text:
    Barry v. Jones & Laughlin Steel Company, Appellant.

      Negligence — Master and servant — Safe place to work — Steel mill.

    1. It is not only the duty of a master to provide a safe place for his servant to work, but also to maintain it in a reasonably safe condition by inspection and repair. This is a direct, personal absolute obligation from which nothing but performance can relieve the master.
    2. Where the recrement or “scull” of a steel mill falls in the operation of the converters on to the roof-shield, and it is the duty of the owner of the mill to keep the roof-shield clean of the scull so that it may not harden and fall on the vessel floor below where men are at work, and the owner fails to perform this duty, and an employee who was required by his work to be on the vessel floor is hit and injured by the falling “scull,” the employer is liable for the injury sustained. In such a case the employee’s injuries are not caused from dangers which arise during the progress of the work, but are due to the failure of the employer to furnish a reasonably safe place to work.
    Argued Oct. 30, 1911.
    Appeal, No. 188, Oct. T., 1911, by defendant from judgment of C. P. No. 4, Allegheny Co., Third Term, 1908, No. 822, on verdict for plaintiff in case of James M. Barry v. Jones & Laughlin Steel Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Swearingen, P. J.
    The circumstances of the accident are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $7,000. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant and in refusing defendant’s motion for judgment n. o. v.

      William, A. Challener, with him Clarence Burleigh and John D. McKenna, for appellant.
    — When danger can only arise as work progresses and be caused by the work done, the employer is not bound to stand by during the progress of the work to see when the danger arises: Coleman v. Keenan, 223 Pa. 29; Durst v. Carnegie Steel Co., 173 Pa. 162; Welch v. Stone Co., 215 Pa. 34; Schneider v. Phila. Quartz Co., 220 Pa. 548.

      John C. Bane, for appellee.
    — A master is required to furnish his servant with a reasonably safe place to work, and, while the work is in progress, to keep and maintain this place in a reasonably safe condition: Finnerty v. Brunham, 205 Pa. 305; Lillie v. Car & Foundry Co., 209 Pa. 161.
    January 2, 1912:
   Opinion by

Mr. Justice Mestrezat,

This was an action of trespass brought by an employe to recover damages for injuries sustained while engaged in the service of his employer. The errors alleged in the two assignments are that the court refused to direct a verdict for the defendant, and subsequently declined to enter judgment for the defendant non obstante veredicto. The case turns upon which of two principles of law is applicable to the facts disclosed by the testimony on the trial of the cause. The position of the defendant company, the appellant, as stated by its counsel, is that the accident to the plaintiff was occasioned by the nature and the character of the work done, and that the plaintiff’s injuries were caused from dangers which arose during the progress of the work for which the company was not liable. The plaintiff, the appellee, claims that his injuries resulted from the failure of the defendant to furnish him a reasonably safe place to work, and in not using reasonable care to maintain it in such condition.

The defendant company is engaged in the manufacture of steel on the South Side, Pittsburgh, and the plaintiff was employed as a vessel foreman in the Bessemer department of the plant. It was his duty to see that the converters were kept in good working order and that they were kept in operation. There was a vessel floor or platform extending around the converters which was about twelve feet above the ground floor. A railroad track was constructed on the platform, and upon that track the molten metal was brought in cars, from any point in the mill to the converters and deposited in them. About fifteen feet above the vessel floor there was a roof-shield of boiler iron constructed in the shape of a right angle triangle for the purpose of protecting the superstructure and roof of the mill from discharges from the converters. The hypothenuse of the triangle was parallel with the roof, the base was the horizontal face of the roof-shield and about fifteen feet directly above the converters, and the perpendicular face of the roof-shield extended to the roof. After the molten iron is placed in the converter and it is elevated to a perpendicular position, a blast of cold air is sent through the tuyere to the interior of the converter for the purpose of expelling the slag, dross and other impurities in the metal. These impurities, called “scull” by the workmen, are discharged from the top of the converter and driven against and deposited on the roof-shield. This recrement on the roof-shield cools and hardens, and after accumulating falls, alighting on the vessel floor.

In the performance of his duties, the plaintiff was required to be on the vessel floor or platform. On the day of the accident, July 11, 1907, a portion of the molten metal in one of the cars had “spilled over” on the railroad track, and before the track could be used again it was necessary to remove the spilled metal. While the plaintiff was engaged in assisting to remove the metal, he was struck on the head by a piece of “scull,” knocked to the ground floor and very seriously injured. The plaintiff introduced testimony to show that it was the duty of the defendant to keep the “scull” cleaned off the roof-shield so that he and others who were required to be upon the vessel floor while engaged in operating the converters would be protected from injuries resulting from the fall of “scull” from the roof-shield. He testified that the “scull” needed constant attention, that it was the company’s business to give it such attention, and that the company had, on other, occasions, sent men with proper instruments to remove it. He says he knew that the “scull” was likely to fall, but that he also knew that it was the duty of the company to have it removed and that the company had, at other times, removed it from the roof-shield so as to protect the employes at work on the vessel floor. The plaintiff’s evidence tended to show that at the place he was required to work he could not and did not see whether there was any accumulation of “scull” upon the roof-shield at the time of the accident.

The learned court instructed the jury that if the accumulation of the “scull” on the roof-shield would and did take place, and the defendant undertook and did from time to time keep the roof-shield cleaned of the “scull”, and on the occasion of the accident neglected to do so, the plaintiff was entitled to recover; but if, as the defendant claimed, the accumulation of “scull” upon the roof-shield was a transitory danger that occurred in the progress of the work, it was not the duty of the defendant to keep it cleaned off the roof-shield and the plaintiff would not be entitled to recover.

An employer, as we have frequently held, is not liable for injuries to an employe from dangers arising during the progress of the work and caused by the work done. He is not required to stand by during the progress of the work to see when a danger arises. It is sufficient if he provides against such dangers as may possibly or probably arise, and gives the workmen the means of protecting themselves; they should look out for such dangers and use the means provided: Durst v. Carnegie Steel Co., 173 Pa. 162. In such cases the employer cannot anticipate the unexpected danger, and hence cannot be required to make provision against it. But the case in hand is not ruled by this principle. The accident was not caused by the plaintiff nor by a fellow employe; nor was the cause of it unexpected and not to be anticipated by the employer. In the operation of the converters, the defendant knew that the “scull” would be discharged therefrom and be deposited on the roof-shield. That was inherent in the business and was certain to occur in the operation of the converters. The plaintiff and other employes whose duties required them to be on the vessel floor had no control over the “scull” and were in no way responsible for its being deposited on the roof-shield or for its falling therefrom to the vessel floor. It was not their duty to remove it or in any way to interfere with it. The plaintiff, if the evidence is believed, did not and could not have seen the “scull” which fell and caused his injury. He was therefore not inviting the injury by standing under a known danger; on the contrary he was where his duty required him to be and where he had reason to believe he would be protected by his employer from the falling recrement. Assuming the testimony produced by the plaintiff to be credible, as the jury found, the defendant recognized the danger and on various occasions removed the “scull”.

It is clear that the question at issue in the cause is whether the defendant company furnished the plaintiff a safe place in which to perform his duties, and whether it continued to keep it in the same condition. The law is settled that it is not only the duty of the master to provide a safe place for the servant to work, but also to maintain it in a reasonably safe condition by inspection and repair. That is a direct, personal, absolute obligation from which nothing but performance can relieve the master. It was therefore manifestly the duty of the defendant company not only to see that the place in which the plaintiff had to work was safe when he entered upon the performance of his duties, but also to maintain the place in a safe condition while he was engaged in his work on the vessel floor. The company knew the “scull” would accumulate on the roof-shield and harden and fall, and would alight at the very point on the vessel floor where the plaintiff had to do his work. This was an ever present danger to all the employes on the floor, and the defendant company had full knowledge of it. It is true that the employes also recognized the danger, but it is equally true that if the defendant was required to keep the place reasonably safe and protect them from the known danger, it was its duty to maintain a constant vigil on the “scull” adhering t© the roof-shield, and see that it was removed before it could harden and fall to the vessel floor. The employes engaged at this place assumed the dangers necessarily incident to their employment, but this rule cannot be extended so as to relieve the defendant here from the duty to keep watch on and remove the “scull” so as to protect the employes from the danger inherent in and arising from the operation of the converters. These dangers necessarily arose from the business, and being known to the defendant company and it having the power and being its duty to afford protection against them, it cannot be heard to say that the dangers were incident to the service and therefore it is relieved from liability. The facts found by the jury, under a charge to which no exception was taken, show that the defendant company failed in its duty to furnish the plaintiff a reasonably safe place in which to perform his work, and that this' failure of duty without negligence on part of the plaintiff resulted in the injuries for which this action was brought. It follows that the court committed no error in declining to direct a verdict for the defendant, or in refusing to enter judgment for the defendant notwithstanding the verdict.

The judgment is affirmed.


source: Caselaw Access Project

author: Mr. Justice Potter,

license: Public Domain

text:
    Wilkinsburg Borough School District’s Case.

      Bankruptcy — State and Federal courts — Jurisdiction—Dispute as to title of property — Qonsiitutional law.

    Where a contractor is adjudicated a bankrupt, and thereafter the owner of the building pays into court a sum of money due the contractor upon an estimate, and, in proceedings to distribute the fund questions of law and fact arise among three different claimants, and particularly where the constitutionality of the Pennsylvania Mechanics Lien Act is called in question, it is the duty of the court below to pass upon the various questions of law and fact raised in the proceedings, before turning over the fund to the trustees in bankruptcy.
    Argued Oct. 30, 1911.
    Appeal, Nos. 100 and 101, Oct. T., 1911, by American Bridge Co. and Wilkinsburg Borough School District, from order of C. P. No. 2, Allegheny Co., Jan. T., 1910, No. 459, directing money to be paid over to a trustee in bankruptcy in the matter of the Application of School District of Wilkinsburg
    Borough. Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Proceedings to distribute money paid into court, Before Frazer, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was order directing the fund to be paid to the trustee in bankruptcy.

