rear wheel of the wagon from which the plaintiff was helping to unload logs, which caused a log to fall to the ground, where it appears that the plaintiff was injured in attempting to raise it from the ground after it had fallen. In such case the plaintiff could not recover where he knew that the method of unloading logs without having both skids fastened to the that the rear skid was not fastened as usual by means of a chain or rope, and to roll up the logs under the circumstances would be dangerous. Notwithstanding plaintiff's notice to the foreman of the defendant, he instructed the wheels of the wagon was dangerous, and com- plaintiff to go ahead and unload the logs plained of it, but continued to work without a promise to remedy or assurance that it was not dangerous by the defendant. Rule to strike off non-suit. C. P. of Lancaster Co. August Term, 1913, No. 87. John E. Malone, for rule. in the condition the skids were then in, Coyle & Keller and W. U. Hensel, and a safe place in and on which to do contra. March 28, 1914. Opinion by HASSLER, J. his work, and in divers other ways to guard and protect the plaintiff in the proper performance of his duties from any danger, mishap, disaster or accident. that might arise from said defendant's negligence or imprudence, and said plaintiff avers that said skids and said wagon, on which he was then and there at work, in his lawful capacity and for hire and reward then and there paid to him by the defendant, was then and there by reason of the oversight and negligence of the defendant extremely dangerous, and subjected this plaintiff, as said en The plaintiff in this case seeks to recover damages for injuries sustained through an accident caused, as he alleges, by the negligence of the defendant. This accident occurred while he and others were engaged in unloading logs upon the premises of the defendant. At the trial we entered a non-suit for two reasons: first, because the alleged negligence set forth in the statement is not shown to be the proximate cause of the injury byployee and servant, then and there to the evidence; and second, because the evidence showed that the defendant assumed the risk of his employment. We will consider these reasons in the order in which we have stated them. In his statement the plaintiff says the manner of unloading logs was to have two skids fastened to the two wheels of the wagon, one to the front and one to the back, and to roll the logs upon and over these skids from the wagon to the pile, which was a foot or two higher than the wagon. He then alleges the defendant's act of negligence to be as follows: "On the 2d day of January, 1913, the skid that rested on the rear wheel was not tied to the same by means of chains or ropes as it should have been, and the same had slipped off the wheel and the lower end had fallen to the ground, and before commencing to unload the wagon on the 2d day of January the plaintiff called the attention of the foreman of the defendant to the fact great hazards, risks and dangers of life and bodily injury; by reason whereof the said defendant, well knowing the premises, ought then and there carefully to have fastened the said skids, and provide a proper place for unloading from his wagon said log; and the plaintiff avers that the said defendant did then and there disregard his duties in this behalf, in that the said rear skid not being fastened or chained, was insufficient and defective for the purpose of unloading said logs." The only failure to perform his duty on the part of the defendant alleged in this statement is his failure to have the skid on the rear wheel fastened to it by chain or rope. At the trial the testimony showed that in unloading a log the unfastened skid on the rear wheel slipped, and the log fell to the ground. The plaintiff was not injured by that fall. An attempt was then made to raise the log from the ground to the pile of logs, a foot or two higher than the wagon, but when it was part way up it slipped back, struck the plaintiff, who was standing between it and the wheel of the wagon, breaking his leg. The plaintiff must prove the particular act of negligence complained of, and show that it was the cause of the accident. The parties are bound by the pleadings: McLean v. Schoenhut, 225 Pa., 100; McConnell v. P. R. R., 223 Pa., 442; Mahoney v. Transit Co., 214 Pa., 180. In order to entitle the plaintiff to recover it must appear that the act of negligence complained of and proven was the probable and proximate cause of the accident which caused the injury. In P. R. R. v. Hope, 80 Pa., 373, it is stated that the test is, "Whether the facts constitute a continuous succession of events so linked together that they become a natural whole, or whether the chain of events was so broken that they become independent, and the final result cannot be said to be the natural and probable consequence of the proximate cause." In Hoag v. Lake Shore & Michigan Southern Railway, 85 Pa., 293, it is said: "The injury must be the natural and probable consequence of the negligence, such a consequence as under the surrounding circumstances of the case might and ought to have been foreseen by the wrongdoer as likely to flow from his act." In Wallace v. Keystone Auto Co., 239 Pa., 110, proximate cause is defined as follows: The proximate cause of the accident is the dominant and efficient cause which acts directly, or necessarily sets in motion other causes, not created by an independent agency, and which naturally and reasonably results in injury." If the facts as to the cause of the injury are not disputed, the question of whether the negligence complained of is the probable or proximate cause of the accident becomes one of law for the Court: Hoag v. Lake Shore & Michigan Southern Railway, 85 Pa., 293: West Mahoney Township v. Watson, 116 Pa., 344; Gudfelder v. Pittsburgh, &c., Rail way, 207 Pa., 629; Douglas v. Railroad, 209 Pa., 128. In the light of these cases, was the failure of the defendant to have the skid fastened to the rear wheel of the wagon from which the plaintiff, with others, was engaged in unloading logs, the probable and proximate cause of the accident which injured the plaintiff? We