First National Bank of Lock Haven, | a sufficient affidavit of defense disPa., v. Charles K. Keath. Rule to show charged. cause why a new trial should not be granted discharged. Commonwealth, for the uses, etc., v. Philip Butt. Application for discharge as insolvent debtor. Rule for judgment for want of a sufficient affidavit of defense and petition for entry of an exoneratur on bail bond. If defendant appears on July 11 and is regularly discharged as an insolvent debtor, and pays the costs of all these proceedings up to the present time, an exoneratur will be entered on the bond. Clifton Evans v. O. F. Brinkman. Rule for judgment for want of a sufficient affidavit of defense made absolute and judgment entered for plaintiff for $469.84. R. E. Zell v. J. L. Lefever. Certiorari. Exceptions dismissed and proceedings of alderman affirmed. In Re Estate of John T. Hill, weakminded person. Exceptions to auditor's report overruled and auditor's report confirmed. Commonwealth By JUDGE HASsler: I. P. Hepler v. Benjamin H. Sweet. Rule for a new trial made absolute. Peter N. Wohlsen v. Fuhrman Pack Farmers Trust Company of Lancaster, administrator of the estate of Jeff or Jeffries Miller, deceased, v. Charles F. Crawford. Rule for judgment for want of a sufficient affidavit of defense made absolute and judgment entered for $3981.25. Farmers Trust Company of Lancaster, administrator of the estate of Jeff or Jeffries Miller, deceased, v. Charles F. Crawford. Rule for judgment for want of a sufficient affidavit of defense made absolute and judgment entered for $2,787.50. S. Bailey v. Harry Landis and Ferris Landis, trading as Landis Brothers. Rule for judgment for want of a sufficient affidavit of defense discharged. A. R. Gumar, now to use of L. T. Hensel, v. C. B. Hertzler, F. L. Heiser and H. S. Kissinger. Rules on plaintiff to give security for costs and for judg ment for want of a sufficient affidavit of defense discharged. Commonwealth of Pennsylvania v Grove Locher, et al. Pollution of waters of Commonwealth. Defendant found not guilty. Commonwealth of Pennsylvania William F. Humble, manager for John Farnum & Co. Pollution of waters of Commonwealth. Defendant found not guilty. Commonwealth of Pennsylvania ing Co. (a corporation). Rule for judg- Mary A. Schum, et al. Pollution of ment for defendant non obstante veredicto discharged. waters of Commonwealth. Defendant found not guilty. In Re Petition of Francis W. Brinton Commonwealth of Pennsylvania v for an appeal from the order of the Commissioner of Health of Pennsyl-waters of Commonwealth. Robert W. Groetzinger. Pollution of Defendant vania. Order confirmed. Samuel Hoffman v. John J. Pennell. Rule to set off judgment entered to August Term, 1913, No. 262, in John J. Pennell v. Samuel Hoffman, against the above judgment. Rule discharged. Christian A. Eby . The Borough of Strasburg. Rule to show cause why judgment of non-suit should not be stricken off discharged. Franklin Andrews v. William M. Kissinger. Rule for a new trial discharged. Solon Wonders v. Charles Gunzenhauser. Rule for judgment for want of found not guilty. LANCASTER LAW REVIEW. VOL. XXXI.] FRIDAY, JULY 24, 1914. [No. 38 Supreme Court. William S. Yeager v. The Edison Electric Co., Appellant. (Exception noted for defendant.) A. I threw the ladder up to finish where he had left off, and I looked particularly at the wires before I went up. I was sent there to finish it, the job, and I finished it right where Mr. Yeager left off. And I threw the ladder up and went right ahead. I examined the wires, and I noticed a small nick in the center wire, and I thought to myself that is just where the man had got this charge." [1] The Court admitted the following testimony of H. J. Shank: Electric wires-Insulation-Negligence -Contributory negligence — Evidence. "Q. Have you seen these electric One who is brought by his employment into close proximity with electric wires which are wires at this building at the east end of apparently insulated, cannot be fairly charged the Reservoir Park where Mr. Yeager with contributory negligence in coming in con- was hurt the plaintiff? A. I took a tact with the wires unless heedless and lack-walk out there the time of the other ing in ordinary precaution. The highest degree of care must be exercised in protecting court. I saw where the wires went in such wires at points where persons in their when this case was up before the other lawful employment are liable to come in contact with them. A painter who comes into contact with electric wires entering the house where he is painting, can recover damages from the company for injury, where it appears that the wires were insulated in a manner customary for wires hanging out of reach, but which was not a proper or sufficient insulation to make them reasonably safe where they entered the building, although the plaintiff was familiar with the location of the wires and had been warned of danger. In such case, the defect being one of original construction, proof of notice to the company was not required. Appeal No. 308 of January Term, 1913, from judgment of C. P. of Lancaster Co. to March Term, 1912, No. 32, on a verdict for the plaintiff. The suit was brought to recover damages for injury by contact with a supposedly insulated electric wire where it entered a house which the plaintiff was painting for a third party. The Court below, HASSLER, J., admitted the following testimony of Miller Hoar: "Q. Did you see the wires at that time? A. Yes, sir. Q. How soon after did you see them? A. I guess about three weeks, as near as I can tell. Q. Tell us what you saw there. THE COURT: Allowed. court. Q. State whether or not the insulation upon them was a safe insulation. A. It was not. [2] THE COURT: If you want to get from him whether the material