text:
    Commonwealth, v. Philadelphia, Harrisburg & Pittsburg Railroad Company, Appellant.

      Railroads — Obstruction of highway — Indictment—Nuisance—Act of June 13, 1836, P. L. 551.
    Where a railroad company has been indicted for obstructing a 'public road by an embankment, has pleaded guilty, and has had a rule taken upon it to show cause why the sheriff should not abate the nuisance, the railroad company is bound to show affirmatively that the nuisance was in fact abated, and this is the case, although no replication was filed to the answer to the rule. In such a case it is no answer to say that the road had been graded to within the limit of five degrees required by the general road act of June 13, 1836, P. L. 551, inasmuch as that act only applies to the laying out of new roads by viewers legally-appointed for that purpose.
    Argued March 11, 1907.
    Appeal, No. 15, March T., 1907, by defendant, from order of Q. S. Cumberland Co., Sept. T., 1905, No. 101, making absolute a rule to abate a nuisance in case of Commonwealth v. Philadelphia, Harrisburg & Pitts-burg Railroad Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Rule to abate a nuisance. Before Sadler, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was order making absolute rule.

      J. W. Wetzel, of Wetzel Ilambleton, for appellant.
    — The proposition, that in all cases arising on petition and answer the answer must be replied to by way of a replication, otherwise the facts averred in the answer must be taken as true, is too well known to require the citation of authority: Estate of Worthington, 6 Pa. Superior Ct. 484.
    For the mere occupying of a public road a railroad company, possessing rights under the Act of February 19, 1849, P. L. 79, is not guilty of nuisance : Danville, etc., R. R. Co. v. Com., 73 Pa. 29 ; Ry. Co. v. Com., 90 Pa. 300 ; Pittsburg, etc., Ry. Co. v. Com., 101 Pa. 192.

      April 15, 1907 :
    This being a highway in a rural and. sparsely settled part' of a county township, it was permissible to narrow the highway if the travel thereon is not unreasonably inconvenienced or impeded : Monongabela City v. Fischer, 111 Pa. 9 ; Com. v. Shoemaker, 14 Pa. Superior Ct. 194; Com. v. R. R. Co., 23 Pa. Superior Ct. 235.

      N. W. Jacobs and S. S. Rupp>, with them T. Ralph Jacobs, district attorney, for appellee.
    — No replication was required ; even if it were necessary the irregularity of its omission was waived by defendant: Thompson v. Cross, 16 S. & R. 350; Stoever v. Weir, 10 S. & R. 25 ; Rules of court of Cumberland county, rule 91.
    If the defendant cannot construct a grade crossing which will not impede the passage and transportation of persons and property along the highway, they have no right to maintain a grade crossing at all: Com. v. Erie & North East R. R. Co., 27 Pa. 339.
    The defendant not having even attempted to show a necessity for a grade crossing, and the court having found as a fact that no such necessity exists, the grade crossing is a nuisance : Wood on Nuisances, secs. 250, 252 ; King v. Wright, 3 B. & Ad. 681; Com. v. Erie & N. E. R. R. Co., 27 Pa. 339.
    The public have a right to have the road unobstructed its whole width: Com. v. R. R. Co., 66 Mass. 254; Com. v. McNaugher, 131 Pa. 55 ; People v. Vanderbilt, 28 N. Y. 396 ; Harrower v. Ritson, 37 Barb. 301; Republic v. Caldwell, 1 Dallas, 150.
   Opinion by

Beaver, J.,

The defendant corporation entered a plea of guilty upon a bill of indictment which charged that it did “ in, on, upon and across a certain public highway .... unlawfully and injuriously erect, construct, place, set up, keep up and continue, and cause to be erected, constructed, placed, set up, established, maintained, kept up and continued an embankment composed of clay, dirt, stones, cinder, wood, elevated from ten to fifteen feet above the level of said highway, and having placed thereon wooden ties, on which are spiked ‘ T ’ rails of metal. The ground or embankment, ties and ‘ T ’ rails are so constructed and placed in position so as to form a double track railroad extending entirely across said highway,” etc. And further that:

“ Said Philadelphia, Harrisburg & Pittsburg Railroad Company did then and there and thence continually until the finding of this indictment, and still does there unlawfully and injuriously permit and suffer the said embankment, wooden ties and metal ‘ T ’ rails to be and remain in, on, upon and across the said public highway, whereby said public highway then and there was, has been, and is now obstructed, so that the citizens of the said commonwealth could not, and have not been able since, to pass and repass upon and use the said public highway, as they ought and of right should, and were wont and accustomed to do,” etc.

The defendant was sentenced “ to abate the nuisance within three months, pay a fine of $250 and costs of the prosecution.”

On May 24, 1906, the fine and costs were paid and a suggestion filed of record, stating that “ The defendant, by its counsel, respectfully submit that the said sentence has. been complied with and beg leave to file the annexed affidavit.” In the affidavit the defendant’s division engineer says that the grade of the said public road crossing, caused by the raising of the track and installation of a second track, has been reduced by filling and lengthening the approach, so as to bring it within the legal limit. The sides are protected by guard rails, and there is now no obstruction to public travel.

“July 17, 1906, the district attorney, having been informed, as per affidavits filed, that defendant has failed to abate the nuisance of which it stands convicted, and the time limited bjr the sentence having expired, moves the court to grant a rule on defendant to show cause why the court should not make an order, directing the sheriff to abate the said nuisance at the cost of the defendant, and to make such order.” Upon this application, a rule upon the defendant was granted.

In its answer to the rule thus granted, the defendant, after stating in general terms that the nuisance had been abated, continues: “ Your respondent further says that the mound or embankment of earth, etc., complained of as the nuisance, was, and is not now a nuisance per se, because the said earth and filling pirt on the said public road crossing was placed there in the process of placing a second or double track on its right of way, raising the .roadbed to improve the grade of its railroad. This the defendant, in the exercise of its lawful rights under the laws of the state, had a perfect right to do, provided that within a reasonable time the public road crossing be put in a condition, so as not to impede the passage and transportation of persons and property along said public road.

“ That, as soon as knowledge of the situation came to the company, efforts were made between the railroad company officials, township supervisors and interested citizens in the vicinity to adjust the entire public road grade crossings in the township of Lower Allen, there being, including the Simpson Ferry road, four public road grade crossings over the defendant's railroad within a distance of a mile, or a little better. Meetings between counsel, railroad officials, township officers and others were held on the ground, levels and measurements made, and means to avoid all said grade' crossings discussed. After several months of discussion and effort, harmonious action could not be reached, and work on fully correcting the grade of the Simpson Ferry road crossing was suspended pending these negotiations.

“ The delay thus occasioned might have been presumed an unreasonable one, and when the commonwealth insisted upon the disposal of the bill of indictment relating to this crossing, a formal plea of guilty was entered, because solely of this delay.

“ After failure to agree, the grade of the said public road was, therefore, before the expiration of the limit imposed by the order of February 27,1906, raised to within the limit of five degrees; required by the general road law in laying out public roads, and the road on both approaches and, crossing put in as good, if not better, condition than existed prior to the placing thereon of the second track and raising the railroad bed to improve the grade, and if any impediment to public travel existed by reason of such improvement, such impediment has been fully and completely removed in complying with the order of the court of March 27, 1906.”

This answer is set out-at length, in order to give the defendant the full benefit of all that it claims in relation to the compliance with the sentence of the court in reference to the abatement of the nuisance.

It is to be remarked in reference to tbe answer that the court had nothing whatever to do with the motives which led the defendant to enter the plea of guilty to the indictment, charging it with maintaining the nuisance. Of what that nuisance consisted is clearly set forth in the indictment. It was the maintenance of an embankment composed of clay, dirt, stone, cinder and wood, elevated from ten to fifteen feet above the level of the said highway. This was the charge to which the defendant plead guilty, and it is no answer to say that the nuisance was abated by lengthening the approach to the railroad and thereby bringing the roadway within the alleged legal limit of five degrees required by the general road law in laying out public roads. The embankment was not reduced. On the other hand, it was increased by the extent to which it was lengthened, although the height was not thereby increased and the average grade may have been reduced. The surfacing of the road with stone and the erection of the guard rails, making the approaches to the tracks safer, contributed nothing whatever to the abatement of the nuisance complained of.

The defendant cannot hide behind the provisions of the third section of the Act of June" 13, 1836, P. L. 551, relating to the duties of viewers, providing that “ Whenever practicable the viewers shall lay out the said roads, at an elevation not exceeding five degrees, except at the crossing of ravines and streams, where by moderate filling and bridging the declination of the road may be preserved within that limit.” This provision, it is needless to say, was made with reference to the laying out of new roads by viewers legally appointed for that purpose, and not with reference to the creation of embankments by the elevation by railroad companies of their tracks, rrnder the direction of their own engineers, which destroyed the grade of established roads, as originally laid out and maintained.

