text:
    Shoe v. Maerky, Appellant.

      Sale — Warranty—Breach—Deceit—False representations.

    Where a statement in assumpsit for a breach of a warranty in the sale of a chattel, sets forth the warranty and the breach, the mere fact that the statement also avers that the representations as to the warranty were not only untrue, but were fraudulently made with intent to deceive, will not prevent a recovery for the breach of the warranty.
    In an action of assumpsit to recover damages for the breach of a warranty in the sale of a steam engine, the evidence tended to show that the plaintiff sought to buy an engine that would generate twelve horse power, and that the defendant, who was informed as to the work it was expected to do, represented that he could and would sell him one of that capacity. It appeared that defendant was a dealer in secondhand engines, and made a specialty of repairing and rebuilding engines. The evidence showed that the engine was only ten horse power, and the defendant practically admitted this, although he swore that he represented it only as a ten horse power. Held, that the case was for the jury and that a verdict and judgment for plaintiff should be sustained.

      Sale — Warranty—Breach—Measure of damages — Damages—Steam engine.

    The measure of damages in an action for a breach of warranty of a steam engine is the difference between the actual value of the engine as it was at the time of the sale, and its value if it had been as warranted.
    In such a case plaintiff showed that he paid $325 for the engine, and that after using it continuously for upwards of a year he realized from it $175. He offered no direct evidence of the actual value at the time of the sale, of the engine he bought; and presented nothing to show the value at the same date, of the engine he should have received had defendant's warranty been satisfied. The jury returned a verdict for plaintiff for $191. Held, that the judgment should be reversed.
    Argued Oct. 16, 1907.
    Appeal, No. 66, Oct. T., 1907, by defendant, from judgment of C. P. No. 4, PMla. Co., Sept. T., 1905, No. 671, on verdict for plaintiff in ease of W. W. Shoe v. Emil Maerky.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Assumpsit to recover damages for breach of warranty in the sale of a steam engine. Before Audenried, J.
    The court charged in part as follows:
    [The only man who has tested that engine, who has come here and given you any statement of the result of his test, is Mr. Schramm. What does Schramm say about the result of his testing of the engine? He tells you that the engine developed eight horse power. Nobody else has testified on the subject. If Mr. Schramm is to be believed, and I do not see how you can get away from believing his testimony, it seems to me the agreement between Mearky and Shoe, whether it was that the engine should develop ten horse power on twelve horse power, was broken, because eight horse power is less than either of those figures.] [4] [Of course, Schramm may be wrong about this, but the only fact in the case which could raise any doubt, it seems to me, in relation to Schramm’s accuracy of observation and test, is the fact that Mr. Shoe retained the engine which Maerky sold him so long before making any complaint to Maerky about its failure to develop the horse power which Mr. Shoe says Maerky told him it would.] [11] That fact standing alone would be rather important. [If a man accepts goods and retains them for an appreciable time, it raises a presumption that if he complains about them afterwards as failing to comply with the warranty in relation to their quality which the seller has given with them, that he is wrong in his complaint, and that the goods have come up to what they were warranted to be. That is the presumption. I do not mean to say it is a presumption that cannot be rebutted, but that is the way the law looks at conduct of that kind. Where one dilly-dallies about a matter of this kind, and keeps the goods for a long while without saying anything on the subject of their defects, it is pretty fair to presume, and the law raises that presumption, that the goods are really what they were warranted to be by the seller. However, the purchaser of the goods can, by proper testimony, dispel that presumption of the law, and, in this case, the purchaser of the engine, Mr. Shoe, has attempted to do that. He tells you that he had no testing machine in his shop, that he had no means of determining just what was the horse power of the engine Maerky delivered to him, and that he had only become suspicious of it, only become doubtful as to whether it was up to the warranty or representation in relation to its power that Mr. Maerky made, when it failed to operate the machines in his establishment.] [5] [These machines had not been installed at the time the engine was installed. They were put in afterwards, and they were put in by degrees, not all at once. It was not until within a comparatively short time of when Shoe made his complaint to Maerky of the inefficiency of the engine that it was tried in the operation of all the machinery that Mr. Shoe told Maerky at the time he bought the engine he intended to put in his shop. The presumption from his retention of the engine in relation to horse power would, if this is to be believed, seem to be overcome, and you have nothing in the case except what Mr. Schramm says in relation to his test of it.] [12] Schramm said that the engine proved, on test, to be capable of developing no more than eight horse power, which, as I have already pointed out to you, is less than the horse power which it ought to have generated under the contract between Maerky and Shoe, whether you take that contract to be that it was a ten horse power engine or a twelve horse power engine.

      Suppose you come to the conclusion that Mr. Maerky’s warranty in relation to the engine’s power was broken; if you take that view the plaintiff here, Mr. Shoe, is entitled to recover a verdict against him, and you are then confronted with the question as to what award you shall make in his favor against the defendant. The measure of his damage for a breach of the warranty is compensation. What did he lose through Maerky’s failure to deliver such an engine as he said he would? The law reckons that loss in this way: [The jury must first determine what would have been the market value of such an engine as Mr. Maerky agreed to deliver.] [6] Then they must fix the market value of the engine which he actually did deliver. It is quite sure that if there is a difference between those two values, that difference is part of the plaintiff’s loss. If, for example, he was entitled under his contract to receive an engine whose market price was $350, and, as a matter of fact, he received an engine whose market price was only $160, his loss would be in this respect $190. The figures I have referred to are the figures testified to by certain of the witnesses as to the value of a twelve horse power engine and the value of the engine which was actually delivered by Mr. Maerky. I give those *' figures as illustrations of my meaning, and leave it to you to say whether those are the correct market values of the engine which ought to have been delivered by the defendant to the plaintiff and the engine which he did actually turn over to Mr. Shoe.
    Verdict and judgment for plaintiff-for $191.47. Defendant appealed.

      Errors assigned among others were (4-6, 11, 12), above instructions, quoting them.

      J. H. Brinton, for appellant.
    — The gist of the action is deceit: Erie City Iron Works v. Barber & Co., 102 Pa. 156; Shaw v. Fleming, 174 Pa. 52; Clark v. Lindsay, 7 Pa. Superior Ct. 43; Dutton v. Pyle, 7 Pa. Superior Ct. 353; Van Leer v. Earle, 26 Pa. 277; Gilberton v. Traction Co., 22 Pa. Superior Ct. 279.
    No warranty existed either express or implied: MacFarland v. Newinan, 9 Watts, 55; Matthews v. Hartson, 14 Pitts. L. J. 577; Livingston v. Stevenson, 163 Pa. 262; Norris v. Reinstedler, 90 Mo. App. 626; Ramming v. Caldwell, 43 111. App. Ct. 175.
    February 28, 1908:
    The market value of the engine at time of sale was not shown: Himes v. Kiehle, 154 Pa. 190; Seigworth v. Leffel, 76 Pa. 476; Mining Co. v. Jones, 108 Pa. 55.
    The retention of the engine was a waiver of any warranty that might have existed: Armour v. Produce Co., 28 Pa. Superior Ct. 524; Summers v. Ritchie, 30 Pa. 147; Tete Bros. v. Eshler, 11 Pa. Superior Ct. 224.

      Walter 'Biddle Saul, with him Maurice Bower Saul, for appellee.
    — There was no technical objection to the judgment of the court below: Van Leer v. Earle, 26 Pa. 277; Dutton v. Pyle, 7 Pa. Superior Ct. 353.
    It is submitted that an express warranty was clearly shown: Joseph v. Richardson, 2 Pa. Superior Ct. 208.
   Opinion by

Head, J.,

Had this action been trespass for deceit, the statement would have supported a recovery by the plaintiff because it avers that the representations' as to the quality and power of the engine, on the strength of which it was bought, were not only false in fact, but knowingly and fraudulently so, made for the purpose of deceiving. This scienter is the gist of the action for deceit: Erie City Iron Works v. Barber & Co., 102 Pa. 156. But the action is assumpsit to recover damages by reason of the alleged failure of the engine to measure up to the seller’s representations as to its capacity, which representations, it is claimed, amounted to a warranty. If indeed these representations, construed as the law would construe them, amounted to a warranty that the engine would generate twelve horse power, and there was a breach of that warranty, the mere fact that the statement avers that the representations were not only untrue, but were fraudulently made with intent to deceive, will not prevent a recovery for a breach of warranty in an action of assumpsit: Vanleer v. Earle, 26 Pa. 277; Erie City Iron Works v. Barber, 102 Pa. 156; Dutton v. Pyle, 7 Pa. Superior Ct. 353.

There was evidence from which the jury could find that the plaintiff sought to buy an engine of certain designated capacity, viz.: one that would generate twelve horse power, and that the defendant, who was informed as to the work it was expected to do, represented that he could and would sell him one of that capacity. Following the doctrine laid down by this court in Joseph v. Richardson, 2 Pa. Superior Ct. 208, where the whole subject of warranty in the sale of chattels was elaborately discussed and many authorities were reviewed, we are constrained to hold that such a representation amounted in substance to a warranty that the engine sold and delivered was of the size or capacity specified. And this would be especially true in the light of the testimony delivered by the defendant himself that he was not merely a dealer in secondhand engines, but made “a specialty of repairing and rebuilding gas and gasoline, engines;” that he had built or reconstructed many, and that the particular engine in question had been remodeled or reconstructed by him after he bought and before he sold it to the plaintiff. Assuming, then, the existence of a warranty that the engine was twelve horse power, there was evidence from which the jury could find a breach of it. Without adverting to the testimony on this subject offered by the plaintiff, it seems sufficient to note that the defendant himself practically admits the engine was only ten horse power. Of course he couples that with the further statement that he only represented it as a ten horse power engine, but the verdict has disposed of that issue adversely to his contention.

We must therefore accept the verdict as establishing that there was a warranty and a breach, and the right of the plaintiff to recover could safely rest on these two established facts unless the right was lost or waived by an undue and unreasonable delay in making complaint. Whether or not there was such delay, under the peculiar circumstances of this case, became, we think, a mixed question of law and fact. It was fairly submitted to the jury under proper instructions and, like the other questions previously discussed, was settled by the verdict.

