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    Reardon, Appellant, v. Philadelphia Rapid Transit Company.

      Negligence — Street railways — Passengers—Fright.
    1. The rule that a plaintiff in a negligence case cannot recover damages on account of fright alone or the consequences of it, applies in an action by a passenger against a street railway company or other common carrier.
    2. In an action against a street railway company by a woman passenger to recover for injuries alleged to have been sustained in a collision, where the plaintiff testifies that she became unconscious at the time of the collision, and that thereafter she suffered nervousness and pains in her head, there is no case for the jury, unless the plaintiff further shows that the conditions from which she suffered were caused wholly or partly by physical violence.-
    Argued Dec. 17, 1909.
    Appeal, No. 112, Oct. T., 1909, by plaintiff, from judgment of C. P. No. 1, Phila. Co., March T., 1907, No. 1,160, for defendant non obstante veredicto in case of Louise Reardon v. Philadelphia Rapid Transit Company.
    Before Rige, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Brégy, P. J.
    The facts are stated in the opinion of the Superior Court.
    The jury returned a verdict for $500. Subsequently the court entered judgment for defendant non obstante veredicto.

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

      Clarence P. Sterner, for appellant.
    Sufficient evidence was produced to prove personal contact sufficient for recovery: Hess v. Pipe Mfg. Co., 221 Pa. 67; Palmer v. St. Ry. Co., 206 Pa. 574; Traction Co. v. Lambertson, 59 N. J. L. 297 (36 Atl. Repr. 100); Buchanan v. West Jersey R. R. Co., 52 N. J. L. 265 (19 Atl. Repr. 254); Warren v. R. R. Co., 163 Mass. 484 (40 N. E. Repr. 895); Berard v. R. R. Co., 177 Mass. 179 (58 N. E. Repr. 586); Homans v. Ry. Co., 180 Mass. 456 (62 N. E. Repr. 737); Jones v. R. R. Co., 48 N. Y. Supp. 914.
    It is submitted that in no case have the courts of the United States or England refused to allow recovery in a case like the one at bar, when the injuries were received as the direct result of a collision: Gulf, Colorado, etc., Ry. Co. v. Hayter, 93 Tex. 239 (54 S. W. Repr. 944); Purcell v. Ry. Co., 48 Minn. 134 (50 N. W. Repr. 1034); Mack v. R. R. Co., 52 So. Car. 323 (29 S. E. Repr. 905); Denver, etc., R. R. Co. v. Roller, 100 Fed. Repr. 738; O’Connor v. Traction Co., 180 Pa. 444; Reading City Pass. Ry. Co. v. Eckert, 2 Sadler Sup. Ct. Cases, 31.
    July 20, 1910:

      Thomas Learning, with him Harry S. Ambler, Jr., for appellee.
    A court never submits to a jury any question which can only be answered by a guess: Green v. Pittsburg, etc., St. Ry. Co., 219 Pa. 241; Pittsburg Southern Ry. Co. v. Taylor, 104 Pa. 306; Frazier Bros. v. Lloyd, 23 W. N. C. 178; Chilton v. Traction Co., 152 Pa. 425; Howard Exp. Co. v. Wile, 64 Pa. 201; Laven v. Moore, 211 Pa. 245; Sowers v. McManus, 214 Pa. 244; Alexander v. Water Co., 201 Pa. 252.
    Mere fright without physical injury is not a cause of action in Pennsylvania: Huston v. Freemansburg Boro., 212 Pa. 548.
   Opinion by

Rice, P. J.,

The plaintiff described the accident as follows: "I was coming up in an Eleventh street car, after the performance; we were sitting in a seat running lengthwise; at Market street, I remember that a car coming down crashed into our car; I was just putting my money in my pocketbook when it crashed into us; I remember the crash, and that I was on the point of getting up, and that is all I remember; I remember the glass crashing; afterwards, when I came to, I was in the Jefferson Hospital.” It should be noticed that she was sitting on the right-hand side of the car going north and that the Market street car was going east; therefore, the latter did not strike the side of the car on which she was sitting. Beyond the statement that the Market street car crashed into the car in which ,she was riding, the force of the collision is not shown. Later, in her examination in chief, she having testified that she had no marks or bruises on her body, her counsel said: “You were simply knocked unconscious in the car?” Her reply was: “Yes, sir; it affected my head.” This answer to the leading question of the counsel was materially qualified on her cross-examination,- from which we quote: “Q. On this occasion were you knocked unconscious or did you faint from the scare? A. All I know is, that when I saw the glass crashing I wanted to jump to get out of the way — and that is all I know; whether it was a shock or a throw, I can’t tell you. Q. Are you prepared to say whether you were rendered unconscious by a blow or fainted from the excitement? A. It might have been from the excitement. Q. Did you receive any blow on the head which would have rendered you unconscious? A. Not that I know of — only having that intense pain at the back of my head here [indicating]; I do not know whether I was struck on the head or not; and my sister did not know.” Her sister, who, if anyone, would be likely to know whether the plaintiff received a blow upon the head or other part of her body, whether by a fall or otherwise, was not called as a witness, and doubtless the plaintiff spoke the exact truth when she said her sister did not know. The only other eyewitness to the accident who was called was Doctor Treiman, who testified as follows: “I was about returning from the Reading Terminal and was about midway of the square when I heard a crash; I saw that something had happened to the car; I ran up there and my first idea was to attend to the human beings; I found Mrs. Reardon lying on one of the benches and a young lady, her sister, was trying to help her out; Mrs. Reardon was totally unconscious; her sister was distracted; and as soon as she found out that I was a physician the sister asked me to help her.” From such examination as he made at that time and during the two subsequent days that he attended her, this witness found no marks or bruises on her body; he said she complained of the back of her head, but he could not discover any swelling there or any abrasion: Doctor Hahn, the family physician, succeeded Doctor Treiman on the fourth day after the accident and attended the plaintiff for some time. He likewise testified that "there were no objective symptoms, no blows, or bruises or cuts or scratches whatever.” It is seen from the foregoing resumé that a finding that the plaintiff received a physical injury from some flying object coming in contact with her body or from her body being thrown against some solid object or from a sudden jolt, would be unwarranted by the evidence thus far referred to. Nor, having regard to the medical testimony adduced by the plaintiff, is the fact of that kind of direct physical injury inferable with any greater degree of certainty from the nature of /the conditions that ensued. These were sudden unconsciousness, followed by extreme nervousness and pains i in the occipital region for a considerable period, and 'hastened and excessive menstruation. Neither Doctor Treiman nor Doctor Hahn undertook to express an opinion, based on his professional knowledge and skill and his observations during his treatment of the plaintiff, that the conditions from which she suffered were caused by physical violence. The latter’s testimony as to the cause is fairly summarized in the following extracts: "By the Court: Q. Is it possible for you to tell what it comes from? A. No, sir; unless it is a reflex through the nervous system. Q. Could • violence or shock cause it? A. Yes, sir; shock to the nervous system. Q. That could cause the condition you found? A. Yes, sir. Q. But you could not tell that? A. No, sir. Q. Other things could cause it, too? A. Yes, sir. Q. For instance, disease? A. Yes, sir.” Again, on cross-examination, he testified: "Q. You made no internal examination of her? A. I did not. Q. All you found could be ascribed to nervousness resulting from fright? A. Shock or fright. By Mr. Sterner: Q. Either shock or fright, or a blow or violence? A. Yes, sir.” We quote also from the testimony of Doctor Treiman: "Q. Could violence have caused the condition you found her in? A. Yes, sir. Q. Or fright? A. Yes, sir. Q. But what caused it would simply be a guess on your part? A. Yes, sir.” A review of the entire evidence of all kinds leads to the result that there is nothing more than conjecture from a bare possibility to sustain an inference that the conditions from which the plaintiff suffered were caused wholly or partly by physical violence. According to all the authorities, many of which are cited in the appellee’s brief, this was not sufficient to warrant submission of the case to the jury with permission to draw that inference, particularly as under the plaintiff’s own testimony and the testimony of her witnesses the probability of their having been caused by fright alone is equally if not more reasonable. A verdict, under such circumstances, sustaining the former inference would, asv was said in Philadelphia and Reading Railroad Co. v. Schertle, 97 Pa. 450, and again in Green v. Pittsburg, etc., Street Railway Co., 219 Pa. 241, “have no better foundation than a guess, or at most mere possibilities, and this will not do.”