We are not disposed, nor do we deem it necessary, to enter into a lengthy discussion as to whether or not the sentence of the court, directing the abatement of the nuisance, had been substantially complied with by the defendant. This question has been taken up and discussed with care and at great length by the court below, in an opinion covering over fifty pages of the appellant’s paper-book, in which the testimony has been fully considered. So careful was the trial judge in the court below that lie visited the location of the embankment complained of and says, “ We have visited the crossing and were impressed with its dangerous character. Its peril, in our opinion, has been largely increased by the fills or embankments constructed to reach the tracks on either side. We are satisfied there is no absolute necessity for the grade crossing and that a subway could be constructed without great difficulty and at a comparatively moderate outlay.

“ If it be continued, the deplorable results which always follow from the maintenance of a dangerous crossing will be inevitable. With the admission of the defendant, by its plea of guilty, that a nuisance existed, coupled with the fact that from the depositions it appears that no substantial change or actual abatement of the same has been made, it would be a wanton disregard of the safety and legal rights of the public to refuse to make the order prayed for.”

The only assignments of error are :

“ First. The learned court erred in its opinion as follows: “ ‘ The guilt of the defendant having been thus, as aforesaid, established, the burden is upon it in this present proceeding to show that the nuisance has been abated.’ ”

The defendant contends that, inasmuch as no replication was filed to its answer to the rule to show cause why the nuisance should not be abated, it was not called upon to show affirmatively that tliis nuisance was in fact abated. We do not think a replication was necessary. In the absence of a rule of court requiring it — and none has been shown us — a formal replication was not required. The issue was fairly made up by rule and answer, and testimony having been taken therein by both parties, even if a replication were desirable, there was evidently a waiver of any formal joining of the issue. We are not aware, however, that such a practice exists in the quarter sessions generally.

Having been sentenced to abate the nuisance, it was, of course, the duty of the defendant to abate it and to show the manner in which the sentence was complied with to the court. This, of course, placed the burden of showing the abatement of the nuisance upou it, and we can see no possible error in the remark of the court in reference to that subject.

The second assignment of error relates to the decree — not to its form, but to the fact that the decree was actually made. We are unable to see how the court could have reached any other conclusion under the evidence, as it was presented, and in view of the fact of the entry of the plea of guilty in maintaining the embankment, which was the nuisance complained of in the indictment and which was admittedly not removed.

We are not now concerned with the manner in which this nuisance is to be abated, but under the defendant’s plea of guilty and the sentence of the court, we are justified in saying that it must be done in a substantial manner, in such a way as to relieve the public from the danger, the inconvenience and the obstruction to traffic caused by the height of the embankment.

The order of the court below is, therefore, affirmed and the appeal dismissed, at the costs of the appellant.


source: Caselaw Access Project

author: Beaver, J., Morrison, J¡:

license: Public Domain

text:
    Pennebaker v. Parker, Appellant.
    ' Res adjudicata — Parties—Cause of action — Evidence—Parol evidence.

    In order to make a matter res adjudicata, there must be a concurrence of the four conditions following: (1) Identity in the thing sued for; (2) identity of the cause of action; (3) identity of persons and of parties to the action; (4) identity of the quality in the persons for or against whom the claim is made.
    Whenever a judgment in a former case is relied on as conclusive in another, it may be shown by evidence aliunde, not inconsistent with the record, that the particular point was not adjudicated, if in law judgment could have been rendered on any other.
    Where the record of a judgment of a justice of the peace shows an entry of judgment for one of two items of claim presented, and that there had been a dispute about the other, and a second suit is brought for the disputed items, but another person is added as an additional party defendant, parol evidence is admissible to show that the claim in question had been presented in the first suit but withdrawn, and had not in fact been adjudicated.
    Argued March 12, 1907.
    Appeal, No. 10, March T., 1907, by defendant, from judgment of C. P. Juniata Co., Sept. T., 1904, No. 106, on. verdict for plaintiff in case of S. E. Pennebaker v. Edmund S. Parker and James J. Horning.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlad?, Head and Beaver, JJ.
    Affirmed.
    Appeal from judgment of a justice of tbe peace. Before Shull, P. J.
    The facts are stated in the opinion of the Supreme Court.
    At the trial the following offer was made:
    Judge Atkinson: We offer to prove by this witness that he presented two separate accounts before Squire Smith at the time of the first suit there, representing independent claims for lumber bought at different times; that Mr. Burchfield being present, representing the defendant Parker, objected especially to the claim now in suit and this plaintiff then withdrew the larger claim from the consideration of the justice and judgment was entered in his favor for the smaller claim.
    Mr. Neely: Objected to, that the record of the justice cannot be contradicted by parol evidence; that the claim made there is distinctly for the lumber now sued upon and that there is no evidence of withdrawal, but that the justice, after hearing the parties and examining their accounts, gave judgment publicly in favor of the plaintiff for $19.50.
    The Court: Objection overruled and'bill sealed for the defendant.
    Verdict and judgment for plaintiff for $300.07. Defendant appealed.

      Errors assigned among others were (1) ruling on evidence, as above, quoting the bill of exceptions; (4) in refusing defendant’s point, quoted in the opinion of the Superior Court; (5) in refusing binding instructions for defendant and (6) in refusing judgment for defendant non obstante veredicto.

      J. Howard Neely, with him B. F. Burchfield, for appellant.—
    The ease comes within the rule laid down in Hill v. Joy, 149 Pa. 243. See also Buck v. Wilson, 113 Pa. 423; Sterner v. Gower, 3 W. & S. 136; Logan v. Caffrey, 30 Pa. 196; Corbet v. Evans, 25 Pa. 310; Raisig v. Graf, 17 Pa. Superior Ct. 509; Hess v. Heeble, 6 S. &. R. 57; Pennock v. Kennedy, 153 Pa. 579; Amrhein v. Quaker City Dye Works, 192 Pa. 253.

      April 15, 1907:
    The plaintiff under the uncontradieted evidence did not have the right to withdraw a part of the claim sued on and the justice was bound to consider the whole in making up his judgment: Logan v. Caffrey, 30 Pa. 196; Smedly v. Tucker, 3 Phila. 259; Besecher v. Flory, 176 Pa. 23.
    While it is settled law that a justice cannot give oral testimony to contradict or vary the cause of action as shown on his record, the law is equally well settled that the testimony of the parties to the proceeding cannot be admitted to contradict or vary the record: Williams v. McNeal, 3 Luz. L. R. 37; Springer v. Wood, 18 W. N. C. 520; Aiken v. Stewart, 4 W. N. C. 180.

      F. M. M. Pennell, of Athinson Pennell, for appellee.
    — The following cases go to sustain the right to withdraw the claim and prove the fact of withdrawal by parol, the justice’s record not clearly showing it: Haak v. Breidenbach, 3 S. & R. 204; Follansbee v. Walker, 74 Pa. 306 ; Roop v. Brubacker, 1 Rawle, 304; Haviland v. Fidelity Ins., etc., Co., 108 Pa. 236; Boyle v. Grant, 18 Pa. 162; Susquehanna Mut. Fire Ins. Co. v. Mardorf, 152 Pa. 22; Coleman’s App., 62 Pa. 252.
    Although it appear by extrinsic evidence that the matter was within the issue of a former suit, if it be not shown that the verdict and judgment necessarily involved its consideration, it will not be conclusive: Springer v. Wood, 18 W. N. C. 520. See also S wayne v. Lyon, 67 Pa. 436; Bronson v. Lane, 91 Pa. 153 ; Susquehanna Mut. Fire Ins. Co. v. Mardorf, 152 Pa. 22; Hess’s Estate, 27 Pa. Superior Ct.,498, 502; Hartman v. Inclined Plane Co., 23 Pa. Superior Ct. 360; Blair v. McLean, 25 Pa. 77.
   Opinion by

Beaver, J.,

The ostensible ground upon which the defendant based his points for charge, the refusal of which and the subsequent denial of his motion for judgment for the defendant, n. o. v., are complained of in the fourth, fifth and sixth assignments of error, is that the claim upon which the suit was founded was res judicata.

The facts upon which this claim is raised_are stated in the third point, which briefly summarizes them : ■“ That the lumber sued for to the amount of $272.87 on present suit began before H. F. Smith, a justice of the peace, was the same lumber included in the suit brought by the plaintiff, S. E. Pennebaker v. Edmund S. Parker, commenced before H. F. Smith, Esq., the same justice, by summons dated April 6, 1904, and tried April 13, 1904, in which a judgment was rendered for the plaintiff for $19.50 and costs, which judgment was unappealed from, and on which the plaintiff caused an execution to be issued in 1904. On execution the money was made. That the parties to these actions were the same; that the claim now sued upon is res adjudicata by the former action, and said action bars a recovery in this suit.”

It thus appears that the original suit was against Edmund S. Parker alone.

