text:
    Detroit Savings Bank v. Towers, Appellant.

      Promissory notes — Defenses—Notice—Evidence.
    Where several promissory notes are given to secure the deferred payments on a machine guaranteed by the seller, and three of the notes are discounted by a bank, the third subsequently to the payment of the first, the maker cannot defend in a suit by the bank on the third note, because the bank prior to the discounting of any of the notes had through its president, inspected the contract for the purchase of the machine showing the guaranty and the right of the purchaser to defend against the payee for a breach of the guaranty, and providing that the notes were to be “with discount.”
    Argued Nov. 17, 1909.
    Appeal, No. 166, Oct. T., 1909, by-defendant, from judgment of C. P. Chester Co., Jan. T., 1909, No. 32, on verdict for plaintiff in case of Detroit Savings Bank v. Michael Towers.
    Before Rice, P. J., Henderson, Morrison, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit on a promissory note. Before Butler, J.
    The note was as follows:
    “Phcenixville, Pa., May 20, 1908, three months after date I promise to pay to the order of Woodbridge Machine Works at the National Bank of Phcenixville, One Thousand Dollars without defalcation for value received.
    “ (Signed) Michael Towers.”
    Indorsed as follows: Woodbridge Machine Works, J. S. Woodbridge; the Detroit Savings Bank, Detroit, Mich.; Corn Exchange National Bank, Philadelphia; Farmers’ & Mechanics’ National Bank of Phcemxville.
    The note was given in pursuance of the following contract:
    “This agreement, made this 19th day of February, a. d. 1908, by and between John S. Woodbridge, trading as Wood-bridge Machine Works, of Detroit, Wayne County, Michigan, party of the first part, and Michael Towers, of Phcenixville, Pa., party of the second part.
    “Witnesseth, That the party of the first part undertakes and agrees to manufacture, sell, deliver F. O. B. Cars Detroit, and set up in the plant of the Schuylkill Valley Match Company, at Phcenixville, Pa., the following described machine, at the prices and upon the terms hereinafter set forth, to-wit:
    “One continuous double dip match machine to contain 1,800 cold rolled steel plates — one set of cutters — paraffine pan and pot, to be fitted with brass or copper coils; also 100 extra steel plates and 100 extra cutters for said machine.
    “Party of the first part guarantees that the above mentioned machine shall be constructed of the best material, and shall be of first-class workmanship in every particular, and when delivered and erected shall be in good working order and do good work, and shall have a match cutting speed of 200 strokes a minute.
    “Party of the first part further guarantees that the said machine with proper care will last a life time by the renewal of such wearing parts as the slides, punches and cutters, which naturally will wear out in time.
    “Party of the first part agrees that the said machine shall be completed and delivered during April, 1908, and set up immediately after advice of its arrival at Phcenixville, barring all acts of Providence, serious fire, strikes, or other causes beyond his control.
    “The party of the second part hereby agrees to pay the said party of the first part for the above-named machine the sum of Six Thousand Five Hundred Dollars ($6,500), as •follows, to-wit:
    “$1000 (One thousand Dollars) down upon the execution of this agreement, the receipt whereof by the party of the first part is hereby acknowledged.
    “$1000 (One thousand Dollars) every thirty (30) days from the date of this agreement until Six Thousand Dollars ($6000) is paid, and the remaining Five Hundred Dollars ($500) in thirty days (30) thereafter. The first payment cash, the balance in payments 3 months notes with discount.
    “In witness whereof the parties hereto have hereunto set their hands this day and year first above written.
    “Woodbridge Machine Works.
    “per Henry Stureo.
    “In presence of
    “Michael Towers.”
    Other facts appear by the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $1,046.02. Defendant appealed.

      Errors assigned were (1) in overruling an offer to prove a breach of the guaranty, and (2) in giving binding instructions for plaintiff.

      J. Frank E. Iiause, with him W. E. Bushong, for appellant.
    — Circumstances that might excite suspicions of a prudent man are very properly held not to be sufficient to justify proof of a defense that would be good between the original parties: Phelan v. Moss, 67 Pa. 59; McSparran v. Neeley, 91 Pa. 17; Bank v. Morgan, 165 Pa. 199; Post v. Ry. Co., 171 Pa. 615; Gazley v. Riegel, 16 Pa. Superior Ct. 501; Heard v. Shedden, 113 Ga. 162 (38 S. E. Repr. 387); Studebaker Co. v. Dickson, 70 Mo. 272.

      G. G. Cornwell, of Cornwell & Cornwell, for appellee.—
    Knowledge on the part of the holder, at the time he took the note, that it was not to be paid on a specified contingency, is not sufficient to defeat his right to recover, although the contingency had then happened, if he was ignorant of this fact: citing Adams v. Smith, 35 Me. 324; Ferdon v. Jones, 2 E. D. Smith, 106; Davis v. McCready, 4 E. D. Smith, 565; Bank v. Arnold, 187 Pa. 356; Swift v. Smith, 102 U. S. 442; Phelan v. Moss, 67 Pa. 59; Moorehead v. Gilmore, 77 Pa. 118; McSparran v. Neeley, 91 Pa. 17; Second National Bank v. Morgan, 165 Pa. 199.
    March 3, 1910:
   Opinion by

Head, J.,

This was an action by the indorsee of a negotiable promissory note against the maker. It is not denied that the note in suit, which was dated May 20, 1908, and called for the payment of 11,000, in three months after its date, was a negotiable instrument; nor that it was regularly discounted by the plaintiff bank on July 9, 1908, before maturity, for value, and in the regular course of business. The sole question presented by this record is, Was there any evidence of any notice to the plaintiff, at the time of the discount, of any fact which as between the plaintiff and the maker would destroy the negotiable character of the instrument and convert it from an absolute unconditional promise to pay, into a conditional obligation against which the maker might set up any defense that would have been available to him had the action been against him by the payee in the note?

It appears that in February of that year the maker of the note entered into a written contract with the Woodbridge Machine Works of the city of Detroit for the purchase of a match-cutting machine. In that contract the manufacturer guaranteed “that the above mentioned machine shall be constructed of the best material and shall be of first class workmanship in every particular, and when delivered and erected shall be in good working order and do good work, and shall have a match-cutting speed of two hundred strokes a minute. For this machine the purchaser agreed to pay $6,500 as follows: $1,000 down upon the execution of this agreement; $1,000 every thirty days until $6,000 is paid, and the remaining $500 in thirty days thereafter. The first payment cash, the balance in payments three months notes with discount.”

