author: Rice, P. J.,

text:
    McMarlin v. Butler Borough, Appellant.

      Road law — Widening street — Petition—Estoppel—Borough.
    1. Where a property owner in signing a petition for grading and paving a street believes on information that the street was of a particular width, but makes no representation to the borough to that effect, and it turns out that the street is of a less width, and some of the petitioner’s property is taken, the latter is not estopped from subsequently recovering damages for the land taken.

      Road law — Paving—Cartway—Sidewalk—Release of damages — Act of April 23,1889, P. L. 44.
    2. Where the petition of a property owner for the grading, curbing and paving of a street distinctly states that the proceeding is under the Act of April 23, 1889, P. L. 44, and contains a release of damages, the release applies only to damages in connection with the grading and paving of the cartway, and will not prevent the petitioner from recovering damages for a subsequent change of grade of the sidewalk. The act of April 23, 1889, relates only to the paving, curbing and macadamizing of streets. The word “grading” while not mentioned in the act, is an incident to paving.
    3. Whilst it may be conceded that the term “street” in its broadest significance, includes the sidewalk as well as the cartway, it has long been the policy of the law to distinguish between them, and to recognize that as to the former, the rights and responsibilities of the owner of property are quite different from those enjoyed or imposed on him in relation to the latter, or the street as that word is used and understood in the common speech of the people.

      Argued May 11, 1909.
    Appeal, No. 46, April T., 1909, by defendant, from judgment of C. P. Butler Co., March T., 1908, No. 24, on verdict for plaintiff in case of James A. McMarlin v. Butler Borough.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for land taken in widening a street, and for change of grade of a sidewalk. Before Gal-breath, P. J.
    From the record it appeared that in July, 1906, the plaintiff and other property.owners filed the following petition:
    “The petition of the undersigned, being two-thirds of the owners of property representing two-thirds in number of feet of the properties fronting or abutting on Center avenue, from Standard avenue or the end of the street as now paved, to the borough line, a public street or thoroughfare of the borough of Butler, regularly laid out and opened, pray your honorable body to grade, curb with stone or other suitable material and pave with vitrified brick or other suitable material the said part of said street or thoroughfare, between the points above mentioned under the provisions of the act of assembly approved April 23, 1889, and assess the cost 'and expense thereof as provided by said act.

      “ And we waive any claim for damages done to our several properties, if any, by reason of said improvement.”
    In making the improvement the borough took a portion of the plaintiff’s lands and changed the grade of the sidewalk.
    Plaintiff presented this point:
    The release of damages relating to grading, paving and curbing Center avenue, signed by the plaintiff, only released any damages that might accrue to him for grading the cartway of the street, it has no effect as a release of damages for grading the sidewalk or for grading any part of the plaintiff’s property taken to widen the street, if any such were taken. Answer: That is affirmed. We have explained that to you, gentlemen, in the general charge. [1]
    Defendant presented these points:
    1. The plaintiff some time previous to April 16,1907, having signed and joined in a petition to the town council of the borough of Butler, praying that it proceed to grade, pave and curb Center avenue, fronting his property, in which petition was the following waiver: “And we waive any claim for damages done to our several properties, if any, by reason of said improvement,” is now estopped from claiming damage to his property by reason of the grading of said street in conformity to the grade established by the borough engineer and adopted by the town council and no damages can be allowed therefor by the jury. Answer: This point is affirmed so far as it relates to the roadway, the improvement of which was contemplated by the petition and ordinance for the grading, paving and curbing of the street, but as to the grading of the sidewalk and opening of the street beyond the original limits, if such were the case, the point is refused. [2]
    4. The plaintiff having testified that at the time he signed the petition to council praying that Center avenue be graded, paved and curbed, that he then considered and had knowledge of the fact that Center avenue extension, upon which his property is located, was of the width of fifty feet fronting his said property, but that he did not know the exact location of the said street on the ground, the only question to be determined by the jury in estimating whether or not any of the land of Mr. McMarlin was taken in grading the street, is to be determined by the location of Center avenue extension or Freeport turnpike on the ground fronting his property. Answer: The plaintiff having testified that a neighbor had told him about the time the petition for paving was being circulated that the street in question was a fifty-foot street, but there being no evidence that the said plaintiff made any representation to the town council that such was its width, in order to induce action on their part or otherwise, this point is refused. [3]
    The court charged in part as follows:
    [So we say to you, gentlemen, whilst this petition contains a waiver of damages, it was the damages that would accrue by reason of any change of grade necessary in order that the paving of the street proper be distinguished from the sidewalk, and that it was not a waiver of any damage that might result from the change of grade of the sidewalk from its established grade. [4]
    [Now, taking those up in their order, taking the sidewalk first: Was the sidewalk cut down from its natural grade in such a way as to do damage to the plaintiff? It does not appear here that there was ever any grade established for the sidewalk in that vicinity by any borough authority, and in the absence of such official designation of grade the natural grade of the sidewalk, if such there was, along there prior to the time of the improvement, would govern, and if there has been any substantial change of the grade in such way as to do damage to the plaintiff, he would be entitled to recover damages on that account.] [5]
    [I believe that he says that there was one stone step at the bottom by which he reached the boardwalk from the street, and that from the boardwalk up to the surface level of his house or lot were, I think he says, five steps at a point nearly in front of the porch; the question for you to consider is whether or not that sidewalk has been cut down in such a way as to do damage or injury to his property. If so, it would be an element of damage to be considered by you.] [6]
    Verdict and judgment for plaintiff for 1500. Defendant appealed.

      Errors assigned were (1-6) above instructions, quoting them.

      John H. Wilson, for appellant.
    The plaintiff was estopped from setting up that the street was not of the width of fifty feet.
    Appellant contends that the court in construing the legal effect of the waiver of damages by the appellee as set out in the petition on which the street was graded, paved and curbed, placed a too narrow and restricted construction on the waiver, in instructing the jury that this waiver of damages applied only to the grading of the cartway, and that if the plaintiff was damaged by reason of the grading of the footwalk outside of the curb of the cartway, then such grading between the eurb of the cartway and the property line would constitute an element of damage for which the plaintiff should be allowed compensation as he had not waived it in this petition: Steelton Borough v. Booser, 162 Pa. 630; Philadelphia v. Weaver, 14 Pa. Superior Ct. 293; Kemp v. Penna. R. R. Co., 156 Pa. 448; Updegrove v. R. R. Co., 132 Pa. 540; Hoffeditz v. South Penna. Ry. & Min. Co., 129 Pa. 264.
    October 11, 1909:

      T. C. Campbell, with him John R. Henninger and J. M. Painter, for appellee.
    While the act of 1889 does not mention grading, but only curbing and paving, and while the petition prays for grading, curbing and paving, the word “grading,” used in the petition, has only reference to grading necessary to be done in the work of paving and curbing. The release still only has relation to work to be done under the provisions of the act of 1889: Shady Avenue, 34 Pa. Superior Ct. 327.
    In construing legislation upon the subject, it is not to be presumed in the absence of explicit expression of legislative intent, that a departure from long-established rules is intended: Park Avenue Sewers, 169 Pa. 433; Mill Creek Sewer, 196 Pa. 183.
   Opinion by

Rice, P. J.,

One of the questions of fact which arose in the trial of the case was, whether in making the improvement, to which we shall hereafter refer more in detail, the borough actually widened the street and took part of the plaintiff’s property in doing so. It arose in this way. While the action was trespass, it was agreed by counsel that the question whether any of the plaintiff’s land had been taken should be determined in this action, and if it was determined in the affirmative, then the question whether the plaintiff’s property was injured or benefited should also be determined in the action, in the same manner, and with the same force and effect, as if an ordinance' had been enacted widening the street, viewers had been appointed and an appeal had been taken by either party from their award. There was no official record of the original location and width of the road, and the determination of these matters depended largely upon oral testimony similar in general character to that usually adduced in such a controversy. No good purpose would be subserved by a recital of it. It is enough to say that under the conflicting evidence the question was for the jury, and that it was submitted to them by the learned trial judge in a manner of which the appellant has no just cause to complain. Nor did the mere fact that the plaintiff had been told by someone that the street was fifty feet wide, and that he believed it to be so at the time he signed the petition hereafter referred to, estop him from showing that it was not of that width, much less did it estop him from showing the true line of the street on his side. This is apparent when it is remembered that his belief was based on information that another property owner, evidently on the other side of the street, had given seventeen feet to make it fifty feet wide. This did not affect the line on his side of the street. Moreover, his belief as to the width of the street was immaterial, in the absence of any evidence that he made any representation as to its width to the borough council in order to induce action, as the learned judge properly said in answer to the defendant’s fourth point. The third assignment of error is overruled.

