text:
    Hastings v. Speer, Appellant.

      Pleading — Statement of claim — Anticipatory replication — Allegata and probata — Evidence.
    It is a general rule of common-law pleading which is equally applicable to pleading under the Pennsylvania statute, that a plaintiff is not bound to anticipate and therefore is not compelled to notice and remove in his declaration every possible answer, objection or defense with which the adversary may oppose him.
    Where a plaintiff needlessly introduces matters into his statement that do not lie at the foundation of his right of action, he is not bound to prove them.
    In an action to recover for goods sold and delivered, where the defendant introduces evidence tending to show a new agreement between the parties after the delivery of the goods, and so conducts the defense as to show that what was done under the new agreement went only to the question of the amount of the defendant’s liability upon the original contract, he cannot complain that the plaintiff was permitted to go into the same matters in rebuttal, nor can he complain, after a trial on the merits and a verdict and judgment against him, of a departure from the statement of claim.
    Argued May 10, 1907.
    Appeal, No. 176, April T., 1907, by defendant, from judgment of C. P. No. 2, Allegheny Co., Oct. Term, 1898, No. 287, on verdict for plaintiff in' case of J. M. Hastings v. D. R. Speer trading as D. R. Speer & Company.
    Before Rice, P. J., Henderson, Orladt and Beaver, JJ.
    Affirmed.
    Assumpsit for goods sold and delivered. See 15 Pa. Superior Gt.-115,

      The statement of claim was as follows:
    . Before me, the undersigned authority, personally came J. M. Hastings, who, being duly sworn, says that he has a just and legal claim against the defendant in the sum of $568.48, with interest thereon from February 1, 1896, the nature and character of which claim is as follows:
    On or about October 10, 1895, the said defendant applied to the plaintiff for a certain lot of Norway lumber to be shipped by plaintiff for the defendant to the defendant’s customer at Depew, N. Y.
    That in compliance with such request, the plaintiff made out a list of the lumber which he had been requested by defendant to ship, a copy of which list was given to defendant, and a copy of the same is hereby attached, marked exhibit “ A,” and made a part hereof.
    Defendant received and accepted said list of lumber, and, in accordance with the custom of trade, said list thereby became an order from defendant to plaintiff for said lumber.
    That in pursuance of the acceptance of said list and the order by defendant on plaintiff for said lumber, they then and there agreed upon the prices to be charged for the same.
    Plaintiff promptly and in the general course of business shipped and delivered to the point, namely, Depew, N. Y., all of said lumber. A short time after the same had arrived at Depew, this plaintiff was notified by defendant that the lumber was ■ not satisfactory^ had been rejected by defendant’s customer, and that the lumber was at the railroad tracks subject to plaintiff's order. Plaintiff then and there refused to receive or take back said lumber because it had been shipped in good faith upon the order of defendant, and in strict compliance therewith.
    Various negotiations have been entered into between plaintiff and defendant from time to time in respect to said lumber whereby plaintiff undertook to dispose of the same so that the defendant would not be subjected to a great loss, but plaintiff has recently been informed by competent persons, and verily believes the same to be true, that the reason said lumber was rejected at first by the customer of defendant was that the lumber had not been shipped to the defendant’s customer in .compliance w,ith the order given to defendant by his customer, the lumber required by defendant’s customer being of an entirely different quality and kind of lumber, and that the reason for the refusal of the lumber was no fault of plaintiff, and, plaintiff having been deceived by defendant as to the cause of the lumber being refused, plaintiff has repudiated all arrangements and agreements which tend to an adjustment of the claim between defendant and plaintiff, so that defendant should not be subjected to so great a loss, and plaintiff now claims of defendant the original contract price of said lumber on account of which defendant has paid to the plaintiff the sum of $250. Defendant is entitled to no other or further credits, and the whole sum of $568.48, with interest thereon from February 1, 1896, is now due and payable according to the terms of said agreement.
    At the trial when the plaintiff was on the stand the following offer was made:
    Mr. Crawford: I propose to prove by the witness that on October 10, 1895, J. M. Hastings furnished to the defendant, D. R. Speer & Company, a certain lot of Norway pine, to be shipped to Depew, New York, amounting in all to $818.48, under and in pursuance of an order received from D. R. Speer & Company.
    Mr. Ivory: This is objected to as incompetent under the pleadings, unless the plaintiff proposes in some way to get rid of the second contract set out in his own statement of claim.
    Objection overruled. To which ruling of the court counsel for defendant excepts, and thereon at his request exception .noted and bill sealed. [5]
    (Question read.) “A. We did. We shipped a bill of lumber for Mr. D. R. Speer & Company’s account, to Depew, New York, amounting to $818 and some odd cents.”
    Mr. Crawford: I want to ask the witness if the bill attached to the statement there is the bill of lumber he shipped.
    (Paper marked exhibit 1.) “ Q. I show you exhibit 1, attached to the court records, and I ask you if that is the bill of lumber that was shipped ? A. Yes, sir. Q. What disposition was made of the lumber at that time ? A. It was left--•
    Q. By you and Mr. Speer? A. Mr. Speer and I left it in the bands of a man named Brown to sell.”
    Objected to as incompetent, being under an agreement that the plaintiff himself in the pleadings has repudiated, and we ask that the answer be stricken out.
    Motion refused. To which ruling of the court counsel for defendant excepts, and thereupon at his request exception noted and bill sealed. [6]
    Mr. Crawford: “Q. Mr. Hastings, you have heard the testimony with respect io the agreement that was made for the disposition of this lumber. I wish you would state whether or not the agreement was as they have stated, and, if not, what was the agreement?”
    Objected to as incompetent under the pleadings and the former testimony of the plaintiff. Objection overruled. To which ruling of the court counsel for defendant excepts, and thereupon at his request exception noted and bill sealed. [7]
    (Question read.) “A. The agreement was that I was to take charge of the lumber, placing it in Mr. Brown’s hands with Mr. A. R. Speer mutually agreeing and being with me in Mr. Brown’s office at the time, and that the lumber was to be sold and the loss divided between us, each standing one-half. Q. Mr. Hastings, referring to this second agreement that Mr. Ivory has asked you about, and your loss, what was your loss under that?”
    Objected to, because the witness stated he never made a demand for the loss under the second agreement.
    The Court: We will permit the witness to state what the cost was to him in Depew, that is, the cost plus the freight. We will allow him to show the amount he received from Mr. Brown, and the net loss. Objection overruled. Exception 8.
    Defendant presented these points :
    3. Under the agreement for the disposal of the lumber in suit and the division of the loss, it being admitted by the plaintiff that the agent selected to handle said lumber accounted to him, and there being no evidence that said agent accounted to the defendant, the defendant was not able to ascertain how much, if any, loss was suffered until he received a statement thereof from plaintiff, and no suit can be predicated on said agreement until the plaintiff has first stated the account between himself and the defendant showing the net loss on said lumber, and made demand for the portion thereof due from the defendant. Answer: Refused. [1]

      4. Under the evidence of the plaintiff in this case as to the disposal of this lumber, it was an agreement in the nature of a partnership transaction; and the plaintiff having testified that he had charge of the matter with Brown, the selling agent, and the accounting by Brown was direct to him, before a suit will lie for a recovery by him against the defendant, he must first state an account between them showing the net amount of loss and the portion thereof which defendant owes, and make a demand therefor. And it being admitted by the plaintiff that this has never been done, this action will not lie and the verdict must be for the defendant. Answer: Refused. [2]
    5. Under the pleadings and all the evidence in this case the verdict must be for the defendant. Answer: Refused. [3]
    6. Under all the evidence in this case the verdict must be for the defendant. Answer : Refused. [4]
    Verdict and judgment for plaintiff for $284.57. Defendant appealed.

      Errors assigned were (1-4) above instructions, quoting them; (5-8) rulings on evidence, quoting the bill of exceptions.

      E. B. Ivory, of Ivory, Kislcaddon ‡ Moore, for appellant.—
    The plaintiff’s allegata and probata do not agree and the verdict cannot be sustained: Hale v. Hale, 32 Pa. Superior Ct. 87; Leh v. R. R. Co., 30 Pa. Superior Ct. 396; Wilkinson Mfg. Co. v. Welde, 196 Pa. 508.
    The contract upon which a recovery was had was one in which the parties agreed to share future losses, and the plaintiff was the agent of both parties and handled the property. Before he could bring suit against defendant for contribution, he must render an account of the transaction and make a demand for the amount due. Not having done this the suit will not lie. This proposition is based upon our first, second and seventh assignments of error: Hayes v. Morrison, 38 N. H. 90; Barnes v. Parker, 49 Mass. 134; Dewart v. Masser, 40 Pa. 302; Dimock v. U. S. Nat. Bank, 55 N. J. L. 296 (25 Atl. Repr. 926); Wangler v. Swift, 90 N. Y. 38; Phoenix Ins. Co. v. Doster, 106 U. S. 30.

      C. Crawford, for appellee.

      October 7, 1907:
   Opinion by

Rice, P. J.,

The appellant’s counsel rest his demand, for a reversal of the judgment upon two propositions: first, there was a variance between the plaintiff’s allegata and probata which entitled the defendant to binding instructions in bis favor; second, the contract upon which recovery was had being that the parties would share future losses in a transaction in which the plaintiff acted for both, it was a condition precedent to the right to sue for contribution that the plaintiff render to the defendant an account of the transaction and make a demand for the amount due, which he failed to do. In the determination of these questions it will be necessary to refer to the course pursued by the defendant upon the trial, as well as to the pleadings and evidence.

