264 Pa. 512, 107 Atl. 842. A pedestrian must | pensation was affirmed by the court of exercise continued vigilance while crossing a common pleas, and the employer appeals. street (Lorah v. Rinehart, 243 Pa. 231, 89 Affirmed. Atl. 967); but just where he should look depends upon shifting conditions and is a ques tion of fact rather than of law. [5, 6] The evidence of Manning and also of plaintiff tended to show the car struck her before she had cleared its path; while other evidence was to the effect that she walked .back in front of or against it; hence, that was also a question for the jury. The presumption is plaintiff used due care, and the contrary is not shown as a matter of law. She was not bound to anticipate that defendant would be negligent. Wagner v. Phila. Rapid T. Co., 252 Pa. 354, 97 Atl. 471; Baker v. Fehr, 97 Pa. 70. [7-9] Defendant's attempted cross-examination of Dr. Chandler, a medical expert, as to the weight he would give the evidence of another doctor, who had treated plaintiff after the accident, was properly excluded. As counsel persisted in that line of cross-examination, the trial judge did not commit reversible error in characterizing it as ir relevant and highly improper. Moreover, no request was made for the withdrawal of a juror because of that remark; hence, the ob jection thereto was waived. Boggs v. Jewell Tea Co., 266 Pa. 428, 434, 109 Atl. 666; Benson v. Electric Ry. Co., 228 Pa. 290, 77 Atl. 492. The assignments of error are overruled, and the judgment is affirmed. Argued before FRAZER, WALLING, SIMPSON, SADLER, and SCHAFFER, JJ. John F. Whalen, of Pottsville, for appellant. Roger J. Dever, of Wilkes-Barre, for appellee. PER CURIAM. Plaintiff's husband was employed as a repair man in and about defendant's colliery. On October 3, 1918, while engaged with other workmen "in taking a buggy or a small car up a breast" in defendant's mine, he received a sprained back, which injury it is claimed developed into cardiac collapse, resulting in his death on the following November 1st. The comand awarded compensation; this action, on pensation board adopted plaintiff's theory appeal, was affirmed by the common pleas of Schuylkill county, whereupon defendant appealed to this court. The question before us is "whether there was sufficient in the testimony to warrant the finding of law that death of appellee's husband was the result of an injury received while in the employ of appellant." The testimony adduced before the board shows that deceased, while engaged with other workmen in removing a "buggy" from one location to another, sprained his back and strained his heart by overlifting which was followed by cardiac collapse, resulting in his death. That cardiac collapse may result from overlifting and straining clearly appears from the medical experts examined TRACEY v. PHILADELPHIA & READING at the hearing before the board. Dr. HolderCOAL & IRON CO. (Supreme Court of Pennsylvania. March 14, 1921.) man, who had not attended deceased, but qualified as an expert, testified: "The only possible evidence that I can see was that he died of overlifting and overstrain * One cannot say positiveof the heart. Master and servant 405 (4)—Evidence held to show compensable injury to workman de-ly that a strain caused a dilation of the heart; veloping cardiac collapse following strain. In a proceeding under the Workmen's Compensation Act (Pa. St. 1920, § 21916 et seq.) to obtain compensation for the death of a servant, testimony of medical experts held competent and sufficient to sustain a finding that cardiac collapse and death resulted from overstrain in removing a buggy from one location to another. Appeal from Court of Common Pleas, Schuylkill County; Richard H. Koch, Judge. Proceeding by Mrs. Michael Tracey under the Workmen's Compensation Act (Pa. St. 1920, § 21916 et seq.) to obtain compensation for the death of her husband, opposed by the Philadelphia & Reading Coal & Iron Company, the employer. An award of com but I think I would be justified in saying that the strain caused it, because he has a history of an accident, and I think that might be a probable cause of this cardiac collapse. Cardiac collapse can follow from overexertion or overstrain." the result of cardiac collapse, and that such The attending physician said death was collapse could be the result of a strain, and that he knew of no other cause in this case. The evidence referred to was competent and ample to sustain the conclusion reached by both the referee and compensation board that cardiac collapse resulting in the death of claimant's husband followed overlifting and overstraining while working in defendant's colliery. The assignments of error are overruled, and the judgment is affirmed. (112 A.) LYNOTT v. SCRANTON COAL CO. (Supreme Court of Pennsylvania. 