We come next to the principal question in the case, to which all the assignments of error, excepting the third, relate. The plaintiff and others, being two-thirds of the owners of property representing not less than two-thirds in number of feet of the properties fronting or abutting on the portion of the street described, petitioned the borough council “to grade, curb with stone or other suitable material and pave with brick or other suitable material the said part of said street or thoroughfare, between the points above mentioned under the provisions of the act of assembly approved April 23,1889, P. L. 44, and assess the cost and expenses thereof as provided by said act.” The petition contained this waiver: “And we waive any claim for damages done to our several properties, if any, by reason of said improvement.” The ordinance passed pursuant to this petition is not printed in the appellant’s paper-book, but the official record of the trial shows that it was admitted by counsel that the improvement involved in the case was made in pursuance of its provisions.- Leaving out of view the alleged widening of the street of which we have spoken, the improvement consisted of these elements: first, widening the cartway part of the street to thirty feet, lowering the grade of that part of the street about two feet below the previous grade of the cartway, paving it with brick and curbing it; second, cutting down the sidewalk embankment on each side of the cartway, as thus widened and graded, to the level of the curbs. The plaintiff testified that before the latter was done there were five steps leading from the sidewalk to his front door, and two steps from the sidewalk to a side door, whereas, since the lowering of the grade of the sidewalk, from thirteen to fifteen steps will be required. So it is seen, if the plaintiff is to be credited, that the change of the sidewalk grade was considerable. The question is whether the release covered the damages thereby occasioned. Amongst other instructions upon this subject the court said: “It does not appear here that there was ever any grade established for the sidewalk in that vicinity by any borough authority, and in the absence of such official designation of grade the natural grade of the sidewalk, if such there was along there, prior to the time of the improvement, would govern, and if there has been any substantial change of the grade in such way as to do damage to the plaintiff, he would be entitled to recover damages on that account. . . . The question for you is whether or not that sidewalk has been cut down in such way as to do damage or injury to his property. If so, it would be an element of damage to be considered by you.”

One criticism of these instructions urged by counsel is, that they withdrew from the jury the question whether or not a part of the street formerly used as a sidewalk was included in, and cut down in grading, the widened cartway. We agree with counsel that the waiver was a bar to recovery for damages thus occasioned, but we are unable to agree with him as to the effect of the judge’s charge on the subject. The instructions in question must be considered in connection with the preceding instructions, in which the court drew a proper distinction between the grading done in order to the paving of the cartway part of the street and the grading of the sidewalk, and charged properly relative to the applicability of the release to the damages from, the former. The learned judge was now speaking of its applicability to the latter, and evidently did not intend to withdraw or contradict what he had said immediately before. Nor were the instructions so ambiguous as to be misleading; on the contrary, after careful consideration of the criticism of counsel we conclude that it is not well founded. The effect of the instructions taken as a connected whole was to convey to the mind of the jurors the idea that the waiver covered the damages that occurred from the grading of the roadway but not those that occurred from grading the sidewalk. The same idea was conveyed in the answer to the plaintiff’s second point and the answer to the defendant’s first point.

Thus viewing the instructions we are of opinion that they were correct. “The consent which relieves a borough from its constitutional obligation to make just compensation to the owner for an injury to his property, means something more than mere nonresistance. It should be given to the municipality by the party interested, and it should embrace, in express terms or by necessary implication, a release of the right to damages:” Jones v. Bangor Boro., 144 Pa. 638; Dunn v. Tarentum Boro., 23 Pa. Superior Ct. 332. The release of damages interpreted in the light of this just principle is not the same as if the petition had simply prayed that the street be graded, paved and curbed. The petitioners invoked the exercise of the power conferred upon borough authorities by a particular statute, namely, the Act of April 23,1889, P. L. 44, which, as its title indicates, relates only to the paving, curbing and macadamizing of streets. The improvement contemplated in the release of damages was such as the borough could make in the exercise of that power. True, the petition speaks of grading, but it was grading to be done under the provisions of that act, and as is pointed out by our Brother Head in Shady Avenue, 34 Pa. Superior Ct. 327, it is matter of common knowledge that the paving of a street usually involves excavation to bring about uniformity of grade and contour. The terms of the petition would have been satisfied by the grading of the part of the highway the borough elected to pave. It no more called for grading the entire width of the street than for paving the entire width. Again, it was grading, the cost of which could be assessed against the property owners under the act of 1889, that the petition prayed for. If the borough had elected to pave the entire width of the street from property line to property line, perhaps the release would have barred recovery of damages. But the borough did not elect to do this, but left space on either side for foot walks. Whatever the borough did with regard to these parts of the street was not done under the act of 1889 and was not an improvement, the cost of which could be assessed against the property owners. “ Whilst it may he conceded that the term 'street,' in its broadest significance, includes the sidewalk as well as the cartway, it has long been the policy of the law to distinguish between them, and to recognize that as to the former, the rights and responsibilities of the owner of property are quite different from those enjoyed or imposed on him in relation to the latter, or the street as that word is used and understood in the common speech of the people:” Shady Avenue, 34 Pa. Superior Ct. 327. This distinction between sidewalks and cartways is recognized and maintained in many acts cited in the appellee’s brief. In referring to the act of 1889 as the source of the borough’s power, the petitioners recognized this distinction, and plainly indicated their intention to restrict their release to the grading and paving of the roadway, as distinguished from the sidewalk.

We have not discussed every point suggested in the able argument of appellant’s counsel, but we have discussed the main points and have given full.consideration to the entire argument of counsel. We find no error which would justify a reversal of the judgment.

Judgment affirmed.

Porter, J., dissents;


source: Caselaw Access Project

license: Public Domain

text:
    Commonwealth v. Pennsylvania Railroad Company, Appellant.

      Criminal law — Sentence—Amendment of sentence — Nuisance—Rail-toad.

    1. Where a sentence has been fully executed a court cannot subject the defendant to additional punishment, either by a new sentence or an amendment of the original sentence.
    2. Where the court has sentenced a railroad company convicted of a nuisance in erecting an embankment across a public highway, to make a crossing through the embankment in a particular way, and the railroad company has fully executed the sentence in the manner specified therein, the court cannot subsequently upon proof that the crossing was inadequate and improper, amend the sentence so as to require further expenditure by the company upon the crossing.
    Argued April 12, 1909.
    Appeal, No. 144, April T., 1909, by defendant, from order of Q. S. Warren Co., Dec. T., 1907, No. 28, imposing an amended sentence in case of Commonwealth v. Pennsylvania Railroad Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Reversed.
    Indictment for nuisance. Before Lindsey, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict of guilty, upon which judgment of sentence was passed.

      Errors assigned were in the following form:
    1. The court erred in rejecting the evidence of the plot or map made by Thomas Struthers, then the owner of the land of the subdivision, called East Warren, but not then made part of the borough of Warren. This map was made May 15, 1885, and duly recorded in the recorder’s office, Warren county, Pennsylvania, in Deed Book No. 86, p. 195.
    2. The court erred in rejecting the offer by the defendant of the condemnation proceedings in the common pleas of Warren county, No. 72, September Term, 1885, Thomas Struthers v.Buffalo, Pittsburg & Western Railroads. This would show that Thomas Struthers, the then owner, was paid for the land and right of street.
    October 11, 1909:
    3. The court erred in imposing the amended sentence, of November 7, 1908, amending the sentence of September 11, 1908, which had been fully complied with at a large cost to the defendant company. We contend that the second or amended sentence of November 7,1908, was error; it will be recalled that the indictment in this case was to No. 28, December session, 1907, and tried during June session.

      J. Ross Thompson & Son, for appellants.
    The amended sentence of November 7 to the original sentence of September 11, 1908, was error: Com. v. Mayloy, 57 Pa. 291; Com. v. Keeper of Workhouse, 6 Pa. Superior Ct. 420.

      William S. Clark, district attorney, with him W. D. Hinckley and J. H. Alexander, for appellee.
    It seems to us that the court was clearly within its rights in amending the sentence in this case: Com. v. Brown, 12 Phila. 600; Com. v. Monroe, 15 Phila. 379; Com. v. Thompson, 18 Pa. C. C. Rep. 487; Dyott v. Com., 5 Whart. 67; Com. v. Mayloy, 57 Pa. 291; Beale v. Com., 25 Pa. 11; Com. v. Patterson, 5 Kulp, 307; Com. v. Gillespie, 25 Pa. C. C. Rep. 153; Northern Cent. Ry. Co. v. Com., 90 Pa. 300.
   Opinion by

Rice, P. J.,

The nuisance charged in the indictment was the erection and maintenance of an embankment across a public highway commonly called Elm street, formerly First street, about ten feet in height above the level of the street, upon which embankment was laid the track of the defendant company. It appears in the evidence that prior to the erection of this embankment the company carried its track across the street upon trestlework, space being left between the bents for travel along the street. The embankment was erected in order to avoid rebuilding the trestlework, and at the time of the defendant’s conviction completely shut off travel along the street at that point.

