author: Mr. Justice Mestrezat, Mr. Justice Potter,

text:
    Wilson v. Wernwag, Appellant.

      Contract — Construction of contract — Sale of goods on commissions— Breach of contract — Measure of damages — Profits.
    Where the meaning of an agreement is doubtful, its terms are to be considered in the light thrown on them by approved or admitted illustrative facts. The situation in which the parties stand, the necessities for which they would naturally provide, the convenience they would probably seek to secure, and the circumstances and relations of the property in regard to which they have negotiated, are all elements in the interpretation of an ambiguous contract.
    In an action on a contract, it appeared that plaintiff was a manufacturer, and that defendants were the sole agents for the selling of plaintiff’s goods. Late in the year 1890, plaintiff submitted to defendants certain propositions in writing. The propositions were made by plaintiff as stated in the writing, “in consequence of the great loss which would be incurred by the sudden changing of his commission house.” One of the propositions was as follows: “ If defendants will agree to remain in business for one year from January 1, 1891, he (plaintiff), will guarantee the entire business against losses by bad debts for one per cent.” This proposition was accepted, and defendants continued in business during the entire year 1891. Late in the year 1891, plaintiffs made this proposition in writing: “Plaintiff hereby agrees to guarantee defendants against all losses from failures, for and in consideration of the sum of one per cent upon the net amount of their sales for the year 1892.” The defendants accepted this' offer orally. They continued to sell plaintiff’s goods until April 1, 1892, when they went out of business. Another firm took their place, accepting transfer from defendants of their accounts, and conducted under their own name the business formerly carried on by the defendants, employing the same manager, using the same store, and the same salesmen and clerks, and conforming substantially to the same rules as to giving credit. Held, (1) that the contract between the parties required the defendants to continue the sale of plaintiff’s goods during the whole of the year 1892; (2) that for the breach of the contract plaintiff was entitled to recover from defendants one per cent of the total sales, less the losses; and (3) that the sales made and the losses incurred during the remainder of the year 1892, while the business was conducted by the firm which succeeded the defendants, could be taken as the data on which to estimate the commission or profits due the plaintiff. ,
    Damages may be recovered for loss of profits caused by a breach of contract, and they are never excluded simply because they are profits. If it reasonably appear that profits would have been made had the terms of the contract been observed, and that their loss necessarily followed its breach, they may be recovered as damages if the evidence is sufficiently certain and definite to warrant the jury in estimating their extent.
    Potter and Elkin, JJ., dissent.
    Argued Jan. 8, 1907.
    Appeal, No. 96, Jan. T., 1906, by defendants, from order of C. P. No. 1, Pbila. Co., Pec. T., 1895, No. 900, dismissing exceptions to report of referee in case of Thomas H. Wilson v. Theodore Wernwag and T. Russell Pawson, trading as Wernwag & Pawson.
    Before Mitchell, C. J., Fell, Brown, Mestkezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit for breach of contract.

      The case was referred to Charles E. Morgan, Ji\, Esq., as referee under act of May 14, 1874. The referee filed a report in favor of plaintiff for $7,389.44.
    The facts are stated in the opinion of the Supreme Court.

      Errors assigned• were in dismissing exceptions to referee’s report, and in entering judgment for plaintiff.

      Peter Boyd, for appellant.
    Neither under the facts nor the decisions ought the agreement made by Thomas H. Wilson, dated November 10, 1891, to be construed as an agreement binding upon Wernwag & Dawson to remain in business during the entire year 1892, or to make any given amount of sales: Lummis & Co. v. Devine, 9 Pa. Superior Ct. 349; Aspdin v. Austin, 5 Ad. & Ellis (N. S.), 671; Ex parte Maclure, L. R. 5 Chan. App. 737; Coffin v. Landis, 46 Pa. 426; Blackstone v. Buttemore, 53 Pa. 266; Rightmire v. Hirner, 188 Pa. 325.
    Even if by any possibility the agreement should be construed as binding upon Wernwag & Dawson to remain in business during the entire year of 1892, yet the plaintiff ought not to be awarded as damages the prospective profits that he might have earned from the time of the breach of contract: Rightmire v. Hirner, 188 Pa. 325; Stern v. Rosenheim, 67 Md. 503 (10 Atl. Repr. 221); Washburn v. Hubbard, 6 N. Y. Superior Ct. 11; Rogers v. Davidson, 142 Pa. 436; Reiter v. Morton, 96 Pa. 229; Stern v. Rosenheim, 67 Md. 503 (10 Atl. Repr. 221); Washburn v. Hubbard, 6 N. Y. Superior Ct. 11; Hair v. Barnes, 26 Ill. App. Ct. 580; Pennypacker v. Jones, 106 Pa. 237; Kinports v. Breon, 193 Pa. 309; McKnight v. Ratcliff, 44 Pa. 156; Rightmire v. Hirner, 188 Pa. 325.
    The loss of profits can only be compensated for in damages when they are direct and immediate fruits of the contract, and must have been in contemplation of the parties when the contract was made: Kinports v. Breon, 193 Pa. 309; McConaghy v. Pemberton, 168 Pa. 121; Hutchinson v. Snider, 137 Pa. 1; Billmeyer y. Wagner, 91.Pa. 92; Coal Co. v. Poster, 59 Pa. 365; Fleming v. Beck, 48 Pa. 309; Fessler v. Love, 48 Pa. 407; Cincinnati, etc., Gas Co. v. Western Co., 152 U. S. 200 (14 Sup. Ct. Repr. 523).

      February 25, 1907:

      Henry Budd, with him William C. Stoever, for appellee.
    The measure of damages applied by the referee was proper: Bagley v. Smith, 10 N. Y. 489; Devlin v. Mayor, etc., of New York, 63 N. Y. 8; National Filtering Oil Co. v. Ins. Co., 106 N. Y. 535 (13 N. E. Repr. 337); Wakeman v. Wheeler & Wilson Mfg. Co., 101 N. Y. 205 (4 N. E. Repr. 264); Fox v. Harding, 61 Mass. 516; Hubbard v. Rowell, 51 Conn. 423; Hoy v. Gronoble, 34 Pa. 9; Imperial Coal Co. v. Port Royal Coal Co., 138 Pa. 45; Simmons v. Brown, 5 R. I. 299; U. S. v. Speed, 75 U. S. 77; U. S. v. Behan, 110 U. S. 338 (4 Sup. Ct. Repr. 81); Kendall Bank Note Co. v. Commissioners, 79 Va. 563.
   Opinion by

Mr. Justice Mestrezat,

This is an action of assumpsit to recover damages for an. alleged breach of contract. The plaintiff was a manufacturer of woolen goods, in the city of Philadelphia. The defendants were commission merchants and carried on the business in Philadelphia and New York. For a few years prior to 1890, they were the sole consignees and agents of the plaintiff in selling his goods, for which they received a fixed percentage of the amount of sales made as compensation for their services. On December 12, 1890, the plaintiff submitted certain propositions to the defendants in writing which they accepted, among which were the following: “In consequence of the great loss which would be incurred by the sudden changing of his commission house, Thomas H. Wilson, makes to Wernwag & Dawson, the following propositions: ‘(a) That on and after January 1, 1891 to July 1, 1891, that he will allow Wernwag & Dawson 7)% commissions on all goods sold and entered for Ms account; (b) That for and in consideration of \\% on the total sales of Wernwag & Dawson, he will guarantee all accounts sold by them between January 1 and July 1, 1891, this to include goods sold before July 1,1891, and not entered until after that date; (c) If Wernwag & Dawson wilhagree to rema,in in business for one year from January 1, 1891, he will guarantee the entire business against losses by bad debts for one per cent; (d) On or before July 1, 1891, Wernwag & Dawson will decide whether they will remain in business for the balance of the year, say from July 1, 1891 to December 31, 1891. Should they decide to continue in business till December 31, 1891, then they are to pay Thomas H.. Wilson one per cent only for guaranteeing the entire year’s business.’ ”

The defendants continued in business during the year 1891. In October, 1891, the plaintiff requested the defendants to advise him by November 1 whether they intended remaining in business during the year 1892, and said that he was willing to guarantee them against losses for the year of 1892 at one per cent of the net amount of their sales, and would pay them seven and one-half per cent commission, but would not pay $1,500 expenses as he had done during the year 1891. In November, 1891, the plaintiff signed and delivered to defendants the following writing, written and witnessed by Samuel White, the credit man and head bookkeeper of defendants:

“ Philadelphia, November 10, 1891.
“ Mr. Thomas H. Wilson hereby agrees to guarantee Wernwag & Dawson against all losses from failures, for and in consideration of the sum of one per cent upon the net amount of their sales for the year 1892.”

The defendants accepted this offer orally. They continued in business and continued to sell the plaintiff’s goods until April 1, 1892, when their firm was dissolved, and they refused thereafter to sell his goods or longer to carry on the commission business.

This action was brought by the plaintiff to recover damages, which he alleges he sustained by reason of the defendants having discontinued their commission business and having declined to continue it during the entire year of 1892, which he claims was a breach of the contract of November 10, 1891. He claims that under the contract between the parties the defendants were to continue the business during the whole of 1892, and that by failing to do so he is injured to the extent of one per cent of the sales which the defendants would have made from April 1, 1892, the date of thg dissolution of their partnership, to December 31, 1892, less the losses ■which they would have sustained during that period. The defendants, on the other hand, deny that the contract between the parties contemplated that they should continue the business during the whole of the year 1892, or obligated them to do so, and contend that if such is the correct interpretation of the contract, the proper measure of damages for its breach is not one per cent of the sales which they would have made had they continued in business for the whole year, less the losses; that such profits are too remote and too unpertain as a measure of damages for the alleged default. These are the important and controlling questions in the case, and the only questions which we deem it necessary to consider on this appeal.

The case was referred to a referee under the act of May 14, 1874. He found against the contention of the defendants on both propositions, and his report was confirmed by the court. He has found and stated at length the facts in the case, and we think his findings are supported by the evidence.

