Philadelphia & Reading Railway Co., 232 Pa. | favor for $2,000. Subsequently judgment was 351, 81 Atl. 332. If we should fail in the present case to enforce this useful rule relating to the preparation of paper books, we might as well abolish it. Appeal quashed. (247 Pa. 86) entered for the defendant n. o. v., because, in the opinion of the learned court below, the plaintiff had failed to show: "First, the want of due care in the employment and retention of Rogers in the work at which he was engaged at the time of the accident; second, the incompetency of Rogers; third, that the injury to Hunter was due to the HUNTER et al. v. CHICAGO RY. EQUIP- incompetency of Rogers." (Supreme Court of Pennsylvania. Jan. 2, 1915.) Where, in an action for the death of plaintiffs' son from being struck by a red-hot iron rod, plaintiffs alleged that defendant's negligence in employing an incompetent workman was the cause of the accident, and the evidence showed that the cause was not the alleged incompetence of the workman, but his negligence in passing the rod through a roll in defendant's mill after assuring deceased that he would not do so, the court properly entered judgment for defendant non obstante veredicto. [Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 367-375; Dec. Dig. 199.] Appeal from Court of Common Pleas, Venango County. Trespass by Ezekial Benton Hunter and another against the Chicago Railway Equipment Company for death of plaintiffs' son. From a judgment for defendant non obstante veredicto, plaintiffs appeal. Affirmed. Argued before BROWN, MESTREZAT, ELKIN, STEWART, and MOSCHZISKER, JJ. P. M. Speer, of Oil City, and R. N. Speer, of Franklin, for appellants. Wm. M. Parker and J. D. Trax, both of Oil City, for appellee. BROWN, J. Harry Hunter, a son of the appellants, was an employé of the Chicago Railway Equipment Company, which operates a rolling mill in the city of Franklin, this state. At this plant old railroad rails are heated, slit, and passed, red-hot, through various rolls, until they become converted into long rods of desired shapes. Hunter's employment was that of assisting in the operation of what is known as a web roll. He would pass the hot rods forward and backward through the rolls, the employé on the other side being Eugene Rogers, and the allegation of the plaintiffs below is that his incompetence was the cause of their son's death. The negligence which they charge against the appellee is its employment of this alleged incompetent employé. On August 14, 1912, when Hunter was at work, the ringing of a bell in the mill indicated that he was entitled to a respite of ten minutes. As he started to take his rest on a bench he stepped in front of a roll through which Rogers was passing a hot rod. This struck him in the thigh, burning into and severing an artery, and his death resulted shortly afterwards. In this action, brought by his parents for the loss sustained by his death, there was a verdict in their As already observed, the negligence on the part of the defendant company, of which the appellants complain, is its employment of Rogers; their contention being that he was an incompetent, inexperienced, and uninstructed employé, whose incompetence was the immediate cause of their son's death. Whether the learned court below, in passing upon the motion for judgment n. o. v., correctly concluded, after a review of all the evidence, that the plaintiffs had failed to show the incompetency of Rogers and the want of due care on the part of the defendant in employing and retaining him in the work at which he was engaged at the time of the accident, is a question we are not required to determine; for, assuming that the evidence in the case was sufficient for a finding that the defendant had been negligent in employing and retaining an incompetent em→ ployé, it is quite clear, as the court below concluded, that the injury to Hunter was not due to any incompetency of Rogers as a fellow employé. This being so, the plaintiffs are not entitled to recover. Brunner v. Blaisdell Bros., 170 Pa. 25, 32 Atl. 607. As Hunter was about to go to the bench to take his ten minutes' rest, he noticed that Rogers, on the other side of the roll, had attempted to pass the hot iron back to another employé, but had given up the effort to do so. To assure himself, however, that the hot iron would not be passed through the roll immediately in front or alongside of him, Hunter called to Rogers and asked whether he intended to pass it through. In reply Rogers shook his head and answered, "No," but, notwithstanding this, he grabbed the hot iron bar and started it through the roll, on the other side of which it struck Hunter in the thigh. This, in brief, was the real situation at the time the injury was sustained, not to be beclouded by any more circumstantial description of it, and it discloses nothing but an act of negligence by one employé to another, for the consequences of which their common employer is not to be held responsible. In reliance upon the assurance of Rogers that he would not pass the burning iron through the roll, Hunter passed on towards the bench, and the unkept assurance of his coworkman resulted in his death. It may be, as the learned court below concluded, that, notwithstanding