      James E. Hindman, with him Reed, Smith, Shaw & Beal, for appellant.
    — The same Court has jurisdiction of controversies between trustees in _ bankruptcy and adverse claimants, concerning property or funds which have never been in the possession of the Bankruptcy Court or its officers, as would have had jurisdiction of the controversies had bankruptcy proceedings not been instituted: In re Rathman, 183 Fed. Repr. 913; First Nat. Bank v. Chicago Title & Trust Co., 198 U. S. 280 (25 Sup. Ct. Repr. 693); Bardes v. Hawarden Bank, 178 U. S. 524 (20 Sup. Ct. Repr. 1000; Louisville Trust Co. v. Comingor, 184 U. S. 18 (22 Sup. Ct. Repr. 293); Murphy v. John Hofman Co., 211 U. S. 562 (29 Sup. Ct. Repr. 154); Frank v. Volkommer, 205 U. S. 521 (27 Sup. Ct. Repr. 596).

      George H. Rankin, for appellee.
    — The trustee in bankruptcy is the proper person entitled to collect and receive money owing to the bankrupt: King v. Dietz, 12 Pa. 156; Loveland on Bankruptcy, (3rd. Ed.) 118; Trimble v. Woodhead, 102 U. S. 647; In re Knight, 125 Fed. Repr. 35; Carpenter Bros. v. O’Connor, 16 O. C. C. 526.
    January 2, 1912:
   Opinion by

Mr. Justice Potter,

A dispute arose between P. W. Finn, contractor, and the American Bridge Company, sub-contractor for the erection of a high school building in Wilkinsburg, as to the right to a sum of money due upon an estimate. Upon petition of the School District, the money was paid into court. On September 2, 1910, the Commonwealth Trust Company of Pittsburgh, which had been appointed trustee for Finn, who had been adjudicated a bankrupt, filed a petition praying that the fund in court should be paid over to it as such trustee. Answers were filed by the school district and the subcontractor, the American Bridge Company, each claiming the money in court; the former as a fund for the completion of the contract, and the latter under the provisions of the Mechanics Lien Act of June 4, 1901, Sec. 6, P. L. 431, as amended by the Act of April 22, 1903, P. L. 255. On January 21, 1911, the school district filed a petition averring the unconstitutionality of these acts of assembly, and prayed that the money paid into court should be returned to it to be used for the completion of work, occasioned by the default of Finn in the completion of Ms contract. Answers were filed by both the trustee in bankruptcy, and the subcontractor, affirming the constitutionality of the provisions of the Mechanics’ Lien Act in question, and denying the right of the school district to the money.

The case was heard as upon the petitions and answers. The court below refused to pass upon the questions raised as to the constitutionality of the Acts of Assembly, or upon the merits of the respective claims, and ordered the fund to be turned over to the trustee in bankruptcy, and relegated to the bankruptcy court the determination of the whole matter. Both the Wilkinsburg School District and the American Bridge Company have appealed, and assign for error the order directing payment of the fund in court to the Commonwealth Trust Company, trustee in bankruptcy of P. W. Finn. Both appeals were argued together, and appellants have filed a joint paper book.

The questions involved, as stated by appellants, are Avhether the court below should not have passed upon the constitutionality of the 6th section of the Mechanics Lien Act, which was raised by the pleadings, and should not have adjudicated the other questions relating to the distribution of the fund in court. The United States Bankrupt Law (Act of July 1, 1898, ch. 541) (30 St. 544), by section 23 b provided: “Suits by the trustee shall only be brought or prosecuted in the courts where the bankrupt, whose estate is being administered by such trustee, might have brought or prosecuted them if proceedings in bankruptcy had not been instituted, unless by consent of the proposed defendant.” Under this section, the Supreme Court of the United States held in Bardes v. Bank, 178 U. S. 524, (opinion by Mr. Justice Gray, p. 536) that “the ascertainment, as between the trustee in bankruptcy and a stranger to the bankruptcy proceedings, of the question whether certain property claimed by the trustee does or does not form part of the estate to be administered in bankruptcy” was not “brought within the jurisdiction of the national courts solely because the rights of the bankrupt and of his creditors have been transferred to the trustee in bankruptcy.” By the Act of February 5, 1903, ch, 487 (32 St. 797) the above section was amended by adding the words “Except suits for the recovery of property under section 60, subdivision b, and section 67, subdivision e” were added. These sub-divisions referred to, relate to matters which do not apply to the present case. It would seem therefore that the Supreme Court held that the Federal Courts were without jurisdiction to-determine questions in controversy between the trustee in bankruptcy, and other claimants of such a fund as that now in court. But the Act of 1903 also amended section 60 b, section 67 e and section 70 c, by adding to each of them the words “For the purpose of such recovery any court of bankruptcy, as hereinbefore defined, and any state court which would have had jurisdiction if bankruptcy had not intervened, shall have concurrent jurisdiction.” In Frank v. Vollkommer, 205 U. S. 521, Mr. Chief Justice Fuller thus comments: “The amendment (of 1903) gave the bankruptcy court concurrent and not exclusive jurisdiction.” In Pickens v. Roy, 187 U. S. 177, the Chief Justice said (p. 180) that where a proceeding, involving the ownership of property claimed to belong to the bankrupt, was already pending in the State Court, “it was the right and duty of that court to proceed to final decree notwithstanding adjudication, the rule being applicable that the court which first obtains rightful jurisdiction over the subject matter should not be interfered with.”

In the present case the rule to pay the money into court was not taken until after the adjudication in bankruptcy, but the order was made before the appointment of the trustee and with notice to the receiver, the same corporation which was afterwards appointed trustee. No answer to the rule was filed by the receiver.

Under the rulings of the Supreme Court of the. United States, above quoted, we think it is clear that the court below had jurisdiction to pass upon the rights of the various claimants to the fund, including that of the trustee in bankruptcy. It was therefore the duty of the court below to decide the questions of law and fact raised by the petitions and answers, and the order made without considering those questions upon their merits, was erroneous. Especially was it the duty of the court to decide the questions raised as to the constitutionality of provisions of the Mechanics Lien Acts of 1901 and 1903. The courts of Pennsylvania are the proper tribunals in which to determine the validity of statutes of our State alleged to offend against the State Constitution.

The assignment of .error is sustained, and the judgment is reversed.


author: Per Curiam,

text:
    Oil Well Supply Company v. Ulrich Stewart Mfg. Company.

      Auditors — Findings of fact — Evidence—Receivers — Corporation.

    The findings of fact by an auditor of the account of a receiver, on which is based the disallowance of a personal claim of the receiver, will not be disturbed by the appellate court where such findings are based upon competent testimony, have been approved by the court below, and are without manifest error.
    Argued Oct. 30, 1911.
    Appeal, No. 62, Oct. T., 1911, by Henry Ulrich, from order of C. P. No. 2, Allegheny Co., July T., 1905, No. 990, dismissing exceptions to auditor’s report in case of Oil Well Supply Company v. Ulrich Stewart Manufacturing Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Exceptions to auditor’s report.
    The case turned upon the auditor’s findings of fact.

      Error assigned was in dismissing exceptions to auditor’s report.

      W. K. Jennings, with him C. D. Jennings and Stonecipher & Ralston, for appellant.

      Ward Bonsall, with him Charles A. Poth, for appellees.
    January 2, 1912:
   Per Curiam,

The assignments of error are to the confirmation of the report of an auditor of the account of a receiver of an insolvent corporation. The main complaint is that a personal claim by the receiver for the value of property alleged by him to have been delivered to the corporation at the time of its organization was disallowed. A discussion of the details of the controversy between the receiver and the creditors of the corporation would serve no useful purpose. The question before the auditor was one of fact purely. We have repeatedly said that the findings of fact by an auditor, approved by the court, will not be disturbed unless it is clearly shown that they are erroneous. Ordinarily the limit of our inquiry in reviewing findings of fact, is to ascertain whether there was testimony, which, if believed, would sustain the findings: Steinmeyer v. Siebert, 190 Pa. 471; Rorabaugh’s Estate, 229 Pa. 377. There was ample testimony to sustain tbe findings made.

The order is affirmed at the cost of the appellant.


author: Mr. Justice Elkin,

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

      Negligence — Railroads—Yards — Permissive crossing — Contributory negligence.

    1. Where a railroad company permits consignees of produce to enter its yard for the purpose of unloading ears, and it appears that there were certain plank crossings in the yard used by wagons, but that it was also necessary for consignees in order to get to their cars, to go diagonally across intervening tracks, the railroad company will be liable for the death of one of the consignees who was killed, by the negligent operation of a train, while he was diagonally crossing the tracks at a point other than the plank crossings. Such a case is not controlled by the rules of law applicable to grade crossing eases.

      Negligence — Damages—Death — Darning capacity — Partnership profits.