The referee found that “ it was understood by both parties to said agreement of November 10, 1891, that an important inducement to the plaintiff to enter into it was the continuance of the defendants in their said business during the whole of the year 1892, and it was the intent and understanding of both parties that defendants should remain in. said business during that period.” He, therefore, held that the contract of November 10, 1891, required the defendants to continue their commission business, and to accept and sell the plaintiff’s goods during the entire year of 1892. We are clear that this is a proper interpretation of the contract. In Lacy v. Green, 84 Pa. 514, Woodward, J., delivering the opinion, says (p. 518): “ Where the meaning of an agreement is doubtful, its terms are to be considered in the light thrown on them by approved or admitted illustrative facts. The situation in which the parties stand, the necessities for which they would naturally provide, the conveniences they would probably seek to secure, and the circumstances and relations of the property in regard to which they have negotiated, are all elements in the interpretation of an ambiguous contract.” We think the language of the proposition of November 10, 1891, made by Wilson to the defendants, discloses clearly an intention that the business should be continued for the whole of the ensuing year. His guaranty, as therein expressed, is against all losses from failures, and the consideration which he is to receive is a percentage “ upon the net amount of their (defendants’) sales for the year 1892.” The percentage, therefore, was not to be computed upon such sales as they might make in 1892, or until the dissolution of their partnership, or until they discontinued their business, but was stated clearly and distinctly to be upon the “ net amount of their sales for the year 1892.” When we consider all the circumstances under which the contract was made it is still made more apparent that such is the proper interpretation of the agreement of the parties. The agreement of the previous year between the same parties assists in construing the contract under consideration. By that agreement it appears that the plaintiff apprehended a great loss from any sudden changing of his commission house, and that it was entered into for the purpose of preventing such a change. It is apparent that the same reasons existed for his desire to prevent a sudden change in his commission house when the contract of 1891 was made, and hence it is fair to infer that by the contract of 1891 he intended to guard against a sudden or unexpected changing of his commission house, and desired to fix a definite time on which he might rely for his goods being sold by the defendants. By the contract of 1890 it also appears that the parties considered and agreed that a fair consideration for guaranteeing the business against losses was one per cent on the total sales for an entire year; and further, that the consideration for guaranteeing the business for a half year should be one and one-half per cent on the sales for that period. In that contract the stipulation for the consideration in the first instance was for a percentage for six months, but with a provision that if the defendants remained in business for the whole year the plaintiff was to guarantee the entire business against losses by bad debts for one per cent.”

It is apparent, therefore, that in determining the rate of commission for guaranteeing the business the length of time was an important and controlling consideration, and that for one year the consideration should be one per cent, and for any time less than a year the rate should be greater.

Another reason, as suggested by the' referee, for the conclusion that the contract contemplated a continuance of the business for the whole of the succeeding year, was the fact that the amount of the sales was greater during certain months of the year than during other months, and that it appeared that during 1891 the heaviest sales were made in June, July and August. With these facts before him, it cannot be assumed that the plaintiff would agree to guarantee against losses for an indefinite time which might exclude the heaviest selling months of the year, and especially should we not presume that the plaintiff would consent to one per cent commission in view of the further fact, suggested above, that he demanded and received one and one-half per cent for guaranteeing against losses for the first six months of the preceding year.

We think it clear that the parties meant what the plaintiff proposed and the defendants accepted on November 10, 1891, that the plaintiff’s consideration for guaranteeing against losses was “ upon the net amount of their sales for the year 1892,” and that, therefore, the contract manifestly contemplated, as understood by both parties, that the defendants should continue in the commission business and sell the plaintiff’s goods for the entire year of 1892.

The next and an important question, and one not entirely free from difficulty, is the measure of the plaintiff’s damages for the violation of the contract. As we have seen, the defendants dissolved their partnership and discontinued their business on April 1, 1892. The referee found that “aftersaid dissolution, the firm of Minot, Hooper and Co. of New York took the place of the defendants, accepting transfer from defendants of their accounts, and conducted under their own name the business formerly carried on by the defendants, employing the same manager, using the same store and the same salesmen and clerks, and conforming substantially to the same rules as to giving credit.” It appears that those who had been the defendants’ consignors prior to the dissolution of the partnership, including the plaintiff, thereafter consigned their goods for the balance of 1892 to Minot, Hooper & Co. The goods of the plaintiff in the possession of the defendants at the dissolution of their firm were also transferred to the samo firm, and the plaintiff and the defendants agreed as to the quantity and quality of the goods transferred. The referee also found, and his finding was sustained by the court, that “ if the defendants had remained in business, the plaintiff would have received one per cent on the amount of net proceeds of sales, for the balance of the year, less'the losses. The amount of this difference can be ascertained by subtracting the actual losses on sales made by Minot,-Hooper & Co., during that period from one per cent upon the amount of net proceeds of sales by that firm. ... It is reasonably certain that the defendants, had they remained in business and performed their part of the contract in good faith, would have made the same sales and losses as were made by their successors.” The referee, therefore, held that the measure of damages was one per cent upon the net proceeds of sales made by Minot, Hooper & Co., from April 1 to December 31, 1892, less the losses.

Hoy v. Gronoble, 34 Pa. 9, was an action to recover damages for the breach of a parol contract by which the defendant agreed to employ the plaintiff to cultivate a farm upon shares. It was held that the proper measure of damages was the profit which the plaintiff would have made on the farm if the contract had not been violated. In delivering the opinion, Strong, J., said (p. 10): “ While it is well settled, that a jury are not at liberty to allow mere speculative damages, yet there are cases in which a plaintiff has been held entitled to what he would have made had the contract been fulfilled ; I mean, to what he would have made immediately out of the contract. The loss of such profits is not consequential, in the sense in which consequential damages are sometimes said to be too remote. They are in the immediate contemplation of the parties when the contract is made.” The same learned judge, delivering the opinion in Adams Express Co. v. Egbert, 36 Pa. 360, says (p. 364): “ The loss of profits or advantages, which must have resulted from a fulfillment of the contract, may be compensated in damages, when they are the direct and immediate fruits of the contract, and must therefore have been stipulated for, and have been in the contemplation of the parties when it was made.” Hoy v. Gronoble, 34 Pa. 9, was followed and approved in Wolf v. Studebaker, 65 Pa. 459.

The first two of the above cases are cited in the opinion of Mr. Justice Green in Pennypacker v. Jones, 106 Pa. 237 as bolding that “profits may be recovered where they are ‘part and parcel of the contract itself, entering into and constituting a portion of its very elements; something stipulated for, the light to the enjoyment of which is just as clear and plain as to the enjoyment of any other stipulation.’ ”

Imperial Coal Co. v. Port Royal Coal Co., 138 Pa. 45, was an action to recover damages for violation of a contract by which the defendant agreed to supply the plaintiff company with coal sufficient to keep its coke plant in operation for a definite period. The coal was to be converted into coke for the defendant at a fixed price per ton. The measure of damages for the breach was held to be the net profits which the plaintiff would have made had the contract been fulfilled. In the opinion it is said (p. 47); “ While it is undoubtedly true that more speculative profits cannot be recovered in an action for breach of contract, a careful examination of the assignment shows that the profits in question were not within this rule. The jury have found .... that the defendant was to furnish plaintiff with enough coal to keep its sixty ovens in operation for six months, and that the price was to be $1.00 per ton. The profits in such case were not speculative; they did not depend upon the fluctuations of the market, or the demand for coke, and they could be ascertained with mathematical accuracy.” This part of the opinion is quoted and approved in the very recent case of Puritan Coke Co. v. Clark, 204 Pa. 556.

Pittsburg Gauge Co. v. Ashton Valve Co., 184 Pa. 36, was an action for the breach of a contract by which the defendant constituted the plaintiff its sole agent for the sale of certain goods within certain designated territory for a term of three years. The plaintiff’s compensation was a commission of ten per cent on the amount of sales. Before the expiration of the term, the defendant declared a forfeiture of the contract without sufficient cause. It was held that the plaintiff could show, as bearing upon the damages, the extent and volume of the business under his own agency, and the extent and volume of it under the agent appointed in his place.

The very recent case of Singer Manufacturing Co. v. Christian, 211 Pa. 534, was an action to recover for the price of a number of machines. The defendant claimed that he had. purchased them by an oral contract with the plaintiff’s agent by which it was agreed that the plaintiff would furnish work to keep the machines going, and that they were to be paid for out of the profits of such work, and that sufficient work was not furnished. The defendant alleged a breach of contract on the part of the plaintiff and claimed as a set-off the damages he had sustained. It was held that the measure of his damages for the breach was the profit which the defendant might have made, together with the expense of maintaining the plant in idleness caused by the neglect or refusal of the plaintiff to furnish work continuously according to the terms of the contract.

In other jurisdictions the same rule as to the measure of damages has prevailed.

In Brigham v. Carlisle (Ala.), 56 Am. Rep. 28, Clopton, J., delivering the opinion says: “When they (profits) form an elemental constituent of the contract, their loss, the natural result of its breach, and the amount can be estimated with reasonable certainty, such certainty as satisfies the mind of a prudent and impartial person, they are allowed. . . . Profits are not excluded from recovery, because they are profits ; but when excluded it is on the ground that there are no criteria by which to estimate the amount with the certainty on which the adjudications of courts and the findings of juries should be based. The amount is not susceptible of proof.”

Wakeman v. Wheeler and Wilson Manufacturing Co. (N. Y.), 54 Am. Rep. 676, was an action to recover damages for the breach of a contract by which the defendant company agreed to give the plaintiff the sole agency for every place in Mexico in which he should within a given time sell fifty machines. The plaintiff sold fifty machines or more in several places and, therefore, qualified himself for the agency. It was held that the plaintiff was entitled to recover the profits which he probably could have made; and as showing such profits he could prove that subsequent to the repudiation of the agreement, the defendant established agencies in Mexico, and the number of machines sold by them for the defendant company.