There are but three assignments of error. The first two relate to the rejection of certain offers of evidence, but as these are not in conformity to our rules and, moreover, are not based on exceptions taken at the trial, they will not be considered. Leaving them out of view, there is no assignment of error which raises any question as to the propriety of the conviction. The charge was not excepted to and at the conclusion the defendant withdrew its points. For present purposes, therefore, we must assume that every essential to a valid conviction of the nuisance charged in the indictment, namely, the unlawful erection and maintenance of an embankment across a public highway, was established by the evidence. But instead of sentencing the defendant to abate the nuisance, which in the case of a structure unlawfully erected upon a public highway is ordinarily accomplished by removing the structure, the court imposed the following sentence: Defendant sentenced within thirty days from this date to construct a good and convenient crossing over its tracks at Elm street, Warren borough, at least sixteen feet in width, and to construct a good dirt or gravel approach thereto on each side of the track at least twenty-four feet in width, from the edge of its right of way on each side of the track up to and even with the crossing, so that the same shall be a general ascent from the street to the railway crossing. Defendant to pay costs of same, also the cost of prosecution.” This sentence was imposed on September 11, 1908. On November 7 following the commonwealth’s counsel moved the court to amend and modify the sentence in such manner as should seem to the court fit and proper, so that the same should result in the abatement of the nuisance and provide for a safe and reasonable passageway along the street. This motion was supported by the ex parte affidavits of two engineers to the effect that the embankment as changed by the company was still an obstruction to free travel along the highway because of the steep and precipitous slopes of the embankment. In opposition to this motion, it was shown by the affidavit of defendant’s superintendent, which in this particular was uncontradicted, that the defendant had constructed the crossing in accordance with the terms of the sentence and had paid the costs, and it was urged that in view of these facts the court could not impose a new or additional sentence. Another objection set up in the affidavit was to a change of the sentence which would compel the defendant to grade or embank Elm street outside of its right of way. The learned judge did not discuss these objections in his opinion sustaining the motion, but being convinced by the commonwealth’s affidavits that he had acted under a mistake of fact in imposing the original sentence made the following order: "The sentence is amended so as to read: The defendant, The Pennsylvania Railroad Company, shall extend the approaches to the crossing at Elm street, along the center of Elm street on each side of the crossing by filling with either cinders, dirt or gravel, twenty-four feet in width, far enough to make the grade of the approaches on each side of the embankment or crossing a ten per cent grade.” It should be stated that the defendant was not responsible in any way for the mistake of fact if one was made. This order of November 7, 1908, is the subject of the third assignment of error.

It is claimed that this so-called amendment was illegal because the term at which the original sentence was pronounced had expired, and it is not seriously contended that this would not be a fatal objection if the fact be as stated: Commonwealth v. Mayloy, 57 Pa. 291; Commonwealth ex rel. Nuber v. Keeper of Workhouse, 6 Pa. Superior Ct. 420. But while we are informed by counsel that the four terms of quarter sessions of Warren county, as fixed by law and rule of court, begin on certain Mondays of March, June, September and December, we are not furnished with a copy of the order of court fixing its terms and therefore are not informed as to their length. We therefore pass this objection. The power of the court to reconsider and alter its sentence, and even increase the punishment, during the term at which it was pronounced, if nothing has been done under it, is recognized generally in this country. While in some cases outside this commonwealth it has been held that steps taken under a sentence — for example, a substantial part execution thereof — cuts off the right, we are not prepared to say that this is the fixed and unvarying rule in Pennsylvania to be applied without regard to the circumstances of the particular case. But where the sentence has been fully executed the power of the court to subject the defendant to additional punishment, whether by a new sentence or an amendment of the original, is gone. See 1 Bishop’s New Crim. Law, sec. 990, and cases there cited. A pertinent illustration of the result of holding differently was given by Jus-, tice Millek in Ex parte Lange, 85 TJ. S. 163. After stating that the terms of many courts extend through considerable periods of time, often many months, with adjournments and. vacations in the same term, at the discretion of the judge, he says, inter alia: “Or if the judgment of the court is that the convict be imprisoned for four months, and he enters immediately upon the period of punishment, can the court, after it has been fully completed, because it is still in session of the same term, vacate that judgment and render another for three or six months’ imprisonment, or for a fine? Not only the gross injustice of such a proceeding, but the inexpediency of placing such a power in the hands of any tribunal is manifest.” But it may be said that the original sentence in this case, so far as it related to the construction of the crossing, was not imposed as punishment, but in the exercise of the court’s power to order the abatement of the nuisance. Let this be granted; it was nevertheless part of the judgment, and it expressed the determination of the court as to what would abate the nuisance. Its legality is not now in question. The commonwealth recognized its validity by not appealing; or even objecting to it until after it had been fully executed, and the defendant acquiesced in it by complying with it and still does so by not assigning it for error. If the defendant had been sentenced originally to abate the nuisance it might have elected to do so by removing the embankment. Or if the original sentence had required it to do all that it is now required to do the defendant might well have objected on appeal that it ought to have been given the opportunity to abate the nuisance in the manner above indicated. It chose, however, to submit to the judgment of the court, for which it ought not to be held in fault, and having gone to the expense of constructing the crossing in accordance with its senténce it cannot now be put in the same position as if the sentence as amended had been imposed originally. If a mistake of fact was made in imposing the original sentence, it was not one which needed an experiment to develop. The commonwealth could have ascertained it by very simple investigation, and, if it desired to have it corrected, the time to move the court to that effect was before the defendant had gone to the expense of carrying the sentence to full completion. So also if the commonwealth deemed the sentence erroneous in point of law it could have appealed. It resorted to neither of these remedies, and it was too late after the defendant had gone to the expense of complying with the sentence to correct the mistake by compelling the defendant to go beyond the limits of its right of way and to change the grade of a borough street to the injury, perhaps, of owners of abutting property.

We have already answered, substantially, the contention that if it should be concluded that there was error on the part of the court in passing sentence this court now has opportunity to pass such sentence as the court below ought to have passed and to remit the record for further proceeding. The original sentence is not before us for correction, and certainly it cannot be contended that we may correct the amendment by substituting a sentence compelling the defendant to undo what it was compelled to do by the original sentence. The third assignment of error is sustained and the order of November 7, 1908, is reversed and set aside.


text:
    Clark v. Neshannock Stone Company, Appellant.

      Negligence — Quarry company — Injuries to dam — Evidence—Case for ■jury.

    1. In an action against a quarry company to recover damages for injuries to a dam caused by the deposit therein of large quantities of stone, earth and other material, where the evidence of the plaintiff and one of his witnesses, although contradicted by the defendant, tends to show that the defendant operated the only quarry above the dam, that the dam was filled with earth, stone and other materials two to three feet deep over extensive areas, the dimensions of which were approximately stated, and the amount of cubic yards of deposit approximately estimated, and the plaintiff’s contention is corroborated by evidence as to the location of the quarries and the refuse dumps, with reference to the banks of the stream, the slope of the banks, and the manner of carrying on the quarry.
    2. In such a case the plaintiff’s right to recover nominal damages, at least, upon the facts testified to by him and his witnesses, is an insuperable obstacle to a binding direction to the defendant, and consequently to the entry of judgment for defendant non obstante veredicto.
    Argued May 13, 1909.
    October 11, 1909:
    Appeal, No. 185, April T., 1909, by defendant, from judgment of C. P. Lawrence Co., June T., 1904, No. 95, on verdict for plaintiff in case of William A. Clark v. Neshannock Stone Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover, damages for injuries to a dam. Before W. E. Porter, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $500. Defendant appealed.

