faulty and improper construction of the trestle, which rendered it inadequate for the purpose intended, and therefore unsafe and dangerous for those employed thereon. The evidence on part of the plaintiff was directed wholly to the construction of the trestle, and developed no other cause' to which the collapse could be referred. That this evidence would be sufficient to support an inference that the collapse was in consequence of defective construction of the trestle, must be admitted. The effort on part of defendant was, in the first place, to rebut any such inference by adducing evidence to show that the trestle was constructed in accordance with the design most generally adopted and approved, of sound material, of such dimensions as are ordinarily used in such structures, and that it was fully adequate for the purpose for which it was intended; and, second, to show that what caused the fall of the trestle was an excessive lateral pressure resulting from the negligence of a fellow workman in discharging the contents of the cars continuously upon the one side next the higher ground, leaving the other side without any embankment to resist. That this evidence would support the inference sought to be drawn from it must also be admitted. It thus appears that there were two distinct lines of defense: one that the trestle was not defective, but safe; the other, that what caused the accident was excessive lateral pressure occasioned by negligence for which defendant was not responsible. The defense was pressed on both lines with equal earnestness. In submitting the case to the jury the learned trial judge first adverted in his charge to the claim made by defendant, that the proximate cause. of the accident was the dumping the earth exclusively upon the one side of the trestle. Plaintiff had contended that even though this was the cause of the accident, the negligence was chargeable to defendant’s superintendent; while the defendant contended' that it was chargeable to the dumping' boss who stood in the fellow servant relation. In referring to this aspect of the case, after having explained the law as to contributory negligence, the learned trial judge used this language, “They (counsel for defendant) do not claim that (contributory negligence) by way of defense, but they claim that he was injured not by defendant’s negligence, but by the negligence of a fellow workman, a fellow servant as they call it, and that, gentlemen of the jury, I may say is the only defense set up in this case by the defendant.” The language here used is assigned for error in the third specification. Appellant contends that the jury could only understand from it, that they were relieved from considering the evidence of defendant which bore upon the sufficiency of the trestle; and that but one defense was insisted upon, that being that the proximate cause of the accident was chargeable to the negligence of a fellow servant. It is not too much to say that the objection is hypercritical. The ordinary mind would not be likely to misunderstand the meaning of the trial judge in this connection. ’ He had given the jury clearly to understand that it was for them to determine what the proximate cause of the accident was, and it was in the course of his instructions as to the law they should apply in case they found that the accident happened according to the theory of defendant, that the remark complained of was made. In the event of their so finding, it would be literally true that the only defense set up at all applicable in that view of the case, would be that the negligence, the cause of the accident, was that of a fellow servant. But even though the language was susceptible of a different application by the jury, what was meant was made so abundantly clear by succeeding portions of the charge, in which the whole matter of the sufficiency of the construction of the trestle was considered, that if any misunderstanding had existed as to the true import of the expression complained of, it must have been corrected. The charge upon this specific question covers no less than four pages of the paper-book, and is a full and careful review of the evidence on both sides. It is impossible to believe that any prejudice could have resulted to the defendant from the language complained of.

2. A witness for the plaintiff, a carpenter of experience, who had helped to cut and saw the timber used in the construction of the trestle, testified that in his judgment the structure was unsafe. He described the kind of timber used, the way it was prepared, and the manner in which it was fastened. One principal defect, in his judgment, was that the batter posts did not fit accurately in the cap and sill. Although the witness had not inspected those in place at the point where the structure broke, yet he was allowed under objection to speak of this defect which he had observed in those parts he had examined. Evidently the witness' opinion was based quite as much upon the knowledge he had of the character of the timber used and the way it was prepared, as upon what he saw of them when in place. This is clearly indicated in his testimony as to the work he had himself done in preparing the timber. He says that the batter ends were not cut off by any square, at any particular angle, but by guess, with the result that some of them were uneven and could only be made to fit by spiking them down. This evidence was properly admitted.

3. A witness for defendant of large experience having testified to the strength of' a trestle built according to the design used here, was asked whether he had known in his own experience trestles to break in consequence of lateral pressure from accumulated deposits of earth upon one side of the structure. The question was disallowed on the ground that it did not appear that the conditions were the same as here. Nor was it proposed to prove that they were. To introduce evidence of this kind, and thus put upon the other side the burden of showing that the conditions were not the same, would be to disregard the plainest rules of evidence.

