text:
    The Imperial Rolling Screen Company v. Steinfeld Brothers, Appellant.

      Contract — Measure of damages — Evidence—Market value.

    1. In an action to recover damages by a vendor against a vendee for refusal to take more than a portion of a quantity of screens agreed upon as the subject of a written contract of sale, the correct measure of damages is the contract price, less the value of the undelivered screens in the plaintiff’s hands at the time of the breach.
    2. In such a case in determining the value of the screens not delivered, the law does not limit the evidence of such value to an actual sale with notice, but other evidence may be considered even though vague and unsatisfactory, and a referee who is to pass upon the question must determine as best he can what the value is. If it appears that the vendee declined to accept the screens at a price at which the plaintiff offered them, the referee’s finding of the value at that price confirmed by the court, will not be set aside by the appellate court.
    Argued March. 28, 1911.
    Appeal, No. 47, Jan. T., 1911, by defendants, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1907, No. 130, for plaintiff on findings of the referee in case of The Imperial Rolling Screen Company v. Samuel Steinfeld and Leo Steinfeld,. trading as Steinfeld Bros.
    Before Fell, C. J., Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit by foreign attachment to recover damages for breach of contract. The case was referred by agreement of the parties to Frank P. Prichard, Esq., as referee.
    From the record it appeared that the suit was brought upon a contract dated March 9, 1907, whereby plaintiff agreed to sell and defendants to buy at least 20,000 Imperial roller screens at eighty cents each, to be taken, 5,000 by May 1, 1907; 5,000 by May 15, 1907; and at least 10,000 by June 15, 1907. Under this agreement defendants took and paid for 3,384 screens. Plaintiff claiming to have manufactured and offered delivery of the balance of 16,342 screens, brought suit on the ground that the acceptance was refused.
    The referee found that plaintiff was willing and ready to supply the minimum quantity of screens and that defendants refused to take and pay for the minimum; that the screens were substantially as contracted for; that there was no agreement to pay demonstrators; that the balance of screens not taken, were reasonably worth in the market twenty cents apiece; that the screens were not practically or commercially a success, but that defendants were not at fault in the failure to market them.
    The referee awarded to plaintiff the sum of $10,834.74. Exceptions to his report were dismissed by the court.
    Defendants appealed.

      Errors assigned were in dismissing exceptions to the report of the referee.

      Francis Chapman, of Chapman & Chapman, with him S. Spencer Chapman, for appellants.
    — The duty was on the plaintiff to establish the measure of damages: Unexcelled Fire Works Co. v. Polites, 130 Pa. 536; Jones v. Jennings Bros. & Co., 168 Pa. 493; Kinports v. Breon, 193 Pa, 309; Sharpsville Furnace Co. v. Snyder, 223 Pa. 372.

      Sheldon Potter, of Potter, Dechert & Norris, for appellee.
    — The referee’s finding as to the damages was proper: Girard v. Taggart, 5 S. & R. 19; Andrews v. Hoover, 8 Watts, 239; Morris v. Supplee, 208 Pa. 253; M’Combs v. M’Kennan, 2 W. & S. 216; Puritan Coke Co. v. Clark, 204 Pa. 556.
    July 6, 1911:
   Opinion by

Mr. Justice Potter,

The law of this case is not doubtful, and appellants have substantially no complaint to make of its application by the referee to the facts as found by him. The measure of damages which he applied was “the contract price, less the value of the undelivered screens in the plaintiff’s hands at the time of the breach.” He also rightfully assumed that the burden was on plaintiff “to show that value, and thus establish the measure of damages.” The rule thus enunciated and applied is undoubtedly correct, and is sustained by an abundance of authority. See Guillon v. Earnshaw, 169 Pa. 463; Puritan Coke Co. v. Clark, 204 Pa. 556.

The referee found specifically that the plaintiff and defendants entered into a written contract under which plaintiff was. ready and willing to furnish to defendants the minimum quantity of 20,000 screens. That defendants refused to take more than a portion of the amount agreed upon. That the screens manufactured were in substantial compliance with the agreement and were accepted as such by defendants. That at the time of the breach, the remainder of the minimum quantity of the screens which defendants refused to accept and pay for, were reasonably worth in the market, twenty cents apiece. These findings of fact cover the case, and the findings of the referee have the weight of the verdict of a jury: Ridge Ave. Pass. Ry. Co. v. Philadelphia, 181 Pa. 592; Snyder v. Rainey, 198 Pa. 356. The result is hard upon appellants, and it is evident that they got the worst of a bad bargain. Apparently they entered into the contract without sufficient investigation, and failed to guard themselves by proper specifications and guarantees. But the result is of their own doing, and the legal consequences of their action must be accepted. The question of damages was a difficult one for the referee. . As he says, the proofs were “vague and unsatisfactory.” He adds further, “While the burden is on the plaintiff to show either that the screens which defendants refused to receive had no selling value at that time, or if they had such value, to show what that value was, the law does not limit the evidence of such value to an actual sale with notice, and if there is any evidence of value which can be considered by a jury, it is the duty of a jury (and in this case the referee) to determine as best they can what was such value. In the present case the referee is unable to say that there is no evidence from which a jury would be allowed to ascertain the value.” Counsel for appellants contend that a resale of the goods is the usual and better method of establishing value. But it is plain that owing to the peculiar character of these articles, a public sale would only have resulted in great sacrifice. Counsel admit that under the authorities, the damages may be ascertained from other evidence than a resale, if it presents a better means of getting at the truth. It appeared that defendants declined to accept the screens at twenty cents each, and in fixing that amount as their value, the referee took the price at which plaintiff offered to sell, and gave the defendants the advantage of a price beyond that which they were willing to give. Under all the evidence, we think the referee did the best that could be done in getting at the value of the screens. At least, no method is pointed out by appellants which seems likely to have produced results any more favorable to them. The question of value was one of fact, and the referee has disposed of it as such.

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


source: Caselaw Access Project

author: Mr. Justice Potter,

license: Public Domain

text:
    Ferry, Appellant, v. Philadelphia Rapid Transit Company.

      Negligence — Master and servant — Evidence—Dangerous appliance— Elevators.

    1. In negligence cases to recover damages for death though there must, of course, be affirmative proof of negligence before recovery can be had, it is not always essential that there should be an eyewitness of the occurrence. The proof may be furnished by the circumstances themselves. The test is whether they are such as'to satisfy reasonable and well balanced minds that the accident resulted from the negligence of the defendant.
    2. In an action against an employer to recover damages for the death of a workman killed by an elevator in the place of employment, the case is for the jury where the evidence tends to show that the elevator was not equipped with warning signals, although defendant had been warned by the city inspector to supply them, that it was permitted to work by electricity quietly up and down in a space not guarded from access, where workmen were at liberty to walk or stand in the use of the floor, and apparently directly in the line of their approach to an opening or doorway leading to another portion of the building, that the decedent was found in this space, and at the doorway, crushed by the elevator, and that experts testified that the elevator was dangerous, and “a trap.”
    Argued March 28, 1911.
    Appeal, No. 350, Jan. T., 1910, by plaintiff, from judgment of C. P. No. 1, Phila. County, June T., 1907, No. 2,297, refusing to take off nonsuit in case of Catharine Ferry v. Philadelphia Rapid Transit Company.
    Before Fell, C. J., Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Reversed.
    Trespass to recover damages for death. Before Brégy, J.
    The facts appear in the opinion of the Supreme Court. The court below entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was in refusing to take off nonsuit.

      Michael J. Ryan, for appellant.
    — The jury fairly and legally could have inferred from the facts in evidence that the proximate cause of Ferry’s death was the lack of an inclosure about the elevator and of an automatic device to give warning when the elevator platform was descending: Tucker v. Pittsburg, etc., Ry. Co., 227 Pa. 66; McGuigan v. Beatty, 186 Pa. 329; Cunningham v. Frey, 225 Pa. 456; Millum v. Coal Co., 225 Pa. 214; Scranton v. Dean, 2 W. N. C. 467; Allen v. Willard, 57 Pa. 374; Lehner v. Rys. Co., 223 Pa. 208; Bucklin v. Davidson, 155 Pa. 362.
    The plaintiff was not exposing himself to such an obvious danger as would entitle the defendant to have the case taken from the jury: Coolbroth v. R. R. Co., 209 Pa. 433; Kuntz v. New York, etc., Ry. Co., 206 Pa. 162; Barthelmas v. Ry. Co., 225 Pa. 597; Trexler v. R. R. Co., 28 Pa. Superior Ct. 198; Esher v. Mining Co., 28 Pa. Superior Ct. 387; McKee v. Steel Co., 213 Pa. 333; Raymer v. Standard Steel Works, 216 Pa. 101; Studebaker v. Shelby Tube Co., 226 Pa. 239; McGeehan v. Hughes, 223 Pa. 524.

      Thomas Learning, with him William M. Stewart, Jr., for appellee.
    — The plaintiff failed to show any negligence on the part of the defendant company which caused the accident: Mixter v. Coal Co., 152 Pa. 395; Titus v. R. R. Co., 136 Pa. 618; Jones v. Scranton Coal Co., 211 Pa. 577; McGinnis v. Kerr, 204 Pa. 615; Alien v. Kingston Coal Co., 212 Pa. 54; Stringert v. Ross Twp., 179 Pa. 614; Kelly v. Union Traction Co., 211 Pa. 456; Price v. R. R. Co., 202 Pa. 176; Ott v. Boggs, 219 Pa. 614.
    The plaintiff failed to show a case clear of contributory negligence: McGinnis v. Kerr, 204 Pa. 615; McDonald v. Rockhill Iron & Coal Co., 135 Pa. 1.
    July 6, 1911:
   Opinion by

Mr. Justice Potter,

In this action, Catharine Ferry sought to recover damages for the death of her husband, alleged to have been due to the negligence of the defendant company. Daniel Ferry, the husband of plaintiff, was employed by the defendant company as foreman of laborers. On the morn-, ing of the accident, the men were employed in piling material in a storehouse. Mr. Ferry was seen with his men, and a few moments later was found crushed under a freight elevator, at the side of the building and in front of an opening or passageway through the wall, where the elevator was located. No one saw the accident, and there was no evidence as to how the deceased happened to be caught under the elevator, or as to what he was doing at that place. At the close of the testimony for the plaintiff, the trial judge entered judgment of compulsory non-suit, and from the refusal to take it off, this appeal has been taken.

