text:
    Sigman v. G. R. McAbee Powder & Oil Company, Appellant.

      Negligence — Explosion of dynamite — Lease of plant.

    1. In an action against a corporation to recover damages for injuries sustained by an explosion of dynamite on a plant owned by the defendant, the latter alleged that at the time of the accident it had nothing to do with operating the plant, but that it was in the hands of, and was being conducted by, a lessee as an independent operator. Plaintiff offered evidence tending to show the defendant had retained a superintendent on the ground, that such superintendent had sold goods and shipped them in boxes of the defendant marked and stamped with its name; that the chief executive officer of the defendant had declared that the company was operating the plant; that the defendant under the terms of the written lease furnished all of the material used in the plant; that the alleged lessee had no right to sell the product to any other person than the defendant; and that after the explosion the defendant fixed a price of certain pipe which, had been connected with the plant, and sold it to a witness, receiving the .money therefor. Held, that it was a question for the jury to determine whether or not the defendant was in reality operating the plant at the time of the accident.
    2. In such a case where it appears that the plaintiff was a stranger to the operator, living some distance away, and in no manner connected with the business, a verdict and judgment in his favor will be sustained where there is evidence that the boxes in which the dynamite cartridges were stored were carelessly nailed, and that after being nailed they were pitched or tossed a distance of from two to five feet upon a pile; that workmen walked over the floor where dynamite was scattered wearing ordinary leather shoes with iron nails in the soles and heels, and that these conditions were actually present and observed a few minutes before the explosion; and that these methods, from the testimony of experts, were dangerous methods of handling high explosives.
    Argued Nov. 13, 1908.
    Appeal, No, 146, Oct. T., 1908, by defendant, from judgment of C. P. Lancaster Co., Aug. T., 1906, No. 112, on verdict for plaintiff in case of Jacob Sigman v. G. R. McAbee Powder & Oil Company.
    Before Rige, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for injuries resulting from an explosion of dynamite. Before Landis, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $453. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      M. J. Hosack, of Hosack, Knox & Hosack, with him Frank S. Groff, for appellant. —
    In all actions for damages there must be proof of negligence on the part of the defendant and a statement of facts showing how the accident occurred: Huey v. Gahlenbeck, 121 Pa. 238; Hazel v. People’s Pass. Ry. Co., 132 Pa. 96; Snodgrass v. Carnegie Steel Co., 173 Pa. 228; Alexander v. Penna. Water Co., 201 Pa. 252; Baron v. Reading Iron Co., 202 Pa. 274; Frazier Bros. v. Lloyd, 23 W. N. C. 178.
    The mere fact that there is an explosion does not throw upon the defendant the burden of proving that he was not negligent, and the burden remains upon the plaintiff throughout: Earle v. Arbogast, 180 Pa. 409; Kepner v. Traction Co., 183 Pa. 24.
    July 14,1909:
    A defendant is not responsible for unavoidable accidents against which human foresight cannot provide: Wall v. Lit, 195 Pa. 375.
    The inference of negligence from the happening of an injury alone is ordinarily limited to cases where there is an absolute duty or obligation practically amounting to that of an insurer: Zahniser v. Pennsylvania Torpedo Co., 190 Pa. 350.

      John E. Malone, with him H. Frank Eshleman, for appellee.—
    The case was for the jury: Hershinger v. R. R. Co., 25 Pa. Superior Ct. 147; Sowers v. McManus, 214 Pa. 244.
   Opinion by

Head, J.,

The defendant in this case denies liability on two grounds. Whilst admitting that it had constructed the Powder Plant in which the explosion occurred, and owned it at the date thereof, it maintained that it had never operated the plant, and was not therefore responsible, even if the explosion had been caused by the negligence of the operators. In support of this theory, the defendants offered testimony that immediately upon the completion of the plant it had been leased by the owner to two individuals named Rapp and Taylor. This lease was said to have been in parol, but identical in terms with the written lease which was offered in evidence. The latter purports to have been dated in January, 1906, several months before the date of the accident. It appears to have been executed by the defendant company as lessor, and by A. E. Rapp, Taylor, the former lessee, having retired from the business under circumstances which will be noted hereafter. Testimony was adduced from several witnesses tending to show that this lease was executed in good faith; that the lessee therein named was an independent operator, and that the lessor had no control whatever in the management of the plant, and was in nowise responsible for the manner of its operation.

In contradiction of this, the plaintiff offered-testimony tending to establish a number of circumstances for the purpose of proving, as he alleged, that the lease offered in evidence had not been executed in good faith; and that the defendant company was in reality the operator of the plant, and responsible for its management.

Some of these circumstances may be thus briefly noted. After the plant had been completed, and, as the defendant alleged, leased to Rapp and Taylor under a parol lease, the defendant company retained a superintendent on the ground. A witness, who was called, gave to this superintendent an order for some powder or dynamite. The order was filled, the dynamite delivered, the bill therefor rendered by the defendant company, and the amount of it paid to the company by the purchaser. He was not able to say that the goods he received had been actually shipped from this particular plant. There was testimony of a conversation with the chief executive officer of the defendant company, in which he declared that he, or his company, was operating the plant and in control of its management. That Taylor, although, as alleged, one of the lessees of the plant, was discharged or dismissed by Mr. McAbee upon a report that he was indulging in the use of intoxicating liquors. That the defendant company, even under the terms of the written lease, furnished all of the material used in the manufacture of explosives, and that the alleged lessees had no right to sell their product to any other person than the defendant. That all of the boxes in which the manufactured product was stored previous to shipment were the boxes of the defendant company, marked and stamped with its name. That after the explosion the defendant company fixed the price of certain pipe which had been connected with the plant and sold it to a witness, receiving the money therefor.

The learned court below submitted all these matters to the jury in an admirably careful and impartial charge, there being no complaint whatever as to the manner of such submission. The learned counsel for the appellant, however, claims that there was not sufficient evidence to warrant a finding by the jury that the defendant company was operating the plant at the time of the accident, and as a consequence that there should have been a directed verdict in its favor. We are unable to so hold. We agree with the learned trial judge that all of the facts and circumstances in evidence on this subject, most of which we have noted, constituted more than a scintilla of evidence on the question as to who was in reality the operator of the plant at the time of the accident. This being true, the learned trial judge could not have properly disposed of the question otherwise than by submitting it to the jury.

It is further contended' by the appellant that the record discloses no evidence which would warrant the jury in finding that the explosion resulted from any negligence in the operation of the plant, even though the defendant were found to be the operator. The explosion occurred in what was called “the punch house.” Into this room or building the dynamite was brought', after it had been mixed, and was there forced or punched into paper shells or cartridges, and thus prepared for commercial use. There was evidence that the boxes in which these cartridges were stored were carelessly nailed, undue force being used, and that after being nailed, they were pitched or tossed a distance of from two to five feet upon a pile, thus subjecting them to serious and unnecessary concussion. That portions of the dynamite would become scattered over the floor of the building, and that the workmen, or at least many of them, engaged in this building, wore ordinary leather shoes'with iron nails in the soles and heels, and that these conditions were actually present and observed by witnesses just a few moments before the explosion occurred. There was expert testimony, which, if believed by the jury, was sufficient to prove that these methods of handling high explosives were dangerous.

The learned counsel for the appellant argues that even under such circumstances the plaintiff cannot recover because he could not prove by positive evidence that the explosion, which occurred and destroyed the lives of eleven men, was the result of any one of the negligent acts referred to, or indeed of all of them together. In the light of two recent and authoritative utterances on this subject by our Supreme Court, there is but little room for contention in support of such a theory. The following excerpt from the opinion of Mr. Justice Fell in Derry Coal & Coke Co. v. Kerbaugh, 222 Pa. 448, seems to us a conclusive answer to the position of the appellant. “The exact cause of the explosion was not shown, but the case was not left to the jury to find negligence from the mere fact of the explosion. A condition, entirely under the control of the defendant, was shown, to which as a producing cause the explosion might be attributed. The presence of a red stove hot in a small building and within a few inches of the dynamite and of explosive caps on the floor was under the testimony an unsafe condition from which an explosion might result. In the recent case of Sowers v. McManus, 214 Pa. 244, it was said: ‘While the possession of dynamite to be used for lawful purposes is neither unlawful nor negligent, the person in possession of it is, as to 'third parties, bound to the highest degree of care, and failure to take any reasonable precaution to prevent explosion of it while in storage is negligence.’ No explanation of the cause of the explosion was furnished by the defendant and it was left to the jury to accept the theory of the plaintiff, based on affirmative evidence of negligent acts, or that of an unaccountable accident advanced by the defendant.”

This case we regard as identical in every material respect with the case at bar. The plaintiff here was a stranger to the operator, living some distance away, and in no manner connected with the business carried on at the powder plant. Applying to the facts ’here in evidence the rule laid down by the Supreme Court in the language quoted, we are again obliged to say that the learned trial court could not with propriety have ' withdrawn the case from the consideration of the jury. As already stated, there is no complaint as to the manner in which the learned judge laid the case before the jury, and their verdict establishes upon sufficient evidence the two controlling facts in the case. The assignments of error must therefore be overruled.

Judgment affirmed.


source: Caselaw Access Project

author: Rice, P. J.,

license: Public Domain

text:
    Worth’s Estate.

      Will — Legacy—Void legacy — Charity—Residue—Trusts and trustees.