4. Accepting defendant’s theory as to the cause of the accident, a most important inquiry would be — was it the negligence of defendant’s superintendent, or that of the dumping boss, that occasioned it? When discussing this feature of the case in the general charge, the trial judge referred to the testimony of the former and stated that he had admitted that he had been there (on the trestle) that morning, and saw the trains being dumped. The correctness of this being challenged, the judge referred at once to his notes of testimony, and said that it there appeared as he had stated it; but he immediately added, addressing the jury, “it is your recollection that controls when the court or the counsel do not recollect the testimony the same way. It is upon the jury to say what a particular witness said, and their recollection goes, as the court and counsel are by you disregarded.” Assuming that the testimony of the witness had been inaccurately stated by the court— and an examination of the record inclines us to think that such was the case — yet the instructions to the jury to determine from their own recollection what the witness said was so explicit, that the jury could not have failed to understand their own responsibility in the matter. They had before them the opposing versions of the testimony as presented by the court and counsel, and were instructed to resolve the question by their own recollection, in disregard of what was asserted by either. If there was a misstatement of fact, the mistake was corrected.

5. The jury was instructed to consider in connection with the sufficiency of the trestle the ground on which it was built, and the character of the foundation on which it rested. In view of the testimony of the witness McKinley that there was very little cribbing, and that the mud sills rested immediately upon the ground, it was entirely proper to direct the attention of the jury to this feature. What weight was to be given the circumstance alluded to was for the jury, and the court so left it. We have considered all the assignments of error, and upon a full review of the case we find nothing that calls for a reversal.

The judgment is .affirmed.


text:
    Murphy v. Dyer, Appellant.

      Trial — Charge—Portion of sentence — Assignment of error.

    1. Where a part of a sentence is complained of as error, but it appears that the part not quoted properly qualifies the part specified and it also appears that the court in a portion of the charge preceding the sentence, and in an answer to a point, fully, clearly and properly states the law, the judgment will not be reversed.

      Negligence — Master and servant — Fall of trestle — Question for jury.

    2. In an action by a foreman against his employer to recover damages for personal injuries, where plaintiff claims that the proximate and efficient cause of the accident was the defective construction of the trestle, while the defendant alleges that the plaintiff had contributed to the accident by the negligent manner in which the plaintiff who had charge of dumping earth under the trestle, had performed his work, the case is for the jury, and a verdict and judgment for the plaintiff will be sustained.
    Argued Oct. 16, 1908.
    Appeal, No. 98, Oct. T., 1908, by defendant, from judgment of C. P. Washington Co., May T., 1907, No. 164, on verdict for plaintiff in case of E. B. Murphy v. John T. Dyer.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries alleged to have been caused by a defective trestle. Before Taylor, J.

      The court charged in part as follows:
    [If the defendant through his vice principal, Mr. Gucker here, and the carpenters there, built a trestle that was sufficiently strong to carry this train and the cars loaded with earth that were put upon it and sufficiently strong to stand the jar of the dump, and the plaintiff, Mr. Murphy, who was the boss dumper in charge of that work and had full authority to direct how it should be done and that it was to be dumped in a particular way, dumped dirt to one side of it against what an ordinarily prudent man, careful man, would not have done under the circumstances of that employment and his knowledge of it, to such an extent that it pushed the structure over and then it went down, pushed the bents out of plumb after they were placed in the trestle, — then he would be responsible, even if the trestle w-as not just the strength it might have been, he would be responsible, — that is, he could not ask the defendant to pay him for an injury he received in that accident, to which accident he himself in part or in whole contributed. It was not calculated that that temporary structure there should be filled up in a way that it would sustain a lateral pressure there. All agree that it was to be filled up, — and you can see that as a matter of common sense it was to be filled up evenly on each side, so that the pressure would keep the bents in place; and if you should find in the end that Murphy here im-. properly, and when he should have known better, filled this trestle up at one side in the manner and with the kind of dirt that he did, this dirt from the seep on the side of the hill where it was taken with the steam shovel, or dirt that had become slippery from the wet weather, and the trestle was properly constructed in the first place, then you can see how this principle I have just read would apply, because there could be no question but that his act was not good judgment, that it was not such an act as an ordinarily prudent and careful man would employ, and if it contributed to his injury then he could not recover. If, on the other hand, gentlemen of the jury, the trestle went down because not of that unilateral pressure by the dirt being all being dumped on one side, but by reason of the X braces being off and the trestle not of sufficient strength to support it under the particular conditions of that day or any other day, then it would have been improperly constructed, that is, it would not sustain the weight and shocks of dumping and the vibrations of the train moving over them, that it should, and which would have been the duty of the defendant to have provided in order for the safety of his workmen.] [1]
    Defendant presented this point:
    Under all the evidence .the verdict must be in favor of the defendant. Answer: That is refused, because the question here is whether or not this accident was produced by the negligence of the defendant company, which would be a violation of the legal duty upon it, in not constructing the derrick strong enough, and on the other hand, claimed by the defendant being constructed strong enough the accident having occurred by the earth being dumped on one side and the derrick pushed out of plumb. So those are the disputed questions of fact in the case to be determined by a jury, and we could not take it from you under all the evidence. [2]
    Verdict and judgment for plaintiff for $7,000. Defendant appealed.