Wells v. National Life Association of Hartford, 53 L. R. A. 33, was an action brought to recover damages for the alleged breach of a contract employing plaintiff as general agent of defendant company for the state of Texas. It was there held by the United States Circuit Court of Appeals that “ loss of anticipated profits may be included in a recovery for breach of a contract to employ plaintiff on commission as exclusive general agent of an insurance company for particular territory during a specified time, which may be estimated by considering the value of renewals on policies already written not shown by the company to have lapsed, and the probable future business as indicated by that actually done by the company through their agents after the breach, the respective facilities of the two for doing the work, the probable expense, and the amount to be done.” There is an extended note to the report of this case collecting all the authorities on the subject of loss of profits as an element of damages for breach of contract.

In Griffin v. Colber (N. Y.), 69 Am. Dec. 718, Sellen, J., delivering the opinion says: Profits which would certainly have been realized but for the defendant’s default are recoverable ; those which are speculative or contingent are not. . . . Indeed it is clear that whenever profits are rejected as an' item of damages, it is because they are subject to too many contingencies, and are too dependent upon the fluctuations of markets and the chances of business to constitute a safe criterion for an estimate of damages.”

In Ætna Life Insurance Co. v. Nexsen (Ind.), 43 Am. Rep. 91 and in Lewis v. Atlas Mutual Life Insurance Co., 61 Mo. 534, it was held that an insurance agent who had been discharged without cause could recover the probable value of renewals on policies previously obtained by him upon which future premiums would, in the usual course of business, be received by the company.

In Masterton v. Mayor, etc., of Brooklyn (N. Y.), 42 Am. Dec. 38, Nelson, C. J., after holding that collateral profits are too remote to be considered in the measure of damages, says: “But profits or advantages which are the direct and immediate fruits of the contract entered into between the parties, stand upon a different footing. These are part and parcel of the contract itself, entering into and constituting a portion of its very elements; something stipulated for, the right to the enjoyment of which is just as clear and plain as to the fulfillment of any other stipulation.”

From these authorities, it is clear that damages may be recovered for loss of profits caused by a breach of contract j and that they are never excluded simply because they are profits. If it reasonably appear that profits would have been- made had the terms of the contract been observed, and that their loss necessarily followed its breach, they may be recovered as damages if' the evidence is sufficiently certain and definite to warrant the jury in estimating their extent.

An examination of the well-considered cases will show that prospective profits may be recovered for the breach of a contract whenever they are susceptible of proof. They have been rejected by the courts as damages only because of the failure ' to prove them with sufficient certainty and definiteness. There can be no good reason why they should not be recovered when they are capable of definite estimation. The injured party has the right to demand and receive from the defaulting party full compensation for the loss he has sustained by a breach of the contract. Each party knows the terms of the contract and, therefore, is presumed to know the loss each will sustain by its breach. Hence when either party refuses to observe his agreement he knows the necessary consequence of his act which is to deprive the other party of the value of his bargain, the equivalent of which is the profits he would realize if its terms had been complied with. In such cases, as said in Hitchcock v. Supreme Tent (Mich.), 43 Am. St. Rep. 423, the profits lost constitute the legitimate measure of damages. The law is not so blind to justice as not to require the defendant to respond in damages, if there is any reasonable basis for their ascertainment.” When, therefore, the evidence shows with reasonable certainty the profits which have been lost by the breach of a contract, they should be considered damages recoverable by the injured party from the one in default.

Applying these principles to the case in hand, we think the referee and the learned court below were right in holding that the plaintiff was entitled to recover as damages his commission on the net sales of goods which would have been made by the defendants from April 1, to December 31,1892, less the losses sustained during the same period. Assuming the contract to have covered that period, the commissions as guarantor to which the plaintiff would have been entitled had the defendants continued their business are susceptible of proof and sufficiently certain and definite to warrant a recovery. As found by the referee, Minot, Hooper & Co. “ took the place of the defendants, accepting transfer from defendants of their accounts, and conducted under their own name the business formerly carried on by the defendants, employing the same manager, using the same store and the same salesmen and clerks, and conforming substantially to the same rules as to giving credit.” On the dissolution of the defendants’ partnership, the plaintiff transferred to Minot, Hooper & Co. all his goods which a statement prepared by defendants showed to be in their possession. The sales made by that firm under these circumstances are criteria from which can be definitely estimated the sales which the defendants would have made had they continued their business as required by the contract. These are actual sales made under precisely the same conditions as if the defendants had been the firm conducting the business. As found by the referee, the business was carried on for the remainder of the year 1892 in the same store, with the same consignors, with the same manager and with the same clerks and salesmen as it had been prior thereto by the defendants.. There is no evidence in the case that would warrant the conclusion that the sales made in the name of Minot, Hooper & Co. during the period in question and the losses sustained were greater or less in number or amount than would have been the sales and losses if defendants had continued the business. On the contrary, the evidence is convincing that the sales and losses would have been practically the same. There is, therefore, no sufficient reason why the sales made and the losses incurred during the remainder of the year 1892, while the business was conducted in the name of Minot, Hooper & Co., should not be taken as the data on which to estimate the commissions or profits due the plaintiff in this action. Such profits are not speculative, imaginary, or uncertain, but are determined by a standard that renders them almost as certain as if the business had been continued by the defendants. The law does not require absolute certainty as to tlie data upon which profits are to be estimated, but certainty to a reasonable degree or extent so that the damages may rest upon a definite basis and not wholly in speculation and conjecture. If prospective or probable profits are ever to be held as having been sufficiently and certainly proved as a measure of damages for a breach, of contract, then the plaintiff here must be permitted to recover. Any further or greater degree, of proof would be, in effect, to exclude all profits as a measure of damages for a violated contract.

The judgment is affirmed.

Mr. Justice Potter,

dissenting:

I think the conclusion reached in this case by the majority of the court is based upon a misapprehension of what the contract between the parties really was. It was a contract of insurance by which the plaintiff was to guarantee the defendants against loss by reason of bad debts, upon all sales made by the defendants during the year. The compensation of the plaintiff for insuring against this risk of loss was to be one per cent of the amount of the sales. If the sales were large in volume, the commission would be large in proportion; if the sales were small, the commission would be reduced accordingly. There was no agreement as to any definite amount of sales or commission, beyond the fact that it was to be limited to one per cent of the amount of those sales, whatever they were. If the defendants had remained in business during the entire year, while their sales might have been greater, yet the risk of loss to be borne by the plaintiff would also have been larger. When the defendants ceased doing business in April, 1892, then, at that instant, the risk of insurance against bad debts which the plaintiff was called upon to bear also came to an end. He was not thereafter called upon to insure the defendants any further against the risk of loss by reason of bad debts, and he therefore necessarily was not in a position from that time on to earn any more commissions, and this for the obvious reason that his commission was limited to one per cent of the actual amount of the sales. When the sales ceased the insurance ceased, and the compensation to be paid for it, as a matter of course, also ceased. The opinion of the majority of the court has apparently taken no account of this fact; and it permits the plaintiff to recover commissions against the defendants upon a large amount of sales which were never in fact made by them, and as to which plaintiff took no risk of insurance whatever, and upon which he therefore had no right to ask for compensation. The affirmance of this case gives to the plaintiff something for nothing. I cannot agree to such a judgment.

Mr. Justice Elkin concurs in this dissent.


source: Caselaw Access Project

author: Mr. Justice Stewart,

license: Public Domain

text:
    Cunningham v. Pennsylvania Railroad Company, Appellant.

      Negligence — Railroads—Master and servant — Fellow servant — Vice principal.

    A workman on a construction train was injured by the sudden starting of the train without warning upon the signal of the supervisor of the construction work who was not in charge of the train and was 175 yards away from it at the point to which he wanted it to advance for the purpose of unloading. The duty to give warning of any movement of the train did not rest with the supervisor but with those in charge of it. Held, that even if the supervisor were a vice principal (which is not decided) there was nothing to show negligence upon his part and that the plaintiff was not entitled to recover.
    Argued Jan. 8, 1907.
    Appeal, No. 134, Jan. T., 1906, by defendant, from judgment of O. P. No. 2, Phila. Co., Sept. T., 1903, No. 2,018, on verdict for plaintiff in case of James J. Cunningham v. Pennsylvania Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Barratt, J.
    The circumstances of the accident are set forth in the opinion of the Supreme Court.
    Yerdict and judgment for plaintiff for $7,500. Defendant appealed.

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

      Sellers & Rhoads, for appellant.
    Upon the testimony on behalf of plaintiff, it is contended there is no theory which justifies plaintiff’s recovery. If the facts show that the train was started without warning, such failure was due to the neglect of a fellow workman. It is contended, therefore, that the motion for nonsuit should have been granted: Lehigh Valley Coal Co. v. Jones, 86 Pa. 432; New York, Lake Erie, etc., R. R. Co. v. Bell, 112 Pa. 400; Spancake v. Phila. & Reading R. R. Co., 148 Pa. 184; Hoover v. Railway Co., 191 Pa. 146; Kennelty v. R. R. Co., 166 Pa. 60; Reusch v. Groetzinger, 192 Pa. 74; Spangler v. B. & O. R. R. Co., 213 Pa. 320.
    February 25, 1907:

      Horace L. Henderson, for appellee.
    An employee delegated with such duties and exercising such powers is not of the grade of a boss or foreman, engaged in work in common with all, but is a representative of the principal in entire charge of a branch of his business: Lewis v. Seifert, 116 Pa. 628; Prevost v. Ice, etc., Co., 185 Pa. 617; Coal Co. v. Jones, 86 Pa. 432.
    The liability for negligence of employees in “ entire charge ” has been announced and enforced in cases whose circumstances constitute them conclusive precedents against the appellant’s argument of “common employment” in this case: Mullan v. Steamship Co., 78 Pa. 25; stevedore in charge of unloading vessel: Lewis v. Seifert, 116 Pa. 628; train dispatcher: Dougherty v. Dobson, 214 Pa. 252; foreman of spinning department: Green v. Oil Co., 216 Pa. 35; superintendent of repair shops: Valentine v. Colburn Co., 10 Pa. Superior Ct. 453; superintendent of a department of factory.
    If Potter was a vice principal, the only question that remains is, whether there was any evidence of negligence on his part in directing the train to be started which should have been submitted to the jury. There was such evidence: Penna. R. R. Co. v. Barnett, 59 Pa. 259; McKee v. Bidwell, 74 Pa. 218; Neslie v. Ry. Co., 113 Pa. 300; Fisher v. Ry. Co., 131 Pa. 292; Dougherty v. Dobson, 214 Pa. 252; Green v. Oil Co., 216 Pa. 35; Mapes v. Provision & Packing Co., 31 Pa. Superior Ct. 453; Hoke v. Ry. Co., 88 Mo. 360.
   Opinion by