What, then, was the proper measure of the plaintiff’s damages arising from the breach? Upon this point the decisions leave no room for doubt. “The measure of damages in an action for a breach of warranty of a steam engine is the difference between the actual value of the engine as it was at the time of the sale and its value if it had- been as warranted:” Himes v. Kiehl, 154 Pa. 190. In the general charge the court below so instructed the jury. But we can see nothing in the record to indicate that the verdict was, in any sense, responsive to such instruction. The plaintiff offered no direct evidence of the actual value, at the time of sale, of the engine he bought; and certainly presented nothing to show the value, at the same date, of the engine he should have received had the defendant’s warranty been satisfied. He did show that he paid $325 for the engine he got, and that after using it continuously for upwards of a year, he realized from it $175. Unless the jury mistakenly accepted this depreciation in value as the measure of the plaintiff’s damages, we are unable to discover any basis in the evidence on which the verdict could rest. The cause must therefore go back to be retried on the correct measure of damages as declared by the Supreme Court and herein indicated.

If the plaintiff can again satisfy a jury that the defendant warranted the engine to be of twelve horse power; that there was a breach of that warranty; that he honestly and in good faith made complaint as soon as he was reasonably satisfied, under the circumstances, that the engine he got was not the engine he bought, then he will have made out a case. But if he seeks to recover more than nominal damages, he must establish by proof that he has suffered such actual injury as the law recognizes as ground for substantial damages in cases of this character.

Judgment reversed and a venire facias de novo awarded.


source: Caselaw Access Project

author: Orlady, J.,

license: Public Domain

text:
    Interstate Securities Company, Appellant, v. Third National Bank.

      Corporations — Principal and agent — Agent’s authority — Duty of inquiry — Pledge of securities.

    The general rule as to agents of corporations, is that a corporate agent, like the agent of an individual, can make only such contracts as he is expressly authorized to make, or such contracts as pertain to the duties which the corporation imposes upon him.
    A person cannot retain negotiable securities which he accepts from an agent of a corporation, as a pledge for the debt of a third person, where it appears that he knew that the bonds were the property of the corporation, that it was his first transaction with the corporation, that he made no inquiry as to the authority of the agent, and that if he had made inquiry, he would have found that the action of the agent in pledging the securities was not only without authority, but in direct violation of it.
    Argued Oct. 10, 1907.
    Appeal, No. 56, Oct. T., 1907, by plaintiff, from judgment of C. P., No. 1, Phila. Co., June T., 1904, No. 1,365, on verdict for defendant in case of Interstate Securities Company v. Third National Bank.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Replevin to recover two negotiable bonds. Before Biddle, P. J.
    The facts appear by the opinion of the Superior Court.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in directing the jury to return a verdict for defendant, and in entering judgment for defendant on the special verdict.

      Wm. Hepburn Russell and Ormond Rambo, for appellant.—
    The law unquestionably is, that persons dealing with special agents must inquire into such agent’s authority: Lance v. Deacon, 15 Phila. 318; Rafferty v. Haldron, 81* Pa. 438; Reading Railroad Co. v. Johnson, 7 W. & S. 317; Thompson v. Sproul, 179 Pa. 266; Campbell v. Foster Home Assn., 163 Pa. 609.

      The pledging of the corporate bonds of a company, being unauthorized, does not bind the company: Buffalo Loan, Trust, etc., Co. v. Medina Gas, etc., Co., 162 New York, 67 (56 N. E. Repr. 505).
    The bank was bound to make inquiry: Kern’s Est., 176 Pa. 373; Garrard v. Pittsburg and Connellsville R. R. Co., 29 Pa. 154; Hanover Nat. Bank v. American Dock & Trust Co., 75 Hun, 55; Fisher v. Brown, 104 Mass. 259; Germania Safety Vault & Trust Co. v. Boynton, 71 Fed. Repr. 797.
    The fact that the bonds were negotiable does not alter the case, as the bank knew that the plaintiff corporation owned the bonds: Wilson v. Wilson-Rogers, 181 Pa. 80; Kern’s Est., 176 Pa. 373; Buffalo Loan, Trust, etc., Co. v. Medina Gas, etc., C.o., 162 N. Y. 67 (56 N. E. Repr. 505); Garrard v. Pittsburg and Connellsville R. R. Co., 29 Pa. 154; Fisher v. Brown, 104 Mass. 259; Loudon Savings Fund Soc. v. Hagerstown Savings Bank, 36 Pa. 498; Edwards v. Dooley, 120 N. Y. 540; Nester v. Craig, 69 Hun (N. Y.), 543; Rossiter v. Rossiter, 8 Wend. (N. Y.) 494; Cobb v. Glenn Boom & Lumber Co., 57 W. Va. 49; Merchants’ Bank v. Livingston, 74 N. Y. 223; Molloy v. Whitehall Portland Cement Co., 116 App. Div. (N. Y.) 839; Rust v. Eaton, 24 Fed. Repr. 830; Dyer v. Duffy, 24 L. R. A. 339; Dowden v. Cryder, 55 N. J. L. 329 (26 Atl. Repr. 941); Frink v. Roe, 70 Cal. 296; Mount Morris Bank v. Gorham, 169 Mass. 519; Stainback v. Read, 11 Gratt. 281; Rawson v. Curtiss, 19 111. 455; Quay v. Presidio, etc., R. R. Co., 82 Cal. 1.

      Theodore F. Jenkins, with him Humbert B. Powell, for appellee.
    — The bonds to recover which the writ of replevin was issued, were coupon bonds payable to bearer and therefore possessed all of the incidents of negotiable paper, and passed by delivery as the representative of money: Mason v. Frick, 105 Pa. 162; Cochran v. Fox Chase Bank, 209 Pa. 34; Beaver County v. Armstrong, 44 Pa. 63; Gibson v. Lenhart, 101 Pa. 522; Murray v. Lardner, 69 U. S. 110; Phelan v. Moss, 67 Pa. 59; Swift v. Tryson, 41 U. S. 1; Moorehead v. Gilmore, 77 Pa. 118; McSparran v, Neeley, 91 Pa. 17.
    A principal is bound by the apparent authority of his agent: Wood’s App., 92 Pa. 379; Shattuck v. American Cement Co., 205 Pa. 197; Hubbard v. Tenbrook, 124 Pa. 291; Rapp v. Palmer, 3 Watts, 178.
    February 28, 1908:
   Opinion by

Orlady, J.,

This action of replevin was instituted to recover from the Third National Bank of Philadelphia two bonds of the Mobile, Jackson and Kansas City Railroad Company, which bonds came into the possession of the Third National Bank under the following circumstances: In April, 1904, the plaintiff was negotiating with the Integrity Title Company of Philadelphia to extend for the period of one year a loan to the Vandegrift Construction Company, in order to assist the latter company in raising $100,000 for the purpose of completing the West Chester, Kennett and Wilmington Railroad. This negotiation was pending between the plaintiff company (acting through its President, Charles E. Levy), the Integrity company, and the Vandegrift Construction Company. The Third National Bank of Philadelphia was a creditor of the Vandegrift Construction Company in the sum of $28,500, and held $27,000 of the bonds of the West Chester, Kennett and Wilmington Electric Railway Company as security therefor; and on account of a default in the payment of interest under the contract between these parties, the Third National Bank had advertised said bonds for public sale on April 20, 1904 at twelve o’clock, noon. On April 12, 1904, the president of the plaintiff company called at the Third National Bank of Philadelphia and had a conversation with its cashier, in which the relation of the plaintiff company to the Vandegrift Construction Company was explained, as well as the agreement existing between the plaintiff company and the Integrity Trust Company, whereby the plaintiff company was to put up the railroad bonds of the Mobile, Jackson and Kansas City Railroad and other securities on which to borrow the $100,000. This conversation was preliminary to a further interview to be arranged for later in which the transaction was to be consummated; the relation of the Third National Bank as a creditor of the Vandegrift Construction Company being well known to the president of the plaintiff company, and the relation of the plaintiff company to the general enterprise of building the West Chester, Kennett and Wilmington Railroad Company, being equally well known to the defendant bank. At the interview between the president of the plaintiff company, and the defendant’s cashier, the authorized representative of the Vandegrift Construction Company was present; and it was explained to the defendant company’s cashier that the bonds of the Mobile, Jackson and Kansas City Railroad Company would be used by the plaintiff company in furthering the enterprise for equipment and extension, after which explanation the defendant’s cashier replied, “Well, that is the only intelligent conversation I have had regarding this matter. I have had a great many promises, but nothing has been ever carried out, and I am sick and tired of it, and I want to get through with it.”

On April 19, Mr. Levy, by reason of an accident, was prevented from coming to Philadelphia to complete the arrangement above outlined, and in his stead sent one Daniel B. Ely as the special agent of the plaintiff, with written instructions defining and limiting his authority in regard to the transaction. On April 20, Mr. Ely delivered to the defendant company two negotiable coupon bonds for $1,000 each, of the Mobile, Jackson and Kansas City Railroad Company, for which the defendant bank gave a receipt on its formal letter head, as follows: “Received, Philadelphia, April 20, 1904 of Daniel B. Ely, representing the Interstate Securities Company of New York two bonds for $1,000 each, of the Mobile, Jackson and Kansas City Railroad Company, as security for interest on the loan of the Vandegrift Construction Company amounting to $28,500. W. Clifford Wood, Assistant Cashier.” The interest due at that time was $1,011.80 on the indebtedness of the construction company to the bank, and in consideration of the delivery to the bank of the two bonds, the electric railway company bonds were withdrawn from sale.

On the following day the president of the plaintiff company notified the defendant bank that Ely had exceeded his authority in handing over the bonds, and that he, Ely, had with him at the time they were delivered to the defendant bank, specific written instructions as to how he was to proceed; further, that the bonds were placed in his hands in trust, to be used with other bonds for the exclusive purpose of obtaining a loan under the terms of an agreement between the plaintiff and the Yandegrift Construction Company, and he made a demand for a return of the bonds, which was refused.

The plaintiff then brought the present action in replevin, and on the trial a verdict in favor of the defendant was directed by the court, with a special finding that at the time the writ was issued, as well as at the date of the verdict “the defendant held the said bonds mentioned in the writ as security for the payment by the plaintiff to the defendant of the sum of $1,011.80 with interest from April 20, 1904, and that from time to time the defendant had collected the semiannual interest upon the bonds amounting to $300, which sum should be credited on the amount for which the said bonds are held as security, and that upon this date the plaintiff would be entitled to receive possession of the said bonds upon the payment of the sum of $864.22 to the defendant, and that the value of the said bonds was $2,000.”