At the trial the justice made the following entry: “ Plaintiff claims $292.37 as a balance on timber furnished for the erection of a new barn and other timber furnished for defendant.

“ And now, the 13th day of April, 1904, parties met, and, examining plaintiff and defendant and hearing their allegations, judgment for plaintiff for the sum of $19.50 publicly expressed and costs, there having been a dispute as to the $272.87 as to who should pay, Parker or the contractor, for building the barn.”

The present suit, as appears from the transcript of the justice, was by S. E. Pennebaker against Ed. S. Parker and J. J. Horning.

In 2 Bouvier, Rawle’s edition, 898, it is said : “ In order to make a matter res judicata, there must.be a concurrence of the four conditions following: (1) Identity in the thing sued for; (2) identity of the cause of action; (3) identity of persons and of parties to the action ; (4) identity of the quality in the persons for or against whom the claim is made.”

It seems to be conceded that the claim upon which this suit was founded was originally included in the claim made before the justice in the original suit against Edmund S. Parker, but in this case the parties are different, and, if it appears by competent evidence that the claim was excluded by the justice in the original hearing, it is clear that it was not adjudicated, and that the present suit is well founded. The entry made by the justice clearly shows that there was doubt as to whether the claim for $272.87, which was the exact difference between the total amount claimed and the amount for which judgment was rendered, should be paid by Parker or by the contractor for building the barn, the said contractor being, as appears from the testimony, J. J. Horning, who is joined with Parker as defendant in the present suit. The plaintiff and the justice of the peace, before whom the original suit was tried, were allowed to testify as to the withdrawal of the claim for the lumber entering into the construction of the barn. Objection was made to their testimony, and its admission constitutes the first and second assignments of error. The ground of objection was that the testimony contradicted the record of the justice made at the time. If this were so, of course the testimony was incompetent. An examination of the testimony leads us to the conclusion, however, that it was not in any sense a contradiction of the record of the justice. In may be regarded as an explanation of the entry, but it is in no sense a contradiction. A single answer of the justice describes the situation : “ Q. State what Mr. Pennebaker said with reference to the withdrawal of that claim ? A. I understood Mr. Pennebaker to-say that he-would withdraw the consideration of that $272.87. I have here marked, after rendering the judgment, sufficient to show that I did not consider it--.”

In Coleman’s Appeal, 62 Pa. 252, it was held, as stated in the syllabus : “ Whenever a judgment in a former case is relied on as conclusive in another, it may be shown by evidence aliunde, not inconsistent with the record, that the particular point was not adjudicated, if in law judgment could have been rendered on any other.” See also Susquehanna Mut. Fire Ins. Co. v. Mardorf, 152 Pa. 22.

That extrinsic evidence is admissible to show what was adjudicated, see Hartman v. Pittsburg Incline Plane Co., 28 Pa. Superior Ct. 360.

We have, upon the record of the justice, the statement that there were two distinct items in the original claim : (1) “A balance on timber furnished for the erection of a new barn,” and (2) “ other timber furnished for defendant,” and, second, that as to the first there was ‘‘ a dispute as to the $272.87 as to who should pay, Parker or the contractor for building the barn.” We have also the fact that the second suit was brought against the appellant and Horning, the contractor. These entries of themselves would clearly indicate that the claim for the timber furnished for the barn was not passed upon by the justice for the apparently good reasons : First, that the liability for the items arose under different contractual relations, and, second, between different parties. It was not in any sense a contradiction of these entries in this record to show that for those reasons the claim for the barn timber was withdrawn and not considered.

This testimony in explanation of the entry of the justice having been properly admitted, we can see nothing erroneous in the submission of the question by the court to the jury, as complained of in the third assignment of error.

The question of the withdrawal of the claim, upon which the present suit is based, was one of fact, which was fairly submitted by the court.

Upon a consideration of the whole case, we see nothing erroneous which calls for our interference.

Judgment affirmed.

Dissenting opinion by

Morrison, J¡:

I cannot agree with the opinion representing the majority of this court because I think it flatly in the teeth of the decisions of the Supreme Court on the question of a former recovery.

On April 6, 1904, the plaintiff sued the defendant before a justice of the peace, and on the return day of the summons the plaintiff claimed $292.37, a balance on lumber furnished for the erection of a new barn and other lumber furnished for defendant, and on the same date, after hearing, judgment was entered in favor of the plaintiff for $19.50. This judgment was not appealed from and it was paid by the defendant. The justice made his record show judgment for the plaintiff for the sum of $19.50 and costs, “ there having been a dispute as to the $272.87 as to who should pay, Parker or the contractor, for building the barn.” Then on May 24, 1904, the same plaintiff brought suit before the same justice against Edmund S. Parker and J. J. Horning, and on the trial of the said case, plaintiff appeared and claimed $272.87, being for lumber furnished to build a barn for defendant Parker and being the balance of the amount plaintiff was to receive for furnishing lumber for the barn. The defendant E. S. Parker pleaded that “ this is the same claim upon which suit was brought before Justice Smith on summons issued April 6,1904. Parties appearing April 13, 1904, at which time judgment was entered for plaintiff for $19.50.” After hearing, the justice entered judgment in favor of the plaintiff for $272.87 and costs, and the defendant Parker appealed to the common pleas. It should be noted that the $272.87 is the precise balance remaining after deducting from the plaintiff’s claim in the first suit the sum of $19.50 for which judgment was entered in that suit. I may as well say here that on all hands it is admitted that the judgment entered by the justice in the second suit is for the lumber claimed in the first suit as the balance due on that portion of it going into the new barn.

The majority opinion states that the first suit was against Edmund S. Parker alone, and that the second, the present suit, was against Edmund S. Parker and J. J. Horning, and, therefore, the point is made that the parties are not identical in the two suits. This is a clear mistake. It is true that the second suit was brought against the. two, but when the case was called for trial in the common pleas Judge Atkinson, attorney for the plaintiff, stated: “ Although the action on the list is against Ed. S. Parker and J. J. Horning, yet we wish the jury to be sworn only against Ed. S. Parker.” And the jury was so sworn and the record shows this. Therefore, the two suits commenced before the justice were identical, “ (1) in the thing sued for; (2) identity of the cause of action; (3) identity of persons and parties to the action; (4) identity of the quality in the persons for or against whom the claim is made.”

At the trial in the common pleas the first judgment before the justice was pleaded and offered in evidence and the learned court was requested in defendant’s third point to instruct the jury, “that the lumber sued for in the present suit was the same lumber included in the suit brought by the plaintiff, S. E. Pennebaker, against Edmund S. Parker, commenced before H. F. Smith, the same justice, by summons dated April 6, 1904, and tried April 13, 1904, in which a judgment was rendered for the plaintiff for $19.50 and costs, which judgment was unappealed from and on which the plaintiff caused an execution to be issued in 1904; on execution the money was made, that the parties to these actions were the same; that the claim now sued upon is res adjudicata by the former action and said action bars a recovery in this suit.” This point gives rise to the fourth assignment of error.

The fifth assignment (fourth point) that under all the evidence the verdict must be for the defendant was also refused, and the sixth assignment is for refusing judgment non obstante veredicto.

The learned court below permitted the plaintiff to prove, by oral testimony, that while the lumber claimed for in the second suit was claimed for in the first, yet it was withdrawn from the consideration of the justice and he only entered judgment for the portion of the plaintiff’s claim which was not disputed, to wit: lumber for a nice house and pig pen. As I understand the settled law of Pennsylvania, the plaintiff having haled the defendant into the justice’s court and claimed on account for lumber sold and delivered, he was bound to present all of his open accounts against the defendant and it does not make a particle of difference whether or not he presented the claim for the $272.87 worth of lumber and then withdrew it, or that he did not present it all, because in either case the judgment of the justice was res adjudicata as to all claims of the plaintiff then due on account for goods sold and delivered, work and labor done and lumber sold and delivered. This because such accounts constituted his cause of action and he could not split it up and bring more than one suit therefor. It is perfectly clear from the plaintiff’s own testimony that when he brought the first suit his accounts against the defendant Parker for both lots of lumber were due and unpaid. The plaintiff’s testimony is clear and precise that his accounts for the lumber were against Edmund S. Parker alone and there is not a scintilla of evidence that he had any joint account against Parker and Horning. Therefore, it was a mistake to bring the second suit against them jointly and if the jury had been sworn as to Parker and Horning, and a verdict and judgment had gone against them jointly, on the evidence submitted, it would have been palpable error. In my opinion, when A has an account against B for dry goods sold and delivered and another account for work and labor done and another for lumber sold and delivered and these accounts are all subsisting and due and A brings suit against B and states his demand on account for any one of these items and secures judgment therefor, without saying a word about the other two accounts, and that judgment is unappealed from, it is clearly res adjudicata as to any subsequent suit or suits brought for the collection of the accounts which existed at the time of the suits but which were not presented in it at all. This for the reason that all of A’s open accounts against B, then due, constituted his cause of action.