Mr. Justice Stewart,

This appeal is from the order of the court refusing a motion for judgment for defendant non obstante veredicto. The facts as established by the finding of the jury are these: The plaintiff was one of some twenty-five workmen employed about a construction train in the work of loading and unloading gravel along the line of the defendant’s roadbed. The train consisted of some six or eight open cars, and was in charge of a conductor. On the morning of the accident, the cars having been loaded and the train being about to proceed to the point for the distribution of the gravel, the workmen were directed by their foreman to get aboard the cars and begin the work of unloading, when the train stopped. The plaintiff took his position on the car farthest from the engine. After proceeding about 500 yards on the main track, the train came to a stop on the signal of the foreman, and the plaintiff at once proceeded with his wmrk. While in the act of sticking his shovel into the gravel the train suddenly, without notice or warning, and within a moment after it had come to a rest, again started with a severe jolt, which threw plaintiff overboard. In the fall, and what resulted directly therefrom,' he sustained serious injury. As the case was submitted to the jury, on the theory that the facts would, be found to be as testified by the plaintiff’s witnesses, negligence in the matter of starting the train was assumed, and the only question was, whose was the negligence? One of the plaintiff’s witnesses testified that the train started upon the signal of Hounslow, who was a foreman; all the others testified that the signal was given by a Mr. Potter, who the evidence shows was supervisor of the work of repair, and Hounslow’s superior. The learned trial judge made it very clear in his charge to the jury, that no liability would result to the defendant from any negligence of Hounslow in this connection, inasmuch as being a fellow employee with the plaintiff, the latter must be held to have assumed all such risks in the course of his employment. He held, however, and so instructed the jury, that if the train started on a signal given by Potter, the defendant company would be liable in this action, for the reason that Potter stood in the relation of vice principal, and that what he did must be regarded as the act of the company. The finding of the jury was that Potter gave the signal, not Hounslow. In our view of the case, it is immaterial whether Potter be regarded a fel,low employee with plaintiff or a vice principal; the result must be the same in either case. If the former, of course no liability attached to the defendant for his act for the reason stated by the court; if the latter, the same result must follow, but for a different reason. How inconclusive, with respect to the main question in the case — the negligence of the defendant company — the finding of the jury that Potter gave the signal for the train to start, was, is made apparent by an examination of the evidence. Potter is shown to have been at the time of the accident supervisor of this particular construction' work, but there is not a particle of testimony that connects him, even indirectly, with the operation and movement of the train. He is not shown to have been on or about the train the morning of the accident; nor does it appear that his duty required him to accompany the train at any time. It was his business to indicate the places along the line of the road where the gravel was to be unloaded, where the train should stop for this purpose, and to what point it should proceed; but the actual movement of the train, the starting and stopping the machinery that produced the movement, these were matters of detail -with which he is not shown to have had anything to do. In the absence of all evidence to the contrary, it is to be supposed that authority with respect to these was committed to the conductor in charge of the train. On this particular occasion the train, after running about 500 or 600 yards from where the gravel was loaded, had stopped short of the place where Potter wanted it discharged. He was at that time 115 yards away, and was seen by plaintiff’s witnesses to signal for the train to advance further. It was the sudden starting of the train, following the signal from Potter, that occasioned the accident; but where was there any negligence in what was done by Potter in this connection ? If the train was not where it should be for purposes of unloading, he was strictly in line of duty in requiring it to proceed further. In communicating his order to this effect to those in charge of the train, it is not pretended that he adopted any unusual or unreasonable method. Whether the signal was given to the conductor of the train or to the engineer does not appear; nor does it appear whether or not any intermediate order was given. All that the evidence discloses is, that the movement of the train followed, immediately upon Potter’s signal. The sudden and violent starting of the train without warning, under such circumstances as we have here, might well be regarded as a negligent act; but how is it possible to derive from the facts of the case any duty resting upon Potter to give such warning? How could he have done it except by proceeding to where the train was ? If a vice principal, he had a perfect right to assume that those in charge of the train, whose duty it was to obey the signal given by him, would act with ordinary prudence in carrying it out: Hoover v. Railway Company, 191 Pa. 116. The customary way of giving warning in such cases, as we all know, is by bell or whistle, both of which were under the immediate control, in this case, of the engineer. If additional warning is required at any time, it is only natural to expect it to come from the conductor in charge of the train. It is so obviously the duty of these particular employees to see that accustomed signals are given when occasion calls for them, that there is no escape from the conclusion that for the failure to give such warning hero, upon one or both must rest the responsibility for what resulted from the omission. Potter, as we have said, had a right to expect that such warning would be given; his duty did not require him to go to the train to see that it was given. The result of the verdict was to charge the responsibility upon Potter, without a particle of evidence from which an inference could be drawn that what he did in the matter was negligently or improperly done, or that he omitted anything that was his duty to do. Had he been a mile away when he gave the signal, it could not have been pretended that it was incumbent upon him to see that warning was given before starting the train. The fact that he was only 115 yards from the train when he gave the signal affects only the practicability of his giving the warning, and not his duty in this regard. We are not to be understood as conceding that he was a vice principal; we have assumed it only to show that were this a fact in the case, the evidence would not warrant a recovery. It discloses no negligence for which the defendant was responsible.

The order discharging the rule for judgment non obstante veredicto is reversed, and record is ordered to be remitted for the court below to enter judgment in accordance herewith.


author: Mr. Justice Potter,

text:
    Clifton v. Philadelphia, Appellant.

      Negligence — Municipalities—Defective street — Dirt road.

    When an accident happens by reason of some slight defect in a street, from which danger is not reasonably to be anticipated, the municipality is not chargeable with négligence. The duty which the law imposes upon a municipality, is only to exercise ordinary care to see that the highway is safe for travelers.
    A city is not liable for personal injuries sustained by a woman in stepping into a rut in a dirt road while she was alighting from a street car, where it appears that the rut in question was such as was ordinarily made by wagons, was only a few inches deep, and extended along the edge of Belgian blocks which paved a space of a width of about one foot outside the rail of the street railway.
    Argued Jan. 9, 1907.
    Appeal, No. 205, Jan. T., 1906, by defendant, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1902, No. 3,092, on verdict for plaintiff in case of Jacob H. Clifton and Rebecca W. Clifton, his wife, v. Philadelphia.
    Before Mitchell, C. J., Pell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal'injuries. ■ Before Sulzberger, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in entering judgment for defendant on the verdict.

      Charles W. Boger, with him Joseph W. Catharine, assistant city solicitor, and John L. Einsey, city solicitor, for appellant. —
    It is respectfully submitted that the city of Philadelphia is not liable- in damages for injuries sustained by a pedestrian slipping into a wagon wheel rut, of the dimensions described by the testimony in the case, located in the bed of an ordinary dirt road in the outskirts of the city: Smedley v. Erwin, 51 Pa. 445; Chartiers Twp. v. Langdon, 114 Pa. 541; Rigony v. County, 103 Pa. 382; King v. Thompson, 87 Pa. 365; Mauch Chunk v. Kline, 100 Pa. 119; Kelchner v. Nanticoke Borough, 209 Pa. 412; Beltz v. Yonkers, 148 N. Y. 67 (42 N. E. Repr. 401); Raymond v. Lowell, 60 Mass. 524; Newton v. Worcester, 174 Mass. 181 (54 N. E. Repr. 521); Weisse v. Detroit, 105 Mich. 482 (63 N. W. Repr. 423); Jackson v. Lansing, 121 Mich. 279 (80 N. W. Repr. 8); Haggerty v. Lewiston, 95 Me. 374 (50 Atl. Repr. 55); Burns v. Bradford City, 137 Pa. 361; Garland v. Wilkes-Barre, 212 Pa. 151.
    February 25, 1907:

      A . S. L. Shields, for appellees.
    The question of negligence was properly submitted to the jury under the evidence: Lohr v. Philipsburg Boro., 165 Pa. 109; Fuller v. Jackson, 92 Mich. 197 (52 N. W. Repr. 1075); Chilton v. Carbondale, 160 Pa. 463; Walker v. Philadelphia, 211 Pa. 33; Campbell v. York, 172 Pa. 205; McLaughlin v. Traction Co., 175 Pa. 565; Hey v. Philadelphia, 81 Pa. 44; Plymouth Twp. v. Graver, 125 Pa. 24.
    The question of notice by implication was properly left to the jury; Burns v. Bradford, 137 Pa. 161; Rosevere v. Osceola, Mills Boro., 169 Pa. 555; Lohr v. Philipsburg, 156 Pa. 246; Vanderslice v. Philadelphia, 103 Pa. 102; Gschwend v. Millvale Boro., 159 Pa. 257; McLaughlin v. Corry City, 77 Pa. 109.
   Opinion by

Mr. Justice Potter,

This was an action of trespass by husband and wife, to recover damages for personal injuries to the wife. There was a verdict in favor of the plaintiffs and judgment .entered thereon. Defendant has appealed, and assigns as error the refusal to give binding instructions in its favor, and the overruling of the motion for judgment, non obstante veredicto. The single question raised by the appeal, is as to the sufficiency of the evidence to justify the submission of the case to the jury.