    1. Where a testator gives a fund to a trustee to pay the income to his sister for life, and after her death to pay out of the principal her funeral expenses and two legacies, one to a charity, and to pay the remainder of the fund to a niece, and after disposing of other portions of his estate he gives the residue thereof to a person named, and dies within thirty days of the execution of his will, the amount of the lapsed legacy given to the charity goes to the general residuary legatee, and not to the niece who was given the remainder of the special trust fund.
    2. As a general rule a legacy which fails either by lapse or because void ab initio goes into the residue.
    Argued Nov. 20, 1908.
    Appeal, No. 213, Oct. T., 1908, by Lillie H. Kautz, from decree of O. C. Chester Co., dismissing exceptions to auditor’s report in Estate of Annie E. Worth, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Reversed.
    Exceptions to report of W. S. Harris, Esq., auditor.
    The opinion of the Superior Court states the case.

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

      Thomas W. Baldwin, for appellant. —
    The word “remainder” as used by testatrix, defines the legacy and fixes its amount. It is the gift of a definite sum, charged with the payment of the funeral expenses of Jane M. Hardy: Barrett’s Estate, 22 Pa. Superior Ct. 74; McGlaughlin’s Executor v. McGlaughlin’s Administrator, 24 Pa. 20; Pittman’s Est., 182 Pa. 355.
    The testatrix does not die intestate as to a void or lapsed legacy where there is a residuary legatee named in the will: Act of April 26,1855, P. L. 328.
    It is a well-established rule that a general residuary clause contained in a will carries with it any legacies which for any reason have lapsed or are void: Alter’s Estate, 4 Pa. C. C. Rep. 558; Gray’s Estate, 147 Pa. 67; Wood’s Estate, 209 Pa. 16.

      July 14,1909:

      J. Frank E. Hause, for appellee. —
    It matters not in what part of the will the appropriate expression is used, it will pass the “remainder” or “residue” of that part of the estate to which it refers: Reimer’s Estate, 159 Pa. 212.
    No rule of construction requires that the word “remainder” shall be applied exclusively to that part of the estate referred to in the final residuary clause, or that all lapsed or void legacies shall, of necessity, pass under that clause: Mahorner v. Hooe, 48 Am. Dec. 712.
    Both the fourth and sixth clauses of the will are perfectly consistent, and if there were doubt as to their consistency, it would become the duty of the court to so construe the will as to give full force and effect to both clauses, barring, however, the inability so to do on account of strict legal rules: Jones v. Strong, 142 Pa. 496; Phillips’ Estate, 205 Pa. 504; Willard’s Estate, 68 Pa. 327; Pittman’s Estate, 182 Pa. 350.
   Opinion by

Rice, P. J.,

The will of the testatrix contained, amongst others, the following provisions: “Fourth. I give and bequeath to the Farmers’ and Mechanics’ Trust Company the sum of $5,000, in trust to pay the interest and income arising therefrom for the support and maintenance of my sister, Jane M. Hardy, during the term of her natural life, and at her death I give the said principal sum of $5,000 as follows: I direct that the said Farmers’ and Mechanics’ Trust Company pay the funeral expenses of my said sister Jane M. Hardy; I give $2,000 to Lillie Hoopes, daughter of Cyrus Hoopes; $1,000 to the Wentworth Home, of the Borough of West Chester, and the remainder I give to my great niece, Lettie W. Kugler.” Then after giving several pecuniary legacies the will concludes: “Sixth. If any estate remains after paying expenses of my funeral and expenses of administering my estate, not including collateral inheritance, which I do not desire my residuary estate to pay, I give and bequeath the same to Lillie Hoopes, daughter of Cyrus Hoopes.”

The auditor whose report was approved by the orphans’ court found that the legacy to the Wentworth Home was void, because the will was executed within one calendar month of the death, of the testatrix; that the net balance for distribution was $7,782.31; that the legacies amounted to $9,900; that all legacies must abate; and that Lettie W. Kugler was entitled to the void legacy. The principal questions for decision are as to the distribution of the void legacy and as to the funeral expenses which will accrue upon the death of Jane M. Hardy.

Section 11 of the Act of April 26, 1855, P. L. 328, regulating devises, bequests and conveyances for religious or charitable uses, declares that all dispositions of property contrary thereto, shall be void and go to the residuary legatee or devisee, next of kin or heirs according to law. It is well settled that this is a statute of wills and conveyances, not of distribution of decedents’ estates, testate or intestate, and that the expression “go to the residuary legatee or devisee, next of kin, or heirs according to law,” means to one or the other, as the case may be under the law of distribution: Gray’s Estate, 147 Pa. 67. It is therefore not important in the determination of the question before us that the act mentions the residuary legatee first. But the same case shows, as indeed all the authorities agree, that as a general rule a legacy which fails, either by lapse or because void ab initio, goes into the residue. The force accorded to this rule and the reason on which it is founded are well shown in Wood’s Estate, 209 Pa. 16. By the will construed in that case the testator made certain bequests to charities, which lapsed because the will was not witnessed. In the residuary clause he directed as follows: “ Everything not otherwise specified that I may own at the time of my decease I desire shall be sold as soon as possible and the proceeds divided as herein set forth.” It was held that the words “not otherwise specified” in the residuary clause did not prevent the lapsed legacies from going to the residuary legatee in accordance with the general rule. Judge Penrose whose opinion was affirmed by the Supreme Court said: “The foundation of this general rule in respect of lapsed legacies, it is said in 2 Williams on Executors, 1569, is that the residuary clause is understood to be intended to embrace everything not otherwise effectually given; because the testator is supposed to ‘take the particular legacy away from the residuary legatee, only for the sake of the particular legatee; so that upon the failure of the particular intent the court gives effect to the general intent.’ ” The rule even as thus broadly stated, is not without its exceptions, as, for example, where part of the residue is itself ill given (Leake v. Robinson, 2 Mer. 363; Gray’s Estate, 147 Pa. 67); nor does it require that a lapsed or void legacy shall go to the legatee named in the final residuary clause if the intention of the testator that it shall go elsewhere appears upon a construction of the whole will. “And even though the word ‘residue’ be employed by the testator, yet if it appears, on the construction of the whole will, that he meant to use it in a more restricted sense, than that of its large and general sense comprehending whatever of his personal estate in the events which happen turns out to be undisposed of, the court is bound to construe it in such restricted sense:” 2 Williams on Executors (4th Am. ed.), *1253, citing Green v. Pertwee, 5 Hare, 249. In short, the rule is not to be applied to defeat the actual intention of the testator if that intention is discoverable from a construction of the whole will and is lawful. Therefore, if it was the intention of the testatrix in the present case that, in the event of the legacy to the Wentworth Home lapsing or becoming void by reason of her death within one calendar month after the execution of the will, it should fall into the remainder of the particular fund bequeathed in the fourth clause of the will, there is no rule of construction or of law which requires us to hold that this intention shall not prevail. But in determining whether such was the intention of the testatrix it is highly important to observe that the sixth clause of her will, shows that she had directly in mind the disposition of what she termed “my residuary estate.” This was broad enough to include and prima facie would include, all lapsed or void legacies not diverted therefrom by statutory provision. There is, therefore, no occasion for resorting to the presumption that she did not intend to die intestate as to any part of her estate in the construction of the fourth clause. For the same reason her omission to provide specifically in that clause for the disposition of the legacy to the Wentworth Home in the event of its lapsing or becoming void, whilst not conclusive, is significant. If, as is argued, she had that contingency in mind and did not intend that in that case the legacy should fall into the general residue, it seems remarkable, at least, that she did not make provision against it in words that would have put the question beyond doubt. In the construction of a will artistically drawn and containing a disposition of the testator’s residuary estate, without any qualifying words in that connection restricting the gift to a part of such estate, consideration may properly be given to the omission above referred to. There may, of course, be a limited or restricted residuary gift which would carry nothing outside of the designated limits; but in the absence of clear evidence of intention to restrict it is assumed that the testator intended the residuary clause in the general sense: Wood’s Estate, 209 Pa. 16. Every word of the fourth clause may be taken in one of its ordinary meanings and be given full effect without concluding that the testatrix intended the subsequent residuary clause to be less comprehensive than its terms import. This may be done by interpreting the word “remainder” employed in the fourth clause to mean the balance remaining after deducting the amount of the legacies previously given and the funeral expenses of Jane M. Hardy. See Easum v. Appleford, 5 My. and Cr. 56. Notwithstanding the able presentation of the opposite view by the learned auditor and the learned counsel for the appellee we are constrained to the conclusion, having regard to the well-established doctrine applicable to lapsed or void legacies, that this is the better view, and more in harmony with it; further, that we are more likely to carry out the actual intention of the testatrix by adopting it than by holding that Lettie W. Kugler is residuary legatee of the .15,000 fund.

It follows that if the assets of the estate were sufficient to pay all the general legacies in full, the amount of the Wentworth Home legacy would be payable to Lillie H. Kautz, the residuary legatee, upon the death of Jane M. Hardy. But it is conceded by her counsel that as they are insufficient for that purpose, the amount which the Wentworth Home would take upon the death of Jane M. Hardy, if the legacy were not void, must be divided amongst those to whom general legacies have been given which have abated. As such disposition would not pay the legacies, it results that a schedule for the pro rata distribution of that sum upon the death of Jane M. Hardy must be made part of the decree.

It was evidently, not the intention of the testatrix that any part of the funeral expenses of Jane M. Hardy should be taken out of the sum bequeathed to Lillie Hoopes, now Kautz, the appellant. The testatrix directed their payment out of the $5,000 legacy, and as counsel for appellee frankly concedes, “the remainder” his client takes must be reduced by their amount.