In Buck v. Wilson et al., 113 Pa. 423, it was said by Mr. Justice Clark (p. 430) : “ A debt due upon a continuous account of book entries, made in the ordinary course of dealing, is entire; it cannot, without agreement to that effect, be split up into separate and distinct demands so as to form the basis of several suits ; if divisible into two parts, it-may, on the same principle, be divided into as many parts as it contains distinct items of charge, and no one would suppose that an action might be instituted on every item in a book account. . . . When the cause of action is the same, a former judgment, in a suit between the same parties, though an inadequate one, is a bar to a second recovery: Pinney v. Barnes, 17 Conn. 420; so, an action brought for a part of an entire and indivisible demand, and a recovery therein, will bar a subsequent suit for the residue of the same demand: Bendernagle v. Cocks, 19 Wend. 207.” And citing other authorities. See also Logan v. Caffrey, 30 Pa. 196, where it is said in the. syllabus: “ When labor is performed for another, at various times, under the same entire contract, and there is a recovery in one suit upon such contract, the party cannot maintain a second action, even on clear proof that no evidence was given in the first as to part of the demand in controversy. Nor will a formal withdrawal from the consideration of the jury of one of the items claimed in the first suit, and the entry of such withdrawal on record, enable the party to maintain a second action to recover the item so withdrawn.”

But in Hill v. Joy et al., 149 Pa. 243, will be found an elaborate opinion of Judge Mehard of district thirty-five, which, with the authorities therein cited, seems to me conclusive against the plaintiff in the present case. Judge Mehard’s decision was unqualifiedly affirmed by our Supreme Court as follows : “ This case has been so well discussed by the learned judge of the court below that nothing remains to be added. Judgment affirmed.” On page 247' of that case it is said: “ Where a party hath several demands or existing causes of action grpwing out of the same contract, or resting in matter of account, which may be joined or sued for in the same action, they must be joined; and if the demands or causes of action be split up and a suit brought for a part only, and subsequently a second suit for the residue, the first action may be pleaded in abatement, or in bar of the second action.” Now in the present case the plaintiff’s items of account for lumber sold and delivered to defendant Parker were together within the jurisdiction of the justice, and he was bound to bring them into the first suit and, failing to do so as to the barn lumber, he was forever barred by that suit from recovering for it. When a plaintiff sues on matter of account if his accounts together amount to more than a justice’s' jurisdiction, he must sue in the common pleas. But there is no question of jurisdiction in the present case. The justice had jurisdiction and the recovery in the first suit is a complete bar to the second.

In Pennock v. Kennedy, 153 Pa. 579, Mr. Justice Williams (p. 582) said: “The rule in relation to judgments entered upon verdicts is well settled. Such a judgment is conclusive not only on the items actually recovered for, but upon those for which the plaintiff might have recovered : Corbet v. Evans, 25 Pa. 310; Logan v. Caffrey, 30 Pa. 196; Alcott v. Hugus, 105 Pa. 350. The same rule is applied to matters of set-off. A defendant who fails to set off his cross demand against the plaintiff’s action is barred from'recovering it by an independent suit.”

Besecher v. Elory, 176 Pa. 23,. is cited by the appellee as authority for the proposition that the plaintiff could have withdrawn his claim, if he so desired. It is true that there is dicta in the opinion of Mr. Justice McCullom to that, effect, but that cannot be the law if the plaintiff’s claim was an entire cause of action as in the present case. If there is anything settled in Pennsylvania, it is that a plaintiff cannot split a cause of action, on which he could and ought to recover in one suit, and maintain two or more suits thereon. If in the present case, the plaintiff had discovered that his claim.for the lumber which he recovered for in the second suit was really a joint

claim against Parker and Horning, there is no question but he could have withdrawn it from the consideration of the justice, in the first suit, and have maintained a joint action against the parties in the second suit. But he had no joint claim, his account for the lumber going into the pigpen and barn, according to his own testimony, was against Parker alone, and the accounts rested on the same basis and they constituted one cause of action, and he was bound to present them in the first suit, and, therefore, the judgment in that suit is res adjudicata ón the present one.

The majority opinion cites Coleman’s App., 62 Pa. 252, but I do not think that ease touches the point in question. Mr. Justice Shakswood in delivering the opinion (p. 272) said: “ Whenever a judgment is relied on for this purpose, it is competent for the adverse party to show that the particular point was not adjudicated, if in law it could have been rendered upon any other.” But in the present case the plaintiff’s first suit was in assumpsit for lumber sold on account, and in law there could not be a judgment for the plaintiff except upon his cause of action which was not capable of being split into two causes of action.

Mutual Fire Ins. Co. v. Mardorf, 152 Pa. 22, is also cited, but in that case .the defendant set up as a defense a previous action in which a judgment had been rendered in his favor, and it was held competent for the plaintiff to show by parol evidence that the former action was to recover an assessment not included among the assessments for which the latter action was brought. It was plain in that case that the plaintiff was not offering evidence to contradict the record, but to show that what was really litigated in the former suit was' assessment No. 11, which was undoubtedly recognized as a distinct cause of action. While the issue in the second case was whether assessments No.’s 12, 13, 14 and 15, were right. That was not a case of an attempt to separate a cause of action and maintain two separate suits upon it.

Hartman v. Inclined Plane Co., 23 Pa. Superior Ct. 360, is also cited. That was an action of trepass in which the rule is not the same as in assumpsit. I think the law allows an action for each separate and distinct trespass, and if in a second suit for trespass a former recovery is pleaded, it may be proved aliunde that the former suit did or did not embrace the trespass declared upon in the second case.

I would sustain the fourth, fifth and sixth assignments of error and reverse the judgment without a venire.


author: Morrison, J.,

text:
    American Manufacturing Company to use of John V. Doniphan, Appellant, v. S. Morgan Smith Company.

      Practice, C. P. — Evidence—Nonsuit—Trial—Province of court and jury.

    A peremptory nonsuit is in the nature of a judgment for defendant on demurrer to evidence; and hence, in testing the validity of such nonsuit, the plaintiff is entitled to the benefit of every inference of fact which might have been fairly drawn by the jury from the evidence before them. It is immaterial that the evidence in support of a plaintiff’s claim may be very slight, provided that it amounts to more than a mere scintilla. If there is any evidence which alone would justify an inference of the disputed facts on which his right to recover depends, it must, according to the well settled rule, be submitted to the jury. It is their exclusive province to pass upon the credibility of witnesses, weigh the evidence and ascertain the facts.

      Evidence — Primary evidence — Secondary evidence — Documentary evidence..

    The best evidence rule applies exclusively to documentary evidence; and there is no distinction between primary and secondary evidence, except where some document, or other written instrument exists, the contents of which should be proved by an original rather than by other evidence which is open to the danger of inaccuracy.
    In an action to recover the price of a large quantity of rope, the fact that somebody weighed the rope and made a record of the weight, does not render other evidence of the weight secondary.
    Argued March 13, 1907.
    Appeal, No. 21, March T., 1907, by plaintiffs, from order of C. P. York Co., Jan. T., 1903, refusing to take off nonsuit in case of The American Manufacturing Company now for the use of John Y. Doniphan v. S. Morgan Smith Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlad y, Head and Beaver, JJ.
    Reversed.

      April 15, 1907 :
    Assumpsit for goods sold and delivered. Before Bittinger, P. J.
    The facts are stated in the opinion of the Superior Court.
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned among others was refusal to take off nonsuit.

      Charles A. HatvJcins, with him Jere S. Blade, for appellants.
    —The error of the court arose from regarding “secondary” evidence as one with what might be termed complete or conclusive evidence. No question as to “secondary” evidence arises in this case: Schoenberger v. Hackman, 37 Pa. 87; Adams v. Steamboat Co., 3 Wharton, 75 ; Canfield v. Johnson, 144 Pa. 61.

      James St. Clair McCall, for appellee.
    — The rule that the best evidence attainable must be produced rests upon the presumption that one who withholds testimony of a higher grade and seeks to substitute therefor testimony of an inferior kind, does so from an improper motive, and because he is conscious that his claim would not be supported by the testimony which he declines to produce: Carpenter v. Wait,65 Mass.257; 1 Jones on Evidence, sec. 197 ; Bryant v. Stilwell, 24 Pa. 314; Stevenson v. Hoy, 43 Pa. 191; Rothchild v. Central R. R. of N. J., 163 Pa. 49.
   Opinion by

Morrison, J.,

This is an action of assumpsit brought to recover the price and value of two coils, or 3,580 linear feet, of manilla transmission rope, one and three-quarters inches in diameter, weighing 4,225 pounds, at the price of thirteen cents per pound, sold and delivered by the plaintiff to the defendant on November 25, 1898. The case came on for trial before the court and a jury and at the close of the plaintiff’s testimony, a compulsory non-suit was granted which the court subsequently refused to take off, and the plaintiff excepted to this ruling and appealed.