It appears from the testimony, that on the evening of June 3, 1902, at about ten o’clock, Rebecca W. Clifton, one of the plaintiffs, in alighting from a trolley car at Pulaski and Hunting Park avenues, stepped into a rut in the roadway and fell forward, bruising her face, spraining her ankle and otherwise injuring herself. Pulaski avenue, north of Hunting Park avenue, was not a paved street, but was merely a dirt road, except as to that portion upon which the street railway tracks were laid. The grade of that portion was raised five or six inches above the level of the remainder of the road, and the space between the tracks, and for a distance of one foot outside, was paved with Belgian block.

The wife testified that she did not know the character of the road at the spot where she fell, nor did the husband make any examination of it at the time. He went back the next day, and says he saw a rut, five or six inches deep, and about three inches wide extending along the edge of the Belgian blocks, caused by wagon wheels as they left the stone paving. It is apparent that the depth of five or six inches referred to by this witness, must include the step from the Belgian blocks to the general level of the roadway.

Another witness, who lived just opposite the place where the accident occurred, testified that Pulaski avenue, north of Hunting Park avenue, was not paved. South, it was paved with Belgian block. The cars usually stopped where you could step out on the dirt. The surface there was ashes and different things and was graded five or six inches below the level of the cartway. At the time of the accident there was a hole in the street a couple of inches below where the track was, down off the Belgian blocks. It was made by heavy wagons.

On cross-examination, this witness said that the rut was two or three feet long. The cinder side portion of the road was five or six inches below the grade of the track. It was never level with the track. The hole was a slight rut where the wagons — ice wagons — would pull off the track. Witness estimated that he had seen as many as 500 people step off the car at that point, in one day, and 100 or 200 after dark, but never saw any accident occur. There was an arc light about fifteen feet away from the place of the accident, which wa,s burning and threw light all over. There was a good illumination there that night. He admitted, however, that there was a trolley pole between the light and the spot where the plaintiff stepped into the rut, and the husband also testified that the trolley pole cast a strong shadow where his wife fell.

It appears clearly from the evidence, that Pulaski avenue was an old country road, which had been used by the public for many years and had been adopted by the city as a street. As noted above, with the exception of the space between the railway tracks and for a distance of perhaps a foot outside, it was still a dirt road, filled in from time to time with ashes, cinders and oyster shells. So far as we can gather from the evidence, the locality is a suburban one on the outskirts of the city. The road was much traveled, and the place where plaintiff alighted was the usual stopping place for the cars, where many persons got on and off, both by day and night.

The rut into which plaintiff stepped was only that which was worn by wagon wheels, as they left the edge of the Belgian block along the outside of the street car track. It does not appear to have been anything more than an ordinary rut, such as is constantly made by the wheels of heavy wagons in all dirt roads when soft or mudd\^, or when the soil of the roadway is not closely packed. As one of the witnesses explained, these ruts are temporary in their nature, and are shifted from place to place in the roadway, being liable to be filled by a passing wheel, which makes a new rut in turn, adjacent to the line of the old one.

It would be imposing a very great and burdensome degree of care upon a municipality to hold it to the duty of keeping dirt roads free from ruts of the nature and character of this one in question. The same degree of smoothness is not to be expected upon a dirt road, as is to be looked for on an asphalt street. It would hardly occur to a highway commissioner that a rut worn by wagon wheels in soft ground could be in any way dangerous to the public. In Osterhout v. Bethlehem, 55 N. Y. App. Div. 198, the court said : “ I doubt if upon country roads a rut caused mainly by the ordinary travel of wagon wheels in wet weather has ever been deemed a necessary subject of repair. Those defects cure themselves with the advance of the season, and such conditions the farmers learn to anticipate in the use of the highway at that time of year.”

No roadbed has ever been invented or used which is not subject to wear and to some degree of displacement when used by heavy vehicles, and this effect cannot be prevented. When an accident happens by reason of some slight defect, from which danger was not reasonably to be anticipated, the municipality is not chargeable with negligence. The duty which the law imposes upon a municipality is only to exercise ordinary care to see that the highway is safe for travelers: Kelchner v. Nanticoke Boro., 209 Pa. 412. We can see nothing in the evidence in this case, sufficient to sustain the charge of negligence against the defendant, or to justify the submission of the case to the jury.

The assignments of error are sustained, the judgment is reversed and is here entered for defendant.


author: Mr. Justice Fell,

text:
    Unger v. Philadelphia, Baltimore & Washington Railroad Company, Appellant.

      Negligence — Railroads—“Stop, look and listen” — Presumptions—Evidence.

    A mere presumption of due care on the part of a person killed at a railroad crossing is met by a presumption of equal force of like care on the part of those in charge of the train; or it may be entirely overcome if the facts and circumstances clearly established admit of no other conclusion than that if he had stopped, looked and listened, he would have seen the train. Whether the presumption has been rebutted is for The jury, unless the evidence to the contrary is clear, positive and credible, and either uncontradicted or so indisputable in weight and amount as to justify the court in holding fhat a verdict against it must be set aside as a matter of law.
    In an action of trespass against a railroad company to recover damages for death of plaintiff’s husband at a grade crossing, it appeared that the plaintiff at the time of the accident was riding in a butcher’s wagon, which was struck by the rear end of a work train of six or seven ears, which was moving backwards. None of plaintiff’s witnesses saw the accident. There was evidence that the night was dark, foggy and rainy, that no notice of the approach of the train was given by bell or whistle, that the safety gate was up, th,at there was no light at the crossing, and that the only light on the rear of the train was a lantern on the platform of the last car. Defendant offered proof that there were three points near the tracks, but separated by intervening sheds or buildings from which a view of the track for half a mile could be had, that the train could be easily seen in motion, and that the deceased had been warned by the watchman of the approach of the . train, and had disregarded the warning. Held, that the case was for the jury, and that a verdict and judgment for plaintiff should be sustained.
    Argued Jan. 9, 1907.
    Appeal, No. 209, Jan. T., 1906, by-defendant, from judgment of C. P. No. 3, Phila. Co., Dec. T., 1903, No. 896, on verdict for plaintiff in case of Freda Unger v. Philadelphia, Baltimore & Washington Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband. Before MoMichael, J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $7,500. Defendant appealed.

      Error assigned was in entering judgment for the plaintiff on the verdict.

      Sharswood Brinton, with him John Hampton Barnes, for appellant.
    An uncorroborated presumption of due care on the part of a decedent killed at a railway crossing is, in the absence of evidence of negligence on the part of the train’s crew, equalized by the presumption of innocence on the part of the defendant: Haverstick v. Penna. Railroad Co., 171 Pa. 101; Hanna v. Phila. & Reading Ry. Co., 213 Pa. 157.
    A presumption of due care is rebutted by circumstantial evidence descriptive of a crossing of such a character that the decedent could not have recovered had he been living, and testified before the jury to the exercise of due care: Connerton v. Del. & Hudson Canal Co., 169 Pa. 339; Seamans v. D., L. & W. R. R. Co., 174 Pa. 421; Hess v. Williamsport & N. Branch R. R. Co., 181 Pa. 492; Penna. R. R. Co. v. Mooney, 126 Pa,. 244; Urias v. Penna. R. R. Co., 152 Pa. 326; Haverstick v. Penna. R. R. Co., 171 Pa. 101.
    The presumption of due care on the part of a decedent may be rebutted by affirmative oral testimony of eye witnesses: Haverstick v. Penna. R. R. Co., 171 Pa. 101; Hanna v. P. & R. Ry. Co., 213 Pa. 157; Laib v. Penna. R. R. Co., 180 Pa. 503; Haughey v. Pittsburg Rys. Co., 210 Pa. 363; Patterson v. P., C., C. & St. L. Ry. Co., 210 Pa. 47.

      February 25, 1907:

      Louis Bregy, with him H. Homer Dalbey, for appellee.
    Where there is testimony that deceased was seen as he approached a crossing but was not seen to stop, and the witnesses’ observation does not cover the entire approach, the testimony is not so positive or so complete as to justify the trial judge in saying as a matter of law that the presumption has been rebutted : Patterson v. Ry. Co., 210 Pa. 47; Penna. R. R. Co. v. Weiss, 87 Pa. 447.
    Where plaintiff shows a series of facts from which the inference of negligence on the part of the defendant arises, that inference is sufficient to carry the case to the jury; having once arisen it remains until overcome by countervailing proof; whether so overcome is a question of fact which the court cannot determine: Devlin v. Beacon Light Co., 198 Pa. 583; Laib v. Penna. R. R. Co., 180 Pa. 503; Patterson v. Ry. Co., 210 Pa. 47.
   Opinion by

Mr. Justice Fell,

The plaintiff’s husband was killed at a grade crossing of the defendant’s road in the city of Chester. He was riding in a butcher’s wagon, which was struck by the rear end of a work train of six or seven cars, which was moving backwards. None of the plaintiff’s witnesses saw the accident. Her case rested on the presumption that the deceased exercised proper care before driving on the track and upon proof that at the time it was dark, foggy and raining, that no notice of the approach of the train was given by bell or whistle, that the safety gate was up, that there was no light at the crossing, and that the only light on the rear of the train was a lantern on the platform of the last car. Her case was met by proof offered by the defendant that there were three points near the tracks but separated by intervening sheds or buildings from which a view of the track for half a mile could be had, that although the night was dark and rainy, the train could be easily seen and distinguished ás a moving train, and that the deceased had been warned by the watchman of the approach of the train and disregarded the warning.

The question raised by the assignments of error is whether the court should have taken the case from the jury. This could not properly have béen done. A mere presumption of due care on the part of the person killed at a railroad crossing is met by a presumption of equal force of like care on the part of those in charge of the train: Haverstick v. Penna. R. R. Co., 171 Pa. 101; Hanna v. P. & R. Ry. Co., 213 Pa. 157; or it may be entirely overcome if the facts and circumstances clearly established admit of no other conclusion than that if he had stopped, looked and listened, he would have seen the train: Connerton v. D. & H. Canal Co., 169 Pa. 339; Seamans v. D., L. & W. R. R. Co., 174 Pa. 421. Whether the presumption has been rebutted is for the jury, “unless the evidence to the contrary was clear, positive and credible, and either uncontradicted or so indisputable in weight and amount as to justify the court in holding that a verdict against it must be set aside as a matter of law: ” Patterson v. Pittsburg, etc., Ry. Co., 210 Pa. 47. Where there is any uncertainty as to facts or the inferences to be drawn from them, the case is necessarily for the jury: Cromley v. Penna. R. R. Co., 208 Pa. 445.