The plaintiff alleged in his statement of claim, in substance, that pursuant to the defendant’s request he shipped to a customer of the defendant at Depew, near Buffalo, New York, a certain quantity of lumber of different sizes, for which the defendant agreed to pay the prices specified in the written order; that these prices and the sums the plaintiff paid for car service, freight and storage, amounted in the aggregate to $818.48; and that the only credits to which the defendant was entitled were for a payment of $150 on account, made by him, and a similar payment of $100 made by one W. W. Brown. The other averments of the statement relative to the controversy, and to the negotiations subsequent to the deliveiy of the lumber, which led to an arrangement or agreement tending to an adjustment of the claim, which arrangement or agreement, the statement alleges, was procured by deception, and, upon discovery of the deception, was repudiated by the plaintiff, constitute no essential part of the statement of the plaintiff’s cause of action. They were evidently introduced to rebut an anticipated defense, and it is a general rule of common-law pleading, which is equally applicable to pleading under our statute, that a plaintiff is not bound to anticipate, and, therefore, is not compelled to notice and remove in his declaration every possible answer, objection or defense with which the adversary may oppose him: 1 Chitty’s Pleading, * 222. A departure from this rule often tends to confusion: and, in general it is safe in pleading in actions at law to go upon the principle that it is enough for each party to make out his own case or defense. But as these matters needlessly introduced into the plaintiff’s statement do not lie at the foundation of his right of action, but this existed before and independently of them, he was not bound to prove them: Grubb v. Mahoning Nav. Co., 14 Pa. 302; Sidwell v. Evans, 1 P. & W. 383; Ben Franklin Fire Ins. Co. v. Flynn, 98 Pa. 627, 636. To be more explicit, the omission in the presentation of his case in chief to prove the subsequent arrangement or agreement, the deceit which induced him to enter into it, and his repudiation of it, did not cause a fatal variance. This is also an answer to the objection that plaintiff’s offer to prove the sale and delivery should not be received unless it was preceded by proof, or coupled with an offer of proof, of these subsequent dealings. To sum up what we have to say upon this precise point: the right of action asserted by the plaintiff arose directly out of an executed contract for the sale and delivery of a certain quantity of lumber of the quality and sizes specified in a written order, for which the defendant agreed to pay certain prices; proof of the contract and of the delivery of lumber of the quantity, quality and sizes specified constituted a prima facie case; and this was the state of the proof at the conclusion of the plaintiff’s direct examination.

But it is claimed that the court in submitting the case to the jury permitted the plaintiff to recover upon another and materially different cause of action. The defendant pleaded non assumpsit, payment and set-off. Neither in his affidavit of defense nor in his evidence did he dispute the contract alleged and testified to by the plaintiff or the delivery of the lumber. What he alleged was, that after its arrival at Depew a dispute arose between him and the plaintiff as to whether the lumber was “up to grade,” that he refused to accept it, and that in settlement of the controversy a new agreement was made. This agreement, according to the testimony of his witnesses, was that the plaintiff would dispose of the lumber to the best advantage and that the defendant would bear one-half of the loss, which loss was to be measured by the difference between the cost of the lumber to the plaintiff at Depew and the price for which he should sell it. Upon cross-examination of the plaintiff (with the same effect, and no other, as if he had been called for cross-examination under the statute) he drew from him the fact, that after delivery of the lumber at Depew. a new agreement was made, but a materially different one from that claimed by the defendant. According to his testimony, the agreement was that one W. W. Brown, a commission agent selected by both parties, should sell the lumber and pay the proceeds to the plaintiff, and that if there was any loss — that is, if the proceeds received by the plaintiff should be less than the cost of the lumber to him at Depew — the defendant would pay one-half. The verdict of the jury interpreted in the light of the judge’s charge implies a finding that this was the agreement. Under this agreement the loss consequent upon an embezzlement of part of the proceeds of sale by Brown would have to be borne in equal proportions by the plaintiff and the defendant, whereas, under the agreement which the defendant’s witnesses testified to, it would fall upon the plaintiff alone. When this case was here before we said that the new agreement as established by the verdict went to the amount of the defendant’s liability, not to the plaintiff’s right to recover anything on the original contract. But assuming that in strict pleading the plaintiff should have sued upon the new agreement, first having rendered to the defendant a statement of account showing the loss and demanded payment of one-half, is the defendant in position to raise this objection at this time ? In the consideration of this question it is to be borne in mind that the defendant did not content himself with drawing from the plaintiff the fact that the new agreement was made, and its terms, but proceeded to a further examination of him which would not have been relevant unless the questions for determination were, what was the loss and what were the credits to which the defendant was entitled in the adjustment of that' loss ? He showed by’the plaintiff, and his own witnesses testified to the same effect, that he advanced to the plaintiff $150 on account of the new agreement; and in his plea of set-off he claimed that if upon adjustment of the loss this was found to be more than his share, the surplus was to be returned to him. It is difficult to see upon what theory he could in his plea demand a certificate in his favor for the whole or any portion of this sum, unless the amount of the loss was to be ascertained and adjusted in the very case in which the set-off was claimed. Further, he showed by the plaintiff the quantity of lumber sold by Brown and the proceeds of sale with which the plaintiff was chargeable. All of this was inconsistent with the theory that proof of the new agreement was of itself a bar to the present action, or that an accounting and a demand were a condition precedent to the right to sue, but was consistent with the theory that proof of the new agreement and what was done under it went only to the question of the amount of the defendant’s liability upon the original contract. Having both in his pleadings and in his evidence proceeded thus far in bringing out the facts essential to a determination of the meritorious question in dispute, the defendant has no just cause to complain that the plaintiff was permitted to go into the same matters in rebuttal, and to more fully develop the relevant facts. Upon the conclusion of the evidence the jury had before them all of the facts necessary to a determination of the amount due from the defendant. If there was any departure from the statement of claim, it was not made by the plaintiff in the presentation of his case in chief, but was occasioned by the defense set up and the evidence adduced by the defendant in support thereof, and of his plea of set-off, and by his attempt, in the cross-examination of the plaintiff, to interject into the latter’s case his defense upon the merits of the substantial controversy between them. In this very important respect the case is distinguishable from Wilkinson Mfg. Co. v. Welde, 196 Pa. 508; Hale v. Hale, 32 Pa. Superior Ct. 37; and Leh v. D., L. & W. R. R. Co., 30 Pa. Superior Ct. 396, upon which the defendant’s counsel rely. It is to be observed further that this was a second trial, and that the rulings complained of were justified by what was declared by this court when the case was here before. The defendant was not surprised. When he went into the questiob as to what was done under the new agreement, he did so with his eyes open, and the plaintiff and the court were justified in presuming that he elected to have the question of the amount due from him to the plaintiff determined in that trial. If he so elected, and the plaintiff assented expressly or impliedly, it ought to be very clearly shown that there is some unbending rule which requires it, in order to justify an appellate court in setting aside the verdict, and turning the plaintiff out of court, upon either of the grounds suggested by the appellant’s counsel, after a fair trial upon the merits.

Judgment affirmed.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Ebert, Appellant, v. Kaufmann.
    • Appeals — Rule for penalty under act of May 19, 1897.
    On an appeal from a judgment on a verdict for defendant in a sheriff’s interpleader, the penalty under the Act of May 19, 1897, P. L. 67, will be imposed, where it appears that the appellant filed no assignments of error, served no paper-book, suffered a non pros, and made no answer to the petition for the rule for penalty, which averred that the appellant when he bought the stock of goods in controversy made no request for a list of creditors of the vendor, and that he knew of the appellee’s judgment.
    Appeal, No. 144, October Term, 1907.
    Petition for rule for penalty.
    The petition was as follows :
    That the above action was a sheriff’s interpleader to determine the title to the stock and fixtures of a bakery purchased by Carl Ebert from his brother, Louis Ebert, August 1, 1905; that upon the trial of the case claimant admitted that he did not ask his brother for a list of the names and residences of his creditors, and that he knew of the Kaufmann judgment, and that his brother said he would pay Kau f mann ; that Louis Ebert admitted on cross-examination that his brother did not ask for a list of creditors.
    That claimant made a motion for a new trial, and no argument being made in support thereof the rule was discharged June 18, 1907 ; that after taking the appeal appellant took no further proceedings in the matter, filed no assignments of error, served no paper-book and, when the case was called on October 7, 1907, suffered the appeal to be non. prossed.
    Your petitioner therefore prays your honorable court to enter a rule on appellant to show cause why an attorney’s fee of $25.00 and damages at the rate of six per cent per annum in addition to legal interest should not be awarded to appellee as further coRs, as provided in section 21 of the Act of assembly of May 19, 1897, P. L. 67.
    October 21, 1907:
   Per Curiam,

Rule absolute.


author: Orlady, J.,

text:
    First National Bank of Wampum v. Western Union Telegraph Company, Appellant.

      Negligence — Telegraph company — Banks and banking — Forgery—Contributory negligence — Proximate cause — Evidence.
    In an action by a bank against a telegraph company to recover damages for a loss sustained by the payment of a forged draft, it appeared that the plaintiff paid to a stranger the amount called for by the draft, which purported to be drawn by a Verona bank on a New York bank. Plaintiff had previously received from the Verona bank a forged letter advising it of this draft, and requesting plaintiff to cash it, and also had previously received a forged telegram purporting to come from Verona in confirmation of the letter. The telegraph company had no office at Verona. The plaintiff was not a correspondent of the Verona bank, and there was no legal duty upon it to pay the draft. Plaintiff had a bank directory, which, if examined, would have shown that the cashier’s name signed to the letter and telegram, was wrongly spelled. The telegram if read without reference to the letter, was unintelligible. The man to whom the payment was made was not identified. Held, that the court committed error in not directing a verdict for the defendant.
    Argued May 15, 1907.
    Appeal, No. 68, April T., 1907, by defendant, from judgment of C. P. Lawrence Co., Sept. T., 1901, No. 51, on verdict for plaintiff in case of First National Bank of Wampum v. Western Union Telegraph Company.
    Before Rige, P. J., Henderson, Orlady, Head and Beaver, J J.
    Reversed.
    Trespass to recover damages for a loss alleged to have been caused by a forged telegram. Before Porter, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned among others was in refusing binding instructions for defendant.

