(218 Pa. 359)

PATERSON v. PHILADELPHIA RAPID TRANSIT CO.

(Supreme Court of Pennsylvania. May 20, 1907.)

CARRIERS-INJURY TO PASSENGER-PRESUMPTION OF NEGLIGENCE.

Where a man in a crowded car gives a woman his place, and stands on the front platform and is injured, he forfeits the advantage of the presumption that the accident resulted from the negligence of the company.

Appeal from Court of Common Pleas, Philadelphia County.

Action by Dugald S. Paterson against the Philadelphia Rapid Transit Company. Judgment for defendant. Plaintiff appeals. Affirmed.

At the trial Audenreid, J., in the court below, in giving binding instructions for defendant, described the accident as follows:

"The plaintiff was a passenger in one of the defendant's cars. He was riding inside of it. It is true that he had no seat, but he was standing inside of the body of the car in a position of safety. When the car reached a certain crossing, two ladies, and, as I recall the testimony, a gentleman, signified their intention to board it. The body of the car was already filled with passengers. The plaintiff knew that there was no more room inside of it. Nevertheless he alighted from the car to make way for the ladies. As might have been expected, one of them took the place he had vacated. There was no other place for her to take inside the car. When the plaintiff stepped on the car again, he was obliged to take a position on the platform or step. Here he was standing when the car passed a wagon which struck and injured him. He would not have been hurt if he had remained inside the car."

Before MITCHELL, C. J.. and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.

Louis Brégy and H. Homer Dalby, for appellant. Thomas Leaming and Charles Biddle, for appellee.

STEWART, J. When one chooses to ride upon the platform of a car rather than wait for a car in which he can be accommodated, if not with a seat, with standing room at least inside, and is injured in consequence, the law does not concern itself to inquire as to the considerations which influenced his choice. Whether serious or trivial, the result is the same. The platform is a known place of danger, and one voluntarily there assumes the risk. For the exigency which determines him to take the risk rather than delay for another car, the company is not responsible. In this case the plaintiff, with a courtesy altogether commendable, surrendered his place within the car to a lady who, but for his action, would have been excluded. Having once yielded his place in the car, he was put to his choice whether to ride on the platform or take a later car, just as the

person he accommodated would have been obliged to do had he not surrendered his advantage to her. The legal consequence of his choice was that he forfeited the advantage of the presumption, which the law raises in favor of one injured while riding in the car, that the accident resulted from the negligence of the company. His riding on the platform would not excuse negligence on the part of the company in exposing him to known and avoidable danger; but it put upon him the burden of showing that his injuries resulted from negligence of this degree. There was nothing in the evidence to support any such contention. From all that appears, it was an accident which even more than the care required under the circumstances to exculpate the defendant would not have avoided.

Judgment affirmed.

(218 Pa. 323)

TUCKER v. AMERICAN CAR & FOUNDRY CO.

(Supreme Court of Pennsylvania. May 20, 1907.)

1. MASTER AND SERVANT-INJURY TO SERVANT INCOMPETENT FELLOW SERVANTS.

Where an employer neglects to use ordinary care in the selection of his employés, or, after knowledge of their incompetency, retains them, he is answerable to a fellow servant for his negligence.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 334, 342.] 2. APPEAL-HARMLESS ERROR.

Where no points were submitted to the court asking for specific instruction and no injustice was done, omission to give instruction that might well have been given is not reversible error.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 4219.]

Appeal from Court of Common Pleas, Collumbia County.

Action by Mary A. Tucker against the American Car & Foundry Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Before MITCHELL, C. J., and BROWN, MESTREZAT, POTTER, and ELKIN, JJ.

Fred Ikeler and John Hampton Barnes (James Scarlet, on the brief), for appellant. O. C. Bowers (Grant Herring and J. Gilmore Fletcher, on the brief), for appellee.

ELKIN, J. In the statement of claim the appellant company is charged with negligence of a fourfold nature; that is to say, in failing to furnish a safe place to work, providing an unsafe and insecure section of hose for an air hoist, in employing an incompetent and unskilled crane operator, and in adopting an unsafe and unusual method of assembling parts for the purpose of constructing a car.