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

      H. K. Gregory, with him T. W. Dickey, for appellant.

      J. Norman Martin and A. Martin Graham, for appellee.
   Opinion by

Rice, P. J.,

The plaintiff owned land and a dam on Neshannock creek, and the defendant owned and operated stone quarries along the creek above him. The plaintiff alleged that the defendant dumped in the stream the débris and refuse produced in its quarrying operations, consisting of large quantities of earth, stone, spawls, trunks of trees, logs, brush and other materials, which, being carried down the stream, lodged in his dam, and materially lessened its storage capacity, in which its value chiefly consisted. The learned trial judge instructed the jury that the defendant could not be held responsible for any deposit in the dam other than those coming from its. own quarries ; that- if it deposited the refuse from its quarries on its own land, where it would not be washed away by ordinary floods, but where it was washed away by extraordinary floods and deposited in plaintiff’s dam, it was not liable for the injury sustained; and that it was incumbent on the plaintiff to show how much of the deposit in the dam was caused by the defendant. The defendant has no just cause to complain, and does not complain, of these instructions. The matters it assigns for error are that the court refused its point for binding direction and overruled its motion for judgment non obstante veredicto, and this complaint is based on the single contention thus expressed in its twelfth point: “There being no testimony in this case to show how-much of the deposit in this mill dam was caused by the defendant company, your verdict must be for the defendant.” The plaintiff testified that he was on the dam very frequently, and that he never saw or knew of any deposits of sediment, trees, earth or other material in the dam before the opening of the quarries, and that after the defendant took possession logs, stumps, stones, gravel and earth were thrown over the bank. Being asked what change took place in the condition of his dam after the defendant took charge of the quarries, he testified as follows: "A. It was being filled up; the sediment was being thrown in; it was filling it up,until it broke. Q. How much of the dam was filled up? A. There was a large body of gravel and chippings at the upper end of my dam adjoining the stone quarry property, I should say 100 feet square and at least two feet deep, a deposit, and then there was a very large deposit at the mouth or near the breast of the dam; there was a deposit there for 300 feet from the breast of the dam, at least three feet deep all over that 160 feet wide, at the lower end it wasn’t so wide aboye it; it appeared above, it was perhaps 120 feet at the upper end and 160 feet at the lower end — the 160 or 170 at the lower end includes the breast of the dam and my head race.” He testified further that in June or July, 1902, he notified the defendant to cease throwing materials into the dam and to remove what had already been deposited; that at that time the defendant had thrown gravel, chippings, earth, stumps and trees over the bank, and the flood washed them down into the dam; and that the defendant continued this for some time after the notice was given. He further testified that at the time Mr. Mc-Conahy, whose testimony we are about to refer to, made his survey, which was a few days before the trial, a considerable part of the sediment had been washed out by the floods, and that there was only about one-half as much in the dam then as there was at the time the suit was brought. After Mr. Mc-Conahy had testified preliminarily as to his experience as a civil engineer, his survey and his plot, he was interrogated and answered as follows: “Q. State if you made ajiy calculation of the quantity of débris and material in the dam; the part you have indicated on that map? A. Yes; you mean the whole thing? Q. Yes. A. Yes, sir. Q. What is the quantity you estimate? A. Thirty-five hundred yards. Q. Over what area does that extend? A. Well, about 400 feet along and over 160 feet wide at the dam — about 100 feet wide and 400 feet long. Q. You estimate that there are 3,500 cubic yards of material in the dam? A. Yes. Q. From your experience as an engineer in making estimates for excavation, what would it cost to remove that material? A. I should sáy at least $1.00 a yard.” In connection with the foregoing we quote the following from his cross-examination: “Q. You aren’t able to say how much of this came from the quarries above? A. No, sir. Q. And it is all mixed with matter that came down from the fields, possibly some from the quarries, isn’t that a fact? A. Well,. I would say the material that I saw there along the edge of where it is washed out, the edge of the channel now, seems to be of material that would come from the quarry principally. Q. How thick was that vein or deposit? A. Oh, it ran sometimes six inches thick. Q. But the whole mass was about two and one-half, wasn’t it? A. Yes, sir.” It is also to be noticed that there were no other quarries upon the stream above the plaintiff and that there is no evidence of similar operations being carried on by others while the defendant was operating its quarries. Further, the evidence as to the location of the quarries and the refuse .dumps with reference to the banks of the stream, the slope of the banks and the manner of carrying on the operation lends corroboration to the plaintiff’s contention that the principal part of the deposit in his dam came from the quarries. As is said in the opinion of our Brother Henderson in Pierce v. Lehigh Valley Coal Co., 40 Pa. Superior Ct. 566, “It was the duty of the plaintiff to introduce evidence to show to what extent the injury complained of was the consequence of the defendant’s action, but it cannot be expected that this can be done with mathematical exactness. Evidence which reasonably tends to support the plaintiff’s allegation is sufficient.” Perhaps the evidence would not justify a finding.that the entire 3,500 yards of deposit, testified to by Mr. McConahy came from the defendant’s quarries, but surely, if the jury believed the plaintiff and his witnesses, a finding that one-third or one-half, for example, came from him, would be within bounds. It may be said that we have presented a one-sided view of the testimony, selecting that which is favorable to the plaintiff and omitting reference to that adduced by the defendant. This would be a just criticism, if it were our province, and we were undertaking to determine the questions of fact. But this is not our province, and all that we have undertaken to do is to show that there was evidence, which, if believed by the jury, would justify a verdict in favor of the plaintiff for a substantial sum. Besides that, the plaintiff’s right to recover nominal damages, at least, upon the facts testified to by him and his witnesses, was an insuperable obstacle to a binding direction for the defendant, and consequently, to the entry of judgment in its favor non obstante veredicto.

Judgment affirmed.


author: Porter, J.,

text:
    Miller v. Kullesowicz, Appellant.

      Married women — Husband as agent.

    1. When in the making of a parol contract both husband and wife join in the negotiation and the work contemplated by and done under the contract involves exclusively the improvement of the estate of the wife, the presumption is that the contract is made on behalf of the wife, and, in the absence of an express stipulation that she shall be liable only jointly with her husband, an action may be maintained against her alone.

      Practice, C. P. — Pleading—Plea of abatement.

      2. If a person be omitted as defendant who ought to be joined in an action founded on a joint contract, whether on a specialty or not, the objection can be taken advantage of only by a plea in abatement.
    Argued March 2, 1909.
    October 11, 1909:
    Appeal, No. 12, March T. 1909, by defendant, from judgment of C. P. Luzerne Co., May T., 1906, No. 701, on verdict for plaintiff in case of Gilbert Miller v. Frances Kullesowicz.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    Assumpsit for work done. Before Fuller, J.
    The opinion of the Superior Court states the case.
    Verdict and judgment for plaintiff for $118.28, Defendant appealed.

      Error assigned among others was refusal of binding instructions for defendant.

      B. W. Davis, with him D. A. Fell, for appellant.

      J. Q. Creveling, with him D. L. Creveling, for appellee.
   Opinion by

Porter, J.,

The plaintiff brought this action of assumpsit to recover for work done by him in the erection of a house upon a lot of ground owned by this defendant, who is a married woman. The action was originally brought against Frances Kullesowicz, this defendant, Frank Kullesowicz, her husband, and John F. Boyle. The original statement filed averred that this defendant and her husband Frank Kullesowicz were the owners of the lot of land qn which the building was erected and that this plaintiff did the plastering and other work upon the building at the special instance and request of said parties, and that the money to pay this plaintiff had been placed in the hands of said Boyle. At the first trial of the case in the court below the plaintiff moved to amend by striking out Frank Kullesowicz and John F. Boyle as .defendants, and thereupon, upon motion of the defendants, a juror was withdrawn and the cause continued. The plaintiff, on September 25, 1907, made a formal motion in writing to strike out the names of Frank Kullesowicz and John F. Boyle as defendants, and the court made a formal order allowing said amendment, thus leaving the action stand against •Frances Kullesowicz, as sole defendant. With the record in this condition the cause went to trial on February 18, 1908, upon the plea of non assumpsit. The plaintiff produced evidence which tended to establish and was sufficient to sustain a finding that he had declined to do the work upon the credit of the general contractor for the building, that he went to the building and there met this appellant and her husband and informed them of his refusal to do the work on the credit of the contractor; that Frank Kullesowicz, in the presence of his wife, the appellant, said to him, “ The money is ready as soon as it is done, Mr. Miller, you plaster the house; ” that the wife, this appellant, nodded her head and said, “ yes ”; that the husband, in the presence of appellant, told him that the money was in the hands of Boyle to pay all the bills. That upon the faith of this the plaintiff did the work and that this appellant, the wife, was frequently present while it was being done and expressed her approval of it. The defendant contradicted this testimony, but the jury found in favor of the plaintiff. The appellant contends that the evidence, if believed, established a joint contract upon the ■ part of this appellant and her husband and that a verdict against the wife alone cannot be sustained.