The decree is reversed at the costs of the appellee, and the record is remitted to the orphans’ court with direction to make distribution in accordance with the conclusions expressed in the foregoing opinion.


text:
    Phillips v. Kantner, Appellant.

      Public officers — Poor laws — Directors of the poor — Compensation—Acts of April 4, 1831, P. L. 422, April 25, 1850, P. L. 569, March 31, 1876, P. L. 13, and July 2, 1895, P. L. 424 — Traveling expenses — Acts of April 6,1864, P. L. 285, and May 13,1889, P. L. 200.
    1. “The Directors of the Poor and of the House of Employment for the County of Schuylkill,” created by the Act of April 4,1831, P. L. 422, are not county officers and their compensation is not affected nor changed by the Act of July 2, 1895, P. L. 424, which fixes the salaries of county directors of the poor in counties containing over 150,000 inhabitants.
    2. Section 17 of the Act of April 25,1850, P. L. 569, which repealed so much of sec. 3 of the act of April 4, 1831, as authorized the directors to appoint a treasurer, did not in any way affect the distinct and separate corporate existence of “The Directors of the Poor and of the House of Employment for the County of Schuylkill,” or change the nature of that office.
    3. The directors of the poor and of the house of employment for the county of Schuylkill, are entitled each to receive a compensation of $2.00 a day for each day necessarily spent in the performance of the duties of his office, and $20.00 a year to defray the expenses of his necessary attendance upon the duties of his office.
    4. The Act of May 13, 1889, P. L. 200, does not apply to a poor director compensated as are the poor directors of Schuylkill county under a local law, even though his per diem compensation may in some years amount in the aggregate to $150.
    5. The right of poor directors to an allowance for traveling expenses cannot rest upon usage or custom.
    Argued Dec. 8, 1908.
    Appeal, No. 45, Oct. T., 1908, by defendants, from judgment of C. P. Schuylkill Co., May T., 1904, No. 150, for plaintiffs on case stated in suit of Patrick Phillips et al., Directors of the Poor and of the House of Employment for the County of Schuylkill, v. F. R. Kantner et al., Commissioners of the County of Schuylkill.
    Before Rige, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Case stated to determine the amount of compensation of poor directors.
    From the case stated it appeared that the question involved was whether the directors of the house of employment for the county of Schuylkill were entitled to the salary of $1,500 per year, provided by the Act of July 2, 1895, P. L. 424, for county directors of the poor, and whether they were entitled to traveling expenses under the Act of May 13, 1889, P. L. 200.
    The court decided the case in favor of the plaintiffs and entered the following judgment:
    And now, September 30, 1907, in accordance with the agreement contained in the case stated, for the reasons verbally given, it is hereby directed that judgment be entered in favor of Patrick Phillips, and against the county of Schuylkill, for the sum of $138.35; and-in favor of Anthony Schmicker, and against the county of Schuylkill, for the sum of $138.65; and in favor of Frederick Portz, and against the county of Schuylkill, for the sum of $138.90.
    . Error assigned was the judgment of the court.

      Guy E. Farquhar, with him Otto E. Farquhar, for appellants.—
    This case is ruled by Nissley v. Lancaster County, 215 Pa. 562; Com. v. Bowditch, 217 Pa. 527.

      July 14, 1909:
    The expenses of their necessary attendance on the duties of their office necessarily includes traveling expenses, and, therefore, the act of 1889 cannot apply to the directors of the poor and of the house of employment of Schuylkill county.

      W. F. Shepard, for appellees. —
    The directors are county officers: Taggart v. Com., 102 Pa. 354; Com. v. Oellers, 140 Pa. 457; Com. v. Paine, 207 Pa. 45.
    It is claimed that the act of 1889 allowing directors of the poor their traveling expenses does not apply in this case, as it expressly excepts counties having local or special laws on the subject, but the contemporaneous constructions and the practice under this act of 1889 up to the time this trouble arose in 1904 has been that the act of 1889 applies to Schuylkill county, notwithstanding the long forgotten paltry provision of 120.00 in the act of 1831: Mercer County v. Allen, 10 Pa. C. C. Rep. 342.
    It is not doubted but what the acts of 1876 and 1895 repeal all prior inconsistent general laws bearing on the subject: McCleary v. Allegheny County, 163 Pa. 578; Com. v. Summerville, 204 Pa. 300.
   Opinion by

Rice, P. J.,

The principal question in the case is as to the law regulating the compensation of directors of the poor and of the house of employment for the county of Schuylkill in the year 1904. It is claimed by them, and the court below so held, that each was entitled to a salary of |1,500 a year under the Act of March 31, 1876, P. L. 13, as amended by the Act of July 2, 1895, P. L. 424, which was to be paid to him even though the net annual receipts of his office did not amount to that sum. On the other hand, it is urged by the defendant that the controlling question of law involved in this claim was decided against the plaintiff’s contention by the judgment of the Supreme Court in Nissley v. Lancaster County, 215 Pa. 562, affirming the judgment of the Superior Court in the same case reported in 27 Pa. Superior Ct. 405.

The office was created by the Act of April 4, 1831, P. L. 422, entitled, “An act to provide for the erection of a house for the employment and support of the poor in the county of Schuylkill.” A careful comparison section by section shows that the provisions of that act relating to the mode of electing directors, their powers, duties and compensation, the distinct and separate corporate existence of “The Directors of the Poor and of the House of Employment for the County of Schuylkill,” the mode of providing revenue for the purposes of the corporation, the disbursement and accounting for the same, the auditing of the directors’ accounts, indeed all of its provisions which in any way affect the question for decision were transcribed literally, in some instances, and substantially in the other instances, from the Act of February 27, 1798, 3 Sm. L. 306, as supplemented by the Act of March 31, 1807, 4 Sm. L. 388. These were the acts construed in Nissley v. Lancaster. No subsequent legislation changed the Schuylkill county act in such manner as to distinguish this case from the case cited, unless it be sec. 17 of the Act of April 25, 1850, P. L. 569. This repealed so much of sec. 3 of the act of 1831 as authorized the directors to appoint a treasurer, and provided that the county treasurer, in addition to his other duties, should receive all moneys belonging to the corporation and should disburse the same on orders drawn by the board of directors. We have given careful consideration to the argument of appellees’ counsel upon this point, but are unable to discover any substantial reason for concluding that this change of the law affected in any way the distinct and separate corporate existence of “The Directors of the Poor and of the House of Employment for the County of Schuylkill,” the corporation of which the plaintiffs were directors, or changed the nature of that office, or distinguishes the controlling question for decision in this case from that decided in Nissley v. Lancaster. As that is a decision of the Supreme Court affirming our decision of the same question, it must be received and followed as of binding authority.

The next questions to be considered are whether the directors were entitled to recover traveling expenses incurred in their investigations as to outdoor relief, and if they were, what was the limit of their right of recovery. The right to an allowance for traveling expenses cannot rest upon usage or custom: Albright v. Bedford County, 106 Pa. 582; Mansel v. Nicely, 175 Pa. 367; McKean County v. Young, 11 Pa. Superior Ct. 481. Section 10 of the act of 1831 reads as follows: “That the said directors shall each of them receive for their services the sum of $20.00 annually to defray the expenses of their necessary attendance on the duties of their office.” By the special and local Act of April 6, 1864, P. L. 285, it was provided: “That the pay of the directors of the poor of said county shall be $2.00 per day, for each day necessarily spent in the performance of the duties of their office.” This act made no allowance for expenses as was done in the Lancaster act of the same year, and it is fairly inferable that the legislature did not intend to abrogate the provisions of the act of 1831 relating thereto. Construing the two acts together, the conclusion is that they entitled each director to $2.00 a day for each day necessarily spent in the performance of the duties of his office, and $20.00 a year to defray the expenses of his necessary attendance upon the duties of his office. We are inclined to agree with the plaintiffs’ counsel that the proviso of the first section of the Act of May 13, 1889, P. L. 200, does not apply to a poor director thus compensated under the local law, even though his per diem compensation may in some years amount in the aggregate to $150. The proviso relates to local laws which prescribe an “annual compensation” of $150 or more, and, inferentially, not to those under which the compensation that the officer is entitled to in any one year is uncertain in amount and is dependent on the number of days of actual attendance upon the duties of his office. But the second section contains the explicit declaration that, “this act shall not apply to any local law regulating the same,” that is, as shown by the context, traveling expenses of the directors. As already pointed out there was a local law regulating the expenses of the directors of the poor and of the house of employment for the county of Schuylkill. Among the expenses thus regulated, there were included, ex vi termini, traveling expenses. There is therefore no escape from the conclusion that the act of 1889 does not apply to these directors-.

It follows that the plaintiffs were not entitled to recover for the month of February, 1904, at the rate of $1,500 each a year, but were only entitled to recover at the rate of $2.00 a day for each day of that month necessarily spent in the performance of their duties, and such portion of the expenses, for which the annual allowance of $20.00 is made, as had been actually incurred in that month. But as we understand the third stipulation of the case stated as to the judgment to be entered under the view we have taken of the law, it is agreed that there shall be added to the amount of the per diem compensation $20.00 in' full payment for expenses for the year 1904. Therefore the judgment now directed will cover the compensation of the directors for the month of February, 1904, and their expenses for the entire year.

The judgment is reversed and the record is remitted to the court below with direction to enter judgment in favor of Patrick Phillips for $10.10, in favor of Anthony Schmicker for $10.80, and in favor of Frederick Portz for $13.90.


author: Henderson, J.,

text:
    Commonwealth ex rel., Appellant, v. Horan
    (No. 1).