The evidence further discloses that after the machine company had received these notes it endeavored to have at least several of them, and perhaps all of them, discounted by the plaintiff bank, and that in seeking to effect this arrangement the machine company exhibited to the president of the plaintiff bank the contract, the material parts of which we have quoted. The plaintiff bank then agreed to discount one note dated March 20, 1908, and calling for the payment of $1,000. The discount was made on March 26, and the note remained in the hands of the plaintiff bank until its maturity, when it was forwarded for collection and duly paid by the maker without objection on June 26. Meantime, on April 24, the bank discounted another note of this series, dated April 20, for a like sum, and this note was likewise retained by the bank until its maturity, and was paid by the maker without objection on July 20.

On July 9, the plaintiff bank made a third discount, of the note in suit, which was already stated was dated on May 20. When this note matured it was also forwarded for collection, but the maker declined to pay it, and this action followed. The maker alleges that as between him and the payee, there was a breach of the latter’s contract of guaranty, in that the machine would not do the work stipulated for in his contract, and because this contract had been, prior to the discount of the first note, exhibited to the president of the bank, it is contended that the maker may successfully interpose in this action the defense he might have made to an action by the machine company to recover any unpaid balance of the purchase price.

We cannot attribute any such effect to the mere inspection of the written contract by the president of the bank, even if by reason of that fact the bank is visited with full knowledge of every fact in the agreement stated. It undoubtedly showed that there had been a legitimate commercial transaction between the payee and the maker, and that the notes were therefore given for value, and were not the mere accommodation paper of the maker. It further showed that the maker did not intend to retain in his own hands the purchase money, until it had been actually demonstrated that the machine was up to the guaranty, because the contract provided that he was at once to give his promissory notes for the purchase money. And the paper further bears internal evidence that it was within the contemplation of both of the parties that these notes would be, or at least might be discounted, because it is stipulated that the maker shall not only give notes but give them “-with discount.” We are unable to see anything in this contract, then, which would indicate to the plaintiff bank, after it had been read, that the maker’s obligation to pay his notes, even in the hands of an innocent third party, was to be conditional upon the performance of the machine. On the contrary, having taken an express guaranty from the seller, and at the same time having given promissory notes with discount, instead of retaining the purchase money or part of it in his own hands, the natural inference would be that he intended to rely, if the occasion arose, on the guaranty he had taken and the financial ability of the manufacturer to make good that covenant. And it certainly cannot be said that the record exhibits any evidence that there existed, in fact, any defense to the payment'of the note in suit at the time it was discounted, viz.: July 9, 1908, because ten days thereafter the defendant paid without objection the note of April 20, previously discounted.

We can see, therefore, no evidence of any fact calculated even to arouse the suspicion of a man of reasonable care that the maker had any defense to the note, and the doctrine that, where such suspicious circumstances existed, the maker might defend in a suit by the indorsee was long ago repudiated both in England and in this country. In McSparran v. Neeley, 91 Pa. 17, the note was mistakenly antedated and it was not stamped until after it was negotiated. In holding that neither of these facts were material, Mr. Justice Woodward said: “But while this has been conceded, it has been argued that the error should have created suspicion and led to inquiry. In Beltzhoover v. Blackstock, 3 Watts, 20, Judge Sergeant concurred in the position taken in Gill v. Cubitt, 3 B. & C. 466, that if an indorsee takes a note heedlessly, and under circumstances which ought to have excited the suspicions of a prudent and careful man, the maker or indorser may be let into a defense. In Phelan v. Moss, 67 Pa. 59, however, it was expressly declared that Gill v. Cubitt was not law in Pennsylvania, and it was decided that the existence of suspicious circumstances alone will not defeat an indorsee’s right to recover, but that in order to defeat his title mala fides on his part must be proved. So in State Bank v. McCoy, 69 Pa. 204, Judge Williams held, that even 'if the evidence had made out a case of gross carelessness on the part of the bank that alone would not have been sufficient to defeat his title to the note. There must have been proof that the bank took it mala fides or with notice of the fraud.’ And it was said in Moorehead v. Gilmore, 77 Pa. 118, that 'the latest decisions, both in England and this country, have set strongly in favor of the principle that nothing but clear evidence of knowledge or notice, fraud or mala fides can impeach the prima facie title of the holder of negotiable paper taken before maturity.’ ”

In Craig v. Sibbett & Jones, 15 Pa. 238, Gibson, C. J., said: “There is no plausible pretext for refusing to pay this bill; for it is not pretended that the plaintiffs below, who discounted it in the regular course of their business, did any act which was not consistent with perfect good faith. They knew it was drawn against flour supposed to have been shipped in a regular course of dealing between the drawer and the acceptors; but they had discounted other bills between the parties, which were paid at maturity; and if they had not, they would have had no reason to suspect that a fraud was meditated by the drawer in this particular instance.” See also Moorehead v. Gilmore, 77 Pa. 118; Bank v. Morgan, 165 Pa. 199; Bank v. Reneker, 18 Pa. Superior Ct. 192.

In the light of these decisions and many others which might be cited, we can reach no other conclusion than that the learned court below was right in holding that the defend-, ant, in the offer which was refused, presented nothing which would enable him to successfully defend against the payment of his own negotiable note which had been discounted by the plaintiff before maturity, for value, in the usual course of business, and without any notice of any defense then existing which, could be set up by the maker. The assignment of error is therefore overruled.

Judgment affirmed.


source: Caselaw Access Project

author: Head, J.,

license: Public Domain

text:
    Yerkes v. Osborne, Appellant.

      Brokers — Real estate brokers — Commissions—Principal and agent.

    Where a real estate broker was authorized to sell an entire property for a specific sum, and he receives an offer of a less sum which is rejected, but subsequently the owner without the further intervention of the broker sells to the person who made the offer to the broker, one-half the property for a sum less than the price put on the property by the owner, the latter is not entitled to commissions on the sale, inasmuch as he did not bring about the sale of the entire property.
    Argued Nov. 17, 1909.
    Appeal, No. 170, Oct. T., 1900, by defendant, from judgment of C. P. Chester Co., April T., 1908, No. 18, on verdict for plaintiff in case of William T. Yerkes v. Julia F. Osborne.
    Before Rice, P. J., Hendeeson, Moeeison, Head, Beavee and Poetee, JJ.
    Reversed.
    Assumpsit to recover commissions on the sale of real estate. Before Hemphill, P. J.

      The facts are stated in the opinion of the Superior Court.
    The court gave binding instructions for plaintiff.
    Verdict and judgment for plaintiff for $113.93. Defendant appealed.

      Error assigned was in giving binding instructions for plaintiff.