1921.) March 14, 1. Master and servant 185(1) — Negligence of fellow servant performing absolute duty actionable. Where one, though not a vice principal, is intrusted with the carrying out of some imperative or absolute obligation, the employer is not relieved of liability, though the person injured is a fellow servant. dict for the defendant was directed. After judgment was entered, the plaintiff took this appeal. The first question raised is the liability of defendant company under the Anthracite Mine Act, assuming the facts to be as set forth in the offer. This renders necessary an inquiry into the duties cast, under that legislation (Act June 2, 1891 [P. L. 195]), upon those having control. "The term 'superintendent' means the person who shall have, on behalf of the owner, general supervision of one or more mines or collieries." 2. Master and servant 951/2-Statute per- Article 18, P. L. 207; Pa. St. 1920, § 15092. mits delegation of duty to mine foreman. The mine foreman has charge of the underThe duty of the owner, operator, or super-ground workings (article 12, P. L. 195; Pa. St. intendent of a mine to furnish timbers may 1920, § 15242), and is a person whose compebe committed by the terms of the Anthracite tency is certified to by the state, and to whom Mine Act to the mine foreman and the owner broad powers have been delegated. When be thus relieved of responsibility, but to no one else does the statute permit this obliga tion to be transferred. 3. Master and servant 952-Evidence of delegation of mine owner's duty to fellow servant instead of mine foreman proper. the work has been committed to his charge, as permitted by the act, the owner is not ordinarily responsible for injuries which occur from negligent performance of his duties. Golden v. Mount Jessup Coal Co., 225 Pa. 164, 73 Atl. 1103; Watkins v. Lehigh C. & N. Co., In a miner's action for injuries due to 240 Pa. 419, 87 Atl. 860; Durkin v. Kingston failure to furnish timbers after request of Coal Co., 171 Pa. 193, 33 Atl. 237, 29 L. R. A. one in exclusive charge of a mine, it was error to exclude evidence of notice to the owner of 808, 50 Am. St. Rep. 801; Cossette v. Paulfailure to furnish props and of a rule of the ton Coal Mining Co., 259 Pa. 520, 103 Atl. owner by which all matters relating to props 346. There are instances in which the owner were placed in the hands of a designated per- remains liable notwithstanding such employson controlled by the superintendent in view ment: for example, where there has been a of Anthracite Mine Act of 1891; such evidence failure to properly instruct employees (Bogtending to show that the duty of furnishing danovicz v. Susquehanna Coal Co., 240 Pa. timbers had not been placed on the mine fore-124, 87 Atl. 295); to protect the passageways man, but on a fellow servant. of the mine (Dobra v. Lehigh Valley Coal Co., 250 Pa. 313, 95 Atl. 465; Watson v. MoAppeal from Court of Common Pleas, Lack-nongahela River Coal Co., 247 Pa. 469, 93 Atl. awanna County; George W. Maxey, Judge. Action by Martin J. Lynott against the Scranton Coal Company. Judgment for defendant on a directed verdict, and plaintiff appeals. Reversed, with a venire facias de novo. Argued before WALLING, SIMPSON, KEPHART, SADLER, and SCHAFFER, JJ. John P. Kelly, of Scranton, for appellant. David J. Reedy, of Scranton, for appellee. 625); to take proper precautions after notice of the foreman's default (McCollom v. Penna. Coal Co., 250 Pa. 27, 95 Atl. 380; Collins v. Northern Atlantic Co., 241 Pa. 55, 88 Atl. 75; Sudnik v. Susquehanna Coal Co., 257 Pa. 226, 101 Atl. 318); or other threatened dangers (Kolalsky v. Delaware & Hudson Co., 260 Pa. 357, 103 Atl. 721; Protosenia v. Brothers Valley Coal Co., 251 Pa. 175, 96 Atl. 476; Moleskey v. South Fork Coal Mining Co., 247 Pa. 434, 93 Atl. 485). The same rule of liability is applied where the work is without the scope of the duties of the mine foreman. SADLER, J. The plaintiff, a miner employed by the defendant company, was injur "The owner can claim the protection of the ed by a fall of coal on August 8, 1914, and law * * * so far as he complies with its brought an action to recover damages. In provisions. If the mine owner elect to take his statement he asserted liability on several certain parts of the machinery and appliances grounds, one of which was the failure to out of the charge of the mine foreman and supply supports for the roof of the chamber exercise direct supervision through the superin which he was working. At the trial it was intendent over the same, the law will not give proposed to prove that the duty of furnishing him the protection he would otherwise be enprops had been placed by the rules of the titled to if all of the underground workings mine in the exclusive charge of the witness had been committed to the care and superLangan; an unfulfilled promise made by Reeder v. Lehigh Valley Coal Co., 231 Pa. 563, vision of a properly certified mine foreman." him to supply the timber requested by the 576, 80 Atl. 1121; Rau v. Pittsburg-Buffalo plaintiff; and, as a result, the falling of the Co., 54 Pa. Super. Ct. 579, under the Bitumicoal, and the injury complained of. The nous Coal Act of May 15, 1893 (P. L. 52), and court below sustained objection made. No June 9, 1911 (P. L. 756 [Pa. St. 1920, § 15331 further testimony was presented, and a ver- et seq.]). [3] In the present case the offer was to show the duty of furnishing timber had been placed on Langan, under the