The contention of the appellant is not well founded. The parol contract upon which the plaintiff relied was made when both appellant and her husband were present, both joined in the conversation out of which the contract arose, the wife acquiesced in what the husband said and subsequently directed and approved the work done under the contract, but the property was that of the wife alone and the work was done for the improvement of her estate; under such circumstances the law will presume that the husband was acting as his wife's agent and. will imply a contract on her part to pay for the work: Bankard v. Shaw, 199 Pa. 623; Einstein v. Jamison, 95 Pa. 403; Bevan v. Thackara, 143 Pa. 182. When in the making of a parol contract both husband and wife join in the negotiation and the work contemplated by and done under the contract involves exclusively the improvement of the estate of the wife, the presumption is that the contract is made on behalf of the wife, and, in the absence of an express stipulation that she shall be liable only jointly with her husband, an action may be maintained against her alone. The judgment must be sustained, also upon another ground. The pleadings gave this appellant full notice of the character of the contract upon which the plaintiff was asserting her liability; notwithstanding this notice she went to trial upon the general issue, without interposing a plea in abatement. “There is no rule of pleading better defined in the elementary books, or better supported by authority, than that if a person be omitted as defendant who ought to be joined in an action founded on a joint contract, whether on a specialty or not, the objection can be taken advantage of only by a plea in abatement:” Bellas v. Fagely, 19 Pa. 273; Chorpenning v. Royce, 58 Pa. 474; Collins v. Smith, 78 Pa. 423.

The judgment is affirmed.


text:
    Jones v. McDowell.

      Mortgage — Attorney’s commissions — Discretion of court — Appeals.
    The action of the common pleas in refusing to strike off the attorney's commission in the assessment of damages in a mortgage foreclosure proceeding, will not be set aside unless this be so plainly erroneous as will amount to abuse of discretion. Such an application is an appeal to the equitable jurisdiction of the court whose duty it is to weigh the testimony, determine the facts and exercise a sound discretion in the premises.
    Argued April 29, 1909.
    October 11, 1909:
    Appeal, No. 183, April T., 1909, by J. M. Slcelley, from order of C. P. No. 3, Allegheny Co., May T., 1907, No. 146, discharging rule to strike off attorney’s commissions in case' of Jones v. McDowell.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Rule to strike off attorney’s commissions.
    The facts appear by the opinion of the Superior Court.

      Error assigned was the order of the court.

      L. C. Barton, with him W. C. Dicken, for appellant,
    cited: National Savings Fund, etc., Assn. v. Waters, 141 Pa. 498; Scott v. Carl, 24 Pa. Superior Ct. 460; Lewis v. Savings Bank, 96 Pa. 86; Walter v. Dickson, 175 Pa. 204-208 Lindley v. Ross, 137 Pa. 629.

      G. William Jones, Jr., for appellee,
    cited: Scott v. Carl, 24 Pa. Superior Ct. 460.
   Opinion by

Rice, P. J.,

The judgment on the bond accompanying the mortgage was entered on March 12, 1907. By virtue of the condition in the bond relative to default in payment of any installment of interest for the space of thirty days the whole principal debt of $1,200 with interest had become due in the latter part of January preceding. According to a stipulation in the bond, execution might then have issued for the collection of the debt, interest, fees, costs and expenses of collection, including an attorney’s commission of five per cent. On April 27, 1907, J. M. Skelley, the appellant, who had purchased the mortgaged premises at bankrupt sale on March 12,1907, subject to the lien of the mortgage, but had not yet received his deed, tendered to the plaintiff $1,260.50 on April 27, 1907, and demanded satisfaction of the mortgage. This sum was about sufficient to pay the debt and interest but did not cover the costs incident to the judgment apart from the attorney’s commission. The tender was not accepted, the plaintiff desiring the advice of his son, who was his attorney; accordingly the matter was postponed until the following Monday, April 29. On that date the parties met pursuant to their agreement. The testimony as to what occurred at this meeting is not altogether harmonious. The contention of the appellant is that the parties separated upon the agreement that they should meet later upon telephone call to settle up the matter. On the other hand, the plaintiff’s attorney testified that he then prepared and submitted to the appellant a written statement showing that the exact amount of the debt, interest and costs, without attorney’s commissions, was $1,266.75, and said to him that upon payment of that amount they would close the matter that day. We quote now from his testimony:

“After examining said statement, he stated that Mr. Dille could not be present, owing to a sale in bankruptcy. I asked him whether Mr. Dille was his attorney and he answered that he was not. I then asked him what had Mr. Dille to do with this matter, to which he answered, 'I do not want to pay any more money in until I get my deed.’ He said he would meet us again after seeing Mr. Dille. I told him that we would meet him any time, but that it would be at his own risk. Then Mr. Skelley and Mr. Agnew went out. At this meeting no money was produced.”

On the following day the plaintiff issued a fi. fa. on the judgment. On May 2, the appellant tendered him $1,261.50, and it is alleged offered to pay the costs of the judgment, but the plaintiff insisted on payment of the attorney’s commission. Two months later the appellant presented his petition to the common pleas, which closed with the prayer that the writ be stayed and that the plaintiff be ordered and directed to satisfy of record the mortgage upon payment to him of the sum of $1,261.50. The court granted rule to show cause why the prayer of the petition should not be granted and in the meantime ordered the execution to be stayed, upon, condition that the appellant pay to the plaintiff the sum of $1,261.50. The appellant complied with the condition.

This appeal is from the subsequent order discharging the rule to show cause. The question sought to be raised is as to the plaintiff’s right to enforce the stipulation as to attorney’s commissions.

Passing all technical questions as to the form of the rule to show cause, and as to the appellant’s right to a review of the court’s decision, it is apparent that a good deal depends.upon what took place at the meeting on April 29. If the appellant’s version is correct, it could be argued with much force that the issuing of the execution on the following day was an act of bad faith and that the principle applicable where the debtor has been misled by his creditor should be applied here. See Lewis v. Germania Savings Bank, 96 Pa. 86. On the other hand, if the version of the plaintiff’s attorney is correct, the appellant might have saved the attorney’s commission by paying the actual debt, interest and costs on that day, they being long overdue, and he had plain notice that any further delay would be at his risk.

Granting that the court might have found the facts as contended for by the appellant, it does not necessarily, follow that it was reversible error not to do so. His application was an appeal to the equitable jurisdiction of the court, whose duty it was to weigh the testimony, determine the facts, and exercise a sound discretion.in the premises. The presumption on appeal is always in favor of the decision of the common pleas upon such question, and its refusal to strike off the attorney’s commission will not be set aside unless this be so plainly erroneous as to amount to an abuse of discretion: Scott v. Carl, 24 Pa. Superior Ct. 460, and cases there cited.

In view of the testimony and the facts which the judges of the common pleas could deduce from it, and the further fact that the tender did not fully cover the actual costs, we cannot say that there was a plain abuse of discretion in discharging the rule.

The appeal is dismissed at the cost of the appellant.


author: Henderson, J.,

text:
    West Washington Street.

      Road law — Boroughs—Original grading — Ordinance.
    1. It does not necessarily follow because a borough cuts down some of the high points in a country road within the limits of the borough, and cuts them down with reference to a general line of a street suggested by the borough engineer, that a grade is legally established.
    2. Where a borough repairs a street within its limits, which was a country road, in order to make it more passable and safe, and not for the purpose of reducing it to a permanent fixed grade, the abutting property owners are not relieved subsequently from the payment of an assessment fpr the actual grading of the street.
    3. In such a case no persuasive effect is to be attached to the fact that competitive bids were invited for making certain cuts and fills at the time the borough repaired the street or road.
    Argued May 13, 1909.
    Appeal, No. 71, April T., 1909, by S.- C. Cox et al., from order of C. P. Lawrence Co., March T., 1907, No. 64, dismissing exceptions to report of viewers In re Assessment of Damages for Grading of West Washington Street.
    Before Rice, P. J., Porter, Henderson/Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to report of viewers. Before Porter, P. J.
    The facts are stated in the opinion of the Superior Court.

      Errors assigned were in dismissing exceptions to adjudication.

      October 11, 1909:

      Richard F. Dana, with him Robert K. Aiken, Charles R. Davis, E. F. G. Harper, Oscar L. Jackson, B. A. Winternitz and A. Martin Graham, for appellants.