      J. 8. Ferguson, with him E. Cr. Ferguson and B, A. Winter•< nitz, for appellant.
    A telegraph company is not an insurer of the correct transmission of messages intrusted to it. It is only bound to make use of ordinary care, attention and skill: Grinnell v. W. U. Tel. Co., 113 Mass. 299 ; N. Y. & Wash. Printing Tel. Co. v. Dryburg, 35 Pa. 298.
    As a general rule negligence is undoubtedly a question of ■fact, and as such is for the determination of the jury. That is, negligence being a breach of the duty to exercise reasonable care under the circumstances, it is for the jury to consider all the surrounding circumstances and say whether the defendant’s act or omission was or- was not violative of this obligation : McCully v. Clarke & Thaw, 40 Pa. 399 ; Beck v. Hood, 185 Pa. 32.
    The connection between the negligence complained of and the injury suffered must be by a natural and unbroken sequence, without intervening efficient causes, so that but for the negligence of the company the injury would not have occurred. It must not onl}r be a cause, but it must be the proximate cause; that is, the direct and immediate cause of the injury: Jones on Telegraph and Telephone Companies, sec. 195; Fairbanks v. Kerr, 70 Pa. 86; Lowery v. W. U. Tel. Co., 60 N. Y. 198.

      Wylie McCaslin, with him J. Norman Martin, for appellee.—
    A telegraph company is liable in damages to the recipient of a message for the misfeasance of their agent: Tobin v. W. U. Tel. Co., 146 Pa. 375; Harris v. W. U. Tel. Co., 9 Phila. 88; McCord v. W. U. Tel. Co., 1 L. R. A. 143; Baldwin v. U. S. Tel. Co., 45 N. Y. 744; New York & Wash. Printing Tel. Co. v. Dryburg, 35 Pa. 298; W. U. Tel. Co. v. Richman, 19 W. N. C. 569.
    The defendant is not entitled to binding instructions unless the evidence clearly shows lack of negligence on its part or contributory negligence of the plaintiff: Hogan v. West Mahanoy Township, 38 W. N. C. 105.
    When decision depends not merely on the existence of certain facts, but on the conclusions, inferences or deductions arising from them respecting which there is no fixed standard of judgment, it is for the jury, even when there is no dispute as to the facts: Menner v. D. & H. Canal Co., 7 Pa. Superior Ct. 135; Bensing v. Railway Co., 9 Pa. Superior Ct. 142; Kepple v. Torpedo Co., 7 Pa. Superior Ct. 620; Vannatta v. Central R. R. of N. J., 154 Pa. 262; Smith v. B. & O. R. R. Co., 158 Pa. 82; Davidson v. Traction Co., 4 Pa. Superior Ct. 86; Delaware, etc., R. R. R. Co. v. Jones, 128 Pa. 308; Ryan v. Ardis, 190 Pa. 66; Breunniger v. Railroad Co., 9 Pa. Superior Ct. 461; Conyngham v. Motor Co., 15 Pa. Superior Ct. 573; Allen v. Warwick Township, 9 Pa. Superior Ct. 507.
    October 7, 1907:
   Opinion by

Orlady, J.,

The plaintiff recovered a judgment in the court below on the following facts, which are undisputed.

The plaintiff, a national bank at Wampum, received by due course of mail on August 31, 1903, between 9 and 10 o’clock A. M., a letter purporting to have been mailed at Verona, Allegheny county, Pa., and on the stationery of the First National Bank of Verona, viz.:—

“No. 4877.
R. D. Ellwood, Pres. Verona, Pa., Aug. 31,1903.
H. W. Armstrong, V. Pres.
Wm. E. Barger, Cashier.
The First National Bank of Verona, Pa. W. H. Groves, Cashier, First National Bank, Wampum, Pa.
“ Dear Sir: — I have issued draft on ITanover National Bank, N. Y. (No. 12,873), in favor of C. E. Armstrong calling for 1387.00. Please honor on presentation and advise me by return mail. I will confirm this letter to you by telegram. ■
“Yours truly, Wm. E. Barger, Cashier.”
About 2 P. M. of the same day, the telegraph operator of the defendant company at Wampum telephoned, and the next day delivered to the cashier of the plaintiff bank a message as follows :—
“Western Union Telegraph Company.
Received at--, August 31, 1903.
Dated Verona, Pa., 31
To W. H. Grove, First National Bank, Wampum, Pa.
“Confirming my letter August 31, Hanover National Bank, N. Y., No. 12,873, C. E. Armstrong three eighty seven is O. K.
“ Wm. E. Barger, Cashier.”
Within an hour after the receipt of the telegram, a man, with whom the cashier was not acquainted, came to the bank and presented a draft in the following form :—
“ No. 12873. $387. Verona, Pa., August 31st, 1903.
The First National Bank of Verona, Pa.
“ Pay to the order of G. E. Armstrong three hundred and eighty-seven dollars.
Wm. E. Barger, Cashier. To the Hanover National Bank, New York.”

As testified to by the cashier of the. plaintiff bank — “He presented this paper — -he came into the bank and to the window, and introduced himself as C. E. Armstrong. And he then took the paper and went to the desk and indorsed it and came back and asked me, if I didn’t get a telegram from Mr. Barger at Verona, and I didn’t answer him for a little while, and I said, ‘yes, I had no evidence that you are C. E. Armstrong.’ He said, ‘Well, Mr. Barger had informed him that he would send this telegram, that he wouldn’t have any trouble in getting the money on it.’ I noticed the draft was dated on the same day he was there and asked him ‘ why he didn’t get the money and bring it with him.’ He said, for two reasons : He had got this draft after banking hours on Saturchay, and Mr. Barger told him all bank’s business that they do after banking hours goes over to the next regular day for doing business, and he didn’t care to carry the money.” “ Q. You told him you didn’t know him? A. Yes, sir. I didn’t know him only by the telegram. Q. Did you ask him where he lived? A. No, I didn’t. Q. Did you ask him what his business was ? A. I don’t know that I asked him that. I asked him what he was doing in that neighborhood. He told me he was buying poultry and produce.”

The draft was paid by the plaintiff bank to the unidentified stranger, and soon thereafter it was learned that the letter, telegram and draft were forgeries, and that the defendant company did not have an office at Verona, Pa. The Wampum bank did not know of the bank at Verona, and never had any business transactions with it, but did have a directory giving its location and officials, which, on examination, showed that the cashier’s name was spelled Bargar instead of Barger on the letter and telegram. A proper notice was served on the defendant within sixty days, and this suit brought to recover damages sustained by reason of the defendant neglecting “ to exercise that degree of care and caution which the nature of its business demanded.” The act of negligence charged against the defendant “ was in delivering, as genuine, a message authorizing and directing the paying of money by the person to whom it is addressed, purporting to have been sent from aplace where the company did not have an office, and from which place said company did not transmit the message,” as stated and affirmed in the plaintiff’s second point.

The transaction was out of the ordinary course of business, and, taking the case as of the moment when the draft was cashed, it must be conceded that the telegram, if read without reference to the letter, would be unintelligible, and if the letter had not been received the draft would not have been paid. Neither of these communications, taken separately, could be-said to be the inducing cause of the loss. As the draft was. directed to the Hanover Bank of New York there was no legal duty on the Wampum bank to honor and cash it, and, in so-doing, the latter bank volunteered to do a gratuitous act. It. was not a correspondent of the Verona bank; did not then know the name of its cashier, and hence could not know his. signature. The bank directory at hand was not consulted to-identify the name of the Verona bank’s cashier, and when subsequent^ examined it showed a material difference in the-way the name was spelled. Further, the payment was made to an unidentified stranger on the faith of a letter which obviously bore an improbable date, and also on a telegram which, had been orally transmitted by telephone. On the trial there-was no dispute in regard to the facts, and after refusing-to enter a nonsuit, the court unqualifiedly affirmed the following points submitted by the defendant: “ Fourth, that if the-jury find that the plaintiff paid the draft in evidence, relying-both upon the letter and the telegram in evidence, the plaintiff is nob entitled to recover. Fifth, that even if the telegraph, company should be found to be in default in delivering the1 telegram in question, yet if its default was made mischievous, to the plaintiff by the operation of some other intervening-cause, to wit: the letter, the defendant company cannot be held. liable for the loss. Ninth, that if the jury find that in the payment of the draft the plaintiff was guilty of contributory negligence the plaintiff cannot recover,” but refused the tenth, “ that under- all the evidence the verdict must be for the defendant.”

The law does not undertake to hold a person who is chargeable with a breach of duty towards another with all the possible consequences of his wrongful act. It, in general, takes cognizance only of those consequences which are the natural and probable result of the wrong complained of, and which in the language of Pollock, C. B., in Rigby v. Hewitt, 5 Exch. 240, may reasonably be expected to result, under ordinary circumstances, from the misconduct. Every injury is preceded by circumstances, if any one of which had been wanting the injury would not have happened.. In some sense, therefore, each is a cause of the injury, but to fasten legal responsibility for the injury -upon every person whose wrongful act, however remote therefrom, had contributed to bring about a situation or condition which made the injury possible, would be an impracticable rule, and one which if enforced would in most cases inflict a punishment wholly disproportionate to the wrong: Lowery v. Western Union Tel. Co., 60 N. Y. 198; s. c., 19 Am. Rep. 154. Although it may be clear that except for the wrong of the defendant the loss would not have happened, yet there must be a direct connection between the wrong complained of and the resulting injury; in the contemplation of law they must stand together as cause and effect so as to give a right of action against the wrongdoer and make him chargeable with the loss. It is not every breach of duty that will be a sufficient ground on which to base an action, for while it may be an inducing cause which brings about a loss or injury, yet it may not be the direct, natural or proximate cause of such injury. The proximate cause of the injury may be one of the results of the breach of the operator’s duty, but this may be influenced by other intermediate causes which would affect the operators breach of duty, although being merely a remote or indirect cause of the injury, and which fact would relieve the company from liability: Jones on Telegraph & Telephone Companies, sec. 441.