The testimony of Levy was not contradicted, no official of the defendant bank being called as a witness, and this testimony with the correspondence between the parties must determine the correctness of the verdict as directed by the court. The principal question is, what knowledge did the bank have, or was presumed to have, of the authority of Ely to pass to it the two bonds in question. This was the first transaction between the parties, and at the primary negotiation between them, the plaintiff gave full information of the general scope of the enterprise in which it, as a corporation, was engaged, so that when Ely presented himself to the bank on April 20, the bank must be'conclusively presumed to have known that he was the special representative and agent of the plaintiff company, which was not in any way liable for the Vandegrift Construction Company’s debt to the bank; and further, that the bonds which he at that time delivered, belonged to the plaintiff corporation. It also knew that as to the plaintiff, the construction company was an independent third person. It does not appear that any inquiry was made by the company of Ely as to his authority, or that Ely disclosed to the bank the letter of instructions which had been given to him, limiting his authority, but the fact remains that the parties dealt with each other with sufficient knowledge of the facts, that it was incumbent upon the bank to ascertain what authority he, Ely, had, to surrender to the bank the property of the plaintiff company. The receipt given refers to Ely as “representing the Interstate Securities Company, New York,” and the bonds are designated as “security for interest on the loan of the Yandegrift Construction Company.”

The general rule as to agents of corporations, is that a corporate agent, like the agent of an individual, can make only such contracts as he is expressly authorized to make, or such contracts as pertain to the duties which the corporation imposes upon him: 2 Cook on Corporations (5th ed.), sec. 720. And the bank in dealing with Ely when representing the plaintiff company, and pledging its property as security for the debt of a third person, was bound to make inquiry as to the scope of his authority: Rafferty v. Haldron, 81* Pa. 438; Thompson v. Sproll, 179 Pa. 266; Buffalo Loan Trust, etc., Co. v. Medina Gas, etc., Co., 162 N. Y. 67; Story on Agency, sec. 78. The bank dealt with Ely not as if he were the agent and representative of a corporation, but as though the transaction was personal to him, and as though it did not know that the bonds he offered and finally delivered to it, were not the property of the plaintiff. It was held in In re Estate of William H. Kern, 176 Pa. 373, that where a trustee of bank stock in violation of his trust pledges the same for anyone’s benefit, to one constructively notified of the trust, any inquiry short of an actual inspection of the trust deed, will not entitle the pledgee to hold the same; and where the defendant knew or ought to have known that the securities it received even though they were negotiable by delivery, belonged to another, it had no reason to suppose that the real owner of the securities was willing to have them used to pay another’s debt; and in Fisher v. Brown, 104 Mass. 259, it was held immaterial that the defendant in that case did not know who the owner was. In the case at bar, the bank had actual knowledge, as shown by its receipt, that the plaintiff was the owner of the bonds.

On the trial the learned judge practically held that the bank was a holder for value in the usual course of business. This was not warranted under the evidence, as this was the first transaction between the parties, and from the undisputed testimony the bank had knowledge, not only of the ownership of the property, but of the relation of the plaintiff company to the debtor of the bank. Nor does the fact that the bonds were negotiable change the duty of the bank in accepting them as a pledge for the debt of a third person. The bank was not an innocent third party receiving negotiable securities. The securities were not received in the usual course of business, but were taken with full notice of the true ownership. Had inquiry been made or had the authority of Ely been exhibited to the bank, it would have disclosed fully, clearly and explicitly that his action in passing to the bank the securities of the plaintiff was not only without authority, but in direct violation of it: Wilson v. Wilson-Rogers, 181 Pa. 80; Loudon Savings Fund Society v. Hagerstown Savings Bank, 36 Pa. 498; 1 Randolph Commercial Paper, sec. 388; Mount Morris Bank v. Gorham, 169 Mass. 519. The plaintiff could not be bound by any suggestion of apparent authority by its agent, for the reason that so far as disclosed by the record, there was no inquiry as to the extent or degree of his authority. He was not questioned on the subject, but was dealt with as an unquestioned owner in the light of knowledge that he was but a representative. Whatever his official corporate title may have been, whether manager of a bond department, or director in the plaintiff company, is not material in the light of the evidence; and the plaintiff conceding that he was but an agent, must assume the burden of showing the extent and authority of his right to speak for his principal.

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


author: Oklady, J.,

text:
    Burkhardt v. Columbia Relief Fund Association, Appellant.

      Insurance — Accident insurance — Relief association — Disobedience of employer’s rules — Negligence—Street railways — Evidence.
    In an action on a policy of accident insurance to recover for personal injuries sustained by the insured while acting as a motorman, where the policy provides that there shall be no liability if the injuries are sustained by reason of the violation of a rule of the employer of the insured, and it appears that a rule of the employer forbade the insured to leave his car “without first throwing off the overhead switch, and removing the controller handle,” and the evidence is conflicting as to whether the insured had complied with this order, the case is for the jury and a verdict and judgment for plaintiff will be sustained.
    Argued Oct. 15, 1907.
    Appeal, No. 274, Oct. T., 1906, by defendant, from judgment of C. P. No. 5, Phila. Co., Sept. T., 1904, No. 1,558, on verdict for plaintiff in case of Magdaline Burkhardt, Administratrix of August Burkhardt’s Estate, deceased, v. Columbia Relief Fund Association.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ;
    Affirmed.
    Assumpsit for accident insurance. Before Ralston, J.
    At the trial it appeared that August Burkhardt, a motorman employed by the Philadelphia Rapid Transit Company, was injured while at work on September 4, 1904. He was removed to a hospital, and suffered an amputation of one of his legs, dying early on the following morning. He was insured in the defendant’s company against accident. Benefits for nonfatal accident were payable to him, but for death to his wife. The wife, having failed to recover for death benefits, instituted this suit to recover benefits for nonfatal accident. The policy stipulated that the defendant should not be liable where the injuries resulted from the insured’s own negligence, or from a violation of the laws or rules of any company or corporation. One of the rules of the transit company was that motormen should not leave their cars without first throwing off the overhead switch and removing the controller handle. The evidence as to the deceased’s violation of this rule was conflicting. The court submitted the case to the jury.
    February 28, 1908:
    Verdict and judgment for plaintiff for 1168.75. Defendant appealed.

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

      Joseph M. Smith, for appellant.

      Charles S. Wood, for appellee.
   Opinion by

Oklady, J.,

After twice shifting its defense in regard to the particular clause in its policy under which it might be held to be liable, if at all, the defendant association finally depends on an interpretation it puts on inferences to be drawn from controverted facts. The inducing cause of the death of the plaintiff’s husband, was the sudden forward movement of the car on which he was the motorman. It is contended that the defendant is not liable because of the alleged violation of a rule of the employer, in leaving the car “without first throwing off the overhead switch and removing the controller handle;” but this was the disputed and important fact, which depended upon the testimony of several witnesses, who did not agree in their statements. The plaintiff was required to demonstrate affirmatively to the satisfaction of the jury that her husband did not in fact violate a rule of the company. She has done this, and has also satisfied the court in banc on the motion for judgment non obstante veredicto. The question of the motorman’s contributory negligence was submitted to the jury in a plain and clear manner, and the verdict rendered was fully warranted by the evidence. Had the verdict been in favor of the defendant it would not be disturbed as being contrary to the weight of the evidence, but the credibility of the witnesses is always for the jury, and the essential facts of this case being in dispute, the controversy was rightly left to the jury to pass upon the effect of the oral evidence in determining' their conclusion: Dinan v. Supreme Council, 210 Pa. 456.

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


author: Oblady, J.,

text:
    Brannan v. Haldeman, Appellant.

      Bailment — Bailee for hire — Horse—Injury to horse — Animals.
    In an action to recover damages for injuries to a horse alleged to have happened while the horse was in the defendant’s possession as a bailee for hire, the court commits no error in charging as follows: “The rule of law is that he is obliged to use ordinary diligence and care in order to preserve the property, and if you find in this case that he has not used ordinary diligence and care, but that the animal was hurt because he did not use ordinary diligence and care, then the plaintiff is entitled to recover. On the other hand, if you find that he did use ordinary diligence and care, your verdict should be for the defendant.”
    If, in such a case, the evidence is conflicting as to whether the defendant used ordinary care and diligence, the case is for the jury, and a verdict and judgment for defendant will be sustained.
    Argued Oct. 17, 1907.
    Appeal, No. 72, Oct. T., 1907, by defendant, from judgment of C. P. No. 4, Phila. Co., March T., 1906, No. 3,179, on verdict for plaintiff in case of Michael Brannan v. Edward Haldeman.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for injuries to a horse.
    Carr, J., charged in part as follows:
    The defendant was a bailee for hire, as it is called; that is to say, the defendant got possession of the horse and paid so much for its use. The rule of law is that he is obliged to use ordinary diligence and care in order to preserve the property; and if you find in this case that he has not used ordinary diligence and care, but that the animal was hurt because he did not use ordinary diligence and care, then the plaintiff is entitled to recover. On the other hand, if you find that he did use ordinary diligence and care, your verdict should be for the defendant.
    Now the facts are that the horse was in sound condition when the defendant received him about six o’clock on the morning of April 3. When he was next seen by his owner on the following morning about ten o’clock, he was lame. What then are the facts showing that he did not use ordinary care in using the animal? It seems that the defendant returned the night before about a quarter before twelve, and instead of taking the horse to its owner, the plaintiff, stabled him that night in his own control. The plaintiff asks you to believe that that is a suspicious circumstance, and that it was because the horse was not at that time in as sound condition as when the defendant received it, so that the defendant did not hunt up the owner or take the horse to stable; and it is a fact for you to consider; the plaintiff also asks you to find that either in taking the horse up the incline or in bringing him down the following morning at the Star Stable, his back was injured. That is a fact for you also to consider, and you will note whether it was the act of a man who was using- ordinary diligence and care in handling the animal.
    Not only that, but when the horse was returned the next morning to the stable, what was the fact? There was no one there. It was returned at an unusual hour, because these men go to work about seven o’clock. The horse was not returned until half-past eight. Again, was it a reasonable and cautious act, and that of a man using ordinary care, to leave the horse in the stable without a caretaker? Even though you take the defendant’s side of the story, that the horse was hurt in its stall, the question of fact for you to consider is, whether or not he did the ordinarily careful thing that a man would do, in leaving the horse in the stall without a caretaker. That to my mind is a material point, and if, under all the circumstances, you believe that the defendant, when he left the horse there without a caretaker, did a thing which an ordinarily careful and cautious man would do, and the horse was hurt in the stall, as the defendant contends, then the defendant is not liable. On the other hand, if you believe the horse was hurt in the stall, and that it was not the act of an ordinarily careful and cautious man to leave it in the stable without someone to look after it, then the plaintiff is entitled to recover.
    February 28, 1908:
    Verdict and judgment for plaintiff for $201. Defendant appealed.