    2. In an action to recover damages for death, the profits in a partnership business in which the deceased was engaged are not an element of damages in determining his earning power. If the deceased received a salary as manager of a partnership business, or a percentage of the profits for his services as manager, it is competent to show such salary in establishing his earning power; so also if the deceased was engaged alone in a business which required little or no capital, such as truekering or huckstering, the profits of such business may be shown.
    3. Where a husband engaged in a small business with only a nominal capital invested, and having no other means of support, gives his wife a monthy allowance with which to maintain his family, for a long period of years, it is a fair inference that the sums of money so given came from his earnings, and in a proper case, such proof is admissible to show earning power at least to the extent of the amount so furnished.
    Argued Oct. 30, 1911.
    Appeal, No. 224, Oct. T., 1911, by defendant from judgment of C. P. No. 4, Allegheny Co., First Term, 1909, No. 233, on verdict for plaintiff in case of Minerva Elizabeth Boggess v. Baltimore & Ohio Railroad Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Trespass to recover damages for death of plaintiff’s husband. Before Cohen, J.
    At the trial it appeared that the deceased was killed in defendants yard on January 20, 1908, while diagonally crossing a track in order to reach a car which he intended to unload. The evidence tended to show that the death of the decedent was due to the negligent operation of a locomotive.
    The court charged, in part as follows:
    If you find that such permissive right of crossing and using these tracks existed, then the company was bound to take notice of such right, and to take such reasonable measures for the safety of its shippers so using the tracks, as to reasonably, by ordinary care, protect them from danger; there being in such case no presumption that the track was clear at such point, as there is in other parts of the road where such permissive use does not exist.
    [If you believe from the weight of the evidence that such shippers used defendant’s tracks for reaching their cars, then such use established a permission by the company, or what is known as a permissive use, to the shippers so to do, if it existed as many years as the testimony of some of the witnesses indicates; and the company thereby incurred a liability or duty as to that class of shippers to see to it that its operations on those tracks were controlled with reasonable care.] 17.
    [The company could have canceled this right of way or permissive use, if it existed, by due notice to shippers. Indeed, there is an Act of Assembly in Pennsylvania permitting all property owners, whether railroad owners or private owners, by placarding their property, to notify people not to trespass. If the company did not do so, and you find from the weight of the evidence that the permissive use as described then existed, as to crossing the tracks, the company was bound to recognize the incidental danger connected with the conditions that prevailed, so far as the safety of such shippers was concerned, in the operation of its engines along said tracks, by the exercise of prudent and reasonable methods.] 18.
    Was there, gentlemen, such permissive use at the location in question? If so, did the company in the operation of its cars, use that degree of reasonable care which under the circumstances it was bound to do? You must be satisfied by the weight of the evidence that the company, or its agents and officers at this location, had notice, either actual or constructive, by a reasonably long lapse of time, by reasonably frequent and general use by those and other shippers, before you can determine that there was a permissive crossing. Did the company have such notice that these tracks were used in manner and form as indicated by the testimony so as to constitute a permissive way? That is for you.
    The defendant presented inter alia the following points:
    [“Ninth. The jury must disregard the evidence as to the amount of profits made by the deceased, Gr. W. Boggess, in Ms business during the time that he was in partnership with the two other men named by the plaintiff.”
    This point is affirmed, as qualified by the terms of my charge later on this question.] 9.
    [“Tenth. The jury must disregard the evidence as to the amount of profits made by the deceased, G. W. Boggess, in his business prior to the time that he was in partnership with the two other men named by the plaintiff.”
    This point is refused with the preceding qualification.] 10.
    [“Eleventh. The jury must disregard the evidence as to the amount of profits from his business which was devoted by the deceased, G. W. Boggess, to the support of his wife and family during the time that he was in partnership with the two other men named by the plaintiff.”
    This point is refused, with the preceding qualification.] 11.
    [“Twelfth. The jury must disregard the evidence as to the amount of profits from his business which was devoted by the deceased, G. W. Boggess, to the support of his wife and family prior to the time that he was in partnership with the two other men named by the plaintiff.”
    This point is refused.] 12.
    [Now, gentlemen, to elaborate and explain the true meaning of what I suggested to you — for fear that I may not have been clear, I will qualify all these answers by saying to you and by impressing upon you that the evidence to show the profits of the deceased in a partnership business and that he furnished money in considerable amounts to his family, is not to be considered in estimating the damage sustained by reason of his death; but I say to you further, and the Supreme Court of this State has said within a few months, that although profits derived from a business cannot be considered as earnings, yet in many cases, profits derived from the management of business may properly be considered by the jury as measuring the earning power. And this is especially true, the Supreme Court says, when the business is one which requires and receives the personal attention and labor of the owner. With these qualifying suggestions as to my answers to these points on this subject, I submit the matter to you.]
    Verdict and judgment for plaintiff for |10,000. Defendant appealed.

      Errors assigned, among others were, (9, 10, 11, 12, 17) above instructions quoting them.

      William Watson Smith, with him Gordon & Smith, for appellant.
    — We submit that the Railroad Company did all that could reasonably be required to provide a way for the produce men to reach their cars, and that they could not, by the use of the tracks which has been described, fasten upon the railroad a permissive crossing lying between the two planked crossings which the Railroad Company had provided: Bailey v. Lehigh Valley R. R. Co., 220 Pa. 516; Mulherrin v. R. R. Co., 81 Pa. 366; Moore v. R. R. Co., 99 Pa. 301; Penna. R. R. Co. v. Mooney, 126 Pa. 244; Grant v. R. R. Co., 215 Pa. 265; Bailey v. R. R. Co., 220 Pa. 516; Kay v. R. R. Co., 65 Pa. 269.
    We submit that evidence to show profits of deceased in a partnership business are not admissible in a case of this kind: McCracken v. Traction Co., 201 Pa. 384; McLane v. Rys. Co., 230 Pa. 29; Wallace v. R. R. Co., 195 Pa. 127.

      David A. Reed of Reed, Smith, Shaw & Beal, with him Allen H. Kerr and Young & Clay, for appellee.

      January 2, 1912:
   Opinion by

Mr. Justice Elkin,

The husband of appellee was struck and killed by a shifting engine in the freight yards of appellant company. He was a dealer in produce and went to the freight yards on the morning of the accident to take charge of a car of produce consigned to him, which car was standing on a side track in the freight yards at a Customary place for the purpose of delivery. The car was delivered at that point in order that the consignee might have reasonable and safe access to it for the purpose of unloading and removing the produce which belonged to him. The shipper as he had the right to do, designated the terminal point at which the car was to be delivered, but the railroad company in the exercise of its control and supervision of freight shipments placed the car on a track in the freight yard selected by itself as a proper place to make the delivery. By placing the car at that point the consignee and those acting under his authority had a right to assume that the place was reasonably safe for the purpose intended, and that access would be afforded for the purpose of removing the produce. The learned court below clearly points out that no matter by what route the car was approached it was necessary to cross other tracks of the railroad company before reaching it. By the diagonal way spoken of by the witnesses in the case only one track had to be crossed, while by taking the wagon route over the planked crossings, it was necessary to cross several tracks before the car in question was reached. It is not therefore a case in which the right to recover damages is defeated because the injured party chose a dangerous route when nearby there was a perfectly safe route free from danger. The main contention of appellant is that the deceased husband was guilty of contributory negligence per se because in attempting to reach the car he took the diagonal way across the intervening track, instead of following the wagon way over the planked crossings. This position is asserted upon the theory that the case at bar is controlled by the rules of law applicable to grade crossing cases. We cannot accept this as a sound view of the law to be applied to the facts of the case at bar. This case is essentially different from the grade crossing cases relied on by appellant and comes more nearly within the reason and spirit of the rule laid down in Kay v. Railroad Company, 65 Pa. 269; Taylor v. Canal Company, 113 Pa. 162 and Curtis v. DeCoursey, 176 Pa. 446. In discussing a somewhat similar question in the case last cited, the present Chief Justice said: “Persons delivering or receiving freight did not enter and use the yard by the mere permission or passive acquiescence of the company, they were not strangers or mere licensees as to whom no duty in regard to the safety of the premises, except as to unexpected or secret dangers, arose. They were there by invitation in its technical sense, and by right. Their use of the yard was for the mutual interest of both parties in carrying on their business arrangements, and there was an implied understanding by the company that it should be reasonably safe. The duty of the company did not differ in kind from that which it owed to passengers in the care of its platforms and stations.” Duties grow out of circumstances, and that which in some instances would be deemed due and proper care may under other circumstances become negligence and want of care. In the present case, the freight yards are not like those portions of the road used exclusively for the running of trains, where the railroad company has the right to expect and demand a clear track. Here was a large freight yard intended as a proper place to deliver shipments to consignees. The railroad company constructed the yard and placed cars in that yard at points of its own selection for the purpose of having the freight unloaded and removed. There was an implied duty upon the railroad company to provide reasonably safe access to the cars in order that the consignments of freight could he unloaded and removed by those who had the right to do so. The railroad company, its officers and employees, knew the kind of use made of the yard and in shifting trains or cars were bound to exercise care, having due regard for this authorized or permissive use. The decedent was not a trespasser, or a mere licensee, but at the time of the accident was on the property of the railroad company on his way to the car which contained his produce in the exercise of his undoubted right to have access to his own property. He chose the diagonal way, claimed to be a permissive way, and this is the sense in which the question of a permissive use came into the case. The planked crossings used by wagons were the only ones definitely marked in the yards, but even when these were used, it was frequently necessary to cross other tracks in order to reach cars at different points where they were left standing. From this it follows that the danger of crossing tracks was not obviated by using the planked crossings. Under these circumstances we are of opinion that the question of the permissive use of the diagonal way under the evidence was properly submitted to the jury. It was not a question of establishing a particular grade crossing by permissive use, but whether there was a permissive use of the diagonal way as a means of access to cars standing upon the tracks. The evidence was sufficient to warrant a jury in finding that consignees had been afforded access to cars delivered in the freight yard by a permissive use of the diagonal way. We think this Avas a question for the jury and we find no error in its submission.