The defendant company was charged with negligence in failing to guard the space in the floor of the building upon which the elevator descended, so as to prevent employees and others from walking unawares under the elevator when it was raised. Neglect of duty was also charged, in the failure to provide the elevator with a gong or bell or some device to give warning in advance of the descent of the elevator to anyone who might be under it. In the absence of these precautions, it was alleged that the operation of the elevator was dangerous, and rendered the place unsafe for the-workmen, and others. In actions of this character, there must of course be affirmative proof of negligence, before recovery can be had. But it is not always essential that there should be an eyewitness of the occurrence. The proof may be furnished by the circumstances themselves. The test is whether they are such as to satisfy reasonable and well balanced minds that the accident resulted from the negligence of the defendant. The discussion of this principle by Judge Agnew, in Allen v. Willard, 57 Pa. 374, is instructive. The doctrine there laid down was cited with approval and applied by our Brother Stewart in the late case of Tucker v. Railway Co., 227 Pa. 66, where he said with reference to the facts then before him, “No one witnessed the occurrence, and, therefore, no one can testify how it did actually happen. ■ The case is not very peculiar in this respect. Accidents in which life is lost not infrequently occur unwitnessed. Such fact in itself does not operate to protect one whose negligence can be shown from the general situation and circumstances to have been the operative cause. When these are such as to satisfy reasonable and well balanced minds that the accident resulted from the negligence of the party charged, liability attaches.” Other late cases in which, while there were no eyewitnesses of the accident, it was held that the circumstances were such as to require the submission of the question of negligence to the jury, are Henderson v. Refining Co., 219 Pa. 384, and Millum v. Coal Co., 225 Pa. 214. See also the opinion in McManamon v. Hanover Township, post, p. 000, and authorities there cited.

Turning now to the evidence upon the part of the plaintiff in this case, to gather the facts that shed light upon the accident, it appears that at the time, the defendant owned and occupied for storage purposes a large two-story brick building at the northwest corner of Fifteenth and Huntingdon streets, Philadelphia. The building was divided into two compartments by a brick wall running north and south, on each side of which was a car track parallel with the wall. In this wall, a short distance from the Huntingdon street wall, was an opening or doorway, which extended from the floor upward. Guideposts were erected at each side of this opening, which were joined together about three and a half feet from the floor by an iron bar. On the guideposts, a freight elevator, with a platform eight or ten feet square, ran to the second story, eighteen or twenty feet above. When lowered the elevator reached the floor, where the west track ran, but did not go below it. A witness described it as “nothing more than a plain platform elevator, a frame elevator — all open.” There were no guards to prevent people from passing into the space under it, when the elevator was raised. No gong was provided, nor was there any other device to give notice when the elevator was descending. The evidence showed that the only way such notice was given was by some one on the elevator calling out, as it came down, “Look out at the bottom.” The elevator was operated by electricity, and ran very quietly. The plaintiff showed by a city inspector, that he had ■ inspected this elevator on January 14, 1907, and had reported that it should have a gong attached to it, in order to warn persons below when it was about to descend. There was evidence to show that a copy of this report was sent the same day to the president of the defendant company, but no gong had been attached before March 2, 1907, the date of the accident. Expert witnesses testified that an elevator such as this, uninclosed and without gong or rope attachment, was not a reasonably safe device or apparatus.. One witness testified that among the trade such an elevator would be called a “trap.” The opening in the wall was at times used by the employees in the building as a passageway from one side of the building to the other. The only other way of reaching the east side, where the office was located, from the west side or vice versa, was by going out on Huntingdon street and around. Between the place where the men were working, and the opening in the wall, where the elevator was located, there was a pile of rails, fifteen or twenty feet high, which prevented the workmen from seeing the place. There was no load on the elevator, nor was there any person on it, when Ferry was discovered. He was found fastened between the elevator and the iron bar across the opening in the wall. According to one witness he appeared to have been actually under the platform of the elevator, and had tried to get out. Presumably the deceased was acting in the discharge of his duty as foreman of the laborers, at the time. There is also the presumption in the absence of any proof to the contrary, that he exercised due care under the circumstances, for his own protection. Something called him to the opening or doorway through the wall. It is a fair inference that while there, the elevator, operated by electricity, and moving quietly, descended unnoticed upon him and caught him. What brought the elevator down, did not appear. But it is argued that if due warning by means of a gong or bell or other suitable equipment had been given, the deceased could have escaped. We have then the fact of an elevator not equipped with warning signals, permitted to work quietly up and down in a space not guarded from access, but where workmen were at liberty to walk or stand, in the use of the floor, and which space was apparently directly in the line of their approach to an opening or doorway leading to another portion of the building. Then the decedent was found in this space, and at the doorway, crushed by the elevator. From a consideration of all circumstances disclosed by the evidence, we cannot say that reasonable and well balanced minds might not fairly conclude that the accident resulted from negligence by the defendant. Whether it did or not, was for the jury to say, as it was for them also to determine the question of contributory negligence upon the part of the person who was killed.

The motion to take off'the nonsuit should have been granted. The second assignment of error is sustained, and the judgment is reversed with a procedendo.


author: Mr. Justice Moschzisker,

text:
    Davis, Appellant, v. Fleshman.

      Demurrers — Amendment after demurrer — Failure to except — Appeals.
    1. If a party, after judgment upon demurrer to pleadings is given against Mm, under leave of court, amends the pleading demurred to, he acquiesces in the judgment upon the demurrer, and will not be permitted to assign it for error in the appellate court; particularly is this so when no exception has been taken.

      Appeals — Record facts not clear — Sufficiency of affidavit of defense— Discharge of rule for judgment.

      2. The action of the court below in discharging a rule for judgment for want of a sufficient affidavit of defense will not be held error on appeal where the. facts as shown upon the record are not plain and the appellate court cannot say that the statement of claim and affidavit of defense raise a pure question of law or that, under the peculiar circumstances of the case, the defendant was obliged to furnish a more specific statement of the facts constituting his defense. ■
    Argued March 28, 1911.
    Appeal, No. 80, Jan. T., 1911, by plaintiff, from order of C. P. No. 2, Phila. Co., March Term, 1905, No. 424, discharging rule for judgment for want of a sufficient affidavit of defense in case of Joseph A. Davis v. James B. Fleshman and Maurice H. Power, trading as J. B. Fleshman & Company.
    Before Fell, C. J., Mestrezat, Potter and Moschzisker, JJ.
    Affirmed.
    Assumpsit to recover $1,860 with interest from February 18, 1905.
    The statement of claim avers that the amount in question represents the sum total of a number of payments made by the plaintiff to the defendant copartnership on gambling transactions entered into between the plaintiff and the defendants; that these transactions were made by way of wagers that certain securities or commodities listed upon the market would rise or fall above or below given figures; that all the wagers were “open, undetermined and unexecuted transactions” on November 28, 1904, “when the defendants ceased doing business, and the contingent event, to wit, the rise or fall of the prices of the various stocks or commodities .... sufficient to determine the bet or gamble had never taken place, and the unknown event or casualty upon which the plaintiffs or defendants were to win or lose never happened;” that the bets were made and the money paid in New Jersey; that under the act of assembly of that state all money paid in such illegal transactions could be recovered back; and that a demand had been made for a refund of the money, which demand had been refused. A copy of the New Jersey statute expressly declared upon was attached to and made a part of the statement of claim.
    The defendant Power demurred that the New Jersey statute was contrary to the law and public policy of the commonwealth of Pennsylvania in that it permitted the courts to be used to recover money lost on a wager after the gambling transaction was a closed event. This demurrer was sustained with leave to the plaintiff to amend. The plaintiff took no exception to the judgment of the court sustaining the demurrer, but proceeded to amend his statement by adding an averment to the effect that the defendants “were liable under the law of Pennsylvania to the plaintiff” in the sum named. After amending his statement the plaintiff entered a rule upon the defendants to file an affidavit of defense. An affidavit and a supplemental affidavit of defense were filed by the defendant Power, in which he averred that while he was a member of the defendant firm he took no personal part in the conduct thereof and had no knowledge of the transactions in question; that his copartner and the manager of the office in which the bets were made were both dead and that he had not possession of and had never seen any of the books or records of the firm and did not know where they could be found; that the plaintiff had given testimony in another action at law involving the same matters referred to in the present suit in which he had admitted that certain of these bets or wagers were not open and undetermined transactions on the date aforesaid and had asserted that such transactions were thén closed; that “in reliance upon the said testimony of the plaintiff the defendant denies that all of the transactions above mentioned were open, undetermined and unexecuted transactions on November 28, 1904, and that the contingent event which was to determine the bet or gamble had never taken place, and the unknown event or casualty upon which the plaintiffs or defendants were to win or lose never happened.” And the defendant averred further, “defendant is advised by counsel and therefore avers that no affidavit of defense is necessary to so much of the plaintiff’s statement of claim as makes the statute of New Jersey .... the basis of the plaintiff’s right to recover. Defendant is advised by counsel that a demurrer heretofore filed to the plaintiff’s statement of claim has been sustained.”
    The plaintiff entered a rule for judgment for want of a sufficient affidavit of defense, which rule was discharged; whereupon he secured an exception. This exception is the only one upon the record, and the sole assignment of error is that “the court below erred in discharging the plaintiff’s rule to show cause why a judgment should not be entered against the defendant for want of a sufficient affidavit of defense.”