The first assignment of error raises the question of the refusal of the court to take off the compulsory nonsuit. A careful examination of the plaintiff’s evidence leads us to the conelusion that the case was for the jury and that the learned court erred in granting the compulsory nonsuit and refusing to take it off. We entertain no doubt that there was sufficient evidence upon which the court ought to have instructed the jury, in the absence of evidence of a meritorious defense, that if they believed the plaintiff’s testimony, they should render a verdict in favor of the plaintiff for the full value of the rope, with interest thereon, from the time when it ought to have been paid for.

In Hill v. Trust Co., 108 Pa. 1, the Supreme Court, by Mr. Justice Sterrett, said: “In our practice, a peremptory non-suit is in the nature of a judgment for defendant on demurrer to evidence; and hence, in testing the validity of such non-suit, the plaintiff is entitled to the benefit of every inference of fact which might have been fairly drawn by the jury from the evidence before them: Maynes v. Atwater, 88 Pa. 496. It is immaterial that the evidence in support of a plaintiff’s claim may be very slight, provided it amounts to more than a mere scintilla. If there is any evidence which alone would justify an inference of the disputed facts on which his right to recover depends, it must, according to the well settled rule, be submitted to the jury. It is their exclusive province to pass upon the credibility of witnesses, weigh the evidence and ascertain the facts: Express Co. v. Wile, 64 Pa. 201.” See also Jacques v. Fourthman, 137 Pa. 428. It is difficult for us to understand the rulings of the court in the present case, except on the theory that he was led into an erroneous view of the law that the plaintiff’s testimony was secondary evidence.

We do not propose to separately discuss the remaining five assignments of error as they relate to the testimony of three several witnesses and the competency and weight thereof. We have already ruled that there was sufficient testimony to carry the case to the jury.

The testimony of John W. Dolan, offered by the plaintiff, was in substance that on November 25, 1898, there were sold to defendant, by plaintiff, on defendant’s order, two coils of American transmission rope, one and three-fourth inches in diameter, weighing 4,225 pounds, price thirteen cents per pound; and that as defendant had directed, it was consigned to the New York Air Brake Company at Watertown, N. Y., and shipped to the company on November 25, 1898, via N. Y. C. & H. R. R. In giving his deposition the witness produced the original shipping receipt and it was attached to the deposition, but after being filed in the prothonotary’s office, the deposition was lost and a copy of the deposition of the said Dolan, without the shipping receipt attached, was used in lieu of the original by agreement of counsel. This witness testified that the rope consisted of two coils, together weighing 4,225 lbs., and that he was present when rope was loaded on trucks for shipment, but was not present when it was loaded on the cars. This evidence was followed by that of Barney Stoltz, a rope inspector and splicer of long experience. He inspected the rope at plaintiff’s factory and saw it there bagged in two coils and tagged and delivered addressed to the New York Air Brake Compauy, Watertown, N. Y., where a little later he found it still bagged and tagged and spliced it on the drives where it was to be used. The quantity and the weight of the rope was also offered to be proved by Stoltz. Now, we unhesitatingly say that the evidence above referred to and the offers, without more, were sufficient to carry the case to the jury. The whole difficulty seems to have arisen from the erroneous notion of the court below that the plaintiff was making out his case by secondary evidence. We discover no secondary evidence in the case. It may be that it would have been more satisfactory to the jury to have produced the man who actually weighed the rope and the man who saw it put upon the cars. But because one character of evidence is more convincing than another, does not make the latter secondary evidence. Secondary evidence has been said to be that which takes the place of the original when the original cannot be produced. It is substituted evidence and is for the purpose of describing the original evidence. The fact that somebody weighed the rope and made a record of the weight does not render other evidence of the weight secondary. “The book of original entry of a person claiming for goods sold, or work or labor done, is not the best or only evidence of the claim, which may be proved aliunde.” The above quotation is from the syllabus of Adams v. Columbian Steamboat Co., 3 Whart. 75, and that case is cited in McCullough v. Gas Co., 213 Pa. 110.

In Crozer v. New Chester Water Co., 148 Pa. 130, the Supreme Court said: “We cannot sustain any of the specifications of error. The best evidence in the possession of the plaintiff .was submitted to the jury. It was not his duty to incur the expense of digging a trench in the mere hope of finding better evidence.”

Canfield v. Johnson, 144 Pa. 61, furnishes a good illustration of a court taking too fine a sight in regard to the character of evidence necessary to sustain an action. We think the opinion of Mr. Justice Green in that ease might materially aid the learned counsel for the defendant and the court below in a future trial of the present case. See also Western Union Tel. Co. v. Stevenson, 128 Pa. 442.

But when the plaintiff’s counsel had been prevented from proving his case by the technical objections of the counsel and rulings of the court, until he was willing to lay grounds for the offer of secondary evidence as to the weight of the rope, this offer was excluded. It was as follows: “ I propose to prove by the witness that the warehouse of the American Manufacturing Company was burned since January, 1899; that the weighing records of the company were kept there; and that the records of shipments of rope, and of the weighing of rope, in November, 1898, at all times before the fire, were destroyed. Also that the keeper of the records in November and December, 1898, is no longer in the employ of the American Manufacturing Company, and that his whereabouts are unknown.” But the learned court was able to exclude this offer. The ruling was excepted to and it was palpable error.

We do not mean to say that because the rope was weighed, and a record made of its weight, other evidence of its weight was secondary. But the learned court had driven the plaintiff’s counsel to the position where he was willing to consider his evidence as secondary, and offered to lay grounds for it, but was not allowed to do so. It was error to exclude this offer on another ground. The weight of the rope, as recorded by the man who weighed it, would have been more persuasive evidence than the plaintiff was offering, and the offer should have been admitted for the purpose of explaining to the jury why the man who recorded the weight of the rope was not produced with his records or memoranda.

In 17 Cyc. 470, par. e, it is said: “Moreover, not only is the best evidence rule confined to cases where the law has divided evidence into primary and secondary, but there are no degrees of evidence, except where some document or other written instrument exists, the contents of which should be proved by an original rather than by other evidence which is open to the danger of inaccuracy. . . . Hence, whatever the law may have been in early times, at the present day it can be said to be well settled that the best evidence rule applies exclusively to documentary evidence, and this is the view accepted by the more modern writers on the law of evidence.”

Par. c 2. “ Thus where the matter to be proved is a substantive fact which exists independently of any writing, although evidenced thereby, and which can be as fully and satisfactorily established by parol as by written evidence, then both classes of evidence are primary and independent, and parol evidence may be admitted regardless of the writing. Likewise where it appears that a witness has a distinct and independent recollection of the matters of which he testifies, his testimony is not rendered incompetent under the best evidence rule by reason of the fact that he made a contemporaneous written memorandum oE those matters and does not produce it.”

“ Where there is no substitution of evidence, but only a selection of weaker instead of stronger proofs, or an omission to supply all the proofs capable of being produced, the rule is not impinged: Greenleaf, 82. The warden of a penitentiary would perhaps be able to give the strongest proof that a person had been, at a particular time, a convict imprisoned in the penitentiary, as he keeps a registry in which is noted the exact time of the admission and dischage of the convict; but the fact may be shown by other competent proof. . . . The date of a birth, or death, or of a marriage could best be established by a person present at the event, but any other legal proof is admissible for the purpose. Handwriting may be proved by another, without calling the writer; or a sale of oil or of any other commodity may be shown by the acts or declarations of the parties, although a witness may have been actually present and fully conversant with the whole transaction. As between living witnesses, one is not to be excluded because another had a better opportunity of knowing the fact alleged and attempted to he shown : ” Western Union Tel. Co. v. Stevenson, 128 Pa. 442.

We cannot forbear saying that if at another trial the plaintiff makes a prima facie case, under the rules indicated in this opinion, the defendant ought to be required to put in its defense on the merits, if it has any, to the payment of the price of the rope which it would seem was received by the defendant in November, 1898, and kept and used.

The assignments of error are sustained and the judgment reversed with procedendo.


author: Head, J.,

text:
    Staddon v. Chapman Mineral Company, Appellant.

      Negligence — Master and servant — Instructions—Duty to instruct— Dangerous machinery — Contributory negligence.

    In an action by a boy eighteen years old to recover damages for personal injuries sustained while working at a dangerous machine, the question of the defendant’s negligence, and of the plaintiff’s contributory negligence, is properly left to the jury where there is evidence tending to prove that the plaintiff was inexperienced; that he did not have the benefit of any special instructions from his employer warning him of the danger of doing his work in the way be attempted to do it; that he did not from his own observation, or from other sources possess the knowledge that enabled him to appreciate the risk he ran; and that the danger of the method he adopted was not so obvious, that a prudent person of even his years and limited knowledge, although not specially instructed, would have recognized and avoided it.
    Argued Nov. 20, 1906.
    Appeal, No. 49, Oct. T., 1906, by defendant, from judgment of C. P. Chester Co., Aug. T., 1905, No. 92, on verdict for plaintiff in case of Wilmer G. Staddon, by his father and next friend, William Staddon, v. Chapman Mineral Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Butler, J.
    Verdict and judgment for plaintiff for $1,500. Defendant appealed.