      Errors assigned were (1, 2) above instructions, quoting them; (3) in refusing defendant's motion non obstante veredicto.

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

      Carl E. Gibson, with him Chas, G. Mcllvain and W. K. Vance, for appellee.
    January 4, 1909:
   Opinion by

Mr. Justice Stewart,

This case grows out of the same occurrence as that which was under consideration in the case of Stremme v. Dyer, ante, p. 7, the opinion in which case has just been filed. There the plaintiff was engineer on the train that was precipitated from the trestle; here the plaintiff was the dumping foreman. It is not necessary to repeat the facts common to both cases. The negligence charged in the statement was the defective construction of the trestle. Not only did the defendant deny that the trestle was defective, but he contended that the trestle fell solely because the plaintiff who had charge of the dumping, instead of distributing the earth equally upon both sides of the trestle, negligently discharged it all upon one side, and that on the side where the ground was highest, thereby producing a lateral pressure upon the trestle which forced it from its proper place, with the result that-it collapsed.

1. The defendant was entitled to have the jury instructed that if the plaintiff’s negligence were shown, either as an original or contributing cause of the accident, there could be no recovery. If the trestle did not fall because of defective construction, but solely because of the negligent manner in which the earth had been dumped against it, the accident was to be referred to plaintiff’s negligence as the original and sole cause; if, on the other hand, the trestle was defective, yet if such negligence as we have referred to on part of plaintiff was shown as concurring, then there would-be contributory negligence, and in either case the result would be the same. Was the jury so instructed? The severe examination and analysis to which the charge has been subjected by the learned counsel for the defendant has discovered a single sentence upon which they rest their contention that the instruction given is not in accordance with the law as we have stated it. The portion of the charge assigned as error is as follows: “If the defendant built a trestle that was sufficiently strong to carry this train and the cars loaded with earth that were put upon it, and sufficiently strong to stand the jar of the dump, and the plaintiff, Mr. Murphy, .... dumped dirt to the one side of it against what an ordinarily prudent man would not have done under the circumstances of that employment, and his knowledge,” etc. It is insisted that this instruction allowed a finding for defendant on account of plaintiff’s negligence, only in case the jury should conclude that defendant stood clear of negligence in the construction of the trestle, eliminating from the case the question of plaintiff’s negligence as a concurrent and contributing cause, and that, too, in the very connection in which the court was dealing with contributory negligence. In what we have quoted from the charge — and it is all that is given in defendant’s printed argument, though more appears in the specification — it may perhaps be complained of with justice. But it is not even a complete sentence. The sentence of which the extract is a part thus proceeds: “to such an extent that it — the earth embankment — pushed the structure over and then it went down and pushed the bents out of plumb after they were placed in the trestle — then he would be responsible, even if the trestle was not just the strength it might have been, he would be responsible — that is, he could not ask the defendant to pay him for an injury he received in that accident, to which accident he himself, in part or in whole, contributed.” In the section immediately preceding the court uses this language: “That is, the recovery is based upon the negligence of the defendant, and that negligence must be the proximate, sole and efficient cause of the injury, because if it appears in the testimony that the party injured contributed by his own negligence, in any degree to the injury, that ends the case— there can be no recovery under circumstances of that kind.” Certainly under such explicit and unqualified instructions immediately preceding the portion of the charge complained of, and the equally explicit recognition of the law of the case in an answer to the appellant’s sixth point which followed, the jury could not have been under any misapprehension as to what the court meant in that part of the charge complained of. We may add that it is always unfair to select a single sentence or two in a charge and insist on it as error, without reference to the other portions which explain its meaning or exhibit its bearings: Watts v. Cummins, 59 Pa. 84.

2. Assuming defendant’s negligence, did contributory negligence on part of the plaintiff so clearly appear that the court could so declare as matter of law? This is the question raised by the second and third assignments of error, which complain of the court’s refusal to give binding instructions, and afterward to enter judgment non obstante. What the jury would find to have been the proximate, efficient cause of the accident, could not have been known to the court. The evidence on part of the plaintiff would have warranted a finding that the efficient and sole cause was the defective construction of the trestie, just as was charged in the statement. How could a verdict have been directed for defendant on the ground that plaintiff had been negligent in connection with something which any such finding by the jury would necessarily reject as an operating and contributing cause? It was submitted to the jury to find the proximate, efficient cause of the accident. If, as defendant now contends, the negligence of plaintiff was not only established but undisputed, the inference seems unavoidable that the jury found that such negligence did not contribute, and this could only be on the ground that the condition created by such negligence was not the proximate, efficient cause, in other words, that the sole cause was to be found in defendant’s negligence. The assignments are without merit.