      James A. Gardner, city solicitor, for appellee.
   Opinion by

Henderson, J.,

This is an appeal from the assessment of benefits for grading West Washington street in the city of New Castle. The objection of the appellants to the assessments is that the street was formerly graded by the borough of West New Castle in which it was a highway, prior to the annexation of that borough to the city of New Castle in 1897. In support of their objection the appellants offered evidence showing that in May, 1889, the borough council adopted a grade for West Washington street in accordance with one of two lines submitted by the borough engineer. At this time the street had not been adopted by the borough, it having been a country road before that. On June 24, 1889, an ordinance was passed declaring the road a borough street. No grade, however, was fixed by the ordinance. Minutes of the council at later meetings show a report of the engineer estimating the number of cubic yards of earth to be moved at Mrs. Duffy’s corner, on Thomas Davis Hill, and on Kimberly’s Hill along West Washington street. At a later time bids were solicited for the “cut” on Duffy’s Hill, for the “cut” on Kimberly’s Hill and for the “cut” in front of Thompson’s lot. Bids were submitted for the excavation of these parts of the street, but were apparently not accepted, for on June 18, 1890, the contract for grading the Street was awarded to William Mitchell because a former bidder had refused to go into a contract at the price of his bid. The work done by Mitchell was between Atlantic avenue and Smithfield street and only included work in the wagon-way. This improvement was carried on under the direction of the street committee, who changed the plan in part from the line to which Mitchell supposed he was to grade. No gutters nor paving were constructed by him. At a later date, however, cobble-stone gutters were put in to prevent the washing on the grades. No ordinance was ever passed establishing a grade for the street, but the appellants contend that the action of the borough shows a grading of the street according to a defined line and that the improvement for which they are now charged is for regrading for which they are not liable. The position of the appellee is that the work done by the borough was merely a repair of the street and an improvement of the grade at points where by reason of the presence of hills the travel on the road was rendered difficult; that the approval of the profile line submitted by the engineer was tentative and conditional only and was not a legislative act, the burgess not having approved the resolution and the road not having been ordained a street of the borough. The existence of an ordinance regularly adopted providing for a change of grade of a street is not absolutely necessary as a condition precedent to the fixing of a particular grade line. The actual recognition of such a line and acquiescence therein by the borough authorities might be sufficient, but the absence of municipal legislative action raises a strong presumption that it was not the purpose of the municipality to establish a grade. It does not necessarily follow because the borough cut down some of the high points in the road and cut them down with reference to a general line of the street suggested by the engineer that a grade was legally established. What was done was done at the cost of the borough and seems to have been undertaken for the purpose of improving a part only of the street. Those portions lying east of Front street and west of Smithfield street were not included in the work of grading then carried on. It is contended that the borough ordinance of August 18, 1890, providing for the building of sidewalks on this street, shows that the street had been graded, but the established grade referred to in that ordinance is evidently a sidewalk grade and not necessarily connected with the grading of the wagon-way.. We think no persuasive effect is to be attached to the fact that competitive bids were invited for making the cuts and fills at the time the borough improved the street. It probably was more profitable to proceed in that way than by the employment of labor by the day and either method might have been adopted without reference to the question whether the work was to be done on a street in which the grade had been lawfully established or on a country road in the borough which was in process of repair. The learned judge of the court below was of the opinion that the work done by the borough was repairing to make the street more passable and safe and that it was not for the purpose of reducing the street to a permanent fixed grade, and that the abutting property owners are not relieved from the payment of the present assessment by reason of what was then done. We do not find a sufficient warrant in the evidence to declare that he was in error in this conclusion.

The assignments of error are therefore overruled and the order affirmed.

Rice, P. J., and Head, J., dissent.


author: Beaver, J.,

text:
    Koller v. Metropolitan Life Insurance Company, Appellant.

      Evidence — Witness—Contradiction of party’s own witness.

    1. Where a party summons a witness in the expectation, from statements made by the witness, that he would testify in a particular manner, and the witness fails to do so, the party may call other witnesses to show that the witness in question had contradicted himself.
    2. Where, in an action on a life insurance policy, a physician testifies indefinitely as to the time he attended the insured, and as to the reasons for his conclusions, it is for the jury to say whether or not his conclusion was justified, and in any event the question of veracity is for them.
    Argued April 29, 1909.
    Appeal, No. 134, April T., 1909, by defendant, from judgment of C. P. No. 4, Allegheny Co., Third Term 1907, No. 940, on verdict for plaintiff in case of Barbara Koller v. Metropolitan Life Insurance Company.
    Before Rice, P. J., Pokier, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed..
    Assumpsit on a policy of life insurance. Before Swearingen, P. J,

      October 11, 1909:
    The facts are stated in the opinion of the Superior Court.

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

      W. K. Jennings, with him D. C. Jennings, for appellant,
    cited: U. B. Mut. Aid Society v. O’Hara, 120 Pa. 256; March v. Life Ins. Co., 186 Pa. 629; Lutz v. Life Ins. Co., 186 Pa. 527.

      George E. Alter, with him Charles H. McKee, H. Walton Mitchell, Gifford K. Wright and Alexander J. Barron, for appellee,
    cited: Cowden v. Reynolds, 12 S. & R. 281; Lautner v. Kann, 184 Pa. 334.
   Opinion by

Beaver, J.,

Plaintiff recovered below upon a policy of insurance issued upon the life of her son. The case was twice tried. A compulsory nonsuit was granted at the first trial and, upon the granting of a new trial, recovery was had for the amount of the policy. The court refused binding instructions and afterwards declined to enter judgment non obstante. The assignments of error relate to the refusal of the point for binding instructions and the motion for a new trial for judgment non obstante veredicto. The points for charge of both the plaintiff and defendant were refused. The charge of the court covered the entire case and, taken in connection with the testimony, convinces us that the case was properly left to the jury.

Accompanying the proof of death of the insured were the affidavits of two physicians, Dr. Atkinson and Dr. Kirk, in which it was stated that they had attended the deceased within the time during which he stated in his application for insurance that he had not been attended by a physician. The answers to interrogatories in the application being declared to be a warranty, the facts contained in the affidavits of these physicians became of the first importance. Dr. Atkinson frankly testified that his affidavit was based upon a mistake of his as to the identity of the person to whom the affidavit referred, that it was not the deceased whom he had attended or for whom he had prescribed, but his brother. Dr. Kirk’s recollection was not distinct as to time. In the affidavit he fixed it between 1900 and 1905 and, upon -his examination, thought that it must have been the deceased for whom he prescribed, because the brothers, for whom he had also prescribed, were dead. The testimony of these physicians was offered by the plaintiff, who called a witness for the purpose of contradicting Dr. Kirk, based upon a conversation which he had with the doctor as to his testimony in regard to the identity of the insured and the time at which he had prescribed for him, the conversation being had in a specific inquiry on behalf of the plaintiff as to what the doctor’s testimony at the trial would be upon that subject. The question asked and the response thereto given are contained in a single answer of the witness, in which he said: "The question was: ‘What you will have to state is whether or not you attended him between April 23rd, 1903, and April 24th, 1905.’ And he answered it: ‘Well, I can’t state that, because I don't know.’ ” A question of fact was thus clearly raised and the correctness of the doctor’s recollection put in issue.

It is claimed by the defendant that the plaintiff had no right to introduce testimony for the purpose of contradicting his own witness. The court clearly pointed out the exceptional character of this attempt. He says: “The witness, Dr. Kirk, was called by the plaintiff. It is my duty to say to you that, when a party calls a witness to the witness stand, he thereby certifies to the jury that the witness is worthy of belief. He cannot afterwards attack the witness on the ground that his testimony is unworthy of belief, and usually he is bound by the testimony of the witness. I say usually, because that is ordinarily the case. There is an exception to that, however, and that is when a party has been in some way misled by the testimony which he thinks the witness may deliver. Now, the plaintiff here alleges that she was misled as to what the testimony of Dr. Kirk would have been and, in proof of that, she has called to the witness stand Mr. Barron, who, in company with her counsel, visited Dr. Kirk a few weeks ago and inquired of him whether or not he had actually attended Frank Koller, the deceased, between April 23rd, 1903, and April 24th, 1905, and that Dr. Kirk had replied that he did not know; that he could not say, because he did not know. Now, there is the situation. There is the testimony which you have to consider upon that, recollecting that the burden is upon the plaintiff to establish her case by the weight of the evidence.” This, as we understand it, is a correct statement of the law and practice in regard to this subject. Cowden v. Reynolds, 12 S. & R. 281, in which Chief Justice Tilghman says:

“The argument, which has been urged against admitting the probate in evidence, is that the party who calls a witness shall not be permitted to discredit him, on finding that .his testimony is against him. To a certain extent this is true — but the rule admits of exceptions. The party who calls a witness shall not be permitted to impeach his general character, because that must be supposed to have been known before he was called; and it is very unfair to call a man of bad character, with a view to avail yourself of his evidence, if it proves favorable, at the same time that you have the means of discrediting him, if it turns out unfavorable. Such conduct is a fraud on the administration of justice, and therefore should not be tolerated. But did the plaintiffs attempt to act such a part? In the first place, it may be remarked, that Joseph Rice could hardly be called the plaintiffs’ witness. They did not call him voluntarily — but, being , one of the subscribing witnesses, the plaintiffs were forced to call him. But even if he had been strictly the plaintiffs’ witness, there was no attempt to impeach his general character, but only to show that he had contradicted himself, and thereby to lessen the force of what he had sworn in court. There is no rule of law against this, — and hard indeed would be the case of one who calls a witness, éxpecting that he would swear the truth, if, upon finding himself deceived, he may not show that the witness had told a different story at another time. ' This is not the case of calling a witness known to be of bad character. On the contrary, this witness was supposed to be of good character, but his testimony was a surprise on the plaintiffs; and, even then, the plaintiffs did not offer to prove him of general bad character, but only that he had contradicted himself. This, undoubtedly, they had a right to do, and therefore this probate ought to have been admitted in evidence.”