There -was nothing in the circumstances connected with the accident that rebutted the presumption of due care on the part of the deceased. It cannot be said with certainty that if he looked ho saw the train, nor that, if he saw it, he observed in the darkness and storm that it was backing to the crossing, since the natural inference from the position of the engine would be that it would move in the opposite direction. The testimony offered by the defendant to rebut the presumption was far from being clear and indisputable. It was wholly discredited by the jury for reasons satisfactory to the learned trial judge, as we learn from his opinion. The testimony on behalf of the plaintiff to show that no signal of the movement of the train was given was more than merely negative. One of her witnesses, who was walking between the tracks in the direction the train was moving and observed it as it passed him and kept it under observation until the accident, testified positively that neither bell nor whistle was sounded. The plaintiff’s case rested upon the presumption of care, unrebutted by proof that would have -warranted the court in holding that it was overcome, and upon testimony tending to show negligence on the part of the defendant. It was clearly for the jury.

The judgment is affirmed.


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

      Negligence — Street railways — Charge of court — Inadequacy of charge.

    In an action against a street railway company for personal injuries, where the plaintiff testifies that she was injured by the sudden starting of a car when she was attempting to alight from it, while at rest, and her evidence is directly contradicted by the conductor, motorman and four passengers, all of whom had equal opportunity with the plaintiff to know what the actual fact was, the numerical inequality in the support given one side and the other by the witnesses, is a proper subject of judicial comment and to minimize the effect of such inequality' so as to make what is said on the subject prejudicial and misleading is reversible error.
    Argued Jan. 9, 1907.
    Appeal, No. 210, Jan. T., 1906, by defendant, from judgment of C. P. No. 3, Pbila. Co., Dec. T., 190J, No. 2,Y12, on verdict for plaintiff in case of Augusta C. Plodder v. Philadelphia Rapid Transit Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before MoMiohael, J.
    The material portion of the charge of the court was as follows:
    Now then, gentlemen, you are to decide from the evidence, applying to it the rules which govern you in the ordinary affairs of life, whether or not this lady stepped from a moving car, or, as one of the witnesses said, jumped from a moving car ; or whether, having notified the conductor to stop the car, he gave the bell to stop the car, and the car having stopped, she then attempted to alight and the car was started forward before she got off and she was thrown from the car. Counsel, with great clearness and great fairness to each other and to us, have put that question before you, and that is a fact for you to decide.
    I shall say very little about the testimony of the witnesses, That is for you. You should reconcile it if you can ; if not, you must decide between the witnesses. On the one hand, it has been argued from the circumstances of the case that the lady’s story is hardly credible, but you have a right to believe it, and, if you believe it, to determine that the company was, through its employees, guilty of carelessness in that having stopped the car to give her an opportunity to alight, they did not give her time enough to alight. But if you believe the testimony of the defendant’s witnesses and believe she stepped or jumped from a moving car, she is guilty of contributory negligence. Of course the credibility of witnesses is for you. You should look a witness straight in the face, and you twelve men are to decide whether you believe or do not believe the witnesses. You heard the plaintiff, you heard her examined and cross-examined, and you have doubtless by this time come to a conclusion as to whether her recollection is accurate or whether her story is to be believed. And so as to the witnesses for the defendant. They are more numerous in number and agree pretty well that the lady stepped or jumped off the car while it was in motion, but when they come to describe the accident, it is for you to say whether you think their story holds together. I am not going into a disquisition on evidence, but where witnesses come in and tell exactly the same story to the letter, it is rather thought to be against their credibility than for it. That is, if people make up a story, they are apt to make it up exact in all the details. But I do not want to take up time on that. I want to get right at this case. You have got to decide, as these witnesses said this woman either jumped off the car or stepped off the car while it was in motion, whether their story is accurate or not, and first of all applying to her and her witnesses your careful consideration, critical consideration, do the same thing to the witnesses for the defendant. Because they seem to agree in this, that the lady jumped or stepped off the car while it was in motion, but you can test their accuracy by the testimony. The witness Southcott, who testified quite fully about it, when asked where he sat, was not quite sure of the seat but was back in the smoking seats, he thought it was the second from the back and on the same side, as I understood his testimony, though that is for you, as the lady was on, and he said there were two empty seats between him and the lady. We will pass over Smith and Meredith, the conductor and motorman. They testified simply and directly. The motorman was not cross-examined'. But you may test their testimony. Then we come to the testimony of the witness Siglang. Siglang first said that he was on the left side of the car, and then said he was on the right-hand side. That may have been a slip of the tongue or the memory. And the other witness, Oarlin, also said, “ I was on the east side; that is on the same side as the lady that I saw.” Now, you have got to test the accuracy of the recollection of those witnesses by their accuracy and by the way they stood cross-examination, because, while they did say — and one of the witnesses not having stated how the lady got off, in answer to a question, said she jumped off with both feet. The other witnesses described her getting off in a rather different way. I am not arguing this case ; I am simply putting to you the testimony of these witnesses. It is not always numbers, but it is whom the jury believe. However, I have called your attention first of all to the testimony of the plaintiff. Counsel for the defendant was accurate in his statement, that though the testimony of a witness who is interested is no longer excluded by the law, the jury must take into consideration the great interest she has in the case. At the same time, you heard her examined and cross-examined and you must determine whether her story was true and accurate, because her right to recover from this defendant company depends on the accuracy of her statement that the car had stopped and while she was in the act of alighting started forward suddenly and threw her down. And so you should apply the same critical analysis and care to the testimony of the defendant. They are both entitled to it. It has been well and fairly presented by counsel on both sides. There has been no attempt to either move your sympathy or to stir your indignation or to excuse anything. Your business in that jury box is not to decide for this lady because you sympathize with her, or against the company because, you have any prejudice, against it, but to determine the facts, and if you determine that her story is accurate and true and that the others are mistaken, you have a right to do it and to decide in favor of the plaintiff. That is the foundation of our government.
    Yerdict and judgment for plaintiff for $2,000. Defendant appealed.

      Frror assigned was that “ the learned court erred in that the charge as á whole was not a fair and adequate presentation of the case.”

      Thomas learning, with him Chester N. Farr, Jr., for appellant.
    When the charge complained of was delivered, the situation called for great care, for the testimony stood thus:
    plaintiff’s evidence.
    Herself, alone. Interested, incompetent until legislation made her otherwise, her evidence ought to be weighed with much caution, especially when it was wholly without corroboration and was flatly co'ntradicted by every eye witness, which fact the court should have explained to the jury.
    defendant’s evidence.
    1. Southcott, a passenger, swore she got up after the car crossed Filbert street, the conductor pulled the bell a,nd instead of waiting for the car to stop, she stepped off while it was in motion, fifteen or eighteen feet above the crossing.
    2. Smith, conductor, testified he saw the plaintiff got up, whereupon he rang the bell, calling to her to wait until the car stopped, but she stepped off before it had done so.
    3. Meredith, motorman, swore his attention was attracted by hearing the conductor call “wait until the car stops,” whereupon he looked back and saw plaintiff had fallen and that there had been no stop before.
    4. Carlin, a passenger, deposed that plaintiff got up as though excited and got off while the car was moving, about three yards above the crossing.
    5. Sigland, a passenger, saw the plaintiff stand up and motion to the conductor as the car passed over the crossing and then get off before the car stopped.
    6. McDonald, a passenger, saw plaintiff rise, step down on the running board and thence to the street, backward, before the car had stopped.
    The charge was inadequate: Lingle v. Scranton Ry. Co., 214 Pa. 500.

      Haines D. Albright, with him Henry B. Tawresey, for appellee.
    Where the testimony is neither complex nor voluminous, particular reference to it is unnecessary : Schmidt v. McGill, 120 Pa. 405.
    February 25, 1907:
    The weight of evidence is not a question of mathematics, but depends on its effect in inducing belief: Braunschweiger v. Waits, 179 Pa. 47.
    It is not reversible error for the court to omit special instructions which have not been prayed for: Standen v. Penna. R. R. Co., 214 Pa. 189.
   Opinion bt