      J. Frank E. Hause, with him Joseph E. Sagebeer, for appellant,
    cited: Keys v. Johnson, 68 Pa. 42; Glendenon v. Pancoast, 75 Pa. 213; Pratt v. Patterson, 112 Pa. 479; Kifer v. Yoder, 198 Pa. 308; Turner v. Baker, 225 Pa. 362; Samuels v. Luckenbach, 205 Pa. 428; Earp v. Cummins, 54 Pa. 394; Hartley v. Anderson, 150 Pa. 391; Johnson v. Seidel, 150 Pa. 396; Burchfield v. Griffith, 10 Pa. Superior Ct. 618.

      A. M. Holding, with him D. P. Hibberd, for appellee,
    cited: Keys v. Johnson, 68 Pa. 42; Gibson’s Est., 161 Pa. 177; Seabury v. Fidelity Ins., etc., Co., 205 Pa. 234.
    March 3, 1910:
   Opinion by

Head, J.,

It is conceded that the defendant, who was the owner of certain real estate, authorized the plaintiff, a broker or agent, to sell at the price of $6,500. It is not claimed, however, that his right to sell was exclusive for any given time. The owner therefore retained the power to revoke the authority at any moment before it was actually executed and to sell the property herself. Such revocation and sale, however, would not be conclusive against the plaintiff’s right in an action to recover commissions.

The property had a frontage of 161 feet. The improvements, house, stable, etc., were so located as to leave about one half the frontage vacant. As already stated, the desire of the owner was to sell the entire property, and her price therefor was $6,500. It was this property and at this price the plaintiff undertook to sell, and his commission of two per cent was predicated on the proposition that he would effect such a sale, or do what was in the eyes of the law equivalent thereto. He himself says: “ Q. You were to have two per cent, if you effected a sale? A. If I effected a sale, yes, sir.”

It is also agreed that the plaintiff succeeded in interesting one Alexander in the property to a sufficient extent that he went on several occasions to look at and examine it. The plaintiff says, Alexander made an offer of $5,000 for the property, and that this offer was communicated to the owner and flatly refused. He does not allege that he ever received any other offer for what he had on sale, or that he ever sought or secured any authority to split up the property and sell it in parts, or that he ever suggested, either to the owner or to Alexander, the possibility or probability that such a disposition of it might be advantageously made. In a word, the plaintiff agrees that with the offer from Alexander and its refusal by the owner, his active efforts towards a sale of the property ceased. He does allege that Alexander promised, at their last meeting, to still further consider the' proposition to purchase the entire property, although he admits on cross-examination that Alexander told him he had no use for the building lot and did not want it.

Some time later Alexander sent his lawyer, a member of the Philadelphia bar, to the owner with an offer to purchase one half of the property with the buildings thereon for $5,250. She accepted the offer and made the sale. Upon this state of facts the plaintiff claims that, under his contract, there accrued to him a commission of two per cent on the purchase price, and the learned court below directed a verdict in his favor for that amount.

It would seem to be clear that the plaintiff never effected a sale of the property that was placed in his hands; that he never procured a purchaser to whom the defendant sold the same property after he had begun the negotiations; that he never furnished a party who was ready and able and willing to contract for the property on the terms named; and it was not through any act or default of the defendant owner that he was unable to do what he undertook to do in consideration of the payment of the commission he sues for, to wit, effect a sale of the property on the terms submitted by the owner.

On what ground, then, can he successfully base his claim for the recovery of commissions? In the recent cases of Turner v. Baker, 225 Pa. 359, and Thompson v. Goldman, 41 Pa. Superior Ct. 209, the Supreme Court and this court have reviewed the leading Pennsylvania cases on this subject and stated the true conclusions to be deduced therefrom. '

In Turner v. Baker, 225 Pa. 359, the case for the plaintiff was a stronger one than that presented in this record, for the reason that the plaintiff there had an exclusive right to sell, which was to continue until he had received a ten days’ written notice of the revocation by the principal of the authority given. Mr. Justice Elkin there said: “The principal did not give the ten days’ withdrawal notice, as required by the contract, which the broker insists was still in force when the sale was made by the principal. The right to recover the commission under these circumstances is asserted on two grounds, first, that a sale made by any person while the contract remained in force entitled the broker to the stipulated commission, and second, that the commission was earned by the broker producing a purchaser who was ready, able and willing to buy the property. The first proposition cannot be sustained for the reasons hereinbefore stated; the second contention depends upon the facts.” He had previously shown that the broad rule contended for by the plaintiff in that case did not prevail in Pennsylvania.

In Thompson v. Goldman, 41 Pa. Superior Ct. 209, this court said: “ If the plaintiffs arc to recover the commission named in their contract for a sale of the property, they must show that they had procured for the defendant a party with whom he was satisfied and who actually contracted for the property at a price acceptable to the owner; or that it was through their efforts that the purchaser was secured to whom the defendant, after he wrongfully took the matter out of their hands, made the sale; or that even if they had not secured any binding contract from a proposed purchaser, they had actually produced to their principal a purchaser able and ready to perform his part of the proposal, so that a failure to complete an actual sale resulted alone from the fault or inability of the principal.” As already stated, the plaintiff here has wholly failed to put himself in any one of these categories.

We have not before us the question whether or not the property sold by the owner to Alexander was substantially the same property concerning which the plaintiff had negotiated with the same purchaser. The evidence clearly shows that what the owner subsequently sold was but the half in area of what she authorized the plaintiff to sell. It may have been the more valuable portion by reason of the fact that it carried the improvements, but this would not be sufficient to warrant the conclusion that what was sold by the defendant was substantially the same thing which the plaintiff had previously been authorized to sell. There is evidence also from the plaintiff himself that what the owner retained after her sale to Alexander had been originally purchased by her as a lot separate and distinct from the adjoining one upon which the buildings were erected.

The material facts in the present case are closely similar to those in Samuels v. Luckenbach, 205 Pa. 428. In that case the plaintiff, a broker, was authorized to sell one of two tugboats owned by the defendant at prices agreed upon, and in case he effected a sale, was to receive a commission of five per cent. He produced a prospective purchaser who examined the two tugboats which the plaintiff had been authorized to sell, but declined to purchase either. This same party then negotiated with the owner concerning a third tugboat owned by him, and actually bought it. The plaintiff thereupon brought an action for his commissions on the theory that he was the efficient cause which brought to the defendant the purchaser who actually bought the boat. The learned trial court permitted him to recover, but the Supreme Court in an opinion by Mr. Justice Mitchell reversed the judgment and entered one in favor of the defendant. It was there said: “There was no question that the purchaser had gone to defendant in consequence of his previous communication with plaintiff, but the testimony was conflicting as to whether or not he informed the defendant of that fact; it was not, however, material whether he did or not. The contract between plaintiff and defendant conveyed no general authority, even by implication. On the contrary, the agency was expressly limited to the specific boats named, at specified prices, and neither of them was sold. As to any other boat, even if his communications with the purchaser be considered as the efficient means of the sale, the plaintiff was only a volunteer, without precedent authority or subsequent acceptance of his services as an agent.”