Where-the effect of the evidence is merely to establish that there are two independent causes, either one of which may have been the proximate cause of the .injury, the burden is upon the plaintiff to show that the cause for which the defendant is responsible was the one which produced the injury : Ahern v. Melvin, 21 Pa. Superior Ct. 462. And whe're there is an alleged proximate cause admittedly dependent upon another in producing the injury, and which other cause is in no way induced by the defendant, the evidence should be clear that the one relied upon by the plaintiff was the sole proximate cause. Such could not be urged in this case, inasmuch as the letter and telegram are necessarily joined'as inducing causes of the plaintiff’s loss.

Nor is it enough to say that the telegram materially contributed in producing the loss, and that without it the forged letter might not have caused it. How much or in what degree the cashier would have been influenced by the one forgery, supplemented by the blandishments of the forger, is purely speculative.

If the plaintiff, or party injured, by the exercise of ordinary care might have avoided the consequences of the company’s negligence, but did not, the case is one of mutual fault and the law will neither cast all the consequences upon the company, nor will it attempt any apportionment thereof: Cooley on Torts, 674. The fact remains undisputed, that the cashier of the plaintiff ignored all business precaution, and volunteered without any inquiry, to deal with an unknown. He cannot admit his contributory negligence (the facts being undisputed the law so measures his conduct) and then recover when such negligence contributed to his loss.

While it is true that contributory negligence cannot be treated as one of law, unless the facts and inferences to be drawn from them are free from doubt (Kuntz v. New York, etc., Railroad Co., 206 Pa. 162), yet where the facts are clearly established and the inferences of negligence from them manifest, the court should peremptorily so instruct the jury: Gramlich v. Wurst, 86 Pa. 74; Lehigh Valley R. R. Co. v. Greiner, 113 Pa. 600; Delaware, etc., Railroad Co. v. Cadow. 120 Pa. 559; Coolbroth v. Penna. R. R. Co., 209 Pa. 433; Cohen v. Phila. & Reading R. R. Co., 211 Pa. 227; Bannon v. Penna. R. R. Co., 29 Pa. Superior Ct. 231. There is no question as to the credibility of witnesses — there is no controversy as to the facts they narrate. Is there any doubt as to the natural and reasonable inferences to be drawn from their undisputed testimony? Is there room for drawing inferences founded upon reason or common sense to justify such credulity in a transaction between a banker and a stranger, and particularly so when the banker is not under any duty to act at all? The undisputed testimony establishes facts and circumstances'which would reasonably and naturally arouse inquiry and suspicion in the mind of a person of ordinary prudence and intelligence in a like situation. The law requires that such warnings shall be heeded,1 and if ignored the sufferer is without remedy. Contributory negligence is matter of defense, and the onus probandi is on the defendant unless the plaintiff’s own evidence sufficiently discloses the fact of contributory negligence. In that event the plaintiff cannot recover, and the defendant is relieved from the necessity of proving what has already been established by the plaintiff’s evidence: Baker v. Gas Co., 157 Pa. 593; Sopherstein v. Bertels, 178 Pa. 401.

Taken in its most favorable light the plaintiff’s loss was due to its own- disregard of care, and there were no facts nor inferences to be reasonably drawn from them to justify a jury in finding that the bank did not rely on both the letter and the telegram, or that the forged telegram was not made mischievous to the bank by the intervention of the letter.. Where a case is submitted to a jury upon clearly insufficient evidence, such as no court should sustain a verdict upon, it is our plain duty to reverse: Cauffman v. Long, 82 Pa. 72. The defendant’s tenth, point — that under all the evidence, the verdict must be for the defendant, should have been affirmed.

The judgment is reversed.


author: Beaver, J.,

text:
    Costa v. Musumando, Appellant.

      Evidence — Writing—Contradiction of witness.

      ■ In an action of assumpsit where the plaintiff alleges that he and the defendant purchased land under an agreement in writing, that the plaintiff had furnished a part of the purchase money which the defendant had agreed to repay him, the deed being taken in the defendant’s name, the defendant may offer in evidence the agreement in question showing that the plaintiff’s wife, and not the plaintiff, was the person who with the defendant signed the agreement. Such an offer is admissible, first, as being evidence of the contract for the purchase of the land, and, second, as contradicting the plaintiff.
    In an action of assumpsit where the plaintiff testifies to a demand which he had made upon the defendant based upon the claim involved in the suit, the defendant may show that the demand in question was made by the plaintiff for an entirely different purpose.
    Argued May 15, 1907.
    Appeal, No. 43, April T., 1907, by defendant, from judgment of C. P. Lawrence Co., Sept. T., 1904, No. 27, on verdict for plaintiff in case of Sebastiano Costa v. Antonio Musumando, alias Antony Musoman.
    Before Rice, P. J., Henderson, Orlady, Head and Beaver, JJ.
    Reversed.
    Assumpsit to recover money had and received. Before Porter, P. J.
    The opinion of the Superior Court states the case.
    At the trial the court refused to admit in evidence an agreement in writing, the material portion of which is as follows :
    “ Made the nineteenth day of October, in the year of our Lord one thousand eight hundred ninety-eight, between Chas. T. Hetzel of Pittsburg street, city of New Castle, Pa., and Mrs. Tressie Musoman, Bernard Musoman and Rosa Costa, parties of the second part:
    “ Witnesseth, that the said party of the first part, for the consideration hereafter mentioned and contained, agrees to sell and convey unto the said parties of the second part, their heirs or assigns, all certain piece, parcel or lot of land situate, lying and being in Shenango township, Lawrence county, Pa., known as Long farm, and containing ten acres, more or less.” [1]

      When the plaintiff was on the stand the following offer was made:
    Sebastiana Costa, the plaintiff, being on the witness stand in his own behalf, and having testified tliat defendant had offered him money on his claim in this case, defendant’s counsel on cross-examination asked him as follows: “ Q. Now at this time you had this talk, at the time you were demanding money of Musoman, wasn’t he threatening to leave his- wife, and wasn’t this money he offered you money that you asked and demanded as pay for leaving your wife and going back to Italy, and not pay for any money you had advanced ? ”
    Objected to as incompetent and irrelevant.
    Defendant’s counsel: Offered for the purpose of showing it was not a demand made for settlement of this case, but that it was money asked for the purpose of getting him to leave his wife, and he. would do tliat if he was given so much money— that he was doing no good here and would go back to Italy.
    Objected to as incompetent, irrelevant and immaterial, and not cross-examination.
    The Court: We will sustain the objection and seal an exception for the defendant. [2]
    Defendant presented these points :
    12. That the plaintiff’s proof in this case does not sustain his statement of claim, and the verdict should be for the defendant. Answer: Refused. [3] .
    2. If the jury find that the defendant acknowledged before witnesses that he was indebted to the plaintiff in any sum in this transaction (as related by plaintiff) the jury should return a verdict for the plaintiff for not less than the amount acknowledged, with interest from the date of payment of said money by plaintiff to defendant.
    The Court: Affirmed; that is, if the amount which he admitted he owed was an amount growing out of the purchase of this real estate as related by the plaintiff. [4]
    Verdict and judgment for plaintiff for f>682. Defendant appealed.

      Errors assigned were (1, 2) rulings on evidence, quoting the bill of exceptions ; (3, 4) above instructions, quoting them.

      Oscar L. Jackson, with him Charles Q. Martin, for appellant,

      October 7, 1907:

      J. P. Lockhart, of Akens, Wilkison, Lockhart Chambers, with him Aaron L. Mazen and Charles E. Mehard, for appellee.
   Opinion by

Beaver, J.,

The core of the inquiry in this case was as to the character of, and parties to, an agreement for the purchase of land from one Hetzel, there being no controversy as to the fact of the purchase and the identity of the land.

The plaintiff alleged that the agreement was made by him and the defendant with Hetzel, that the agreement was in writing but had not been signed by him, and that lie had paid part of the purchase money, upon the agreement, which he sought to recover from the defendant, the deed having been subsequently made to the defendant alone.

The defendant, on the other hand, claimed that the agreement was in writing, that it showed for itself who the parties to it were and that instead of the plaintiff being one of the purchasers his wife was the real purchaser; that she signed the agreement; that she paid the purchase money, so far as it was paid, for her interest, and that the money had been repaid to her.

Evidently the writing was some evidence as to what the agreement was. The plaintiff had possession of it during the examination of his witnesses, but did not offer it in evidence, except as to certain entries of payments made thereon, which he offered to introduce, in order to corroborate his testimony. The introduction of these memoranda of payment was objected to and rightfully excluded. The defendant offered the agreement in evidence. It was clearly admissible, first, as being the best evidence of the contract for the purchase of the land from Hetzel, and, second, as contradicting the plaintiff. The offer was objected to and the evidence excluded, upon the ground, as thus stated by the court:

“ The plaintiff having testified that, on the 19th day of October, an agreement was made for the purchase of the land in question, between Charles T. Hetzel, on the one part, and the defendant and plaintiff on the other part, the agreement as offered would not tend to contradict the testimony of witness in that respect, as it is not an agreement between Charles T. Hetzel on the one part and the defendant and plaintiff on the other part. The objection is sustained and an exception sealed for the defendant.”

The difficulty with this ruling is that it assumes that the plaintiff was correct in his contention that the agreement was between Hetzel on the one part and the defendant and the plaintiff on the other part, whereas the defendant contended that there was no such agreement and that the only agreement for the purchase of the land was between parties other than plaintiff and defendant, and offered to show just what the agreement was. This was clearly competent and entirely relevant. If this written agreement-was the one under which the purchase was made, the plaintiff was clearly mistaken as to his views of the case, particularly in view of the fact that he himself had testified that the agreement was in writing, but that he had not signed it.