The judgment is affirmed.


author: Mr. Justice Brown,

text:
    Commonwealth v. Baltimore & Ohio Railroad Company, Appellant.

      Criminal law — Nuisance—Railroads—Movements of trains — Obstruction of highway — Indictment—Bill of particulars.

    1. An indictment charging a railroad company with the frequent and rapid passing and repassing of its trains over a highway, whereby the same was obstructed and rendered dangerous, charges no offense either under the statute law of Pennsylvania, or at common law. ■
    2. With the statutory permission given to railroad companies to cross public highways with their tracks, there necessarily goes the right to frequently cross them, if the needs of the public for whom railroad companies are incorporated require the frequent movement of trains; and this is so of their speed.
    3. If a railroad company habitually runs its trains over a highway crossing at an unreasonable and unsafe rate of speed without giving reasonable and proper signals of their approach for the protection of life and property, it may be indicted for committing a public nuisance; but all the matters necessary to show the illegality of the company’s action must be stated in the indictment. A bill of particulars cannot take the place of what must affirmatively appear on the face of the indictment.

      Criminal law — Indictment—Bill of particulars.

    4. A bill of particulars is never a remedy for an indictment so defective that it charges no offense.
    Argued Oct. 16, 1908.
    Appeal, No. 89, Oct. T., 1908, by defendant, from judgment of Superior Court, April T., 1908, No. 108, affirming judgment of Q. S. Washington Co., Aug. T., 1907, No. 231, on verdict of guilty in case of Commonwealth v. The Baltimore & Ohio Railroad Company, alias The Wheeling, Pittsburg & Baltimore Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Reversed.
    Appeal from judgment of Superior Court. See 35 Pa. Superior Ct. 474.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was the judgment of the Superior Court.

      Norman E. Clark, with him Winfield Mcllvaine, for appellant.
    — We contend:
    1. That the indictment only charges that the appellant maintained its track across this highway and frequently and rapidly passed and repassed its trains over the same.
    That under its charter rights, in the act of assembly, it has full authority to so maintain its track and pass its trains over the same and under the law as laid down in Penna. R. R. Co.’s Case, 213 Pa. 373, the court has no power to control the speed of its trains. Therefore the indictment does not charge any crime under the law, and this conviction cannot be sustained.
    2. That in attempting to charge a nuisance, this indictment only charges what the appellant has a legal right to do under the law and does not state or describe in what manner the appellant has unlawfully exercised that right.
    Where an indictment undertakes to charge a nuisance in respect to an act which is lawful in itself, it must set forth the facts and circumstances which make it unlawful, 1 Wharton’s Indictments, 23; Woods on Nuisances, sec. 854, in such a way as to enable the defendant to know the nature of the crime alleged, and plead the judgment in bar of a subsequent prosecution, Seifried v. Com., 101 Pa. 200, or the court to impose the sentence required by law in such a way as to make known to the defendant what it has to dp in order to comply with the same: Clark’s Crim. Proc. 150; Sadler’s Crim. Proc., sec. 211.

      C. L. V. Acheson, district attorney, with him T. H. W. Fergus, assistant district attorney, and Owen C. Underwood, for appellee.
    — While it is true that the defendant company is authorized to construct and maintain its road over and across public highways and to pass its trains over the same, it is equally true that it cannot do so to the nuisance of the public: Penna. R. R. Co. v. Belt Line R. R. Co., 29 W. N. C. 202; Penna. R. R. Co.’s Case, 213 Pa. 373; Com. v. Penna. R. R. Co., 117 Pa. 637; Northern Cent. Ry. Co. v. Com., 90 Pa. 300; Com. v. New Bethlehem Boro., 15 Pa. Superior Ct. 158; State v. Railroad Co., 23 N. J. 360; Caldwell’s Case, 1 Dall. 150; Com. v. Milliman, 13 S. & R. 403; Cincinnati R. R. Co. v. Com., 80 Ky. 137; Louisville, etc., R. R. Co. v. Com., 80 Ky. 143; Rex v. Russell, 6 East, 427; People v. Cunningham, 1 Denio, 524; Rex v. Jones, 3 Camp. 230; Bush v. Steinman, 1 Bos. & Pul. 404.
    January 4, 1909:
   Opinion by

Mr. Justice Brown,

The appellant was convicted in the court of quarter sessions of Washington county on a common-law indictment charging it with maintaining a nuisance. A motion to quash, on the ground that no crime was charged in the indictment, was overruled, as was a motion in arrest of judgment based on the same reason. The lower court was sustained by the Superior Court: 35 Pa, Superior Ct. 474; and the narrow question passed upon by each of them is now before us.