Even without the testimony of Barron, it seems to us the case was for the jury, the doctor being indefinite in his own testimony as to time and as to the reasons for his conclusions, and it was for the jury to say whether or not his conclusion was justified, and in any event the question of veracity was for them.

The charge of the court below fairly and fully covers the case and we are all of opinion that it should be affirmed.

Judgment affirmed.


text:
    Dugan, Appellant, v. Lyon.

      Negligence — Automobiles—Duty of pedestrians — “Stop, look and listen.”

    1. The rule that a person must stop, look and listen before crossing the tracks of a railroad, does not apply to a pedestrian who is about to cross a street upon which automobiles are operated. Such machines have no prescribed course or direction or time of appearing, and are not to be distinguished from other conveyances in respect to the rights of persons lawfully using the streets. The measure of the duty of a pedestrian under such circumstances is ordinary and reasonable care.
    2. Where there is doubt as to the inference to be drawn from the facts and the measure of duty is reasonable care, and the degree of that care varies with the circumstances, the question of negligence is for the jury.
    3. In an action by a motorman against the owner of an automobile to recover damages for personal injuries, the question of defendant's negligence and the plaintiff’s contributory negligence is for the jury, where the evidence tends to show that the plaintiff alighted from his car, and while it was not in motion looked up and down the street, then passed behind the car to cross to the other side of the street and was immediately struck on the leg by defendant’s automobile which was being driven at a high rate of speed within a few inches of the side of the car, and in a narrow space between the car and the curb.
    Argued Feb. 24, 1909.
    Appeal, No. 15. Feb. T., 1909, by plaintiff, from judgment of C. P. Lycoming Co., Dec. T., 1906, No. 290, for defendant non obstante veredicto in case of P. H. Dugan v. Henrietta B. Lyon.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Ormerod, P. J.
    The circumstances of the accident are stated in the opinion of the Superior Court.
    Verdict for plaintiff for $669.90. The court subsequently entered judgment for defendant non obstante veredicto.

      Error assigned among other was in entering judgment for defendant non obstante veredicto.

      James B. Krause, for appellant.
    The plaintiff exercised due care under the circumstances: Thies v. Thomas, 77 N. Y. Supp. 276; Hennessey v. Taylor, 189 Mass. 583 (76 N. E. Repr. 224).
    We invite this court’s attention to the recent case of Vincent v. Lehigh Valley Transit Co., 220 Pa. 350, which we consider decisive of this case.
    The precautions taken by plaintiff are opposed to the idea of negligence: Ely v. Ry.Co., 158 Pa. 233; Cohen v. R. R. Co., 211 Pa. 227.

      John J. Reardon, for appellee.
    Under the state of facts as testified to by appellant himself and his witnesses he was guilty of contributory negligence: Waters v. Wing, 59 Pa. 211; R. R. Co. v. Armstrong, 49 Pa. 186; Chilton v. Traction Co., 152 Pa. 425; Harris v. Ice Co., 153 Pa. 278; Hoffman v. Transit Co., 214 Pa. 87; Wiszginda v. Traction Co., 212 Pa. 360; Crooks v. Rys. Co., 216 Pa. 590; Henson v. Arthur, 217 Pa. 156; Callary v. Easton Transit Co., 185 Pa. 176; Sontgen v. Kittanning & Ford City Ry. Co., 213 Pa. 114; Yersack v. R. R. Co., 221 Pa, 493.
    Defendant was not guilty of negligence: Goshorn v. Smith, 92 Pa. 435; Funk v. Traction Co., 175 Pa. 559.

      October 11, 1909:
   Opinion by

Henderson, J.,

The verdict of the jury charged the defendant with negligence and acquitted the plaintiff of contributory negligence. The learned judge, however, on the motion for a judgment non obstante veredicto reached the conclusion that contributory negligence of the plaintiff was shown and that the verdict could not be sustained. This result was apparently arrived at by applying the doctrine of Carroll v. Penna. R. R. Co., 12 W. N. C. 348; Urias v. R. R. Co., 152 Pa. 326; Crooks v. Pittsburg Rys. Co., 216 Pa. 590, and kindred cases which hold that where one drives or walks directly in front of an approaching car and is struck at the instant he sets his foot between the rails there is but one inference which can reasonably be drawn from the facts and that is the inference of contributory negligence. These authorities, however, are only applicable to the crossing of railroad tracks, where the duty of care is absolute because of known danger in the particular place. The track has a permanent location and the movement of cars is restricted thereto. The position of the track is usually known to the traveler,as is also .the fact that cars are likely to be moving rapidly on the rails. But it is not practicable to apply this doctrine to the use of automobiles on the public streets of a city. They have no prescribed course or direction or time of appearing and are not to be distinguished from other conveyances in respect to the rights of persons lawfully using the streets. Pedestrians and persons using vehicles of other types have equal rights with those who use self-propelling vehicles on the public streets. A reciprocal duty of care exists among them. The measure of this duty is ordinary and reasonable care according to the circumstances. In places where many pass or congregate a greater degree of care is required than where there are few travelers. Where there is doubt as to the inference to be drawn from the facts and the measure of duty is reasonable care and the degree of that care varies with the circumstances the question of negligence is one for the jury: Penna. R. R. Co. v. Peters, 116 Pa. 206; Gray v. R. R. Co., 172 Pa. 383; Haas v. Ry. Co., 202 Pa. 145; Cohen v. R. R. Co., 211 Pa. 227. The evidence brought up with the record we think brings this case within the operation of the authorities cited. From it the jury might have found the following facts: Two street cars were standing side by side on parallel tracks on Fourth street. The location was a place where passengers entered and alighted from the cars, where the cars stopped for exchange of motormen and conductors, where a car barn and office of the company were maintained and a part of the street where there was much travel. The space between the south'car and the curb was nine feet and six inches. The plaintiff was the motorman of the car on the north side of the street. After having brought some sand from the property of the company to his car and deposited it in the sand box he went back through the car to the rear end with the empty sand bucket on his arm and passed behind the car just south of his car which projected three or four feet further east. After getting out of his car he looked up and down the street to see whether any vehicles were passing and then crossing at the rear end of the car stepped out with his right leg in the direction of the south side of the street when he was struck by the defendant’s automobile. The defendant was running at from ten to fifteen miles an hour and her automobile was about a foot from the side of the car. The street was paved with asphalt and no warning was given of the defendant’s approach. The car at the rear of which the plaintiff was passing was a large car and interfered with the plaintiff’s view westward until he had passed far enough beyond the car to give him a view on the street. The negligence imputed to the plaintiff Was that he neglected to observe the automobile, but this view of the case fails to take into account the plaintiff’s testimony that his view was obstructed by the car and that he could not see the automobile until he stepped out as he did at the time he was struck. His evidence is distinct on that point and consistent with general knowledge as to the construction of such cars. He had looked up the street before passing behind the car and.it cannot be said as a matter of law that it was his duty to peep along the side of the car before taking a step further on the street. By so doing a more serious injury might have been done to his head than to his leg. The few inches left by the defendant between her car and the street car left no reasonable opportunity for observation and the duty of the plaintiff under the circumstances was a question for the jury, not for the court. It can not be declared as a matter of law that the plaintiff was bound to anticipate that an automobile would be propelled at a rapid rate so close to the car that the exposure of a part of his body beyond the line of the side of the car would subject him to peril of life or limb. The very point is decided in Gray v. R. R. Co., supra. But even if the principle adopted by the trial judge applied, the case was for the jury. If the plaintiff had been about to cross a railroad track, having stopped and looked at a place where he had a view of the track, the question whether there was a better place and whether he ought to have made further observation before advancing was one for a jury: Ely v. Ry. Co., 158 Pa. 233; Vincent v. Lehigh Valley Transit Co., 220 Pa. 350. The plaintiff’s act in looking up and down the street before passing behind the car to cross to the south side indicates the exercise of care and is inconsistent with the idea of that negligence which would preclude a recovery: Doyle v. Chester Traction Co., 214 Pa. 382. Moreover, the rule announced in Carroll v. R. R. Co., which has been followed in many later decisions, is only applicable to clear cases where there is no reasonable doubt in regard to the facts or the inferences to be drawn from them. Where the facts are in dispute or where the inferences from them are open to debate the case must go to the jury: McNeal v. Pittsburg, etc., Ry. Co., 131 Pa. 184; Cromley v. Penna. R. R. Co., 208 Pa. 445; Ely v. Ry. Co., supra.

