(108 A.)

bar, but when present (except where the in- [ so as a matter of law. We agree that ordijury is due to the violation of an act of Con-narily the servant assumes the risks incident gress enacted for the safety of employés) the to the negligent acts of the officers, agents, doctrine of comparative negligence is en- and fellow employés of the master (Boldt v. forced. By section 4 an employé does not P. R. R. Co., supra); but he does not assume assume the risk of his employment where the the risks of unusual and extraordinary acts injury is due to the violation of a statute of negligence. enacted for the safety of employés. "It . seems to us that section 4, in eliminating the defense of assumption of risk in the cases indicated, quite plainly evidences the legislative intent that in all other cases such assumption shall have its former effect as a complete bar to the action." Seaboard Air Line v. Horton, 233 U. S. 492, 503, 34 Sup. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475; Jacobs v. Southern Ry., 241 U. S. 229, 235, 36 Sup. Ct. 588, 60 L. Ed. 970; Boldt v. Penn. R. R., 245 U. S. 441, 445, 38 Sup. Ct. 139, 62 L. Ed. 385.

[1-5] Except, then, as to the injuries re sulting from the violation of statutes, the common-law doctrine of assumption of risk still remains as a complete defense in an action under this statute, and is applicable to a case such as presented by the facts now before us. The employé assumes, as a risk of his employment, such dangers as are normally and necessarily incident to his occupation, and a workman of mature years is taken to assume them whether he is aware of their existence or not; but risks of another sort, not naturally incident to the occupation, may arise out of the failure of the employer to exercise due care. They are the unusual, extraordinary, and unexpected acts, and the employé is not to be treated as assuming such risks until he becomes aware of their existence, unless the act or risk is so obvious that an ordinarily prudent person would have observed and appreciated them. Seaboard Air Line v. Horton, supra; Jacobs v. Southern Ry., supra; Boldt v. P. R. R., supra; C. & O. Ry. Co. v. De Atley, 241 U. S. 310, 315, 36 Sup. Ct. 564, 60 L. Ed. 1016; Erie R. Co. v. Purucker, 244 U. S. 320, 37 Sup. Ct. 629, 61 L. Ed. 1166; C. & O. Ry. Co. v. Proffitt, 241 U. S. 462, 468, 36 Sup. Ct. 620, 60 L. Ed. 1102. It is only in a clear case that the question of the assumption of a risk is one of law for the court, and where there is doubt as to the facts, or as to inference to be drawn from them, it becomes a question for the jury. Falyk v. Penn. R. R. Co., 256 Pa. 397, 100 Atl. 961, and cases there cited. The burden of proof as to the assumption of risk is on the defendant. Kanawha & Mich. Ry. Co. v. Kerse, 239 U. S. 576, 581, 36 Sup. Ct. 174, 60 L. Ed. 448.

[7, 8] In the present case the deceased was employed as a repair man in the interlocking department, and, while engaged in oiling a switch, was run over by a "helper" engine moving backwards. He was thus employed for three or four years, and his duties required his presence on the tracks at various points. He was killed in the yards, where there are three tracks, two main and one siding. A train had just moved to the east, and was assisted over the grade by the "helper." This engine returned backwards, as was its custom, to occupy the siding west of the bridge so as to be in a position to assist the next train moving east. In this movement it must use the crossover switch where the deceased was working. From his position, he could have seen, if standing, a distance of 300 or 400 feet to the east; but when stooping, as this work required, he could not see beyond the end of the bridge. The girders were from 4 to 5 feet in height, completely obstructing his view. There was a stop signal against the engine as it made its return trip, and this was not released until the engine was close to the bridge. It clearly appeared that it was the custom to ring the bell as a warning, while moving the engine backwards, and the defendant offered evidence to show that it had, for a distance of 200 or 300 feet, performed this duty. This evidence was flatly contradicted and raised the important question of fact on which the case was submitted to the jury.

The conditions surrounding his work were unusual. To properly perform it, he must be in a stooping position, and was thus prevented by the girders of the bridge from seeing any safe distance, as the track curved sharply just before the approach to the eastern end of the bridge. Since the work required some little time, he could not stand erect every few minutes to observe approaching trains, and had he done so he would have seen nothing but the signal set against the engine. In the course of his work, situated as he was, he must depend on the usual, ordinary and customary signal given workmen thus employed, and the jury was warranted in finding he had a right to expect nothing unusual would happen. He was not, however, relieved of the obligation of using every precau[6] The court below correctly instructed tion imposed on a prudent man; but, in the the jury both as to the law of contributory performance of this obligation, he must be negligence and assumption of risk, and after judged by the character of the work engaged a thorough review of the evidence we are in, the immediate surroundings, and the nenot persuaded the risk was so obvious as to cessities the work entailed in its performance. bring it within the class of cases where it The engineer, in returning from the top of becomes the duty of the court to declare it the grade to the siding below, always gave

(108 A.)

the order of the court below appears from provisions, whereby the court granting the the following extract from the opinion (230 application may impose such terms as may Pa. 542, 79 Atl. 709): be deemed proper relative to the payment of costs and expenses, and prescribe the notice to be given, and time within which the testimony should be taken. We find nothing in this act, however, that in any manner changes the policy of the law as laid down in the earlier cases, and it has been held that an application made under the provisions of the act should be refused, in absence of sufficient reason shown for departing from the usual custom of taking depositions under a commission. Dreisbach v. Insurance Co., 39 Pa. Co. Ct. R. 676.