In determining the decisive question raised by this appeal, it is only necessary to consider the allegation that appellant was neg

ligent in employing an incompetent and unskilled crane operator. The appellant concedes that the injury was occasioned through the negligence of the crane operator; but insists that it is not liable for damages in this case, because the crane operator was a fellow servant of Tucker, the deceased husband of appellee, and that under the familiar rule the master is not liable in damages caused by the negligence of a fellow servant. The evidence clearly established the fact that the crane operator was incompetent and grossly negligent, and that Tucker knew of his incompetency. It is also in evidence that Henry, who was general foreman of erection and construction at the works where the accident occurred, knew that the crane operator was incompetent, for it is so stated in his testimony. He knew this fact, not only from his own observation as foreman, but from frequent complaints made to him by other employés. It is also in evidence that a few days prior to the accident Tucker complained to the general foreman about the incompetency of the crane operator, saying that "he did not consider him a safe man to work," whereupon the foreman promised him (Tucker) that he (the foreman) "would try and get a new craneman." Acting upon these complaints, the foreman testified, "I bad him [the crane operator] taken down out of his crane," and put another man in his place. He reported these facts to the boss machinist who had charge of the crane at night. The boss machinist then sent the incompetent crane operator to report to Stevenson, the master mechanic, who was the representative of the company in general charge of the works located at Berwick, and who, after full knowledge of all the facts, put the incompetent operator back in his crane, although he had been informed that Henry, the general foreman, had taken him out the night before. The accident happened the night on which Stevenson sent the crane operator back to work. It is upon this state of facts that the appellant relies to assert the rule that, if a servant continues to work with a knowledge of defective conditions, either of men or machinery, he is guilty of contributory negligence by remaining at work after he has knowledge of the incompetency of the fellow servant or of the defective machinery. As a general rule, this is a correct statement of the law, but in our opinion it has no application to the facts of the present case. Tucker did what any prudent and careful employé would be required to do when he reported the incompetency of the crane operator to the general foreman, and when he received the promise that an effort would be made to secure a new craneman, and with knowledge of the fact that the incompetent craneman had been removed, he was justified in returning to work the next night. The evidence does not show that he had any knowledge of the fact that Steven

son had sent back the incompetent crane operator to take charge of the crane that night, nor does it show that by observation he either did know the fact or should have known it, because the place where the crane operator sits is so high above the heads of the men below that in the smoke, dust, and dim light of the shop it is very difficult to discern who the crane operator is. But even if, after his return to work that night, he learned that the incompetent crane operator had been again placed in charge, the court could not say as a matter of law that it was his duty to immediately throw down his tools and quit work, for, at most, it was for the jury to say whether he had exercised proper care under the circumstances. We see nothing in this case to take it out of the rule that an employer is bound to use ordinary care in the selection of his employés, and if he neglects to do so, or if he retains them after he becomes aware of their unfitness or incompetency, he is answerable to his servant for his negligence in this respect. Huntingdon & Broad Top Railroad Company v. Decker, 84 Pa. 419; Hughes v. B. & O. Railroad Company, 164 Pa. 178, 30 Atl. 383, 44 Am. St. Rep. 597; Wust v. Erie City Iron Works, 149 Pa. 263, 24 Atl. 291.

The appellant further contends that the charge of the court was inadequate, because it did not define what under the facts in the case constituted negligence of the defendant, or contributory negligence of the plaintiff. In this connection it should be observed that no request was made for specific instructions in the court below, nor was the attention of the trial judge called to any of the matters now assigned for error in this respect. Indeed, this question seems to have been an afterthought on the part of the learned counsel for appellant. As a general rule, it may be said that mere omission to say what might have been properly said cannot be treated as reversible error when no points were submitted to the court below asking for specific instructions. It is true in some of our cases the judgment of the court below was reversed on the ground of inadequacy in the charge, but in all of these cases it appeared that an injustice had been done the parties, or the charge of the court had been clearly erroneous. After a careful examination of the charge in the present case, we cannot say that an injustice was done the appellant, or that there was any clear error in the instructions to the jury. Judgment affirmed.

(218 Pa. 319)

HILLSIDE COAL & IRON CO. v. ZEIGLER. (Supreme Court of Pennsylvania. May 20, 1907.)