Mr. Justice Stewart,

It is complained in the assignment of error that the charge of the court was not a fair and adequate presentation of the case upon tlje facts. That it was a very full and entirely correct exposition of the law applicable to the case itself ‘is conceded. It does not concern us to inquire whether the verdict was in accordance with the facts or otherwise, but the assignment of error puts upon us the duty of inquiring whether the jury, in reaching its conclusion, was properly and sufficiently aided by the court in the presentation and discussion of the evidence. The plaintiff was injured in the attempt to alight from the car of the defendant company, and the action was for the recovery of damages. The negligence charged was the sudden starting of the car from a state of rest while plaintiff was in the act of getting off, with the result that she was thrown upon the ground and injured. The case presented this marked feature, that while but one witness, and that the plaintiff herself, testified to the particular fact relied upon to estabish negligence, viz.: that the car was at rest when plaintiff attempted to alight, the conductor, motorman and four passengers, all of whom witnessed the occurrence, testified, in direct and positive contradiction to the plaintiff, that when she attempted to alight the car was moving, that it had not then reached the crossing, and that it had not stopped at all. Did the case present no other feature than this marked numerical inequality in the support given one side and the other by the witnesses, this of itself would be a circumstance properly calling for remark in the general charge, and the least the court could do would be to instruct the jury to allow it due weight. By so much the greater reason should it be the subject of - observation and instruction when, as in this case, the solitary witness on the one side is the plaintiff herself testifying in her own behalf, unsupported by a single fact or circumstance not equally supporting those testifying adversely to her, and on the other side a half dozen witnesses, each with equal opportunity with the plaintiff to know what the actual fact was, testifying without impeachment of credibility by witness or circumstance, in positive contradiction to the plaintiff’s statement. Here was a state of evidence which not only invited comment by the court, but required it, in order that what was so unusual might have neither too much nor too little influence in determining the conclusion of the jury, but strictly its proper weight. In deciding the question of defendant’s liability the jury had but one fact to ascertain — was the car at rest or in movement when plaintiff attempted to alight ? The answer to this question depended on where they rested their belief— in the plaintiff’s testimony or that of the opposing witnesses. The complaint is not that the feature of the case referred to was overlooked in the charge, but that in remarking upon it the learned trial judge not only failed to allow it the prominence and force it was entitled to, but so minimized its effect as to make what v'as said on the subject, if not a positive misdirection, a prejudicial misleading. The charge contains but two references to this pronounced inequality, both so brief that their insertion here will add but little to the length of this opinion. The first is: “And so as to the witnesses for the defendant, they are more in number, and agreed pretty well,” etc. The next is : “ It is not always numbers but whom the jury believe.” Since the only question was, as the court correctly put it, whom they should believe on the disputed point, the impression left on the minds of the jurors by these brief references to the disparity of the number of witnesses testifying on the one side and the other to the vital fact of the case, would most likely be that it was a circumstance too unimportant for fuller reference, and therefore too unimportant for their serious consideration. Had the learned judge said so in so many words, it would have been manifest error, because it would have denied the defendant the benefit of an advantage it had a right to claim on the state of the evidence as exhibited. That it was differently expressed is immaterial, if as expressed it was calculated to produce the same effect. The ease, for the reasons referred to,'called for full and explicit instructions as to the weight of the evidence, as to what is meant by this expression,, and what instructions should influence in determining where the weight of evidence lay. The charge would have been open to exception had it by implication even allowed the jury to suppose that it was necessarily determined by numbers; the error was none the less decided if by implication it left the jury free to disregard, or treat as unimportant, the fact that the issue of credibility was between one interested party and half a dozen others, four of whom, so far as the evidence disclosed, stood clear of all bias, and all of whom had equal opportunity with the one to know the truth. What was impressed on the minds of the jury with an earnestness out of proportion to the requirements of the case, was their right to accept the testimony of plaintiff rather than that of the opposing witnesses. We say out of proportion to the requirements because this right was unchallenged, and nothing called for such a vindication of it by the court as it received. This is the language of the charge: “ Tour business is not to decide for this lady because you sympathize with her, or against the company because you have any prejudice against it, but to determine the facts, and if you determine that her story is accurate and true, and that the others are mistaken, you have a right to do it and to decide in favor of the plaintiff. That is the foundation of our government.” It may be that the collective intelligence of the jury prevailed to avoid misunderstanding what was here said, but we cannot be made certain of it. It' would not .be at all strange if the less intelligent and discriminating of the jurors derived from it the notion that their acceptance of plaintiff’s testimony as true would relieve them of a responsibility, which otherwise would be theirs, of exposing to serious danger our civil institutions. It was in marked contrast to the earlier references made to the testimony of defendant’s witnesses. Not only was the effect of the marked numerical preponderance there unduly minimized, but the testimony was pot reviewed with that accuracy of statement required for careful investigation by the jury. As to whether the car was in motion or at rest, when the plaintiff attempted to alight, the only question in the case, these witness were in entire and absolute accord; there was some uncertainty as to the seats occupied in the car by each, and some slight discrepancy with respect to some other wholly unimportant details; but on the one fact to be inquired about their agreement was positive and exact. The reference to this testimony was as follows : They (the defendant’s witnesses) are more numerous and agree pretty well that the lady stepped or jumped oil the car while it was in motion, but when they come to describe the accident, it is for you to say whether you think their story holds together.” This was an unwarranted depreciation of the testimony of these witnesses, to say the least. It was not a case where explanation and reconcilement were required to show agreement, but where concurrence was so pronounced and exact that no refinement could make of it anything less than unanimity. Such characterization of the testimony was inaccurate and unfair, because calculated to rob it of its true significance. Nor was the effect at all corrected by what was said as to the individual witnesses testifying for the defendant, but rather intensified. Reference to the testimony of each was made, only, however, to point out those things which the learned judge thought proper to consider as testing their accuracy. Matters thus indicated for the jury’s consideration were unrelated to the one important fact. However found to be, they could not qualify in the slightest the witnesses’ opportunities to see how the fact was, nor could they furnish any reasonable basis for discredit! ng the testimony. One witness spoke of the plaintiff jumping off the car, while all the others described it as a stepping off; another could not be certain whether he was two seats in the rear of the plaintiff or three, and another immediately corrected his statement that he was on the left-hand side of the car. These are the features of the testimony specifically pointed out by the court to enable the jury to test the accuracy of their testimony. To say that a jury may reject the testimony of a half dozen witnesses for no other reason than here appears, is simply to invite thorn to do so. The testimony of the conductor and motorman was in accord with that of the other witnesses. The only reference to it was as follows : “ We will pass over Smith and Meredith, the conductor and motorman. They testified simply and directly.” An omission of all reference to the testimony of these two witnesses would have been marked, but its effect would not have been so prejudicial to the defendant as the reference that was made. Why pass over them ? The inference that the jury would be likely to derive from such a remark would be that because the witnesseses were employees of the defendant company their testimony need not be seriously considered, and yet it bore as directly upon the one fact in issue as that of the other witnesses, and was in entire accord with it. Of course, the court intended no such inference to be drawn, but the jury would be most likely to accept it as the obvious one.

It is unnecessary to illustrate further. We have sufficiently indicated wherein the charge comes short of being a fair and impartial résumé of the evidence. Any review of the evidence by the court that is inaccurate in statement, or that gives such undue prominence to minor considerations as to divert the attention of the jury from the material questions in the case, and deprives either side of an advantage it is entitled to under the rules of evidence, is in effect misleading. That is what is complained of in respect to the charge in this case; and what we have indicated shows, we think, that the complaint is not without reason. It was not a fair and adequate presentation of the case, and the assignment of error must be sustained.

Judgment reversed and venire facias de novo awarded.


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    Smith, Appellant v. Philadelphia.

      Negligence — Municipalities—Defective road — Contributory negligence —Nonsuit.

    In an action against a city to recover for personal injuries, it appeared that plaintiff was driving on a wide avenue which at the time of the accident was unimproved as a city street. He was riding in a road cart at a slow trot when one wheel of the cart ran into a depression, and in turning the horse abruptly to one side the cart was upset. The depression was six or eight feet in length and about ten feet in width, with sloping sides, and had a depth of six or eight inches at its lowest point. , It was near the edge of a car track which curved from a cross street on to the avenue. There were no other vehicles nor other objects on this part of the avenue to distract the plaintiff’s attention or obstruct his view of the road in front of him. He testified that he could have seen the depression when twenty-five or fifty feet from it, and that he had last glanced in front of him two minutes before the accident and then was looking for a car that might come from the cross street. Held, that a nonsuit was properly entered on the ground of plaintiff’s contributory negligence.
    February 25, 1907:
    Argued Jan. 9, 1907.
    Appeal No. 212, Jan. T., 1906, by plaintiff, from order of C. P., No. 1, Phila. Co., Deo. T., 1905, No. 1M2, refusing to take off nonsuit in case of Frank J. Smith v. City of Philadelphia.
    Before Mitchell, C. J., Fell, Brown, Mestbezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Beitler, J.
    The facts appear by the opinion of the Supreme Court.
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was the order of the court refusing to take off nonsuit.

      Howard A. Doris, with him John T. Murphy, for appellant.

      Harry T. Kingston, assistant city solicitor, with him John L. Kinsey, city solicitor, for appellee.
   Opinion by

Mr. Justice Fell,

A nonsuit was entered in this case on the ground of contributory negligence. The plaintiff, in daytime, was driving on Rising Sun Lane, which is a wide avenue and at the place of the accident unimproved as a city street. He was riding in a road cart at a slow trot when one wheel of the cart ran into a depression, and in turning the horse abruptly to one side the cart was upset. The depression was six or eight feet in length and about ten feet in width, with sloping sides, and had a depth of six or eight inches at its lowest point. It was near the edge of a car track which curved from a cross street on to the lane. There were no other vehicles nor other objects on this part of the lane to distract the plaintiff’s attention or obstruct his view of the road in front of him. He testified that he could have seen the depression when twenty-five or fifty feet from it, and that he had last glanced in front of him two minutes before the accident and then was looking for a car that might come from the cross street.

It is evident from the plaintiff’s testimony that he was not exercising the reasonable care that the law requires of every traveler on a public highway, to look where he is going. If he had looked in front of him, he would have seen the depression in time to avoid it. There was no excuse for not looking. In Quinlan v. Philadelphia, 205 Pa. 309, relied on by the appellant, the hole was in the asphalt surface of the street at a place where the passageway was narrowed by wagons backed against the curb in front of a market house, vehicles were passing in both directions, and the plaintiff could not see the hole because of the wagon immediately in front of her.

The judgment is affirmed.


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    McCafferty, Appellant, v. Philadelphia.
    February 25, 1907:
    Argued Jan. 9, 1907.
    Appeal, No. 211, Jan. T., 1906, by plaintiff, from order of C. P. No. 1, Phila. Co., Dec. T., 1905, No. 4,208, refusing to take off nonsuit in case of Edward J. McCafferty v. City of Philadelphia.
    Before Mitchell, C. J., Pell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
   Opinion bt

Mr. Justice Fell,

This case arose from the same accident as that of Smith v. Phila., ante, p. 118, in which the opinion of the court has been filed. The cases were tried together and the same question is involved in- each.

The judgment is affirmed.


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    McGeehan, Appellant, v. Hughes.

      Negligence — Master and servant — Duty of master — Safe appliances.