Equally competent and relevant was the question asked by the defendant’s counsel, on cross-examination, of the plaintiff, as to an alleged offer of compromise or of repayment of a less sum than the plaintiff alleged he had advanced for the purchase of the land. The question was this: “ Now at this time you had this talk, at the time you were demanding money of Musoman, wasn’t he threatening to leave his wife, and wasn’t this money he offered you money that you asked and demanded as pay for leaving your wife and going back to Italy, and not pay for any money you had advanced? ” It is very clear that, if the demand was for the object named in the question and not for what the plaintiff had- alleged in his examination in chief, the negotiations were about another subject entirely and could have had no relevancy to the question in issue in this case. The defendant should have been allowed to ask the question.

We are of opinion that the refusal of the defendant’s twelfth point, that “the plaintiff’s proof in this case does not sustain his statement of claim and the verdict should be for the defendant,” was correct.'

The affirmation of the plaintiff’s second point, with the qualification added by the court, was not erroneous.

This covers the entire case, as presented in the specificatioiis pf error by the defendant,

It is possible that, as claimed by the appellant, on a retrial, the plaintiff may experience some difficulty in establishing a right to recover in assumpsit, but it is not necessary for us to anticipate the difficulty, if such should be found, as it is not legitimately raised by any of the specifications of error.

For the reasons stated, the case must go back for a new trial.

Judgment reversed with a new venire.

Rice, P. J., dissents.


text:
    Fisher v. Pennsylvania Company, Appellant.

      Practice, C. P. — Improper remark of counsel — Reference to judgment of justice of the peace.

    On the trial of an appeal from a justice of the peace, a statement made by counsel in his opening to the effect that before the justice of the peace there had been a judgment for plaintiff, constitutes good reason for directing the withdrawal of a juror, and if this is not done, it is a reversible error on review of the record; and this is especially the case where the court gave the jury no instructions on the subject.
    Argued May 15, 1907.
    Appeal, No. 66, April T., 1907, by defendant, from judgment of C. P. Lawrence Co., March T., 1901, No. 3, on verdict for plaintiff in case of Alexander Fisher v. Pennsylvania Company.
    Before Rice, P. J., Henderson, Orlady, I-Iead and Beaver, JJ.
    Reversed.
    Appeal from judgment of an alderman. Before Porter, P. J.
    The opinion of the Superior Court states the case.

      Error assigned among others was refusal to withdraw a juror and continue the case.

      Oscar L. Jaclrson, with him Charles R. Davis, for appellant.
    It was the duty of the court to have withdrawn a juror and continued the case: 21 Pepper & Lewis’ Digest of Decisions, column 37,736 ; Walsh v. Wilkes-Barre, 215 Pa. 226; Wagner v. Hazel Twp., 215 Pa. 219; Hale v. Hale, 32 Pa. Superior Ct. 37; Holden v. Pennsylvania Railroad Co., 169 Pa. 1; Jones v. Cleveland, 8 Luzerne Leg. Reg. Rep. 461.
    October 7, 1907:

      C. H. Alcens, of Ahens, WilMson, Lochhart Chambers, with him D. N. Keast, for appellee.
    A Lawrence county jury would not be impressed by the decision of a New Castle aider-man, especially when rendered in favor of the plaintiff.
    The objection is finical. It did not appear to have merit at the time. It would not appear to have merit now, except for the freedom exercised by counsel in its presentation. It was an incident occurring in the progress of the trial in the presence of the court and certainly belongs to those matters over which the trial court has supervision and control. Except in cases of gross abuse an appellate court will not interfere: Com. v. McMahon, 14 Pa. Superior Ct. 621; Moore v. Neubert, 21 Pa. Superior Ct. 144; Com. v. Sarves, 17 Pa. Superior Ct. 407; Martin v. McCray, 171 Pa. 575.
   Opionkxst by

Orlady, J.,

A remark made by the plaintiff’s counsel in his opening argument to the jury is made the basis of the first assignment of error. The counsel for the defendant promptly moved the court as follows: “ I now ask the court to withdraw this case from the jury and continue it at the expense of the plaintiff, on account of the statement of counsel in opening the case to the jury, that in the trial of the case before the alderman there was judgment for the plaintiff.” One of the plaintiff’s counsel stated: I will ask that part of my opening be not considered by the jury, ” though his colleague urged, “ I cannot see that a remark of that kind, made by counsel in opening the case when the jury are called and understand they are to try the case on the evidence produced by the witnesses upon the stand, how a 'juror could possibly be affected by the statement that an aider-man had decided a case one way or the other and the juror’s judgment influenced thereby; if that were the case in the quarter sessions court a defendant could never get a fair trial because he could not be in court unless the alderman had bound bim over. ” The court ruled, to wit: The effect would be the same if they had offered to prove this in evidence. We will say to the jury that'they must dismiss that from their minds. We will refuse the motion to continue the case and seal an exception to the defendant.

It is not clear whether the trial judge in his final charge to the jury intended to instruct them further in regard to this, and overlooked it afterwards, or whether he considered the disposition made of it at the time a sufficient caution to the jury, but the fact is, that no further reference was made to it during the trial, and the jury returned a verdict against the defendant.

These remarks of counsel are properly brought upon the record, and there is an unbroken line of authorities covering 100 years which hold that they constitute a good reason for directing the withdrawal of a juror, and if this is not done, it is a reversible error on review of the record.

In Ridgely v. Spenser, 2 Binn. 70, it was held that the verdict of a former jury in the same cause which had been set aside by the court, is not evidence, and the judgment on the second trial was reversed because the record of the former trial had been received in evidence; and it was decided in Shaeffer v. Kreitzer, 6 Binn. 430, that upon an appeal from an award of arbitrators, it is error to read the award to the jury, Judge Tilghman saying, “Impressions once made are not easily erased, and when the jury have been permitted to hear that men for whose character they entertain a respect have decided in a certain wa3r, it will be; very apt to influence their own decision in spite of all the caution that they may receive from the court. As the report of the arbitrators has nothing to do with this issue, it ought not to be read, and no person could ever wish to read it, but with a view of influencing the minds of the jury by improper motives. ” The same was held in Hyslop v. Crozier, 1 Miles, 267, the court adding, “and the stating the fact by the counsel, which has the same tendency, is too important an irregularity to be overlooked, there must be strong special circumstances to induce the court in cases of this kind to refrain from granting a new trial.” This same principle was applied in Try on v. Miller, 1 Whart. 11; Delaware & Hudson Canal Co. v. Barnes, 31 Pa. 193; Erie & W. V. R. Co. v. Smith, 125 Pa. 259.

In Butler v. Slam, 50 Pa. 456, it is decided that the charge of the court in one action is not evidence to be read to the jury in another action founded thereon. In Good v. Mylin, 13 Pa. 538, and in Ege v. Mealar, 82 Pa. 86, it was held that it was right to refuse to permit the opinion of the Supreme Court on a former hearing of the case to be read' to the jury. “ The jury are to take the law of the case, not from the report of the former trial, but from the presiding judge, whose direction is subject to revision.”

The fullest freedom of speech within the duty of his profession should be accorded to counsel; but it is license, not freedom of speech, to travel out of the record, basing an argument on facts not appearing but outside the proof. Questions of this kind generally arise out of the closing argument of counsel; but the rule is the same at whatever stage of the case the improper language is used.

So much depends on what is said, and the connection in which it stands, that it should be a clear case of infringement upon the right of counsel to comment upon the incidents of the trial to induce us to interfere with the discretion of the trial judge (Commonwealth v. Miller, 139 Pa. 77), but in the case before us while one counsel requests that the objectionable remark be retracted, the other contends for the propriety of the statement in the court below, treats it as a fiivolous complaint here, and the jury was left without any definite direction as to whether it should be disregarded or not. •

It is not possible to gauge the effect such a remark may have had. It is sufficient that the extra professional statement of counsel may have greatly prejudiced the jury and affected the verdict. It is one thing to prevent the entry of an influence into the mind and quite another to dislodge it; as well might one attempt to brush off with the hand a stain of ink from a piece of white linen ; one in the very nature of things is just as impossible as the other: 2 Encl. Pl. & Pr. 724, 820. Vide also Holden v. Penna. R. R. Co., 169 Pa. 1; Dougherty v. Pittsburg Rys. Co., 213 Pa. 346; Walsh v. Wilkes-Barre, 215 Pa. 226; Wagner v. Hazel Township, 215 Pa. 219; Hale v. Hale, 32 Pa. Superior Ct. 37.

The judgment is reversed for this error alone, and a venire facias de novo awarded.


text:
    Wilson v. Pennsylvania & Mahoning Valley Railway Company.

      Negligence — Charge—Measure of damages — Request for instructions.

    In a negligence case, where the court briefly, but sufficiently charges on the question of damages, and no points on the subject are presented by counsel, the appellate court will not reverse the judgment because of inadequate instructions.
    Where a plaintiff in an accident case shows his earnings as an insurance adjuster in this country, he may also show, if the time is not too remote, and the conditions different, what was his earning capacity in the same business before he came to this country.

      Negligence — Street railways — Transfer slip — Ejectment of passenger.

    In an action against a street railway company to recover damages for an alleged wrongful ejection of a passenger, where the defendant claims that the plaintiff was ejected because he refused to pay fare after the expiration of the time limit of a transfer slip which he held, the transfer slip is properly admissible in evidence as a material part of the plaintiff’s case.
    In such a case where the defendant has offered evidence of the expiration of the time limit, the plaintiff may in rebuttal show how he had occupied his time in order to establish his claim that the time limit had not expired.
    Argued May 16, 1907.
    Appeal, No. 181, April T., 1907, by defendant, from judgment of C. P. Lawrence Co., March Term, 1904, No. 80, on verdict for plaintiff in case of James D. F. Wilson v. Pennsylvania & Mahoning Valley Railway Company.
    Before Rice, P. J., Henderson, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for wrongful ejectment from a car. Before Porter, P. J.
    The opinion of the Superior Court states the case.
    Verdict and judgment for plaintiff for $500. Defendant appealed.