So here, the only authority ever given to the plaintiff was to sell the entire property at a specified price. It is not contended that he ever sold it, nor that anybody else did. He never sought nor received authority to sell a different thing, to wit, the one-half of the property with the buildings on it. Nor did he ever know whether or not the owner would consider the making of such a sale or the price at which she would hold that portion of the property.

We are of opinion, therefore, that the learned trial court, upon the record as it stood at the conclusion of the trial, should have affirmed the defendant's point for binding instructions, or, failing in that, he should have afterwards granted the motion for judgment notwithstanding the verdict.

Judgment reversed, and judgment n. o. v. now entered for the defendant. The costs of this appeal to be paid by the appellee.


author: Henderson, J.,

text:
    Wysox Township Road.

      Road law — Township—Public officers — Act of April 12, 1905, P. L. 142 — Constitutional law.

    1. The purpose of the Act of April 12, 1905, P. L. 142, was to make the name of the officers of all of the townships of the second class “supervisors” whatever may have been the name of the official exercising the function of the officers commonly known as the supervisors of highways in the various counties.
    2. The Act of April 12, 1905, P. L. 142, sec. 14, is not a revival, amendment, extension, or conferring of the provisions of another act within the prohibition of sec. 6 of art. Ill of the constitution of Pennsylvania.

      3. Under the Act of May 6, 1852, P. L. 622, the road supervisors in Bradford county have the right to lay out, change and vacate highways, and this right has not been abridged by the Act of April 12, 1905, P. L. 142.
    Argued Nov. 15, 1909.
    Appeal, No. 215, Oct. T., 1909, by Guy C. Hollon, from order of C. P. Bradford Co., Feb. T., 1909, No. 27, dismissing certiorari In re Vacation of Wysox Township Road.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Exceptions to certiorari.
    The return to the certiorari showed proceedings had by the road supervisors of Wysox township vacating a public road, as follows:
    “We, the undersigned Supervisors of Wysox Township, in pursuance to the within petition, after due notice to all parties interested, being duly sworn and qualified according to law, met upon the premises of the road proposed to be vacated, namely [description of road].
    “That we find the said highway fully supplied by other existing open traveled highways, and that the said highway now proposed to be vacated has become absolutely useless, inconvenient and burdensome, and is no longer needed for public use whatever, and we do therefore unanimously vacate the same, the same being an entire road and all as shown by the plot or draft of the same made by Hiram E. Bull, County Surveyor, hereto attached and made a part of this report, this 11th day of November, 1908.”
    The exception filed was as follows: “That the Supervisors of Wysox Township had no power or authority to vacate the said public highway, and their action in the premises was illegal.”
    The court in an opinion by Fanning, P. J. dismissed the writ of certiorari.

      Error assigned was the order of the court.

      J. C. Ingham, for appellant.'
    — The powers of commissioners of roads and highways, while including the duties of supervisors under the act of 1905, were much broader in their scope and covered functions never yet intrusted to supervisors and entirely beyond the contemplation of the Act of April 12, 1905, P. L. 142.
    The term “supervisor” as used in the act is to be given such construction, and is to include such powers and duties, as will best accord with the subject-matter of the act: Womelsdorf Alley, 8 Pa. C. C. Rep. 207; Small v. Small, 129 Pa. 366; Dryden v. Ry. Co., 208 Pa. 316.
    The construction placed upon this act by the court below would make it unconstitutional: Dorsey’s App., 72 Pa. 192; Com. v. Samuels, 163 Pa. 283; Hatfield v. Com., 120 Pa. 395; Road in Phœnixville, 109 Pa. 44; Com. v. Kebort, 212 Pa. 289.

      M. E. Lilley, of Lilley & Wilson, for appellee.
    — In a proceeding in Bradford county, under our local road laws, since the passage of the Act of April 12, 1905, P. L. 142, the local laws were held by the lower court, to be still in force, and on appeal the Superior Court affirmed the judgment, although the question of the effect of the act of 1905 was not raised in the appellate court: In re Vacation of Farrell Road, 35 Pa. Superior Ct. 86; Elsbree v. Keller, 35 Pa. Superior Ct. 497.
    March 3, 1910:
   Opinion by