      Principal and surety — Bond to commonwealth — Public officers — Judgment.

    1. The right of a party to take advantage of the security afforded by an official bond given to the commonwealth and the manner of procedure with respect thereto are prescribed by the Act of June 14, 1836, P. L.' 637. A remedy is thereby given to any person for whose security the bond was executed. Only one action can be brought and that in the name of the commonwealth at the suggestion of the person or persons in whose behalf the proceeding is commenced. As many persons as have separate rights of action may join in the action. Judgment against the defendants is in favor of the commonwealth for the amount of the bond, and for the plaintiff in the issue for the amount of damages assessed with costs. The’ judgment of the commonwealth remains for the satisfaction of all persons entitled to the benefit of the bond. After judgment for the commonwealth the remedy of a creditor is by scire facias and the assignment of breaches.
    2, Where a school district enters a judgment on a bond of a tax collector in the name of the commonwealth, and subsequently revives the same, and thereafter a vendee of a surety on the bond who had paid the county money due by the collector to the county, secures an order of court subrogating herself to the rights of the county but to the term and number to the sci. fa. in favor of the school district, without the county ever having begun an action, the court may thereafter amend the order by striking out therefrom the judgment in favor of the school district. In such a case the rights of the intervenor are in no way affected by the order, inasmuch as she has her judgment and lien as of the date when it was entered.
    Argued Dec. 9, 1908.
    Appeal, No. 63, Oct. T., 1908, by plaintiff, from order of C. P. Schuylkill Co., May T., 1900, No. 294, modifying an order of subrogation in case of Commonwealth ex rel. Schuylkill County, to use of Ellen Buckley, v. Thomas Horan et al.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Rule to modify order of subrogation.
    In addition to the facts stated in the opinion of the Superior Court the following orders of the court below appeared in the record:
    “ And now, September 16, 1907, the foregoing petition, affidavit and certificate being read in open court, on motion of Edward J. Maginnis, attorney for Ellen A. Buckley, it is ordered and directed that damages be assessed on the bond and judgment entered to No. 421, May Term, 1900, revived to No. 265, May Term, 1905, and No. 280, July Term, 1906, in the sum of $608.71, with interest thereon from November 1, 1905, in the name of the Commonwealth of Pennsylvania ex rel. the County of Schuylkill, and that the said Ellen A. Buckley be subrogated on the record to the rights of the county of Schuylkill in the said bond and liquidated judgment without prejudice to the rights or equities of the other sureties or terretenants. By the Court,” by making the following decree (entered to No. 421, May Term, 1900):
    "And now, September 23, 1907, on motion of M. A. Kilker ' and George M. Roads, attorneys for the school district of the borough of Girardville, the court hereby grants a rule upon Ellen A. Buckley, the petitioner in a certain petition dated September 14, 1907, and filed of record in said case on September 16, 1907, to show cause why the order of this court dated September 16, 1907, ordering and directing that damages be assessed on the bond and judgment entered to No. 421, May Term, 1900, revived to No. 265, May Term, 1905, and No. 280, July Term, 1906, in the sum of § 608.70, and that the said Ellen A. Buckley be subrogated on the record to the rights of the county of Schuylkill in said bond and liquidated judgment without prejudice to the rights and equities of the. other sureties or terre-tenants, should not be modified by striking out from the said order the judgment of the school district of the borough of Girardville against Thomas Horan et al., and numbered respectively 265, May Term, 1905, and 280, July Term, 1906.
    July 14, 1909:

      “ Returnable, Monday, September 30, 1907. By the Court.

      “ October 15, 1907. Exceptions to rule granted September 23, 1907, filed.
    “ And now, September 30,1907, it is directed that the within exceptions be filed. By the Court.

      “ Now, October 28,1907, reserving the right to file a written opinion if it becomes necessary the rule is made absolute and the order of subrogation is modified as prayed for in said rule.”

      Error assigned was the order of the court modifying the order of subrogation.

      Edward J. Maginnis, with him Wm. Wilhelm, for appellant.

      M. A. Killcer and Geo. M. Roads, for appellee.
   Opinion by

Henderson, J.,

The right of a party to take advantage of the security afforded by an official bond given to the commonwealth and the manner of procedure with respect thereto are prescribed by the Act of June 14,1836, P. L. 637. A remedy is thereby given to any person for whose security the bond was executed. Only one action can be brought and that in the name of the commonwealth at the suggestion of the person or persons in whose behalf the proceeding is commenced. As many persons as have separate rights of action may join in the action. Judgment against the defendants is in favor of the commonwealth for the amount of the bond, .and for the plaintiff in the issue, for the amount of damages assessed with costs. The judgment of the commonwealth remains for the satisfaction of all persons entitled to the benefit of the bond. After judgment for the commonwealth the remedy of a creditor is by scire facias and the assignment of breaches. The school district of the borough of Girardville finding the collector of taxes in default caused judgments to be entered .on his official bonds for the years, 1896, 1897, 1898, and 1899, and liquidated the amounts due from the collector for the respective years. These judgments were entered April 9,1900. Writs of scire facias were issued on the four judgments to May Term, 1905, and writs of alias scire facias on three of the judgments to July Term, 1906, and judgment was liquidated in favor of the school district in each case. The prsecipes for the writs of scire facias followed the original judgment and were in the name of the commonwealth at the suggestion of the school district. In 1907, the appellant who had in the meantime become the owner of a piece of land belonging to one of the sureties of the collector and subject to the lien of these judgments presented petitions to the court of common pleas in each of the above-recited cases setting forth that as terre-tenant she had paid to the county commissioners certain sums of money due by the said collector to the county, and praying for an order subrogating her to the rights of the county in the said judgments. No action had been brought by the county on the collector’s bonds, but the court made an order on September 16, 1907, assessing damages for the county of Schuylkill in each of the cases and subrogating the appellant on the record to the rights of the county. In each of these orders the number and term of the original judgment are recited as are also the number and term of the writs of scire facias issued thereon in favor of the school district. On'October 28, 1907, pursuant to a rule theretofore granted, the court amended the order of subrogation by striking out therefrom the judgment of the school district in each case and it is from that action that the appeals were taken. We are unable to see that the appellant was prejudiced by this action or that any advantage could accrue to her because of the state of the record as it existed before the amendment. Conceding that the judgments set up by her are a valid liquidation of the claim of the county for her use they were entirely distinct and separate from the judgments of the school district. The eighth paragraph of sec. 6 of the act of 1836, provides that final judgment on the bond shall be for the commonwealth and for the plaintiff in the issue for the amount of damages and costs, and in paragraph 10, that the judgment for the plaintiff shall be a lien upon the real estate of the defendants to the amount thereof and that the plaintiff may have execution thereof or a writ of scire facias as in other actions in like manner as may be had in the case of judgments in other personal actions. The judgment for the commonwealth is not a lien upon the real estate of the defendants unless the commonwealth shall have commenced the action. The only lien which the appellant secured was by the entry of the judgment in her favor. The writs of scire facias issued were pursuant to the authority given in the tenth paragraph of sec. 6 of the act and had the effect to revive the liquidated judgments of the school district. They had no effect on the claims of creditors who had not brought action. It is probable that no prejudice would have resulted to the school district if the amended order had not been made, for its judgments as to time of entry and amount were matters of record. But confusion was likely to exist by reason of the entry of judgments in favor of the appellant in the identical cases in which the school district had obtained judgment. There was propriety, therefore, in correcting the order. So far as this proceeding is concerned the appellant has her judgment and lien as of the date when it was entered. Her rights are in no way affected by the order complained of.

The decree is affirmed.


text:
    Commonwealth ex rel., Appellant, v. Horan
    July 14, 1909:
    (No. 2).
   Opinion by

Henderson, J.,

This case involves the same question decided in No. 63, October Term, 1908, between the same parties. For the reason given in that case the decree is affirmed.


text:
    Commonwealth ex rel., Appellant, v. Horan
    July 14, 1909:
    (No. 3).
   Opinion by

Henderson, J.,

This case involves the same question decided in- No. 63; October Term, 1908, between the same parties. For the reasons given in that case the decree is affirmed.


text:
    Commonwealth ex rel., Appellant, v. Horan
    July 14, 1909:
    (No. 4).
   Opinion by

Henderson, J.,

This case involves the same question decided in No. 63, October Term, 1908, between the same parties. For the reasons given in that case the decree is affirmed.


text:
    Morgan, Appellant, v. Williams.

      Landlord and tenant — Parol lease — Yearly lease — Monthly lease — Conflicting evidence.