      Error assigned was in discharging plaintiff’s rule for want of affidavit of defense.

      Trevor T. Matthews, for appellant.

      B. F. Pepper, with him G. W. Pepper, for Maurice H. Power, appellee.
    July 6, 1911:
   Opinion by

Mr. Justice Moschzisker,

The appellant states two questions involved: “First: Is the New Jersey statute set forth in the plaintiff’s statement of claim enforceable in the state of Pennsylvania under art.' IV, sec. 1, of the constitution of the United States and the acts of Congress passed in pursuance thereof?” and, “Second: Is the New Jersey statute against the policy of the law of the commonwealth of Pennsylvania, and if so can the courts of this state refuse to enforce it?”

It is not necessary to determine either of these questions as they are not properly before us. Both of them were decided adversely to the plaintiff by the court below in disposing of the demurrer to the statement of claim, and instead of excepting to that ruling and standing upon the points at issue, the plaintiff amended his statement in such a manner as enabled him to base his claim for recovery upon the law of Pennsylvania rather than upon the New Jersey statute. Had the plaintiff desired to raise the question of the propriety of the ruling of the court below to the effect that the New Jersey statute declared upon by him was contrary to the- public policy of the law of Pennsylvania and would not be enforced in this state, he should have taken an exception so that he might at a proper time assign the ruling for error; since he did not pursue this course, but took advantage of the leave to amend, we must view his statement as though the plaintiff had acquiesced in that ruling and had elected to rely upon the law of this state alone. “If a party, after judgment upon demurrer to pleadings is given against him, under leave of court, amends the pleading demurred to, he acquiesces in the judgment upon the demurrer, and . .will not be permitted to assign it for error in the appellate court:” 2 Cyc. 645. See also Sheppard v. Shelton, 34 Ala. 652; Ellison v. Allen, 8 Fla. 206; particularly is this so when no exception has been taken.

We cannot say that the facts as shown upon the record before us are plain, or that the statement of claim and affidavits of defense raise a pure question of law; nor can we say under the peculiar circumstances of this case that the defendant was obliged to furnish a more specific statement of the facts constituting his defence. Hence, it cannot be held that the court below committed error in discharging the rule for judgment for want of a sufficient affidavit of defense.

Whether this is a case where the evidence will show that the illegal gambling transactions were closed and the accounts stated between the parties, and where the original deposits still remain with the broker so identified that they can be recovered back; or, an instance where the plaintiff is endeavoring to reclaim losses paid on illegal gambling transactions, which the law will not aid him to recover; or, one where the plaintiff dealt with the defendants as principals, and where the conduct of the parties demonstrates that as between themselves they treated the matter as closed, settled and ended, and where, all being sui juris, the law will look at the plaintiff as one who has paid his bet, the loss from which he will not be assisted to recover, cannot be satisfactorily ascertained from the information contained in the statement of claim and the affidavits of defense. We shall not attempt to adjudge any of these issues at this time; they can best be determined at trial where it will be possible to secure all the relevant facts in regard to the dealings between the parties and to reach a correct decision as to their rights.

The appeal is dismissed at the costs of the appellant, without prejudice, and the record is remitted with a procedendo.


author: Mr. Justice Elkin,

text:
    Commonwealth of Pennsylvania v. Marion, Appellant.

      Criminal law — Murder—Trial—Jurors—Peremptory challenge — Time to challenge — Act of July 9,1901, P. L. 629.

    1. In Pennsylvania there is no established rule of general application regulating the time and order of challenging jurors. Rules of court, or the established practice in the different counties control the method of procedure. When the jurors are called singly the Act of July 9, 1901, P. L. 629, requires the right of peremptory challenging to be exercised before each juror is sworn, and failure to exercise the right has been held to be a waiver of it. The time of exercising this right of chailenge depends upon the rules of court, or upon the established practice in the jurisdiction in which the case is being tried. Ordinarily there can be no peremptory challenge after the juror has been accepted, but this rule is subject to modification where the juror has been inadvertently passed and upon cross-examination facts are developed and cause shown sufficient to satisfy the trial judge that in the exercise of sound discretion the challenge should be allowed.
    2. In the absence of a statute otherwise providing, or of a rule of court, or of an established practice, fixing a time and order for exercising the right of peremptory challenge in criminal cases, the appellate court will not declare error on appeal the action of the trial court in a murder trial in permitting the commonwealth to peremptorily challenge a juror after the juror had been examined in the first instance by the district attorney and turned over unchallenged to the defense, cross-examined and accepted by the latter, it appearing that upon the cross-examination by the defendant and re-examination by the cqmmonwealth new facts were developed, as a result of which the court below in the exercise of its discretion allowed the challenge.

      Criminal law — Murder—Evidence—Admission of letter written by another than defendant.

    3. In a murder trial, the trial court does not commit reversible error in admitting in evidence a letter written by a friend at the defendant's authorization and request for the purpose of securing the possession of damaging letters which the defendant had written to a third party.

      Evidence — Nonprofessional opinions — Murder trials — Sanity of defendant — Discretion of court — Conduct of accused after killing.

    4. The general rule is that the opinions of nonprofessional witnesses as to the sanity or insanity of a person are competent only when given in connection with the facts upon which such opinions are based.
    5. A trial judge in a murder case does not abuse his discretion in excluding the opinion of nonprofessional witnesses as to the soundness of mind of the accused where these witnesses can scarcely be said to have had such acquaintance with or knowledge of the accused at or before the killing as to enable them to form a correct judgment as to his mental state.
    6. Evidence of nonexpert witnesses is admissible in a murder trial on the part of the commonwealth when not offered for the purpose of expressing an opinion as to the sanity or insanity of the accused but to prove that the witnesses observed his conduct and appearance after the killing and saw nothing to indicate that he was of unsound mind.
    Argued April 10, 1911.
    Appeal, No. 88, Jan. T., 1911, by defendant, from judgment of O. & T. Luzerne Co., Sept. Sess., 1909, No. 80, on verdict of guilty of murder of the first degree in case of Commonwealth v. George L. Marion.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Indictment for murder. Before Lynch, P. J.
    On August 20, 1909, George L. Marion, the defendant, shot and killed his common-law wife, Francis Lee, in an office in the city hall, at Wilkes-Barre, Pennsylvania. The opinion of the Supreme Court states the case.
    Verdict of guilty of murder of the first degree, upon which judgment of sentence was passed.
    At the trial Harry Brown testified as follows:

      “A. I asked him at that time anything I could do for him, any letters I could write. He said yes there was one and he took me to one side, as though to tell me something more secretly, and he said: ‘I would like you to write’ — talked in quite an audible tone of voice — I said, ‘A little quietly’ — he said, 'I want you to write’ — I can’t remember the name; I think Captain A. A. Walker, of Lake county, Illinois; Zion City was the city — he spoke as though the Captain had been a great friend of his, and he spoke of a letter he had written this captain or chief of police I believe Captain Walker is; he said he would like to have this letter? Q. Back? A. Back; he would like to have this letter back, as it might help him at this trial. I wrote to Captain Walker for the letter. Q. In pursuance of his request you wrote to Captain A. A. Walker, asking him to send back this letter that the prisoner had written to him before? ”
    Defendant’s counsel: I object to the district attorney leading the witness.
    The Court: Objection sustained.
    “Q. At all events you wrote to the Captain and asked him to return the letter?”
    Defendant’s counsel: Objected to, if your honor please.
    The Court: He said he did.
    “Q. Witness shown letter in envelope. State whether or not that is the letter and envelope which you sent to Captain A. A. Walker, Zion City, Illinois, at the request of the prisoner?”
    Defendant’s counsel: Object as to whether or not he did write the letter and send a letter; it is immaterial, unless it is written in the presence of the prisoner and submitted to him and sanctioned by him. The mere fact the defendant had requested him to write a letter to a particular person, it is immaterial whether or not he did write a letter.
    The Court: He may answer the question. Exception noted for defendant and bill sealed. [2]
    “Q. (Read by stenographer.) State whether or not that is the letter and envelope which you sent to Captain A. A. Walker, Zion City, Illinois, at the request of the prisoner? A. I believe so. Q. Witness shown letter again. State whether or not that is your signature? A. That is my signature, I believe.”
    The Court: Speak out loud so the jury can hear.
    The witness: Yes, that is my signature.
    The letter was as follows:
    “Wilkes-Barre, Pa., August 21, 1909.
    “Captain A. A. Walker,
    “Zion City, 111.,
    “Dear Sir: I am sending you a newspaper clipping which will explain itself. It was Mr. Marion’s desire that the copy of the paper be sent you. As a special favor bo him, he would be very grateful if you would send me that last letter he wrote you. He claims that having that letter in his possession would help his case considerably. He begs of you not to fail in this. I am doing everything in my power to help the poor, unfortunate fellow. He surely is in a horrible predicament and needs assistance if mortal man ever did. I hope to hear from you in a few days and trust you will grant him the favor asked. I am, very truly yours,
    “Harry A. Brown.”

      Errors assigned were (1) oveiruling defendant’s objection to the peremptory challenge by the commonwealth of juror E. J. Sweeney; (2) admission of letter, as above; (3-30) various rulings on evidence and points for charge.