Henderson, J.,

That portion of the Act of April 13,1843, P. L. 214, applicable to the several townships of the county of Erie, providing for the election of road commissioners therein and prescribing their duties was extended to Bradford county by the Act of April 5, 1844, P. L. 200. In addition to the duties of taking general charge and supervision of all the roads and bridges in -each of the townships of the county the road commissioners were empowered to lay out and alter roads in their respective townships in the manner prescribed in the act. By the Act of May 6,1852, P. L. 622, the road commissioners in the several townships of Bradford were given power and authority to change or vacate the whole or any part of any public road in the township excepting state roads which then had been or might thereafter be opened by authority of law. The Act of April 12, 1905, P. L. 142, is a general statute providing for the election and appointment of road supervisors in the several townships of the second class and defining their duties, etc. The fourteenth section of the act provides that the road supervisors of the several townships elected or appointed in pursuance of the act shall perform all the duties imposed by the existing laws on supervisors of roads, bridges and highways and shall be subject to the same responsibilities and penalties that supervisors are now subject to except in so far as changed or supplied by the terms of this act. The appellant contends that the effect of this statute is to divide the duties theretofore performed by the commissioners of roads and highways in the several townships between these officers and the supervisors provided for in the act of 1905, as a result of which there would exist in the townships of the county a board of road supervisors and a board of commissioners of roads and highways. The object of the act of 1905 was evidently to secure uniformity in the name of the officers having charge of the roads and bridges in the respective townships and to define ' certain duties of such officials. That it was not intended to create a new office or to apply only to cases in which the officials of the townships having charge of the roads were named “supervisors” but was to include the officials of every township whose duties involved the care and control of the township highways is apparent in the first section of the statute. The officers are there declared to be “road supervisors,” and the proviso relates to any township which now has three supervisors “ or other officers having charge of roads elected under existing laws;” and in sec. 14 the road supervisors are invested with all the duties imposed by the existing laws on “supervisors of roads, bridges and highways.” The language used in these provisions convinces us that the legislative purpose was to make the name of the officers of all of the townships of the second class “supervisors” whatever may have been the name of the official exercising the functions of the officers commonly known as the supervisors of highways in the various counties. There is little difference in the duties of supervisors under the general Act of June 13,1836, P. L. 551, and those of the commissioners of roads under the local law except that the last named officials were given the power to lay out and vacate roads, but this latter power existed in the case of the supervisors in some instances under the early legislation relating to roads and is not a duty inconsistent with the exercise of the functions of the office of supervisor. It may be in the judgment of many that the power to lay out afid vacate is better vested in the court of quarter sessions, but it is an exercise of authority closely connected with the care and control of the township roads. As the first section of the act recognizes the existence of other officers than those named supervisors ” who have charge of roads and as other legislation on the subject of the management of roads discloses the same fact the conclusion is manifest that the use of the words “supervisors of roads, bridges and highways” in sec. 14 of the act was not made in a strict sense and with reference only to officers who were described by that particular name, but was intended to apply to all the officials in townships whatever their title might be who had the control and supervision of the township highways. The Act of May 24, 1887, P. L. 202, authorizing the road commissioners and other officers having in charge the opening, constructing and repairing of public roads, highways and bridges of any township of the commonwealth to purchase implements and materials shows the recognition by the legislature of the fact that the officers having the general duties of supervision in townships are variously named in the legislation creating the offices. This is further shown by the provision of the first section that where there are three supervisors or “ other officers having charge of roads” elected under existing laws no new election under this section shall be required except as the term of said road officer expires. Here there is a clear reference to officers performing the same duties as supervisors but under another name. It is contended, however, that the act is in violation of sec. 6 of art. Ill of the constitution, which forbids that any law “be revived, amended or the provisions thereof extended or conferred by reference to its title only, but so much as is revived, amended, extended or conferred shall be re-enacted and published at length.” The reply to this is that sec. 14 of the act of 1905 is not a revival, amendment, extension or conferring of the provisions of another act within the prohibition of the section of the constitution referred to. It takes the officer as it finds him, changes his name, confers certain general powers and by sec. 14 leaves him to perform all the duties imposed by the existing laws on such officers in their respective townships. Local convenience or experience demanded an extent of power in the road supervisors of one county different from that in other counties, and it was apparently not the intention of the legislature to repeal laws or disturb the existing order except to the extent flowing from the adoption of inconsistent provisions in the act of 1905. The reasoning of the court in Lloyd v. Smith, 176 Pa. 213, supports this view. In that case there was a consideration of the effect of the Act of June 27, 1895, P. L. 403, creating the office of county controller in counties having 150,000 and conferring on the county controller the duties theretofore imposed upon county auditors by the Act of April 15, 1834, P. L. 537, and the conclusion was that it did not violate the constitutional provision on which the appellant relies. We are satisfied that the learned judge of the court below reached a correct conclusion.

The judgment is affirmed.


text:
    Franczak v. Nazareth Cement Company, Appellant.

      Negligence — Master and servant — Safety appliances — Safe place to work — Contributory negligence — Custom.
    1. A servant is not required to act on his own judgment against that of his employer, and if the latter give him positive instructions to go on with a particular task he may recover for any injury received if the work is not imminently dangerous.
    2. Where a workman employed in a quarry, in hurriedly attempting to cross a track to avoid an approaching car, is directed by the foreman to stop and remove a stone on the track, with the assurance from the foreman that there is plenty of time for him to do so and get away, but is injured in the act, he cannot be charged with contributory negligence.

      3. Where the plaintiff in an accident case alleges that his injuries were caused by the failure of the defendant to use proper safety appliances, he must prove that the appliances used were not as well adapted to securing the safety of the operatives as the plans in use elsewhere. He cannot simply show that the method adopted by the defendant was not the same as generally used.
    Argued Dec. 8, 1909.
    Appeal, No. 127, Oct. T., 1909, by-defendant, from judgment of C. P. Northampton Co., Sept. T., 1908, No. 33, on verdict for plaintiff in case of John Franczak v. Nazareth Cement Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Stewart, J.
    The facts are stated in the opinion of the Superior Court.
    The court charged in part as follows:
    [When it comes to the appliances and the methods, which in this case would refer to this car and to this track, and the method of operating this car when it was to receive this rock that was dumped into it, there the rule of law is that this cement company would have discharged its duty to the plaintiff if it had furnished him with appliances of ordinary character and reasonable safety, and the former, that is, the ordinary character of this car or truck would be the test of its reasonable safety, because anything that is reasonably safe would be a car or a method that was safe according to the usages and habits and the ordinary risks of the business. What the people who are in that business would ordinarily use is what you want to get your minds on. The cement company is not bound to get the very latest thing by way of invention, or the very latest improvement that may be adopted. It is not what you think you would have used; that is not the test, but what was the appliance or the machinery that was ordinarily used by people in that line of business. And where a company furnishes that method of doing business, which is the ordinary method, it discharges its full duty toward its employees or workingmen.] [8]

      [Now, the plaintiff, by these superintendents, some of whom had some years of experience, some of whom have had experience in two or three or four plants and have observed what was done in these various cement plants, has undertaken to prove that this car should have had brakes, or that they should have used a block either of wood or of stone, and that having in view the fact that the defendant company was accustomed to dump large weights of stone of a ton or two into these cars at an angle of forty-five degrees, at a height which the witnesses have testified to, and which, as I remember it (although it is for you) was something over two feet, that dumping in that way, at that angle, had a tendency to make this car move forward by the stone falling in it, particularly when it fell toward the front of the car, and that they, in view of these circumstances should have had a brake, or should have used a block either of wood or of stone.
    The defendant, on the other hand, has called witnesses also, men of experience, and they have testified as to their knowledge of the various plants with which they are connected, a number of them had experience in different plants, and they have said, as I remember their testimony (although it is for you), that the method which the defendant used was a reasonably safe method according to the usual practice of people in that business in this county and the other counties, and that it was not dangerous; and they ask you to say that you cannot convict them of any negligence by reason of the fact that they did not furnish the plaintiff with the kind of tools and appliances which the law would compel them to furnish.
    The burden is on the plaintiff to satisfy you by the weight of the evidence of his contention with reference to this matter. If you believe that the defendant did all that the law required, according to this test which I have laid down, then your verdict would be in favor of the defendant in this case.] [9]
    [Now, gentlemen of the jury, it is for you to say, taking into connection the fact that this plaintiff saw, as I remember the testimony (although it is for you), six or seven cars that were brought up and loaded on that morning, whether he ought to have seen that this car would move forward in the way that the witnesses say it moved on this morning and caused this accident. If you believe that that movement of the car would not have been seen by a man of ordinary experience and understanding, that it was something which the defendant should have specially instructed the plaintiff about, then it would be some evidence of the defendant’s negligence upon that branch of the case, because it is the defendant’s business to give warnings of dangers of that sort if you believe that they existed in this case.] [10]
    [Was there anything in this case said by Brish to this man, John Franczak, because in my view of the case it is very important indeed. If Brish did not tell John that he had plenty of time when that car was approaching about fifteen feet off, as I remember it, being pushed as it must have been by Lewis Masurok and the other Hungarian who is not here, being pushed up when it was about fifteen feet off and when John had that stone in his hand about to throw over into the quarry, and when Brish himself was telling the men in the quarry below to look out, if he did not say those words to John, then John when he undertook to throw that stone over and to get back in time to avoid this accident would be guilty of contributory negligence.] [11]
    [But, if, on the other hand, you believe that Brish said this and that John relying on the judgment of his foreman instead of going over to the mill side, as I remember his testimony, he intended to do, relying upon what Brish said, went back and put the stone over the quarry and then in attempt-ring to get back to the other side was caught between the car and the post, he would not be guilty of contributory negligence.] [12]
    Verdict and judgment for plaintiff for $1,000. Defendant appealed.