direction of the superintendent, and not on the mine foreman. Under such circumstances, the owner was liable for the acts of the one selected, though he was a fellow servant of the one injured. The act with which we are dealing (June 197; cf. McCollom v. Penna. Coal Co., su2, 1891, art. 11; Pa. St. 1920, § 15150) makes pra; Dobra v. Lehigh Valley Coal Co., suit "the duty of the owner, operator, superin-pra. tendent or mine foreman of every mine to furnish to the miners all props, ties, rails and timber necessary for the safe mining of coal and for the protection of the lives of the workmen." Requests for such materials, when necessary, are to be made to the "mine foreman or his assistant." The owner would not, therefore, be liable for injury arising from the failure to supply props, where the service had been committed to such person (Musin v. Pryor Coal Co., 68 Pa. Super. Ct. 88, under the Bituminous Coal Act), unless he has been notified of the default and fails to make proper efforts to protect the employees. facias de novo. In the present case the offer was not only to show such notice, but a rule of the company by which all matters relating to the props The testimony offered should have been received. It follows that the verdict rendered, and the judgment based thereon, must be set aside. The judgment is reversed, with a venire Railroads. were placed in the hands of a designated per- DI IORDIO v. HINES, Director General of son, named and controlled by the superintendent. The testimony proposed was sufficiently broad to establish liability, if proven, unless (Supreme Court of Pennsylvania. March 14, some other legal obstacle to a recovery appears. It is further urged that the evidence offered was insufficient because it appeared that the negligence was that of Langan. The learned court below was of the opinion that the facts indicated he was a fellow servant, for whose wrongful act, resulting in harm to a coemployee, the owner would not be liable. Many cases are to be found, under somewhat similar facts, where the relationship of the parties was held to be such, and the rule suggested was applied (Lehigh Valley Coal Co. v. Jones, 86 Pa. 432; Bradbury Coal Co. v. Kingston Coal Co., 157 Pa. 231, 27 Atl. 400; O'Donnell v. P. & R. C. & I. Co., 249 Pa. 497, 95 Atl. 111); but an examination of the decisions referred to, and others of like import, will show the injurious act to have been caused by the negligent performance of some delegable duty. [1] Where one, though not a vice principal, is intrusted with the carrying out of some imperative or absolute obligation, the employer is not relieved of liability, though the person injured was a fellow servant. Furman v. Broscious, 268 Pa. 119, 110 Atl. 736; Prevost v. Citizens' Ice Co., 185 Pa. 621, 40 Atl. 88, 64 Am. St. Rep. 659. [2] The duty of the owner, operator, or superintendent to furnish timbers, already noticed, may be committed, by the terms of the act, to the mine foreman, and the owner be thus relieved of responsibility; but to no one else does the statute permit this obligation to be transferred. If he sees fit to put this matter in charge of the superintendent or other employee, his liability continues, though the actual injury be inflicted by a coemployee, for the duty is nondelegable, except as permitted by the Mine Act. Wolcutt v. Erie Coal & Coke Co., 226 Pa. 204, 75 Atl. 1921.) 1. Railroads 282 (2)-Presumption of negligence held to arise from escape of cars of defendant. Where the coupling between the locomotive tender and loaded coal cars failed, and cars standing near the top of a grade escaped on the release of the brakes and caused injuries to a workman unloading a car on a private siding, a presumption of negligence arose, casting on the railroad the burden of proving its freedom from fault. 2. Railroads 282(9)-Shifting crew's negli gence in releasing brakes on cars on top of grade held for jury. In an action for the death of a workman unloading a car struck by cars running wild on at the top of a grade, negligence of the shiftthe release of the brakes while the cars were ing crew in failing to ascertain whether the coupling was effectively made between the engine and the cars before releasing the brakes held a question for the jury. 3. Railroads 278(2)—One unloading car not obliged to look out for runaway cars. A workman, unloading a coal car in a private yard where there is no movement of trains is not obliged to anticipate that runaway cars may drift down an incline against the car, and he need not maintain a lookout. 4. Railroads 282 (3)-Due care by workman killed by cars presumed. A workman unloading a coal car who was killed by runaway cars will be presumed to have exercised due care for his safety. 