      Error assigned was in finding binding instructions for defendant.

      Hugh Roberts, with him C. S. MacCain, for appellant.

      William C. Gross, with him John F. Halbach, for appellee.
   Opinion by

Oblady, J.,

The dispute between the plaintiff and defendant was purely one of fact, which was passed upon by a jury after a fair submission under an adequate charge of the court. The whole question was fairly summarized in the direction: “The rule of law is that he is obliged to use ordinary dilligence and care in order to preserve the property, and if you find in this case that he has not used ordinary diligence and care, but that the animal was hurt because he did not use ordinary diligence and care, then the plaintiff is entitled to recover. On the other hand, if you find that he did use ordinary diligence and care, your verdict should be for the defendant.” No unusual proposition of law is involved, the facts were clearly stated by but few witnesses, and they have been disposed of by the only tribunal authorized by the law to decide them.

There is no merit in the appeal and the judgment is affirmed.


author: Orlad y, J.,

text:
    McNally v. Jenkinson, Appellant.

      Contract — Plumbing work — Work to be done to satisfaction of employer.

    Where a plumber enters into a contract to do certain plumbing work in a workmanlike manner with materials designated, both work and labor to be done to the satisfaction and approval of the employer, and the latter after the work is finished expresses his dissatisfaction with it, specifically pointing out various defects of a material character, showing that the objections are not merely capricious, and such defects are not corrected, the plumber is not entitled to recover the contract price.
    Argued Oct. 17, 1907.
    Appeal, No. 145, Oct. T., 1907, by defendant, from judgment of C. P. No. 5, Phila. Co., March Term, 1906, No. 1,249, on verdict for plaintiff in case of Robert J. McNally v. Acis Jenkinson.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Assumpsit for plumbing work. Before Staake, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $216.87. Defendant appealed.

      Errors assigned among others were (1) portion of charge, quoted in the opinion of the Superior Court; (4) in refusing binding instructions for defendant.

      Arthur Sellers, for appellant.
    — It was clear error to state to the jury that the cases which refer to an agreement to do work to the satisfaction and approval of another do not apply to a cause of this kind where the work was plumbing, putting in a toilet, a new boiler, new under-drain, etc: Adams Radiator & Boiler Works v. Schnader, 155 Pa. 394; Singerly v. Thayer, 108 Pa. 291; Delahunty Dyeing Machine Co. v. Penna. Knitting Mills, 19 Pa. Superior Ct. 501; Waymart Water Co. v. Way-mart Borough, 4 Pa. Superior Ct. 211.

      Edmund Randall, with him M: J. McEnery and James A. Flaherty, for appellee.
    — All the cases in this state upon the subject relate to some specific object, article or machine, as in Singerly v. Thayer, 108 Pa. 291; Osborne v. Everett,. 15 Atl. Repr. 723; Sidney School Furniture Co. v. School Dist., 130 Pa. 76; Stutz v. Loyalhanna Coal & Coke Co., 131 Pa. 267; Howard v. Smedley, 140 Pa. 81; Adams Radiator & Boiler •.Works v. Schnader, 155 Pa. 394.

      February 28, 1908:
   Opinion by

Orlad y, J.,

After an inspection of the premises, as testified to by the plaintiff, he entered into an agreement with the defendant to do certain work in the nature of general repairs to the plumbing and hot water service, at his residence in Germantown, using certain old material, with the understanding that the work should be done to the satisfaction of the defendant; in the language of the defendant the plaintiff stated, “I will do you a good job, a first class job to your entire satisfaction, and will use what pipe is fit to be used.” There does not seem to be any contention as to this phase of the controversy, but it was urged on the trial in the court below that even if the work were perfect in every way, the contract stated that it should be done to the satisfaction and approval of Mr. Jenkins, who thus had the distinct right to express his dissatisfaction, and to refuse to pay for the work should it not meet his approval. The court in its charge to the jury stated: “It is true there are cases where this principle applies, as where a reaper may be sold, or a mowing machine, or an elevator constructed, where something has been sold or constructed with the agreement that it must be to the satisfaction and approval of the purchaser. In such cases our courts have held that it must be to the satisfaction and approval of the purchaser, and that the mere fact that, for instance, the mowing machine or reaper being too heavy, although it does its work properly, entitled the purchaser to return it because he is not satisfied with it. It cannot be contended, under the cases, however, that that rule applies to a case of this kind, where work has been done in a proper and workmanlike manner, and proper materials furnished. This labor and material cannot be returned like a reaper or a mowing machine, and where the claim is <3f this character, and the work is perfect, it cannot be left simply to the caprice of the person for whom the work has been done and the material furnished, so that he may simply say I am not satisfied. I think it will appeal to the common sense of any one of us that if the work was perfect, the man should be satisfied with it, and that for him to say, under such circumstances, that it was not satisfactory would be mere caprice, and the cases are very clear, indeed, to the effect that mere caprice is no ground for expressing dissatisfaction.” At the conclusion of the work, the defendant objected to its character, and called the plaintiff’s attention to certain defects, such as a leak under the bottom of the boiler; the tank in the bath room was not set plumb with the pipes; the water was discolored by reason of rust or scale in some part of the construction; certain fittings were misplaced; the water-closet was defective; and that after the work was fully completed the board of health authorities of the city had required that there should be a change in the construction, and that it had not met their approval until some months after suit had been brought to recover on the claim, whether this was in fact as testified to by the defendant was for the jury.

Under the undisputed testimony in the case a quotation from Singerly v. Thayer, 108 Pa. 291, is pertinent: "Satisfactory to whom? Certainly not to the maker only. Was it to be satisfactory to the person for whom it was to be made and by whom it was to be used? The learned judge thought this was not a necessary requirement; but if it Was built in a workmanlike manner and performed its intended purpose in a manner which ought to be satisfactory to the plaintiff in error, that was sufficient, In other words, it may have been wholly unsatisfactory to him, yet if the jury thought he ought to have been satisfied, he was bound to accept it. In effect that is, it need not have operated to his satisfaction in any respect, but to the satisfaction of the jury which might be called to pass on the rights of the parties.” It is true that the construction involved in that case was an elevator in a building, but, under the authorities, there is no distinction between such an addition, and improvements of the character mentioned in this case. The objection must not be made from mere caprice, and without reason for the mere purpose of avoiding liability, but when the plaintiff agreed that he was to do the work to the satisfaction of the defendant, and that he was not to be paid for it until it was satisfactory to him, he submitted that question to the defendant’s judgment: Howard v. Smedley, 140 Pa. 81. He did not agree to accept what might be satisfactory to others, but what would be satisfactory to himself; no other person could intelligently determine whether in every respect he was satisfied therewith: Adams Radiator & Boiler Works v. Schnader, 155 Pa. 394; Dyeing Machine Company v. Knitting Mills, 19 Pa. Superior Ct. 501; Meacham v. Gardner, 27 Pa. Superior Ct. 296. We are required to follow these cases. There is no middle ground. The contract was, to do the work in a workmanlike manner, with the materials designated, both work and labor to be done to the satisfaction and approval of the defendant. This was agreed to after the plaintiff had made an inspection of the premises, and had selected such of the old material as in his judgment was proper for use in the reconstructed work. The undisputed defects and objections to the character of the work as abové stated, reheve the defendant of making a mere capricious and unwarranted objection, and the court should have submitted that question to the jury. In many of the cases the subject-matter of the contract was not a separate and completed item, such as a reaper or a piece of machinery, but included elevators, furniture, machinery connected with, and integral parts of associated structures; and the rule has been rigidly held that where the terms of the contract are explicit they must be literally followed. The work involved in this case affected not only matters of household convenience, such as improvements in the kitchen, but the health of the family, which would be endangered by bad sewage connections. The plaintiff's right to recover depended upon the situation at the time he made his demand for payment, subsequent to which the public authorities condemned a part of the work. It is true that this part was remedied, but the other parts remained unchanged, and the legal interpretation of the contract is, that the defendant was to be satisfied with the work as completed, and not the plaintiff, the plumber, or other witnesses. Not the jury, as was held in Adams Radiator & Boiler Works v. Schnader, 155 Pa. 394. The only point submitted was by the defendant, who asked for binding instructions to return a verdict in his favor, and while the proof of a suggested compromise should not have been received, had objection. been made, the fact that the defendant offered to pay a part of the claim was so presented in the charge of the court to the jury, as to obscure the real question involved under the pleadings, namely, whether the work was so done, in compliance with the terms of the contract between the parties, that the jury could find the objection made by the defendant to have been a mere capricious, frivolous and unreasonable one. The case was fairly for the jury under proper instructions, but the defendant was held to an improper application of the principle announced in Singerly v. Thayer, and like cases.

The first assignment of error is sustained, the judgment is reversed with a venire facias de novo.


author: Henderson, J.,

text:
    Catts, Appellant, v. Catts.

      Divorce — Setting aside decree — Laches—Fraud.
    A decree of divorce may be set aside for fraud or imposition; but the power is equitable, and the ground of its exercise is exceptional, and should appear of record so that it may clearly appear that it is not merely an arbitrary exercise of discretion.
    A decree of divorce will not be opened where the respondent has been guilty of gross laches.
    A woman against whom a decree of divorce had been entered made an application twenty-three months thereafter to have the decree set aside. She admitted that she knew that the decree had been entered about a ^ronth after its date. She claimed that she had never received actual notice of the meeting held for the purpose of taking testimony. It appeared, however, that the attorney she had employed at the institution of the proceedings had been instructed by her to withdraw his appearance before the meeting, and that the master had no notice of this withdrawal. The respondent also claimed that she had not received notice of the final rule for divorce. The clear weight of the evidence on this subject tended to contradict the respondent’s statement. There was no finding by the court below that the libelant had committed any fraud or used any undue means to secure the decree. Held, that it was error to set aside the decree.