      Errors assigned were (1-7) various rulings on the admission of expert testimony, quoting the bill of exceptions, and (3-12) above instructions, quoting them.

      G. F. Coffin, of Reeder & Coffin, for appellant.
    — The plaintiff was bound to make out a case clear of contributory negligence and this may be properly described as a burden, though a negative one: Heiss v. Lancaster, 203 Pa. 260; McDonald v. Iron & Coal Co., 135 Pa. 1; Dooner v. Canal Co., 171 Pa. 581; Cypher v. Coal Co., 149 Pa. 359; Bentley v. Planing Mill Co., 38 Pa. Superior Ct. 172; Schlemmer v. Buffalo, etc., Ry. Co., 222 Pa. 470.
    The general rule is that opinion evidence whether expert or nonexpert is inadmissible in respect of the dangerous character of work, situations, appliances, etc., when all the facts can be ascertained and made intelligible to the jury, or. when the subject is such as men in general are capable of comprehending and understanding: Dooner v. Canal Co., 164 Pa. 17; Graham v. Penna. Co., 139 Pa. 149; Cunningham v. Bridge Works, 197 Pa. 625; Bardsley v. Gill, 218 Pa. 56.

      Calvin 'Smith, of Smith, Paff & Laub, for appellee.
    — The duty of the defendant company is set forth in Rummel v. Dilworth, Porter & Co., 131 Pa. 509; Bannon v. Lutz, 158 Pa. 166; DeGrazia v. Piccardo, 15 Pa. Superior Ct. 107; McCray v. Varnish Co., 7 Pa. Superior Ct. 610; Lillie v. Foundry Co., 209 Pa. 161.
    The plaintiff was 'not guilty of contributory negligence: Doyle v. Pittsburg Waste Co., 204 Pa. 623; Reese v. Clark, 198 Pa. 312; Williams v. Clark, 204 Pa. 416; Maines v. Harbison-Walker Co., 213 Pa. 145.
    An employee is not presumed to know whether his employer has furnished appliances which are reasonably safe and in ordinary use in case of latent dangers, and in such case he is not chargeable with the assumption of the risk involved: Cunningham v. Bridge Works, 197 Pa. 625.
    March 3, 1910:
   Opinion by

Henderson, J.,

The plaintiff charged the defendant with negligence in three respects: failure to provide its stone cars with appliances to keep them in place during the.process of loading; in omitting to instruct the plaintiff, an inexperienced employee, of danger not obvious in the exercise of ordinary care, and in failing to provide the plaintiff with a safe place in which to work; and evidence was offered tending to support each of these allegations. The defendant was engaged in the manufacture of cement and this included the operating of a quarry out of which quantities of rock were elevated by a derrick hoist and dumped onto small cars in use to transport the rock to the mill. The cars were backed by hand into the derrick and the rock lifted from the quarry was conveyed to an elevation about two feet above the car and dumped at an angle of about forty-five degrees into the car. The momentum of this load of stone forced the car forward and the plaintiff was caught between it and one of the derrick posts thereby receiving a serious injury. He had been in the service of the company about ten years and at the time of the accident and for a long time before served in the capacity of water boy, carrying water to the quarries. lie had never before worked at this derrick and as claimed by him was not familiar with the operations there carried on. On the day of the accident he was removing from the track where the cars were loaded a lot of loose stone which had fallen from the cars in the process of loading. He had been engaged at this work for about fifteen minutes when he was hurt. The derrick hoist stood on the brink of the quarry where there was a sheer descent of about thirty-six feet to the bottom. The plaintiff’s evidence was to the effect that when the car was backed into the loading place he was standing on the ledge outside of the derrick where there was a space of two or three feet next to the quarry; that he was about to step across the track to get away from the car because of the risk he ran of being hit by stones from the derrick bucket and had gone about four feet toward the other side of the track when the foreman who was present directed him to pick up a large stone which had fallen from the car and throw it over into the quarry, at the same time assuring him that there was plenty of time. The plaintiff obeyed this instruction and immediately thereafter started to cross the track when the bucket of stone was dumped into the car, forcing the car against him and injuring him. Evidence was offered to show that the method of loading the car, with reference to its stability, was not the same as that used in other quarries and that it was more dangerous. The defense was that the defendant was not negligent in providing suitable appliances; that the method adopted was a usual and ordinary one in the business; that the plaintiff was not acting under the direction of the foreman in clearing the stone away from the track and that he was guilty of contributory negligence.. The assignments of error relate to the subject of contributory negligence, the competency of the evidence of experts on the manner of loading and some portions of the charge of the court. Giving credit to the plaintiff’s evidence, there is little basis for the contention that the plaintiff was chargeable with contributory negligence. It is true that six or seven cars had been brought to the derrick and taken away while he was employed about it that morning, but there is no evidence that he observed the effect of the discharge of the stone into the car or that he had reason to apprehend the danger which overtook him. Moreover, if he worked under the express order of the foreman and remained on the ledge to throw over the stone with the assurance that there was plenty of time for him to get away he had a" right to rely on the advice of his superior unless the danger was apparent. The servant is not required to act on his own judgment against that of his employer, and if the latter give him positive instructions to go on with a particular task he may recover for any injury received if the work was not imminently dangerous: Reese v. Clark, 198 Pa. 312; Maines v. Harbison-Walker Co., 213 Pa. 145; Levy v. Rosenblatt, 21 Pa. Superior Ct. 543. The plaintiff, then, not only had this assurance of sufficient time to get away but he was also as he supposed in danger of being struck by stone discharged from the bucket and knocked into the quarry below if he remained where he was. If in the emergency the choice of means of protection which he made proved to be least safe he is not to be charged with negligence on that account. It may be taken for granted'that in accepting the service imposed upon him he assumed such risks as were incident to its performance from causes which were so obvious that he had an opportunity to ascertain them, but as to special danger of the employment of which he had no knowledge and which was not apparent he was entitled to notice and his employer became liable if he failed to advise him of the risk. It is due to him that the dangers of the situation be pointed out and that he be instructed in the things he should know in order that he may provide for his own safety: Rummel v. Dilworth, Porter & Co., 131 Pa. 509; Lillie v. American Car & Foundry Co., 209 Pa. 161; DeGrazia v. Piccardo, 15 Pa. Superior Ct. 107. Many other authorities are to the same effect. The learned trial judge left to the jury the question whether the forward movement of the car was an obvious one which the plaintiff knew or should have known, and also the question whether the plaintiff was specialty instructed to throw the stone into the quarry and whether he was told that there was plenty of time to do that and to get away and the instructions on these points were clear and full and in strict accordance with the authorities cited and many others. The action of the court on the admission of the expert evidence showing the manner in which cars were loaded at other quarries and cement works accorded with the ruling in Bardsley v. Gill, 218 Pa. 56, and Cunningham v. Bridge Works, 197 Pa. 625. The plaintiff’s allegation was that the defendant failed to adopt the usual safeguards to secure the stability of the car when loaded. The witnesses called had had large experience in the manufacture of cement and a considerable observation of the methods adopted at cement quarries in that region. It would have been competent to prove the method adopted in the particular quarries at which the witnesses worked. As was said in Bardsley v. Gill, 218 Pa. 56: “No single instance is sufficient to prove a custom, but custom is certainty made up of an aggregation of different instances. It was a question of fact for the jury to say what the general custom was after the evidence of the methods in use in various concerns was before them.” The evidence certainty tended to show the usage at similar establishments, and its value was to be estimated by the jury after the witnesses had shown familiarity with the subject. It is not enough to prove that the method adopted at the defendant’s quarry was not the samé as generally used. If the evidence stopped there the inference might be that it was a newer and better method. The plaintiff must go further and show that it was not as well adapted to securing the safety of the operatives as the plan in use elsewhere. The charge of the court adequately and clearly covered the, questions of law involved and guarded the rights of the defendant to the extent to which it was entitled under the evidence. We do not find any sufficient reason to justify the reversal of the judgment.