The remaining question to be considered is, whether she could recover damages on account of fright alone or the consequences of it. This is not an open question in Pennsylvania. In Huston v. Freemansburg Borough, 212 Pa. 548, it appeared that the defendant in excavating a hole in the street exploded some dynamite, and it was claimed that the shock of the explosion so affected the plaintiff’s husband, who was recovering from typhoid fever, that he died within two weeks. On appeal from the refusal to take off a compulsory nonsuit the court, through Chief Justice Mitchell, said: “The learned judge below not admitting, but conceding for the purpose of his view, that there was evidence of negligence and of proximate cause, sufficient to carry the case to the jury, nevertheless refused to take off the nonsuit. We do not concede either point, and this case might be affirmed on either. But we have had the case reargued before the full court, to settle finally the main question that there can be no recovery of damages from fright or other merely mental suffering unconnected with physical injury.” The chief justice, after referring to Fox v. Borkey, 126 Pa. 164; Ewing v. Pittsburg, etc., Railway Co., 147 Pa. 40, and Linn v. Duquesne Borough, 204 Pa. 551, as having really decided and enforced the principle, speaks of Ewing v. Pittsburg, etc., Railway Co. as a particularly strong case, “for it was decided on a demurrer to a statement setting forth a collision of cars through the negligence of the defendant, by which the cars were overturned and thrown from the track against the dwelling house of the plaintiff, subjecting her to great fright, fear and nervous excitement and distress, whereby she became sick and disabled from her usual work, etc. The question was thus squarely presented on its own merits, stripped of all complicating circumstances, and this court said unanimously per curiam that there was no cause of action.” In view of the foregoing authoritative declarations, we are right in saying that the question is no longer an open one in this state; indeed, it was so declared in Huston v. Freemansburg Borough. But it is urged that the rule is not applicable in an action by a passenger against a common carrier. In view of this contention, it is well to notice the reason of the rule. In Linn v. Duquesne Borough, 204 Pa. 551, the present chief justice refers to the case of Spade v. Lynn & Boston Railroad Co., 168 Mass. 285, as holding that there can be no recovery for fright and mental suffering, nor for bodily injury resulting solely from mental distress, and says that in the last-named case on a review of the authorities on the subject the exemption from liability is based not on the ground that fright and anxiety do not constitute actual injury or that mental and physical effects may not be directly traceable as a consequence of unintentional negligence, but on the ground that in practice it is impossible to administer any other rule without opening a wide door to unjust claims which cannot satisfactorily be met. The same idea is conveyed in the opinion in Huston v. Freemansburg Borough. Having regard to the reason of the rule, we discover no sound principle upon which to make a distinction, so far as its applicability is concerned, between negligence by a common carrier in the carriage of passengers and other negligence. In the present case a presumption of negligence arose from the collision, but that is as far as the presumption went; it was still incumbent on the plaintiff to adduce evidence from which the causal connection between the defendant’s negligence and the. conditions from which she suffered could be inferred with reasonable certainty. The rule under consideration comes into operation to prevent the drawing of that inference. Great reliance is placed by appellant’s counsel upon Hess v. American Pipe Manufacturing Co., 221 Pa. 67. But that case reaffirms the rule as above stated and simply decides that the case could not be. taken from the jury, because there was some evidence that the plaintiff received direct physical injuries from the blast apart from fright. She testified positively that she was thrown on a chair by the force of the concussion, and this testimony had some support from the fact that several windowpanes were broken and some particles of glass struck her in the face. The case is so plainly distinguishable from the present that we need not discuss it further.

The learned judge of the common pleas entered judgment for the defendant non obstante veredicto upon the authority of Huston v. Freemansburg Borough. He could not have done otherwise under the evidence without coming in direct conflict with the rule there emphatically stated.

Since the foregoing opinion was written, the opinion of the Supreme Court in Morris v. Lackawanna and Wyoming Valley Railroad Co., not yet reported, has come to our notice. There the rule was applied in an action by a passenger against a common carrier.

The judgment is affirmed.


source: Caselaw Access Project

author: Head, J.,

license: Public Domain

text:
    Huegle v. Bean, Appellant.

      Corporations — Stock—Transfer of stock — Liability for assessments.

    Where a person subscribes for the stock of a New Jersey corporation, and pays a portion of his subscription and receives a stock certificate in his own name, and subsequently signs the blank transfer on the back of the certificate, and sells and delivers the certificate to a firm of brokers, who in turn sell and turn over the certificate to another party in the same form as they received it, and long after-wards the company levies an assessment, and the original owner from whose name the stock has not been transferred on the books of the company is compelled to pay the assessment under the laws of New Jersey, he cannot recover the amount thereof from the brokers to whom he sold and delivered the certificate. His only recourse is to the owner of the stock at the time the assessment was levied.
    Argued Dec. 18, 1909.
    Appeal, No. 239, Oct. T., 1909, by defendants, from order of C. P. No. 1, Phila. Co., March T., 1909, No. 783, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Katharine Huegle v. Charles H. Bean and George E. Bean, trading as Charles H. Bean & Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Assumpsit to recover an assessment on stock which the plaintiff was compelled to pay.
    Rule for judgment for want of a sufficient affidavit of defense.
    The facts were identical as those in Rogers v. Toland, ante, p. 248.

      Error assigned was in making absolute rule for judgment for want of a sufficient affidavit of defense.

      John Lewis Evans, with him Thomas DeWitt Cuyler and B. Gordon Bromley, for appellants.

      July 20, 1910:

      Rudolph M. Schick, with him George R. Jefferson, for appellee.

      Clement B. Wood, with him Henry S. Drinker, Jr., Morgan, Lewis & Bockius and Dickson, Beitler & McCouch, for interested parties.
   Opinion by

Head, J.,

The controlling question in this case is precisely the same as that we have fully considered in the case of Rogers v. Toland in which an opinion has been this day filed, ante, p. 248. The learned court below made absolute a rule for judgment for want of a sufficient affidavit of defense. In our opinion in the case just cited, we have set forth at length the reasons which led us to the conclusion that the affidavit in that case, disclosing the same state of facts as here, was sufficient to prevent judgment, and we accordingly affirmed the order of the court below discharging the rule for judgment. Following that decision, we must conclude in the present case that the learned trial court fell into error in making the rule absolute.

The order making the rule for judgment absolute is reversed and set aside, and said rule is now discharged and the record remitted with a procedendo. The costs of this appeal to be paid by the appellee.


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    S. F. Bowser & Company, Incorporated, Appellant, v. Sharping.

      Justice of the peace — Affidavit of defense — Evidence—Appeals—Act of July 7,1879, P.L. 194.