      Charles B. Lenahan, with him Edwin B. Morgan, for appellant.
    — "While the district attorney may have had the right to challenge the juror for cause, at any time before he was sworn, he could not challenge him peremptorily after having accepted him: McFadden v. Com., 23 Pa. 12; Com. v. Evans, 212 Pa. 369.
    Letters or telegrams passing between a third party are incompetent unless it appears that they were authorized and approved by the party against whom they are to be used: 14 Ency. of Evi., 718.

      W. Alfred Valentine, district attorney, for appellee.
    The appellant had no right to the services of the juror Sweeney on his panel. A legal and impartial jury is all that he was entitled to: Com. v. Minney, 216 Pa. 149.
    An acceptance inadvertently made of a juror may be withdrawn and the juror challenged any time before he is actually sworn: State v. Roland, 38 La. Ann. 18; Murray v. State, 48 Ala. 675; Clarke v. Goode, 6 J. J. Marsh. (Ky.) 637; People v. Tweed, 13 Abb. Pr. (N. S.) 25; State v. Wren, 48 La. Ann. 803 (19 So. Repr. 745).
    The admission of the letter written by Harry Brown to Captain A. A. Walker which is complained of by the second assignment was clearly proper.
    July 6, 1911:
   Opinion by

Mr. Justice Elkin,

Appellant was indicted, tried and convicted on the charge of having committed a willful, deliberate and premeditated murder. The defense was insanity, which evidently did not impress the jury. There are thirty assignments of error, many of them without merit, and only a few need be considered to properly dispose of the case. The first assignment raises the question as to the right of the prosecuting officer to peremptorily challenge a juror under the following circumstances. When the juror was called, the district attorney proceeded to examine him on his voir dire, but concluded his examination in the first instance without exercising his right to challenge either peremptorily or for cause. At the conclusion of his examination, he said to counsel for defendant, “Take the juror.” Counsel for defendant after cross-examination said, “Swear the juror,” to which the district attorney objected, saying, “Wait, I object. I ask the privilege of re-examining this juror. I did not understand he was opposed to capital punishment.” The trial judge granted the request and permitted the juror to be re-examined. The questions were intended to develop the fact that the juror was opposed to capital punishment. The answers did not convince the court that there was cause for challenge, which was not sustained. The answers of the juror indicated an adverse feeling on the question of capital punishment but that this would not influence him in arriving at a proper verdict under the evidence. When the challenge for cause was refused the district attorney peremptorily challenged the juror, and this challenge was sustained by the court. The right to challenge peremptorily was put upon the ground that the juror had been passed after the first examination under a misapprehension of his answers to the questions propounded by the district attorney on the subject of capital punishment. Counsel for appellant contended in the court below and contends here that it was too late to exercise the right of peremptory challenge after the juror had been passed by the commonwealth and accepted by the defense. In other words that when a juror is passed by the prosecuting officer, the right to challenge peremptorily is absolutely and finally waived, and no matter what may be subsequently developed upon cross-examination, or otherwise, indicating that the juror may not have an open' mind on all the questions involved, and yet not sufficient to sustain a challenge for cause, the'commonwealth and the court are powerless to prevent such a juror being sworn, because he was not peremptorily challenged when first examined. This position denies to the trial judge any discretion whatever as to the time when the right of peremptory challenge must be exercised. Com. v. Evans, 212 Pa. 369, is relied on to support this contention. A superficial examination of that case gives some support to the argument pressed upon us by appellant here, but we are not convinced that the two cases are identical either in their facts or in the rules of - law which should govern. In that case this court held, where counsel for defendant in a criminal case, after having examined a juror turns him over to the commonwealth for cross-examination, and the commonwealth accepts the juror without cross-examination, the defendant will not then be allowed to challenge him peremptorily. Under the rules of court, or the practice in such cases, prevailing in the county from which that appeal was taken, the commonwealth examined the first juror on his voir dire, then turned him over to the defendant for cross-examination, the right to challenge peremptorily being exercised by the parties at the conclusion of their respective examinations. The second juror was first examined by the defendant, then turned over to the commonwealth for cross-examination, which was waived, and the juror ordered to be sworn, and thus the jurors were examined alternately by the commonwealth and defendant until the challenges were exhausted and the jury impaneled. The trial judge in that case ruled in substance, under the practice prevailing in the jurisdiction of his court, that the turning over of the juror by the defendant to the commonwealth for the purpose of cross-examination, was equivalent to an acceptance, and when the juror was accepted by the commonwealth without any cross-examination, it was too late for the defendant to peremptorily challenge. That ruling was affirmed here and there is no disposition to disturb it. It should be noted, however, in that case the learned trial judge followed what- wé must assume was the practice prevailing in his court in the challenging of jurors in such cases. There was therefore no abuse of discretion in ruling that the defendant under the circumstances should be treated as having waived the right to peremptorily challenge the juror in question. Again, after the defendant had concluded the examination of the juror and indicated an acceptance by turning him over to the commonwealth for cross-examination, nothing occurred to indicate that either party was misled or misapprehended what the juror said on his first examination. There was no cross-examination, nor were any new facts developed, but the juror was accepted without cross-examination by the commonwealth and directed to be sworn. The trial judge very pertinently remarked in that case that to have permitted a peremptory challenge under the circumstances would have given defendant the advantage of speculating on the chance of saving a challenge. In other words, he would save his challenge with the expectation that the commonwealth might do so, and if the commonwealth did not challenge, he would then assert his right to exercise the privilege. Such a fast and loose course of procedure in the selection of jurors finds no warrant in law, or in practice, and this is the thought intended to be emphasized in Com. v. Evans, supra. The right to peremptorily challenge cannot be denied either party, but it must be exercised at a proper time and this in our state depends upon statutory requirements, supplemented by rules of practice. The Act of July 9, 1901, P. L. 629, fixes the number of peremptory challenges to which the commonwealth and defendant are entitled in criminal cases, and provides when they shall be made in the following language: “All of which challenges shall be made and assigned by the commonwealth and defendant respectively when the juror is called.” It will be observed that the act is silent as to the examination and cross-examination of the juror on his voir dire, and as to the order in which the examination shall be made by the respective parties. In many counties rules of court regulating these details of practice have been adopted, and frequently a method of procedure has been established by long continued custom, understood by all parties, which answers the same purpose. The practice is not uniform throughout the commonwealth and frequently varies as to details. In some counties the rules require the commonwealth to first examine and then exercise the right of peremptory challenge before passing the juror to defendant for cross-examination and challenge. In other counties the practice is for the commonwealth and defendant to examine and challenge, alternately, while in some jurisdictions the examination and cross-examination are both concluded before either party challenges the juror called, and then the right of challenge is exercised alternately by the commonwealth and defendant until the jury is impaneled. These details may be regulated by rules of court, or by customary practice, if the rules or the practice be not inconsistent with the statute. In the absence of a statute the general rule in other jurisdictions is that the right of peremptory challenge remains until the juror is sworn, or that the court in its discretion may allow such challenges to be made even after a juror has been accepted if the subsequent facts developed upon cross-examination or in re-examination warrant the exercise of the discretionary power: 24 Cyc. 364. In many states the absolute right of peremptory challenge is allowed at any time before the juror is sworn even if there has been an acceptance by the party challenging or by both parties: Rogers v. State, 89 Md. 424; Hamper’s App., 51 Mich. 71; State v. Spaulding, 60 Vt. 228; People v. Kohle, 4 Cal. 198; Mann v. State, 23 Fla. 610; State v. Wren, 48 La. Ann. 803; State v. Pritchard, 15 Nev. 74; United States v. Davis, 103 Fed. Repr. 457. In other states the absolute right of peremptory challenge after acceptance is not allowed, but the court in its discretion may allow the right to be exercised until the jury is sworn, even if there has been an acceptance: Daniels v. State, 88 Ala. 220; Allen v. State, 70 Ark. 337; State v. Potter, 18 Conn. 166; Wiggins v. Com., 104 Ky. 765; State v. Scott, 41 Minn. 365; Dunn v. Wilmington & W. R. R. Co., 131 N. C. 446; State v. Crea, 10 Idaho, 88; Curnow v. Ins. Co., 46 S. C. 79. It has been frequently held that a peremptory challenge should be allowed after acceptance when the acceptance was inadvertently made: Murray v. State, 48 Ala. 675; Brewer v. State, 72 Ark. 145; State v. Vestal, 82 N. C. 563.

In Pennsylvania there is no established rule of general application regulating the time and order of challenging jurors. Rules of court, or the established practice in the different counties control the method of procedure. When the jurors are called singly the act of 1901 requires the right of peremptory challenging to be exercised before each juror is sworn, and failure to exercise the right has been held to be a waiver of it. The time of exercising this right of challenge depends upon the rules of court, or upon the established practice in the jurisdiction in which the case is being tried. Ordinarily there can be no peremptory challenge after the juror has been accepted, but this rule is subject to modification where the juror has been inadvertently passed and upon cross-examination facts are developed and cause shown sufficient to satisfy the trial judge that in the exercise of sound discretion the challenge should be allowed. In the case at bar there was no rule of court regulating the practice, nor does it appear that there was any established method of procedure as to the time of exercising the right of peremptory challenge. In several respects the present case differs in essential particulars from Com. v. Evans. In that case there was no cross-examination and no new facts developed, and hence nothing upon which to base a challenge that did not exist when the examination in the first instance closed. In that case the trial judge refused to allow the challenge and we think under the facts there was no abuse of discretion in so ruling. In the present case new facts were developed upon cross-examination as a result of which the court below in the exercise of its discretion allowed the challenge. In the absence of a statute otherwise providing, or of a rule of court, or of an established practice, fixing a different time and order for exercising the right of peremptory challenge, it was within the discretion of the court to allow the challenge under the circumstances. The act of 1901 not only contemplates that the practice should be regulated by general rules, but authorizes the trial courts to promulgate such rules. It would be a much more satisfactory practice if courts would adopt general rules regulating the challenging of jurors under the provisions of the statute, but this is a matter for the courts below and not for us.