ADVERSE POSSESSION-EVIDENCE-SUFFICIENCY.

Where the defense in ejectment is adverse possession, and the evidence justifies the conclusion that the possession was not originally

adverse nor exclusive, and that it was not continuous for the period of 21 years, it was proper to direct a verdict for plaintiff.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 1, Adverse Possession, §§ 65–76.]

Appeal from Court of Common Pleas, Luzerne County.

Action by the Hillside Coal & Iron Company against Henry Zeigler. Judgment for plaintiff. Defendant appeals. Affirmed.

Argued before MITCHELL, C. J., and BROWN, MESTREZAT, POTTER, and ELKIN, JJ.

John T. Lenahan, James H. Shea, John F. Shea, and Edward A. Lynch, for appellant. J. B. Woodward, Willard, Warren & Knapp, and James L. Lenahan, for appellee.

PER CURIAM. The learned judge below in directing a verdict said "the undisputed documentary evidence in the case, the records, deeds, or contracts showing admissions by Henry Zeigler of the title of the Hillside Coal & Iron Company to the land in dispute (or of the Hillside Coal & Iron Company's predecessors) has been so clear as to, in our opinion, justify the court in regarding it as conclusive of these points, namely, that the possession of Henry Zeigler was not originally adverse to Charles Schlager, that it was not exclusive of Charles Schlager and those claiming under him, and that it was not continuous for the period of 21 years, or any period of 21 years previous to the beginning of this proceeding, and hence title by adverse possession has not been shown. We therefore, in pursuance of the duty which the law places upon the court, direct you to render a verdict in favor of the plaintiff for the land in controversy under the issue."

The evidence fully justifies this summary of it and the binding direction to the jury. Judgment affirmed.

(218 Pa. 807)

EVERHART v. LEHIGH VALLEY COAL CO.

(Supreme Court of Pennsylvania. May 20, 1907.)

MINES AND MINERALS-MINING LEASE-ROY.

ALTIES.

The coal mined under a certain lease was prepared for market by breakers on adjoining land. One of such breakers was destroyed by fire, but the mining of the coal was not interrupted because prepared in the remaining breakers. Held, that the lessee was not entitled to take advantage of a condition in the lease providing that royalty should not be collected while the production or shipping of coal was prevented by the destruction of a breaker.

Appeal from Court of Common Pleas, Luzerne County.

Action by George W. Everhart against the Lehigh Valley Coal Company. Judgment for plaintiff, and defendant appeals. Affirmed.

On a motion for a new trial, Halsey, J. of the court below, filed an opinion, which, after quoting Lehigh Valley Coal Co. v. Everhart, 206 Pa. 118, 55 Atl. 864, concluded as follows:

"It is further contended that, under the covenants in the lease referred to, the lessees are relieved from the payment of minimum royalties covering a stipulated period of time, because of a fire which destroyed one of the breakers through which the coal mined was prepared for market.

"The eighth paragraph of the lease between the parties provides that, if the breaker or necessary machinery or mining improvements be destroyed or seriously injured by fire, then, and in either such cases, the said lessee shall be excused from the payment of any rental except for coal actually mined during the time when the production or shipping of coal is so actually prevented, provided always, however, as to the cases of fires, that the said lessee shall use all due and proper diligence to rebuild the said breaker, machinery, or other mining improvements.

"There never was a breaker erected upon the premises described in the lease. The coal from the leased premises was prepared for market through breakers upon adjoining properties. The breaker burned, the Babylon breaker, was upon an adjoining property, and was one of the breakers through which the coal was prepared for market. The Babylon breaker was never rebuilt. Coal was never actually prevented from being mined and prepared from the property as a consequence of the burning of the Babylon breaker. Coal was actually mined and shipped after burning of the Babylon breaker the same as it had been prior to the burning of the said breaker, through the Phoenix and Seneca breakers. This is clear from the testimony.

"The fire, therefore, did not actually prevent the mining of coal from the leased premises. Therefore, in our judgment the fire did not bring in operation the clause of the lease quoted which would relieve the lessee from the payment of the royalties stipulated.

(218 Pa. 302) MOORE v. CITY OF WILKES-BARRE. (Supreme Court of Pennsylvania. May 20, 1907.)