      Error assigned was in refusing binding instructions for the defendant.

      April 15, 1907 :

      Thomas W. Pierce, for appellant,
    cited: Ford v. Anderson, 139 Pa. 261; Kehler v. Schwenk, 144 Pa. 348; Zurm v. Tetlow, 134 Pa. 213; Pittsburg & Connellsville R. R. Co. v. Sentmeyer, 92 Pa. 276 ; Rummell v. Dilworth, 111 Pa. 343; Naglee v. Allegheny Valley R. R. Co., 88 Pa. 35; Greenway v. Conroy, 160 Pa. 185; Lehigh, etc., Co. v. Hayes, 128 Pa. 294; Cunningham v. Bridge Works, 197 Pa. 625.

      W S. Parris, for appellee,
    cited : Doyle v. Pittsburg Waste Co., 204 Pa. 618; Sheetram v. Trexler Stave & Lumber Co., 13 Pa. Superior Ct. 219; Tagg v. McGeorge, 155 Pa. 368; Kehler v. Schwenk, 151 Pa. 505; Welsh v. Butz, 202 Pa. 59 ; Noden v. Verlenden, 211 Pa. 135; Rummel v. Dilworth, 131 Pa. 509.
   Opinion by

Head, J.,

The single assignment of error exhibited by the record complains of the refusal of the court below to withdraw the case from the consideration of the jury and give binding instructions in favor of the defendant. In reviewing the correctness of the conclusion reached by the learned trial judge we have naught to do with any conflict in the testimony, nor is it for us to consider whether the story told by any witness is either probable or credible. Our province is to ascertain and determine (a) was there testimony produced by the plaintiff that, if believed by the jury, would support their verdict in his favor on the questions of fact submitted; (b) were the questions submitted material, that is to say, were they such that when found favorably to the plaintiff, the conclusion that the defendant had been negligent would legally follow; (c) should the court have declared as matter of law that plaintiff had been guilty of contributory negligence ?

The plaintiff, a youth under the age of eighteen years who had been raised on a farm and was without practical experience in the operation or handling of dangerous machinery, went to work in the mill of the defendant in November, 1904. His employment required him to keep filled, from a pile of sand on the mill floor, a line of buckets that carried the sand some feet above the floor and dumped it on a stationary screen. The object was to have the clean sand pass through the screen to a bin, whilst paper or other refuse would be carried off separately. Frequently, however, owihg to the dampness of the sand or paper, or from other causes, the screen would become choked and it then became the duty of the plaintiff to go up to it and remove, by hand, the obstruction. The screen being near the north wall of the building, a ladder had been fastened to that wall by which the employee could climb to the necessary height, step on a plank running along the side of the screen and do his work without any danger of coming in contact with any moving machinery. This method had been frequently used by the plaintiff. In January, 1905, about a week before the accident hereinafter referred to, the defendant installed a new system of screening, substituting two revolving screens for the stationary one which was discarded. The power to operate these new screens was carried, by a sprocket wheel and endless chain, from the main shaft which passed along a little south of the screens and somewhat above them. The plaintiff was told that he would still be expected to keep the screens from clogging, but would not have to go up as often as formerly. He was given no instructions as to the manner in which he should do the work, nor was he warned of any danger that might now be incurred in accomplishing what he was expected to do. On this subject, William Llewellyn, in charge of that department, says: “ Q. Did you ever think that anybody would be likely to approach those screens from that side ? A. Well, I didn’t think so. Q. And is that the reason you gave him no instructions? A. Well, I don’t know that that is just the reason, but I didn’t give him any instructions. I don’t know what the reason was I didn’t.” -

On .January 24, 1905, the plaintiff, for the first time since the installation of the new screens, found it necessary to climb up to discover and remove some obstruction to their operation. Up to this time he had neither done this himself nor observed any other person doing it, and as already stated, he was without the benefit of any instruction on the subject. He first went up, by the ladder on the north wall, to the plank, as he had been accustomed to do, but declares that from that position he could neither see nor reach the place where the obstruction seemed to be. He then returned to the floor and concluded to go up at the other end of the screens close to the spot he desired to reach. This would require him to stand, while doing his work, with his body between the revolving main shaft and the sprocket wheel already referred to. He testified he knew the shaft was revolving and that if his body or clothing came in contact with it there would be danger. He further states, however, he did not think he would touch the moving machinery as there was, in his judgment, room enough between the shaft and sprocket to permit him to do his work in safety. He found a step ladder near by and climbed to the point indicated when, almost immediately, his clothing was caught in the sprocket wheel, his body was carried around with the revolving machinery and he was rescued from his perilous position only after having sustained severe injuries.

We are not to be understood as indicating that the facts, as above stated, were undisputed — indeed, there was a sharp conflict in the testimony as to some of them — but there was evidence, clear and positive, tending to prove all of them and, as the case was submitted, we must regard them as established by the verdict.

These facts being established, did the law impose on the defendant the duty of instructing the plaintiff how he could safely do the work expected of him and of warning him of the danger he would incur if he undertook to do it in the mode he actually adopted ?

The general rule that an employer is bound to instruct a young and inexperienced employee whose duty locates him in proximity to dangerous machinery has been so often declared that no citation of authorities should now be needed to support it. We content ourselves with quotations from but two of the many recent cases on the subject. In Kehler v. Schwenk, 151 Pa. 505, Mr. Justice Green says: “that in actions by young persons against their employers, we recognize as sources of liability, the inexperience of the servant, and the want of specific instruction as to the dangers of the service, and we suspend the rule that the servant assumes the risk of the service when he has not knowledge by experience, or by specific instruction.” In Doyle v. Pittsburg Waste Co., 204 Pa. 618, Mr. Justice Mestrezat quotes with approval the following language from the opinion in Rummel v. Dilworth, 131 Pa. 509: “ If the business is one with which he is not familiar, he has a right to expect that its dangers ■ will be pointed out to him, and that he will be instructed in those things necessary for him to know in .order to his own safety. He cannot be held to assume the risk of dangers of the existence of which he has no knowledge. In the case of young persons, it is the duty of the employer to take notice of their age and ability, and to use ordinary care to protect them from risks which they cannot properly appreciate and to which they should not be exposed.” The conceded failure of the defendant to give to the plaintiff any instructions or to warn him of the dangers which, b}- reason of his youth or inexperience, or both, he might fail to properly appreciate, was therefore a breach of duty, an act of negligence, unless it could also be found that the obligation to instruct was suspended, because the plaintiff already possessed the necessary knowledge, or the risk he assumed was so patent that any ordinarily prudent person, even of his age and inexperience, would have detected and avoided it. Under the testimony of the plaintiff himself, and of his witness Smith, the learned trial court was obliged to leave to the jury the decision of the question whether or not the failure to instruct the plaintiff was a breach of duty by the defendant, and the verdict answers the question in the affirmative. Under the evidence, therefore, and the law applicable the negligence of the defendant is established.

Should the court have declared as matter of law that the plaintiff was guilty of contributory negligence? We have already seen there was evidence tending to prove that the plaintiff was young and inexperienced; that he did not have the benefit of any special instructions from his employer warning him of the danger of doing his work in the way he attempted to do it; that he did not, from his own observation or from other sources, possess the knowledge that enabled him to appreciate the risk he ran, and that the danger of the method he adopted was not so obvious, that a prudent person of even his years and limited knowledge, although not specially instructed, would have recognized and avoided it. How, then, could the court do otherwise than submit to the jury, under proper instructions, the question of contributory negligence ? That this course was the only proper one we believe to be squarely decided in the case of Doyle v. Waste Co., 204 Pa. 618, upon a state of facts not to be distinguished from that now before us. “ If the danger was obvious and apparent and Doyle had the capacity to comprehend and appreciate it, it would be negligence in him to assume the risk. The mere fact that he was a minor would not, under these circumstances, relieve him from the duty of protecting himself by the exercise of care. But whether the facts necessary to charge him with negligence exist, and whether with a due appreciation of these facts he acted in defiance of them, cannot be determined by the court as a matter of law, but are questions for the consideration of the jury. It may be observed in this connection that, conceding Doyle knew he would be injured by the contact of his hand with the cylinder, it does not necessarily follow that he knew his hand would come in contact with the cylinder when he attempted to remove the waste from the fan.”

There was testimony, therefore, which, when accepted by the jury, warranted their findings that the defendant had been guilty of a breach of its legal duty in failing to instruct the plaintiff and that the latter was free from contributory negligence. All the material questions of fact were submitted in a charge which so carefully and thoroughly safeguarded every right of the defendant as to leave the latter no ground of complaint of the manner of the submission, as to which no error has been assigned.