In several of the assignments of error the question is raised whether it was proper to admit testimony tending to show the profits of a partnership business as an element of damages in determining the earning power of decedent. It is well settled as a general rule that such testimony is inadmissible as a measure of earning power. Profits arising from a partnership business are produced in part at least by the capital invested, or by the services of the partners, or by both. Profits thus derived are not a fair measure of the earning power of one of the partners. In a suit to recover damages for personal injuries, it is the loss of individual earning power that is to be considered, and not earnings or income from capital invested by the injured party either individually or in connection with others. This always has been the rule but it is contended that some of our recent cases have authorized a departure from it, at least that they are in the nature of exceptions to the general rule. The cases relied on do give color to the respective contentions of the parties and need some explanation in order that the rule may be better understood and more definitely settled. Appellant relies on McHugh v. Schlosser, 159 Pa. 480; Goodhart v. Railroad Company, 177 Pa. 1; McCracken v. Traction Company, 201 Pa. 384, and many other cases of like import. These cases lay down the rule as to the proper measure of damages for personal injuries. One of the elements of damage recognized in all the cases is the loss of earning power, and whether temporary or permanent, as a result of the injury suffered. When the injuries result in death there is a total loss of earning power and it is for the jury to say what that loss is under the evidence when properly instructed by the court as to the true measure of damages. In the present case the death of the husband caused a total loss of earning power and the only question is how that loss shall be properly determined. The appellee and her daughter testified that for six months prior to the accident the decedent in connection with two other partners was engaged in a partnership business under the name of the Merchants Produce Company, and that the partners contributed the capital and decedent managed the business. The partnership business was conducted in a two story building •which was entirely occupied. Prior to the formation of the partnership the deceased husband had been engaged in the same business as an individual for twelve or thirteen years. These witnesses testified that at the time of his death and during all the time he was in the produce business the decedent earned about three thousand dollars a year. On cross examination appellee admitted that the earnings referred to represented profits arising from the partnership business and profits resulting from his individual business prior to the formation of the partnership. It was also in evidence that during the time the husband conducted his business as an individual he occupied all of his own two story building, and presumably used his own capital. The right to introduce this character of evidence is asserted on the authority of Wallace v. Railroad Company, 195 Pa. 127; Buckman v. Railway Company, 227 Pa. 277; and McLane v. Railways Company, 230 Pa. 29. It must be conceded that these cases, if not read in the light of the facts upon which they were decided, might very properly be cited to sustain the contention of appellee. They were not intended as a departure from the general rule but only as exceptions in cases where the earning power of an injured party could only be measured by profits derived from the management of the particular business in which he was engaged. In such cases much must necessarily depend on the character of the business. A trucker, or a huckster, having no other business, and giving his entire time to the particular business in which he is engaged, has no earning power except that resulting from the profits derived under his personal management from the sale of truck or produce. In such a case the capital invested is small and inconsequential and is represented by a horse and wagon and perhaps enough money to purchase a load of produce. His earnings depend upon the success with which he manages the business and not upon the tools with which he works. In cases of this character, and there are many of them, it is proper to show profits derived from management as a measure of the earning power of a person so engaged. Even in such cases, profits mean the excess of receipts over expenditures, in other words, net earnings, and this should always be kept in mind in the trial of cases of this character.

Mr. Justice Sharswood in Penna. Railroad Company v. Butler, 57 Pa. 335, stated the rule to be compensation for the loss sustained without any solatium for distress of mind, and that the proper measure of the loss is what the deceased would have probably earned by his intellectual or bodily labor in his business or profession during the residue of his life. This rule differently phrased has been reiterated over and over again from that time to the present. It will be noticed that the earning power contemplated is that resulting from the intellectual or bodily labor of the injured party in his business or profession. Profits derived from invested capital are clearly excluded. In the case .at bar profits derived from the partnership could not be considered as a measure of damages in determining the earning power of the decedent, and under the evidence we cannot escape the conclusion that they may have been so considered. We do not mean to say that it would be improper to show that the deceased husband received a salary as manager of the partnership business, or if he gave his services as manager for a percentage of the profits, that it could not be shown what his share of the profits was for the purpose of determining what he earned as manager. If he received a salary as manager, or if as compensation for his management he was to receive a certain share of the profits, it would be competent to prove these facts in establishing his earning power. The examination of the witnesses did not proceed along these lines and we think the testimony as to profits derived from the partnership should have been stricken from the record when the motion was made for that purpose. As to the profits derived from his own business during the years it was conducted by the decedent as an individual, the situation is somewhat different. It was clearly incompetent to show profits derived from capital invested but the record does not inform us how much capital was invested, or how his profits may have been affected by the invested capital. There was the capital invested in the building in which the business was transacted and its rental value at least should be deducted. He must also have had considerable capital invested in order to transact so large a business, and profits arising from this investment could not be considered in ascertaining his earning power based upon intellectual or bodily labor in the management of the business. He no doubt had an earning power as the manager of his own business, but that earning power must result from his own management and bodily labor, and not from earnings derived from invested capital. The testimony, in the present case does not satisfactorily show how his earnings were derived. It may be that when the case is again tried in the light of what is here said, earning power resulting from the management of the business, excluding invested capital, may be more definitely shown. Inasmuch as the case is to be again tried, it may be well to suggest that earning power which is to be compensated in such cases must necessarily be the subject of substantive proof. The best proof possible under the circumstances is always required, but the nature of the proof must necessarily depend to some extent upon the kind of business or employment. If a decedent is receiving a fixed salary at the time of his death that would be a proper measure of his earning power, but if he is engaged in a small business of his own and depending upon profits for a livelihood, his earning power must be determined in some other way. Where a husband, engaged in a small business with only a nominal capital invested and having no other means of support, gives his wife a monthly allowance with which to maintain his family, for a long period of years, it is a fair inference that the sums of money so given come from his earnings, and in a proper case such proof is admissible to show earning power at least to the extent of the amount so furnished. In the present case the deceased husband furnished his wife for several years immediately preceding his death a monthly allowance of one hundred and fifty or two hundred dollars for the purpose of maintaining his family, and since the evidence shows he depended upon these earnings for a livelihood, we think it was proper to submit this proof to the jury on the question of earning power. This, perhaps, would not be true if considerable sums had been furnished at irregular intervals, or if there was nothing to indicate that the money so furnished represented his regular earnings. In McCracken v. Traction Company, supra, relied on by appellant, there was nothing to indicate that the allowance represented regular earnings, or that it was not paid out of invested capital, or that it was even paid -at regular intervals. In the case at bar this evidence is sufficient to carry the case to the jury on the question of earning power, but there was error in submitting the testimony relating to profits as hereinbefore pointed out. For this reason we reverse the case.

As to the negligence af the defendant, and the contributory negligence of the decedent, we are of opinion that the case was for the jury, and upon these questions we see no reversible error in its submission.

Judgment reversed and a venire facias de novo awarded,


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

      Negligence — Railroads—Yards—Permissive crossing.

    Where a railroad company permits persons to enter its yard for the purpose of unloading cars of produce, and it appears that there were certain plank crossings in the yard used by wagons, but that it was also necessary for consignees of produce and their employees in order to get to their cars, to go diagonally across intervening tracks, the railroad company will be liable for the death of an employee of a consignee who was killed by the negligent operation of a train, while he was diagonally crossing, without negligence on his part, to the tracks on which the ears were at a point other than the plank crossings. Such a case is not controlled by the rules of law applicable to grade-crossing cases, and it cannot be held as a matter of law that the deceased was guilty of contributory negligence in making the diagonal crossing.
    Argued Oct. 31, 1911.
    Appeal, No. 225, Oct. T., 1911, by defendant from judgment of C. P. No. 4, Allegheny Co., First Term, 1909, No. 234, on verdict for plaintiff in case of Estella Caudell v. Baltimore & Ohio Railroad Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband. Before Cohen, J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $4,000. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      William Watson Smith of Gordon & Smith, for appellant.

      David A. Reed of Reed, Smith, Shaw & Beal, with him Allen H. Kerr and Young & Clay, for appellee.
    January 2, 1912:
   Opinion by