The letter, the admission of which is made the subject of the second assignment of error, is evidentiary in character, and in the light of the uncontradicted testimony of Brown, we think was properly admitted in evidence. The defendant authorized and directed Brown to write the letter and suggested the purpose for which it was written. He made Brown his agent for this purpose and is presumed to have approved what his agent did within the scope of his authority. The letter shows on its face that Brown carried out his instructions. It was only a link in the chain of circumstances relied on by the commonwealth to ask a conviction, and we see no reversible error in its admission as evidence. Appellant was attempting to suppress evidence, that is to secure the possession of damaging letters which he had written to a third party, and he was making use of Brown to accomplish this purpose.

While there may be some doubt as to the exclusion of the testimony of several witnesses about which complaint is made, we have concluded there was no reversible error in excluding the testimony of these lay witnesses upon the question of insanity. All of these witnesses except one had not seen appellant until after the shooting, and the one had not seen him within two years of the killing. The witnesses had no personal knowledge of the facts upon which to base an opinion as to the sanity or insanity of the accused. The general rule is that the opinions of nonprofessional witnesses as to the sanity or insanity of a person are competent only when given in connection with the facts upon which such opinions are based. The excluded witnesses in the present case can scarcely be said to have had such acquaintance with or knowledge of appellant as to enable them to form a correct opinion as to his mental state. Under the facts the trial judge did not abuse his discretion in excluding,these witnesses.

The admission of the testimony complained of in the eleventh to the twenty-fourth assignments inclusive, raises another question. Appellant contends that when his witnesses were excluded these should not have been permitted to testify. These witnesses were not offered for the purpose of expressing an opinion as to the sanity or insanity of the appellant, but to prove that they observed his conduct and appearance after the shooting, and saw nothing to indicate that he was of unsound mind. Com. v. Gearhardt, 205 Pa. 387, is authority for the admission of this kind of testimony. While the distinction is not very clear, it has been recognized, and the trial judge evidently made it in the exclusion and admission of testimony in the present case. We do not feel warranted in convicting him of error in making a distinction under the authority of our own cases. The other assigmnents are without substantial merit and need no discussion.

We have examined with care the entire record and are satisfied the appellant had a fair and impartial trial upon the merits of his case, and that the jury returned a proper verdict.

Judgment affirmed and record remitted for the purpose of execution.


author: Per Curiam,

text:
    Ashley v. Lehigh & Wilkes-Barre Coal Company, Appellant.

      Negligence — Boroughs—Defective sidewalk — Liability of owner — Negligence of borough — Statute of limitations.

    1. In an action by a borough against a property owner to recover the amount of a judgment rendered against the borough in an action for personal injuries sustained by a fall on a defective sidewalk in front of the owner’s premises, the borough is entitled to recover where it appears that the sidewalk had been in a very dangerous condition for several years prior to the accident, and that the owner had been notified by the borough to repair it and had failed to do so. In such a case it is immaterial that the premises were leased at the time of the accident, and that at the beginning of the lease the sidewalk was in good condition.
    2. A borough cannot be defeated of its right to recover from a property owner, damages which it had been compelled to pay by reason of the owner’s defective sidewalk, by the fact that thejmrough had not, in pursuance of an ordinance, repaired the sidewalk at the defendant’s expense after the latter had been notified to do so, and had neglected to obey the notice.
    3. Where a borough has been compelled to pay a judgment recovered against it for personal injuries sustained by a fall on a defective sidewalk, the statute of limitations does not begin to run against the borough and in favor of the owner whose property abutted on the sidewalk, from the date of the accident, but only from the date of the judgment or payment thereof.
    Argued April 11, 1911.
    Appeal, No. 298, Jan. T., 1910, by defendant, from judgment of C. P. Luzerne Co., Oct. Term, 1907, No. 979, on verdict for plaintiff in case of Ashley Borough v. Lehigh & Wilkes-Barre Coal Company.
    Before Fell, C. J., Mesteezat, Pottee, Elkin and Moschziskee, JJ.
    Affirmed.
    Trespass to recover from a property owner the amount of a judgment which the plaintiff had been compelled to pay.
    At the trial the jury rendered a verdict for the plaintiff for $4,818.02.

      On motion for defendant n. o. v. Fuller, J., filed the following opinion:
    This action of trespass was brought August 24, 1907, by the borough of Ashley to recover the amount of a certain judgment and expenses connected therewith, which judgment had been recovered and collected from it on May 23, 1906, for damages sustained by one Anthony Gin ley and wife, on August 2, 1902, from a defective sidewalk in front of the defendant’s property situate in that borough.
    By the present motion for judgment non obstante veredicto, as upon the trial, defendant urges these points, viz.: (1) that the occupancy of its lessee exempted it from liability; (2) that the action is defeated by contributory negligence of the borough, in failing to exercise its municipal power and duty to make repair at cost of defendant; (3) that the action is barred by limitation, not having been begun until August 24, 1907, although the accident occurred August 2, 1902.
    1. Did the occupancy of its lessee exempt the defendant from liability?
    The uncontradicted evidence bearing upon this point showed that the property was leased to one Dubol in 1891, and continued to be in his occupancy as lessee from that time until after the accident, the lease probably being from year to year, although this does not appear; that the sidewalk at the time of the lease in 1891, was in good condition but that nothing was done to it afterward; that the lessee was liable for repairs; that an ordinance of the borough, enacted in 1890, expressly imposed upon owners of property the duty of repairing sidewalks, or on default the borough would do so, charging expense and penalty; that on June 6, 1902, the defendant under resolution of the borough council, was notified to repair the bad condition of the sidewalk in question but failed to do so, until after the accident, when it removed the boards composing the walk altogether.
    As the foundation for discussion on the subject, we will quote from Lindstrom v. Pennsylvania Company for Ins. on Lives & Granting Annuities, 212 Pa. 391, followed in Chroust v. Bldg. & Loan Assn., 214 Pa. 179, which define the’governing general principles, viz: “The plaintiff was injured by stepping into a hole in the pavement in front of property owned but not occupied by the defendant. Afc the time of the accident the premises were in the occupancy of a tenant under a lease from it. There was no evidence that the defect in the sidewalk had existed for any length of time. No one testified to having seen it before the day the plaintiff was injured. The hole was apparently due to the removal of a single brick. The case as presented is not one of a landlord who leases his property with a defect existing in the pavement at the time of the execution of the lease, nor is it one in which during the term the pavement becomes out of repair and though notified of its condition the landlord neglects to repair it, in disregard of his covenant in the lease to do so. The action is against a landlord which had neither actual nor constructive notice of the defect in the pavement in front of the premises in the occupancy of its tenant. A municipality though having the exclusive control of public streets, is not liable for injury resulting from an obstruction or defect in them unless it has had actual or constructive notice of the existence of the danger; .... An owner of property not occupied by him but in the exclusive possession of a tenant under a lease from him ought not to be and is not held to stricter accountability. The general rule is that when premises are in good repair at the time they are let and the landlord- is not bound by the lease to keep them in repair, the tenant in possession and not the landlord, is liable for an injury resulting from failure to repair the pavement in front of the premises. ... A tenant in possession may reasonably be held, from his going in and out of the premises, to have notice of an obstruction in the pavement in front of them as soon as it exists; but not so with the landlord, who may not even live in the same town or city or if living in it, far away from the property occupied by his tenant. From all that appears in the present case the brick may have been removed so shortly before the accident that even the tenant may not have noticed the hole and therefore was not negligent in not filling it up. The gist of plaintiff’s case is the alleged negligence of the defendant and she can establish this, if at all, only by showing that it had not filled up the hole after notice of its existence. No such negligence appears, and unless an owner of property out of possession of it, and while it is actually occupied by a tenant under a lease from him, is bound to keep constant watch over the pavement in front of it and the instant the same becomes out of repair to repair it, the plaintiff cannot recover. No such harsh and unreasonable rule can be applied to this landlord for no such rule exists.”
    And again (from Chroust v. Association, 214 Pa. 179): “Even if the obstruction was one which an owner in any event was bound to remove, an owner out of possession of premises which are in the actual occupation of a tenant cannot be held hable without proof of an obligation to repair and notice of the necessity of doing so.”
    Thus it appears that obligation and notice must concur in order to hold the landlord.
    The obligation may spring from private contract or from public duty.
    For defects which arise during the lease the lessor may be liable either by private agreement with his lessee or by public requirement, provided in each case he have notice, actual or constructive, of the defects.
    The public duty of the lessor is not divested by making the lease, but only qualified in respect to the notice, which on account of his nonoccupancy he should in all fairness receive.
    In the present case these features appear, viz.:
    a. An ordinance of the borough expressly imposed upon the defendant as owner, the duty of making repairs.
    b. The culpable condition of the sidewalk consisted of more than a particular isolated defect, and amounted in fact to a general state of decay which gave its own constructive notice.
    c. The borough gave to the defendant express notice of the condition with direction to repair, eight weeks before the accident.
    d. The defendant disregarded the notice.
    In our opinion it is a case in which obligation and notice concur, to hold the defendant liable notwithstanding the lease, if the other questions involved do not prevent such a conclusion.
    2. Is the action defeated by contributory negligence of the borough?
    “The principle underlying the right to be reimbursed for damages paid by a municipality in cases of accident, is that the owner or occupier of the property as the case may be is primarily liable to the person injured:” New Castle v. Kurtz, 210 Pa. 183.
    “The rule that one of two joint tort feasors cannot maintain an action against the other for indemnity or contribution does not apply to a case where one does the act or creates the nuisance and the other does not join therein but is thereby exposed to liability. In such cases the parties are not in pari delicto as to each other, though as to third parties either may be held liable. The claim is not for contribution but to recover from the property owner the amount the borough was compelled to pay in consequence of his neglect, to do what he should have done. If the injury resulted from the property owner’s neglect, the injured party has the right to elect as to which he will proceed against. Under the recent decision of the Supreme Court, in Dutton v. Lansdowne Borough, 198 Pa. 563, the municipality and property owner cannot be sued jointly:” Fowler v. Jersey Shore Borough, 17 Pa. Superior Ct. 366.
    Hence, notwithstanding the secondary liability of the municipality against which the person injured may at option proceed, and notwithstanding the principle of non-contribution among joint tort feasors, which would ordinarily shut off recourse, the negligent municipality is permitted to seek reimbursement from the negligent owner or occupier. While both may be equally responsible for the wrongful condition in their relation to the person injured thereby, they are not so in relation to each other, but the municipality stands upon a superior plane on account of the primary duty resting upon the owner or occupier.
    The liability of the municipality in these cases under ordinary circumstances is of a technical character, not involving positive delinquency on its part; but there are exceptional cases in which positive delinquency of the municipality is involved so that its right of reimbursement may be extinguished on the principle of contributing or participating negligence.
    Illustration of this may be found in the case of New Castle v. Kurtz, 210 Pa. 183, supra. Judgment there had been recovered against the city for damages sustained by a fall upon the sidewalk due to a ridge of ice, and the city sought reimbursement from the owner. There was a municipal ordinance which required the owner or occupier to remove ice and snow within forty-eight hours and provided that upon their failure the municipality would do the work and collect the expense with a penalty. The premises were occupied by a tenant and the owner was undoubtedly not liable for want of notice, but the Supreme Court held him not liable for the further reason that the municipality itself having undertaken by its ordinance to remove the defect and having failed to do so, was guilty of wrong which debarred it from being reimbursed.
    In the case at bar the ordinance provides “that when any .... sidewalk gets out of proper repair so as to become dangerous or a nuisance . . , . it shall be the duty of the owner or owners of such lot or lots where such danger or nuisance exists to have the said sidewalk put and kept in proper repair at his own proper cost and expense, and in case of neglect or refusal it shall be the duty of the burgess to cause, a notice to be served upon the per.son or persons so neglecting or refusing to have said repairs made forthwith and if not done within forty-eight house after the service of such notice then it shall be the duty of the burgess to have or cause the same to be done and charge the full cost of such repairs, together with twenty per centum advance thereon and collect the same as such claims are by law collected.”
    The defendant contends that the clear effect of the decision in New Castle v. Kurtz, 210 Pa. 183, is to defeat reimbursement where such an ordinance exists, and therefore to defeat recovery in the present case.
    It is plain, however, that the controlling consideration in that case was the absence of notice to the owner, which “negatived an equal liability basis upon which to build a right in-equity for subrogation against the owners of the property not in occupancy and without the slightest knowledge or information in regard to the condition of the pavement,” while the distinguishing consideration in this case is the presence of that very notice which preserved between borough and owner the “liability basis.” We are unable to believe that the Supreme Court intended to assert a proposition which would simply make municipalities the victims of their own case in adopting ordinances to secure performance of private duty for public benefit. Hence we hold that the action is not defeated by contributory negligence.
    3. Is the action barred by limitation?
    The accident occurred August 2,1902; the action against the borough was instituted on December 16, 1903; the notice to defend was given on May 5,1904; final judgment was recovered on April 30, 1906; actual payment by the borough was made on May 23, 1906, and the present suit was begun August 24, 1907.
    The defendant urges that the limitation is two years from the date of accident, August 2, 1902, citing the Act of June 24, 1895, P. L. 236, -and claiming that the municipality’s right of subrogation can only be coextensive with the liability .upon which it is predicated..