The indictment charges that the defendant unlawfully kept and maintained a railroad track and way across a public highway, “and did use the said track and way for the frequent passing and repassing of trains, whereby the use of the said road, street and public highway was and continues to be dangerous, obstructed and straitened, so that the good citizens of this commonwealth could not and have not been able since to pass and repass upon and use the said public highway as they ought and of right should and were wont and accustomed to do.” There is no averment that the appellant, in laying its track across the highway, .created any obstruction, and the case does not belong to the class in which railroad companies have been held guilty of maintaining nuisances because they placed actual obstructions on the highways in constructing their tracks across them: Northern Central Ry. Co. v. Commonwealth, 90 Pa. 300; Commonwealth v. Northern Central Ry. Co., 7 Pa. Superior Ct. 234. The learned judge of the Superior Court properly said that it is not the existence of the track on the highway that is complained of, but the alleged unlawful use of it.

Boiled down, the substance of what is charged in the indictment to be the offense of the appellant is the frequent and rapid passing and repassing of its trains over the highway, whereby the same was obstructed and rendered dangerous. Nothing more is to be found in the indictment, and counsel for the commonwealth frankly so admit, for their statement of the question involved is, "Can a railroad company be indicted and convicted under the common law for maintaining a nuisance at a grade crossing, arising from the manner of operating its trains, where no permanent physical obstruction of the highway is occasioned by the construction of its roadbed?” The question for determination, then, is not one of the sufficiency of the indictment under the Act of March 31, 1860, P. L. 427, which provides that every indictment shall be deemed and adjudged sufficient and good in law, which charges the crime substantially in the language of the act of assembly prohibiting the crime, or, if at common law, so plainly that the nature of the offense charged may be easily understood by the jury, but is whether any offense at all is charged. The court below was of opinion — concurred in by the Superior Court — that if the defendant was dissatisfied with the sufficiency of the indictment, its remedy was an application for a bill of particulars. This is never a remedy for an indictment so defective that it charges no offense: 1 Bishop's New Criminal Procedure, sec. 646. A bill of particulars cannot give life to what was dead when it left the grand jury. By this indictment the commonwealth charges a nuisance arising from the frequent and rapid passing and repassing of the trains of the appellant over a public road or street — acts which are entirely lawful in themselves. If, in the exercise of an undoubted franchise, the railroad company so exercises it as to commit a public nuisance, its offense is the improper exercise of its franchise, which must be set forth and described in the indictment as the substantive offense. Where an act is not in itself necessarily unlawful or a nuisance, but becomes so by its peculiar circumstances and relations, all the matters necessary to show its illegality must be stated in the indictment: Clark's Criminal Procedure, 155. A bill of particulars, prepared by a district attorney, can never take the place of what must affirmatively appear on the. face of an indictment to which the accused must plead.

The passing and repassing of appellant's trains over the highway are not complained of, and it is not even averred that they are allowed to cross it negligently. The frequent and rapid passing, without more, is the sole offense charged. Railroad companies may not habitually run their trains over highway crossings at an unreasonable and unsafe rate of speed without giving reasonable and proper signals of their approach for the protection of life and property. If they fail in the discharge of this duty, they are liable to indictment for nuisance: Wood’s Law of Nuisances, 74; Louisville, Cincinnati & Lexington Railroad Co. v. Commonwealth, 80 Ky. 143. But there is no such allegation here, and without it there is no essence in the offense charged.

With the statutory permission given to railroad companies to cross public highways with their tracks there necessarily goes the right to frequently cross them, if the needs of the public, for whom railroad companies are incorporated, require the frequent movement of trains; and this is so of their speed. The indictment charges that the highway is obstructed by the rapid passing of trains. Slow passing would obstruct it more. But we need not dwell upon this, for the “very purpose of locomotion by steam upon railways is the accomplishment of a high rate of speed in the movement of passengers and freight. It is authorized by law:” Reading & Columbia R. R. Co. v. Ritchie, 102 Pa. 425. In the exercise of this lawful right a railroad company is under a constant duty to protect life and property by the proper regulation of the speed of its trains at danger points or by giving, without regard to their speed, reasonable and proper notice of their approach. Its failure to do so is not, however, presumed even in civil actions, but must be averred and proved, and when the criminal process of the commonwealth is invoked against it, this is still truer, for in all criminal prosecutions the presumption is always in favor of innocence and that no public duty was neglected. For neglect of such a duty in connection with the passing and repassing of its trains over the public highway this appellant might have been indicted, and an indictment containing the charge properly laid would be sufficient to support a conviction. No such neglect is here charged, but, instead, the appellant was indicted for what it lawfully had the right to do. As no crime was charged against it, the judgment on the verdict cannot stand. That judgment is that the appellant “abate the nuisance charged in the indictment.” Upon the failure of a defendant to abate a nuisance after having been sentenced to do so, a writ will be directed to the sheriff, commanding him to abate it: Taggart v. Commonwealth, 21 Pa. 527; Barclay v. Commonwealth, 25 Pa. 503. If this defendant continues to run its cars frequently and rapidly across the highway and the judgment against it is to stand, is the high sheriff of Washington county to prepare a schedule regulating the frequency of the passing of the trains and their rate of speed at the crossing and take his stand there to see that his regulation is enforced? In no other way could he execute the sentence of the court, if commanded to do so, and yet this is the situation that might actually arise if the contention of the commonwealth should prevail, that the defendant has been convicted of a nuisance.