Mr. Justice Elkin,

Two errors are assigned, one the refusal of the triai judge to give binding instructions for defendant, and the other the refusal to enter judgment non obstante veredicto upon the whole record. As viewed by appellant this means that the case should not have been submitted to the jury, the evidence being insufficient to sustain a recovery. For the reason stated in Boggess v. Railroad Company, 234 Pa. 379, in an opinion just handed down, we think this position is untenable. The learned counsel for appellee in the counter history of the case concisely state the facts in substance as fol-laws: Defendant railroad company had been accustomed to place incoming cars of produce on a particular track in the middle of the freight yards. The clerk who controlled these cars was stationed in the yard office, in a small building used by produce merchants for telephone and weigh scale purposes. It was necessary for the produce men to make frequent trips between the cars containing their produce and the yard, office. There were two possible routes between these points; one by way .of two planked wagon crossings; the other by a diagonal route across the tracks. The route by way of the planked wagon crossings was longer and required six open tracks to be crossed at grade. The diagonal route was much shorter and required the crossing of only one open track. The evidence warranted a finding that for several years prior to the accident, it had been customary for the produce men, their employees and their customers, to use the diagonal route in going from the yard office to the cars containing produce and returning therefrom. There was also evidence tending to show that the yard crews knew of this custom and there was no denial by appellant. Nothing was done by the railroad company by notice or otherwise to indicate that the use of the diagonal way was objectionable. This permissive use seems to have been acquiesced in by all parties concerned. The accident which resulted in the death of the husband occurred early on a Monday morning in January. This was the busiest day.of the week, and Caudell, an employee of Boggess, was accompanying his employer to the car containing produce when he was struck and killed by a shifting engine running backward with tender ahead. There is some conflict in the testimony as to whether the two injured persons were walking longitudinally on the track, or were crossing it diagonally to the point where the car of produce was located. But this question was submitted to the jury. The testimony is also conflicting as to the precise time of the accident, but all the witnesses agreed that it was before sunrise. It was foggy and persons could not see a long distance. The fireman who was running the engine at the time, looking ahead, saw the two decedents when within forty to sixty-feet of the point where they were struck on the track. He admits that he could have applied the air-brake and stopped the engine before the men were struck. He did not do so because he thought they would step off the track before the engine reached them. The men evidently did not know of the approach of the engine and as a result forfeited their lives. The engine was not only running backward but the headlight was not lighted. No bell was rung or other warning given to notify decedents of impending danger until it was too late. Under these circumstances the question of the negligence of appellant was for the jury, and the same may be said as to the contributory negligence of the deceased husband. Both questions were submitted to the jury by the learned trial judge in a fair and impartial charge free from just criticism. The main contention of appellant here is that Caudell should have been declared guilty of contributory negligence as a matter of law. In other words that by going upon the track by the diagonal route instead of by the planked wagon crossings he was guilty of negligence per se. We have discussed this question fully in Boggess v. Railroad Company, 234 Pa. 379, and will not further elaborate it here. We deem it sufficient to say that under the facts of the present case the rigid rules applicable to grade crossings do not apply. This is not in any proper sense a grade crossing case. The question involved here is the duty of a railroad company to afford reasonable and safe access to a car containing a shipment of produce standing on a track in a freight yard for the purpose of being unloaded. It is a question of the right to use a permissive diagonal way, not necessarily a distinct and defined diagonal crossing, as a means of access to the car in question. We think that all questions raised by this appeal were under the facts for the jury, and that they were properly submitted.

Judgment affirmed,


author: Mr. Justice Moschzisker,

text:
    McGonnell v. Pittsburgh Railways Company, Appellant.

      Appeals — Assignments of error — Change—Inadequacy of.

    1. Where an appellant assigns an entire charge as inadequate, ■he should indicate in his specifications of error wherein it is deficient, so that attention may be directed to the particular points he desires to make.
    2. Where in an accident case the testimony of medical experts is conflicting, it is the duty of the trial judge to call the jury’s attention to such conflict of testimony and to instruct them to reconcile the contradictions, and as to what was their duty if they could not do so.

      Negligence — Damages—Compensation for delay.

    3. In a personal injury case the damages are assessed as of the date of the trial, and not of the injury; hence there can be no general compensation for delay; and such compensation can never be at a higher rate than 6 per cent.
    4. In such a case it is error for the trial judge to say to the jury that the plaintiff was entitled to “compensation by way of damages for delay,” and that “it might be less than 6 per cent.,* it might be any per cent, the jury would say was right.”

      Negligence — Damages—Darning power.

    5. In a personal injury case, testimony showing wages paid to a servant employed to perform necessary work for plaintiff, which before her injury she did herself, is always admissible; and proof relied upon to show diminution of earning power need not be clear and indubitable.
    Argued Oct. 31, 1911.
    Appeals, Nos. 151 and 152, Oct. T., 1911, by defendant from judgment of C. P. No. 1, Allegheny Co., Dec. T., 1907, No. 176, on verdict for plaintiff in case of Mary McGonnell and Mary McGonnell, Executrix of the Estate of John McGonnell, deceased v. Pittsburgh Railways Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Macearlanb, J.

      At the trial the plaintiff was permitted under' objection and exception to prove her loss of earning power by showing that she had to employ more servants after her accident than before, inasmuch as she was not able to do a certain amount of work in her occupation as a keeper of a hotel or boarding house. (1)
    The court charged in part as follows:
    [“She is capable of earning, and she does not claim she is not, but she says she cannot do certain things that she used to do before, and that she is obliged to hire help. As throwing some light upon the value of her services, which she claims to have lost, she was permitted to testify to the value of the service of servants who had supplied her place. Now that is not the measure, what she has to pay some one, but it is evidence for you to take into consideration, if you find a verdict here, in arriving at the value of her labor. Whether that would be the full amount, or less, depends on how much of her service was lost, and as I say, I do not think she lost all of her service by any means.] (2)
    [“The verdict is always the present value, so far as the future losses are concerned, and you know perfectly well that it is worth more to a man to get one hundred dollars to-day than it is to get a dollar a day for one hundred days. That is a matter that always must be considered, and where money has been due for some time the jury may add, for its retention, compensation by way of damages for the delay, not interest as such. Perhaps several of you were on the jury the other day where the verdict said “and interest,” and I was obliged to have that word “interest” changed. If it happened to have said “damages at so much per cent.,” I guess it would have been all right. It might be less than six per cent.; it might be any per cent, that the jury would say was right. While six per cent, is the legal rate, money is sometimes not worth six per cent. You cannot always get it in any safe investment. For that reason the law allows the jury to fix it.] (4)
    Verdict and judgment for Estate of John McGonnell for $500, and for Mary McGonnell for $6,000. Defendant appealed.

      Errors assigned were (1) ruling on evidence quoting the bill of exceptions; (2, 4) above instructions quoting them and (3) that the charge of the court was inadequate.

      Walter M. Lindsay, with him Clarence Burleigh and William A. Challener, for appellant.
    — It is the duty of the lower Court to direct the jury’s attention to the conflict and tenor of the testimony of experts without specific request for instruction: Davies v. Transit Co., 228 Pa. 176. The Court below committed error when it instructed the jury, in substance, that they could allow additional damages for delay in payment: Plymouth Twp. v. Graver, 125 Pa. 24; Emerson v. Schoonmaker, 135 Pa. 437; Richards v. Gas Co., 130 Pa. 37; Pittsburgh Southern Ry. Co. v. Taylor, 104 Pa. 306.

      Rody P. Marshall, with him Thomas M. Marshall, for appellee,
    cited as to evidence of earning power, Buck v. McKeesport, 223 Pa. 211; Wilson v. Railway Co., 34 Pa. Super. Ct. 504; Simpson v. Penna. R. R. Co., 210 Pa. 101; Olin v. Bradford, 24 Pa. Super. Ct. 7; Willis v. Traction Co., 189 Pa. 430.
    Cited as to the insufficiency of the charge: Davies v. Rapid Transit Co., 228 Pa. 176; Brauschweiger v. Waits, 179 Pa. 47; Benson v. Electric Ry. Co., 228 Pa. 290; Fitzpatrick v. Traction Co., 206 Pa. 335; Medis v. Bentley, 216 Pa. 324.
    Cited as to the allowance for detention: Connor v. Traction Co., 173 Pa. 602; Reece v. Rodgers, 40 Pa. Super. Ct. 171; Plymouth Twp. v. Graver, 125 Pa. 24; Richards v. Gas Co., 130 Pa. 37; Provident Life & Trust Co. v. Philadelphia, 202 Pa. 78; Irwin v. R. R. Co., 226 Pa. 156.
    January 2, 1912:
   Opinion by

Mr. Justice Moschzisker,

This was an action brought by John McGonnell and Mary, his wife, to recover for personal injuries to the latter. John died while the suit was pending and it was continued by the widow on her own behalf and as executrix of the estate of her deceased husband. The jury rendered a verdict in the sum of five hundred dollars for the estate of John McGonnell, and one of six thousand dollars for Mary McGonnell; judgments were entered thereon, and the defendant has appealed.

Where the appellant assigns an entire charge as inadequate he should indicate in his specification of error wherein it is deficient, so that attention may be directed to the particular points he desires to make; this course was not pursued in the present case. In his argument, however, the appellant suggests that the charge failed to make any reference to the testimony of the medical experts, and urges that it was the duty of the trial judge to explain the nature of such testimony and the effect which should be given to it; that the jury’s attention should have been called to the conflict in the testimony of these experts; that they should have been instructed to reconcile the contradictions, and as to what their duty was in case they could not do so. While these criticisms are justifiable, since no special instructions were requested, we might not reverse on them alone; but as there is at least one other error, which necessitates a retrial, we sustain the third assignment.

Plain error was committed in saying to the jury that the plaintiff was entitled to “compensation by way of damages for delay;” and that “it might be less than six per cent.; it might be any per cent, the jury would say was right * * * .” In a personal injury case the damages are assessed as of the date of the trial and not of the injury; hence there can be no general compensation for delay: 1 Sedgwick on Damages (8th Ed.) sec. 320; Pittsburgh Southern Ry. Co. v. Taylor, 104 Pa. 306, 317; Richards v. Citizens Natural Gas Co., 130 Pa. 37. Furthermore such compensation can never be at a higher rate than six per cent. The fourth assignment is sustained.

It appears that for some years prior to her injury the plaintiff, Mary McGonnell, had kept a hotel at Atlantic City, New Jersey, and that she has since continued in the same business but changed her location to McKees Rocks, Allegheny County, in this State. While her former place differed from the present one in size and character, the occupation pursued by her is essentially the same. The first assignment complains of evidence introduced to show wages paid by the plaintiff to servants at her new hotel, who were engaged to do work which prior to the accident, at her old place of business, she had been able to accomplish herself. Testimony showing wages paid to a servant employed to perform necessary work for a plaintiff, which before her injui’y she did herself, is always admissible (Willis v. Traction Co., 189 Pa. 430) ; and proof relied upon to show diminution of earning power need not be clear and indubitable (Simpson v. Railroad Co., 210 Pa. 101, 104). The testimony called to our attention is so vague and uncertain that no satisfactory conclusion concerning a definite actual loss could be based thereon and it would be of little aid for any purpose; but we see no error in its admission. The only just criticism that can be aimed at the abstract from the charge covered by the second assignment is that, in dealing with this testimony the trial judge failed to call attention to its vague and uncertain quality. Neither of these assignments is sustained.