such assurance, it was the duty of Hunter to keep a lookout as he passed by the roll, and that his failure to do so was such contributory negligence as bars the right of his parents to recover; but as to (247 Pa. 96) WECHSLER et al. v. PITTSBURGH RYS. (Supreme Court of Pennsylvania. Jan. 2, 1915.) Where, in an action for injuries from being struck by the projecting end of a street car, it appeared that plaintiff, a boy 11 years old, was busily engaged in handing change to a person on the front platform when the car suddenly started and caused his injury, the question whether plaintiff possessed sufficient maturity of judg ment to properly appreciate his position and whether he was contributorily negligent was for the jury. [Ed. Note. For other cases, see Street Railroads, Cent. Dig. §§ 239-257; Dec. Dig. 117.] 2. STREET RAILROADS 95-INJURY TO PEDESTRIAN-NEGLIGENCE. Where a motorman in charge of a street car, though he observes a boy busily employed in handing change to a person on the front platform, and should know of the likelihood of his being struck by the projecting end of the car, starts the car, the street railway company is liable for the consequential injuries. other lad was on the front platform of one of the defendant's cars, which was at a standstill, and called to Frank to bring him some change. Young Wechsler went into the street for this purpose, and stood near the front of the car. When he was about to hand up the change, the car started to turn a corner, and in some manner it caught one of his feet and knocked him down. It appears that the overhang of the car was so great that, as stated by one of the defendant's own witnesses, "if you were standing on the curbstone at (the corner in question) * you would be struck by that big car moving around there." Further, it appears that the motorman could and did see Frank Wechsler standing only a little over a foot from his car before he started it around the corner. [1] There was a conflict in the testimony concerning some of the most material facts; but, since the verdicts were for the plaintiffs, and the evidence was sufficient to that end, we must take the foregoing facts as established. The defendant contends, however, that the "court below erred in charging the jury as to what constituted contributory negligence on the part of the minor plaintiff." The trial judge first said that if the jury believed the injured boy had reached an age of discretion, and realized that he had placed himself in a position of danger, “then he took the chance of that car moving while he was standing there." After this he said: "I do not know but what I put the language Appeals from Court of Common Pleas, Al- of the boy's contributory negligence a little too strong. The measure of his care, even legheny County. assuming he had arrived at that age at which he is held to be accountable for negligence, is the same measure which I gave you as to the motorman. Would a person, a reasonable, prudent man have acted under those circumstances as he acted? That is the measure of his care." [Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 179, 180, 202; Dec. Dig. 95.] Trespass by Frank Wechsler, by his mother and next friend, Fannie Wechsler, and by Fannie Wechsler in her own right, against the Pittsburgh Railways Company, to recover damages for personal injury. From judgment for plaintiffs, defendant appeals. Affirmed. Argued before FELL, C. J., and BROWN, MESTREZAT, STEWART, and MOSCHZISKER, JJ. Craig Smith, Clarence Burleigh, and William A. Challener, all of Pittsburgh, for appellant. Charles H. Sachs and Rody P. Marshall, both of Pittsburgh, for appellees. MOSCHZISKER, J. These two appeals were argued as one case. The actions were: (1) By the mother in her own right to recover for injuries to a minor child; (2) on behalf of the child. The verdict in each case was for the plaintiff, and the defendant appealed. * * Under the evidence, it is clear that the question of the boy's contributory negligence had to go to the jury, and that, at the utmost, even though he were held to the same rule as an adult, he was only bound to conduct himself as a reasonably careful person would have done under the circumstances, and when analyzed that is practically all the court said. Whether or not the boy possessed sufficient maturity of judgment properly to appreciate the position he was in, and whether or not he took "chances," were not for the court, but were issues to be passed upon by the jury, and we are not convinced of any harmful error in the manner in which they were submitted. [2] The second and final assignment of The accident happened July 10, 1910, when error complains that the charge failed, in Frank Wechsler, the injured child, was 11 that the trial judge did not adequately inyears and 2 months old; for a week or so struct the jury as to "the relative rights and prior to that day he had been assisting an- duties of the motorman and the plaintiff,” other boy (who possessed a badge giving him or as to "the weight of the evidence and the right to board the cars of the defendant number and character of the witnesses"; company) in the sale of newspapers. This but, after reading the charge with care, we see no merit in any of these contentions. None of the