    Where a master voluntarily subjects his servant to dangers, such as, in good faith, he ought to provide against, he is liable for any accident arising therefrom. The servant does not stand on the same footing with the master. His primary duty is obedience, and if, when in the discharge of that duty, he is damaged, through the neglect of the master, it is but meet that he should be recompensed. The employer is bound to furnish and maintain suitable instrumentalities for the work or duty which he requires of his employees, and failing in this, he is liable for any damages flowing from such neglect of duty.
    In an action by a stevedore against his employer to recover damages for personal injuries sustained while engaged in' unloading iron ore from a ship, it appeared that the ore was being unloaded by means of buckets. The evidence showed that the bail or handle by which the bucket was attached to the hoisting tackle was torn from the side of the bucket, during an ascent, and the contents, about 4,000 pounds of ore, dropped back, some of it striking plaintiff. It appeared from the uncontradicted testimony of a naval architect, familiar with appliances for loading and unloading ships,' and having knowledge of the tensile strength of iron and steel, that the safety point for loading the bucket was 1,500 pounds, while the ultimate breaking point was 6,000 pounds, thus providing for the usual factor of safety of four to one. Held, that the case was for the jury and that a verdict and judgment for the plaintiff should be sustained.
    In an action by an employee against his employer to recover damages for personal injuries, it is not error to reject evidence as to methods and appliances which were in ordinary and general use, where there is no offer to follow this by evidence tending to show that the method used by the defendants was unusual, and was more dangerous it itself than the ordinary method.
    Argued Jan. 10, 1907.
    Appeal, No. 248, Jan. T., 1906, by plaintiff, from judgment of C. P. No. 5, Phila. Co., Dec. T., 1904, No. 1,366, on verdict for plaintiff in case of Bernard McGeehan v. William J. Hughes and Morris Boney, Jr., trading as Morris Boney & Son.
    Before Mitchell, C. J., Pell, Brown, Mestkezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Martin, P. J.

      The facts are stated in the opinion of the Supreme Court.
    When plaintiff was on the stand he was asked this question:
    “ Q. Is there any other kind of bucket you saw used for loading iron ore % ”
    Objected to.
    Objection sustained.
    Exception for plaintiff. [1]
    George B. Drake, plaintiff’s witness, was asked this question :
    “A. I have been quite familiar with the unloading and loading appliances around vessels in Buffalo and Cleveland and Ashtabula, and also in Chicago, and I have had more or less of it down here. Q. Will you state what is the method in ordinary and general use for the unloading of iron ore from vessels ? ”
    Objected to.
    Objection sustained.
    Exception for plaintiff. [2]
    Francis McGlashen was asked this question:
    “ Q. Were these buckets used for anything else than marbella iron ore % ”
    .Objected to.
    Objection sustained.
    Mr. Warner: I wish to show that these buckets, the construction of which I will explain later on, were used to carry all sorts of loads, irrespective of the weight.
    Objected to.
    Objection sustained.
    Exception for plaintiff. [3]
    Yerdict for plaintiff for $10,000.
    The court subsequently entered judgment for defendants non obstante veredicto.

      Errors assigned were (1-3) rulings on evidence, quoting the bill of exceptions; (é) in entering judgment for defendants non obstante veredicto.

      Frederick H. Warner, with him Arthur B. Houseman, for appellant.
    The general test of negligence in regard to machinery has no application where the tool or instrument is misapplied in its use at the special instance of the employer: Strawbridge v. Bradford, 128 Pa. 200.
    February 25, 1907:
    Negligence was not a mere inference, but such an inference would be justified: Hughes v. Fayette Mfg. Co., 214 Pa. 282.

      A. L. Cameron and W. W. Smithers, for appellees, were not heard, but in their printed brief said :
    The presumption that a tool supplied by a master to his servant is reasonably fit and safe must be overcome by proof that the tool was in fact unfit and that the master knew or ought to have known that its use was dangerous: P. & R. R. R. Co. v. Hughes, 119 Pa. 301.
    The mere fact that the bail broke raised no presumption of defect or negligence; the plaintiff was bound to show a cause for the breaking and also that such cause was chargeable to to defendants’ negligence: Spees v. Boggs, 198 Pa. 112; McAvoy v. Woolen Co., 140 Pa. 1; Mixter v. Coal Co., 152 Pa. 395; Bradbury v. Coal Co., 157 Pa. 231; Johnston v. Turnbull, 124 Fed. Repr. 476.
   Opinion by

Mr. Justice Potter,

This was an action of trespass by an employee against his employers, to recover damages for personal injuries, sustained in the course of his employment, through the alleged negligence of the employers. The facts, substantially as stated by the trial judge, were as follows : The defendants, Morris Boney & Son, were stevedores. The plaintiff, Bernard McGeehan, a laborer in their employ, was injured by iron ore falling upon him from a tub or bucket hoisted from the hold of a vessel where he was employed with other men who were working for defendants. The bail or handle by which it was attached to the hoisting tackle, was torn from the side of the bucket, during an ascent and the contents, about 4,000 pounds of ore, dropped back into the ship, some of it striking plaintiff and inflicting the injuries which were the basis of his suit. The negligence with which defendants were charged was failure to supply a reasonably safe bucket of sufficient strength to hoist iron ore from the hold of the vessel.

Plaintiff’s statement averred “ that the said bucket fell by reason of a defect in the said handle or frame, and that the said defendants were negligent in furnishing him, for use, an appliance so defective, which said defect could have been discovered by his said employers with proper care, and which said defect was unknown at the time, to this plaintiff.”

The jury found a verdict for the plaintiff in the sum of $10,000, but the court below entered judgment in favor of the defendant non obstante veredicto, under the provisions of the Act of April 22, 1905, P. L. 286. Plaintiff has appealed, and assigns for error the exclusion of certain testimony, and the entry of judgment.

The first assignment of error complains of the exclusion of evidence as to the general use of other kinds of buckets for unloading ore, than that by which plaintiff was hurt. This error was rendered harmless by reason of the fact that defendants’ foreman afterwards answered practically the same question, and the fact was undisputed that defendants had at that place two kinds of buckets in use, one with clamped bails and rivet holes, and the other with solid forged eye-plates in the bails or handles.

The second assignment of error complains of the rejection of evidence as to the.methods which were in ordinary and general use, in unloading iron ore. If an offer had been made to follow this question by evidence tending to show, that the method used by defendants was unusual, and was more dangerous in itself than the ordinary method, the question would have been admissible. In the form in which it was presented, and with no indication that it was to be followed with anything further, it was properly rejected.

The offer contained in the third assignment of error, to show that the buckets were used to carry all sorts of material, does not seem to have been relevant. But if it was, we do not see that its exclusion did any harm, for there was ample evidence to show that the defendants were using the buckets to carry loads of iron ore, to the extent of 4,000 pounds in weight. The testimony is uncontradicted that the buckets were of sufficient size when filled, to contain 4,500 pounds of iron ore. According to the evidence, the weak point in the construction of the bucket was in the handle or bail. It was the breaking or tearing out of the bail that caused the accident in this case.

The testimony of Francis McGlashen, a fellow workman, who examined the bucket after the accident, was that the break in the bail was directly through one of the rivet holes. There was no testimony as to any cause of the breaking except overloading. All the witnesses agreed that the loads on the buckets were about 4,000 pounds each. George B. Drake, a naval architect and expert called by plaintiff, testified that the safety point in weight for such a bucket would be 1,500 pounds. If the bucket had had a bail, with a forged eye, the safety point would have been increased to 2,000 pounds.

The case for the plaintiff was abundantly sustained by the uncontradicted evidence of Mr. Drake, the naval architect, who showed thorough familiarity with appliances for loading and unloading vessels, and whose experience in the building of ships and vessels had fitted him to judge of the tensile strength of iron and steel. In his testimony he discussed the different kinds of buckets, their relative merits, the question of ordinary usage, and their tensile strength. In commenting on his evidence, the learned trial judge says that he “ was not able to say whether the bucket in question was made of iron or steel,” but. the architect’s estimate as to strength was founded upon steel and therefore was in that respect favorable to the defendants. The architect said that the safety point for loading was 1,500 pounds, while the ultimate breaking point was 6,000 pounds, thus providing for the usual factor of safety of four to one. As the evidence showed that the load placed in the bucket was 4,000 pounds, it is apparent that no attention was paid to the factor of safety, as this was considerably more than twice the weight which the buckets could safely carry. There is no force in the suggestion of the trial judge that loads of the same amount had frequently been placed in the buckets before without breaking. Continuous overloading could only result in producing a strain which would finally cause the bail to give away, just as it did. The evidence was certainly sufficient to submit to the jury as to the cause of the break. This was not the case of a mere guess as to how the accident happened. The value of the testimony of the naval architect was fortified by his long experience, which gave him unusual means of knowledge of the appliances in use in work of this character. It is difficult to see how a better witness for the purpose could have been produced, than one with expert knowledge of the strength of materials, and of the methods usually employed in loading and unloading vessels by means of buckets and hoisting apparatus.

The general rule governing the liability of the employer in such cases, was stated by this court, in Patterson v. Pittsburg, etc., R. R. Co., 76 Pa. 389, as follows: “It is true the master is not responsible for accidents, occurring to his servant, from the ordinary risks and dangers which are incident to the business in which he is engaged; for in such case, the contract is presumed to be made with reference to such risks. But, on the other hand, where the master voluntarily subjects his servant to dangers, such as, in good faith, he ought to provide against, he is liable for any accident arising therefrom. . . . The servant does not stand on the same footing with the master. His primary duty is obedience, and if, when in the discharge of that duty, he is damaged, through the neglect of the master, it is but meet that he should be recompensed. . . . The employer is bound to furnish and maintain suitable instrumentalities for the work or duty which he requires of his employees, and, failing in this, he is liable for any damages flowing from such neglect of duty.”

We are of opinion that under the evidence in this case, the questions were properly for the. jury, and the court below erred in entering judgment for the defendants non obstante veredicto.

The fourth assignment of error is sustained, and in accordance with the precedent established in Hughes v. Miller, 192 Pa. 365, we remit the record to the court below, that such judgment may be entered in accordance with this opinion, as law and justice require.