    1. In a proceeding to recover possession of leased premises under the Act of December 14,1863, P. L. (1864) 1125, where thirty days’ notice only was given by the landlord, it is incumbent upon the latter to bring himself within the provisions of the Act of March 31, 1905, P. L. 87, by showing that the lease under which the tenant held was for “ a time less than one year, or by the month, or for an indeterminable time. ”
    2. In such a case where it appears that there was no written lease, but merely a parol one, and the evidence is contradictory as to whether the tenant entered under an agreement for a yearly lease, or for a monthly lease, the question of the terms of the lease as agreed upon by the parties, is for the jury under the proper instructions of the court.
    3. In determining whether the tenant entered into an agreement for a yearly lease, the fact that she assented to an increase of rent during the first year is pertinent as tending to sustain the landlord’s contention that the tenant entered and was then holding as a tenant by the month, but it does not in and of itself change the nature of the tenancy.
    4. A tenancy at will may become a tenancy from year to year if it appears that the tenant without objection by the landlord makes a number of valuable improvements on the premises for business purposes, remains in possession for more than three years, pays the stipulated rent, and when an increase is demanded, pays it, and the landlord accepts it without notice to remove or other action indicating an intention to hold the tenant as strictly a tenant at will.
    Argued Dec. 11, 1908.
    Appeal, No. 212, Oct. T., 1908, by plaintiff, from judgment of C. P. Schuylkill Co., March T., 1908, No. 226, on verdict for defendants in case of Lizzie Morgan v. Mrs. J. S. Williams and J. S. Williams.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Appeal from judgment of a justice of the peace, in proceedings to recover leased premises under the Act of December 14, 1863, P. L. (1864) 1125, and March 31, 1905, P. L. 87.
    The facts are stated in the opinion of the Superior Court.
    ' Plaintiff presented the following points:
    3. Where nothing is shown which converts a tendency at will into a different sort of tenancy or expands it into a larger term, it still continues to be a tenancy at will, no matter what the period of occupancy may have been. Answer: That we affirm, but in explanation of that point we will read to you the opinion of the Supreme Court in 22 Pa. Superior Ct..621, as follows: “The entry under the parol lease for five years constituted a tenancy at will; that tenancy having continued for almost two years, and the parties having, during that period, recognized its existence as rightful, the defendant having claimed” — that would be in this case the plaintiff — “and the plaintiff having paid or admitted liability for the rental, the estate instead of continuing to be a lease strictly at will, would thereby become a lease from year to year, so that the defendant could only be put out of possession at the end of a year, upon having received three months’ previous notice to quit.”
    15. The increase in rent made during the first year, to wit, at the end of seven months, is evidence that the tenancy was not by the year, and is evidence of the character of the term. Answer: It is evidence to be taken in connection with all the other evidence in this case, to assist the jury in determining the intention and understanding of the parties.
    Verdict and judgment for defendants. Plaintiff appealed.

      Errors assigned were above instructions, quoting them.

      James J. Bell, for appellant. —
    An oral lease for five years, in this state, creates only a tenancy at will: Walter v. Transue, 17 Pa. Superior Ct. 94; Act of March 21, 1772.
    A letting by a parol for a sum certain per month, without, anything being said about a year, constitutes a lease from month to month and not a lease from year to year; even though the tenant holds over for more than a year: Hollis v. Bums, 100 Pa. 206; Watkins v. Balch, 3 L. R. A. (N. S.) 852.
    The increase of rent made in the seventh month of occupancy is positive evidence that the tenancy was by the month, for the law presumes that the party making such increase had a lawful right so to do, and this presumption was not overcome by evidence: Dumn v. Rothermel, 112 Pa. 272; Jennings v. McComb, 112 Pa. 518; Stover v. Cadwallader, 2 Penny. 117.

      M. M. Burke, with him P. H. Burke, for appellees. —
    If the terms of a contract be in dispute its construction is a question for the jury: Blair v. Ford China Co., 26 Pa. Superior Ct. 374; Stafford v. Devereux, 166 Pa. 277.

      July 14, 1909:

      No new tenancy is created by a mere agreement to pay more rent for the balance of the term: Taylor v. Winters, 6 Phila. 126.
    A parol demise of land for more than three years, in the first instance, creates a tenancy at will only, and this satisfies the statute of frauds; but the tenancy at will, like any other, may be subsequently changed into a tenancy from year to year, by payment and acceptance of the rent annually or other circumstances indicating that to be the intention of the parties: Dumn v. Rothermel, 112 Pa. 272; Walter v. Transue, 22 Pa. Superior Ct. 617; McDowell v. Simpson, 3 Watts, 129; Gillion v. Finley, 22 W. N. C. 124; Jones v. Kroll, 19 W. N. C. 505; s. c., 116 Pa. 85.
   Opinion by

Rice, P. J.,

This appeal arose out of a proceeding under the Act of December 14, 1863, P. L. (1864) 1125, to recover possession of leased premises at the determination of the lease. As only a thirty days’ notice to quit was given, it was incumbent on the plaintiff to bring herself within the provisions of the Act of March 31,1905, P. L. 87, by showing that the lease under which the defendant held was for “ a time less than one year or by the month or for an indeterminate time.” The defendant went into possession about June 1, 1904, admittedly under an oral agreement to pay $20.00 a month rent, which was paid as it accrued. At the expiration of seven months the plaintiff raised the rent to $25.00 a month, which the defendant also paid up to January, 1908. In the meantime, that is in October, 1907, the plaintiff raised the rent to $35.00 a month. The defendant refused to pay the incréase, whereupon the plaintiff gave thirty days’ notice to vacate, and these proceedings followed. The above facts are undisputed, but there is a very serious conflict of evidence as to what occurred and was said at the beginning of the tenancy relative to the period the defendant was to occupy or have the right to occupy the premises. According to the plaintiff’s testimony nothing was said upon the subject, the agreement being simply a letting for $20.00 a month without anything being said as to the term. If that was the whole agreement the case would be within the principle of Hollis v. Burns, 100 Pa. 206. But the defendant’s testimony, as we understand it, was to the effect that pursuant to a conversation on a previous occasion, in which the plaintiff had promised to consider the defendant’s application to rent the premises, the defendant went to the plaintiff and after they had talked the matter over they came to an agreement that the plaintiff would make a lease and the defendant and her husband would sign it. •Assuming the truth of the defendant’s version of these two interviews, it cannot be declared as a matter of law that what was said, without a taking of possession under it, constituted an actual demise of the premises.

After these interviews, but before June 1, 1904, when it was contemplated the tenancy would begin, the defendant moved some books into the back part of the store, having first asked and obtained the special permission of the plaintiff to do so, and the latter still remaining in the actual possession of the premises. The plaintiff gave a different version, but it was for the jury to decide between them, and therefore it is sufficient for present purposes to say that the jury could well find from the former’s testimony as to the circumstances under which this permission was given and these goods were put on the premises, that this act was not intended as a delivery and a taking of possession’ under the lease concerning which they had been negotiating.

At a later interview, the defendant asked for a lease, evidently meaning a written lease, and the plaintiff demurred to giving one. As the occurrences at this interview are of the highest importance in determining the question in dispute, we quote quite extensively from the defendant’s testimony: “I had my books there then. I said ‘ I’ll move every stick back to-morrow; I won’t move into your house without a yearly rentage or a lease.’ ‘Oh,’ she said, ‘don’t do that, don’t do that; I’ll give you one,’ in the presence of my niece. Q. Your niece who is she? A. Miss Tillie Zeitz. Q. You asked for a yearly lease? A. A lease. I said ‘I’ll not move into anybody’s house without a lease; I never move without a lease.’ Q. When you asked for the yearly lease what did she say? A. She said she had not been giving them, they were no good any how. Q. Tell us what further was said on this occasion about this. A. That was all she said, and she walked to the comer with me then. She closed up the house that night. I said ‘I’ll move every stick back to-morrow; I don’t have to get out from where I am; I’ll move every stick back to-morrow; I’ll not move in without one.’ She said, ‘Oh, don’t do that; don’t do that; I’ll give you one.’ Q. What rental? A. It was to be $20.00 a month. Q. Tell us whether or not there was anything said on that occasion, that is, when she said she would give you a yearly lease and you fixed the $20.00 a month rental — was there anything said about your staying any longer, or what was said? A. Not at that time.” The precise date of this interview was not stated but it was fairly inferable by the jury that it was before the defendant “moved in,” and that it was pursuant to the terms insisted upon by the defendant and assented to by the plaintiff that she went into full possession as the plaintiff’s tenant. If it be true that the defendant entered into an agreement for a “yearly lease,” was let into possession and paid the stipulated rent, she held upon such terms in the agreement for a lease as were not inconsistent with a tenancy for years. If the contract had been in writing the construction would have been for the court. But being in parol, it was for the jury to decide the dispute as to the words used by the parties and the circumstances under which they were uttered, and if they decided that dispute in favor of the defendant’s version, then to decide what the parties meant by what was said. See Maynes v. Atwater, 88 Pa. 496; Henderson v. Sonneborn, 30 Pa. Superior Ct. 182 and cases cited at page 187. In determining whether the defendant entered into an agreement for a yearly lease, the fact that she assented to an increase of rent during the first year was pertinent; indeed it strongly tended to sustain the plaintiff’s contention that she entered and was then holding as a tenant by the month, but it did not, in and of itself, change the nature of the tenancy. As the court properly instructed the jury it was a fact to be considered by them in determining the main question above stated.

There is next to be considered what occurred, according to the defendant’s testimony, at the next interview between the parties. She testified that she again demanded a written lease, and that the plaintiff at first demurred but finally promised to give one. We now quote from the defendant’s testimony: “‘ Very well,’ I said, after she said she would give it to me in writing, ‘you can make it for one year with the privilege of staying five if you wish.’ .... I said ‘Will your Uncle Jake come over and sign?’ She said, ‘No, I’ll send it over to the house.’ ‘Very well, then,’ said I, ‘we’ll sign it then, Mr, Williams and myself.’ ” There is some uncertainty as to the time when this interview occurred. In chief, the defendant testified that it was when she paid the first month’s rent. This was in July, a month after the tenancy began. But on cross-examination she testified that it was their second interview, and that it occurred after some of her “ possessions ” were on the premises and before the rent was raised to $25.00. It was for the jury to decide when it occurred. If it was after the tenancy began it did not change the nature of the tenancy. If it was before, and was the agreement under which the defendant entered, and if it be further conceded that by reason of the provisions of the statute of frauds the defendant entered as a tenant at will, there would still remain the question whether the tenancy was not afterwards enlarged by the acts and intention of the parties to a tenancy from year to year. The defendant rented the premises, in part, as a business place, and installed and conducted therein a business which might be very seriously injured by a summary eviction in any time of the year at the end of thirty days’ notice; with the knowledge and so far as it appears'without objection of the plaintiff she made improvements in the building, consisting among others of the installation of a boiler, pipes and hotwater fixtures connecting the same with the bath room; and remained in possession for more than three years, and paid the stipulated rent, and until October, 1907, when the plaintiff demanded an increase, the latter accepted the rent without notice to remove or other action indicating her intention to hold the defendant as strictly a tenant at will. The court held that the evidence was sufficient to warrant the jury in finding that the tenancy instead of continuing to be strictly at will, even if it was so in the beginning, became a tenancy from year to year, so that the defendant could only be put out of possession at the end of the year upon having received three months previous notice to quit. We are of opinion that under the cases of McDowell v. Simpson, 3 Watts, 129; Dumn v. Rothermel, 112 Pa. 272, and Walter v. Transue, 22 Pa. Superior Ct. 617, this was not error.