      February 28, 1908:
    Argued Oct. 16, 1907.
    Appeal, No. 137, Oct. T., 1907, by plaintiff, from decree of C. P. No. 1, Phila. Co., Sept. T., 1904, No. 239, setting aside divorce in case of Robert M. Catts v. Ola J. Catts.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Rule to show cause why decree of divorce should not be open.
    The facts appear by the opinion of the Superior Court.

      Error assigned was'order making absolute rule to open decree in divorce.

      Reuben Levi, with him Daniel J. Shern, for appellant.
    — We take it to be a primary principle of law that a decree of a court of competent jurisdiction cannot be opened after term time except for fraud: O’Donnell v. Flanigan, 9 Pa. Superior Ct. 136.
    The case of Hocking v. Hocking, 26 Pa. C. C. Rep. 362, decides the very point in issue.

      Charles Hunsicker, with him George T. Hunsicker and Jos. W. Hunsicker, for appellee,
    cited: Wanamaker v. Wanamalcer, 2 Pearson, 166; Keeseman v. Keeseman, 2 Pearson, 186; Allen v. Maelellan, 12 Pa. 328; Boyd’s App., 38 Pa. 241; Nickerson v. Nickerson, 16 Phila. Rep. 154; Perry v. Perry, 15 Phila. 242; Firmin v. Firmin, 16 Phila. Rep. 75; Given v. Given, 25 Pa. Superior Ct. 467.
   Opinion by

Henderson, J.,

The appellant obtained a decree of divorce April 3, 1905. There was a reference to a master, his report recommending a divorce, a rule for a final decree and proof of service of the rule, in due course before the decree was entered. Nearly two years thereafter the respondent presented a petition to have the decree set aside on the allegation that the understanding of the petitioner was that she and her husband were to sign separation papers; that when she afterward learned that her husband had sued for a divorce she called upon an attorney and authorized him to act for her; that some time thereafter her husband induced her to instruct her attorney to withdraw his appearance for the reason that their “affair” was over and should it ever come up again he, the attorney, would be notified; that she had no notice of the subsequent proceedings. The petitioner further represented that the grounds of divorce set up by the appellant were not true. The evidence taken on the rule to set aside the decree leads strongly to the conclusion that the respondent was aware of the divorce proceeding and that she voluntarily and deliberately omitted to make any defense although she was fully advised by her attorney as to the effect of such omission. A clear preponderance of evidence is to the effect that she also was served with a copy of the rule for a final decree. She admits that she knew the decree had been entered about a month thereafter. During the succeeding twenty-two months she made no movement to obtain a hearing or to set aside the decree. The court below was of the opinion that as the respondent never received actual notice of the meeting held for the purpose of taking testimony and was not present nor represented at that meeting and that as there was a conflict of testimony which raises a doubt whether she received notice of the final rule to show cause why a decree should not be entered the decree should be set aside. There is no finding that the rule for final decree was not served nor that the libel-ant had committed any fraud or used any undue means to secure the decree. There was a very good reason why the respondent did not have notice of the time when the testimony was taken — she instructed her attorney to withdraw his appearance and of this withdrawal the master did not have notice; but this was her own intentional act. She did not desire to be present at the hearing. She adopted the most effective means of removing herself from the case. Her own correspondence with her attorney clearly shows that she knew the proceeding was pending and she is presumed to have known that some action was likely to result therefrom. As to the service of notice of the rule we think the clear weight of the evidence is in contradiction of the respondent’s statement. And even if that were not so, she knew within a month after the decree was entered that that action had been taken. No objection was then made, nor afterward until a question arose as to the provision for the maintenance of the child of the parties. Having knowledge of the decree it was her duty to act with reasonable promptness in seeking to set it aside if she had any cause to assign sufficient for that purpose. That a decree of divorce may be set aside for fraud or imposition admits of no doubt. The power is equitable, however. The ground of its exercise is exceptional and should appear of record so that it may clearly appear that it is not merely an arbitrary exercise of discretion: Fisher v. Ry. Co., 185 Pa. 602. The right of the court to open a judgment or set aside a decree after a trial and after the lapse of the term only exists in extraordinary cases and has not been extended to cases where the defendant’s own laches was the cause of his failure to have a hearing. Judgments and decrees regularly obtained are not to be set aside on slight considerations nor is encouragement to be given to inattention and indifference on the part of suitors. In the absence of fraud on the party against whom the judgment or decree has gone or imposition on the court the conclusiveness of the proceeding ought not to be in doubt. We have failed to find evidence of fraud or imposition which in our opinion justifies the vacation of the decree in this case. The conduct of the respondent amounts to a waiver of any irregularity in the service of notice on her of the taking of testimony. We have not the evidence in the original proceeding before us, but as it was deemed sufficient. by the master and court to support the decree we may assume it to be of such a character here. The court below did not enter into a consideration of the merits of the case, but limited the inquiry to evidence as to the services of the rule and of fraud on the part of the libelant. This evidence we conclude is not sufficient to sustain the petition of the respondent.

The decree is reversed.


text:
    Hoyt v. Clinton Hotel Company, Appellant.

      Bailment — Bailment for hire — Hotel—Loss of trunk — Negligence— Presumption — C ontract.

    The rule that a bailee may not by special contract relieve himself against his own fraud or negligence applies not only to common carriers, but also to bailees who for hire take the property of others into their care.
    Where a trunk is placed in the custody of the proprietor of a hotel in a room provided for that purpose, a bailment is created for the mutual advantage of both the hotel and the guest; and if the trunk disappears from the room, and the hotel proprietor is unable to account for the loss, the presumption of negligence arises against him, and he will be held liable for failure to exercise ordinary care.
    A guest in a hotel delivered a trunk to an employee of the hotel, to be placed in a storeroom provided for trunks. A notice in the guest’s room stated that “each tenant may store two trunks in the storeroom without charge, at the owner’s risk. The key of storeroom will be kept at office, and bellman will go to the storeroom with guests.” It was-shown that the key to the storeroom was not kept at the office, but that two keys were in the possession of two employees who performed the duties of porter, and acted in other capacities about the hotel. When the guest demanded his trunk it was not found in the storeroom, and its disappearance was not accounted for by the hotel. Held, in a suit against the hotel, that the plaintiff was entitled to recover the value of his trunk.
    Argued Oct. 17, 1907.
    Appeal, No. 271, Oct. T., 1906, by defendant, from judgment of C. P. No. 5, Phila. Co., Sept. T., 1905, No. 4,192, on verdict for plaintiff in case of Edmund C. Hoyt v. Clinton Hotel Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover the value of a trunk'. Before Martin, P. J.
    The facts are stated in the opinion of the Superior Courts
    The defendant presented the following points :
    1. As the plaintiff by his lease agreed to conform to any and all rules and regulations governing the defendant’s apartment house and said rules and regulations which are made a part of the lease provided that each tenant may store trunks in the storeroom at the owner’s risk, the plaintiff has waived his right to recover against the defendant for the loss of his trunk and the verdict must be for the defendant. Answer: Refused. [1]
    2. Although at common law the defendant would be liable for the loss of the trunk the plaintiff by his lease relieved the defendant of his liability by agreeing that the trunk should be stored at his own risk. Answer: Refused. [2]
    3. It having been shown that notice as to the storage of trunks at the owner’s risk was posted in plaintiff’s room and such fact not being denied the plaintiff under the terms of his lease is not entitled to recover and the verdict should be for the defendant. Answer: Refused. [3]
    Verdict and judgment for plaintiff for $300. Defendant appealed.

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

      Samuel Peltz, for appellant.
    — It is conceded that at common law the appellant in the absence of such contract would be liable for loss of the trunk, but as soon as that contract was entered into there could be no legal implication of any other contract and each party was bound by the terms thereof; and if the trunk was lost, the appellant was relieved of the liability and the appellee eould have no cause of action: Lance v. ,Griner, 53 Pa. 204.

      John H. Hall, with him W. H. Loyd, for appellee.
    — The bailment in this case was what is known as an accessorial bailment, for the mutual advantage of the parties, and in such a case the bailee is answerable for ordinary neglect: Woodruff v. Painter, 150 Pa. 91.
    A bailee cannot stipulate for an exemption from, or a reduction of, the degree of care, which he is bound by the nature of his bailment to exercise: Beckman v. Shouse, 5 Rawle, 179; Goldey v. Pennsylvania R. R. Co., 30 Pa. 242; American Express Co. v. Sands, 55 Pa. 140; Rhymer v. Delaware, L. & W. R. R. Co., 27 Pa. Superior Ct. 345; Schieffelin v. Harvey, 6 Johns. 170; Wells v. Steam Nav. Co., 8 N. Y. 375; Del. & Chesapeake Steam Towboat Co. v. Starrs, 69 Pa. 36.
    February 28, 1908:
   Opinion by