The judgment is affirmed.


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

      Negligence — Street raihoays — “Stop, look and listen” — Right angle collision.

    1. A traveler about to cross a street at a regular crossing is not bound to wait simply because a street car is in sight. Where the car is at such a distance from the traveler that he has sufficient time to cross, if the car is moving at the usual speed, he ought not to be charged with negligence as a matter of law if he proceeds.
    2. Where the driver of a wagon in approaching a crossing looks, after he has cleared the house line, and sees a car three hundred feet away, and again looks as his team reaches the track and sees the car two hundred feet away, and he proceeds and the wagon is struck, the question of the driver’s contributory negligence is for the jury.

      Evidence — Conflicting testimony — Number of witnesses — Case for jury. *
    3. Where a witness makes a clear and direct averment of a fact, and this averment is positively contradicted by four other witnesses, the averment of the single witness must be submitted to the jury notwithstanding the preponderance of the contradictory evidence.
    Argued Dec. 18, 1909.
    Appeal, No. 263, Oct. T., 1909, by plaintiff, from judgment of 0. P. No. 2, Phila. Co., March T., 19,06, No. 438, on verdict for defendant in case of Otto Grupp v. Philadelphia Rapid Transit Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.

    Reversed.

      Trespass to recover damages for personal injuries. Before WlLTBANK, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendant.

      Harry G. Sundheim, for appellant.
    — The case was for the jury: Finefrock v. Traction Co., 33 Pa. Superior Ct. 638; McFarland v. Ins. Co., 134 Pa. 590; Raulston v. Traction Co., 13 Pa. Superior Ct. 412; Iseminger v. Water & Power Co., 206 Pa. 591; Mortimer v. Beaver Valley Traction Co., 216 Pa. 326; Callahan v. Traction Co., 184 Pa. 425; Hamilton v. Traction Co., 201 Pa. 351; Beard v. Ry. Co., 3 Pa. Superior Ct. 171; Jones v. Ry. Co., 9 Pa. Superior Ct. 65; Jensen v. Street Ry. Co., 24 Pa. Superior Ct. 4.

      Thomas Learning, with him Chester N. Farr, Jr., for appellee,
    cited: Timler v. Rapid Transit Co., 214 Pa. 475; Winter v. Ry. Co., 153 Pa. 26; Ehrisman v. Ry. Co., 150 Pa. 180; Darwood v. Traction Co., 189 Pa. 592; Greenwood v. Phila., etc., R. R. Co., 124 Pa. 572.
    March 3, 1910:
   Opinion by