The judgment of the Superior Court, as well as that of the court below, is reversed.


author: Me. Justice Fell,

text:
    Coleman v. Keenan, Appellant.

      Negligence — Master and servant — Fellow servant — Blasting—Act of June 10, 1907, P. L. 523.
    1. When danger can only arise as work progresses and be caused by the work done, the employer is not bound to stand by during the progress of the work to see when the danger arises, nor is it an employer’s duty to give notice of transitory dangers which may be caused by the acts of fellow workmen.
    2. Where a foreman, in general charge of blasting, places and directs the drilling of holes, but leaves to a workman the handling of the battery and the firing of the shots, while he himself is engaged elsewhere, and such workman without giving proper notice and in direct violation of the usage of the business fires a blast, and another workman is injured, the latter cannot recover damages from his employer, inasmuch as the accident was due to the negligence of a fellow servant. In such a case the man whose negligence caused the accident is not a vice principal within the meaning of the Act of June 10, 1907, P. L. 523.
    Argued Oct. 16, 1908.
    Appeal, No. 166, Oct. T., 1908, by defendant, from judgment of C. P. Washington Co., Feb. T., 1908, No. 70, on verdict for plaintiff in case of Harry E. Coleman v. D. F. Keenan.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Taylor, J.
    The circumstances of the accident are stated in the opinion of the Supreme Court.
    The court refused binding instructions for defendant.
    Verdict and judgment for plaintiff for $1,845.83. Defendant appealed.

      Errors assigned were in refusing binding instructions for defendant, and in overruling defendant’s motion for judgment non obstante veredicto.

      John H. Murdoch, with him Edgar B. Murdoch, for appellant.
    — The Employers’ Liability Act of June 10, 1907, P. L. 523, has, of course, in some respects, enlarged and extended the liability of employers but, except in the special cases set forth within that act, and under the special circumstances therein defined, the duties of master and servant remain the same as they have always been. Doubtless it was the intention of the plaintiff to bring this case within the terms of the act of 1907, but it was admitted by his counsel upon the trial of the case that they had not been able to do so, because it was not shown that the man Mike, whose duty they said it was to give the warning, was occupying any of the positions named in the act of 1907, by which he would become such a representative as would render the employer liable for his negligence. Practically the terms of the act of 1907 do not very greatly change the law as it stood prior to its passage. Looking at the act carefully we find that the cases in which the employer is to be liable are very accurately defined and limited and they are as follows, to wit':
    1. “Any defect in the works, plant or machinery,” which is precisely a statement of the law as it has always, existed.
    2. “The neglect of any superintendent, manager, foreman or any other person in charge or control of the works, plant or machinery.” In other words, the vice principal, just as the law has always stood.
    3. “The negligence of any person in charge of or directing the particular work in which the employee was engaged at the time of the injury or death.” This again is the vice principal idea, but probably somewhat extended from what it was before.

      4. “The negligence of any person to whose orders the employee was bound to conform and did conform, and by reason of his having conformed thereto the injury or death resulted.”
    5. And lastly, the act of “any fellow-servant done in obedience to the rules, instructions or orders given by the employer or any other person who has authority to direct the doing of said act.” This may be held to be a new extension, but it will be noticed that the extension is very closely drawn, and the fellow servant whose negligence makes the employer liable must himself have been acting directly under general or special orders from the employer or his legal representative.

      Examining the testimony in this case in the light of the employers’ liability act of 1907, it becomes very plain that it could not have been ruled by that act.
    The defendant, D. F. Keenan, is not liable in this action for the injuries received by the plaintiff, for the reason that the negligence shown in the case was exclusively the negligence of the Hungarian, Mike, who did not occupy any representative capacity which would render the defendant so liable; and there being no dispute in the evidence, this question was clearly for the determination of the court upon the request for binding instructions.
    It may be argued in this case that, it being the legal duty of the defendant to furnish his workmen with a reasonably safe place in which to work, he is bound to see that it is kept reasonably safe and that the failure to give warning was in violation of this duty of the employer. The case of Hussey v. Coger, 112 N. Y. 614, cited in the case of Miller v. American Bridge Co., 216 Pa. 559, seems to be a sufficient answer for this purpose.