If there had been no instructions given upon this question excepting those which were given in answer to the plaintiff's third point it might be argued with considerable force that the jury would naturally understand the quotation from the opinion in Walter v. Transue as ruling the question in the defendant's favor as a matter of law. But when the charge of the court and the answers to the other points are read as a whole it is apparent we think that the jury could not have taken that meaning from the answer to the third point. The court told the jury repeatedly that the question whether this was a tenancy by the month or for an indeterminate period or from year to year was to be decided by them from the evidence in the case. Taking it as a whole the case was one where the doctrine of Maynes v. Atwater and of the many other cases in the same line was peculiarly applicable.

All the assignments of error are overruled and the judgment is affirmed.


author: Orlady, J.,

text:
    Ramsden, Appellant, v. Simplex Foundation Company.

      Contract — Evidence—Parol stipulation — Landlord and tenant.

    Where at the execution of a written lease, a parol stipulation is entered into by the lessor that a particular kind of railroad siding shall be placed upon the premises, and the lease is executed by the lessee in reliance upon this stipulation and it is known to the lessor, but not to the lessee, that such a kind of siding could not be placed upon the premises, parol evidence may be offered of such a stipulation in a suit to recover the rent for the premises.
    Argued Dec. 16, 1908.
    Appeal, No. 208, Oct. T., 1908, by plaintiff, from judgment of C. P. No. 3, Phila. Co., Dec. T., 1905, No. 3,680, in case of Robert W. Ramsden v. Simplex Foundation Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Appeal from judgment of justice of the peace. Before Ferguson, J.
    The facts appear by the opinion of the Superior Court.
    At the trial defendant made the following offer: •
    I offer to prove by this witness that at the time the lease was signed the plaintiff represented to him that he knew of his own knowledge and was sure that a ground siding could be put in the property; that he would see that such a siding was put in; that the siding connecting this property with the adjoining property was under his control; that he would see that that siding was lowered two feet or a greater distance, if necessary, in order that this siding might be put in; that he at that time knew that those facts could not be sustained; that on the faith of those representations this witness signed the agreement, »after saying that he had no knowledge himself about the siding and that if the plaintiff was sure that it could be done, that he would sign the lease.
    Objected to as contradicting a written instrument. Objection overruled. Exception for plaintiff. [1]
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was (1) ruling on evidence, quoting the bill of exceptions.

      F. A. Sobernheimer, with him S. Walter Foulkrod, for appellant. —
    Parol evidence should not have been admitted against the terms of the writing: Hunter v. McHose, 100 Pa. 38; Wodock v. Robinson, 148 Pa. 503; Krueger v. Nicola, 205 Pa. 38; Savings Bank Co. v. Trust Co., 210 Pa. 320.
    The evidence as offered by the appellee does not bring it within either of the two classes as stated in Phillips v. Meily, 106 Pa. 536, so many times affirmed, and again reaffirmed in Gandy v. Weckerly, 220 Pa. 285.

      Walter K. Wood, with him Herbert U. Porter, for appellee.—
    The offer of proof is clearly within the rule of law in regard to parol evidence to set aside a written agreement and the testimony produced concisely and exactly sets forth the set of facts mentioned in the offer: Shughart v. Moore, 78 Pa. 469; Fidelity & Casualty Co. v. Harder, 212 Pa. 96; Gandy v. Weckerly, 220 Pa. 285; Wolfe v. Arrott, 109 Pa. 473.
    July 14,1909:
   Opinion by

Orlady, J.,

The appellant and appellee entered into an agreement of lease for a piece of ground adjoining the Pennsylvania Railroad, for a term of five years from June 14,1905, at an annual rental of $400, to be paid in quarterly installments of $100, in advance. The first installment was paid when the lease was signed, and on July 7, the defendant notified the plaintiff that he had been induced to make the contract by representations that a proper siding could be procured from the Pennsylvania Railroad, which had not been performed and could not be performed; he thereupon rescinded and repudiated the lease, and withdrew from the premises. Suit was then brought to recover the next installment, and on the trial the defendant offered to prove that at the time the lease was signed, the plaintiff represented that he knew of his own knowledge and was sure, that a ground siding could be put in on the property, and further that he would see that such a siding was put in; that the siding connecting this with the adjoining property was under his control; that he would see that that siding was lowered two feet, or a greater distance if necessary, in order that a new ground siding might be put in, and that on the faith of these representations the agreement was signed, after stating that he had no knowledge himself about the siding, and that if the plaintiff was sure that it would be done, he would sign the lease, and further that the plaintiff knew at the time the representations were made that they could not be performed. It was objected that this offer was a mere contradiction of the written instrument. The objection was overruled, with an exception to the plaintiff, which forms the basis for the first assignment of error.

The proof adduced in support of this offer fully supported it; soon after the lease was executed it was ascertained that the railroad company refused peremptorily to place a ground siding on the premises, or to make any other connection than by joining with a siding on the adjoining premises, which was supported on trestles and was several feet above the level of the ground. The character of the defendant’s contemplated business was of such a nature that this construction was not feasible, and it was fully explained at the time the contract was signed, and as this was a matter of vital importance as an inducing cause, they rescinded promptly and withdrew from the premises.

The appellees waived a technical defense suggested in the affidavit, and offered to prove and defend on the real merits of the case. The testimony of all the witnesses, with the exception of the president of the appellee company, was admitted without objection, and no motion was made for binding instructions.

The appellant offered testimony in rebuttal, and the case was submitted to the jury by the court without any points being submitted by the appellant. The trial judge stated: “When a man attempts to practically nullify the effect of a solemn instrument by verbal testimony, the law requires a very high order of evidence to substantiate his position; he must produce evidence that is clear, precise and indubitable and it must be absolutely convincing to the minds of the jurors.”

This was not a case of the omission of a clause by mistake, but it is distinctly and directly alleged that the promise or inducement that was made to procure the execution of the lease was in regard to a fact about which the plaintiff had full knowledge, and of which the defendant had none, and, that a siding on the level of the ground was indispensably necessary to the conduct of the defendant’s business. Whatever confusion there has been in the past in regard to the character of proof necessary to vary the terms of a written agreement, this case must be controlled by Gandy v. Weclcerly, 220 Pa. 285, in which the authorities are fully considered, and it is there held, “ that where at the execution of a writing a stipulation has been entered into, a condition annexed, or a promise made by word of mouth, upon the faith of which the writing has been executed, parol evidence is admissible, although it may vary and materially change the terms of the contract, and, that the existence of a contemporaneous parole agreement between the parties, under the influence of which a note or contract has been signed, which is violated as soon as it has accomplished its purpose in securing the execution of the paper, may always be shown when the enforcement of the paper is attempted.”

The evidence was properly received under authority of Gandy v. Weckerly, and was submitted to the jury in a fair and adequate charge.

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


author: Head, J.,

text:
    Clunn v. Williamsport & North Branch Railroad Company, Appellant.

      Railroads — Passengers—Injury at station — Question for jury.

    1. Where a passenger alights at a station, and waits a short time until
    the train starts again, and then proceeds to leave the station platform while there was still a considerable crowd of people upon it, and falls over a movable step or stool, left on the platform by the station master or his agent, it is for the jury to determine whether the company was negligent in failing to remove the step or stool or leave anyone in charge of it after the train had departed and it could no longer serve any useful purpose on the platform. '•
    2. A person entitled to passage on a train between two places is entitled to the protection due to a passenger from the starting point to the appropriate and usual stopping place at the final destination, and until he has left the carrier’s depot, station or premises or has had reasonable time and opportunity to do so.
    Argued Feb. 23, 1909.
    Appeal, No. 12, March T., 1908, by defendant, from judgment of C. P. Lycoming Co., Dec. T., 1905, No. 102, on verdict for plaintiff in case of Helen Gordon Clunn v. Williamsport & North Branch Railroad Company, Lessee of Eaglesmere Railroad Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Hart, P. J.

      ■ At the trial plaintiff presented these points:
    1. That the defendant company is bound to keep its stations and premises in proper and safe condition at all times for the use of the patrons of its road; and, generally, that defendant company is bound, as to its passengers or persons upon its premises by invitation, to see to it that its premises are in such condition in all respects that a person, in the exercise of ordinary care, can leave the premises without injury. Answer: This point is affirmed. [2],
    2. That if the jury find from the evidence in this case that the plaintiff, Helen G. Clunn, was on September 5, 1905, a passenger on defendant’s railroad, and alighted at defendant’s station, at Eaglesmere, and that whilst making a way along the station platform, without any negligence on her part, suffered personal injury in consequence of falling over a portable step or stool, negligently placed or left on said platform by the defendant company, then, the plaintiff is entitled to recovery for such injury. Answer: This point is affirmed. [3]

      Errors assigned were (1, 2) above instructions, quoting them and (3) in refusing binding instructions for defendant.