Henderson, J.,

If the plaintiff’s case depended upon the question whether the twelfth paragraph of his lease with the defendant, under which he agreed to conform to “any and all rules and regulations now governing said apartment house and to any and all reasonable alterations thereof or additional regulations which may be deemed necessary for the protection of the building and the general comfort and welfare of the occupants thereof; and to be responsible for the observance of all such regulations by lessee’s family, servants, employees, guests or visitors,” and the provision as to trunks: “Each tenant may store two trunks in the storeroom, without charge, at the owner’s risk. Key of storeroom will be kept at office, and bellman will go to the storeroom with guests,” included among the matters of information communicated to guests on a card posted on the inside of a closet door, constituted a contract as to such provision for trunks, by which the lessor was released from liability for safe custody, the proposition would be a debatable one that the notice of permission to store trunks in the basement was not one of the “rules and regulations” contracted about in that paragraph; but it is not necessary to pass on that subject, for the case is with the plaintiff if it be conceded that a contract of limited liability existed. The plaintiff was a resident of the hotel. His patronage was advantageous to the defendant. The provision for storage of trunks was convenient for the plaintiff, and was an incident of the business carried on by the defendant and was- presumably, to some extent, an inducement to a continued patronage of the hotel. When the trunks were placed in the custody of the defendant in the room provided for that purpose, a bailment was created for mutual advantage. An unexplained loss of the property in the hands of the bailee gives rise to a presumption of negligence where such a bailment exists and the bailee is liable for his failure to exercise ordinary care: Beckman v. Shouse, 5 Rawle, 179; Farnham v. R. R. Co., 55 Pa. 53; Lancaster County Nat. Bank v. Smith, 62 Pa. 47; Woodruff v. Painter, 150 Pa. 91; Jones on Bailments, 56; Wells v. Steam Nav. Co., 8 N. Y. 375; Delaware & Chesapeake Steam Towboat Co. v. Starrs, 69 Pa. 36. That a common-law -liability on such a bailment would arise does not seem to be disputed by the appellant, but it is contended that the notice that trunks may be stored in the storeroom at the owner’s risk exempts the defendant from all liability for the loss. The right of a bailee to limit his liability by special contract'is well established, but this does not go to the extent of relieving against his own fraud or negligence. Such was the express statement of the law in Lancaster County Nat. Bank v. Smith, 62 Pa. 47: “We have more than once held that a bailee cannot stipulate against liability for his own negligence.” To the same effect is Farnham v. R. R. Co., 55 Pa. 53. In Delaware & Chesapeake Steam Towboat Co. v. Starrs, 69 Pa. 36, the contract provided that the barge was towed “at the risk of the master and owners thereof, ” and the question was, whether the contract was intended to create an exemption of the defendants from all responsibility for the negligence of their servants. The towing company was not a common carrier and, therefore, not an insurer of the safety of the boats taken in tow, and its liability was that of ordinary skill and care. The meaning of the words “at the risk of the master and owners, ” was held to be that the towing company did not assume the liability of common carriers and was not an insurer, but it was not- extended to give exemption from the negligence of the servants of the company. The same doctrine is thus expressed in 5 Cyc. of Law and Procedure, 175, on the authority of numerous cases: “As a general rule bailees may contract for any degree of exemption from liability that stops short of protection in case of fraud or of their own negligence.” This rule has frequently been applied to common carriers and is applicable with equally good reason to bailees who for hire take the property of others into their care: New Jersey Steam Nav. Co. v. Merchants’ Bank, 47 U. S. 344; Schieffelin v. Harvey, 6 Johns. Rep. 170; Rhymer v. Del., L. & W. R. R. Co., 27 Pa. Superior Ct. 345; American Express Co. v. Sands, 55 Pa. 140; Railroad Co. v. Lockwood, 84 U. S. 357.

The facts established by the verdict of the jury make out a case of negligence against the defendant. The plaintiff’s trunk was shown to be in the storeroom on July 5. When it was called for by the owner a short time thereafter it could not be found. Its disappearance was not accounted for by the manager of the hotel, nor was any evidence introduced tending to explain the loss. The notice posted in the plaintiff’s room informed him that the key of the storeroom was kept at the office and that a bellman would go to the storeroom with him. He was thereby given to understand by implication that the baggage room was under the observation and care of the management of the hotel. It was shown at the trial by witnesses for the defendant that the key to the storeroom was not kept at the office, but that two keys were in the possession of two employes who performed the duties of porter and acted in other capacities about the hotel. No attempt was made to excuse the defendant for not producing the trunk. The only defense seems to have been an effort to show that the plaintiff had not lost a trunk, and this attempt failed as shown by the verdict of the jury. On the case as presented by the evidence the learned court was not in error in refusing the defendant’s points.

The judgment is affirmed.


author: Morrison, J.,

text:
    Strahl v. Philadelphia, Appellant.

      Negligence — Sidewalk—Municipality—Contributory negligence — Question for jury.

    In an action against a city to recover damages for personal injuries by a fall in a trench across a footwalk, it appeared that the trench was in fact a washout caused by a flood which occurred about six weeks before the accident. The footwalk was not a sidewalk constructed in the ordinary manner, but an embankment of cinder and other material, unguarded by railing or fence. The defendant claimed that the locality was sufficiently protected by two red lights placed at each end of the opening. Plaintiff testified that the red lights were not in place at the time of the accident. Several witnesses for defendant contradicted him, but it was not shown that they were present at the place of the accident, and they did not testify positively as to the exact condition of things at the very time of the accident, which was about half past nine of an August evening. Held, that the question of plaintiff’s contributory negligence and defendant’s negligence was for the jury, and that a verdict and judgment for plaintiff should be sustained.
    February 28, 1908:
    Argued Oct. 18, 1907.
    Appeal, No. 88, Oct. T., 1908, by defendant, from judgment of C. P, No. 1, Phila. Co., Sept. T., 1906, No. 405, on verdict for plaintiff in case of Charles Strahl v. Philadelphia.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Magill, J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in refusing binding instructions for defendant.

      James Alcorn, assistant city solicitor, with him Harry T. Kingston and J. Howard Gendell, city solicitor, for appellant,
    cited: Boehm v. Bethlehem Borough, 4 Pa. Superior Ct. 385; Schwarz v. R. R. Co., 218 Pa. 187; Monongahela City v. Fischer, 111 Pa. 9; Siegler v. Mellinger, 203 Pa. 256; Knox v. Ry. Co., 202 Pa. 504; Hodder v. Transit Co., 217 Pa. 110; Clark v. Union Traction Co.,. 210 Pa. 636; Holden v. Penna. R. R. Co., 169 Pa. 1.

      Robert W. Archbald, Jr., with him Franz Ehrlich, Jr., for appellee,
    cited: Esher v. Railroad & Mining Co., 28 Pa. Superior Ct. 387; Schimmack v. Ry. Co., 33 Pa. Superior Ct. 653; Bloomsburg Steam Co. v. Gardner, 126 Pa. 80; Beck v. Hood, 185 Pa. 32; Com. v. Karamarkovic, 218 Pa. 405; Kennedy v. Williamsport, 11 Pa. Superior Ct. 91; Wall v. Pittsburg, 205 Pa. 48; Tucker v. American Car & Foundry Co., 218 Pa. 323.
   Opinion by

Morrison, J.,

This is an ordinary trespass case based on the alleged negligence of the defendant in allowing a hole or trench, about twelve feet deep, to extend into the embankment, used and designed as a footwalk on one of the public streets of the city. The trench extended about six feet into the embankment, leaving an unbroken walk of about four feet from the edge of the traveled highway. The embankment was elevated about fourteen feet above the meadow land to the east. The washout or trench was caused by a flood on July 4, 1906. The plaintiff fell into it on the evening of August 19,1906, at 9:30 o’clock p. m., breaking his arm and sustaining other injuries. That the place was, as described by the witnesses, dangerous, and that it ought to have been filled up or guarded by a railing or fence would seem such a self-evident proposition that no one ought to be surprised that the jury found the city guilty of negligence in allowing it to continue more than a month. At the place of the accident there was no sidewalk constructed in the ordinary manner, but an embankment of cinder and other material.

It is not denied that it was designed and used, with the knowledge of the city authorities, as a walk for pedestrians. The officials of the defendant must have regarded the washout as dangerous because the learned and experienced counsel for the city proved, at the trial, that red lights were kept at each end of the opening. Their contention is that the city is relieved of liability by reason of the red fights being there at the time of the accident. In our opinion, the only question presenting serious difficulty was, at the trial, the alleged contributory negligence of the plaintiff. Upon the main questions we concur with the court below, that the dangerous character of the place, the negligence of the defendant, and whether the red fights made a proper and sufficient safeguard, and were in place and burning at the time of the accident, were questions for the jury. So was the alleged negligence of the plaintiff.

The learned counsel contend that the only evidence that the red fights were not in place at the time of the accident is that of the plaintiff; that he is contradicted by several witnesses; that the charge is inadequate because the court did not call the attention of the jury to the interest of the plaintiff in the result, nor to the very strong testimony in contradiction by different witnesses.

However, the charge did call the attention of the jury to the fact that the plaintiff was the only witness testifying to the absence of the red lights, and also to the testimony of the witnesses contradicting him. At the close of the charge, the learned judge invited the learned counsel to call his attention to anything he had omitted, and it did not then seem to occur to the able and experienced counsel that the charge was inadequate on this and several other grounds now urged. The court was not requested, either by points or orally, to give such special instruction to the jury. All of the defendant’s points were affirmed, except the one asking a binding instruction in favor of the defendant. We do not think there is much merit in the only special exception taken at the close of the charge.

The learned counsel rely on Knox v. Ry. Co., 202 Pa. 504, in support of their contention as to the insufficiency of the plaintiff’s testimony in regard to the red lights. That case is distinguishable from the one at bar. The Knox case went on the theory, mainly, that the witness was not competent to estimate the speed of the train; that his testimony as to such speed was a mere guess:. Smith v. Holmesburg, etc., Electric Ry. Co., 187 Pa. 451. Clark v. Union Traction Co., 210 Pa. 636, is also cited, but in that case the plaintiff was directly contradicted by three disinterested witnesses and also by the conductor and motorman of the car who were all present at the time and place of the accident. We think that fact distinguishes that case from the present one,

The witnesses called to contradict the plaintiff in the present case were not present at the place of the accident, and they do not testify positively as to the exact condition of things at the very time of the accident. What we have said above applies with equal force to Hodder v. Transit Co., 217 Pa. 110. The same may be said as to Holden v. Penna. R. R. Co., 169 Pa. 1.

In view of the care with which the learned court submitted the present case to the jury, and the invitation to the learned counsel to suggest anything which they desired to have called to the attention of the jury, we are not convinced that there ..was serious error in 'the charge as to anything raised by the assignments of error. It is apparent that the court below made a painstaking effort to fairly and adequately present the case to the jury, and if, in the hurry of the trial, anything was omitted from the charge, the learned and experienced counsel ought to have responded to the invitation of the court by calling attention to the omissions. Upon the whole record we think the charge adequate.

Having failed to convince the jury that the plaintiff was guilty of contributory negligence, and lost their case, the learned counsel'subjected the charge to a very critical examination for the purpose of discovering errors on which to base their assignments. These assignments are very technical and they complain of several things which, considered altogether, do not convince us of reversible error.

The assignments of error are all dismissed and the judgment is affirmed.


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    Ingram v. Philadelphia, Appellant.

      Negligence — Municipalities—Sidewalks—Accumulation of ice and snow — Contributory negligence.