(265 Pa. 139)

COMMONWEALTH v. STONER.

(Supreme Court of Pennsylvania. June 21, 1919.)

1. CRIMINAL LAW 823(8)-CHARGE AS TO EVIDENCE OF GOOD CHARACTER NOT ERRONE

OUS.

Where the court correctly charged as to consideration to be given evidence of good character, its further charge that the fact of previous good behavior in a certain particular would not require an acquittal if defendant was guilty or give him any benefit from his previous good behavior, but that in determining his guilt jury should give a fair consideration of evidence of good reputation in connection with all the evidence, was not error.

Omm 9
OF NEW

2. INDICTMENT AND INFORMATION
COURT CAN ALLOW SUBMISSION
GRAND JURY BILL WHERE JUST INDICTMENT

HAD BEEN IGNORED.

In a prosecution for a statutory crime, it was within the lower court's discretion to permit district attorney to submit a new grand jury bill after the just indictment had been ignored over the objection that the later bill was a district attorney's bill. 3. CRIMINAL LAW

914-PREMATURE CONSIDERATION OF DEFENDANT'S LETTER BY GRAND JURY NOT GROUND FOR NEW TRIAL. In a prosecution for a statutory rape, wherein defendant on his motion for a new trial offered to show that a letter purported to have been written by him unsupported by any proof was considered by the grand jury, the denial of the motion was not error, where same letter was introduced at trial before the petit jury, and was admitted by defendant to have been written by him.

ice. This little girl was one of a large family of children of humble and poor parents living in Lancaster county, some eight miles from appellant's house. To lighten the burden thus imposed upon the parents she had been committed to the care of the Children's Aid Society of Lancaster County, and it was from that institution the appellant obtained her to serve as a help about his house. She entered appellant's employ in April, 1914, and so continued until December 3, 1915. On the 29th of February, 1916, she gave birth to a child which survived a little more than a month. The parentage of this child she charged upon the appellant, and made information against appellant five days before the birth of the child. He was held to answer the charge, and, a true bill having been found against him, he was regularly tried at a succeeding term of the court, and was found guilty in manner and form. Judgment followed. Appeal was taken to the Superior Court. That court having affirmed the judgment of the court below, the present appeal followed. A fuller statement of the general facts would not be helpful in the consideration of the questions before us.

After a careful study of this record in the light of the assignments of error and the argument advanced by the learned counsel for the appellant in support, we are of opinion that it discloses no reversible error. The appellant was convicted after what must be regarded as a fair and impartial trial, in which he was accorded every right and privilege the law entitled him to. Upon a review of the case upon appeal to the Superior Court, where like complaint as here was made, the judgment rendered in the court Appeal from Court of Oyer and Terminer, below was sustained. The case is a very Chester County.

Edward D. Stoner was convicted of statutory rape, and from the judgment of the Superior Court (70 Pa. Super. Ct. 365) affirming conviction in the court of oyer and terminer, he appeals. Affirmed.

Argued before BROWN, C. J., and STEWART, FRAZER, WALLING, and SIMPSON, JJ.

serious one in every respect and calls for corresponding care in its consideration. The crime charged, considering the extreme youth of the girl, is so repellent, not to say unnatural, and a conviction of the defendant would necessarily prove so disastrous to him personally, because of the nature of the offense, that we may be quite sure that the ordinary jury would be glad to give full effect to the presumptions of innocence of

S. Duffield Mitchell, of West Chester, for the defendant, where, as here, he has shown appellant.

Harris L. Sproat, Asst. Dist. Atty., and Truman D. Wade, Dist. Atty., both of West Chester, for appellee.

previous good character, rather than detract from the saving force of such presumptions. With like reason we may say the same of the court before whom such prisoner is being tried. Such at least has been the writ

STEWART, J. The appellant, an unmar-er's experience and observation in similar ried man about 47 years of age, a farmer by occupation, was convicted in the oyer and terminer court of Chester county of the crime of statutory rape committed on the person of a little girl, Anna Walton, of the age of 12 years, one of a household composed of appellant and his aged mother, and employed there in domestic and other serv

cases. Our impression in this regard has been deepened after a very careful reading of the learned trial judge's charge in this case and his review of the testimony. Though the latter is made the subject of the first seven exceptions, it is so intelligent and at the same time so fair and impartial that we feel it would avail nothing to the appel

(108 A.)

lant or advantage him were we to discuss | proof to be considered by the jury on the trial the exceptions seriatim. We overrule these exceptions without further comment.