      Seth T. McCormick, Jr., with him Seth T. McCormick, for appellant. —
    The evidence in the case clearly establishes the fact that the appellee had ceased to be a passenger at the time the accident occurred: Green v. R. R. Co., 214 Pa. 240; Chicago, etc., R. R. Co. v. Barrett, 16 Ill. App. 17; Jeffersonville, etc., R. R. Co. v. Parmalee, 51 Ind. 42; Kaase v. Ry. Co., 92 S. W. Repr. 444; C., K. & W. R. R. Co. v. Frazer, 2 A. & E. R. R. Cases (N. S.), 206; Lucas v. R. R. Co., 72 Mass. 64; Griswold v. Ry. Co., 64 Wis. 652; Doss v. R. R. Co., 59 Mo. 27; R. R. Co. v. O’Malley, 107 Ill. App. 599; Houston, etc., R. R. Co. v. Phillio, 59 L. R. A. 392; Freemot, E. & M. V. R. R. Co. v. Hagblad, 101 N. W. Repr. 1033; Moreland v. R. R. Co., 141 Mass. 31; D., L. & W. R. R. Co. v. Napheys, 90 Pa. 135; Hayman v. R. R. Co., 118 Pa. 508; Thomas v. R. R. Co., 148 Pa. 180; Fleming v. Ry. Co., 158 Pa. 130; Ault v. Cowan, 20 Pa. Superior Ct. 616; Bernhard v. R. R. Co., 159 Pa. 360; Green v. R. R. Co., 214 Pa. 240; Wall v. Lit, 195 Pa. 375; Alexander v. Water Co., 201 Pa. 252; Stearns v. Spinning Co., 184 Pa. 519.
    July 14, 1909:
    This case is absolutely ruled by the two cases of Seddon v. Bickley, 153 Pa. 271, and Pitkin v. R. R. Co., 87 N. Y. Supp. 906, 94 App. Div. 31 (N. Y. Supp., 1904).

      John J. Reardon, for appellee. —
    That plaintiff was a passenger on defendant’s train, that she got off the train at the end of her journey at the appointed time and place for passengers to alight, the exact cause, time and place of the injury, are all established facts in this case beyond controversy, and that she had a reasonable time within which to depart from the station is a necessary legal conclusion: Gillis v. R. R. Co., 59 Pa. 129; Rathgebe v. R. R. Co., 179 Pa. 31; Powell v. Ry. Co., 220 Pa. 638: Shafer v. Lacock, Hawthorn & Co., 168 Pa. 497.
   Opinion by

Head, J.,

On the morning of the day on which the plaintiff was injured, she started, with a companion, Mrs. Ross, to go by the defendant’s road from its Forrest Inn station to Eaglesmere, at the foot of the lake. They intended to return up the lake, by boat, to their temporary summer home near the first-named station. Some friends, perhaps more particularly of Mrs. Ross, were finally leaving the resort by the same train on that morning.

The train duly arrived at the station and the plaintiff and her companion had alighted and reached the station platform in safety. They did not undertake instantly to leave the station premises, but, during the few moments of the train’s stop, the plaintiff testifies she stood quietly on the platform whilst Mrs. Ross was making her farewells to her friends aboard. When the train pulled out they remained standing and watching it until it had rounded a curve some distance away and disappeared from view. According to the testimony there was still a considerable crowd of people on the platform which then began to disperse.

The plaintiff testifies that she and her friend started to move towards their point of exit from the station premises. That although she was using her eyes in the ordinary way to see where she was going, owing to the number of people just in front of her, she failed to notice a movable step or stool, standing on the platform, over which she stumbled and fell, from which fall she suffered the serious injuries she describes.

This step appears to have been used to aid passengers to more comfortably enter and alight from the cars. It was of the same general design as, although perhaps a little larger and heavier than, those with which Pullman cars are usually provided. In this case, however, it seems to have been part of the equipment of the station rather than of the train, and was apparently under the control of the station master and his assistants.

Was the plaintiff, at the time of her injury, a passenger? Unless it can be said the defendant’s contract of carriage was completed the moment she alighted in safety on its platform at the station of her destination, it is difficult to escape the conclusion that the answer must be in the affirmative. The general rule on this subject is thus stated in Moore on Carriers, 554: “A person entitled to passage on a train .... between two points is entitled to the protection of a passenger from the starting point to the appropriate and usual stopping place at the final destination, .... and until he has left the carrier’s depot, station or premises or has had reasonable time and opportunity” to do so. Many cases are cited to show the universality of this, and we do not think its soundness can be questioned. In Hall v. Bessemer, etc., R. R. Co., 36 Pa. Superior Ct. 556, this court, per Beaver, J., said: “It is equally true that when a passenger has alighted from a train, the relation of carrier and passenger remains until he has left the premises of the carrier.” See also 5 Am. & Eng. Ency. of Law, 499, where it is said, as a summary of a number of cases, that the relation continues “until the passenger has had a reasonable opportunity to leave the carrier’s premises in the proper manner and by the route usual and proper in such cases.

In the fair application of this rule to the facts presented in the plaintiff’s evidence, there seems to us to be little room for the contention that she had lost her rights to the protection due to a passenger, by remaining on the station platform during the few moments that intervened between the arrival and departure of the train. Certainly if she had sought the protection of the station shed, for the same period of time, to escape a fall of rain or snow none would have questioned her status. We cannot see why, on the same principle, she could not remain where she was, until the bustle incident to the departure of the train was over, rather than push her way through a crowd many members of which, with their luggage, would be hurrying to board the train. On this branch of the case there was no place for binding instructions in favor of the defendant, because even if the evidence had furnished any foundation for the conclusion that the plaintiff had remained on the platform for an undue or unreasonable length of • time, such conclusion would be one of fact to be reached by the jury under proper instructions: Powell v. Ry. Co., 220 Pa. 638.

If then the plaintiff was a passenger, at the time of her injury, was she guilty of any act of negligence that contributed to it? On this subject the evidence, although not voluminous, was conflicting. This necessarily sent this branch of the case to the jury and it was submitted under instructions of which there is no complaint.

Finally it is contended the case of the plaintiff fails to meet the requirements of the rule that one who rests his right to recover on the alleged negligence of another, must prove affirmatively the negligence he complains of. It is undeniably true that there are some exceptions to this rule, e. g. where a passenger riding on a train is injured in a collision, by the breaking of any of the machinery of transportation, etc. In such cases, because the party injured is usually wholly unable to explain the cause of the injury, whilst at the same time such knowledge is peculiarly within the grasp of the carrier, the law raises a presumption of' negligence from the happening of the injury and casts the burden of excusing itself or showing it was without fault on the carrier: Sullivan v. Phila. & Read. R. R. Co., 30 Pa. 234; Railroad Co. v. Napheys, 90 Pa. 135. But where the act of carriage has been completed, or has not yet begun, and a plaintiff, even though a passenger and on the carrier’s premises, suffers an injury from causes as well known to him as to the carrier or its servants, there is no longer a sound reason for resorting to the legal presumption of negligence to aid his case. He must then prove the negligent act complained of or his case fails: Hayman v. Penna. R. R. Co., 118 Pa. 508; R. R. Co. v. Napheys, supra; Graham v. Penna. Co., 139 Pa. 149; Seddon v. Bickley, 153 Pa. 271; Green v. B. & O. Railroad Co., 214 Pa. 240.

In- all of the above cases the court held that the plaintiff’s case was not within the exception and could not rest on the legal presumption of negligence. In the absence of proof of any negligent act by the defendants named they were declared to be without liability.

In the case at bar we think the learned trial court properly held that the plaintiff’s case must measure up to the requirements of the rule and could not rest on the exception. He, however, submitted to the jury, as a matter for their determination, under all of the circumstances, whether or not the defendant’s servants were negligent in failing to remove the stool or step, or leave anyone in charge of it, after the train had departed and it could no longer serve any useful purpose on the platform. Notwithstanding the very able argument, advanced by the learned counsel for appellant, we are unable to escape the com elusion that this was a correct disposition of the question.

Had the plaintiff arrived after night, found the platform poorly lighted and fallen over this obstruction, the case would have been ruled by Hall v. Bessemer, etc., R. R. Co., 36 Pa. Superior Ct. 556. If the testimony of the plaintiff be believed, the presence of - the crowd on the platform left her without the protection that might have otherwise been afforded by the use of her eyes, just as effectually as the absence of light would have done. The conditions shown by the evidence to have existed at the Eaglesmere station on the morning of the accident, were in no way so abnormal or unusual, in the business of a railroad company at a summer resort, as to relieve the defendant of the responsibility that would seem to have fairly rested upon it.

For the reasons thus indicated we think the learned trial court could not have, with propriety, directed a verdict in favor of the defendant. The assignments of error, which are all based on the refusal of the court to so dispose of the case, must therefore be overruled.

Judgment affirmed.


text:
    Miller v. Montgomery Borough, Appellant.

      Negligence — Boroughs—Sidewalks—Contributory negligence — Case for jury.