That the evidence supports an inference of negligence on the part of the defendant we think cannot be successfully disputed. The space between the car and the curb was narrow. Employees of the street car company were in the immediate vicinity and one of them barely escaped from a collision with the automobile. The defendant, according to her own admission, recognized that “ there might be a person step off the car ” and she did not see the plaintiff until he was struck. She testified “I never saw the man until he was over the dashboard.” That the automobile was moving rapidly and within a few inches of the side of the car is shown by the plaintiff’s evidence. Taking into consideration the testimony as to the character of the place where the accident occurred, the presence of persons liable to be injured, the width of the space through which the defendant was compelled to drive and the speed proved by the plaintiff’s witnesses, it was for the jury to say whether the defendant exercised that degree of care which the circumstances required. The relative credibility of the evidence of the plaintiff and Dr. Lyon who was sent by the defendant to see the plaintiff was a subject for the consideration of the jury, not one for the court in entering judgment non obstante veredicto. Such a consideration might have influenced the trial judge in passing on a motion for a new trial,- but as the case stood the credibility of the witnesses was determined by the jury.

The judgment is reversed and judgment is now entered against the defendant and in favor of the plaintiff on the verdict.


text:
    Benton Township Road.

      Appeals — Paper-books—Road law — Petition.
    1. The jurisdiction of the court to appoint road viewers or confirm any report which they may make is dependent on the terms of the petition for the appointment of viewers. Such petition must describe the termini of the proposed road with reasonable accuracy, and the termini of the road as located by the viewers must be in substantial compliance with the petition. If, on appeal, the petition is not printed in the appellant’s paper-book, the appellate court is justified in quashing the appeal.

      Road law — Report of viewers — Discretion of court — Act of February 24, 1845, P. L. 52.

    2. In passing upon the report of a road jury the judge of the court of quarter sessions is vested with discretion to approve or disapprove the report.
    3. Under the local law of February 24, 1845, P. L. 52, relating first to Luzerne county and afterwards to Lackawanna county, the court of quarter sessions has the discretion to approve or disapprove the report of.á road jury.
    Argued March 3, 1909.
    Appeal, No. 23, April T., 1909, by G. G. Rough et ah, from order of Q. S. Lackawanna Co., April Term, 1907, No. 287, sustaining exceptions to report of viewers In re Road in Benton Township.
    October 11, 1909:
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    Exceptions to report of road viewers.
    The opinion of the Superior Court states the case.

      Error assigned was order sustaining exceptions to report of viewers.

      A. A. Vosburg, with him C. W. Dawson and J. W. Browning, for appellant,
    cited: Ohio & Ross Twp. Road, 166 Pa. 132; Montgomery Street, 7 Luz. L. R. 79; Amwell Twp. Road, 28 Pa. C. C. Rep. 129; Columbus Twp. Road, 13 Pa. Dist. Rep. 541; Young Twp. Road, 27 Pa. C. C. Rep. 106; Parker Twp. Road, 14 Pa. Dist. Rep. 11; East Hempfield Twp. Road, 21 Lane. L. R. 267; East Franklin Twp., 8 Pa. C. C. Rep. 590.

      J. E. Bidder, for appellees,
    cited: Bachman’s Road, 1 Watts, 400; Lenker’s Petition, 1 W. N. C. 236; Brecknock Twp. Road, 2 Woodw. 437; Hatfield Twp. Road, 3 Northampton Co. Rep. 292.
   Opinion by

Porter, J.,

The appellants have not in their paper-book printed the petition for the appointment of viewers, upon which this proceeding is founded. The jurisdiction of the court to appoint the viewers or confirm any report which they might make was dependent on the terms of that petition. The petition must describe the termini of the proposed road with reasonable accuracy, and the • termini of the road as located by the viewers must be in substantial compliance with the petition: Dunbar Township Road, 12 Pa. Superior Ct. 491; Crescent Township Road, 18 Pa. Superior Ct. 160. The appellants have printed the precept which issued to the viewers, and if that instrument followed the petition, as to the description of the termini of the road, there is •certainly a question whether any viewers ought to have been appointed. The part of the record which appellants have printed does not show that the appellants were parties to the proceeding in the court below nor that they have any standing to maintain this appeal. We would be warranted in quashing the appeal upon this ground, but will consider the single question argued on behalf of appellants.

The viewers having been appointed made a report finding the road prayed for to be necessary for the traveling public and locating the same. The supervisors of the township, who are resident taxpayers, filed exceptions to this report, one of which was, that the proposed road was entirely unnecessary for public use, and would benefit no one but the owners of a certain acid factory located in Wyoming county; and another exception averred that the construction and maintenance of the road would be very burdensome to the inhabitants and taxpayers of the township of Benton. The court heard testimony and sustained these exceptions, disapproved the report and dismissed the petition at the cost of the petitioners. The learned judge in his opinion said: “ It may be a case for a private road, but from the standpoint of public convenience it is without merit,.” The question presented and argued here is, has the court of quarter sessions authority to disallow a road, in favor of which viewers have reported, for the reasons raised by these exceptions; that the road is unnecessary and that its construction and maintenance would be very burdensome to the taxpayers of the township.

The Act of June 13,1836, P. L. 555, sec. 4, provides: “If the court shall approve of the report of the viewers, allowing a road, they shall direct of what width the road so approved shall be opened.” Under the general road law both the view and review are for the purpose of informing the conscience of the court, and therefore either or both may be rejected: Road in Bensalem Township, 38 Pa. 368. The act of the court in passing upon a report of viewers is not merely ministerial; but in the performance of that act a judicial discretion is to be exercised. Chief Justice Woodward said, In the Matter of the Opening of Wharton Street, 48 Pa. 487: “In committing road cases to the Court of Quarter Sessions, which is a court of record, of constitutional origin, and of common-law powers, the legislature manifestly intended that a judicial discretion should be exercised in such cases. Accordingly it was held in Buckwalter’s Case, 3 S. & R. 236, and again in Bachman’s Case, 1 Watts, 400, that though a review is matter of right, it, as well as the view is only intended to inform the conscience of the court. ... If a mere registry of the report of viewers had been intended, it would have been made most naturally in the recorder’s office, and no approval of the Court of Quarter Sessions would have been required, but when a court of record was required to approve, a judicial discretion was implied.” The disallowance of a road rests in the discretion of the quarter sessions, and depends on facts which cannot appear in the court of error: Fretz’s Appeal, 15 Pa. 397. These authorities and others which might be cited clearly establish that, in passing upon reports of viewers under the general road law the judge of the court of quarter sessions is vested with discretion to approve or disapprove the report. That in the exercise of that discretion he may consider the question of the necessity for the proposed road does not seem to be open to question. “Unless satisfied of the necessity for the road, under the circumstances, the court may refuse approval, notwithstanding the favorable report of the viewers;” In re Public Road in Benzinger Township, 115 Pa. 436. That decision rules this case adversely to the contention of the appellants.

The county of Lackawanna was taken from the county of Luzerne, and is subject to the provisions of the Act of February 24, 1845, P. L. 52.' That statute changed the number of viewers to be appointed in road cases and required that the viewers assess the damages arising from the opening of the road, and to that extent changed the law applicable to the roads of that county; but it did not divest the court of quarter sessions of the discretion to approve or disapprove of the report of viewers: Road in Bensalem Township, supra. The fourth section of the act of 1845 provides, that when damages are assessed, “and if the said court shall be satisfied that, the ' amount of damages assessed in any case is such that the public interest will be subserved by -its payment, and the opening of the road, said court shall confirm such view or review, and the assessment of damages, which shall be paid as now directed by law; but if said court shall not be satisfied, the said report shall not be confirmed, unless the same shall be paid first by the petitioners.” The report of viewers in the present case assessed damages in favor of Edwin Hartley, an owner of land through which the proposed road was located, in the sum of $200. The court was not satisfied that the public interest would be sub-served by the payment of these damages and, as the petitioners did not pay the damages, the statute forbade the approval of the report, even if the court had, apart from the question of damages, been convinced that the road was necessary. This is an additional reason why this appeal cannot'prevail.

The order of the court below is affirmed and the appeal dismissed at cost of the appellants.