    Where a defendant in an action before a justice of the peace files an affidavit of defense in compliance with the Act of July 7, 1879, P. L. 194, but at the hearing, the plaintiff although represented by counsel offers no evidence and the justice enters judgment dismissing the suit, such a judgment is a judgment of nonsuit from which no appeal lies, inasmuch as the plaintiff's remedy is not by an appeal, but by the institution of another suit.
    Argued March 1, 1910.
    Appeal, No. 5, Jan. T., 1910, by plaintiffs, from order of C. P. Tioga Co., Sept. T., 1908, No. 191, dismissing appeal of judgment of justice of the peace in case of S. F. Bowser & Company, Incorporated, v. Sharping.
    Before Rice, P. J., Hendeeson, Oelady, Head, Beavee and Poetee, JJ.
    Affirmed.
    Appeal from justice of the peace.
    Rule to strike off appeal.
    Cameeon, P. J., filed the following opinion:
    The plaintiff served with the summons an affidavit of claim with a copy of the contract upon which the action was founded. The summons was returnable July 14, 1908. The defendant filed an affidavit of defense. On the return day S. F. Channell, of counsel for the plaintiff, appeared; the defendant did not appear. ' Judgment was reserved by the justice to July 20, 1908, at nine o’clock, A. M.
    The transcript contains the following entry: “After consideration had upon the statutory provisions relating to actions under the Act of July 7, 1879, P. L. 194, before justices of the peace whereby no proof other than the affidavits filed by the plaintiffs and defendant it is hereby held that, inasmuch as no evidence has been offered by the plaintiffs to substantiate their claim and cause of action the same is hereby dismissed and judgment of no cause of action is thereby entered.” The plaintiffs took this appeal July 7, 1908. Defendant’s counsel on August 18, moved the court to discharge and set aside the appeal taken “for the reason that the record shows no judgment of the said justice of the peace, O. H. Davis, Esq. in the above-entitled action in which an appeal could be taken.”
    On the same day the court granted a rule to show cause why the appeal should not be stricken off and dismissed.
    The plaintiffs contend that because Mr. Channel! appeared on the return day the justice could not enter a nonsuit.
    No case was cited at the argument and we have not been able to find any deciding the precise question now before us.
    Section 6 of the Act of March 20, 1810, 5 Sm. L. 161, provides that: “In case the plaintiff does not appear, either in person or by agent to substantiate his charge the justice may then or at such other day as he may judge reasonable, proceed ’to give judgment against him by nonsuit for the costs and fifty cents per day for the reasonable costs of the defendant for his trouble in attending the suit; as the'defendant did not attend, the justice could not give judgment for his trouble in attending.
    Were we to eliminate the words “to substantiate his charge” the position taken by the plaintiffs’ counsel would undoubtedly be correct; if the appearance is sufficient to authorize the justice to enter a judgment on the merits then the party aggrieved by the judgment has the right of appeal. It has been decided many times that a judgment of nonsuit could not be entered after a hearing. And, if the justice of the peace exceeded his jurisdiction by so doing the remedy is by appeal. There could be no judgment on the merits if no evidence was offered. How can it be said there was an appearance of the plaintiffs to substantiate their charge if he does not undertake to do so by submitting evidence in support of it? This idea was evidently in the mind of the justice when he reached a tíonclusion, because he sets forth in the record that “it is hereby held that inasmuch as no evidence has been offered , by the plaintiffs to support their case and cause of action, the same is hereby dismissed.” That is what he would have to do in the absence ■ of evidence if the phrase “to substantiate his charge” means anything. It is true the justice subsequently sets forth “and a judgment of no cause of action is hereby entered;”, the justice could not say that the plaintiffs had no cause of action because no evidence was offered, but he could and did say that the plaintiffs had offered no evidence and therefore his action is dismissed:
    Plaintiffs’ counsel strenuously contended that under •Gould v. Crawford, 2 Pa. 89, and Lawver v. Walls, 17 Pa. 75, the appearance of the plaintiffs’ counsel without anything further, requires the justice to enter a judgment of no cause of action. By an examination of Gould v. Crawford, we find on p. 91, that “parties appeared and on the hearing justice ordered the plaintiff to be „non-suited because, as he says, the case is brought against Isaac and Stephen Gould instead of being brought against Isaac and Stephen Gould and others. It must be noted that it is the judgment of the justice and not a nonsuit or a discontinuance by the plaintiff, nor does it appear that he consented at the time to this disposition of the case. The question therefore is, Has a justice, after hearing the parties, their proofs and allegations, power to order a nonsuit?”
    We insert this quotation to show that the judgment in that case was entered after a hearing and the court holds that, although it was in words a nonsuit, yet, as it was after hearing it is equivalent to a judgment that the plaintiffs have no cause of action.
    The case of Lawver v. Walls, 17 Pa. 75, is not in point because, the quotation given from the record of the justice sets forth that “Parties appeared by an agent; plaintiffs not able to substantiate their claim.”
    This shows conclusively that an effort must have been made to substantiate their claim and the justice passed on the merits after such evidence. It is true the syllabus in the last case declares that a justice of the peace has no authority to enter a judgment of nonsuit after an appearance by the plaintiff, but that assertion is not justified by what follows because the docket of the justice declares “plaintiffs not able to substantiate their claim.” The question presented to the jury in that case was: Was the suit before Deemer for the same cause of action now trying? The jury found that it was. The case is very meager in details, but sets forth sufficient to show that the plaintiff had made an unsuccessful effort to substantiate his claim and failed; hence it is a judgment on the merits, the only remedy for which is by appeal. In disposing of the case last cited the court in a per curiam opinion say: “Gould v. Crawford settles the present case.” But we have seen that in the latter case the “parties appeared and on the hearing the justice ordered the plaintiff to be nonsuited because, as he says, the suit is brought against Isaac and Stephen Gould instead of being brought against Isaac and Stephen Gould and others. It must be noticed that it is the judgment of the justice of the peace and not a nonsuit or discontinuance of the plaintiff. . . . The question therefore is, Has a justice after hearing the parties, their proofs and allegations, power to order a nonsuit and if he undertakes to do so what is the legal effect of his decision?” Thus it appears that there was a full hearing in Gould v. Crawford and that the latter case rules Lawver v. Walls — for the same reason. In each case it was held that after hearing-before a justice the remedy is by appeal, no matter what form the justice uses in making his decision.
    These two cases were cited by Justice Williams in Vought v. Sober, 73 Pa. 49. In that case suit was brought on a note. On the return day both parties appeared and again on the day to which'the hearing was adjourned. On the day finally set for hearing the plaintiff did not appear, whereupon judgment of nonsuit was entered. On a second suit on the same note the court below, in substance, held that the former suit was a bar to a recovery. On appeal by plaintiff the court below was reversed on the ground that, although he appeared on the return day, nonappearance on the day set for hearing .only authorized a judgment of nonsuit which was no bar to the action pending. In disposing of the case Justice Williams said: “It (meaning the judgment of nonsuit) was not rendered after hearing their proofs and allegations as was the judgment of nonsuit in Gould v. Crawford, 2 Pa. 89, which was consequently held to be final regardless of its form; nor was it entered after the appearance of the parties on hearing as in Lawver v. Walls, 17 Pa. 75, because the plaintiff was not able to substantiate his claim.”
    We have quoted from Vought v. Sober, to show that the Supreme Court in that case took the same view of Gould v. Crawford and Lawver v. Walls expressed by us, and that they do not sustain the contention of plaintiffs’ counsel, because in both cases there was an appearance and an attempt to substantiate the claims.
    These two cases are often cited to support the proposition that there is no appeal from a judgment of non-suit entered by a justice of the peace on default of plaintiffs’ appearance.
    Plaintiffs’ counsel also cited Blair v. McLean, 25 Pa. 77, and Gibson v. Gibson, 20 Pa. 9. In the former case the court held that when the parties appear and submit their proofs and allegations the plaintiff may become nonsuited at his own motion. Judge Black in delivering the opinion said: “When the parties in a suit pending before a justice of the peace appear and submit their proofs and allegations the justice cannot order the plaintiff to become nonsuited. If he attempts to do so and enters his judgment in that form upon the record it will be considered equivalent to a judgment in proper form for the defendant and no other suit can afterward be brought for the same cause of action.” This case simply holds that the plaintiff has the right to withdraw or discontinue his suit at any time before the justices pronounce upon it. It is also said by Justice Black in concluding his opinion that, “The cases which decide that the justice cannot give a judgment of nonsuit against him (plaintiff) after he appears have no applications here.” This is mere dictum and the cases cited by his honor in support of that dictum are Gould v. Crawford and Lawver v. Walls, 17 Pa. 75. We have already shown by these cases that in addition to an appearance there was a hearing.
    Gibson v. Gibson decides substantially the same question that is decided in Blair v. McLean. The justice’s record in Gibson v. Gibson sets forth: “July 6, plaintiff appeared, draws the suit and confesses judgment for costs.” But these cases hold that the plaintiff had the right to do that and, if he did so it was no bar to another action on the same cause. Hess and Valentine’s “Practice in the Subordinate Courts” was also cited by plaintiffs’ counsel.
    We have examined that citation very carefully. It upholds the doctrine set forth in Gibson v. Gibson and Blair v. McLean, 25 Pa. 77. This authority holds that if evidence has been taken and judgment entered for the plaintiff he cannot then discontinue, neither can he bring another action on the same cause and that a judgment of nonsuit for want of an appearance is no bar to a new action even though the justice enters it as judgment in default of an appearance.
    There is nothing in any of these authorities to sustain the contention of plaintiffs’ counsel that a mere appearance without evidence requires the justice to enter a judgment on the merits.
    In Selfridge v. Tilgham, 1 Phila. 580, it was held that there is no appeal from a judgment of nonsuit entered by an alderman or justice of the peace because of the nonappearance of the plaintiff. In disposing of the case the court said: “It is further provided in the same section that if the plaintiff does not appear either in person or by agent, to substantiate his charge, the justice may then, or at such other day as he may deem reasonable, proceed to give judgment against him by nonsuit; but from this judgment of nonsuit there is no appeal given, as there is in the case of a judgment by default against the defendant, and the reason for the distinction is obvious; on the one hand the defendant may elect to try his case before the alderman, reserving his rights of appeal, or he may choose to let judgment be entered against him by default, having determined to submit his case to the consideration of a court and jury.
    But, on. the other hand, if a plaintiff having instituted his suit and having brought the defendant in to answer his demand at a time and place selected by himself, neglects to appear and prove his claim, the statute directs that he shall be punished by having imposed upon him the costs of suit and defendant’s costs for attendance and from this there is no appeal; the act does not give it to him and we can see nothing in the law that favors the extension of that right by implication, but, on the contrary, an obvious intention to compel the payment of costs before he shall be permitted to proceed by the institution of new proceedings.
    Sections 4 and 6 of the act of March 20, 1810, contain the only authority given a justice to enter judgments of any kind except where the demand is less than $5.23, and except the authority given by the act of 1879, neither of which apply here. Section 6 sets forth the conditions under which the justice is authorized to enter a judgment of nonsuit, to wit: When the plaintiff does not appear to substantiate his claim. If these conditions happen the effect of the judgment is simply that of a nonsuit no matter what form of expression the magistrate uses; from this there is no appeal, but it is not a bar to a new action on the same cause. Section 4 sets forth the conditions under which the justice is authorized to enter a judgment on the merits, to wit: When he has heard and examined the proofs and allegations. If he has heard and examined the proofs and allegations the judgment is final, no matter what form of expression he uses in the entry thereof, and the aggrieved party’s only remedy is by appeal. The conclusion in the first case is a consequence of a lack of evidence. The conclusion in the second case is a result of the evidence.

      To give the effect to the statute, contended for by the plaintiffs’ counsel, we must eliminate or consider redundant and meaningless the phrase “to substantiate his charge.”
    The fact that a given-construction would make a word redundant is some reason for its rejection, for, it being presumed (wherever that presumption can be sustained) that the legislature meant precisely what it said, no word in it (the statute) is to be treated as unmeaning if a construction can be legitimately found which will preserve it and make it effectual. And the same rule forbids the rejection as meaningless or superfluous of any clause in the statute: Endlich on the Interpretation of.Statutes, sec. 23.
    Applying these rules to the statute in hand, we must give effect to the phrase “to substantiate his charge.” There is nothing to prevent us in so doing. The statute is plain, unambiguous and easily understood; and, giving effect to every word in it, it simply provides that, if the plaintiff does not appear to substantiate his charge, the justice may then, or at such other day as he may judge reasonable', proceed to give judgment against him by nonsuit. Not only must he appear, but he must appear to substantiate his charge. . This he did not do. Failing to make the attempt by evidence the justice had no authority to do more than to give judgment against him by nonsuit. No matter what expressions the justice used in entering his decision on the record, the effect of it would simply be a judgment against the plaintiff by nonsuit from which there is no appeal.
    From the foregoing conclusions it follows that the judgment in this case is but a nonsuit from which there' is no appeal, and which is no bar to another action. The appeal must, therefore, be dismissed and stricken off.
    And now, March 22, 1909, after argument and due consideration had, the appeal is dismissed and stricken off.

      Error assigned was the order of the court.

      July 20, 1910:

      S. F. Channell, with him F. E.- Watrous and H. F. Marsh, for appellants,
    cited: Gould v. Crawford, 2 Pa. 89; Lawver v. Walls, 17 Pa. 75; Blair v. McLean, 25 Pa. 77; McCahan v. Reeder, 10 Pa. Dist. Rep. 298; Selfridge v. Tilghman, 1 Phila. 580.

      A. B. Dunsmore and P. J. Edwards, for appellee,
    cited: Penna. Pulp & Paper Co. v. Stoughton, 106 Pa. 458; Gould v. Crawford, 2 Pa. 89; Lawver v. Walls, 17 Pa. 75; Vought v. Sober, 73 Pa. 49; Selfridge v. Tilghman, 1 Phila. 580.
   Opinion by

Head, J.,

The appellant began this action before the justice of the peace by filing the affidavit of claim provided for in sec. 2 of the Act of July 7, 1879, P. L. 194. The affidavit was duly served with the summons. The defendant in turn filed within the proper time the affidavit of defense provided for in the same section. As that act confers upon the magistrate no power to enter a judgment for want of a sufficient affidavit of defense, and does not attempt to make either of these ex parte affidavits evidence to be considered by the' magistrate, it had no further effect or significance in the case. The further procedure, the rights and obligations of the parties, and the powers and duties of the magistrate are regulated by the act of 1810.

• The plaintiff then remained the actor, and when the time fixed for a hearing had arrived the following portion of sec. 6 of the act of 1810 became operative: “And in case the plaintiff does not appear, either in person or by agent, to substantiate his charge, the justice may then proceed to give judgment against him by nonsuit for the costs,” etc. From such a judgment there would of course be no appeal because the plaintiff would have the right to begin another action.