      Errors assigned were various rulings on evidence and instructions sufficiently appearing in the opinion of the Superior Court.

      October 7, 1907:

      Q. S. Aliens, witli him S. A. Wilkinson, John JP. Lockhart and. James A. Chambers, for appellant.

      Robert K. Aiken, with him James J. Lgoe, for appellee.
   Opinion by

Beaver, J.,

The evidence in this case was contradictory. The jury would have been warranted in finding, however, if they believed the testimony of the plaintiff and his corroborating witnesses, that he was forcibly and violently ejected from a moving car upon which he was a passenger. The verdict would seem to imply that such was their conclusion. If so, the damages awarded by the verdict were scarcely more than nominal. They would also have been warranted in finding, although as to this the plaintiff was perhaps not corroborated, that he was a passenger in the car upon which he was riding with a proper transfer ticket, in which event the conductor would have had no right to eject him. That he was ejected is not denied. That he had a transfer ticket is not denied. He alleges that this ticket, given to him by the conductor in another car, was used by him in the next car following it, and within the time limit prescribed in the transfer ticket itself. The defendant, however, alleged that the time limit had expired, and that he was, therefore, not entitled to use the transfer, and, in refusing to pay his fare which was demanded, he was rightfully ejected. If the jury believed the testimony of the plaintiff their verdict would have been justified, and the amount of it would not be excessive.

We are, of course, unable to determine definitely the ground upon which the verdict of the jury rests. In either event, however, there is nothing calling for our intervention in the case, unless there is error in the admission of incompetent, immaterial and irrelevant testimony, or the rejection of such as was competent, material and relevant, or unless the court erred in its charge to the jury or in the affirmation of some of the plaintiff’s points or the denial, in whole or in part, of one or more of the defendant’s points.

The specifications of error cover about twenty pages of the appellant’s paper-book. We have examined them all with some care and have read the entire testimony more than once with reference to them. There was no request for binding instructions by the defendant.

The last specification of error relates to the failure of the court “to instruct the jury as to the measure of damages, (1) in case they found that the conductor refused to accept a transfer entitling the plaintiff to carriage ; or (2) in case they found that the conductor had violently ejected plaintiff from a car running at a high rate of speed.” This assignment of error is not well founded. The charge of the court-is brief, but it is, in our opinion, adequate, clear and sufficient. In reference to the measure of damages the court says : “ What damage, if any, is the plaintiff entitled to recover? In other words, how much money will compensate him for the injuries that he has sustained. And, in doing this, gentlemen, we say to you that he would be, if you find negligence on the part of the defendant company, and also find that the plaintiff in no way contributed thereto, entitled to receive, and you would be justified in remunerating him, for any time he has lost, the earnings he has lost and for any money expended by him in receiving treatment for the injury he has sustained. If you should find these injuries are permanent, what loss, if any, is he likely to sustain by reason of that ? ” The defendant submitted twenty-two separate and independent points for charge. The case was ably tried. It is rather remarkable that none of the points relate to the measure of damages, and that no objection was made at the time in regard to the charge of the court in reference thereto. There is no complaint as to error in what the court did say. It is only as to failure to say what, in the opinion of the defendant’s counsel, was sufficient in regard to the measure of damages. It is to be fairly inferred that the defendant intended to cover the entire case by its numerous points, and that, with the ability and ingenuity of the counsel who presented these numerous points for charge, any lack of clearness or fullness in regard to the question of damages would be discovered at the time, and, if so, the attention of the court should have been called to it and the request made for fuller instruction.

In reference to the defendant’s points, fifteen were affirmed unconditionally. Several others are affirmed as to the principle involved, leaving out the language employed by the defendant, which would.seem to indicate that the jury would have a right to return two separate verdicts — one in favor of the plaintiff and the other in favor of the defendant. Those which were refused, or refused as stated, wei'e evidently refused for the reason that they, in every case, end, “ your verdict should be for the defendant on this feature of the case,” or “ your verdict should be against him'on this branch of the ease,” or “ your verdict should be for the defendant on that question.” In some of these cases the points were affirmed, leaving off this particular objectionable ending, but in no case was any point, containing a vital principle stated in unobjectionable form, refused which ought to have been affirmed.

Nor do we discover any error in the affirmation of any of the points presented by the plaintiff.

The plaintiff was confessedly ill at the time of the accident, his testimony being that he was on his way to consult his physician. The testimony of the plaintiff, as to what proportion of the money expended by him for medical attendance and advice was occasioned by the accident, is somewhat indefinite, and it was probably impossible to determine that with absolute certainty. The question was raised, however, in the course of his testimony, and the court endeavored to confine it as far as possible to the amount that was actually expended by him in consequence of his alleged injuries. The defendant had abundant opportunity, on cross-examination, to ascertain the limit of the expenditures for this purpose on the part of the plaintiff.

The defendant also complains that the plaintiff was allowed to show his earning capacity in Ireland, as an insurance adjuster, before coming to this country, but the time was not remote and the conditions, so far as the plaintiff’s knowledge of his business and of his ability to conduct it were concerned, were practically the same. We fail to see, therefore, under the circumstances, how there could have been any other mode of comparison, particularly in view of his testimony as to his actual earnings in the same business after he reached this country.

The offers, upon cross-examination, in regard to the employment and discharge of former counsel in this suit and of previous suits brought by the plaintiff against other corporations for various alleged causes, were neither cross-examination nor were they relevant to the issue. We think they were properly rejected.

The transfer slip, by the possession of which the plaintiff claimed his right to be upon the car from which he was ejected, was a material part of his case, and was, we think, properly received as evidence.

The defendant, having shown by his witnesses that the plaintiff, having offered his transfer slip after seven o’clock instead of after six, as he claimed, we think the testimony in rebuttal that he returned to the house of his sister, where he had dined and from which he had gone to consult his physician, was entirely proper. It was not a part of the case in chief, and, if offered then, would have been objectionable, as anticipating the defense.

This is an ordinary negligence case. No new principles are involved, and the case is so fully covered by the general principles, as stated in the points presented by the plaintiff and defendant, and, for the most part, affirmed by the court, that further discussion would seem to be entirely unnecessary.

Finding no reversible error in regard to the admission or rejection of testimony, or the affirmance or refusal of the points .presented by the plaintiff and the defendant, and regarding the charge as full and adequate, we can find no sufficient reason for interfering with the moderate verdict rendered by the jury.

Judgment affirmed.

Henderson, J.. dissents.


author: Head, J.,

text:
    Rote v. Pennsylvania & Mahoning Valley Railway Company.

      Negligence — Street railways — Collision between car and wagon — Signals —Fog.

    In an action against a street railway company to recover damages for personal injuries, it appeared that the plaintiff was driving a wagon on a dark and foggy night on one of defendants double tracks on which he would face an approaching car. The condition of the other track and the part of the cartway not occupied by the tracks was such as to make it dangerous to drive thereon. At the moment the plaintiff went upon the track in question he checked the- speed of his horse and looked and listened for an approaching car, but could see or hear nothing. Immediately afterwards a car appeared ahead of him with a signal light shining, but no gong sounding. Plaintiff attempted to leave the track, but his wagon was caught and he was injured. He testified that the car was going between twelve and twenty miles an hour. There was evidence that the gong was last rung when the plaintiff was 500 feet away. Plaintiff stated that he had been a brakeman on a steam railroad, and that his estimate as to the speed of the car was based upon his experience in such employment. Held, that the case was for the jury and that a verdict and judgment for plaintiff should be sustained.
    Argued May 16, 1907.
    Appeal, No. 219, April T., 1907, by defendant from judgment of C. P. Lawrence Co., Dec. T., 1904, No. 59, on verdict for plaintiff in case of A. M. Rote v. Pennsylvania & Mahoning Valley Railway Co.
    Before Rice, P. J., Henderson, Oready, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Porter, P. J.
    The particulars of the accident are stated in the opinion of the Superior Court.

      Error assigned, among others, was in refusing binding instructions for defendant.

      C. 3. AJeens, with him 3. A. Wilkison, John P. Lockhart and James A. Chambers, for appellant.
    There was no case for the jury: Wagner v. Lehigh Traction Co., 212 Pa. 132; Moss v. Philadelphia Traction Co., 180 Pa. 389; Thane v. Traction Co., 191 Pa. 249; McKee v. Traction Co., 211 Pa. 47; Davis v. Electric Ry. Co., 25 Pa. Superior Ct. 444; Gress v. Ry. Co., 14 Pa. Superior Ct. 87; Thatcher v. Traction Co., 166 Pa. 66; Callahan v. Traction Co., 184 Pa. 425 ; Kline v. Traction Co., 181 Pa, 276; Kelly v. Union Traction Co., 211 Pa. 456; Philadelphia & Reading R. R. Co. v. Hummell, 44 Pa. 375; Schaeffer v. Jackson Twp., 150 Pa. 145; Berks v. Traction Co., 22 Montg. 169.