The judgment is reversed with a venire facias de novo.


author: Mr. Justice Mestrezat,

text:
    O’Donnell v. Pittsburgh.

      Road law — Plan of lots — Dedication of streets.

    1. A sale of lots according to a plan which shows them to be on a street implies a grant, or covenant to the purchaser that the street shall be forever open to the use of the public and operates as a dedication of it 'to public use; and the owner of any lot in the general plan may assert the public character of any street and the right of the public to use it. The rights in dedicated streets acquired by a purchaser of lots by a deed referring to a plat are private contract rights, and are not affected by the failure of the municipality to act upon the dedication.
    2. The owner of any lot or lots who has purchased with the knowledge of the plan in accordance with which the lots were sold, cannot obstruct or deny to the public the right to use any of the streets or alleys shown on the plan. The easement over the streets is appurtenant to every lot, and becomes a property interest in the purchaser of the lot which may be protected by appropriate legal process.
    3. As between parties claiming under the original proprietor and having notice of the plan of lots, it is immaterial whether the plan was signed, acknowledged, or recorded.
    4. The fact that the original proprietor dedicated only twenty feet of a forty feet wide street, and that the remaining twenty feet was dedicated by another person to public use, does not defeat the right of a purchaser of lots in the plan to insist that twenty feet of street shown on the plan should be kept open for public use.
    5. The Act of June 16, 1836, P. L. 749, providing that streets lanes and alleys within the city of Pittsburgh laid out by private persons shall be deemed public highways has no application to land laid out in lots when situated in a township, but which subsequently became part of the city of Pittsburgh. In such a case the right of a lot owner to an easement in the streets cannot be taken away by a city ordinance.
    6. Where land has been laid out in a plan of lots showing Streets and alleys, a reference to a street in the subsequent deeds as a public highway is proper, and is no evidence that it was such prior to the dedication by the proprietor who laid out the plan of lots.
    Argued Oct. 31, 1911.
    Appeal, No. 193, Oct. T., 1911, by H. K. Porter Co., from decree of C. P. No. 2, Allegheny Co., Oct. T., 1910, No. 179, on bill in equity in case of Malachy O’Donnell v. City of Pittsburgh, Adolph Edlis, Treasurer of said City, H. K. Porter Company, a corporation of Pennsylvania et al.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Frazer, P. J., found the facts to be as follows:
    1. Plaintiff is a citizen and taxpayer of the city of Pittsburgh, and that city is a municipal corporation of the second class under the laws of this Commonwealth ; and the H. K. Porter Company and the McConway-Torley Company are corporations of this Commonwealth.
    2. Plaintiff is the owner in fee simple of a lot of ground, being lot No. 32 in a plan of lots laid out by George A. Bayard, dated October 1st, 1836, and recorded in the Recorder’s office of Allegheny County in Deed Book Yol. 73, page 495, having a frontage of fifty feet on the Southeast corner of Harrison Street and Forty-ninth Street (formerly Allegheny Street), and extending back of even width eastwardly along Forty-ninth Street one hundred feet to Plum Alley, upon which is erected a frame stable. Plaintiff’s lot has for a number of years been leased to a dealer in coal, who uses the stable for stabling purposes and the remainder of the lot for storing slack coal thereon. The plan of George A. Bayard was recorded June 1, 1846, without either his signature attached or his acknowledgment. Subsequently on May 17, 1852, George A. Bayard signed and acknowledged the plan as recorded.
    3. The plan of George A. Bayard referred to in the preceding finding contains the following: “I. George A. Bayard, the proprietor of the ground in the above plan, and in consideration of enhancing the value of said ground, have given, granted and conveyed, and by these presents do give, grant and convey all the ground contained in the above named streets and alleys for public highways, to be used and enjoyed as public streets and alleys forever. In witness whereof I have hereunto set my hand and seal this 17th day of May, A. D. 1852. George A. Bayard.” The plan referred to shows that Forty-ninth Street was the Eastern boundary of the property owned by George A. Bayard, and that the strip of land donated by him for that street was twenty feet in width. The street at the time of the vacation ordinance complained of by plaintiff being forty feet in width, when and from whom the other half of the land now included in Forty-ninth Street was acquired does not appear from the pleadings or the testimony. Whether Forty-ninth Street was an open and used thoroughfare previous to May 27, 1840, when plaintiff’s lot was sold by George A. Bayard to Richard Fairfield does not appear from either the pleadings or evidence.
    4. Defendant, the H. K. Porter Company, was on and before July 18, 1910, the owner of all the real estate abutting on each side of Forty-ninth Street between Harrison Street and the right-of-way of the Allegheny Valley Railroad, and had erected upon its property buildings for manufacturing purposes, and was at that time, and is now, engaged in the manufacture of engines and machinery, and now contemplates closing and building upon the portion of Forty-ninth Street between Harrison Street and the Allegheny Valley Railroad vacated by the ordinance of July 18, 1910, referred to in the Sixth Finding of Facts.
    5. On May 14th, 1910, the H. K. Porter Company presented its petition to the Select and Common Councils of the City of Pittsburgh, setting forth that it was a majority of the property owners in interest and in number abutting on Forty-ninth Street between Harrison Street and the Allegheny Valley Railroad, and asking that Councils vacate Forty-ninth Street between Harrison Street and the Allegheny Valley Railroad. That street between the Allegheny Valley Railroad and the Allegheny River having been previously vacated by an ordinance of Councils, is now occupied by buildings constituting a portion of the manufacturing plant of the McConway-Torley Company.
    6. In response to the petition referred to in the preceding Finding, Councils subsequently ordained, and the Mayor approved on July Í8, 1910, an ordinance vacating Forty-ninth Street between Harrison Street and the Allegheny Valley Railroad, as shown in plan of the Borough of Lawrenceville, approved by the Council of that Borough March 22, 1867. A copy of the ordinance is “Exhibit 1” in plaintiff’s bill, and contains a section providing that its provisions shall not become effective unless the H. K. Porter Company, within thirty days from its approval, pays into the City Treasury for the use of the City, the sum of Two Thousand Dollars.
    7. On August 16, 1910, the H. K. Porter Company paid Two Thousand Dollars to the City Treasurer and received a receipt therefor, the following being a copy thereof:
    “Pittsburgh, August 16, 1910. Received of H. K. Porter Co., $2,000.00 on account of being the consideration recited in the ordinance for the vacation of Forty-ninth Street from Harrison Street to A. V. R. R. It is understood and agreed, however, that as this ordinance and the vacation of said street has been attacked, if the litigation be successful and the said street be not vacated, the money hereinbefore received shall be returned to the H. K. Porter Company.”
    8. At the time of the passage of the ordinance of July 18, 1910, the City had constructed and in use on Forty-ninth Street between Harrison Street and the Allegheny Valley Railroad, a public sewer, and also had laid in that portion of Forty-ninth Street pipes for supplying water to the public. By an agreement in writing entered into on the 13th day of July, 1910, between the City and the H. K. Porter Company and the McConway-Torley Company, it was agreed by and between all the parties that the vacation ordinance should not interfere with the sewer and water pipes of the City, that the same should remain as now located, and that the City should always have the right to “inspect, maintain, repair, reconstruct and enlarge the same as and when the said City may deem necessary, without any liability whatsoever to said corporations or either of them, their successors and assigns, and for that purpose shall have free ingress and egress with and for its employees, machinery, horses and materials.”
    9. Forty-eighth Street, the next street West of Forty-ninth Street, is open and traveled to the Allegheny River, and at the point where the street crosses the track of the Allegheny Valley Railroad there is a railroad siding extending West for a distance of three hundred feet, which has a capacity for the storing of three hundred cars per day for loading and unloading purposes.
    10. George W. McCandless, who is Auditor of the McConway-Torley Company, acted for that Company and also for the H. K. Porter Company in securing the passage of the ordinance vacating Forty-ninth Street and Valley Street, a formal resolution of the Board of Directors of the latter company having been adopted September 20, 1910, approving, ratifying and confirming all that he had done in behalf of the Company in that matter.
    The Court entered the following decree:
    “And now, Aug. 2nd, 1911, this cause came on to be heard at this term, and was argued by counsel, and upon consideration thereof, it is ordered, adjudged and decreed as follows, viz: that a perpetual injunction issue restraining the H. K. Porter Company, defendant above named, its agents or employees from closing or in any manner obstructing the southwesterly twenty feet of Forty-ninth street, formerly Allegheny Street, extending longitudinally from Harrison Street to the Allegheny Valley Railroad, situate in the Ninth Ward of the City of Pittsburgh, County of Allegheny and State of Pennsylvania, said twenty foot street, being more particularly located and laid out on the plan of lots, laid out by George A. Bayard, of record in the Recorder’s office of said county in Deed Book, Volume 73, page 495. And said defendant, H. K. Porter Company, its agents and employees, are further enjoined from doing any act or acts whereby the plaintiff, Malachy O’Donnell, may be hindered or obstructed in the free and common use of said twenty foot street between said terminal points. The costs of these proceedings to be paid by the said defendant, H. K. Porter Company.”

      Error assigned was the decree of the court.