At the hour fixed for the hearing the counsel representing the plaintiff presented himself at the office of the magistrate. He demanded no hearing, he presented no witness, he offered no evidence, he did nothing to substantiate the plaintiff’s charge, unless his physical presence there can be taken to be such a compliance with the obligation of the act as would prevent the entry of a judgment of nonsuit. With matters in this state the magistrate, after consideration, entered a judgment, the substance of which is declared in the following language taken from his transcript, viz.: “Inasmuch as no evidence has been offered by the plaintiffs to support their case and cause of action, the same is hereby dismissed and a judgment of no cause of action is hereby entered.”

The plaintiff then took an appeal from this judgment to the court of common pleas. A motion was made to strike off the appeal. After argument the court reached the conclusion that the judgment entered by the magistrate was in substance, if not in form, but a judgment of nonsuit, and that the plaintiff’s remedy was not by appeal but by bringing another action.

In this view the majority of the judges of this court concur. The opinion filed by the learned court below carefully considers the language of the statute, reviews and analyzes all of the decisions of the Supreme Court which are cited in the briefs of counsel, or that we have been able to discover that affect the question, and as we think so well vindicates the conclusion he reached, that no good purpose could be subserved by any attempt on our part to further elaborate his reasoning. The judgment is therefore affirmed on that opinion, which the reporter will print as part of the report of the case.

Judgment affirmed.


author: Porter, J.,

text:
    Commonwealth v. Force, Appellant.

      Criminal law — Larceny—Conflict of evidence — Question for fury.

    1. On the trial of an indictment for larceny for stealing a razor, the property of a county, the case is for the jury and a conviction will be sustained where the evidence for the commonwealth tends to show that the defendant was a prisoner in the county jail, and that, when he was discharged, he clandestinely took a razor which was kept for the use of prisoners, knowing it to be the property of the county, for the purpose of appropriating it to his own use.

      Evidence — Declarations—Res gestee — Criminal law — Larceny.
    2. Declarations to become a part of the res gestse, must have been made at the time of the act done, or- be so connected with the main facts in issue as to constitute a part of the transaction.
    Argued March 1, 1910.
    Appeal, No. 13, Feb. T., 1910, by defendant, from judgment of Q. S. Clinton Co., Oct. T., 1909, No. 9, on verdict of guilty in case of Commonwealth v. Alva Force.
    Before Rice, P. J., Henderson, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Indictment for larceny. Before Hall, P. J.
    At the trial the defendant made the following offer:
    Mr. McCormick: I offer to prove by this witness that the defendant brought the razor to his home, to her house, and proposed to take it back to the jail to deliver it to the sheriff; that she said to him that he should not go back to the jail but that she would take the razor back and deliver it for him; that afterwards she overlooked the matter and failed to take it back until the arrest was made.
    Counsel for commonwealth objects, because it is an attempt on the part of the defendant to manufacture evidence for himself; second, because it is immaterial and incompetent.
    The Court: The defendant himself has sworn that he bought the razor and believed it his own, that the sheriff never spoke to him about it at all; that the first he knew the sheriff claimed it was when the turnkey demanded its return at midnight of the day he has carried it away. The offer fixes no time at which this alleged conversation occurred, but if it occurred after he knew his theft had been discovered, if it was a theft, it would have no relevancy. The inquiry here is as to what his intention was when he took the razor. A subsequent intention to return it after the taking was discovered would not relieve him. Objection sustained, evidence excluded and bill sealed for defendant. [2]
    July 20, 1910:
    Mrs. Jennie Ryan on the stand.
    Mr! McCormick: I propose to prove by her that the defendant told her to tell his mother to take that razor down to the jail and deliver it to the sheriff, after he had gone away.
    Mr. Hall: Objected to as incompetent and entirely too remote to be introduced here as testimony in the case, and immaterial.
    The Court: Objection sustained, evidence excluded and bill sealed for defendant. [3]
    Verdict of guilty, upon which judgment of sentence was passed. Defendant appealed.

      Errors assigned were (2, 3) ruling on evidence, quoting the bill of exceptions, and (4) in refusing binding instructions for plaintiff.

      C. S. McCormick, for appellant.

      H. T. Hall, district attorney, for appellee.
   Opinion by

Porter, J.,

The defendant was in the indictment charged with the larceny of a razor, the property of the county of Clinton. The commonwealth produced evidence which, if believed, established that the razor was the property of the county of Clinton, that it was kept in the county jail in the charge of the sheriff for the purpose of being used by the prisoners to shave themselves while in the jail; that the defendant knew these facts and in common with other inmates of the jail used the razor while a prisoner and, knowing that the razor was the property of the county, he clandestinely took it, when discharged from the prison, for the purpose of appropriating it to his own use. The defendant, it is true, contradicted the testimony of the officers of the jail who had testified that they had given him express notice that the razor was the property of the county, and asserted that he had bought the razor from another prisoner. The question of fact raised by this conflict of testimony was for the jury, to which the question of the intent with which the appellant took the razor must necessarily be submitted. The evidence was sufficient to warrant a finding that the defendant had taken the razor with felonious intent and it would have been error for the court to give the jury binding instructions in favor of the prisoner. The first and fourth specifications of error are dismissed.

The offers of the appellant to prove by his mother and aunt, the declarations which he had made to them, respectively, with regard to the razor, failed to state the time at which those declarations were made, and were properly excluded. The larceny, if there was a larceny, was complete when the defendant left the jail, and it is manifest from the offers that these declarations were made after that time. The defendant was charged with a criminal act and his only declarations which could become admissible in his favor were such as emanated instinctively from the act. Such declarations are admissible because they are so wrought up in the body of the act that they cannot be separated from it. In such cases the act is part of the declaration, and the declaration a part of the act: Wharton’s Criminal Evidence, sec. 266. Declarations made by the defendant in his own favor, unless part of the res gestse, or a confession offered by the prosecution, are not admissible for the defense. Declarations, to become a part of the res gestse, must have been made at the time of the act done, or be so connected with the main fact in issue as to constitute a part of the transaction: Grim v. Bonnell, 78 Pa. 152; Briggs v. Railroad & Coal Co., 206 Pa. 564; Sorenson v. Dundas, 42 Wis. 642; Conlan v. Grace, 36 Minn. 276; Bland v. State, 2 Ind. 608. The declarations which the defendant sought to introduce in evidence were in their nature self-serving, and the offers failed to disclose whether those declarations were made before or after the appellant actually knew that his theft had been discovered. The second and third specifications of error are overruled.

The judgment is affirmed and the record is remitted to the court below to the end that the sentence be carried into effect.


text:
    Columbia Glass Company v. Atlantic Glass Company, Appellant.

      Practice, C. P. — Trial—Charge—Mistake—Review—Appeals—Assignments of error.

    1. The appellate court will not reverse a judgment on account of alleged misstatements in several portions of the charge quoted in various assignments of error, where an inspection of the portions of the charge complained of show no substantial misstatement of fact, and there is nothing in the record to indicate that the attention of the trial judge had been called to any misstatements at the trial.

      Evidence — Custom of trade — Opinion of witness — Construction of writing.

    2. While a witness may be examined as to the existence of a trade custom with reference to which a written contract may have been made, although the contract is silent as to the custom, the witness cannot be permitted to construe and interpret the written contract according to his idea of what the trade would understand from his language. Such construction of a written agreement is primarily the function of the trial court, or, in certain cases, of the jury under the evidence with the aid of proper instruction from the court.

      Practice, C. P. — Verdict—Blank verdict — Reforming verdict.

    3. Where a jury seals a verdict and separates for the night, and when it is opened in the following morning in court is found to be “in favor of the plaintiff for--dollars,” the court may direct the jury to return to their room to fix the amount of the damages if they find for the plaintiff. A verdict in due form for a fixed sum subsequently brought in and properly recorded, is valid.
    4. The trial judge has full power to see that the verdict, as finally rendered, shall be in the form sanctioned by long custom, and, with the consent of the jury, he may so mold and shape it as to make it conform to these requirements.

      July 20, 1910:
    Argued March 1, 1910.
    Appeal, No. 4, Feb. T., 1910, by defendant, from judgment of C. P. Lycoming Co., Sept. T., 1907, No. 106, on verdict for plaintiff in case of Columbia Glass Company v. Atlantic Glass Company.
    Before Rice, P. J., Henderson, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit on a contract of sale. Before Hart, P. J.
    The opinion of the Superior Court states the case.
    Verdict and judgment for plaintiff for $1,442.46. Defendant appealed.

      Errors assigned were (1-6) portions of the charge re,ferred to in the opinion of the Superior Court; (7-10) rulings on evidence, sufficiently indicated in the opinion of the Superior Court; (11) in permitting the jury, after ■it had found and sealed a general verdict in favor of the plaintiff without mentioning any amount and separated, to reassemble and find a verdict for the plaintiff in a specific amount; and (12) receiving the verdict of the jury and in directing judgment to be entered thereon.

      Max L. Mitchell, with him A. M. Hoagland, for appellant,
    cited, as to the custom: Wigglesworth v. Dallison, 1 Smith’s Leading Cases, *594; Hutton v. Warren, 1 M. & W. 466.
    Cited as to the verdict: McConnell v. Linton, 4 Watts, 357; Mishler v. Com., 62 Pa. 55; Kramer v. Kister, 187 Pa. 227.

      James B. Krause, for appellee,
    cited as to the custom: Stoddard v. Emery, 128 Pa. 436; Hartje v. Collins, 46 Pa. 268; Dickinson v. A. O. U. W., 159 Pa. 258.
   Opinion by

Head, J.,

The learned counsel for appellant asks us to consider collectively the first five assignments of error, each of which complains of a portion of the general charge. He opens his printed brief in the following language: “We do not contend that the portions of the charge assigned for error are misstatements of the law, but, we insist that they are inaccurate statements of facts so serious, when taken collectively, as to make it the duty of this court to declare that the charge was misleading.”