      3 K. Gregory, with him S. P. Emery and T. W. Dickey, for appellees.
    Under'the circumstances, a dark night, dense fog, no notice of the car’s approach being given, the rate of speed, the question of negligence, could not have been taken from the jury: Gaughan v. Traction Co., 189 Pa. 408; Fisher v. Ry. Co., 131 Pa. 292; Smith v. B. & O. R. R. Co., 158 Pa. 82; Davidson v. Ry. Co., 171 Pa. 522; Minnich v. Wright, 214 Pa. 201; Gray v. Penna. R. R. Co., 172 Pa. 383.
    October 7, 1907:
    The plaintiff had a right to use the part of the road occupied by the track of the defendant company: Davis v. Electric Ry. Co., 25 Pa. Superior Ct. 444; Kestner v. P. & B. Traction Co., 158 Pa. 422.
   Opinion by

Head, J.,

To sustain this appeal we must be able to determine from the record before us that the learned court below should have declared, as a matter of law, that the plaintiff had failed to make out a case, and directed a verdict for the defendant. By the single point for charge presented by the latter the court was asked to so declare. This would have been tantamount to saying that the evidence presented by the plaintiff, even if fully accepted by the jury, disclosed no act of negligence on the part of the defendant causing the injury complained of, or that it exhibited such a breach of a defined legal duty on the part of the plaintiff, that any right to recover he might otherwise have had, was forfeited and lost by reason of his negligence.

Would the court have been warranted in so saying? Accepting the testimony as true the following facts were proven: The plaintiff was employed in a tin mill in the city of Newcastle. He lived several miles from the mill and was accustomed to drive to and from his work in a buggy. At the time of the injury complained of he was working on a night shift and about three o’clock in the morning was driving along Mahoning avenue towards the mill. Upon that street, running east and west, the defendant operated a line of street cars with double tracks. The street had not been permanently improved, and that portion of the city occupying low ground, by reason of then recent heavy rains, ditches dug to carry off standing water, etc., the cartway had gotten into bad, if not dangerous, condition. The plaintiff was, therefore, driving upon the north or westbound track. Just before the accident occurred he oh-served that the ballast had been washed out from the track on which he was traveling, leaving the ties bare, so that if he were required suddenly to turn out, by a car approaching from behind, he would be in danger of overturning his buggy. ITe, therefore, crossed to the south or eastbound track on which he would face an approaching car. The night was dark and a heavy fog was hanging over that portion of the city so that it was impossible to see for any distance. At the moment he crossed to the south track he checked the speed of his horse and looked and listened for an approaching car, but could see or hear nothing. Almost as soon as lie “ got straightened up rightly ” on that track a car showed its light “ thirty or forty feet, something like that ” away, traveling, in the words of plaintiff, “probably between twelve and twenty miles an hour, the way it appeared to jump on to me.” He was not warned by any gong and although he attempted to leave the track as soon as he saw the light, the car reached him before he could do so. The collision was of such violence that the horse died or had to be killed as the result, the buggy was “ all smashed up ” and the plaintiff received considerable injury.

With such a state of facts presented by the testimony of the plaintiff, upon what basis could the learned court below have safely rested the binding instructions prayed for ? Although the plaintiff with his buggy and the defendant with its car were both using the same portion of the highway at the same time, each was in the exercise of a lawful right. Conceding that the right of the defendant to the use of the track was paramount, it was none the less bound to enjoy that right in such manner as to afford other traffic, when warned of the approach of a car, a reasonable opportunity to clear the track. Because the night was dark and f oggy the law did not require the plaintiff to remain at home nor oblige the defendant to stop running its cars. It did impose on both the duty of proceeding with more than ordinary care. The plaintiff must have been alert and actively using his senses of sight and hearing to discover the approach of the car. There was nothing in his testimony to warrant the court in declaring that he had failed in the discharge of that duty. If there was any evidence at all in the case tending to show any culpable disregard of his legal obligation to act prudently and carefully, it was in contradiction of his own testimony and it, therefore, raised a question of fact for the jury rather than one of law for the court.

On the other hand, the defendant, exercising reasonable care under existing conditions, would certainly be required to operate its cars at less speed and under quicker control than if the night had been clear and the range of vision wide. If, as the defendant’s witnesses admit, the warning from the headlight on the car, owing to the fog, was less effective than usual, would not the exercise of reasonable care have required a more frequent and insistent warning from the gong ? The plaintiff says no such warning was given within hearing of the place at which he was injured. The motorman himself admits that he rang the gong last, before he saw the buggy, for the street crossing west of McKinley street, at which time the plaintiff, according to the blue print furnished by the appellant, must have been about 500 feet away. Was this the exercise or the absence of due care, in this respect, under the circumstances? The speed of the car-just before the accident must be determined from conflicting evidence. The plaintiff says the moment he saw the light he attempted to turn out, but the speed was so great the car was on him before he could clear the track. He estimates that speed at from twelve to twenty miles per hour. This of course was but an estimate and made under difficult conditions, but he also testifies he had been a brakeman on a steam railroad for four years and would, therefore, have such capacity to judge of the speed of a moving car as that experience would afford. The motorman, while not attempting to fix the rate of speed, says the car was moving slowly ; but admits that although he applied the electric brake as soon as the buggy came within the range of his headlight, he was unable to stop in time to prevent a collision.

The law does not attempt to fix with precision the speed at which a car may travel or when or how often its gong should be rung under all conditions of weather, traffic, etc. It can only say, as it has so often said, that the standard *of legal duty in all conditions is due or reasonable care under the circumstances. The whole question, therefore, of the defendant’s care or negligence, in the present case, was a mixed one of law and fact, tobe solved only by the verdict of a jury under proper instructions from the trial judge. As we discover no error in those instructions we must conclude the court was right in refusing the defendant’s point for binding instructions and later in denying its motion for judgment notwithstanding the verdict.

Judgment affirmed.


text:
    Shuster v. Central District & Printing Telegraph Company, Appellant.

      Telephone companies — Eminent domain — Damages—Evidence.
    In a proceeding against a telephone company to assess damages for injuries to land resulting from the construction of a telephone line along a public road passing through and over the land, witnesses will not be permitted to testify to diminution in the value of the land caused by increased danger from lightning by reason of the construction of the telephone line, where there is no testimony in the case as to a single fact founded on observation or actual experience that would warrant the conclusion that the construction and operation of the line would naturally and probably result in such increased danger to life or property from lightning as to substantially diminish the value of the land.
    When the property of an individual has been appropriated for public use, his right to , recover compensation, commonly called damages, therefor, is perfect, and he may proceed to enforce it as soon as the act of appropriation is complete. He is not required to await even the beginning of the actual work of construction on the ground. It is also true that he not only may but must recover in one proceeding, even when thus promptly begun, all of the compensation intended by the law as a satisfaction for the injuries resulting from the construction and use of the prospective improvement, or the subjection of his property to a servitude from which it was formerly free.
    It would therefore seem to follow that in such cases the injuries for which compensation is to be made are those and only those which can be ascertained and valued as well before they actually occur as after-wards. This is but another way of saying that tribunals awarding such compensation, will confine their attention to injuries which are real and actual, and which although they have not occurred, will so naturally, usually and probably follow the appropriation of the land and its subjection to the new public use, that their happening can be reasonably foreseen, their extent measured and their equivalent in money ascertained. To go beyond this limit would be to step at once into the domain of speculation or fancy and compel courts and juries to estimate, without rule or standard, the present cash value of all the apprehensions of future injury the imagination of a plaintiff or his witness might suggest.
    Where a jury returns an excessive verdict in a land damage ease, and it appears that there is testimony which in the judgment of the appellate court tends to fix the actual damages, such court may affirm the judgment conditionally, upon the plaintiff filing of record within a time stated, a release of so much of the verdict and judgment as will reduce them to the amount of the actual damages ascertained in the manner stated.
    Argued May 14, 1907.
    Appeal, No. 145, April T., 1907, by defendant, from judgment of O. P. Butler Co., Dec. T., 1904, No. 16, on verdict for plaintiff in case of Grant Shuster v. The Central District & Printing Telegraph Company.
    Before Rice, P. J., Pouter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Judgment modified.
    Appeal from award of jury of view. Before Galbreath, P. J.
    When William Nolf was on the stand he was asked this question:
    “ Q. That makes this damage $4,280 ; you say $500 you allow for the telephone poles standing on the highway, is that correct? A. Yes, sir. Q. That would leave $3,780 for damage by lightning; you say the rest, $3,780, is allowed because you were afraid lightning would strike ? A. Yes, sir, on account of electricity.”
    Mr. McQuistion: The witness having stated that in his opinion $500 was the damage sustained by reason of the telephone poles standing along the public highway and the remainder of the damages, $3,780, was from the fear of electricity or lightning in the future, the defendant’s counsel here and now move the court to strike out the testimony of the witness except that predicated upon the injury done to the highway and inconvenience by reason of the poles standing thereon, the same being speculative, remote and uncertain.
    The Court: We could not strike out the testimony on that account; this is in the same category as the possible danger from fire from a railroad and the tendency or relevancy is for the jury; that will be a question for the jury.

      Mr. McQuistion: And for the further reason that the witness has not given any satisfactory or substantial reason for his opinion, it being remote and a mere guess.
    The Court: We will refuse the motion and receive the testimony and seal a bill. [11, 12]
    Mr. McQuistion: Counsel for defendant moves the court to strike out the testimony of Wm. Swank as wholly speculative, uncertain and remote in that he states that the danger may be and damage may be sustained in the future from lightning and because the plaintiff may some time in the future want to change the location of his fences and gates; all of which testimony is uncertain and does not relate to the condition of affairs existing at the time the telephone line was constructed.
    The Court: The testimony is for the jury, we will overrule the objection and seal a bill. [14]
    Defendant presented these points:
    The fact that a fear exists that lightning might in the future, strike the poles of the defendant company’s lines and injure the property of the plaintiff cannot be considered by the jury in estimating the damages sustained by the plaintiff. Answer: The mere fear of damage from lightning cannot be considered by the jury unless such fear rests on that which is reasonable and probable. [6]
    The depreciation of selling value of plaintiff’s land by reason of the fear of lightning striking the poles and wires in the future cannot be anticipated; it js so uncertain, improbable and remote that the jury should exclude from their -consideration such testimony. Answer: The mere fear of damage from lightning cannot be considered by the jury unless such fear rests on that which is reasonable and probable. [7]
    The court charged in part as follows :
    [The contention of the plaintiff is that damage has ensued to him, not only by reason of the taking of his land, or a portion of it, in the erection and construction of this line, but by reason of damages likely to ensue by reason of the proximity of the line to the plaintiff’s barns and the consequent danger of lightning. Now, gentlemen, in regard to that, the testimony is for the jury; you are men of observation; you have seen telephone and telegraph lines through the country and in the towns, and whatever knowledge you have acquired through your observation of those things and the consequent danger there may be and degree of danger that may result from the construction and maintenance of such lines through the country and through the towns, that knowledge you will bring to bear upon the facts of the ease. In other words, you will test the facts of this case and the testimony of the witnesses by that knowledge which you have, as men of affairs, who observe things as you go along. So that we say to you now in regard to that matter of the danger of- lightning if the witness’ testimony seems to rest upon substantial basis, then to whatever extent the danger from lightning that will be reasonable and probably incident to the operation and maintenance of the line, that, gentlemen, is a fact for your consideration.] [24]
    Verdict and judgment for plaintiff for $307.50. Defendant appealed.