Judgment affirmed.


author: Porter, J.,

text:
    Pottsville Borough v. Pottsville Gas Company, Appellant.

      Municipalities — License tax — Streets—Excavation of streets — Statute.
    A municipality has the right and duty, in the exercise of the police power, to regulate, inspect and supervise the various appliances which individuals and corporations may acquire the right to introduce and maintain upon and under the surface of the public highways, and to impose a reasonable charge to reimburse it for the probable expense of such inspection and supervision. The only question for the court to determine is whether a particular ordinance is a reasonable exercise of such power.

      A borough ordinance imposing a license tax of $3.00 on any person or corporation making any excavation in a macadamized public street is applicable to a gas company which is bound to repair the public streets after an excavation, but the reasonableness of the charge is not to be determined by taking into consideration the cost of repairing the pavement either to the municipality of to the gas company. In such a case the reasonableness of the amount is to be determined by the cost of issuing the license and recording the same, and by the cost of the inspection continued not only until the excavation is filled, but also so long as the settling of the material used in filling the trench and other causes directly resulting from the excavation, develop defects in the paving, and make supervision necessary.
    Argued Dec. 3, 1906.
    Appeal, No. 232, Oct. T., 1905, by defendant, from judgment of C. P. Schuylkill Co., Nov. T., 1903, No. 232, on verdict forplaintiff in case of Pottsville Borough’s Corporation v. Pottsville Gas Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Appeal from judgment of justice of the peace. Before Bechtel, P. J.
    The facts are stated in the opinion of the Superior Court.
    The court charged in part as follows :
    [The plaintiff’s witnesses, Mr. Fleet, the chairman of the highway committee, and the engineer of the borough, the commissioner of highways, testified that every time this corporation opens a street, while they put it back in as good condition, possibly, as they can, under the circumstances, yet, being macadamized, being made in a certain way, it is necessary for them every time to go back and refill that street and reroll it, and that the cost of rerolling, taking out the road roller, the engineer, the rock and material, all that, Mr. Pugh testifies, is more than twice as much as what the ordinance calls for; and Mr. Fleet, while he could not give the figures, testifies that they must always go over and repair these places that have been opened by the defendant corporation. We say to you that if you believe that evidence on the part of the plaintiff that it is necessary for them to go back and reroll these streets, and that it costs more than twice as much, or twice as much, or even more than the amount charged in the ordinance, then that is a reasonable charge, and your verdict should be for the plaintiff.] [1]
    [I want you to understand it distinctly, gentlemen. I say that if you believe the evidence of the plaintiff, that the excavations made by this defendant company require not only an inspection of the premises, but requires them to go there and reroll and put new material upon those excavations, taking out the road roller, and that that cost is as much, even as much, but under the testimony of Mr. Pugh twice as much — if it is as much or more than that contained in the ordinance, then we say to you that it is a reasonable charge, and your verdict should be for the plaintiff.] [2]
    [It is conceded by the defendant’s counsel that under their charter they would be bound to pay this sum if the borough sent them a bill after the work was done. We are of the opinion that the borough would have a right to calculate the general charge, the general cost of what these repairs would be, estimate that and charge it in the permit, and we, therefore, say to you if you believe the evidence of the plaintiff, that the work to repair these openings cost more than twice as much as what the permits called for in this ordinance, then we say to-you that that is a reasonable charge, and your verdict should be for the plaintiff.] [3]
    Defendant presented these points :
    2. That under the charter rights of the defendant company the cost incurred by the borough of Pottsville, of inspecting the refilling, repairing and placing in a safe condition of all opeiiings made by tíre defendant, and the cost of issuing the permit, are the only basis for permit charges, as regards the defendant company, and any substantial amount charged therefor bejmnd such a sum would be unreasonable, unjust and illegal, and render the ordinance void. Answer; This we refuse. [4]
    3. That under all the evidence in the case, the ordinance in suit is void for unreasonableness and for abuse of discretion in respect of the amount charged for permits, and, therefore, the verdict of the jury must be for the defendant. Answer : This we refuse ; we refer you to our general charge as to what we said upon the reasonableness of this oi'dinance. [5]
    4. If the jury believe under all the evidence in the case that the actual cost to defendant for the seasons of 1903 and 1904, of refilling, repairing and putting in safe condition of all street openings, made by the defendant company alone, in the borough of Pottsville, was $1,707.85, and the permit charges for the same openings, under the terms of the ordinance in suit, amount to $2,278.15, the permit charges are excessive, the ordinance becomes a revenue measure, and is, therefore void, and the verdict must be for the defendant. Answer; This we refuse, referring you to what we said in our general charge as to reasonableness of the amount charged. [6]
    Yerdict and judgment for plaintiff for $200. Defendant appealed.

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

      George M. Iioads, for appellant.
    — The police power cannot be used as a cloak for the invasion of personal rights or private property: People v. Warden, 144 N. Y. 529 (39 N. E. Repr. 686) ; Ritchie v. People, 155 Ill. 98 (40 N. E. Repr. 454); Ordway v. Cornelius, 23 Pa. C. C. Rep. 281; Munn v. Illinois, 94 U. S. 113.
    The imposition of fees for inspection, if intended as a mode for raising general revenue, cannot be sustained: Willis v. Standard Oil Co., 50 Minn. 290 (52 N. W. Repr. 652); Dillon on Municipal Corporations, sec. 609; State v. Hoboken, 33 N. J. L. 280. '
    This court has held that the burden of proving an ordinance invalid o.n account of the unreasonableness of the amount of permit charges required to be paid under it rests on the party asserting its invalidity, unless its unreasonableness is apparent on the face of the ordinance: Schellsburg v. Western Union Tel. Co. 26 Pa. Superior Ct. 343; Braddock Borough v. Telephone Co., 25 Pa. Superior Ct. 544; Kittanning Borough v. W. U. Tel. Co., 26 Pa. Superior Ct. 346; Landsdowne Boro. v. Water Co, 16 Pa. Superior Ct. 490.

      E. P. Leuschmer, for appellee.
    — The borough of Pottsville contends that the ordinance, which the appellant seeks to declare unreasonable and illegal, is a valid police regulation : Kittanning Borough v. W. U. Tel. Co., 26 Pa. Superior Ct. 346 ; Springfield Water Co. v. Darby Boro., 199 Pa. 400.

      April 15, 1907:
    A charge made by a municipal corporation, in the nature of a local assessment for benefits conferred, is not a tax, and, therefore, is not a violation of tbe constitution or any law of this state : Braddock Boro. v. Telephone Co., 25 Pa. Superior Ct. 544; Schellsburg v. W. U. Tel. Co., 26 Pa. Superior Ct. 343; Kittanning Boro. v. Gas Co., 26 Pa. Superior Ct. 355; Western Union Tel. Co. v. New Hope, 187 U. S. 419 (23 Sup. Ct. Repr. 204) ; Atl. & Pac. Tel. Co. v. Phila., 190 U. S. 160 (23 Sup. Ct. Repr. 817).
   Opinion by

Porter, J.,

This is an action to recover the penalties imposed by a borough ordinance for digging four trenches in macadamized streets of the borough of Potts ville, by the defendant company, for the purpose of laying gas pipes, without having obtained permits so to do as by the ordinance required. The ordinance requires that any person or corporation shall before making any excavation in any macadamized public street make written application to the commissioner of highways, setting forth the place where and the object for which the excavation is to be made, and pay a fee of $3.00 to the officer, who is thereupon required to issue a permit to make the excavation. There was at the trial in the court below no dispute as to the fact that the defendant had made the excavations without taking out the permits, as charged, and the only ground of defense alleged was that the ordinance was invalid.