[1] Our attention is specially directed to the eighth and ninth exceptions overruled by the Superior Court, and which complain not so much of error of law in misdirection by the court as to the legal effect to be given the evidence establishing the good reputation of the defendant, but of its insufficiency and inadequacy in failing to convey to the jury a proper understanding of the importance of this testimony and how it was to be applied. As to the complaint of positive misdirection, it is quite sufficient to reproduce here the answers to the points submitted by defendant's counsel, since they cover both propositions. The first point submitted was:

"Evidence of good character, produced in behalf of the defendant in a trial upon an indictment, is substantive evidence to be weighed and considered by the jury in connection with all other evidence in the case. If evidence of good character, combined with all the other evidence in the case, creates a reasonable doubt of the defendant's guilt in the minds of the jury, then the defendant should be acquitted."

The second was:

"Such evidence of good character, produced in behalf of the defendant in a trial upon an indictment, is offered not simply to raise a reasonable doubt as to defendant's guilt, but to establish in the minds of the jury the innocence of the defendant, and is to be regarded as a fact like any other fact tending to establish the innocence of the defendant and must be so regarded by the jury. Such evidence does not Such evidence does not raise a distinct issue and is not brought in the case as mere makeweight. It must be taken into account with all the other evidence in the case, and, if the whole of that evidence is sufficient in the judgment of the jury to show that the defendant is not guilty or to create a reasonable doubt on that point, the defendant must be acquitted."

of the charge, and if, considered in connection with all the evidence, a real doubt, a reasonable doubt, as to the defendant's guilt arises, the deneed hardly say to you, that because a man has fendant must be acquitted. This does not mean, I behaved evil in a certain particular theretofore, and has there and then thus ceased to behave well and has in fact committed the crime charged, it does not mean that, if he is guilty, he shall be acquitted or have any benefit of the fact that he has theretofore behaved well, but it does mean that in determining whether you are satisfied beyond a reasonable doubt that he is not guilty, that he did not commit the act, you shall give him the benefit of a full and fair consideration of the evidence of good reputation in connection with all the other evidence in the case."

Here we find in a single sentence an instruction at variance with the earlier instructions, and quite as much at variance with what immediately followed, so directly contradictory to both that the jury must have understood what followed to be a correction of the error committed. We quite agree with the conclusion expressed in the opinion of the Superior Court with respect to this particular assignment of error. ferring to the error appearing, as we have indicated, the learned judge there says, adopting the language of this court in Com. v. Cate, 220 Pa. 138, 69 Atl. 322, 123 Am. St. Rep. 683:

Re

"While this instruction might be understood by the legal mind as fairly within the rule above stated, it would be confusing to jurors and might lead them to disregard evidence of good character altogether, if from all the other evidence they reached the conclusion that the defendant was guilty. This would clearly be error.' When, however, the court added, 'but it does mean that in determining whether you are satisfied beyond a reasonable doubt that he is guilty,, that he did commit the act, you shall give him the benefit of a full and fair consideration of the evidence of good reputation in connection with all the other evidence in the case,' the jury were no longer likely to be mis"By the term 'substantive evidence' is meant led. These were the last words of the court in law that evidence which is material and es- to the jury upon the subject and we are of opinsential to the issue of guilt or innocence, and ion that this instruction could not have led them such evidence of good character may have the 'to disregard evidence of good character altoeffect to create a reasonable doubt of defend-gether, if from all the other evidence they reachant's guilt, where without it there might be a conviction."

The third was:

The fourth was:

"Good character is of importance, in this: That it may in itself, in spite of all evidence to the contrary, raise a reasonable doubt in the minds of the jury and so produce an acquittal."

These points were separately affirmed by the court without qualification, and that they properly express the law governing is beyond question. Their affirmance was followed by these further remarks by the learned trial judge:

"Evidence of good reputation prior to the alleged commission of the offense is substantive 108 A.-40

ed the conclusion that the defendant was guilty.' This brought the instruction into complete harmony with the first request for instructions, above quoted, presented by the defendant. Considering all that the court said upon the subject, the jury must have understood that evidence of good character is substantive evidence, material and essential to the guilt or innocence of the defendant; that it might have the effect to create a reasonable doubt, where without it there might be a conviction, and it was their duty to give full and fair consideration to such evidence, in connection with all the other evi

dence in the case."

As to the inadequacy of the court's presentation of this branch of the defense, we are of opinion that this complaint has no better