      The said act, however, in terms applies only to the claim of the person injured, and does not apply at all to the cause of action which belongs to the municipality for reimbursement.
    That cause did not arise and could not arise until final judgment at least, April 30, 1906, or perhaps not until payment, May 23, 1906, and the right of subrogation, if it may be properly designated such, could not come into existence before one or the other of those dates, both within two years of this action, brought August 24, 1907, if two years indeed and not six years be the limitation in actions of this character.
    It should be observed also that the notice to defend was given May 5, 1904, within two years of the accident August 2, 1902.
    We think the borough did all that the law requires to preserve the right of recourse, and we therefore hold that the action is not barred by limitation.
    The motion for judgment non obstante veredicto is denied, judgment upon the verdict is directed in favor of the plaintiff, and an exception to this action of the court is granted to the defendant.

      Error assigned was in overruling motion for defendant n. o. v.

      Arthur Hillman, with him Thomas W. Hart and Andrew H. McClintoch, for appellant.
    — Defendant was not liable because the premises in question were leased: Bears v. Ambler, 9 Pa. 193; Grier v. Sampson, 27 Pa. 183; Early v. Ashworth, 15 W. N. C. 142; Fulton Village v. Tucker, 3 Hun, 529; Wunder v. McLean, 134 Pa. 334.
    The borough should have made the repairs in accordance with the ordinance: St. Louis v. Ins. Co., 107 Mo. 92 (17 S. W. Repr. 637); Rochester v. Campbell, 123 N. Y. 405 (25 N. E. Repr. 937); New Castle v. Kurtz, 210 Pa. 183.
    This suit against the defendant having been brought on August 24,1907, and the accident happening on August 2, 1902, the plaintiff cannot recover, being prevented by the limitation of time within which suit should have been brought: New Castle v. Kurtz, 210 Pa. 183; Hutcheson v. Reash, 15 Pa. Superior Ct. 96.

      George L. Fenner, for appellee, cited:
    New Castle v. Kurtz, 210 Pa. 183; Smith v. Kingston Borough, 120 Pa. 357; Wilkinsburg Borough v. Home for Aged Women, 131 Pa. 109; Brookville Borough v. Arthurs, 152 Pa. 334; Chester v. Bank, 9 Pa. Superior Ct. 517; Mintzer v. Greenough, 192 Pa. 137.
    July 6, 1911:
   Per Curiam,

We concur in the conclusion stated in the opinion of the learned judge of the common pleas in discharging the rule for judgment non obstante veredicto.


text:
    Rittenhouse, Appellant, v. Newhard.

      Equity — Injunction—Failure to establish matter alleged.

    1. A bill in equity for an injunction to restrain the defendant from shutting off the flow of water in a pipe is properly dismissed where there is a failure to establish the agreement between the plaintiff and defendant for the maintenance of the supply on which the right to equitable relief was based.

      Equity — Equitable relief — Matter not alleged.

    2. Where the right to the equitable relief prayed for in a bill in equity is based upon an agreement between the parties, which agreement was' not proven, a contention that the bill should be sustained on the grounds of ratification and estoppel is without merit where such grounds are not averred in the bill. Relief cannot be granted for matter not alleged.
    Argued April 11, 1911.
    Appeal, No. 303, Jan. T., 1911, by plaintiffs, from decree of C. P. Columbia Co., Sept. T., 1906, No. 2, dismissing bill in equity in case of Tillmon Rittenhouse et al. v. Peter H. Newhard.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Evans, P. J.
    The opinion of the Supreme Court states the case.
    A preliminary injunction was issued which was subsequently dissolved and the bill dismissed.

      Error assigned was the decree of the court.

      Fred Ikeler, for appellants.

      Grant Herring, with him W. E. Elmes, for appellee.
    July 6, 1911:
   Per Curiam,

This bill was for an injunction to restrain the defendant from shutting off the flow of water in a pipe that extended from a spring on his land to the land of an adjoining owner, and thence to the plaintiffs’ properties in a village near by. The rights claimed by the plaintiffs were based on the allegation that a verbal agreement had been made between them and the defendant for the construction and maintenance of the line of pipe. This allegation was not sustained by proof.

The material findings of fact are that prior to 1888 the water from a spring on the defendant’s land ran in an open channel some 1,500 feet in length to the property of the Mountain Grove Camp Meeting Association where it was collected in a small reservoir for the use of the association. From that reservoir, a pipe extended to the houses of the plaintiffs. In 1888, the association wishing to obtain a purer supply of water, entered into a verbal agreement with the defendant by which it was permitted to enter on his land and dig a ditch and lay a pipe from the spring to the line of its property and it agreed to lay a branch pipe from the main line on defendant’s land to his buildings and to provide a hydrant and keep it in repair. This agreement was to last as long as the association continued to hold camp meetings on its land and no longer. The association purchased the materials necessary and subsequently entered into an agreement with the plaintiffs under which they assisted in the installation and maintenance of the pipes and hydrant. To this agreement the defendant was not a party, and he had no knowledge of it at the time it was made. The association was dissolved and went out of existence in 1901.

The bill was properly dismissed because of the failure to establish the agreement on which the right to equitable relief was based. The contention that the bill should have been sustained on the grounds of ratification and estoppel is without merit. There was proof of neither, nor of any facts from which either would arise. But if there had been proof, the bill could not have been sustained. Relief cannot be granted for matter not alleged: Luther v. Luther, 216 Pa. 1.