      Errors assigned among others were (11, 12, 14) rulings on evidence, quoting the bill of exceptions; (6, 7, 21, 24) above instructions, quoting them.

      T. C. Campbell, with him Lev. MeQuistiomxíñ. C.L. McQuistion, for appellant.
    The danger by lightning was purely imaginary, and evidence of it inadmissible: Lee v. Milner, 2 Mees. & W. 824; Sunbury & Erie R. R. Co. v. Hummell, 27 Pa. 99 ; Hamilton v. R. R. Co., 190 Pa. 51; Patten v. Northern Cent. Ry. Co., 33 Pa. 426 ; Kendall v. Lee, 2 P. & W. 482 ; Clements v. Philadelphia Co., 3 Pa. Superior Ct. 14; Wallace v. Jefferson Gas Co., 147 Pa. 205; Railway Co. v. McCloskey, 110 Pa. 436.
    An essential test of the competency of the witness called to give an opinion in respect to the market value of the land is that they should affirmatively appear to have actual personal knowledge of the facts affecting the subject-matter of the inquiry : Ry. Co. v. Vance, 115 Pa. 325 ; Friday v. Penna. R. R. Co., 204 Pa. 405 ; Michael v. Crescent Pipe Line Co., 159 Pa. 99.

      John M. Greer, with him John B. Greer and Thomas H. Greer, for appellee.

      October 7, 1907 :
   Opinion by

Head, J.,

The defendant, in the exercise of its corporate franchises, constructed a telephone line along a public road that passed through and over the farm of the plaintiff. Within the limits of his property there were planted, along the roadside, twenty-three poles carrying cross arms and wires. .The nearest pole to any of his buildings was one standing in the neighborhood of thirty feet from the barn. The damages suffered by the plaintiff were assessed first by a board of viewers and afterwards, on appeal from their report, by a jury. The assignments of error based on the rulings of the learned court below during the trial, although numbering twenty-four, may be all disposed of in the consideration of two questions, viz.: (a) was evidence received which tended to prove, as a basis for damages, alleged injuries to the plaintiff’s land which were remote, speculative and fanciful? (b) were witnesses permitted to give their opinions as to such damages who had not shown the qualifications necessary to render them competent for that purpose ?

Under our system of jurisprudence when the property of an individual has been appropriated for public use, his right to recover compensation, commonly called damages, therefor, is perfect, and he may proceed to enforce it as soon as the act of appropriation is complete. He is not required to await even the beginning of the actual work of construction on the ground. •It is also true that he not only may but must recover in one proceeding, even when thus promptly begun, all of the compensation intended by the law as a satisfaction for the injuries resulting from the construction and use of the prospective improvement, or the subjection of his property to a servitude from which it was formerly free.

It would therefore seem to follow that in such cases the injuries for which compensation is to be made are those and only those which can be ascertained and valued as well before they actually occur as afterwards. This is but another way of saying that tribunals awarding such compensation, will confine their attention to injuries which are real and actual, and which, although they have not yet occurred, will so naturally, usually and probably follow the appropriation of the land and its subjection to the new public use, that their happening can be reasonably foreseen, their extent measured and their equivalent in money ascertained. To go beyond this limit would be to step at once into the domain of speculation or fancy and compel courts and juries to estimate, without rule or standard, the present cash value of all the apprehensions, of future injury the imagination of a plaintiff or his witnesses might suggest. In Sunbury, etc., Railroad Co. v. Hummell, 27 Pa. 99, Lowrie, J., stated the principle thus : “ The law proclaims its general rule, that it has no remedy for merely accidental injuries ; and when providing for the construction of internal improvements, it has uttered no new one. It has given no compensation for the risk of bridges burning or falling; lock or toll .houses taking or communicating fire, stationary engines exploding, locomotives running off the track into a man’s house, dam and locks giving way and inundating his land, or anything of that kind. . . .

“ It is unreasonable to ask intelligent men to make a sworn estimate of a mere risk, which can be founded on no present data, but only on an imaginary state of things which may never exist, or which may come complicated with other things which may totally change their character.”

In Clements v. Phila. Co., 3 Pa. Superior Ct. 14, Smith, J., declared: “As elements of compensation, only those injuries are to be considered which arise so naturally as to be foreseen with reasonable certainty, and are so definite in character that their injurious effects can be presently calculated and measured, pecuniarily, with reasonable accuracy. Viewers and juries are permitted to take into account only injuries certain and definite in their nature and consequences, and substantially affecting the immediate market value of the land; while claims for damages based on theories, conjectures and possibilities have not been allowed: Wallace v. Jefferson Gas Co., 147 Pa. 205; Railway Co. v. McCloskey, 110 Pa. 436.”

In Wallace v. Gas Co., 147 Pa. 205, the judgment was reversed because the trial court permitted the plaintiff to prove, by the opinions of his witnesses, that where a gas line was laid above coal, the mining of the coal might result in the subsidence of the surface, the breaking of the pipe and consequent escape of gas into the mine, and that by reason of the possibility or probability of these things the property was seriously diminished in value. Mr. Justice Greek, after pointing out that no witness had ever observed any such injuries following the construction' of a pipe line, says : “ All of this testimony was merely speculative, imaginary, theoretical and the most of it extremely doubtful, and founded on possibilities which were remote and uncertain, yet the great bulk of the plaintiff’s ■testimony on the subject of damages was made up of just this kind of proof.”

In the present case William Nolf, a neighboring farmer, testified for the plaintiff that the farm of the latter contained 216 acres, and was worth $100 per acre before the construction of the telephone line, but, by reason of that construction, had suffered a diminution in value of $20.00 per acre. This large sum he apportioned by allowing $500 for the poles standing in the road, and the entire remainder because “ damages may be done the homestead any time by electricity; .... the lightning would follow these wires or might heat these wires right there.” William Swank, another farmer, practically put the entire damages, fixed by him at $2,500, on the theory “ there is danger of him passing through (his farm) in a lightning storm, being hit from lightning; there isn’t sufficient quantity of wire to carry the lightning off.” Neither of these witnesses, nor any other who was permitted to give estimates of the damages based on that idea, testified to a single fact founded on observation or actual experience that would warrant the conclusion that the construction and operation of that line would naturally and probably result in such increased danger to life or property from lightning as to substantially diminish the value of the farm. The learned trial court thought this danger “ is in the same category as the possible danger from fire from a railroad.” To us it seems to be an entirely different one. It is a matter of the most common knowledge that in the ordinary movement of trains over a railroad the locomotives emit glowing sparks and cinders which have frequently ignited fences, crops and buildings. Such a danger, resulting from constantly recurring and observed facts, is actual and substantial, and reasonable men may fairly calculate its probable consequences.

But we also know that telephone lines traverse not only the rural highways of the state but the streets of our populous cities and towns, with their wires in close proximity to, and often in actual contact with, hundreds of buildings. If the constant use of this now indispensable factor in our everyday life has been usually or even frequently followed by the danger apprehended by the plaintiff and his witnesses, evidence of the necessary facts to make such apprehension reasonable and substantial could easily be obtained. In the absence of such facts not only was all of the testimony along this line objectionable because the damages it invited would be fanciful, remote and speculative, but the witnesses were wholly incompetent to give any opinions on the subject. Their simple guesses, founded on no special knowledge of the subject, would tend to confuse rather than to aid the jury in disposing of the real issue in controversy. The sixth, seventh, eleventh, twelfth, fourteenth, twenty-first and twenty-fourth assignments are sustained.

We have carefully examined the remaining assignments and we think it sufficient to say, without discussing them, that we are unable to discover any reversible error in the rulings therein complained of.

The construction of the defendant’s line undoubtedly subjected the land of the plaintiff to an additional easement for public use. The location of the poles may have necessitated some readjustment of fences, gates, etc., so that plaintiff’s access to all parts of his land would be as convenient as before. If shade trees were cut down, or other like injuries done, the witnesses complained of were competent to give opinions on all such matters. If they chose to make their estimates so extravagant that they were unable or unwilling to furnish any reasonable basis on which they could rest, this would affect the value of the opinion rather than the competency of the witness. The remedy would be with the jury rather than the court.

With the exclusion from the case of the objectionable theories already referred to, so little remains that it would seem desirable to prevent, if possible, the expenditure of public time necessary for its retrial. One of the witnesses called by the defendant, who had been selected by the court as a viewer, fixed the actual damages sustained by the plaintiff at $160. After considering all of the testimony this conclusion seems to us so reasonable that the plaintiff should have an opportunity to accept it. If he chooses to do so the defendant would have no cause to complain.

It is therefore ordered that if within thirty days after the receipt of the record in this case by the prothonotary of the court below, the plaintiff file in his office a release of so much of the verdict and judgment as will reduce them to $160, the judgment so modified is affirmed. Otherwise the judgment is reversed and a venire facias de novo awarded.