      Samuel McClay, with him McCook & Jarrett and Reed, Smith, Shaw & Beal, for appellant.
    — The city had power to vacate the street: Henry Street, 123 Pa. 346; McGee’s App., 114 Pa. 470; Pittsburgh v. Epping-Carpenter Co., 194 Pa. 318.
    Appellee has not shown that he had a private right of way over Forty-ninth Street: Paul v. Carver, 24 Pa. 207; Heckerman v. Hummel, 19 Pa. 64; Bellinger v. Union Burial Ground Society, 10 Pa. 135; Trutt v. Spotts, 87 Pa. 339; Brooklyn Street, 118 Pa. 640; Regan v. Gas Light Co., 137 Mass. 37; Bell v. Todd, 51 Mich. 21 (16 N. W. Repr. 304).

      Leonard K. Guiler, for appellee.
    — The burden was certainly on the defendant to show that Allegheny Street, as shown on the Bayard plan, was a public street before Bayard laid out Ms plan: Wickham v. Twaddell, 25 Pa. Super. Ct. 188; Morrow v. Traction Co., 219 Pa. 619; McCall v. Davis, 56 Pa. 431; Birmingham Boro. v. Anderson, 48 Pa. 253; Pittsburgh v. Epping Carpenter Co., 194 Pa. 318; Smith v. Union Switch & Signal Co., 17 Pa. Super. Ct. 444; Higgins v. Sharon Borough, 5 Pa. Super. Ct. 92.
    The plaintiff is the owner of a lot in the Bayard plan, and neither Bayard nor those who through Bayard subsequently acquired title to other lots in the plan could subsequently make changes which would deprive the plaintiff of the right which he acquired to use as public highways, the streets located upon the plan: Wickham v. Twaddell, 25 Pa. Super. Ct. 188; People’s Nat’l. Bank v. Liquid Carbonic Co., 226 Pa. 503; Morrow v. Traction Co., 219 Pa. 619; Garvey v. Refractories Co., 213 Pa. 177; Jessop v. Kittanning Boro., 225 Pa. 583.
    But as between the owners of lots in the plan claiming title from Bayard, recording was unnecessary: Garvey v. Refractories Co., 213 Pa. 177; Smith v. Union Switch & Signal Co., 17 Pa. Super. Ct. 444; Jessop v. Kittanning Boro., 225 Pa. 583.
    January 2, 1912:
   Opinion by

Mr. Justice Mestrezat,

The facts have been found and stated at length by the learned chancellor in the court below, and a brief summary of them here will be sufficient to enable us to dispose of the case. George A. Bayard was the owner of certain real estate in Peebles township, Allegheny County, and on October 1, 1836, laid it out in lots, intersected by streets and alleys, which he called “Hatfield.” The plan was recorded June 1, 1846, without Bayard’s signature or Ms acknowledgment. On May 17, 1852, Bayard endorsed upon the plan as recorded a dedication of “all the ground contained in the above named streets and alleys or highways to be used and enjoyed as public streets and alleys forever,” and then signed and acknowledged the plan. The plan as recorded also contained the following endorsement in writing on its face: “Plan of lots near U. S. Allegheny Arsenal laid out by George A. Bayard, Esq.,- October 1st, 1836, C. W. Remington.” Subsequently the lots became a part of the borough of Lawrenceville and later, of the city of Pittsburgh. The plan contains forty-eight lots with four streets and two alleys, and on the easterly side appears a street called Allegheny Street. It also shows a line running its entire length from Butler Street to Clay Street twenty feet distant from the east property line with these words: “One half of a forty-foot street.” This was Allegheny Street, now Forty-ninth Street.

By deed dated September 9, 1839, Bayard granted and conveyed lot No. 1 in the plan to Ralph Lee. On May 27, 1850, by deed of that date, Bayard conveyed to Richard Fairfield “all that certain lot situate in the town of Hatfield, Peebles township, being the same lot marked in the plan of lots laid out by George A. Bayard, No. 32, bounded by Harrison street, Allegheny street, and Cherry alley, containing in front on Harrison street fifty feet, and running back one hundred feet.” The title to this lot has, by subsequent mesne conveyances, become vested in the plaintiff.

Allegheny street, now Forty-ninth street, has for many years been used as a public thoroughfare forty feet in width, one half of which, as above stated, was dedicated by George A. Bayard in his plan of lots. It appears by an ordinance enacted by the council of the borough of Lawrenceville that Allegheny street, subsequently known as Lathrop street, on the 5th day of March, 1866, was declared to be a public highway of a uniform width of forty feet from Butler street to the Allegheny river “as laid down in the original plan of George A. Bayard, in that portion of the borough which is known as Hatfield.” Forty-ninth street between the tracks of the Allegheny Valley Railroad and the Allegheny River has been vacated, and is now occupied for manufacturing purposes.

By an ordinance, approved July 18, 1910, of the city of Pittsburgh, Forty-ninth street between Harrison street and the Allegheny Valley Railroad, as shown in the plan of the borough of Lawrenceville, approved by the council of that borough March 22, 1867, was vacated. The plaintiff, the owner of lot No. 32 in the Bayard plan, filed this bill against the City of Pittsburgh, H. K. Porter Company, and the McConway and Torley Company. The bill contains nine prayers for relief, one of which is that the H. K. Porter Company be restrained from closing or in any manner obstructing Forty-ninth street, between Harrison street and the Allegheny Valley Railroad. This prayer for relief was granted by the court below, and a final decree was entered that a perpetual injunction be issued restraining the H. K. Porter Company “from closing or in any manner obstructing the southwesterly twenty feet of Forty-ninth street, formerly Allegheny street, extending longitudinally from Harrison street to the Allegheny Valley Railroad, * * * said twenty foot street being more particularly located and laid out on the plan of lots, laid out by George A. Bayard and of record in the Recorder’s Office of Allegheny County,” and further enjoining the H. K. Porter Company “from doing any act or acts whereby the plaintiff, Malachy O’Donnell, may be hindered or obstructed in the free and common use of said twenty foot street between said terminal points.” No decree was entered against the City of Pittsburgh or the McConway and Torley Company.

It will be observed that this appeal, which was taken by the H. K. Porter Company, does not raise the question of the right of the City of Pittsburgh to vacate a street laid out in the Bayard plan of lots and dedicated by him to public uses. It is true that the bill prays that the ordinance vacating the street be declared void, but the prayer was not granted, and the decree simply went against the H. K. Porter Company, restraining it from closing or obstructing the street. The right of the court ‘below, under the facts of the case, to enter the decree against the H. K. Porter Company is the only question for determination here.

If there is anything settled by judicial decision in this State, it is that a sale of lots according to a plan which shows them to be on a street implies a grant, or covenant to the purchaser that the street shall be forever open to the use of the public and operates as a dedication of it to public use; and that the owner of any lot in the general plan may assert the public character of any street and the right of the public to use it. The rights in dedicated streets acquired by a purchaser of lots by a deed referring to a plat are private contract rights, and are not affected by the failure of the municipality to act upon the dedication: 3 Dill, on Mun. Corp. (5th Ed.) Sec. 1083. The owner of real estate so long as he infringes no law may do with it as he pleases; he has the right to dispose of it in any legal way which he may choose; he may sell it as a whole, or in parts; he may lay it out in lots intersected by streets and alleys, and sell the lots with or without a grant to the purchasers and the public of an easement over the streets and alleys. If he lay the property out in lots, according to a plan disclosing such streets and alleys, and sells a lot, the law implies a grant or covenant on his part that all the streets and alleys on the plan shall remain open for the use of the public. The price paid for a lot is enhanced by the value of the easement in the streets and alleys appurtenant to the lot. The consideration is not only for the lot but for the easement as well. The proprietor of the plan therefore cannot revoke the implied easement or dedication; nor can the owner of any lot or lots, having purchased with a knowledge of the plan in accordance with which the lots were sold, obstruct or deny to tbe public tbe right to use any of the streets or alleys shown on the plan, The easement over the streets is appurtenant to every lot and becomes a property interest in the purchaser of the lot which may be protected by appropriate legal process.

In the case in hand, the right of the plaintiff, the owner of one of the lots in the Bayard plan, to restrain the H. K. Porter Company from building on or otherwise obstructing the twenty foot street in the plan is clear. Her predecessor in title purchased the lot, “being the same lot marked in the plan of lots laid out by George A. Bayard, No. 32.” As between parties claiming under Bayard and having notice of the plan of lots, it is immaterial whether the plan was signed, acknowledged, or recorded: Transue v. Sell, 105 Pa. 604. Such parties are charged with notice of all the plan contains, including the streets and alleys, their location and width. The sale of a lot by Bayard to Lee in 1839 according to the plan, in the absence of anything disclosing a different intention, was an irrevocable dedication of all the streets and alleys in the plan to pubic use: 13 Cyclopedia of Law and Procedure 455, Pittsburgh v. Epping-Carpenter Company, 194 Pa. 318, 328, and any subsequent purchaser of a lot in the plan can assert the public character of the streets. The plaintiff’s predecessor in title purchased from Bayard in 1840 and hence became the owner of an easement over the streets which was appurtenant to her lot of which she could not be deprived by a subsequent purchaser affected with knowledge of the plan. The H. K. Porter Company is the owner of two lots in the plan and the pleadings disclose that the company and its predecessors in title had notice that the lots were sold according to the Bayard plan. The plaintiff and the defendant both claim through Bayard and are affected with what appears in the chain of their title. The plan of lots is directly in the chain of title of each of the parties, and on the face of the plan is a declaration that the lots were laid out by Bayard on October 1, 1836. The defendant company is therefore estopped from denying to the plaintiff any rights which she acquired through her predecessor in title who purchased one of the lots in this plan.