cases cited is controlling here, for they are all distinguishable on their facts. In the present case the car was at a stop, and the minor plaintiff, while standing only a little over a foot away, was busily employed in handing change to a lad on the front platform. Although the motorman saw him thus engaged, and must have known about the overhang of his car and the probable effect it would have upon one in the position of the plaintiff, yet, notwithstanding this, he started around the curve. Under the circumstances, the lad had a right to assume that the car would not start, and this distinguishes the case at bar from most of those cited. The assignments of error are overruled, and the judgment is affirmed. (247 Pa. 89) KING v. KING et al. (Supreme Court of Pennsylvania. Jan. 2, 1915.) who died intestate June 25, 1906. She instituted this proceeding for an accounting and partition, averring that her husband, at the time of his death, was the owner of an undivided one-ninth interest in two tracts of land described in her bill of complaint. The facts in the case are matters of record, and a recital of those that are material is necessary to a proper understanding of appellant's claim. Mrs. Jane L. King, her mother-in-law, died July 28, 1898, seised in fee of two tracts of land in the city of Pittsburgh. She devised these to her three sons, Walter W., Frank J., and Lindsay. On September 10, 1900, Frank J. died intestate, leaving to survive him a widow, but no issue. His one-third interest in the said two tracts of land descended, subject to his widow's dower, to his next of kin, who were his two brothers, Walter W. and Lindsay, and a niece, Margaret Virginia King, the only child of a deceased brother, William Mc. King. On May 16, 1900, J. A. Wakefield, Esq., recovered a judgment in the court of common 1. EXECUTION 21-LEVY-PROPERTY SUB-pleas of Allegheny county against Lindsay JECT. While a judgment is not a lien on afteracquired realty, such realty may be seized under execution and sold in satisfaction of the ⚫judgment. [Ed. Note. For other cases, see Execution, Cent. Dig. 88 49, 492, 68-75; Dec. Dig. 21.] 2. EXECUTION 266-SALE-INTERESTS CONVEYED SHERIFF'S DEED. Where a judgment debtor owns undivided interests in land, a levy on all his right, title, and interest, and a sale thereof, vests the purchaser with the debtor's entire interest, including that acquired after the date of the judgment, though the sheriff's deed recites in the habendum clause that the interest conveyed is such as the debtor held when the judgment was rendered. [Ed. Note. For other cases, see Execution, Cent. Dig. § 760; Dec. Dig. 266.] 3. DOWER 46-EXECUTION SALE-LACHES. Where a judgment debtor lived for five years after a sale under execution of his interest in property and made no objection to the sale, though extensive improvements were made by the purchaser, it was too late, after the debtor's death, for his widow to claim dower rights in the property sold. [Ed. Note. For other cases, see Dower, Cent. Dig. 88 92, 145-153; Dec. Dig. 46.] Appeal from Court of Common Pleas, Allegheny County. Bill for partition by Leila Zug King against Walton W. King and others. From a decree dismissing the bill, plaintiff appeals. Affirmed. Argued before BROWN, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ. George H. Rankin and George C. Lewis, both of Pittsburgh, for appellant. F. P. Iams and J. M. Shields, both of Pittsburgh, for appellees. BROWN, J. The appellant, the complainant below, is the widow of Lindsay King, King, and it became a lien on his one-third interest in the two pieces of land devised by his mother to him and his two brothers. Wakefield took no steps to make this judgment a lien upon the one-ninth interest of Lindsay King acquired by a descent from his brother, Frank, but on March 13, 1901, he issued a writ of fieri facias upon the judgment, furnishing to the sheriff, in writing, a description of the two pieces of land involved in this proceeding and a direction to that officer to "levy upon and sell all the right, title, interest, claim and demand of Lindsay King of, in and to" the same. The sheriff attached this paper to his writ and, after having advertised for sale all the interest of Lindsay King in the said lands, sold the same on April 1, 1901, to W. J. Gilmore, to whom he subsequently delivered a deed, the execution of which he had acknowledged in open court. Gilmore conveyed the interest which he purchased to J. P. Teagarden, who died seised thereof on August 10, 1911, leav ing to survive him a widow, Mary Teagarden, and a daughter, Frances Teagarden, who are parties defendant in this proceeding. [1] The contention of the appellant is that, by the sale on the execution issued upon the Wakefield judgment against her husband, there passed to the sheriff's vendee only his undivided one-third interest in the lands which he had acquired by devise from his mother, and that the one-ninth interest which had come to him by descent from his brother, Frank, was not sold by the sheriff, but remained in him up to the time of his death, charged with her dower. The Wakefield judgment was a lien only upon King's onethird interest in the lands, and a levy made upon that interest under an execution issued upon the