      A. G. Braden, with him Charles W. Campbell, for appellee,
    cited: Gonley v. Lincoln Foundry Co., 14 Pa. Superior Ct. 626; Walbert v. Trexler, 156 Pa. 112; Glossen v. Gehman, 147 Pa. 619.
    January 4, 1909:
   .Opinion by

Me. Justice Fell,

This was an action by an employee to recover for injuries caused by being struck by gravel and small stones used in tamping a blast. The negligence alleged was in firing the blast without first giving the customary warning. The defendant was a railroad contractor and at one place on the work had a number of men engaged in making a long and deep cut on the side of a hill. In carrying on the work small shots or squibs of dynamite were exploded in the bottom of holes drilled in a line parallel with the side of the cut, in order to enlarge them so that they would receive larger shots, which, when discharged would blow off the face of the slope. In making the preliminary shots three or four holes were charged at a time and the shots were fired simultaneously by the use of an electric battery. Pingley, a foreman, was in charge of the work at this place and directed the drilling of the holes and, assisted by a foreign workman known as Mike, he placed the charges in the holes and connected them by wires with the battery. The handling of the battery and the firing of the shots were usually done by Mike, but at times by other workmen. There was a system adopted for giving notice before a blast was put off, and on all occasions before the accident notice had been given.

The plaintiff was a fireman on a steam shovel used to remove earth and rock after the blasting had been done. On the morning of the accident the shovel had been removed from the end of the cut and was not in use. The plaintiff went on the bank above the cut to speak to the engineer of the shovel and, while he was standing talking to the engineer near the holes that had been charged, the squibs were discharged by Mike without notice or warning. Pingley was not present, having been called to another part of the work ten minutes before.

These facts were shown by the plaintiff’s testimony. The defendant offered.none, but denied all liability for the reason, with others, that the only negligence shown was that of a fellow workman, Mike, who failed to give warning before firing the shot. This was a sufficient reason. It may be assumed that it was Pingley’s duty to provide for the giving of notice before blasts were fired, and that his failure to do this would have made his employer liable, because he was a vice principal and because of the provisions of the Act of June 10, 1907, P. L. 523. But Mike was a fellow workman only, not in charge of or directing a particular work nor giving orders to which others were bound to conform, nor was his act done in obedience to the rules, instructions or orders given by others. He did not therefore come within the provisions of the act of 1907. He acted in direct, violation of the usage of the business, as averred in the plaintiff’s statement and established by his proofs.

The defendant was responsible to the plaintiff for the negligence of no one connected with the work of firing the blast except Pingley, his vice principal. There was no negligence on the part of Pingley unless he was under a duty personally to see that warning was given every time a shot was fired. There was no such duty. The extent of his duty was to provide by proper regulations for the reasonable safety of his workmen, but not to stand by and give personal attention to all the details of the business in order to secure their safety. The accident was caused by the inattention and neglect of a workman to whom the execution of Pingley’s orders was necessarily committed. “When danger can only arise as work progresses and be caused by the work done, the employer is not bound to stand by during the progress of the work to see when the danger arises:” Durst v. Steel Co., 173 Pa. 162. Nor is it an employer’s duty to give notice of transitory dangers which may be caused by the acts of fellow workmen: Miller v. American Bridge Co., 216 Pa. 559. In the recent case of Schneider v. Phila. Quartz Co., 220 Pa. 548, it was said by our Brother Stewart: “When the work is of such character that the environment of the servant as the work progresses necessarily undergoes frequent changes, the master is not bound to protect the servant engaged in it against dangers resulting from such changes: Labatt, Master & Servant, p. 1772. This doctrine results from the fact that the prosecution of the work does make the place dangerous; but it is not the duty in such cases for the master to follow up the servants every moment to see that they make the place safe. Our own cases are directly in line.” The judgment is reversed and judgment is now entered for the defendant.


author: Mr. Justice Elkin,

text:
    People’s Bank of California v. Stroud, Appellant.

      Judgment — Opening judgment — Fraud—Evidence—Findings of fact.

    1. A judgment entered upon a judgment note will not be opened on the ground of fraud, unless the evidence to sustain the fraud is clear, precise and indubitable. In such a case the findings of fact of the court below based upon sufficient evidence, that .there was no fraud, will not be reversed in the absence of manifest error.