5. Railroads 282 (9) - Contributory negligence of workman unloading car hit by runaway cars held for jury. Where deceased was killed when runaway cars struck the car which he was unloading on a private siding, he could not be declared negligent as a matter of law because he continued his effort to board the car, though warned that (112 A.) runaway cars were approaching, insteading off to the present one on its facts, and where the dropping to the track in front of the approach-trolley pole of a street railway car, for some ing cars and attempting to escape to the side. unknown cause, slipped from the trolley wire, permitting the car to run backward on a Appeal from Court of Common Pleas Montgomery County; John Faber Miller, Judge. Action by Elizabeth Di Iordio against Walker D. Hines, Director General of Railroads. From a judgment for plaintiff, defendant appeals. Affirmed. Argued before MOSCHZISKER, C. J., and FRAZER, SIMPSON, SADLER, and SCHAF FER, JJ. Aaron S. Swartz, Jr., of Norristown, for appellant. descending grade and collide with a pair of horses attached to a wagon, which were following the car. [2] We need not, however, rest our decision on this ground, because, as stated by the court below in its opinion, the circumstances of the accident warranted the jury in concluding that defendant's employees were negligent in failing to ascertain whether a coupling was effectively made between the In view of the location of the cars at the top engine and the cars before relaxing the brakes. of a grade and the danger incident to their becoming released and running wild, the court could not say, as matter of law, defendant's employees did everything a reasonFRAZER, J. Plaintiff sued to recover ably prudent person would have done in view damages for the death of her husband and of the circumstances. The testimony of the received a verdict in her favor. The court conductor to the effect that at the time the below, in its opinion refusing motions for engine backed in and "bumped" the cars the a new trial and judgment n. o. v. for defend-usual test was not applied to ascertain ant, concisely states the manner and cause whether a coupling had been successfully of the accident as follows: Augustus T. Ashton, of Philadelphia, for appellee. "Antonio Di Iordio, the husband of plaintiff, was injured while engaged in his regular employment of unloading coal from cars standing on a single track siding in the yard of his eaployer, a manufacturing concern. The siding connected with the railroad of the defendant. A crew of six men had come into the yard with a locomotive and tender for the purpose of removing a draft of eight connected loaded box cars, which, with the brakes set, were standing near the top of a stiff grade on the same siding, 1,000 feet or more to the easterly of the coal car about which Di Iordio was at the time employed. The tender was backed against the easterly end of the draft and all the brakes of the latter were then released. The couplers did not hold and the train broke between the tender and the first car. The eight box cars escaped, drifted rapidly down the grade, toward the west, and, before they could be checked, collided with the coal car into which Di Iordio, at the moment, happened to be climbing. He was thrown off and injured so seriously that he died the same day." made warrants the conclusion that the accident resulted from the failure of the shifting crew to make a proper coupling and take reasonable precaution to ascertain whether this had been done before releasing the brakes on the cars, especially those of the rear car. [3] Defendant argues that deceased was negligent in failing to observe the approaching cars, and that had he looked he would have seen them coming toward him in time to avoid injury. This argument might have weight had deceased been working at a point where he had reason to expect frequent movement of cars or trains. Such, however, was not the case here, as the car plaintiff's husband was boarding stood in a private yard, and no reason is apparent why he should expect a shifting of other cars, without giving due warning of their approach, in such manner as to collide with the one upon which he was working. He was not obliged to antici The negligence charged on the part of de-pate negligence on the part of defendant's fendant was failure to make and maintain a proper and sufficient coupling between the engine and the cars to be shifted. employees and assume they might permit a runaway car to coast down the incline toward the car upon which he was working. Young v. Transit Co., 248 Pa. 174, 93 Atl. 950. [1] This case seems to be one to which we might apply the doctrine that, where the thing [4] Conceding it to have been the duty of causing the accident was under the exclusive plaintiff's husband to be observant and look control and management of defendant, and for approaching cars before attempting to the accident such that in the ordinary course board the car he was assisting to unload, of experience it would not have happened had there is no evidence that he failed to disproper care been used and cannot be account-charge that duty. He was not alive to tesed for on any other theory except that of tify, and we must presume he used due care negligence, a presumption of negligence aris- for his own safety. Nadazny v. Phila. & es which casts upon defendant the burden of Read. Ry., 266 Pa. 305, 109 Atl. 625. proving his freedom from fault. This rule was applied in Campbell v. Traction Co., 201 [5] A fellow workman testified to having, called to Di Iordio to "look out" at the time lengths away. It does not appear that he CHATHAM & PHENIX NAT. BANK v. (Supreme Court of Pennsylvania. 