think not. It is true that if it had been so fastened the log would not have fallen to the ground from the wagon, but the injury was not caused by that fall. If it had been, there could be no question that the failure to have the skid properly fastened would have been the proximate cause of the injury. When the log was on the ground, the fastening of the skid had nothing to do with it. If it had been fastened after the log was on the ground and before the plaintiff was injured, it would not be contended that the defendant was guilty of any negligence that caused the accident, because it was properly fastened before the accident occurred, though it would not have prevented the injury. It may be true, also, that if the skid had been fastened to the wheel before the unloading commenced, the log would not have fallen to the ground. The immediate and proximate cause of the accident was not the fall from the wagon, but the fall in attempting to raise it from the ground after it had left the wagon. This cause was not put in motion by the failure to have the skid fastened. If the plaintiff and his fellow-workmen had waited a day or a week to raise the log from the ground, it is clear there would be no connection between the cause of the fall from the wagon and the injury; and we do not think that the fact that they attempted to raise it at once made any difference as to the cause. If any failure to perform his duty could be attributed to the defendant as the cause of the accident, it was his failure to have sufficient men or proper appliances to raise the log from the ground to the pile where it was to be placed. This was a failure of duty, if at all, so separate and independent from the failure alleged by the plaintiff in his statement, that it was not set in motion by it, and was not so linked with it as to be the natural and probable consequence of it. But even though this view is not correct, we do not think that the plaintiff would be entitled to recover, because of the second reason for which we entered a non-suit, which is, that the plaintiff assumed the risk of his employment. The testimony showed that he knew that the method of unloading logs without having both skids fastened to the wheels of the wagon was dangerous. He had worked at this place for the defendant two months, and had seven months' experience in this kind of work. The danger must have been obvious, for the plaintiff knew it, having notified the defendant's foreman, who was present directing the work, of the danger on the morning of the accident, and more than once previously. It does not appear in evidence that any promise was made to remedy or change the method of doing the work, nor was any assurance given that the method in use was not dan gerous. In Byers v. Y. & O. Coal Co., 230 Pa., 10, it is decided that a non-suit is properly entered where the evidence shows the dangerous condition of the platform, and stairway was open and obvious to everyone because of the lack of a guardrail; that the plaintiff and other employees had used it for months, and that the plaintiff had continued to use it after his request that a guard-rail should be installed had been refused. less it does not threaten immediate danger, and a promise is made by the employer that the defect will be remedied. In Herron v. American Steel Co., 230 Pa., 90, Justice Elkins says: "It is an established rule that an assurance given (by a master to a servant) of the good condition of an appliance, will not be a bar to a defense upon the ground of the assumption of risk when it is shown that the risk was known and comprehended by the servant." In Reese v. Clark, 198 Pa., 312, Justice Mestrezat says: "It will be conceded, also, as determined by all the authorities, that a servant who voluntarily undertakes a perilous employment, the dangerous character of which he is acquainted with or has the opportunity to learn, assumes the risks naturally and reasonably incident thereto. This doctrine is well settled and generally recognized. But the difficulty here is that these principles are not applicable to the case in hand. Here we have an employee cognizant of an anticipated danger, it is true, but we also have the additional and most material fact that the employer not only knew the danger, but in face of it peremptorily commanded his servant to perform the service, with the assurance that the alleged dangerous object was all right and that he would look after it. (An iron .. That, by proper precautions, he would protect him from it." plate in a dangerous position.) In Williams v. Clark, 204 Pa., 416, and Gerding v. Steel Co., 220 Pa., 229, the same rule is stated. In Glass v. College Hill Boro., 233 Pa., 457, it is decided that where the danger from a machine is obvious, and In this case the danger of unloading is such that no prudent person would logs from a wagon upon skids which continue to work at it, an employee can- were not fastened to the wheel was obnot recover for injuries unless the em- vious and imminent, one which, from the ployer promised to repair, and the em- plaintiff's own description of it, no pruployee remained at work for a reason-dent man would risk. The plaintiff, a able time in reliance on the promise to repair. There was no evidence in this case that he remained at work out of deference to the superior judgment of his employer. In Meade v. Pittsburgh Railway, 223 Pa., 145, it is decided that an employee who continues to use a machine which he knows to be dangerous, takes upon himself the risk of injury therefrom, un man of experience in this kind of work, knew it was dangerous. He complained of it, not only once on the morning of the day of the accident, but on a number of occasions previously. In continuing to work he assumed the risk of injury. He does not come within the exceptions mentioned in the cases cited above. He did not continue to work upon the reliance on a promise to remedy Full Panel. The jurors filed into the jury-box, and after all the twelve seats were filled there still remained one juror standing outside. "If the Court please," said the Clerk, they have made a mistake and sent us thirteen jurors instead of twelve. What do you want to do with