    A municipality is not bound to remove smooth, slippery ice from a sidewalk where there are no hills or ridges which amount to an obstruction. The only exception to this rule is where the slippery condition is caused by the independent negligence of the municipality.
    A person is not entitled to recover from a city, damages for personal injuries caused by a fall on a slippery sidewalk, where it appears from his own testimony that the irregularity of the surface of the ice, where he fell, was not more than one-sixteenth of an inch.
    Where a person familiar with the slippery condition of a sidewalk, goes upon it and falls, he cannot recover for injuries sustained, if it appears that he knew that the walk on the other side of the street was in good condition, and that it was not necessary for him to go upon the slippery sidewalk.
    Argued Oct. 23, 1907.
    Appeal, No. 138,' Oct. T., 1907, by defendant, from order of C. P. No. 2, Phila. Co., Dec. T., 1906, No. 4,745, overruling exceptions to report of referee in case of James E. Ingram v. City of Philadelphia.
    Before Rice, P. J., Henderson, Morrison, Orlad y, Head and Beaver, JJ.
    February 28, 1908:
    Reversed.
    Exceptions to report of David McCoach, Esq., referee.
    The facts are stated in the opinion of the Superior Court.
    The referee found in favor of the plaintiff for $500. Defendant appealed. '

      Error assigned was in dismissing exceptions to report of referee.

      Joseph W. Catharine, assistant city solicitor, with him Charles W. Boger, assistant city solicitor, and J. Howard Gen-dell, city solicitor, for appellant.
    — Plaintiff failed to show the existence of a defect in the highway, for which the city is bound to respond in damages: Borough of Mauch Chunk v. Kline, 100 Pa. 119; Dehnhardt v. Philadelphia, 15 W. N. C. 214; Blaine v. Philadelphia, 33 Pa. Superior Ct. 177; Garland v. Wilkes-Barre, 212 Pa. 151; Wyman v. Philadelphia, 175 Pa. 117.
    Having voluntarily entered upon the pavement in daylight with knowledge of its icy condition plaintiff was guilty of contributory negligence: Dehnhardt v. Philadelphia, 15 W. N. C. 214; Fleming v. Lock Haven, 15 W. N. C. 216; Haven v. Bridge Co., 31 W. N. C. 191; Winner v. Oakland Township, 158 Pa. 405; Conrad v. Upper Augusta Township, 200 Pa. 337; Bechtel v. Mahanoy City Borough, 30 Pa. Superior Ct. 135; Evans v. Philadelphia, 205 Pa. 193; Brown v. White, 206 Pa. 106; Steck v. Allegheny, 213 Pa. 573; Dwyer v. Port Allegheny Boro., 216 Pa. 22; Smith v. New Castle, 178 Pa. 298; Brown v. White, 206 Pa. 106.

      Welch & Bluett, for appellee.
   Opinion by

Morrison, J.,

This is an action of trespass based on the alleged negligence of defendant. The parties waived a jury trial under the Act of May 14, 1874, P. L. 166, and the supplement thereto of May 4, 1889, P. L. 80, and referred the case to a referee, learned in the law, who heard the plaintiff’s testimony (the defendant offering no testimony), and found in favor of the plaintiff, assessing his damages at $500. The learned court below dismissed exceptions to this report and entered judgment thereon, without filing M opinion and without giving any reasons whatever. We must, therefore, assume that the court had no better reasons in support of the judgment than those advanced by the referee. As the defendant offered no evidence, we are relieved from the operation of the' rule that the person who sees the witnesses and hears them testify, is in a better position to determine their credibility and the weight of their evidence, than the appellate court. We will test this case by assuming that the plaintiff and his witnesses testified truthfully.

The plaintiff undertook to establish by his own testimony, and that of several other witnesses, that the city was negligent in permitting a sidewalk on one of the public streets to become so obstructed and slippery with snow and ice that, while using due care, he slipped and fell, receiving serious bruises and injuries which caused him much pain and prevented him from attending to his usual work for a long space of time. He was a carpenter and joiner and worked regularly at his trade. We have carefully read and considered all of the evidence, the report of the referee, and his opinion, and, in our judgment, the evidence entirely fails to sustain his findings of fact and conclusions of law. The evidence not only fails to establish the negligence of the defendant, but it fully warrants a finding that the plaintiff was guilty of contributory negligence. The evidence shows that the sidewalk, where the plaintiff fell, was covered with ice of from one-half to one inch in thickness, and that it was smooth and slippery and slightly wavy or corrugated, as the witnesses express it. That the uneven places were not more than one-half to one inch high, on any view of the testimony. But the plaintiff himself testified that the irregularity of the surface of the ice, where he fell, was not more than one-sixteenth of an inch. The plaintiff being a mechanic, it is fair to presume that he gave the testimony intelligently, and if there had been little hills and ridges of ice, he, or some of his witnesses, would have seen and described them.

The settled law of this state is that a municipality is not bound to remove smooth, slippery ice from a sidewalk where there are no hills or ridges which amount to an obstruction. The only exception to this rule is where the slippery condition is caused by the independent negligence of the municipality as in Manross v. Oil City, 178 Pa. 276, and Decker v. Scranton City, 151 Pa. 241. Upon this point see Blaine v. Philadelphia, 33 Pa. Superior Ct. 177, where we attempted to indicate our understanding of those cases. Their doctrine has no application to the case at bar, because there is no evidence in it that the slippery condition of the street was caused by the independent negligence of the city authorities.

The learned referee convinced himself, and the court below, that the presence of hills and ridges is regarded rather as good evidence of such an accumulation of ice and snow as to render the city liable, than as a necessary element of liability.” In this conclusion he is in flat conflict with the decisions of the Supreme Court and of this court. Starting with the fact that the waves or uneven places on the sidewalk were about one-sixteenth of an inch high, and at most, they could not have exceeded an inch in height, the referee undertook to construe the decisions so as to convict the defendant of negligence in not removing this practically smooth and slippery ice from the sidewalk. In this he attempted to do an impossible thing.

In Borough of Mauch Chunk v. Kline, 100 Pa. 119, Chief Justice Sharswood, delivering the opinion of the court, said, quoting from McLaughlin v. City of Corry, 77 Pa. 109: “A municipality cannot prevent the general slipperiness of its streets caused by the snow and ice during the winter, but it can prevent such an accumulation thereof in the shape of ridges and hills, as render their passage dangerous.” In that case the evidence was that the snow and ice was rounding and it was from three to six inches thick; the center of the crossing was higher by an inch or two than it was on each side and yet this was held not to be such hills and ridges as would convict the defendant of negligence.

Dehnhardt v. City of Philadelphia, 15 W. N. C. 214, is in full accord with the doctrine of the above case. In that case the pavement was not as clear of ice as some of the other pavements which had received more attention, but it was free from ridges and hills, except such as were made by the footsteps of persons passing over it, and which in depth were about the thickness of a hand laid flat. The Supreme Court said: “Slippery walks in the winter are necessarily incident to this climate. No method known to science can fully prevent their existence nor guard against occasional injuries resulting therefrom. It would be a harsh and unjust rule to hold the city liable in damages under the facts in this case.”

We might refer to many other cases along the same lines, but it is unnecessary. However, the late case of Garland v. City of Wilkes-Barre, 212 Pa. 151, is in point and it shows conclusively that the Supreme Court has not modified the rule as to hills and ridges on slippery sidewalks. Mr. Justice Elkin said: “The circumstancés of this case are similar to those presented in Borough of Mauch Chunk v. Kline, 100 Pa. 119, wherein it was held that the plaintiff must satisfy the jury that there was an obstacle other than the mere slippery condition and smoothness of the surface that made the crossing where he fell dangerous.” And he cited McLaughlin v. City of Corry, 77 Pa. 109.

In the Garland case there was considerable roughness and unevenness of the ice, but it did not amount to hills and ridges; or, in other words, not to a visible obstruction, and, therefore, the plaintiff was not allowed to recover. The learned referee seems to have been misled by Wyman v. City of Philadelphia, 175 Pa. 117, which he understands to plainly decide that the size of the hills and ridges was immaterial. In that case the Supreme Court said: “The jury was carefully instructed that the city was not liable for a mere ordinary slippery condition of the sidewalks, resulting from the sudden formation of ice, but that if the snow and ice existed in ridges and little hills and the pavement was permitted to remain in that condition for a length of time sufficient to charge the city with knowledge of the situation, and the obstruction was not removed, there might be liability for an accident happening in those circumstances. There was plenty of testimony to establish the plaintiff’s contentions in this respect, and it was therefore the duty of the court below to submit the case to the jury, which was done in a very careful and cautious manner.”

The learned referee seems to think that the expression “little hills and ridges” renders their size immaterial. But turn to the facts in that case and we find that the entire pavement was covered with ice and snow which lay in ridges and hills four or five inches high, and that this condition of affairs existed for at least from ten to fourteen days prior to the accident. Now compare that with the plaintiff’s testimony in the case at bar, where he says that the waves or unevenness in the ice were about one-sixteenth of an inch high, and the error of the referee’s conclusion becomes strikingly apparent.

Having reached the conclusion that the plaintiff’s evidence entirely failed to establish negligence on the part of the city, the judgment must be reversed and, therefore, it is not necessary to spend much time over the question of contributory negligence on the part of the plaintiff. But his own testimony shows with great clearness that the street where he fell was only smooth and slippery and it had been in that condition for a long time to his personal knowledge, he having seen it almost daily; that the walk on the other side of the street was in good condition and it does not appear that it was at all necessary for him to go upon the walk in question. Moreover, he did not approach the walk on a regular crossing, nor in the ordinary manner, but he crossed the street diagonally and voluntarily, without necessity, and stepped upon this well-known slippery walk. In our opinion, this establishes his contributory negligence. If this is not a case where a man, with full knowledge of the slippery character of the street and of another safe and convenient route to his destination, voluntarily exposed himself to the apparent danger, then it would be difficult to find such a case.

It is unnecessary to burden this opinion with the numerous authorities on the question of contributory negligence. The late case of Dwyer v. Port Allegheny Borough, 216 Pa. 22, convicts a plaintiff of contributory negligence on much less evidence than the plaintiff furnished against himself in the case at bar. See also Smith v. City of Newcastle, 178 Pa. 298; Bechtel v. Mahanoy City Borough, 30 Pa. Superior Ct. 135, and cases cited on page 139.