1921.) and that the vice president of the bank 'then and there promised and agreed with defendant that he would not be called upon to pay the enthat the note would be renewed for a further tire principal at the end of four months, but period of four months upon payment of $500 on account of the principal at the maturity thereof, and so on for further periods of four months, each upon a payment of $500 at each renewal until the whole amount should have been paid in full,' and that in reliance upon this parol agreement he was induced to execute the original note. "When the note fell due defendant tendered $500, and offered to execute a new note for $4,500. The offer was not accepted, but a note was signed for the full amount of indebtedness, payable four months from the date. When that note fell due, defendant paid $500 on account, and executed another note for the balance of $4,500. Various renewals are averFeb. 14, red to have been made, the affidavit stating 'that defendant faithfully kept said agreement and made the payments therein provided for, to wit, $500 at each maturity, and executed new notes from time to time for periods of four months as agreed.' 1. Pleading 350 (3)-Allegations of affidavit of defense taken as true on rule for judgment. On rule for judgment for want of a sufficient affidavit of defense in an action on a note, allegations as to payments must be accepted as true, although the actual payments do not correspond with them. [1] "Although the actual payments do not correspond with the sums alleged in the affidavit to have been paid, the averment for the purpose of the present rule must be accepted as true. "It is averred that on October 3, 1919, the 2. Pleading157-Allegation of nonwaiver date of the execution of the note in suit, 'when held mere conclusion. On rule for judgment for want of a sufficient affidavit of defense in an action on a note, a statement set forth in the affidavit that defendant "did not waive any right" to pay according to a prior parol agreement was a mere conclusion of defendant, and not a description of what actually occurred, and rule was properly made absolute. Appeal from Court of Common Pleas, Philadelphia County; J. Willis Martin, President Judge. Action by the Chatham & Phenix National Bank against Samuel P. Tull. Judgment for plaintiff, and defendant appeals. Affirmed. The opinion of the learned president judge of the court below was as follows: "The statement of claim filed in this case avers that the defendant executed a note for $2,750, dated October 3, 1919, payable to his own order 10 days after date at the Chatham & Phenix National Bank of New York; that payments on account have been received amounting to $551.60, and a further credit is now allowed for a payment of $150, made after the preparation of the statement of claim, leaving a balance of $2,048.40 now due with interest. The affidavit of defense admits the execution of the note and other averments in the statement of claim, but denies liability for payment of the balance claimed. It is alleged that on or about the 20th day of September, 1917, prior to the execution of the note in suit, defendant obtained a loan of $5,000 from plaintiff, and executed a note payable in four months, defendant tendered plaintiff the sum of $500 as he was accustomed to do, upon the maturity of the then existing note for $3,000, and a renewal of his note for the sum of $2,500, plaintiff then and there, disregarding said parol agreement with defendant, absolutely refused to accept renewal of said note for a further period of four months, and demanded payment of the whole principal sum, to wit, $3,000. "It thus appears from the affidavit of defense that plaintiff at that time refused to recognize the contract which defendant claims was entered into when the loan was originally made. If defendant had a legal defense, it was available against the note which fell due then. The affidavit states 'that it was thereupon suggested by the vice president, Richard H. Higgins, that $250 be paid by defendant and a renewal note for $2,750 be executed; that thereupon said defendant did execute said note for $2,750 and made the payment of $250, expressly stating that he did not waive any rights he had to pay the balance due in exact accordance with the terms of the parol agreement hereinbefore recited.' [2] "There is nothing to indicate whether the statement was made before or after the execution and delivery of this note, which is the one now in suit, nor is there an allegation that the vice president agreed to accept it subject to any condition not expressed upon its face. The statement as set forth in the affidavit, 'that he did not waive any right,' is a conclusion of defendant, not a description of what actually occurred; and it is not alleged that the statement was made by defendant to the vice president or to a person having authority to bind the plaintiff. It appears from the affidavit the vice president denied that defendant had |