The plaintiff in this action sued to recover damages for the breach of a written contract by the terms of which it agreed to sell and the defendant agreed to buy 5,000 boxes of glass. The agreement was dated on January 25, 1907. The defendant was to have the privilege, within certain prescribed limitations, of specifying the sizes of the glass to be shipped and of having such shipments made by the plaintiff directly from the factory to the customers of the defendant. It follows, of course, that the plaintiff could ship only as specifications and shipping directions were received from the defendant. Under the terms of the contract the entire amount of glass covered by it was to be thus specified not later than April 1, 1907. The quality of the glass and prompt shipments were guaranteed by the plaintiff. In point of fact something less than 1,500 boxes were actually specified when the defendant refused and declined to make further specifications. The plaintiff, alleging that the market price of the glass after-wards fell and that it was compelled to market that portion of the order not taken by the defendant at less than the contract price, sought to recover the loss thus sustained.

By way of defense the defendant attempted to establish chiefly two propositions: 1. That the plaintiff had broken its covenant to make prompt shipments, and that its failure in this respect was so persistent and so detrimental to the business of the defendant as to warrant it in canceling the contract. 2. That the market price of glass, of the kind produced by the plaintiff and delivered by it, had not fallen in price, and- as a consequence the plaintiff had suffered no actual damages, even if the contract had been unwarrantably broken. Much testimony, conflicting in character, was offered by the parties, on the one hand to support these contentions of the defendant, on the other hand to rebut them.

As we read the charge of the learned trial judge, we can discover no such substantial misstatements of fact as to justify the conclusion that the minds of the jury were misled from the true line of inquiry invited by the issues of fact raised. And we would be especially reluctant to convict the learned trial court of error in this respect when, in no single instance, was any alleged misstatement of fact called to the attention of the judge by counsel. It is not contended, as we have seen, that the instruction to the jury on the question of the legal obligation of the plaintiff to fulfill the contract on its part, as a condition precedent to its right to recover, was in any way erroneous. The jury were fairly told that if the plaintiff had failed to make reasonably prompt shipments, as the contract provided, the defendant was justified in rescinding and the plaintiff could not recover. They were further told that if they found as a fact that there had been no drop in the market price of glass, that the plaintiff would have suffered no substantial injury. We can find no warrant in the, charge for the criticism that the jury were practically instructed that if they found for the plaintiff at all they must find for the full amount of its claim. The evidence as to the amount of the loss offered by the plaintiff was clear and specific. There was no dispute as to the number of boxes of glass affected by the defendant’s breach. If, therefore, the jury accepted the plaintiff’s testimony as to the extent of the drop in price, but little remained for them, under the evidence, except to find as they did, the result in dollars and cents being a mere matter of computation.

In a word, the answer to these assignments must be found in the charge itself, and as we read it, it fails to disclose any reversible error. The first, second, third, fourth, fifth and sixth assignments are accordingly overruled.

The seventh, eighth, ninth and tenth assignments may be considered together, as all of them complain of the rejection of different offers of testimony, made along the same line, for the alleged purpose of showing a custom in the glass trade which would read into this contract something it does not in terms contain.

It appears that in the window glass trade two general classes of window glass áre recognized, viz., hand-made glass and machine-made glass. Some of the factories produced one land, some the other. In no case, as we understand it, did any single factory produce both kinds. In so far as the sales of window glass by the factories were concerned, the business seems to have been to a large extent artificially controlled. Most of the factories producing machine-made glass were organized into an association called the American Window Glass Company. This association fixed the prices of the various sizes of glass and sold the product of all the factories which were members of it. In like manner most of the factories producing hand-made glass were bound together in an association known as the National Brokerage Association, which performed like functions for its members. These associations from time to time made and published, for the information of the trade, a price list, and it was their aim to so regulate and control the production and sale of glass as to hold the prices up to these published lists. It further appears that although there was some difference in the methods of manufacturing the two kinds of glass, and that, in the opinion of some of the witnesses, hand-made glass was intrinsically more valuable than machine-made glass, yet that the prices of the two were usually kept practically uniform.

Now the contract made by the parties provided simply for the sale and purchase of 5,000 boxes of v»ndow glass without any specification whatever as to whether it should be hand-made or machine-made. In point of fact, the plaintiff company manufactured only hand-made glass. There is no evidence that it delivered, in the performance of its contract, any other kind of glass, nor does the record disclose a single instance in which, any complaint was made by the defendant of the quality of the glass delivered.

It was not denied that about the latter part of March, 1907, the American Window Glass Company announced a substantial cut in the prices of glass. One of the main grounds of defense set up by the defendant was that this reduction did not affect the market for hand-made glass, the National Brokerage Association having refused to make a similar reduction. The defendant then contended that the subject-matter of its contract was hand-made glass only, and undertook to follow this by proof that there was no change in the market price of such glass. To maintain its contention that the subject-matter of its contract was hand-made glass alone the defendant made the several offers covered by the specifications we are now considering.

As we have already seen, the quality of the glass delivered was not a matter of dispute between the parties. Whilst the plaintiff insisted that it would have had the right, under its contract, if it became necessary in order to fill specifications for certain sizes, to have bought machine-made glass and shipped it, yet this was not done. The evidence offered was but to lay the foundation for the introduction of the more materiaL testimony that there had been no change in the market price for hand-made glass for a considerable period after the cancellation of the contract. Now the court admitted all of the evidence on this point that was offered. The defendant was permitted to prove by several witnesses that the association which controlled, to the extent we have indicated, the price of hand-made glass, refused to make any cut in the prices and endeavored to hold them at what they had been at the time the contract was entered into. The plaintiff answered that whilst this might have been true, the business was actually unsettled by the cut that had been made by the American Window Glass Company, and that in point of fact, notwithstanding the efforts made to hold up the price of hand-made glass, both the association itself, as well as others, were compelled to accept and did accept less than the published prices. It is not therefore entirely apparent that, even if there was technical error in the rejection of the offers complained of, any harm was thereby done to the defendant.

But as we view, them, these offers were not to prove the existence in fact of a custom in the glass trade so ancient, so universal and so reasonable that all persons engaged in that business must be presumed to have had knowledge of such custom and to have contracted with reference to it although their contracts were silent on the subject.

The offer covered by the seventh assignment, which is typical of the remaining ones, was as follows: “Q. When a contract such as this contract of January 25, 1907, is entered into between a jobber and a glass manufacturing-plant, does or does not the trade understand that the contract can only be filled by hand-made glass, or can it be filled by machine-made glass?” This was not an offer to prove as a fact that jobbers in contracting with factories never specified whether the glass they contracted for was to be hand-made or machine-made, but that under universal custom this was to be determined by the character of the factory which was selling. On the contrary, it was but an offer to permit the witness to construe and interpret this written contract according to his idea of what the trade would understand from its language. Now neither the witness nor the trade had the right to interpret or construe a written agreement. That was primarily the function of the trial court, or, in certain cases, of the jury under the evidence with the aid of proper instruction from the court.

The learned trial court gave the defendant full latitude to prove all the surrounding conditions and circumstances existing at the time the contract was made, the situation of the parties, their conversation, etc., as well as the manner in which the contract had been performed down to the time of the breach. We are unable to discover any reversible error in the rejection by the court of the offer we have quoted and the similar ones which are the subjects of the eighth, ninth and tenth assignments. These are therefore overruled.

The case was submitted to the jury late in the afternoon with the instruction that if they reached a conclusion after the court had adjourned they should seal up their verdict and bring it into court in the morning. On the following morning the jury came into court with a sealed verdict, they having, in accordance with the general custom, separated the previous evening after reaching a conclusion. The verdict as brought in was in the following form: "December 16, 1908,’We find in favor of the plaintiff for-dollars.” The learned trial court declined to receive the verdict in this form and instructed the jury to return to their room and if they found for the plaintiff to fix the amount of the damages. The jury retired and afterwards brought in a verdict in due form for a fixed sum. This was received in open court and properly recorded and judgment was afterwards entered upon it.

The learned counsel for the appellant complains that this action of the court was erroneous, and that after the jury had separated it could not be permitted to reassemble and fix the amount of the damages. With this we cannot agree. There was no verdict until one had been received in open court which the trial judge accepted and directed to be recorded. It has long been held that the trial judge has full power to see that the verdict, as finally rendered, should be in the form sanctioned by long custom, and, with the consent of the jury, may so mold and shape it as to make it conform to these requirements. In Reitenbaugh v. Ludwick, 31 Pa. 131, the report of the case shows "the jury returned into court with a sealed verdict, having separated before presenting it; after an examination the judge said it was not in form and recommitted it to them. To this the defendant excepted.” In dismissing the assignment of error founded on that exception the Supreme Court, by Thompson, J.,said: “The cases cited of McConnell v. Linton, 4 Watts, 357; Wolfran v. Eyster, 7 Watts, 38; Walters v. Junkins, 16 S. & R. 414, were abundant authority for the course pursued, in regard to a correction of the verdict. The jury having sealed it up, and separated on coming into court, it was found not to be in form to meet the whole case, and before receiving and recording it, the court sent them back to put it in due form. This is fully sustained by the cases, and, it is believed, is the universal practice throughout the state. The sealed paper was in fact not the verdict, until it was recorded, and until that was done, it was within the discretion of the court to send the jury back to consider and correct mistakes, or put it in form. . . . This discretion is an incident to the mode and manner of the trial and must be left to the courts, and, unless in a flagrant exercise of it, is not reviewable. It is in fact a condition implied of permitting the jury to seal up their verdict, that it may be subject to this mode of correction; otherwise, it is probable the practice never would have been allowed to prevail.” In Smith v. Meldren, 107 Pa. 348, the action being replevin, the jury rendered a sealed verdict “for the plaintiff to the amount of replevin with interest,” and then separated. On bringing the verdict into court on the day following the separation, the court instructed them to find the exact amount. This was assigned for error, but. the assignment was dismissed with this brief statement by Chief Justice Meectje. “It was within the power of the court to put the verdict in proper form. This is what it did.” The eleventh assignment is therefore overruled.

After a careful examination of the entire record we are all of the opinion that it discloses no reversible error.

Judgment affirmed.


author: Rice, P. J.,

text:
    Mead & Speer Company v. Krimm, Appellant.

      Contract — Offer—Acceptance—Conditional acceptance.

    1. To constitute a contract the acceptance of the offer must be absolute and identical with the terms of the offer. If one offers another to do a definite thing and that other person accepts conditionally, or introduces a new term into the acceptance, his answer is either a mere expression of willingness to treat, or it is in effect a counter proposal.