      2. The defendants in a judgment entered on a judgment note given to a bank will not be permitted to allege as a ground for opening the judgment that they were induced to execute the note with an understanding on the part of the officers of the bank that the note would not be enforced, but would be used as an asset of the bank so as to enable it to continue business, collect outstanding obligations, liquidate indebtedness and ultimately relieve the makers of the note of the money responsibility thereon. In such a case the makers are estopped upon their own statement from setting up want of consideration; and they cannot set up such a defense against the receiver of the bank who had entered up the note as an asset available for the payment of creditors.
    Argued Oct. 16, 1908.
    Appeal, No. 191, Oct. T., 1908, by-defendants, from order of C. P. Washington Co., Feb. T., 1908, No. 195, discharging rule to open judgment in case of People’s Bank of California v. W. A. Stroud and Cary Piper.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Rule to open judgment. Before Taylor, J.
    The opinion of the Supreme Court states the case.

      Error assigned amongst others was in discharging rule to open judgment.

      T. F. Birch, with him J. R. McCreight, for appellants,
    cited: Heist v. Tobias, 182 Pa. 442; Shackamaxon Bank v. Yard, 143 Pa. 129; Fink v. Farmers’ Bank, 178 Pa. 154; Bensinger v. Wren, 100 Pa. 500; Ripple v. Succop, 30 Pa. Superior Ct. 638; Altoona Second Nat. Bank v. Dunn, 151 Pa. 228; Coal & Iron Co. v. Willing, 180 Pa. 165; Levy v. Bank of the United States, 1 Binney, 27; Schweyer v. Walbert, 190 Pa. 334; Maynes v. Atwater, 88 Pa. 496; Forrest v. Nelson, 108 Pa. 481; Hook v. White, 193 Pa. 397.

      Carl E. Gibson, with him Chas. G. Mcllvain and W. K. Vance, for appellee,
    cited: Dillen v. Dillen, 221 Pa. 435; Fink v. Bank, 178 Pa. 154; Spencer v. Colt, 89 Pa. 314; Thomas v. Loose, 114 Pa. 35; Highlands v. Railroad Company, 209 Pa. 286; Boyertown Nat. Bank v. Hartman, 147 Pa. 558; Honesdale Glass Company v. Storms, 125 Pa. 268.

      January 4, 1909:
   Opinion by

Mr. Justice Elkin,

Appellants were bondsmen of the cashier of the appellee bank. In November, 1907, defalcations in which the cashier was involved were discovered amounting to about $70,000. As soon as the shortage was discovered the president and some of the directors summoned the bondsmen to meet them, made known the defalcations and demanded payment of the amount of the bond which it was asserted was a valid subsisting obligation. After a. prolonged discussion of the unfortunate situation appellants assented to and did execute a judgment note in favor of the bank, calling for the payment of $20,000, being the amount of the bond, which note was dated November 11, 1907, and payable one day after date. Judgment was entered in the court below on the warrant of attorney contained in the note on December 17,1907, and execution issued thereon. On December 30, 1907, a petition to strike off, or open the judgment, and set aside executions, was filed, to which the bank made answer, and the whole case was heard and disposed of by the learned court below on a rule to show cause why the prayers of the petitioners should not be granted. Thirteen of the seventeen assignments of error relate to the findings of fact by the learned court below sitting as a chancellor. These assignments are all within the settled rule that findings of fact in such cases will not be disturbed except for manifest error. In this case there is no such manifest error; indeed, the findings are amply supported by the testimony produced at the hearing and to have found otherwise would have been error. In the consideration of this case we start with a judgment note acknowledged to have been executed by appellants and a judgment regularly entered thereon. A heavy burden rests upon those who undertake to avoid a written instrument, and especially when it has been reduced to a judgment in a court of record. When fraud is set up as a defense in such a case the evidence to sustain the allegation must be clear, precise and indubitable. The evidence offered in the present case fell far short of this standard of proof and the learned court very properly held that the allegation of fraud had not been sustained. As to the other defense that the makers were induced to execute said judgment note with an understanding on the part of the officers of the bank and the makers of the note that it would not be entered nor collected as an obligation against them, but would be used as an asset of the bank so as to enable it to continue business, collect outstanding obligations, liquidate indebtedness and ultimately relieve the makers of the note from any responsibility thereon, it need only be said that the learned court has found all these facts against appellants and we see no reason to disturb the findings. In addition, this defense could not prevail even if the facts were as alleged, because under circumstances of this character the makers are estopped from setting up want of consideration: State Bank of Pittsburg v. Kirk, 216 Pa. 452, and cases there cited. In this connection it should be observed that the judgment was entered at the instance of the receiver of the bank, who represents its creditors, and it is his duty to secure all assets available for their payment. The note in question was an asset of the bank, and was so intended, even by its makers, as set out in their petition to open judgment, although they deny ultimate liability to pay, but such a defense cannot prevail against the receiver who represents the depositors and other creditors.

Assignments of error overruled and judgment affirmed.