In finding that the plaintiff was not negligent the learned referee seems to have overlooked the plaintiff’s positive testimony that he knew the pavement had been dangerous for a long time and that he had warned others of that fact; and also, his testimony that the other walks were in better condition. The learned court erred in dismissing the exceptions and entering judgment in favor of the plaintiff.

Judgment reversed and judgment here granted in favor of defendant.


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    Tolan, Appellant, v. Philadelphia.

      Negligence — Municipalities—Hole in pavement of street — Contributory negligence.

    Where a woman in attempting to cross a public street of a city diagonally, and not at a regular crossing, steps into a hole in the pavement and is injured,' she cannot recover damages from the city, if it appears from her own testimony that she walked into the hole while looking ahead, and not looking at the pavement, and that, although it was twilight, she could have seen the hole if she had looked down.
    Argued Oct. 23, 1907.
    Appeal, No. 234, Oct. T., 1906, by plaintiff, from judgment of C. P. No. 1, Phila. Co., June T., 1905, No. 2,020, for defendant non obstante veredicto in case of Katie E. Tolan v. Philadelphia.
    Before Rice, P. J., Henderson, Morrison, Orlady and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Brégy, J.
    The facts are stated in the opinion of the Superior Court.

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

      J. Morris Yeakle, for appellant.

      February 28, 1908:

      Harry T. Kingston, assistant city solicitor, with him J. Howard Gendell, city solicitor, for appellee.
   Opinion by

Morrison, J.,

This is an action to recover damages for an injury received by the plaintiff on account of the alleged negligence of the defendant. The plaintiff alleged that on the evening of April 8, 1905, at 7:30 o’clock p. m., she attempted to cross one of the public streets of the city diagonally and not at a regular crossing, and that she stepped into a hole in the pavement which she described as about six inches deep and about two feet or more wide. There is no doubt about the evidence being sufficient to carry the question of the negligence of the defendant to the jury. The contest is in regard to the contributory negligence of the plaintiff. The learned court submitted the case to the jury, on the plaintiff’s evidence, the defendant offering none. The jury returned a verdict in favor of the plaintiff for $1,000. The learned counsel for the defendant having moved, at the close of the trial, for binding instructions in favor .of the defendant, again raised the question by moving for judgment non obstante veredicto, and, upon argument and consideration, the learned court made the rule absolute and entered judgment in favor of defendant non obstante veredicto.

The plaintiff testified that at the time óf the accident, it was twilight; that she could see people across the street. It is quite clear, from all the testimony, that at the time of the accident, it was neither very light nor dark. The plaintiff said: “Q. How were you looking just as you were stepping from the sidewalk into the street? A. I was looking ahead. I always look ahead. I didn’t look down; I generally look ahead. Q. You didn’t look down? A. No, sir. Q. Did you know that you had gotten to the curb? You knew that you were going to step into the street to make the short cut? A. Yes, sir. Q. You stepped into the street? A. Yes, sir. Q. Then what happened? A. I walked about two or three steps and then I fell into the hole. Q. Were you still looking ahead? A. I was still looking ahead until I went in, and then it threw me down. Q. Can you recall how you were looking before you did step in? A. Just looking ahead the same as anybody else. Q. Did you or did you not look down at the street? A. I didn’t look down at the street.” Again the plaintiff testified in answer to an interrogation by her counsel: “ A. I was looking ahead like this (indicating). I wasn’t looking down. If I had been looking down this way (indicating), I could have seen the hole and would not have stepped into it, but I was looking ahead the same as anybody; walking along looking ahead of me. Q. You were not looking down in front of you? A. No, sir.”

We have, then, the plain case of a woman crossing a public street, at twilight, walking into a depression in the pavement and falling, while looldng ahead and not looking at the pavement. She puts the matter beyond all question of doubt by saying and repeating that she did not look down at the pavement. She also disposes of the question of how dark it was by distinctly saying that she could see people across the street and that if she had looked down, she could have seen the hole and would not have stepped into it. This is the substance of her own testimony and there is nothing in the case to contradict or qualify it.

In our opinion, this convicts her of contributory negligence and warranted the court below in entering judgment against her non obstante veredicto.

In Robb v. Connellsville Borough, 137 Pa. 42, the Supreme Court, by Mr. Justice Mitchell, said: “That the reasonable care which the law exacts of all persons in whatever they do involving risk of injury, requires travelers, when on the foot-ways of public streets, to look where they are going, is a proposition so plain, that it has not often called for formal adjudication.” In that case the plaintiff testified: “I just stumped my toe, and fell. I stumped my toe on something like a board step I thought. ... I was just walking along and went to step, and didn’t step high enough, and away I went. I just stepped as I was stepping along, as I always did as I was walking along. ... I could have seen it; it was light enough forme to have seen it, if I had known it was there, but I didn’t know it was there. I didn’t pay any attention to the pavement. . . . Wasn’t looking or thinking of anything; only walking along.”

Upon this testimony the Supreme Court held that she could not recover on account of her own contributory negligence. If that case and the one at bar, in principle, materially differ, we are unable to see the distinction. The plaintiff knew she was crossing a public street, not at a usual crossing, and she was bound to use due care in the circumstances. She says she did not look at the pavement, and this was negligence: Decker v. East Washington Borough, 21 Pa. Superior Ct. 211; Easton v. Philadelphia, 26 Pa. Superior Ct. 517. The latter was a daylight case, but it applies with force to the case at bar, because the plaintiff in it says if she had looked, she could have seen the hole and would not have stepped into it.

In Sickels v. Philadelphia, 209 Pa. 113, the Supreme Court, in an opinion by Mr. Justice Brown, said: “In walking eastward she stepped on this slippery ridge, fell and was injured. On the ground of her contributory negligence the trial judge directed the entry of a nonsuit, saying: 'This accident happened in broad daylight; there was nothing at all to interfere with the •plaintiff’s seeing precisely where she was going. Every pedestrian using the streets of Philadelphia is obliged to use his eyes for his own protection. The plaintiff did not do that and is •therefore nonsuited.’ ’ ’

The Supreme Court affirmed that judgment and the case does ■not differ materially from the present one, because the plaintiff says she could have seen the hole if she had looked.

In Dougherty v. Philadelphia, 210 Pa. 591, cited by both sides in the present controversy, the case was held to be for the jury, because: “The accident happened at 5:45 p. m. on November 25, and the testimony on the part of the plaintiff was that the gas was not lighted and it was very dark. She was a girl, a little under fourteen years of age, and was assisting her grandmother, a woman of sixty, who used a cane in walking.” In these circumstances she fell into an inlet in a street, and she was allowed to recover. But the Supreme Court said: “If there had been a clear admission by plaintiff that she was not looking where she was going, or if the circumstances had shown beyond question that such was the fact, it would have been the duty of the court to hold that she was negligent as matter of law, and to enter a nonsuit or direct a verdict for defendant. Nothing is better settled than that those who use the public highways, especially the streets of the city, are bound to look where they are going and to make constant and diligent use of their eyes.”

McIlhenney v. Philadelphia, 214 Pa. 44, is another case closely in point where the court below and the Supreme Court refused to allow a woman to recover damages for an injury received on a public street caused by tripping over the curbstone which projected two or three inches above the pavement. She was non-suited because she was inattentive and heedless and did not know where she was looking at the time of the accident.

The industrious counsel for the appellant has cited nine cases which he contends convicts the court below of error. We have examined those cases and each one of them, on its facts, differs from the case at bar, and, taken singly and altogether, they do not convince us that the court erred in entering judgment against the plaintiff in the case at bar.

As cited, his first case is Dougherty v. Philadelphia, 210 Pa. 591, which we have already noticed. The next is Bruch v. Philadelphia, 181 Pa. 588, which was a case of falling into a hole in a defective sidewalk, at night, and it seems that there was ah electric light under an awning which so dazzled the eyes of the traveler that he could not see clearly in front of him, and especially could not see the pavement.

The next case is Gillard v. City of Chester, 212 Pa. 338: there the plaintiff fell on the curb of a sidewalk into the cartway of the street on a very dark night, and the street was not lighted at that point.

Miller v. Lewiston Electric Light, Heat and Power Co., 212 Pa. 593, is a case that was allowed to go to a jury, but its facts are somewhat complicated and the plaintiff’s alleged contributory negligence was not at all clear.

Rowland v. Philadelphia, 202 Pa. 50, is a case in which a woman was going over a public crossing in the nighttime and fell over a stake protruding six inches above the ground. The stake had been left there by the city surveyor to show the line of a sewer.

Johnson v. Philadelphia, 208 Pa. 182, was held to be for the jury where a woman fell into a hole in the sidewalk on a dark night, and plaintiff testified that she was entirely ignorant of the condition of the sidewalk.

Kirchner v. Smith, 207 Pa. 431, was allowed to go to the jury where the plaintiff fell into a hole in a grating in a sidewalk, near the front steps of a house, on a dark, rainy night.

Nudd v. Lansdowne Borough, 190 Pa. 89, is a case where a woman fell into a hole in a highway on a dark night and the electric light, of a defective character, near the hole, was not burning at the time of the accident.

Henry v. Williamsport, 197 Pa. 465, is where a woman fell on a defective sidewalk in the nighttime.

McHugh v. Kerr, 208 Pa. 225, is a case where the plaintiff fell into a cellarway under circumstances that required that the defendant’s negligence and plaintiff’s contributory negligence be passed on by a jury.

Glading v. Philadelphia, 202 Pa. 324, is where a woman fell into a hole in a sidewalk which had been there for about six months and at the time of the accident was filled with dust and sweepings, and the plaintiff knew nothing of the hole and she was walking as persons ordinarily walk in a crowded street. The fact that the hole was filled with dust and sweepings would carry the question of whether she ought to have seen it or not to the jury.

Iseminger v. York Haven Water and Power Co., 206 Pa. 591, was held to be a case for the jury, but the facts differ materially from those of the case in hand. But that case holds: “We are not disposed to relax the rule, repeatedly stated, that persons walking on city streets are bound to use their eyes and watch where they are going, and that failure to do this will defeat a recovery for injuries that could have been avoided by the exercise of this reasonable care.”

Not being convinced that the court erred, we dismiss the assignment of error and affirm the judgment.