      Contract — Oral and written contract — Question for jury.

    2. Where a contract is partly written and partly parole and there is a dispute about its terms, it is for the jury to determine what the contract is.

      Contract — Continuing contract — “Ordering out.”

    3. Where a contract for the sale of lumber provides for delivery from time to time on the purchaser’s orders the seller is not required to tender delivery until the lumber has been “ordered out” by the purchaser.
    Argued March 2, 1910.
    Appeal, No. 15, March T., 1910, by defendants, from judgment of C. P. Lycoming Co., March T., 1909, No. 153, on verdict for plaintiff in case of Mead & Speer Company v. Charles R. Krimm et al., trading under the firm name of Williamsport Planing Mill Company.
    Before Rice, P. J., Henderson, Or-lady, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit on a contract of sale. Before Hart, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $551.05. Defendants appealed.

      Error assigned was in not entering judgment for defendants non obstante veredicto.

      William Russell Deemer, for appellants.
    If there was no conflict of testimony in this case, it was the duty of the court to declare the legal effect of the contract made by that testimony: Wannamaker v. Burke, 111 Pa. 423; Bube v. Weatherly Boro., 25 Pa. Superior Ct. 88; McFall v. Ice Co., 123 Pa. 259; Seligman v. Beecher, 36 Pa. Superior Ct. 475.
    July 20, 1910:
    A party who dispenses with or prevents the performance of a contract, written or verbal, cannot take advantage of the nonperformance by the other: Grove v. Donaldson, 15 Pa. 128; Jones v. Sowers, 204 Pa. 329; Huntingdon, etc., R. R. Co. v. McGovern, 29 Pa. 78; White v. Braddock Boro. School Dist., 159 Pa. 201.
    This is ruled by Kelley Brick Co. v. Clay Product Supply Co., 32 Pa. Superior Ct. 408.
    Where a contract is entire, before any recovery can be had of the consideration money, the plaintiff must prove that he has performed, or is ready to perform, his part of the contract, or that the performance was prevented by the defendants: Norris v. Clark, 29 Pa. Superior Ct. 562; Martin v. Schoenberger, 8 W. & S. 367; Pallman v. Smith, 135 Pa. 188; Hartman v. Meighan, 171 Pa. 46.

      T. M. B. Hicks, with him W. M. Elliot, for appellee.
   Opinion by

Rice, P. J.,

This action of assumpsit was brought upon a book account to recover the price of lumber sold and delivered. One of the defenses was that it was delivered under an entire contract which the plaintiff had not substantially performed. The question raised by the single assignment of error is, whether under all of the evidence the court should have given binding direction in favor of the defendants.

The defendants delivered simultaneously to the plaintiff two orders numbered respectively 670 and 671 and dated October 27, 1904, the first for 1,000 feet of 4/4 red oak, the second for 1,000 feet of 4/4 white oak, two cars of 5/4 and one car of 6 /4 white oak, and three cars of 5 /4 red oak, to be shipped within three months on the defendants’ orders. The orders specified that all the lumber should be band-sawed and trimmed, and designated Gillespie, West Virginia, as the shipping point. In a letter acknowledging the receipt of these orders the plaintiff said: “In reference to order No. 671 beg to say we are not positive that we can furnish the two cars of 5/4 plain white oak and the one car of 6/4, and in regard to the 5/4 Is & 2s red oak, beg to say that we have quite a lot of this 5 /4 on sticks, and it may be possible that we can furnish this amount, however, we can only agree to furnish the amount which we have in stock. We note also you say that this stock must be band-sawed and trimmed, in regard to this beg to say we cannot accept the order in this way from the fact that we have no band-sawed oak; the stock which we have been shipping you is not band-sawed oak, and we have no band mills at Gillespie, West Virginia, and another thing the stock will not all be shipped from Gillespie. Please change j^ur orders to read in accordance with the above and we will take pleasure in entering the same. . . .” In reply, the defendants wrote on November 2, 1904, as follows: “We herewith return our orders Nos. 670 and 671. You will note we have stricken out the shipping point and the band-sawed and trimmed, but we don’t quite understand your letter in reference to the 5/4 and 6/4 oak. If there is any part of the 5/4 and 6/4 R. or W. oak you can’t accept, let us know and we will cancel such part of it as you may suggest.” It will be seen from a careful reading of the foregoing that the plaintiff did not unqualifiedly accept the two orders, and that the defendants did not unqualifiedly accept the plaintiff’s modified proposition. To constitute a contract the acceptance of the offer must be absolute and identical with the terms of the offer. If one offers another to do a definite thing, and that other person accepts conditionally, or introduces a new term into the acceptance, his answer is either a mere expression of willingness to treat or it is in effect a counter proposal. Applying this elementary principle, there was no contract up to this time binding the plaintiff to deliver and the defendants to accept and pay for the entire quantity of lumber .specified in the two orders. As shown by the letter last quoted, the defendants professed to be in doubt as to the meaning of part of the plaintiff’s counter proposition and invited explanation and a more definite statement of what the plaintiff desired to have stricken out of order 671. It is true that while the exact terms of the proposed contract were left in this uncertain and indefinite condition the defendants gave and the plaintiff accepted orders to ship specified quantities of lumber from order 671; but the voluminous.correspondence fails to show a meeting of minds upon the full terms of the entire contract proposed. On the contrary, it shows a substantial dispute between them from the time the defendants first asserted that the orginial order 671 for 5 /4 and 6 /4 stuff had been accepted. If there were nothing further than the correspondence up to the plaintiff’s letter of December 6, 1904, to show what the contract was, the court could not have declared as matter of law that the plaintiff took an untenable position in saying, “We beg to say that we did not accept your order for any 5/4 and 6/4 oak and we do not propose to furnish any, neither do we propose to ship any more stock until this matter is straightened out.” But it appears that on November 5, 1904, the defendants wrote the plaintiff as follows: “Please ship from our order 671 1 car 4/4 P. white oak Com., and better load one-half each grade, and be particular not to get more than half com. in this shipment and select good dry stock. Ship to us via P. R. R. to Montandon, Pa., and send us bill of lading. Please ship quick and let us know when we may expect same.” This was followed by a letter from the plaintiff to defendants as follows: “We are in receipt of your favor of the 5th, in reply beg to say we have written our Mr. Aldrich asking him to call to see you in reference to tins matter.” The defendants adduced oral testimony to the effect that in the latter part of November (pursuant to plaintiff’s last letter, as they claim) Mr. Aldrich appeared at the office of the defendant and, after talking over the matter of the 5 /4 and 6 /4 oak with the defendants, said he would go out and call up by telephone the plaintiff and give defendants a definite answer as to whether or not the plaintiff would furnish the 5/4 and 6/4 oak mentioned, in order 671, and that he later returned and said that he had talked with the plaintiff over the long distance telephone and that the plaintiff would fill the order as originally written, including the 5 /4 and 6/4 stock. The evidence adduced by the plaintiff in rebuttal was in denial of the fact of any such telephonic communication and also of the authority of Aldrich to act for the plaintiff in that matter. It is argued by appellants’ counsel that Aldrich’s authority is inferable from all of the circumstances in the case, and at least that the uncontradicted testimony showed that he was acting within the apparent scope of his authority and therefore the plaintiff was bound by his action whether the testimony as to his telephonic communication with the plaintiff was true or not. We think the court was right in submitting the question of his authority to act for the plaintiff to the jury. But even if that question were free from doubt under the evidence, there would still be the question, depending for its determination wholly upon oral testimony, whether Aldrich in fact accepted the order on the plaintiff's behalf, and in no view of the case could, this question be taken from the jury. According to defendants’ own contention the contract was partly oral and partly in writing, the terms of which were in dispute, and the evidence was of such nature as to clearly under the authorities draw the whole to the jury as an oral contract. What the parties said and what they meant by what they said, was for the jury to answer: Phila. v. Stewart, 201 Pa. 526.

But it is argued that, whatever doubt there may have been as to the contract for the lumber specified in order 671, there was none as to the 4/4 lumber specified in order 670. Assuming this to be true, does it follow that the plaintiff was bound to show delivery or tender of delivery of all the lumber specified in that order in order to recover for such as was actually delivered? It is argued that the plaintiff was bound so to do because it was an entire contract and, being so, the plaintiff could not recover except upon proof of substantial performance or tender of performance of it as a whole. It is to be observed, however, that the plaintiff was not bound by the terms of the order to deliver the lumber until it was “ordered out.” This being so the defendants were to become the actors in the transaction. Therefore, it was prima facie not necessary for the plaintiff, in order to save itself from default, to tender delivery of that lumber unless orders were given within three months: Seligman v. Beecher, 36 Pa. Superior Ct. 475. The appellants’ counsel recognizes this principle, but argues that his clients were not compelled to give orders within three months because of the plaintiff’s declaration in its letter of December 6 that it did not propose to ship any more stock until this matter, that is, the dispute as to the 5/4 and 6/4 oak, was straightened out. Counsel interpret this letter as applying as well to the 4/4 lumber; but it is doubtful if this is the proper interpretation, for, in the course of that letter, the plaintiff said: “We wish to advise you that we will furnish the balance of the order for 4/4 on the basis of the same stock as the first shipment, as stated in yours of Oct. 28th.” It -is not clear, therefore, that the defendants were excused by anything that was stated in the letter of December 6 from “ordering out” the lumber within three months as specified in their original proposition. There is, moreover, some evidence in the correspondence tending to show the plaintiff’s readiness to ship all of the 4/4 stock which was “ordered out” within the three months on payment of overdue bills for prior shipments. We have not undertaken even to summarize all of the evidence pertinent to this complicated controversy. It is sufficient to say that our judgment, upon a review of the whole evidence; is that there were questions of fact entering into the case which could not properly be withdrawn from the consideration of the jury by a binding direction in favor of the defendants. The refusal to give such direction might well be based on the narrow ground that the plaintiff was at least entitled to recover for the 5/4 and 6/4 oak actually delivered and not paid for, unless the jury found that order 671 was unqualifiedly accepted, or that the damages arising out of the failure to.deliver all of the 4/4 lumber specified in order 670 exceeded the amount due for the 5/4 and 6/4 lumber actually delivered.