MUNICIPAL CORPORATIONS-DEFECTIVE SIDEWALK-INJURY TO PEDESTRIAN.

In an action for injuries to a pedestrian by the defective condition of the sidewalk, evidence held sufficient to take the case to the jury.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, §§ 1745, 1757.]

Appeal from Court of Common Pleas, Luzerne County.

Action by Mary T. Moore against the city of Wilkes-Barre. Judgment for plaintiff. Defendant appeals. Affirmed.

Argued before MITCHELL, C. J., and BROWN, MESTREZAT, POTTER, and ELKIN, JJ.

James L. Lenahan and Charles F. McHugh, for appellant. John McGahren and M. H. McAniff, for appellee.

ELKIN, J. The appellee was injured just as she was alighting from a street car by stepping on a water gate located at the intersection of two streets in the city of WilkesBarre. The accident occurred in the evening, after dark when the streets were either dimly lighted, or not lighted at all. It is conceded that the water gate was the usual and customary device of the water company used as a part of its equipment in the supply of water to the residents of the city. The complaint of the appellee is that the city negligently permitted the level of the street to sink or fall below the cap of the water gate to such an extent as to make a defect in the highway. The case does not, therefore, depend upon the proper or original construction of the water gate, but upon the fact of the proper maintenance of the street around it. The pinch of the case is whether it was the duty of the learned trial judge to determine as a matter of law that the evidence did not show such a defective highway as to make the city liable in damages, or whether this question should be submitted to the jury. A different question might arise if, under the municipal ordinance, the water company had been permitted to locate the water gate at the point where the accident occurred so that the cap projected three or four inches above the surface of the street. In such a case it might become a question of fact whether the original construction or location had been so negligent as to constitute a defect in the highway, but it must not be overlooked that the construction of sewers and drains and the laying of gas and water pipes with their necessary connections are servitudes on the streets essential to the comfort and convenience of the citizens of municipalities, and, in the absence of such negligence as to constitute a defect in the highway, pedestrians will be presumed to have assumed whatever risks there may be in using the streets with the superimposed servi

tudes. None of these questions, however, arise in the present case because it is not contended that the negligence charged in any manner relates to the original construc tion of the water gates, and the city does not defend on the ground that the street at this point was in the same condition as when the water gate was originally located there. It seems clear from the evidence that the city required the water company to construct the water gate so that the cap would be flush with the street. It is also clear that the street at this point was paved with Belgian blocks which had settled or sunk so that the water gate projected above them on the side next the street railway about three inches, and that this defective condition existed for a period of two years prior to the accident. If the water gate had remained flush with the street, as the city ordinance required, the accident would not have happened, and this case would not be here. We think that the questions of negligence, constructive or actual notice, and proximate cause, all of which are raised by the appellant, were for the jury. The learned trial judge in a most careful and exhaustive charge defined the rights and duties of the parties under the law, so that nothing can be complained of in this respect. Under the evidence the question of contributory negligence was also for the jury. After a careful consideration of the whole case, we concur in the views of the learned trial judge in the submission of the case to the jury, and find nothing upon which to sustain the assignments of error. Judgment affirmed.

(218 Pa. 336)

CORRIGAN v. PENNSYLVANIA CO. (Supreme Court of Pennsylvania. May 20, 1907.)

RAILROADS-ACCIDENT AT CROSSING.

In an action for death at a railroad crossing, evidence held to sustain judgment for plaintiff.

[Ed. Note. For cases in point, see Cent. Dig. vol. 41, Railroads, §§ 1138-1150.]

Appeal from Court of Common Pleas, Erie County.

Action by Medora Corrigan against the Pennsylvania Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued before MITCHELL, C. J., and FELL, MESTREZAT, POTTER, and ELKIN, JJ.