this extra one?" "What is your name?" asked the judge of the extra man. the method of doing the work, as no such promise was made. He did not depend upon the assurance that it was not dangerous, as no such assurance was given. He was not told that he would be protected from injury by the foreman or any one else. He could not claim" under these circumstances to rely on his employer's judgment that it was not dangerous, if he had such an opinion, as his own judgment was clearly opposed to it, as shown by his request, not once but a number of times, that the method of unloading be changed so as to have the skids fastened to the wheels. He had an experience of two months' work at this place and seven months at this kind of work. In our opinion, therefore, he assumed the risk of his employment. The rule to strike off the judgment of non-suit is therefore discharged. Legal Miscellany. All Men are Liars. A bright young attorney rather given to strenuous oratory was employed to defend a man charged with aggravated assault and battery. The facts were that the defendant had been called an Irish liar, and had resented the insult by seriously injuring the insulter. The young attorney in his address to the jury first discussed the defense generally, but warming to his subject, addressed a German juror as follows: "Mr. Herman, if a man should call you a German liar, wouldn't you try to break his face?" To a Jew juror: Mr. Einstein, if a man should call you a Sheeney liar, would you not strike him with any weapon at hand?" To an Irish juror; "Mr. McGinty, if a man should call you an Irish liar, wouldn't you try to kill him?" And then, carried away by his own eloquence, he addressed the remaining nine jurors of uncertain nationality: "And you other members of the jury, if a man should call you the various kinds of liars that you are, wouldn't you slay him if you could?" The jury stood nine to three for conviction.—Law Notes. Joseph A. Braines," he replied. Mr. Clerk," said the judge, “take this man back to the jury commissioners and tell them we don't need him as we already have here twelve men without Braines."-The Green Bag. C. P. OPINION. By JUDGE LANDIS: Rengier v. Kunzler. Case stated. Judgment for plaintiff for $4,000. O. C. ADJUDICATIONS. Mary A. Denlinger, Manheim Twp. Rosanna Mechey, Mt. Joy Twp. LANCASTER LAW REVIEW. VOL. XXXI.] FRIDAY, MAY 22, 1914. [No. 29 Superior Court. Abraham H. Hoober, Appellant v. New Damages for diminution of water power On the trial of an action for damages against a water company for appropriating certain springs, and thereby diminishing the water power of the plaintiff's mill, it is not error to disallow testimony as to how many hours the mill could be run by the quantity of water taken by the defendant, measured at a time when the water was flowing over the plaintiff's dam. In such case, there being a wide difference in the testimony as to values, it is not error to allow an expert witness to testify in contradiction of the plaintiff, that water flowing into the stream below the dam was from leaks, and not from a spring, and that the dam and race were out of repair, not for the purpose of showing that the plaintiff could not recover unless his property was in perfect order, but to contradict the plaintiff's valuation of the property before the taking. In such case it is not error to charge that the plaintiff had the right to keep his property in any state of repair he pleased, but that it might not be as valuable in the market if in bad repair and that the plaintiff could not recover for loss of power, caused by the leaky condition of the dam, but could recover whatever was the depreciation in value caused by the taking of the water. In such case a judgment on a verdict for the plaintiff will be affirmed where the trial judge did not abuse his discretion as to the admission of evidence, and correctly charged the jury that the measure of damages was the difference between the value of the property immediately before and immediately after the appropriating of the springs. The latitude to be permitted in the examination and cross-examination of witnesses as to real estate values must to a very great extent be determined by the sound discretion of the trial judge and where a statute as to the competence of witnesses or a rule of evidence has not been disregarded, a judgment will not be reversed for such rulings unless substantial harm has been done. The competency of a witness is not to be conclusively determined by considering merely any one specific statement made by him in his preliminary examination. If the whole of his examination taken together shows that he is a competent witness, he may be and should be permitted to give his opinion as to values. Appeal No. 190 of October Term, 1913, from judgment of C. P. of Lancaster County, on a verdict for plaintiff. Affirmed. The action was for damages for diminution of the water power of the plaintiff's mill by the appropriation of three springs which flowed into the stream above the mill. The Court below, Landis, P. J., refused to allow Wayne Groff, a witness for the plaintiff, to answer the following question: "Q-What is the market value of the Hoober mill now, as affected by the taking of this water?" [1] The Court below admitted the following questions and answers in the examination of Menno Z. Eberly, a witness for the defendant: "Q-What, in your judgment, was this Hoober mill worth in the market on February 24, 1912, last, year, before the water was taken? [2] A-I don't know anything about that. That is far away, but-say that question again." "Q-What, in your judgment, was the value of this property in February, 1912, before the water company took the water from it? 66 A-I would recollect $5,000." [3] Q-What is its value since the water has been taken away from it? How much less would it sell for with that water gone from it? A-That is a hard thing to tell, but I would recollect $4,500." [4] The Court below admitted the following questions and answers in the examination of Noah W. Hurst, a witness for the defendant: "Q-What, in your judgment, was this Hoober property worth in February, 1912, before the water was taken away from it? |