used is of the kind of material that is proper, or anything of that kind. But this accident occurred in November 27, 1911. We would not allow anything as to the condition of the wires to be shown more than a year after that. Q. What were they insulated with at the time that you saw them? MR. HENSEL: I object. THE COURT: Allowed. A. The cotton cover was nothing more than pitch on it." [3] The defendant's fourth point and answer were as follows: "4. There is no evidence in the case tending to show that the defendant company had knowledge of any special or peculiar danger existing at this point, and, without such knowledge, actual or presumed, it cannot be held liable. Answer: We affirm that point so far as it relates to any notice of the wire having been defective or worn out, but the rule does not apply if the insulation used at the place was not a proper insulation." [4] The defendant's sixth point and answer were as follows: Aument v. Penna. Tel. Co., 28 Super., 610. "6. In order to hold the defendant | show that the wire was improperly incompany liable in a case of this char-sulated. acter for negligence in not keeping its wires properly insulated, it is necessary for it to have due notice, actual or constructive, of the fact that the insulation was defective, broken or worn off, and, in the absence of such evidence, there can be no recovery by the plaintiff. But Answer: We affirm that point with the same modification that we have made in the answer to the fourth point. it only applies if the insulation was worn off, or defective, from some cause other than the kind of insulation it was." [5] The defendant's first point and answer were as follows: "1. Under the law and the evidence in this case there can be no recovery, and the verdict must be for the defendant. Answer: Refused." [6] The defendant's sixth point and answer were as follows: 5. There is no testimony in this case to show that any other construction than that which was used by the defendant company was a reasonable and ordinary protection to avoid accidents or that it was customary or practicable to maintain any different construction, and, in the absence of such testimony, defendant company cannot be charged with and held liable for injuries such as were suffered in this case. Answer: Refused." [7] Verdict for plaintiff for $3,000 and judgment thereon. Defendant then appealed, assigning error [1-7] as above. W. U. Hensel, for appellant. No negligence was shown in the de fendant. A specific act of negligence which caused the injury must be shown. A jury cannot be permitted to guess a cause. Alexander v. Water Co., 201 Pa., 252. Price v. Railroad Co., 202 Pa., 176. Montgomery v. Rowe, 239 Pa., 321. It was improper to admit testimony of a witness who did not examine the wire until a year after the accident. Stark v. Lancaster E. L. H. & P. Co., 218 Pa., 575. Snyder v. P. R. R. Co., 239 Pa., 132. No notice of defects was brought home to the defendant. 19. Smith v. East End E. L. Co., 198 Pa., Fitzgerald v. Ed. El. Co., 200 Pa., 540. It is common knowledge that electric wires are dangerous, and defendant assumed the risks of his employment. Cracraft v. Bessemer Limestone Co., 210 Pa., 15. Eisenberg v. Fraim, 215 Pa., 570. Nelson v. Street Ry. Co., 207 Pa., 363. Simmons v. Traction Co., 207 Pa., 589. Masterson v. Eldridge, 208 Pa., 242. A man who walks into a patent danger cannot recover. Mellet v. Reading Transit Co., 55 Pa., Sup., 471. Myers v. Edison Electric Illuminating Co., 225 Pa., 387. Haertel v. Pa. L. & P. Co., 219 Pa., 640. Wier v. Haverford Elec. Co., 221 Pa., 611. The verdict should be reversed as perverse and against the evidence. Second Nat'l Bank v. Hoffman, 233 Pa., 394. B. F. Davis, for appellee. In Yeager v. Edison Electric Co., 242 Pa., 101, the Supreme Court held that the Court below should have allowed evidence as to the sufficiency of the insulation. This evidence was, therefore, properly admitted at the last trial. It was amply sufficient to sustain the verdict. It is the duty of an electric light company not only to make the wires safe by perfect insulation, but to keep it so by constant oversight and repair is an imperative duty. The insulation should be perfect. See opinion of Justice Brown in Alexander v. Nanticoke Light Co., 209 Pa., 571. To the same effect is Joyce on Electric The evidence was not sufficient to Law, Vol. I, 2d Ed., Sec. 445. When this case was here before (242 Pa., 101, 103), we said, by our brother Potter: "The plaintiff was en gaged in painting the outside of a small brick building. . . The wires of the defendant company entered the building. The plaintiff was standing upon a ladder in the immediate vicinity of the wires. In shifting his position his shoul der came in contact with one of the ... The July 1, 1914. Opinion by MR. JUSTICE | out of ordinary reach and that which MOSCHZISKER. should properly be anticipated at such a Insulation point of proximity as this. that may be sufficient at one place may not constitute a proper protection against danger from the wires at another. As we said in Fitzgerald v. Edison Electric Illuminating Co., 200 Pa., 540: 'The company, however, which uses such a dangerous agent is bound not only to know the extent of the danger, but tɔ use the very highest degree of care pracwires, resulting in his receiving a serious ticable to avoid injury to every one who electric shock which caused permanent may be lawfully in proximity to its wires injury. The wires were covered with and liable to come, accidentally or othersome material, and the plaintiff appar-duty is not only to make the wire safe wise, in contact with them. ently took it for granted that they were safely insulated. The result showed that this was not the case. . . . The plaintiff was not working at a point where