The decree is affirmed at the cost of the appellant.


text:
    Vanderslice, Appellant, v. The Irondale Electric Light, Heat & Power Company.

      Waters — Damages by flooding — Raceways—Permanent damages — Loss by subsequent grantee — Res adjudicata.

    Where a landowner brings an action against a corporation to recover damages for permanent injury done his land by the seepage of water from a raceway operated by the defendant and recovers damages for the entire destruction of the beneficial use of all his flooded land, a subsequent grantee of the land is not entitled to maintain an action against the corporation to recover for the later loss of crops or injury to the use and occupation of the same land where there is no evidence to show any change in the condition of the raceway or increase in the seepage therefrom, or that any more of the land was flooded.
    Argued April 11, 1911.
    Appeal, No. 322, Jan. T., 1910, by plaintiff, from judgment of C. P. Columbia Co., Sept. T., 1909, No. 260, for defendant non obstante veredicto in case of George Yanderslice v. The Irondale Electric Light, Heat & Power Company.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Trespass for damages to land.
    The facts appear in the opinion of McClure, P. J., specially presiding, as follows:
    There is no rule of law which will permit one man to take possession of another’s property, and then force him to accept damages in lieu of his right to recover the possession of it. He cannot compel him to part with his property even for a full price: McCoy v. Danley, 20 Pa. 85. Accordingly, one who has been deprived of the use of his land by the casting of water or other substance upon it, may bring successive actions for damages to the use, and thus compel the abatement of the nuisance. He is not bound to assume that the structure which causes the injury will be a permanent one, and therefore, sue for all damages for past and future injury to his land; but he can regard the nuisance as of a transient character, and instead of bringing an action for the whole injury to the value of his property, he may sue for the amount of such injury as he suffers from the continuance of the nuisance: C., B. & Q. R. R. Co. v. Schaffer, 124 III. 112 (16 N. E. Repr. 239). An owner has the right, however, to elect to treat an obstruction in a stream which backs water upon his land, or, as here, a raceway which casts water upon it, as permanent in character, and gauge his recovery accordingly. If he so elects, declares for a permanent injury to his freehold, offers evidence in support of it, has his damages assessed on the basis of a total loss of the land flooded, and receives satisfaction at the hands of the defendant, how can he again recover damages for a continuing injury to the same land, caused by the same dam or raceway, without evidence of aggravation? If he can, then what is the measure of damages? Can he compel the defendant to pay him the market value of his land a second time, or will the recovery be limited to the value of the crops he might have raised upon it since the former action? If the latter, upon what principle should a wrongdoer be forced to pay for the use of that for which he has paid the owner full value? If a party for an injury to his property elects to proceed by an action of trespass for its value, he in effect abandons his property to the wrongdoer; so that when judgment is obtained, and satisfaction made, the property is vested in the defendant by relation as of the time of the taking or conversion: 1 Herman on Estoppel, 214. So also, the doctrine as to realty is that, where the injury is of a permanent character and goes to the entire value of the estate, the whole injury is suffered at once, and no other action can be maintained for the continuance of the injury: 1 Herman on Estoppel, 235. And the rule is the same where the injury to the property resulted from a cause which may not be permanent in its character, if it was treated as permanent by the parties to the' action: Hartman v. Incline Plane Co., 11 Pa. Superior Ct. 438.
    Albertus W. Welliver, the plaintiff’s grantor, in his action against the defendant, declared that the water seeping through the banks of the defendant’s raceway destroyed his crops, flooded his system of underdrains, and permanently rendered about eight acres of his land unproductive and untillable; that his fields were permanently damaged, rendered boggy, swampy and unfit for cultivation, depriving him of the use of the same for agricultural purposes, etc.
    Welliver offered no proof of loss of his crops, or the cost of restoring his system of underdrains, nor of the cost of draining off the water which was then upon his fields, but he treated the race as a fixture, and the percolation through its banks and the flooding of his land of a nature that would continue for all time to come, and by proving the cost of the prevention of the flooding to exceed the market value of his land he thereby established the market value as the measure of his damages.
    Had the defendant preferred to reconstruct its raceway so as to prevent future percolation rather than to pay damages for a permanent injury to the plaintiff’s-land, it could have objected to his evidence of the cost of prevention, driven him to proof of the cost of restoration alone, and thus limited his recovery to damages which had accrued prior to the trial: Aldworth v. Lynn, 153 Mass. 53 (26 N. E. Repr. 229). In which event the judgment would have been no bar to the present action. But the defendant interposed no objection to the introduction of this evidence, and the plaintiff on the basis on which he staked his claim, viz., a permanent injury to his freehold, was permitted to recover damages for the entire destruction of the beneficial use of all his flooded land. This should, and in our opinion did, end further liability to Welliver: Hartman v. Incline Plane Co., 11 Pa. Superior Ct. 438; and Vanderslice, his grantee, cannot be heard to say that he received no compensation for future injuries. He took the land burdened with the seepage from the race.
    In this action the word “permanent” does not appear in the declaration, and the proof went to the loss of the crops or injury to the use and occupation of the same land since the former trial. No change was shown in the condition of the raceway, nor increase in the seepage therefrom; and, while the water had risen a little higher on plaintiff’s land, no more of it was flooded. We are accordingly of the opinion that the defendant’s second point ought to have been affirmed, and the plaintiff should not have been permitted to recover compensatory damages, because his predecessor in title elected to treat the seepage as permanent in character and had already recovered at the hands of the defendant full compensation for past and future injuries to his flooded land. It follows that exemplary damages should not have been allowed, for the defendant had done the plaintiff no wrong.

      Judgment is now directed to be entered for the defendant non obstante veredicto.

      Error assigned was in entering judgment for defendant n. o. v.

      Fred Ikeler, with him T. J. Vanderslice and H. Mont. Smith, for appellant.

      William H. Sponsler, with him Albert W. Huy, for appellee.
    July 6, 1911:
   Per Curiam,

The judgment is affirmed on the opinion of Judge McClure, specially presiding.


author: Mr. Justice Moschziskeb,

text:
    McManamon, Appellant, v. Hanover Township.

      Negligence — Contributory negligence — Municipalities—Streets and. highways — Pedestrian—Fall over embankment — Choice of two ways— Death — Circumstantial proof.

    1. A person who uses a street or highway that is thrown open for public travel, knowing at the time that there is a safer route which he may take to reach his destination, is not necessarily guilty of negligence because he does not take the safer route. It is only when the danger is so great and apparent that an ordinarily prudent person would regard it as dangerous, and therefore avoid it, that a trial court can say, as matter of law, that the person .using the more dangerous route is guilty of contributory negligence. If the alternative route has dangers of its own, and the dangers of the route actually taken are not so great and obvious as to deter the general public and ordinarily prudent and careful people from using it, the question of the contributory negligence of a person injured in using it is a question for the jury.
    2. In an action against a township to recover damages for the death of plaintiff’s husband, who was lulled by falling over an unguarded vertical cut on the main street of defendant township, the case is for the jury where there is evidence to show that there was a footpath on top of the cut about 200 feet in length and about six feet in width running up from and back to the level portions of the street; that this path had been open to the public and used as a way for travel or sidewalk by the residents of the community for a long period of years; that the decedent had lived with his family for about three years in a house on the top of the cut and had been in the habit of using the pathway to and from his home; that the path was the usual way for the people in the community to reach the houses on the embankment; and that the only other way to the home of the decedent was by a roundabout course of nearly twice the distance, used by wagons with heavy loads, much of it over unpaved, unopened and unlighted streets and alleys, which course, for these reasons, was beset by its own dangers and was not the one customarily used by pedestrians for the purpose of reaching houses on the cut.
    3. In such a case the fact that no one saw the decedent fall and that, therefore, the manner of the accident could only be determined by inferences from the known facts is not sufficient to prevent a recovery where the plaintiff introduces evidence tending to show that on the night of the occurrence the decedent left his home at about a quarter of nine o’clock; that he was seen by a friend returning to his home by way of the path over the embankment a half hour afterwards, and was found dead at the foot of the embankment ten or fifteen minutes after that; that the position and condition of his body plainly indicated that he had broken his neck by falling over the embankment into the cut; and that upon the night of the accident there was snow and ice upon the ground in the vicinity; and where there is no evidence to show that the decedent was in other than a sober condition.

      Negligence — Contributory negligence — Burden of proof.

    4. The plaintiff in a negligence case is not required to prove negatively that he himself was not guilty of any negligence which contributed to the result. That burden is on the defendant, unless the evidence adduced by the plaintiff discloses contributory negligence.
    Argued April 12, 1911.
    Appeal, No. 31, Jan. T., 1911, by plaintiff, from judgment of C. P. Luzerne Co., Oct. T., 1908, No. 293, on verdict for defendant by direction in case of Mary McManamon v. Township of Hanover.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Reversed.
    Trespass to recover damages for death. Before Ferris, J.
    • The facts appear in the opinion of the Supreme Court.

      The court directed a verdict for the defendant and judgment thereon. Plaintiff appealed.

      Errors assigned were in directing a verdict for the defendant.

      Thomas F. Farrell, with him S. J. Strauss, for appellant.
    — Under the evidence it was properly for the jury to say whether the defendant was guilty of negligence in maintaining in the highway the unguarded cut immediately parallel to the footway upon which McManamon was walking when he fell to his death: Forker v. Sandy Lake Borough, 130 Pa. 123.
    Under the evidence it was properly for the jury to determine the question of contributory negligence on the part of the deceased, (a) whether he was justified in using the footway at night, and (b) whether in so using it he was in the exercise of due care on the night in question: Scranton v. Dean, 2 W. N. C. 467; Allen v. Willard, 57 Pa. 374; Wall v. Pittsburg, 205 Pa. 48; Coolbroth v. R. R. Co., 209 Pa. 433.
    We submit that in all the cases in which the rule of choice of ways has been enforced the ways must be both reasonable and safe, and they are usually parallel to each other. The doctrine has never been applied to cases like that at bar: Allen v. Warwick Twp., 9 Pa. Superior Ct. 507; Haven v. Bridge Co., 15.1 Pa. 620; Purcell v. Riebe, 227 Pa. 503.