J. Ross Thompson & Son, for appellant. John B. Brooks (Monroe J. Echols and Paul A. Benson, on the brief), for appellee.

FELL, J. The plaintiff's husband was killed at a street crossing of the tracks of the Erie & Pittsburg Railroad Company in South Sharon. He was employed by a steel company, and about 7 o'clock in the evening, in the latter part of December, he asked another employé who was driving a heavy draught

team to wait for him in order that he might ride to his home. The driver waited several minutes at a place near the tracks where it was usual for drivers to stop, look, and listen for trains. When he saw the deceased approaching, he called to him "Hurry up," and started his team on a walk. The box of the wagon was 14 feet long, and the seat was placed over the hind axle. The deceased got on the wagon while it was in motion, and sat by the driver. The horses were struck on the first of the defendant's three tracks by the engine of a passenger train running south very rapidly, of the approach of which, according to the plaintiff's witnesses, no notice was given by bell or whistle.

The crossing was a very dangerous one. After leaving the usual stopping place, there were 7 tracks of the road of another company Then there was an open space of to cross. 36 feet with a downgrade of 3 feet to the tracks of the defendant's road. Until the open space was reached, the view to the south was cut off by a high board fence, and on the night of the accident cars were standing on the tracks of the other company and obscured a view to the north. In the open space there was a view of the tracks north for 1,500 feet, but there were switch lights among the tracks that might confuse a person looking for the headlight of an engine. The crossings of the two roads were so close together with no safe stopping place between them that in point of danger they might be regarded as a single crossing and the accident as happening on the eighth track.

Under the testimony, the court would not have been justified in holding as matter of law that the deceased was negligent. It

has been frequently said that the rule that one who goes in front of a moving train which he saw or by the exercise of reasonable care would have seen will be adjudged negligent is applicable only to clear cases. Where there is uncertainty as to the facts or the inferences to be drawn from them, the case is for the jury. Doyle v. Chester Traction Company, 214 Pa. 382, 63 Atl. 604. The presumption that the deceased stopped, looked, and listened before he got on the wagon, and that he continued to look until the collision occurred, is not rebutted by anything disclosed at the trial. The danger may have been first apparent when it was too late to avoid it. The speed of the train was such that the headlight could not have been seen more than from 15 to 30 seconds before the collision. The deceased was seated so far back in the wagon that the horses were within a few feet of the rail when he had a view of the tracks. He would naturally first have looked south, since he was on that side of the wagon, and, in afterwards looking north, he may have mistaken the headlight for a switch light. At most he had but a few seconds in which to act after he became conscious of the danger.

The judgment is affirmed.

In an action for injuries to a boy at a railroad crossing, evidence examined, and held that the question of defendant's negligence and plaintiff's contributory negligence was for the jury.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 41, Railroads, §§ 1152-1192.]

Appeal from Court of Common Pleas, Luzerne County.

Action by Joseph Meyers, by his next friend, Josephine Meyers, against the Central Railroad Company of New Jersey. From an order refusing to pay off a nonsuit, plaintiff appeals. Reversed.

Argued before MITCHELL, C. J., and BROWN, MESTREZAT, POTTER, and ELKIN, JJ.

James H. Shea, Edward A. Lynch, and Joseph F. Shea, for appellant. A. H. MeClintock, Arthur Hillman, and Henry W. Palmer, for appellee.

POTTER, J. The trial judge in this case, while conceding the negligence of the defendant company in failing to sound a bell or blow a whistle or give any warning when approaching a crossing after night, was unable to see that the negligence alleged could have been the proximate cause of the injury to the plaintiff. We cannot understand why he should have had any difficulty upon this point. There is evidence to show that the crossing was a dangerous one by reason of obstructions preventing a view of the track and trains running upon it, and that at the time of the injury here complained of the engine approached this crossing after night, running backward, without giving warning in any way of its approach. The plaintiff, a boy 131⁄2 years of age, was coasting upon the public highway, and was struck at the crossing. It seems from the evidence that there was a considerable stretch of level ground to be crossed before the track was reached, and it is a fair inference for the jury that the boy might have stopped his sled, or turned it to one side, before reaching the track, had any warning of the approach of the train been given. The failure of the defendant to give this warning was something from which injury or accident might naturally and reasonably have been anticipated under the circumstances. The crossing was one which was ordinarily protected by a watchman and safety gates. Neither of these precautions was in use at the time of the accident, and it was, therefore, all the more imperative that some warning should come from the approaching train. It is a natural and reasonable inference that the failure to give this warning was what made the collision