the wires were hanging out of ordinary reach, but was engaged at the point where the wires entered the building, and the nature of his employment seems to have made it necessary for him to approach the wires closely. One who is brought by his employment in close proximity to electric wires which are apparently insulated, cannot be fairly charged with contributory negligence in coming in contact with the wires, unless the contact was the result of heedlessness, or of his own lack of proper precautions, for his safety. Prudence requires those in control of a deadly current of electricity to exercise the highest degree of care in protecting the wires at points where persons in the course of their lawful employment are liable to come in contact with them. It appears from the evidence that the insulating material used in this case was such as is ordinarily used upon the wires when hanging in the air, and out of ordinary reach. It by no means follows that insulation of this character is reasonably safe for use upon wires at points where they enter buildings or where it may reasonably be expected that persons in the discharge of duty may accidentally come in contact with them. The trial judge apparently made no distinction between the danger to be apprehended from the wires when hanging in the air We by proper insulation, but to keep it so 66 66 On the present trial, this evidence was admitted, and the witness testified that the wires which caused the injury were only surrounded by a cotton insulation covered with pitch; he said that this was not" a safe insulation, that it was a dangerous covering," because "there was nothing there to guard a man away from the current, . . . there was no rubber there, no insulation there to protect a man." He further testified that "a good rubber cover next to the copper and a cover over it to protect the rubber," would have been a proper and sufficient insulation. As indicated in our former opinion, the issue did not involve the determination of what was a proper covering for wires "hanging in the air out of ordinary reach," but where "they entered buildings"; and the present testimony was sufficient, if believed (as the verdict shows it was), to sustain a finding that the defendant company had maintained an improperly insulated and dangerous wire at the place in question. This act of negligence was averred in the statement of claims, and the jury was expressly confined to its considera tion by the instructions of the trial judge. It will not do to say that the testimony going to the point before us should be dismissed because the witness made his examination nearly a year after the accident; for one of defendant's own witnesses admitted that the wire was in the same condition, so far as concerned the character of the covering, "in December, 1912, when Mr. Schenck saw it, as it was at the time of the accident." The question of the plaintiff's contributory negligence was properly submitted to the jury in the general charge, as also in the trial judge's answers to the defendant's points, and the verdict must be accepted as conclusive of that issue: furthermore, the defect at bar being one of original construction, and not arising from wear, proof of notice was not required. Meyers v. Edison Co., 225 Pa., 387; Weir v. Haverford Company, 221 Pa., 611, and Hartell v. Penna. Co., 229 Pa., 640, cited by the appellant, are on their facts distinguishable from the case before us. In the first two the lack of, or defects in, the insulation were manifest, and in the other the plaintiff carelessly grasped a dangerous electric wire with his naked hand without any apparent cause for so doing. Here the covering was not in a manifestly bad or dangerous condition; on the contrary, from appearances, the plaintiff had reason to believe that it was sufficient to protect one from the possible danger of casual contact; and, according to the testimony of the injured man, his shoulder accidentally encountered the obstruction of the wires while he was intent upon his work. On the whole, we are On the whole, we are not convinced of error. The assignments are overruled and the judgment is affirmed. It is the duty of one who is driving across a trolley track at an intersecting street to look for an approaching car before driving on the track, and he is not warranted in assuming that if he first reaches the crossing he may go on, and that then the whole duty of care and vigilance is cast on the motorman. Where a driver drove across the trolley track at an intersecting street at a slow trot and did not see a car until it struck his horse, the inference is that he failed to exercise proper care in the absence of evidence of excessive speed of the car. Rule to strike off non-suit. C. P. of Lancaster Co. August Term, 1910, No. 49. B. F. Davis, for rule. July 11, 1914. Opinion by LANDIS, P. J. The plaintiff claimed damages for the loss of a horse and injury to his wagon and harness, caused, as he alleged, by the negligence of the defendant. Upon the trial, a judgment of non-suit was entered, and the correctness of that action is the question to which we direct our inquiry. The testimony taken by the plaintiff disclosed that, on July 11, 1910, Maurice Dunie, an employee of the plaintiff, in company with Samuel R. Shade, was driving the plaintiff's horse and wagon, loaded with about 1,000 pounds of hides, down East Vine Street, in the city of Lancaster. It was about fifteen minutes to six in the evening. East Vine Street is a wide street, running east and west, and South Duke Street is a street of about the same character, running north and south. The car tracks of the defendant company are laid on the lastnamed street, and the cars run thereon southward. Dunie drove down the north side of East Vine Street. When he |