The judgment is affirmed.


author: Henderson, J.,

text:
    Levin, Appellant, v. Houck.

      Deed — Reservation—Spring—Water—Water pipe — Particular use.

    Where a landowner in conveying by deed certain land adjacent to that on which he resides, reserves to himself a right to entry for the purpose of maintaining a spring “which supplies water for the premises where he now resides,” and also for the purpose of maintaining a pipe line which conducted the water from the stream to the premises where he resided, and there is no restriction imposed as to the quantity of water, or the uses to which it is to be applied, there is nothing to prevent the grantor from connecting the pipe line from the spring with another pipe line so as to carry a portion of the water over his premises, to another property owned by himself and his brother.
    Argued March 7, 1910.
    Appeal, No. 27, March T., 1910, by plaintiff, from decree of C. P. Pike Co., Oct. T., 1908, No. 2, dismissing bill in equity in case of Isidor Levin v. John D. Houck.
    Before Bice, P. J., Henderson, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Staples, P. J.,' found the facts to be as follows:
    ' This case came on to be heard by this court sitting in equity, on bill and answer, and, acting under the practice in a case of this kind, where the facts, as alleged, are not denied, or disputed, the court finds that on June 30, 1904, John D. Houck, the defendant, above named, conveyed to the plaintiff, his heirs and assigns, two certain lots or pieces of land situate partly in the townships of Coolbaugh and Barrett, Monroe county, Pennsylvania, and partly in the township of Greene, Pike. county, Pennsylvania, and that the spring, about which the dispute arises, was situate in that part of the said lands contained in the said township of Greene, Pike county.
    The deed or conveyance by which said lands were conveyed, contained, inter alia, the following:

      “The said John D. Houck also reserves for himself,' his heirs and assigns the right of entry upon said premises with workmen, horses and appliances for the purpose of maintaining and improving the spring located on Tract No. 2, which supplies water for the premises where he now resides, and also for the purpose of maintaining, repairing and renewing his pipe line which conducts the water to the premises where he now resides, the course of which said pipe line is as follows Beginning at the said spring, thence south sixty-six degrees west two perches south forty-seven degrees west four perches, south seventy-two degrees west three and two-tenth perches, north sixty-one and one-half degrees west fifteen perches, north seventy-eight degrees west, two and seven-tenth perches, north eighty-six degrees west five and two-tenth perches, north seventy-five degrees west five and two-tenth perches, north sixty and one-half degrees west, five and two-tenth perches, north fifty degrees west seven perches, north sixty-one degrees west six perches, north fifty degrees west three and six-tenth perches, north twenty-four and one-half degrees west four perches, north sixteen and one-half degrees west two and one-half perches, north thirty degrees west four perches, north forty-four and oné-half degrees west eight perches, north thirty-five and one-half degrees west, eight perches, north forty-six degrees west eleven and four-tenth perches to the point in the road leading from LaAnna to German Valley, the division line between the land hereby conveyed and other land of the said John D. Houck.
    “The said John D. Houck also reserves for himself, his heirs and assigns, the special right of entry upon a tract of land surrounding the spring from which the water is conducted to his said premises, which said tract of land extends one hundred and fifty feet in every direction from said spring, for the purpose of protecting and improving said spring, and for the further purpose of preventing the felling or removal of any timber growing thereon, or the commission of any other act which might have a tendency to destroy or decrease the supply of water furnished by said spring.
    “This conveyance is made under and subject to the express condition that no timber growing upon said tract No. 2, within a radius of one hundred and fifty feet from said spring, shall be felled or removed by the said Isador Levin, his heirs or assigns, without the written consent of the said John D. Houck, or his heirs or assigns, nor shall any other act be committed tending to destroy or decrease the supply of said spring or to prevent and hinder the maintenance and improvement of said spring.”
    The said pipe which conducted the water was two inches in diameter at the place of its connection ■ with said spring, and where connection was made with the house in which the said defendant was residing at the time of the execution of the deed, the diameter of the said pipe was one and one-fourth inches, and that he afterwards made a connection with the said pipe line with another pipe line running across the premises of the defendant in a southerly direction to the South Sterling road, under'and across said road, and emerging upon the ground of other property, owned by him and his brother, Charles D. Houck, so that the water is running continuously from said spring through said pipe upon the ground for the use and convenience of the occupants of the houses, viz.: — himself and his brother, Charles Houck.
    There is nothing in the case, from which a finding of fact could be established, that the use of the pipe and the water, as above stated, took any more water from the spring than it had before the connection was made, nor that previous thereto any of the waters of said spring flowed in any other direction and was used by the plaintiff, nor that h¿ suffered any appreciable injury from the use of the water as it has been used since said connection of the pipe was made; and, while the plaintiff alleges that he has been and is injured by said connection with said pipe, he does not allege in what way, nor is the court able from this bill, to conclude that he has suffered or is suffering any damage by the alleged unlawful act of the defendant.
    July 20, 1910:
    The court entered á decree dismissing the bill.

      Error assigned was the decree of the court. -

      George S. Munson, with him H. Gordon McCouch, for appellant.
    If there is any doubt or ambiguity raised by the language of the deed the ordinary rule of law applies: that the reservation must be construed most strongly against the grantor; in this case the defendant, John D. Houck: Klaer v. Ridgway, 86 Pa. 529.
    The fact that the defendant might use the spring for “the premises where he now resides,” gave him no right, if the water was not thus exhausted, to increase the size of the pipe line, to extend the same into different localities, and there sell the water or give it away as he saw fit: Woodring v. Hollenbach, 202 Pa. 65; Com. v. R. R. Co., 24 Pa. 159; Hacke’s App., 101 Pa. 245.

      W. A. Erdman, with him H. T. Baker, for appellee.—
    It seems to us that our case is distinctly within the ruling of this court in Corey v. Edgewood Boro., 18 Pa. Superior Ct. 216. See also Davis v. Hamilton, 6 Pa. Superior Ct. 562; Cress v. Varney, 17 Pa. 496; Taylor v. St. Helens, L. R. 6 Chan. Div. 264; Watkins v. Peck, 13 N. H. 360.
   Opinion by

Henderson, J.,

This case was heard on bill and answer and the solution of the question involved is to be arrived at by the construction given to the reservation or exception in the deed from the defendant to the plaintiff for the land on which the spring is situated. Prior to that conveyance the defendant had maintained a line of pipe from the spring to the premises where he resided and the substance and essence of the reservation is that the grantor did not part with the water right there existing but on the contrary guarded against its impairment or diminution by the restrictions, limitations and conditions in the deed set forth. There is no express' reservation of the water. The conditions existing on the ground were apparently taken notice of by the grantor and. the grantee and the continuance of the water supply provided for. The grantor retained control over the spring for the purpose of maintaining and improving it and the grantee covenanted that he would not do any act tending to destroy or decrease the supply of the spring or to prevent or hinder the maintenance and improvement thereof. As additional security for the preservation of the water privilege the grantor reserved the right of entry over the land around the spring for a distance of 150 feet in every direction from the spring for the purpose of protecting and improving it and for the further purpose of preventing the cutting of any timber growing thereon or the commission of any act tending to decrease the supply of water furnished by the spring. The situation at the time of the grant was this: The spring on the farm to be conveyed was a source of water supply; this supply was made use of by a pipe two inches in diameter at the spring and for a considerable distance and one and one-fourth inches for the remainder of the distance through the farm. Water was constantly flowing through this pipe for the use of the grantor. In making the conveyance of the farm he withheld as much thereof as insured to him a flow of water from the spring; he did not limit himself as to the quantity to be taken and it cannot be doubted that the understanding of the plaintiff was that the defendant was to have all the water which would flow through the pipe. Whether under the terms of the reservation anything more was withheld we need not now consider, but we have no doubt that the defendant was entitled under the terms of his grant to have as much of the water of the spring flow away from the farm as the pipe then in place would permit. The reference in the reservation to “the premises where he (the grantor) now resides” we regard as descriptive merely of the pipe to which the reservation applies. It did conduct the water to the defendant’s premises before the grant and does still. Whether any other pipe is connected with the spring we are not informed, but the reference to the grantor’s premises as descriptive of the pipe was not inappropriately made. No restriction was imposed as to the quantity of water or the uses to which it was to be applied, and we cannot regard the terms of the grant as controlling or regulating the conduct of the defendant in the use to be made of the water after it reaches his farm. The location of the pipe on the land conveyed is fixed by courses and distances, but this location terminates at the road. Beyond that the grantee did not undertake to regulate the direction in which the pipe should be laid or the uses to which the water should be applied. In Corey v. Edgewood Boro., 18 Pa. Superior Ct. 216, there was a reservation of “the right of way of the railroad now upon said land twenty-eight feet wide with a double track through, over and upon said land as said railroad is now located upon said land,” etc. At the time of the grant the railroad was used for the transportation of coal from certain mines to a trunk line railroad, but at a later time a portion of it only was used and that for the transportation of lumber on cars drawn by horses. The contention was that in view of the purpose for which the railroad was built and used at the time of the grant the implication was that the parties in making the reservation intended that the right of way was only to be used for the transportation of coal from the Hampton Coal Mines and that when coal should cease to be taken from the mines the right of way should revert to the adjoining owner. Under such circumstances the language of the deed was held to be descriptive of the location of the railroad on the grantor’s land and not of the use to be made of it. In like manner in Davis v. Hamilton, 6 Pa. Superior Ct. 562, the grant was “of the free use and privilege of a certain stream of water which now runs through to the property hereinbefore conveyed and the unobstructed right of conveying said water in an open race, or water course to the saw, plaster and feed mill as it is now running,” etc. This was held not to give to the successors in title to the grantor a right of action against the grantee or his successors in title for changing the use to which the water is put, and this is in accordance with the doctrine that a construction of a grant which would restrict the grantee to the specific use for which it is first applied is not favored and will not be adopted unless the language of the grant unmistakably indicates an intention to restrict the use: Cress v. Varney, 17 Pa. 496; 4 Leading Cases on Law of Real Property, 334. The appellant contends that the decision in Woodring v. Hollenbach, 202 Pa. 65, should control this case, but it will be seen on examination of that case that the water reserved was expressly limited to the use of the grist mill. The court held that water for the use of the grist mill clearly meant that the water should be used as the power in operating the mill and that this was a restriction of the use to that particular purpose. There is no room for debate on the proposition that where there is a clear and express restriction of the use to a particular purpose this is a restriction against any other use. But the deed under which the appellant claims contains no designation of the use to which the water shall be applied and we find nothing in the deed from which any inference to that effect can be drawn. The learned judge who heard the case gave it careful consideration in the opinion filed and reached a conclusion which the plaintiff’s title supports.