The right and duty of a municipality, in the exercise of the police power, to regulate, inspect and supervise the various appliances which individuals and corporations may acquire the right to introduce and maintain, upon and under the surface of the public highways, and to impose a reasonable charge to reimburse it for the probable expense of such inspection and supervision, must be accepted as settled. The only question for the court to determine is whether a particular ordinance is a reasonable exercise of such power: New Hope Borough v. Western Union Telegraph Co., 16 Pa. Superior Ct. 306; New Hope Borough v. Postal Telegraph Co., 16 Pa. Superior Ct. 310; s. c., 202 Pa. 532; Taylor Borough v. Postal Telegraph Co., 16 Pa. Superior Ct. 344; s. c., 202 Pa. 583; Lower Merion Township v. Postal'Telegraph Cable Co., 25 Pa. Superior Ct.‘ 306; Norwood Borough v. Western Union Telegraph Co., 25 Pa. Superior Ct. 406; Braddock Borough v. Allegheny County Telephone Co., 25 Pa. Superior Ct. 544; Kittanning Borough v. Western Union Telegraph Co., 26 Pa. Superior Ct. 346; Kittanning Borough v. Natural Gas Co., 26 Pa. Superior Ct. 355; Edgewood Borough v. Scott, 29 Pa. Superior Ct. 156; Fort Pitt Gas Co. v. Sewickley Borough, 198 Pa. 201. The most difficult question in these cases' is as to the amount of the charge. “Necessarily any rule that may be adopted must leave some latitude for the exercise of the discretion of the borough officers. Unless this has been exceeded; unless the court is able to say from the facts of which it may take judicial cognizance, or from the undisputed or admitted facts, or if there be a conflict of evidence, then from the duly ascertained facts, that the ordinance is a revenue measure in the guise of a police regulation, or that the license fee is grossly in excess of what was necessary to cover the reasonably to be anticipated expense of proper police supervision, it is not justified in interfering. Even if it be conceded that where there is a conflict of evidence, the controverted facts are to be determined by the jury, still, the burden of proof being on the defendant, the court cannot be convicted of error in giving binding instructions in favor of tire 'borough where the defendant has not furnished evidence from which the jury could find facts which would justify the court in declaring the ordinance unreasonable. . . . By the law of this commonwealth, the tribunal having jurisdiction to decide whether or not, under an agreed or duly ascertained state of facts, there being no conflict of evidence as to essential facts, air ordinance is unreasonable, is the court: ” Kittanning Borough v. Natural Gas Co., 26 Pa. Superior Ct. 355.

The ordinance with which we are now dealing was not an annual charge for the inspection of the lines of the defendant, but a specific one to meet the entire expense of the duty of regulation, inspection and supervision cast upon the municipality by the making of the excavation in the macadamized street. The duty of the municipality with regard to such an excavation does not end with the issuing of the permit, nor with the filling of the excavation until it is level with the street, but continues so long as the settling of the material used in filling the trench and other causes directly resulting from the making of the excavation develop defects in the paving or macadamizing and make supervision necessary. It follows that, in determining the reasonableness of the charge, not only the direct expense of issuing and making a record of the permit and overlooking the filling and resurfacing of the trench, but also the indirect expense of maintaining the organization required to perform the subsequent duty of inspection and supervision, may properly be considered. The learned judge of the court below would not have been warranted, in the absence of evidence establishing an abuse of discretion upon the part of the borough authorities, in holding the charge imposed bj7 this ordinance unreasonable, as matter of law, for similar charges, as high or higher, have for the same service been held reasonable: Springfield Water Co. v. Boro, of Darby, 199 Pa. 400; Lansdowne Borough v. Springfield Water Co., 16 Pa. Superior Ct. 490. The presumption is in favor of the validity of the ordinance, and the burden is upon the defendant to prove facts which establish that the borough authorities have abused their discretion: Western Union Telegraph Co. v. New Hope Borough, 187 U. S. 419; Atlantic & Pacific Telegraph Co. v. Philadelphia, 190 U. S. 160; Postal Telegraph Co. v. Taylor Borough, 192 U. S. 64.

The plaintiff borough, at the trial in the court below, upon its case in chief offered evidence as to what was done by the municipal authorities with regard to the ditches dug in the streets by this company and other parties. This evidence established that the borough discharged the duty of inspection and supervision of the streets in question. The borough went further, however, and produced evidence which would have justified a finding that when ditches were dug in the macadamized street, particularly by this company, the filling always sank and it was necessary for the borough authorities to fill up the trenches and repair the macadamizing, using a heavy roller for that purpose, and that this involved an expenditure for that purpose alone of more than twice the amount of the fee charged by this ordinance for the permit to make the excavation. This evidence may have been admissible under the issue for the purpose of showing the necessity for the inspection and supervision of such excavations, but whether the expenses involved in making such repairs were proper to be considered in determining the charge imposed by the ordinance was at least doubtful. The evidence was admitted, however, without objection. The court below submitted the reasonableness of the ordinance to the jury, and in doing so used the following language : “We are of opinion that the borough would have a right to calculate the general charge, the general cost of what these repairs would be, estimate that and charge in the permit, and we, therefore, say to you that if you believe the evidence of the plaintiff, that the work to repair these openings cost more than twice as much as what the permits call for in this ordinance, then we say to you that that is a reasonable charge, and your verdict should be for the plaintiff.” The submission of the question to the jury in this manner is the. subject of the first, second and third specifications of error.

The charter of the defendant company, Act of February 25, 1850, printed in the pamphlet laws of 1851, page 774, provides, “ That said company shall be required without unnecessary delay to refill, repair and place in safe condition all openings made in the streets, lanes and highways of said borough.” The charter thus expressly imposed the duty to repair the streets, and it is not necessary t;o inquire whether in the absence of such a provision there would be a legal obligation on the defendant company to repair the pavements which it destroyed. The law to which this company owed its existence required it to repair the streets, and the duty thus imposed involved the obligation not merely to refill and resurface the trenches, but to repair such defects as subsequently developed because of the manner in which the trenches were refilled and resurfaced. That the borough might have enacted an ordinance requiring the company to repair the defects in the pavement resulting from the making of the excavations, and within a reasonable period thereafter, cannot be questioned: Springfield Water Company v. Boro of Darby, 199 Pa. 400; Edgewood Borough v. Scott, 29 Pa. Superior Ct. 156. The laying of a pavement may require skill and experience and it is within the police power of a municipality to ordain a regulation that the paving made over excavations in the public streets shall, in order to preserve uniformity, be done by the municipal authorities, and that the party who makes the excavation shall be required in advanee to deposit an amount sufficient to cover the cost of repaving : Appeal of the City of Pittsburg, 115 Pa. 4. The ordinance with which we are now dealing made no attempt to do anything of this kind; it left the liability of this defendant and all other parties, who made excavations in the streets, just where it found them. The duty of this defendant to repair the streets and its liability to the borough for a failure to perform that duty, which may result in expense to the latter, is in no manner affected by the ordinance. The fact that the defendant had paid fees for permits to open the street, under the provisions of this ordinance, would not relieve it from liability to reimburse the borough for any expense to which the latter might be put in repairing the pavements which the defendant .had failed to properly restore. The payment of the judgment entered in this case would not be a defense to an action brought by the borough to recover for the expense of repairs to the pavement which the defendant company ought to have made. The charge imposed by this ordinance for the permit was a police charge, pure and simple, and it must be sustained only upon the ground of the expense to which the borough may probably be put in the discharge of its duty to inspect, regulate and supervise the street, as aifected by the excavation, so long as such inspection and supervision may be necessary. If the amount of that expenditure were capable of definite proof, that would be the limit of the charge, but as that .is not the case, the borough authorities are vested with a reasonable discretion to determine the amount necessary for the purpose to which alone the fund is applicable. The provisions of this ordinance did not warrant the learned judge of the court below in directing the jury to take into consideration the cost of repairing the pavement in determining the reasonableness of the charge imposed by the ordinance. The first, second and third specifications of error are sustained.

The fourth specification is without merit, and the refusal of the point upon which it was based was proper. The point limited the elements of the duty of the borough which the jury were to consider to the mere issuing of the permit and refilling of the excavations. This entirely overlooked the fact that it was reasonable and proper for the borough to provide for a record of all these permits and that the duty of inspection and supervision did not end as soon as the trenches were filled and covered.

We have already said that ordinances of a character like to that with which we are now dealing and imposing similar or higher charges have been held to be valid, and the learned judge of the court below would not have been warranted, in the absence of evidence, in declaring this ordinance unreasonable. The evidence submitted by the borough in this case was such that a jury might fairly have been permitted to infer that the borough had provided an organization for the issuing of the permits to open streets and the preservation of a record thereof, and that it maintained officers whose duty it was to inspect the streets, as affected by the excavations made therein, and that those officers discharged their duty. The court below would, therefore, not have been justified in giving binding instructions in favor of the defendant. The fifth assignment of error is dismissed.

The evidence produced by the defendant as to what it actually cost the company to have the ditches refilled and the streets repaired, was wholly insufficient, standing alone, to furnish any basis for estimating the reasonableness of the charge of the borough for the proper, skillful and continuous inspection and supervision which it was the municipal duty to maintain. The less the company spent in refilling its ditches and repaving the street over them, the greater was the necessity for municipal supervision, which the ditches opened by this company never obtained, for it refused to take out the permits. The defendant company offered no evidence whatever as to any inspection of a ditch made by the defendant or its employees, after that ditch had once been filled up. The defendant called but one witness, and his testimony clearly sho¡wed that the company did not inspect their ditches after they were once covered and that, on the contrary, they waited until some person came to them with a complaint. This witness distinctly admitted that he knew that the borough authorities were compelled time and time again to go back and refill the ditches which had been left by this defendant company in an improper condition. That the cost of a proper inspection and supervision cannot be measured by the expenditure of this company, which failed to provide for any inspection or supervision, is very clear : Kittanning Borough v. Western Union Telegraph Company, 26 Pa. Superior Ct. 346. The sixth specification of error is dismissed.

The judgment is reversed and a venire facias de novo awarded.