      Abram Salsburg, with him Peter J. McCormick, for appellee.
    — A person who knows a defect on a highway and voluntarily undertakes to .test it when it could be avoided, cannot recover against the municipal authorities for losses incurred through such defect: Hill v. Tionesta Twp., 146 Pa. 11; Forks Twp. v. King, 84 Pa. 230; Haven v. Bridge Co., 151 Pa. 620.
    The degree of contributory negligence is not an inquiry; any negligence on the part of the plaintiff will bar his rec'overy: Monongahela v. Fischer, 111 Pa. 9; Erie v. Magill, 101 Pa. 616.
    July 6, 1911:
   Opinion by

Mr. Justice Moschziskeb,

On February 1, 1908, at about 9:30 o’clock in the' evening Patrick McManamon was killed. His widow brought an action on behalf of herself and the children of the deceased to recover damages for the loss of his life, claiming that his death was due to the negligence of the defendant township. The court below gave binding instructions for defendant, judgment was entered accordingly, and the plaintiff has appealed. The sole question is, Was there sufficient evidence to justify the submission to the jury of the issues as to the negligence of the defendant and the contributory negligence of the decedent?

Had the evidence been submitted and had the jury taken a view favorable to the plaintiff, drawing the inferences contended for by her, they might have reached the following conclusions: That the decedent was killed by falling over an unguarded vertical cut on the main street of the defendant township; that this cut had existed in its unguarded state for some years; that it was about twelve feet in height at the point where the decedent fell; that on the top of the cut there was a footpath about 200 feet in length running up from and back to the level portions of the street; that this path had been open to the public and used as a way for travel or sidewalk by the residents of the community for a long period of years, even prior to the date of the cut; that at the point of the accident the path was about six feet in width from the fence line to the edge of the cut; that the street in question was plotted of a width of fifty feet, and actually measured from fence line to fence line forty-nine feet, the roadway between the curbs being thirty-three feet, and the curb being set “right up against the bank” of the cut; that the decedent had lived with his family for about three years in a house on the top of the cut and had been in the habit of using the pathway, to and from his home; that the only other way to the home of the decedent was by a roundabout course of nearly twice the distance, used by wagons with heavy loads, much of it over unpaved, unopened and unlighted streets and alleys, which course for these reasons was beset by its own dangers and was not the one customarily used by pedestrians for the purpose of reaching the houses on the cut; that on the night in question the decedent left his home at about a quarter of nine o’clock; that he was seen by a friend returning to his home by way of the path over the embankment a half hour afterwards, and he was found dead at the foot of the embankment ten or fifteen minutes after that; that the position and condition of his body plainly indicated that he had broken his neck by falling over the embankment into the cut; that upon the night of the accident there was snow and ice upon the ground in the vicinity; and that there was no evidence to show that the decedent was in other than a sober condition. No one saw the decedent fall, and how the accident happened can be determined only by inferences to be drawn from the known facts. As before stated, the jury might have found the facts as we have outlined them, and hence it could not be said as a matter of law that the defendant township was not guilty of negligence in failing to guard this vertical cut on a populated main street.

The remaining question is, Under the circumstances, could it be ruled as a matter of law that the decedent was guilty of contributory negligence in using this unguarded path along the edge of the cut? The path was the usual way for the people in the community to reach the houses on the embankment, and the mere fact that there was another way, or that the way chosen had points of danger which must have been known to the decedent, would not be enough necessarily to convict him of contributory negligence.

A pedestrian in a city on a dark night well acquainted with the unsafe condition of the sidewalk, is not guilty of contributory negligence in taking it as the direct way to his home instead of' some other way also unsafe, if he acted with that care with which a prudent man should act; and this is a question of fact for the jury:” 5 Thompson on Negligence (2d ed), 734, sec. 6273. In Altoona v. Lotz, 114 Pa. 238, the defects in the sidewalk were well known to the plaintiff at the time he was injured, and the defense was that he had failed to show a case clear of contributory negligence, it being suggested there, as it is in the present case, “that the plaintiff could have conveniently found a safer way” to reach his home. We held the defense insufficient and affirmed a judgment for the plaintiff. In Musselman v. Hatfield Borough, 202 Pa. 489, reversing a judgment of nonsuit, we said: “She (the plaintiff) knew of 'the break on each side of the board walk and was watching for it, but the night being dark she did not see it, and consequently stepped outside the board walk and fell. There was one other way by which she could have reached her home. . . . Defendant averred contributory negligence on the part of the plaintiff, in choosing for her way home a pavement which she knew was unsafe. ... It is often difficult to apply the law to the varying facts of the different cases and say which case is for the court and which for the jury, but here the risk was relative; whether she should in the exercise of care, have walked in the middle of the street, or have gone by the turnpike, or have walked on Market street pavement .... depended on a comparison of risks.” In Steck v. Allegheny, 213 Pa. 573, we said: “A person who uses a street or highway that is thrown open for public travel, knowing at the time that there is a safer route which he may take to reach his destination .... is not necessarily guilty of negligence because he does not take the safer route. It is only when the danger is so great and apparent that an ordinarily prudent person would regard it as dangerous, and therefore avoid it, that a trial court can say, as matter of law, that the person using the more dangerous route is guilty of contributory negligence. If the alternative route has dangers of its own, ..... and the dangers of the route actually taken are not so great and obvious as to deter the general public and ordinarily prudent and careful people from using it, the question of the contributory negligence of a person injured in using it is a question for the jury.”

It is only where the facts plainly show that the injured person had a choice of two ways, one of which was safe and the other of which was subject to risks and dangers, and that he voluntarily chose the latter, that it can be said as a matter of law that he was guilty of contributory negligence. Such were the cases of Hill v. Tionesta Twp., 146 Pa. 11, and Purcell v. Riebe, 227 Pa. 503, depended upon by the defendant.

It is necessary for one to observe all the precautions required of an ordinarily prudent person before he can hold another for an act of alleged negligence, but positive evidence that he observed such precautions is not required: Lehigh Valley R. R. Co. v. Hall, 61 Pa. 361. “Generally, the direction is that the jury is to judge from the surrounding circumstances, whether the plaintiff exercised the caution which ought to mark the conduct of a prudent person:” Beatty v. Gilmore, 16 Pa. 463. “As the love of life and the instinct of preservation are the highest motives for care in any reasoning being, they will stand for proof of care until the contrary appears:” Cleveland & Pitts-burg R. R. Co. v. Rowan, 66 Pa. 393. “It was never intended.....that the plaintiff .... must .... prove negatively that he himself was not guilty of any negligence which contributed to the result:” Bradwell v. Pittsburg, etc., Ry. Co., 139 Pa. 404. “That burden is on the defendant, unless the evidence adduced by her (the plaintiff) discloses contributory negligence:” Coolbroth v. Penna. R. R. Co., 209 Pa. 433. “From the fact that a person, injured upon a defective highway, was so well acquainted with its condition that he might be able to pass over it safely by the use of ordinary precaution, it does not necessarily follow, as a matter of law, that he was conclusively guilty of contributory negligence; the circumstances of the case may make this a question for the jury:” Forker v. Sandy Lake Borough, 130 Pa. 123.

We find two Pennsylvania cases in which death resulted from an unseen fall and a recovery was allowed. First, Allen v. Willard, 57 Pa. 374, where we said: “That he fell into the pit ... ., thereby breaking his neck, and that the excavation was unguarded at the place where he fell .... is without contradiction or doubt. But it is argued that his fall is not accounted for, and that the fact that his death was caused solely by the negligence of the defendant is not established by sufficient evidence. . . . Now all of these facts certainly tend to prove that Willard lost his life by falling accidentally into this open unprotected pit. . . . The natural instinct which leads men in their normal senses to avoid injury and preserve life is an element of evidence. In all questions touching the conduct of men, motives, feeling and natural instincts are allowed to have their weight, and to constitute evidence for the consideration of courts and juries. Adding these to the circumstances of this case, we cannot say that the evidence was insufficient to go to the jury.” Next, in Scranton v. Dean, 2 W. N. C. 467, “The body of Dean was found below a bridge along the side of which there was no fence; there being no evidence of the manner or circumstances of his death: Held, that the presumption of law is, in the absence of proof to the contrary, that the deceased exercised ordinary care.” We there said, “The strain of the case .... fell upon the manner of the accident, leaving the question one of probability whether Dean fell over the wall or abutment by accident and whether he contributed to the fall by any negligence of his own. These were questions to be decided by the jury from the circumstances attending the place where the body was found, its position and condition, and from the character, habits and general conduct of the man himself. ... It is for them to weigh the probabilities of an accidental fall as Dean went home, the darkness of the night, his knowledge of the way, the effect of a blunder, or a misconception of his position as he was entering upon the abutment, the probable condition of his senses, his instinct of self-preservation, and all the circumstances attending the place where he was found.” Also see Ferry v. Phila. R. T. Co., decided at. this term, and authorities there cited.

We conclude that there was enough in the evidence produced to justify the submission of the issues to the jury and that error was committed in giving binding instructions for the defendant.

The assignments are sustained and the judgment is reversed with a venire facias de novo.