Henderson, J.,

The plaintiff’s appeal is from the judgment of the court below giving binding instructions for the defendant. The court assigned the contributory negligence of the plaintiff as the ground for this action. It is therefore necessary to consider the testimony introduced in the case. The plaintiff was employed as a teamster for a brewing company and was driving a team attached to a delivery wagon. The accident occurred between eleven and twelve o’clock in the forenoon at the. intersection of York and Tenth streets in the city of Philadelphia. The plaintiff was driving southwardly along the west side of the latter street, and the street car was moving westwardly along York street. Evidence was introduced tending to show that as the plaintiff approached the track when he cleared the house line he saw the car at a distance of about 300 feet. When the team reached the track he looked again and the car was about half a square away. The team was moving “at a pretty good walk.” The driver then proceeded and after the team and wagon had passed over the track the car struck the rear end of the wagon at the back part of the hind wheel, or the projecting platform a little further back, forcing the wagon which weighed about 6,500 pounds over to the curbstone and against an awning post, breaking down the post, bending the axle of the wagon and throwing one of the beer barrels into the window of a nearby drug store. The car ran across the street and to the next street about 200 feet distant before it was stopped. The team was seen from the car when the latter was 300 feet away from the place of the collision and was in view of the motorman while the car moved that distance. The car was going very fast and could not be stopped by the motorman at the street crossing. The power was thrown off when the car was within about twenty feet of Tenth street. Such was the purport of evidence' offered. It was alleged by way of defense that the brake was applied to the car but that the wheels slipped because it was a wet day. The testimony of the plaintiff was contradicted in some respects and in others corroborated by evidence offered by the defendant. The negligence attributed to the plaintiff was that he undertook to cross the track in front of the approaching car. The question in the case is, therefore, whether it was negligence per se for the driver of the wagon to attempt to cross the street car track when the approaching car was 200 feet away. That the plaintiff exercised care and diligence appears from his statement that he looked for a car as soon as his position on the street with reference to the houses permitted him so to do and that he looked again immediately before undertaking to cross and as he had but about twenty-five feet.to travel to clear the track the car would have’ eight times the distance to cover to reach the point of contact. If the team was moving at a good walk the car needed a speed of probably twenty-five miles an hour to enable it to collide with the wagon. Was it clearly an act of imprudence on the part of the driver to cross the track under such circumstances? It is not to be doubted that street railway companies have a superior right to the use of that portion of the streets occupied by their tracks. This right is qualified, however, by that of pedestrians and travelers with vehicles to cross the track in the exercise of care. It does not absolve a railway company from the exercise of care in like manner when using the public crossings. The public right is not relinquished; it is only subordinated to that of the railway company: Evers v. Traction Co., 176 Pa. 376; Callahan v. Traction Co., 184 Pa. 425; Raulston v. Traction Co., 13 Pa. Superior Ct. 412. A traveler about to cross a street at a regular crossing is not bound to wait simply because a car is in sight. So strict a rule would erect a legal barrier against the use of a large proportion of the intersecting streets by other means of travel than cars. Where a car is at such a distance from the traveler that he has sufficient time to cross if the car is moving at the usual speed, he ought not to be charged with negligence as a matter of law if he proceed. It is a necessary condition that the crossing of streets be made in front of moving cars, at street intersections in the cities. Persons so doing must use due care and are not permitted to take narrow chances, but there is a correlative duty to be performed by the company in running over the crossings. The plaintiff had a right to assume that the car would be run at the usual speed and in the usual manner, and if this had been done it seems not improbable that the accident would not have happened: Hamilton v. Traction Co., 201 Pa. 351. He was not chargeable with notice that the car was not under the control of the motorman and could not be stopped. We do not find such evidence of inattention and carelessness in the testimony offered for the plaintiff as supports the defense of contributory negligence. Indeed, the motorman, who had the best opportunity of any of the defendant’s witnesses to observe what took place, attributes the accident to the action of the plaintiff in suddenly pulling on the reins and causing the horses to slacken. As the witness expressed it, “He (the driver) grabbed the lines and the horses kind of slowed up. I guess if he hadn’t took hold of the lines he might have cleared me.” Another of the defendant’s witnesses also testified that the driver “pulled his horses up” immediately before the collision. Whether this occurred and was the cause of the accident was a question for the jury. Timler v. Rapid Transit Co., 214 Pa. 475, is brought to our attention by the appellant as a controlling authority. An examination of that case shows, however, that it turned on the fact disclosed by the plaintiff’s own evidence that “he disregarded his duty to look immediately before going upon the track,” and such omission was held to be contributory negligence. It was said in the same opinion, however, after a discussion of the facts, “If he (plaintiff) had observed his duty to look immediately before going on the track the question of defendant’s negligence in running the car at an excessive rate of speed might have been properly submitted to the jury. He did not do so, and the case turns not on the defendant’s negligence, but on the contributory negligence of plaintiff.” It also appeared according to the calculation set forth in the opinion by Justice Elicin that according to the plaintiff’s own estimate of distance and speed he had not time to cross the track and avoid a collision. In the case before us as has been noticed the plaintiff did look as his horses were at the rails and about to go onto the track, and in that respect his case differs from that just cited.

It is contended, however, that whether there was contributory negligence or not there was no evidence of the negligence of the defendant. We think, however, that this was also a question for the jury. There is evidence that the car was running at a high speed. This is not only shown by one or two of the witnesses, but the momentum with which it collided and the distance which it went after the collision tend to show that it crossed the street at an unusual speed, and when we observe that one of the plaintiff’s witnesses in the car saw the team close to the track when the car was 300 feet distant the presumption is that the car could have been stopped before the wagon was reached, especially as the crossing was a stopping place. Moreover, it appears in the evidence of one of the defendant’s witnesses that the power was only turned off when the car was about twenty feet from Tenth street. If the track was “bad” as the motorman described it because it was wet it would be a proper question for the consideration of the jury whether the power ought not to have been turned off sooner than that, and this question would be all the more pertinent in the light of the motorman’s evidence that his brakes did not hold. There was also evidence that the motorman jumped from the car when it was about fifteen feet from the wagon. The witness who testified to this fact was the keeper of a restaurant at the northeast corner of Tenth and York streets. He was standing on York street in full view of the car and had an opportunity to observe what occurred. Pie was contradicted on that point by the motorman, the conductor and two passengers in the car, and the court, while considering the fact an important one if it were proved and which would have induced him to submit the case to the jury, disregarded the evidence because the contradiction was so strong. There was a clear and direct averment of a fact by one witness and an equally positive contradiction of his testimony by the four other witnesses. Under such circumstances the credibility of the witness was for the jury, notwithstanding that there was a great preponderance of witnesses on the other side. The appearance of the witnesses, their manner of testifying and their opportunity for observation might have affected their testimony in the judgment of the jury. It was said in Grambs v. Lynch, 4 Penny. 243, to be the settled law that when a case depends upon oral testimony such testimony must be submitted to the jury; and in Reel v. Elder, 62 Pa. 308, the court . said, “ However clear and indisputable may be the proof when it depends upon oral testimony, it is nevertheless the province of the jury to decide, under instructions from the court, as to the law applicable to the facts, and subject to the salutary power of the court to award a new trial if they should deem the verdict contrary to the weight of the evidence.” That part of the opinion in Holden v. Penna. R. R. Co., 169 Pa. 1, which held that the trial judge should have disregarded the testimony of the plaintiff because five witnesses of the defendant who were disinterested, unimpeached and had equally good opportunities of observation testified to the contrary has not been approved and followed in subsequent cases; and in Cromley v. Penna. R. R. Co., 211 Pa. 429, it was said that it could not be approved on principle because it overlooks the well-defined distinction between the province of the court and that of the jury. In the case last cited the question was whether the husband of the plaintiff stopped before he drove onto the track. Only one witness testified that there had been a stop; five who had a better opportunity to see what happened testified that there had not been a stop. Under such circumstances it was said that the preponderance of the evidence should have led the jury to find for the defendant and on their failure so to do the court should have granted a new trial, but the court could not assume the decision of a disputed question of fact from conflicting testimony. Barnett v. Becker, 25 Pa. Superior Ct. 22, and Colonial Trust Co. v. Getz, 28 Pa. Superior Ct. 619, contain discussions of this subject and conclusions to the same effect. It may be that the jury would be little influenced by the testimony of the witness, but we think his credibility was for the jury. Our conclusion is after a careful examination of the case that it is not of that clear character which is necessary to sustain the action of the court in granting a nonsuit or giving binding instructions for the defendant.

The judgment is, therefore, reversed with a venire facias de novo.