    1. A traveler’s previous knowledge of a defect in a highway whereby he is injured is not of itself sufficient, as a matter of law, to prevent his recovering on the ground of contributory negligence. If the evidence shows that the street can be used by the exercise of reasonable care, notwithstanding the defect, it is for the jury to determine whether the injured party performed the duty required of him under the circumstances.
    2. Where a borough had cut away a section of a sidewalk so as to create a drop of nine inches and had converted the drop into a slope by inserting a plank at an angle in the intervening space, and the plank had become loosened, occasioning an injury to a person passing over it, such person is entitled to have his case against the borough go to the jury, although he may have had previous knowledge of the cut, but no knowledge of the loosening of the plank.
    Argued Feb. 24, 1909.
    Appeal, No. 11, Feb. T., 1909, by defendant, from judgment of C. P. Lycoming Co., Dec. T., 1907, No. 276, on verdict for plaintiff in case of Joseph Miller v. Montgomery Borough.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for injuries sustained by a fall on a defective sidewalk. Before Hart, P. J.
    At the trial defendant presented these points:
    4. If the jury find from the evidence that plaintiff knew of the defect in the sidewalk, and that he could have avoided it by walking in the street, or around the square, and that he voluntarily chose to take the risk of walking on the sidewalk in its defective condition, he was guilty of contributory negligence, and your verdict should be for the defendant. Answer:
      Affirmed, if you find that an ordinarily prudent person would have taken a different route to his destination than that taken by the plaintiff, under the circumstances. [1]
    9. Plaintiff having testified that he considered the sidewalk, at the place of the accident, dangerous; and that he could have safely passed it by walking in the street, which was safe but muddy, but that he took the risk, he was.guilty of contributory negligence and your verdict should be for the defendant. Answer: This point is refused, and we say to you that if you find that an ordinary prudent man would have done so under the circumstances, then, of course, it was the duty of this plaintiff to have avoided this place at that time; and if you find that an ordinary prudent person would have so done and that the plaintiff did not, then, of course, he would have been guilty of contributory negligence and could not have recovered in this case. [2]
    10. That under all the evidence in this case your verdict should be for defendant. Answer: Refused. [3]
    Verdict and judgment for plaintiff for $500. Defendant appealed.

      Errors assigned were (1-3) above instructions, quoting them.

      Frank P. Cummings, with him W. E. Schnee, for appellant.—
    A person who knows a defect in a highway, and voluntarily undertakes to test it when it could be avoided, cannot recover against the municipal authorities for losses incurred through such defects: Boyle v. Mahanoy City, 187 Pa. 1; Erie City v. Magill, 101 Pa. 616; Ry. Co. v. Taylor, 104 Pa. 306; Boro. v. Warne, 106 Pa. 373; Altoona v. Lotz, 114 Pa. 238; Barnes v. Sowden, 119 Pa. 53; Ry. Co. v. Cadow, 120 Pa. 559; Forker v. Boro, of Sandy Lake, 130 Pa. 123; Haven v. Bridge Co., 151 Pa. 620; Rick v. Wilkes-Barre, 9. Pa. Superior Ct. 399; Bechtel v. Mahanoy City Boro., 30 Pa. Superior Ct. 135.
    The case was for the court: Forker v. Sandy Lake Boro., 130 Pa. 123; Haven v. Bridge Co., 151 Pa. 620; Fleming v. Lock Haven, 15 W. N. C. 216; Easton v. Neff, 102 Pa. 474.

      July 14, 1909:

      Emerson Collins, with him W. K. Basiian, for appellee.—
    Where the traveler has knowledge of a defect in the highway it does not follow as a legal consequence that he must under all circumstances avoid the use of it and reach his destination in some other way. It is a question of the character and imminency of the danger, and the difficulty or inconvenience of avoiding it: March v. Phœnixville Borough, 221 Pa. 64; Steck v. Allegheny City, 213 Pa. 573; Holbert v. Philadelphia, 221 Pa. 266; Altoona v. Lotz, 114 Pa. 238; Easton Borough v. Neff, 102 Pa. 474; Walton v. Colwyn Borough, 19 Pa. Superior Ct. 172.
   Opinion by

Head, J.,

If the law declares, as an unvarying rule of human conduct, that where a citizen of a borough has knowledge of the existence of a defect or obstruction in a street or sidewalk, which renders its use dangerous, in any degree, he may not use it save at his peril, then the plaintiff stands self convicted of a violation of the rule and the trial court should have directed a verdict against him. There can be no doubt as to the existence of the legal principle that he who knows of a danger and voluntarily assumes the risk of testing it, cannot be heard in an effort to place upon another the responsibility for his consequent injury. In the proper application of this principle it must and does frequently appear that a plaintiff who has been hurt on such a defective or obstructed street or sidewalk can exhibit no case for a recovery against the municipality.

But in according to this principle its due recognition, we are not to lose sight of the fact that, in its application to cases like the one at bar, it must be so qualified as to keep it in harmony with another, certainly no less fundamental and universal, to wit: that negligence is always the absence of care under the circumstances. The reason and the effect of this qualification are well stated in the careful opinion of Mr. Justice Mestrezat in Steck v. City of Allegheny, 213 Pa. 573, and we therefore quote from it at some length: “Persons are not necessarily prohibited from using a street of a city because it is defective or may be possibly obstructed. . . . While such conditions may not, of themselves, prevent the use of a street they nevertheless impose upon the person using it a higher degree of care than if the street were free from obstructions. In such cases the party-traveling the street must use that degree of care demanded by the circumstances of the particular case. If he is injured in the use of a street, known by him to be defective, and the evidence shows that when he entered upon it the danger was imminent and immediate, the court, as matter of law, may declare him guilty of negligence. On the other hand, when the testimony shows a defect of such a character that the street can be used with safety by the exercise of reasonable care, notwithstanding its defective condition, it is not for the court, but for the jury, to determine whether the injured party performed the duty required of him under the circumstances. In 15 Am. & Eng. Ency. of Law (2d ed.), 468, it is said, citing numerous decisions of many states, including our own, in support of the rule, that ‘it is generally agreed that a traveler’s previous knowledge of a defect in the highway whereby he is injured is not, of itself, sufficient, as a matter of law, to prevent his recovery on the ground of contributory negligence. ’ ”

In Mellor v. Bridgeport, 191 Pa. 562, Chief Justice Sterrett said, “ It is only when the danger is so great and apparent that an ordinarily prudent person would regard it as dangerous, and therefore avoid it, that a'trial court can say, as matter of law, that the person using the more dangerous route is guilty of contributory negligence.” In March v. Phœnixville, 221 Pa. 64, it was said: “Where the traveler has knowledge of a defect in the highway it does not follow, as a legal consequence, that he must under all circumstances avoid the use of it and reach his destination in some other way. It is a question of the character and imminency of the danger, and the difficulty or inconvenience of avoiding it.” Stokes v. Ralpho Twp., 187 Pa. 333; Brown v. White, 206 Pa. 106; Borough of Easton v. Neff 102 Pa. 474; and Merriman v. Phillipsburg, 158 Pa. 78, emphasize the same doctrine and leave no doubt that there is no absolute rule of law as broad and unqualified as the one stated for illustration in the opening sentence of this opinion.

That there are, in some of the cases cited by the able counsel for the appellant, expressions which, at first blush, would seem to warrant the conclusion he seeks to draw therefrom, need not be denied. In most of them certainly, if not in all, a careful analysis of the facts will show that these cases determine nothing antagonistic to the soundness of the conclusion necessarily reached from a study of the authorities we have cited. A brief reference then to the facts of the case at bar will show, we think, that the learned trial court committed no error in submitting to the jury, under instructions of which there is no complaint, the question of the plaintiff’s contributory negligence.

Along one side of the Main street of the defendant borough there was a board sidewalk. This boardwalk had been cut away, over a distance of some feet, to allow a railroad siding to reach a building operation. As a consequence there was a drop of perhaps nine inches from the general surface of the sidewalk. Whether this railroad siding was to be permanent, or only temporary pending the continuance of the building operation, does not clearly appear and is, perhaps, immaterial. To obviate, to some extent, any danger from this change in the surface of the sidewalk, the borough had caused a plank to be fastened, at an angle of from forty five to sixty degrees, to the horizontal stringers of the boardwalk, thus converting the drop into a slope. Of this situation the plaintiff was fully apprised as he passed the point several times a day.

Whilst he frankly admitted, on cross examination, that he knew of this condition of the sidewalk; that he regarded it as fraught with some danger to a traveler thereon; that he had, on occasions, taken to the street to avoid it; yet he also declares that he had frequently passed over it in safety, — twice on the day of the accident, — and that numerous citizens of the borough did the same daily.

On an evening in September, when there was neither snow nor ice on the ground, but when the street was very muddy, he undertook to pass over this sidewalk. He says, knowing of the slope, he approached it with care. That the plank, without his knowledge, had become loosened. That, in some way, he stumbled against it.- That it flew from its position and threw him upon the railroad track thus breaking his leg, and it is for this injury he seeks to recover.

We are not required, in this appeal, to consider the question of the negligence of the borough. That has been established by the verdict of the jury and we have no assignment of error attacking the correctness of their conclusion or the sufficiency of the evidence on which it rested. How, then, under the decisions we have reviewed and the facts we have stated, could the learned trial court have declared, as matter of law, that the sloping boardwalk, of which the plaintiff knew, threatened a danger so imminent and serious that a man of reasonable prudence and care would have taken to a muddy street rather than essayed the risk?

After an attentive examination of the entire record and the able argument of counsel for appellant we are of the opinion that the learned trial court committed no error in submitting to the jury, under proper instructions, the question of the plaintiff’s contributory negligence. The assignments of error are overruled.

Judgment affirmed.