There is no evidence that Allegheny street was a public thoroughfare or dedicated to public use prior to the dedication by Bayard. It was a public highway in the sense that it was dedicated by Bayard and was used by the public, notwithstanding it was not accepted by the municipality. The reference to it therefore in the deeds as a public highway was proper, and is no evidence that it was such prior to the dedication by Bayard. The plan of lots having disclosed the dedication of the streets and alleys in 1836, the burden was upon the defendant to show that the street known as Allegheny street had existed prior to the Bayard dedication. This did not appear by the pleadings or the evidence. In fact there was not a particle of evidence tending to show any such prior dedication. It is immaterial that the street was not laid out forty feet in width by Bayard, and that the other half of the street was dedicated by another to public use. The plaintiff and other purchasers of lots in the Bayard plan had the right to insist that the twenty feet of the street, shown on the plan, should be kept open for public use.

The act of June 16, 1836, P. L. 749, providing that streets, lanes and alleys within the City of Pittsburgh, laid out by private persons, shall be deemed public highways, has no application to this case. When the lots were laid out, the plan was made, and the plaintiff’s lot was sold to her predecessor in title by Bayard, the real estate was in Peebles Township, Allegheny County, and not within the territorial limits of Pittsburgh. Subsequently it became a part of Lawreneeville which later became a part of the city of Pittsburgh. Therefore at the time these lots were laid out and the plan was made Peebles township was not a part of the city, and the streets and alleys of the plan did not, by virtue of the act of 1836, become public highways. Under these circumstances, a city ordinance depriving a lot owner of his easement over the streets in the plan — a property right secured by contract — without compensation would offend both the federal and state constitution, and be void.

The decree is affirmed.


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    Moore v. Thomas Moore Distilling Company.

      Practice, O. P. — Buie to show cause — Extension of time for answer — Discretion of court — Deceiver’s sale.

    1. Where a rule is granted to show cause why a receiver should not make a private sale, and notice of the rule is accepted before the return day by a party in interest, and such party twenty-one days after the return day asks leave to file an answer nunc pro tunc as of the return day, and leave is refused, such action of the court will not he reversed by the appellate court, if it appears that no explanation or excuse was offered for the delay by the respondent.
    2. The allowance or refusal to allow an extension of time in which to plead or answer is a matter within the discretion of the court in which the proceeding is pending. It is a power indispensable to the proper conduct of the business of the court, and nothing short of gross abuse would warrant a reversal of its order.
    Argued Oct. 31, 1911.
    Appeal, No. 195, Oct. T., 1911, by The Bank of Pittsburgh, from order of C. P. No. 4, Allegheny Co., Fourth T., 1910, No. 91, refusing leave to file answer in case of C. P. Moore et al. v. Thomas Moore Distilling Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Bill in equity for a receiver.

      Petition for leave to file answer to a rule nunc pro tunc.
    The opinion of the Supreme Court states the cr.se.

      Error assigned was refusal to permit answer to be filed.

      Charles B. Prichard, with him Blakeley & Calvert, for appellant.

      W. B. Rodgers, for appellee.
    January 2, 1912:
   Per Curiam,

The argument on behalf of the appellant has taken a much wider range than is called for by the single question raised by the appeal. The only assignment of error based on an exception relates to the refusal of the court to allow an answer to be filed nunc pro tunc to a rule to show cause, twenty-one days after the return day of the rule.

The receiver of an insolvent distilling company was authorized by the court to sell its real estate, but was unable to obtain a satisfactory price. He petitioned the court, setting out that he had an offer for all the property of the company, real and personal, which he had submitted at a meeting attended by eighty per cent, of the creditors, all of whom favored its acceptance; that it was impracticable to sell the real estate separated from the personal property, that a part of the latter consisted of 9287 barrels of whiskey, for which the company ]md issued warehouse receipts, and in many instances, duplicate receipts, thereby placing the title to the whiskey in dispute. On this petition a rule was granted on all persons holding warehouse receipts to show cause why a private sale of the whiskey, together with the real estate, machinery, etc., should not be made on the terms offered. The rule was granted January 24, 1911, returnable February 4, 1911, and notice of it was accepted by the attorneys of the appellant on January 28. On February 25th, when the cause came on to be heard, the appellant asked leave to file an answer nunc pro tunc as of February 4, the return day for the rule. No explanation or excuse was offered for the delay and leave was refused. To this ruling an exception was taken; no exception was taken to the order of sale. The allowance or refusal to allow an extension of time in which to plead or answer, is a matter within the discretion of the court in which the proceeding is pending. It is a power indispensable to the proper conduct of the business of the court, and nothing short of gross abuse would warrant a reversal of its order. Holland v. White, 120 Pa. 228. In this case the discretion of the court appears to have been wisely exercised. The appellant had ample time in which to answer, and no excuse for its default was offered. The interest of the creditors required prompt action by the receiver and the order of sale preserved any rights the appellant had.

The order is affirmed at the cost of the appellant.


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    Bauman, Appellant, v. Best Manufacturing Co.

      Negligence — Master and servant — Defective appliance — Non-suit.

    1. In an action by an employee against his employer to recover damages for personal injuries caused by the fall of a plunger from an overhead crane, a non-suit is properly entered where the evidence shows that the fall (of the plunger was caused by a cotter pin either breaking or working out of place, but there is nothing to show that the pin was worn or defective, and the evidence is uncontradicted that the pin was seen in its place three hours before the accident.
    2. In such a case evidence of the general condition of the crane is irrelevant.
    Argued Nov. 1, 1911.
    Appeal, No. 196, Oct. T., 1911, by plaintiff from order of C. P. No. 1, Allegheny Co., December Term, 1906. No. 1015, refusing to take off non-suit in case of Max Bauman v. Best Manufacturing Company.
    Before Fell, C. J., Brown, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Macfarlane, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in refusing to take off non-suit.

      Lee C. Beatty, with him James B. Drew and John B. Gloeckner, for appellant.
    — It is the duty of the master to provide his employee with a safe place to work, and to inspect and repair: Lillie v. American Car & Foundry Co., 209 Pa. 161; Wilson v. Union Steel Castings Co., 223 Pa. 167; Newton v. Iron Works, 199 Pa. 646; Weller v. Mfg. Co., 28 Pa. Superior Ct., 102; Dyer v. Bridge Co., 198 Pa. 182; Folk v. Schaeffer, 186 Pa. 253; Phila. & R. R. Co. v. Huber, 128 Pa. 63.

      Wm. A. Stone, with him W. Clyde Grubbs, for appellee.
    — The appellee contends that it was the duty of the appellant in this case to prove that the cotter pin broke and that this fact must be proved by direct and positive evidence and not by inference and in support of this contention, the following cases are cited: McLean v. Schoenhut Co., 225 Pa. 100; Pumeroy v. Bruce, 13 S. & R. 186; Alexander v. Water Co., 201 Pa. 252; Reese v. Clark, 146 Pa. 465; Phila. & Reading R. R. Co. v. Hughes, 119 Pa. 301; Wilson v. Union Steel Castings Co., 223 Pa. 167.
    January 2, 1912:
   Opinion by

Mr. Justice Potter,

This is an appeal from the refusal of the court below to take off a judgment of compulsory non-suit. The plaintiff sought to recover damages for personal injuries inflicted by the fall of a plunger from an overhead crane. This plunger was a solid piece of steel, weighing twelve or fifteen pounds, working vertically through a hollow cylinder. It was attached to an arm at the top by means of two steel plates, through which ran a counter pin; and through this in turn at one end was inserted, solely for the purpose of keeping the counter pin in place, a small steel pin known as a cotter pin. At the time of the accident it appeared that the counter pin must have worked out of its place, for the plunger fell. Neither of'these parts was out of order in any way, and they were immediately restored to their places. The cotter pin, which had been in use was however missing. It must have come out, but whether by slipping or from breaking, was not shown; but as a result there was nothing to hold the counter pin in its proper place, and it in turn must have gradually worked out of its supports and permitted the plunger to fall. Between two and three hours before the accident, the craneman oiled the machinery, and observed that the cotter pin was then in place, and that it appeared to be rusty and was dirty and dusty. It could not well have been otherwise, situated as the crane was, in a foundry where moulding was carried on. It was not shown how long the pin had been in use, or that it was worn or in any way unfitted for the use to which it was put. It had only one purpose to serve, and that was to prevent lateral motion in the counter pin. It bore no weight, and its mere presence was ordinarily sufficient to answer the purpose for which it was intended. As the trial judge said, there was nothing in the case to show that there was any wear upon the cotter pin, or to show that such pins ever wore out or became unfitted by use for their purpose. In Bradbury v. Kingston Coal Co., 157 Pa. 231 where it was shown that a cotter pin broke after several years of use, it was held that in the absence of evidence of a defect, it was error to submit to the jury the question whether the use of the pin was negligence. And in Zahniser v. Torpedo Co., 190 Pa. 350, evidence which went no further than to show that a similar pin broke, was held not to be sufficient to take the case to the jury. The principle set forth in these cases was very properly applied to the facts of this case. Here there was some evidence of rust, but it was not intimated that this amounted to corrosion, or that it weakened the steel of which the pin was composed. The witness who observed the condition of the pin when oiling the plunger, evidently regarded it as good; otherwise he would have changed the pin, or reported the need of a change. The only reasonable inference that can be drawn from the evidence is that the accident resulted from the disappearance of the cotter pin. Evidence as to the general condition of the crane was therefore properly excluded as irrelevant. Nor did it appear that the cotter pin was missing for any appreciable time before the accident. The craneman had seen it in place less than three hours before.

We agree with the court below that there was not sufficient evidence of any negligence upon the part of the defendant to justify the submission of the case to the jury.

The judgment is affirmed.