The decree is affirmed.


text:
    Brace, Appellant, v. Kirby.

      Negligence — Stairway in department store — Evidence—Province of court and jury.

    1. In an action by a woman against the proprietors of a department store to recover damages for personal injuries caused by a fall on a stairway in the store, there is no case for the jury, where the only evidence offered by plaintiff as to the alleged negligence of the defendants was the testimony of one man who stated that owing to a similar accident to his wife he had carefully watched the stairway in question, and that three months prior to the accident he noticed that the metal plate on the particular step on which plaintiff fell, was raised about one-sixteenth of an inch; that shortly before the accident it was raised about a quarter of an inch, and that it was “hardly noticeable,” and this testimony is not supported by any statement of the witness that he had attempted by measurement to verify the opinion which he offered.
    2. The general rule is that a man is answerable for those consequences of a fault which are natural and probable, and might therefore be foreseen by ordinary forecast, but an individual is not presumed to contemplate the coincidence of events having no probable or natural connection in the mind, and which cannot by ordinary thoughtfulness be foreseen as likely to happen in consequence of the act in which he is engaged.
    Argued March 7, 1910.
    Appeal, No. 8, March T., 1910, by plaintiffs, from judgment of C. P. Luzerne Co., Oct. T., 1906, No. 348, for defendants non obstante veredicto in case of Barbara Brace, by her next friend and father, Martin Brace, and said Martin Brace, each in her and his own right, v. F. M. Kirby & F. J. Weckesser, partners, doing business under the firm name of F. M. Kirby & Company.
    Before Rice, P. J., Henderson, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Fuller, J.
    The facts are stated in the opinion of the Superior Court.

      July 20, 1910:
    At the trial the jury returned a verdict in favor of the plaintiffs. The court on motion entered judgment for defendants non obstante veredicto.

      Error assigned was in entering judgment for defendants non obstante veredicto.

      Chas. M. Bowman, with him B. R. Jones, for appellants.
    The case was for the jury: Bloomer v. Snellenburg, 221 Pa. 25; Polenske v. Lit Bros., 18 Pa. Superior Ct. 474; Smith v. Jackson Twp., 26 Pa. Superior Ct. 234; Kitler v. Ry. Co., 27 Pa. Superior Ct. 602; Delvin v. Beacon Light Co., 198 Pa. 583; Boggs v. Ry. Co., 216 Pa. 314; Lamb v. Phila., etc., Ry. Co., 217 Pa. 564; Sturtz v. R. R. Co., 225 Pa. 249; O'Donovan v. Philadelphia Company, 223 Pa. 234.

      W. J. Trembath, with him F. J. Wheaton, for appellees,
    cited: Huey v. Gahlenbech, 121 Pa. 238; Reese v. Clark, 146 Pa. 465; Green v. R. R. Co., 214 Pa. 240; Burns v. Bradford, 137 Pa. 361; Kelchner v. Nanticoke Boro., 209 Pa. 412.
   Opinion by

Head, J.,

While descending the stairway which connected the first and second floors of the department store conducted by the defendants in the city of Wilkes-Barre the plaintiff suffered a fall. She alleges that this fall and its consequent injuries resulted from the negligence of the defendants. The burden was upon her, therefore, to show by testimony some negligent act or omission on the part of the defendants which was the proximate cause of her injury.

That a woman, dressed and shod in the customary manner of females in these modern days, should suffer a fall while descending a stairway is unfortunately not such a rare occurrence that in and of itself it should raise any presumption of negligence on the part of the proprietor of the stairway. In other words, there is no room in this case for the application of the doctrine res ipsa loquitur. The plaintiff testifies that the accident occurred when she stepped on the third step of the stairway beginning at the top. Although she was presumably herself exercising all the care that an ordinarily prudent woman would, she saw no obstruction whatever on the step and was unable to testify what caused her fall. The witnesses who saw the accident were not called by her, but after-wards testified favorably to the defendants. Her case, as she presented it, necessarily depended on the testimony of one Walsh who was not present at the time she fell.

The attitude of the witness Walsh to this case was somewhat unusual. He testifies that some six months preceding the time of the plaintiff’s injury his wife suffered a fall on the top or first step of the same stairway. The causé of her fall or the conditions attending it were, of course, matters foreign to the inquiry in the present case and the record discloses nothing concerning them. The witness, however, who was a member of the bar, declared that during the months following his wife’s injury he frequently visited the defendants’ store and kept up a careful inspection of this stairway. He testifies that in April, preceding the plaintiff’s accident in June, he first noticed the plate on the third step, being the one on which the plaintiff fell. He says, “When I first saw it, it might have been raised in the neighborhood of about, well, may be one sixteenth of an inch. You could just notice that it was raised.”

It appears that these steps were covered with metal strips, as is customary on stairways in public buildings. These plates were held in place by a number of screws. The metal strip, having been laid down on the tread of the wooden step, of course projected above it to the extent of its own thickness. Now the witness does not pretend at any time to have made any measurement whatever to verify the accuracy of the guess or opinion so cautiously hazarded in the language we have quoted. He further says that in June, shortly before the plaintiff’s accident, he again observed this plate, and being asked as to its condition then answered: “Well, I should judge be [it was] raised about a quarter of an inch.” At another place in his testimony, in answer to a similar question: “Well, I think that it give probably a quarter of an inch.” He further undertook to say that the head of one screw in the plate projected very slightly above the surface of the plate. When asked how far it projected, he answered, “Oh, not very far. It was hardly noticeable.”

Stripped of all irrelevant matter, this seems to be about the gist of the testimony offered by the plaintiff upon which the jury was asked to predicate the conclusion that the defendant had been guilty of negligence in permitting the plate on this particular step to become loosened and raised, and that this negligence was the proximate cause of the plaintiff’s injury.

It is not alleged that the defendants were in any fault in the construction of the stairway or in the use of the metal plates covering its steps! It is not alleged that any notice was ever given to the proprietors of the store, or any of their servants, that one of these plates had become loosened. The plaintiff’s case then must rest on the theory that reasonably frequent inspections, conducted with ordinary prudence and care, would have revealed that this particular plate had. become dangerous, and the necessary repairs would thus have been made. So far as this record shows, no other person save one, the witness Walsh, had observed even the minute defect in this plate which he describes. His judgment that it had become, raised, even to the extent of the small fractional part of an inch, to which he testifies, was not the result of any measurement, but simply of the impression produced by his view of that step from some point which he does not locate.

It is incredible that he could have regarded this very slight raising of the metal plate, which he thought he observed, as pregnant with any danger to the hundreds of people who must have daily descended that stairway. Otherwise, the commonest impulse of humanity would have led him to bring it to the notice of those who could have repaired it. His failure to do so can only be fairly ascribed to the fact that, as he himself says, “you could just notice it,” or “it was hardly noticeable.” We do not think the plaintiff in this case, whilst descending the stairway, was in a position similar to that of the plaintiff in Bloomer v. Snellenberg, 221 Pa. 25, or in Polenske v. Lit Brothers, 18 Pa. Superior Ct. 474. Nor did the law impose upon these defendants as careful a scrutiny of its stairway as it was probably subjected to while being so closely watched by the witness for purposes of his own. The measure of their duty was such inspection of their stairway as persons of reasonable and ordinary care and prudence would give.

Taking the testimony as a whole we agree in the conclusion reached by the learned judge below that the plaintiff failed to show a negligent act on the part of the defendants which was the proximate cause of her injury. On this question the law has been frequently declared by the courts. In Fairbanks v. Kerr, 70 Pa. 86, Justice Agnew used the following language: “ It was said in Morrison v. Davis & Co., 20 Pa. 171, the general rule is, that a man is answerable for the consequences of a fault only so far as the same are natural and proximate, and as may, on this account, be foreseen by ordinary forecast, and not for those which arise from a conjunction of his fault with other circumstances that are of an extraordinary nature.” So in Bannon v. Penna. R. R. Co., 29 Pa. Superior Ct. 231, it was said by our Brother Orlady: “The general rule is that a man is answerable for those consequences of a fault which are natural and probable, and might therefore be foreseen by ordinary forecast, but an individual is not presumed to contemplate the coincidence of events having no probable or natural connection in the mind, and which cannot by ordinary thoughtfulness be foreseen as likely to happen in consequence of the act in which he is engaged.”

The defendants were not insurers. Whilst we have learned to ward off and prevent injuries to life and limb from many causes that formerly threatened them, it is hardly to be doubted that the requirements of modern civilization, especially in crowded cities, have introduced others perhaps no less dangerous. Painful and regrettable accidents will still occur, for the consequences of which human law affords no remedy. Keeping within the well-defined limits of the law which determine that legal responsibility for a physical injury exists, only when that injury naturally and probably follows some failure, on the part of the defendant, to observe that degree of care which is characteristic of ordinarily prudent persons; we are of the opinion the evidence falls short of planting the plaintiff’s case within those limits.

The learned trial judge, in entering judgment for the defendant n. o. v., points out the extreme physical improbability of this accident having happened in accordance with the plaintiff’s theory of the case. Even if we agree that such a consideration was for the jury rather than the trial judge, we must still hold that the testimony of the plaintiff fails to disclose any sufficient foundation for the conclusion that the defendants were responsible for the injury she unfortunately suffered.

Judgment affirmed.