judgment would have created no In Smull v. Mickley, 1 Rawle, 95, the sheriff made no return at all to the writ upon which he had sold certain real estate, and it was held by Chief Justice Gibson, who presided at a trial where the validity of the sheriff's deed was the sole question for determination, that it was invalid, by reason of the failure of that officer to make a return to the writ of execution. On appeal this ruling was reversed, the Chief Justice himself having been convinced that he had erred in deciding that the deed was invalid. In holding that it was valid, this court said of it: "For all purposes of information to the It is procourt the sheriff's deed is a return. It recites the sale, the mode and time of it, duced, read in court, and entered on the record. the name of the purchaser, the price, and the payment of the money." independent lien against it. The citation of been distinctly held that a sheriff's deed is authorities by learned counsel for appellant to be regarded as a return by him. was not needed in support of this proposition, for it is not involved in the question before us. When the Wakefield execution was issued, Lindsay King had real estate which was not bound by the judgment, and it consisted of his undivided one-ninth interest in the two pieces of land which he had inherited from his brother, Frank, after the entry of the judgment. As to it that interest was after-acquired real estate, but liable to be seized in execution and sold in satisfaction of the judgment. This was settled a century ago in Colhoun v. Snider, 6 Bin, 135, and the doctrine of that case "has been followed without doubt or hesitation from that time to this." Ross & Co.'s and Elsbree's Apps., 106 Pa. 82. Was the one-ninth interest seized and sold by the sheriff under the writ which Wakefield placed in his hands? If it wasand this is the controlling question in the case there remained no interest in Lindsay King in the lands, and the appellant is dowerless in them. [2] The writ of execution which was placed in the sheriff's hands commanded him that, of the goods, chattels, lands, and tenements of Lindsay King, he cause "to be levied and made" the sum due Wakefield on his judgment. To the writ of sheriff attached the paper given him by Wakefield, definitely describing the two pieces of real estate involved in this controversy and directing him to levy upon and sell all "the right, title, interest, claim and demand of Lindsay King of, in and to" the same. King's interest in the lands at that time was not three-ninths, but four-ninths, and the sheriff's return to his writ was that, by virtue of it, he had exposed the premises "within described" to sale by public vendue or outcry and had sold the same to W. J. Gilmore. What were the premises within described, within the meaning of the sheriff's return? They were undoubtedly the two pieces of land described in the paper furnished by Wakefield, which included the direction to sell all the right, title, interest, claim, and demand of King of, in, and to them. The return clearly meant that the sheriff had done what he had been directed to do. It was followed by the execution, public acknowledgment, and delivery of a deed by the sheriff to his vendee. It is, however, contended that the one-ninth interest which Lindsay King had acquired after the entry of the judgment against him was not sold by the sheriff, because it does not affirmatively appear that he had levied on that interest. We do not so read the records. In addition to what appears in the paper attached to the writ of execution and the sheriff's return to it, his deed, acknowledged in open court, recites that, by virtue of said writ, he "seized and took in execution, all the right, title, interest and claim of Lindsay King of, in and to" the This was repeated in Hinds v. Scott, 11 Pa. 19, 51 Am. Dec. 506, where we said, through Mr. Justice Bell, that a sheriff's deed was equally efficacious as a return. That the sheriff was clothed by his writ with full authority to seize and sell the oneninth interest in the lands is not to be doubted, and such authority appears on the face of the deed which he executed and delivered to Gilmore. The learned court below was therefore clearly right in its conclusion that there had been a seizure and sale of the one-ninth interest. But it is further contended that this was error, because the habendum clause in the deed is: "To have and to hold the said described real estate as fully and for such estate and under and held the same at the time of judgment such conditions as the said Lindsay King had aforesaid, according to the form and effect of the said writs and of the acts of assembly in such cases made and provided." If the deed were one between private parties, consideration would have to be given to this, but none need be given it, for, as the court below very properly said, "a sheriff has no power to change the effect" of his sale. "A sheriff's deed passes all that the debtor could convey, and is necessarily as operative in every respect." Scheetz v. Fitzwater, 5 Pa. 126. "The act of June 16, 1836, provides that real estate sold by the sheriff shall be held and signs, as fully and amply, and for such esenjoyed by the purchaser, his heirs and astate or estates as the defendant had therein." Middleton v. Middleton, 106 Pa. 252. [3] Another feature of this case is not to be overlooked. The two pieces of land devised by Mrs. King to her three sons were improved, the improvements consisting of 12 brick dwelling houses, a foundry, factory, and other buildings. Lindsay King lived for five years after all his right, title, and interest in the two pieces of land had been sold by the sheriff, and it does not appear that, after such sale, he ever claimed any further interest in the rents, issues, and profits. He made no objection to the sale, lands after it, his widow had none in them * We, however, base our affirmance of the decree before us on the ground that the sheriff's sale to Gilmore clearly passed all of King's interest in the lands. As we are of opinion that the relation of cotenant between Lindsay King and the other owners of the common property ceased when his interest was sold by the sheriff, the second question raised by the appellant calls for no discussion. Even if an outstanding title was purchased by one or more of the existing cotenants, the purchase of it did not inure to the benefit of appellant. The assignments of error are overruled, and the decree is affirmed at the costs of the appellant. (247 Pȧ. 99) PENNSYLVANIA R. CO. v. JOSEPHINE jury was not error of which defendant could complain. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 4212-4218; Dec. Dig. 1062.] Appeal from Court of Common Pleas, Indiana County. Assumpsit by the Pennsylvania Railroad Company against the Josephine Furnace & Coke Company to recover demurrage charges. From judgment for plaintiff, defendant appeals. Affirmed. Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, and ELKIN, JJ. Tracy H. Duncan, of Cleveland, Ohio, John A. Scott, of Indiana, Pa., and Holding, Masten, Duncan & Leckie, of Cleveland, Ohio, for appellant. Henry Wolf Bikle, of Philadelphia, and J. N. Banks, of Indiana, Pa., for appellee. POTTER, J. The plaintiff brought this action to recover from defendant the sum of $8,628, with interest, as demurrage charges for the detention of loaded cars delivered by plaintiff to defendant, and for delay in loading empty cars delivered to defendant for that purpose. It appeared on the trial that plaintiff's cars were delivered to defendant, and were returned to plaintiff's road, over the tracks and by the engines of the Conemaugh & Blacklick Railway, a minor or in dustrial railroad, which connected with plaintiff's tracks, and by its rails reached defendant's furnaces. Plaintiff brought cars to a point near defendant's furnaces, where its lines intersected with that of another railroad, the Buffalo, Rochester & Pittsburgh Railway. The cars were there placed on certain tracks belonging to plaintiff, set apart for that purpose, and known as "interchange 1. CARRIERS 196-DEMURRAGE CHARGES-tracks." These connected with the tracks of REASONABLENESS OF RULES-SUBMISSION OF ISSUES EVIDENCE. Where, in a railroad company's action for demurrage charges, it appeared that the rules under which the charges were made allowed time for unloading cars, in excess of the free time required by Act May 24, 1907 (P. L. 229), and there was no proof that such rules were unreasonable, the court properly refused to submit to the jury the question of the reasonableness of the rules. the minor road, the Conemaugh & _Blacklick Railway, and the cars were there attached to the engines of the latter company, and hauled by them to the furnaces of the defendant, being returned in the same way to the interchange tracks and delivered to plaintiff. Defendant contended that the cars were delivered, not to it, but to the railroad company, and that, if plaintiff was entitled to make any [Ed. Note. For other cases, see Carriers, charge for demurrage, this claim should be Cent. Dig. §§ 879-887; Dec. Dig. 196.] made against the railroad company, and not 2. CORPORATIONS 432-AGENCY OF RECEIV-against defendant. Plaintiff, however, mainING COMPANY-SUFFICIENCY OF EVIDENCE. Evidence, in an action against a furnace tained that throughout this transaction with company for demurrage charges, held to sustain a finding that an industrial railroad connecting defendant's blast furnace with plaintiff's tracks was defendant's agent for receiving freight. [Ed. Note. For other cases, see Corporations, Cent. Dig. 88 1717, 1718, 1724, 1726-1735, 1737, 1743, 1762; Dec. Dig. 432.] 3. APPEAL AND ERROR 1062 - HARMLESS ERROR-SUBMISSION OF ISSUES. Where the evidence in an action for demurrage charges would have authorized the giving of binding instructions that an industrial railroad was defendant's agent for receiving freight, the submission of the question of agency to the the Conemaugh & Blacklick Railway the latter was merely an agent for defendant, and that delivery of cars to the railway company was delivery to defendant. Plaintiff's rules which were offered in evidence provide as follows: "Rule 1. (a) When cars are placed for loading or unloading on public delivery tracks or on sidings, the railroads performing the service, forty-eight (48) hours will be allowed. (b) When cars are interchanged with minor railroads or industrial plants who perform their own switching service and who are not members |