purpose of hoisting and lowering materials, [ same number of "turns" required to raise and articles of considerable weight, to places the weight in safety was also required to where they would be used in the course of re- lower it, there is no method by which plainpairing ships. The derrick is operated by tiff could determine with any degree of accuan engine connected with a revolving cylin- racy the number necessary to raise a certain der, or drum, around which the rope attached weight or, if a given number of turns was to and part of the hoisting machinery is coil- required in a specific instance, the number ed and wound, or unwound, as the material that might be removed with safety in others. or object is raised, or lowered, as the case This was a matter depending upon the judgrequires. The rope is not attached to the ment, knowledge, and experience of the man drum, but a number of coils or "turns," as in charge of the work. Although plaintiff they are called by those employed on the had previously been employed in this work on derrick, are made around the cylinder, and several occasions, it does not appear that his the loose end is held by an employé as the experience was such as to charge him with drum gradually revolves, and either lets out the knowledge necessary to enable him to or takes in the rope, as required in elevating determine the number of turns required for or lowering the objects. When for any rea- safety in raising the particular weight in son the lowering of an article becomes neces- question. He testified the instructions given sary, with the use of the engine's power, the him by the foreman were to watch and do as employé holding the rope relaxes his hold as the latter directed him to do. The foreman At was standing near plaintiff, directing the it gradually unwinds around the drum. the time plaintiff received his injury he was work, and was the man best fitted to know, detailed from his usual work by the foreman, in view of the rigging used at the time and and directed to hold and control the unat- the weight being raised, the number of coils tached end of the rope as it passed around that could, with safety, be removed from the the drum, while hoisting into place a ship's drum, and it was his duty, under the circumrudder weighing in the neighborhood of three stances of this case, to indicate the number tons. The rudder had been hoisted and low- in his order. Plaintiff stated he "kept putered twice, and the third time elevated to a ting on turns" until he considered it safe to point slightly higher than necessary, when "hoist without pulling," when the foreman plaintiff was instructed by the foreman to re- ordered him to remove part of them. lax his hold and permit the rudder to drop by allowing the rope on the drum to slip, the engine in the meantime having been stopped. At the time the rope was coiled six or seven times around the drum and apparently failed to act as quickly as those in charge of the work thought it should, according to plaintiff's evidence, whereupon the foreman peremptorily ordered plaintiff to reduce the number of coils. In complying with this order two coils were removed in safety, and upon loosening the third the resistance of the remaining coils was not sufficient to prevent the heavy rudder from falling, and causing the rope to slip rapidly, catching plaintiff in its coils and tearing his leg from the body, for which injury he brought suit. The court below submitted the case to the jury, and a verdict for plaintiff was rendered, and upon judgment being entered thereon, following the overruling of defendant's motion for judgment in its favor non obstante veredicto, this appeal followed. [1] Plaintiff was detailed to assist in this class of work upon several occasions previous to the day of the accident, and, according to his testimony, received no instructions as to the number of times the rope should be wound around the drum in operating the derrick. This, of course, depended principally upon the weight of the object to be raised or lowered and the number of blocks and pulleys used at the time; that is, whether they were single, double, or triple purchase, to use the language of one of plaintiff's witnessWhile it appears to be conceded that the es. [2] Under the circumstances plaintiff was not obliged to set up his judgment against that of his superior, but had a right to rely upon the latter's knowledge. [3] Although there necessarily comes a time in removing turns from the drum when the danger point is reached, depending upon the object being raised or lowered, we cannot say in this case, as a matter of law, in view of the number of coils on the drum at the time, that obedience to the foreman's orders was so inevitably and imminently dangerous that plaintiff must be held guilty of contributory negligence in not refusing to obey them. Reese v. Clark, 198 Pa. 312, 47 Atl. 994; Counizzarri v. Snyder, 252 Pa. 377, 97 Atl. 477. The negligence of defendant and contributory negligence of plaintiff were questions for the jury to determine, and were properly submitted by the court below. The judgment is affirmed. CLEARKIN v. TAHENY. (256 Pa. 615) Appeal from Court of Common Pleas, [ any and all debts and obligations arising and bePhiladelphia County. ing for or by reason of the matters, things, or bill of complaint, as itemized and set out in the transactions set forth or complained of in the account filed, and that the defendant be and he is hereby discharged from all further payments whatsoever to the complainant on account thereof and from all liability further to account to the complainant for or by reason of any of the Bill in equity for the dissolution of a partnership and an accounting by Patrick Clearkin against Dominick Taheny. From the decree entered, plaintiff appeals. Af firmed. The following is the decree in the court be- matters, things, or transaction set forth or comlow: And now, October 11, 1916, this cause having been fully heard upon bill and answer, account filed, and evidence taken before a referee, and the exceptions to the report of the referee filed therein having been argued by counsel before the court in banc and by the court dismissed, it is ordered, adjudged, and decreed as follows: That arising out of the transactions complained of in the said bill, after the allowance of all proper items of charge and credit, there remained in the hands of the defendant a balance of $8,189.84, in accordance with the following statement: plained of in complainant's bill of complaint. And it is further ordered, adjudged, and decreed that the defendant shall file his bond in this proceeding in the sum of $20,000, with security, and in form to be approved by the court, conditioned to keep and save harmless the plaintiff of and from the claims, suits, actions, and demands of any and all unpaid creditors, obligees, mortgagees or other claimants howsoever, for or by reason of any debt, obligation, mortgage incumbrance, or other claim whatsoever, arising and being for or by reason of the matters, things, or transactions set forth or complained of in the bill of complaint and itemized and set forth in the account filed. And, it appearing that the continuance of the partnership relationship will not create a further profit or balance for distribution, that the partnership be and is hereby dissolved. The defendant shall pay all costs in this proceeding. Argued before BROWN, C. J., and STEWᎪᎡᎢ, MOSCHZISKER, FRAZER, and WALLING, JJ. J. W. Wescott and M. T. McManus, both of Philadelphia, for appellant. Daniel J. Shern, of Philadelphia, for appellee. PER CURIAM. By the decree of the court below the appellant is fully protected against all claims, suits, actions, and demands of the unpaid creditors of the partnership. Under the facts properly found by the learned referee, he has no further interest in the assets of the same, and the proper decree was that the ownership and title to the properties involved should be vested absolutely in the appellee. Decree affirmed, and appeal dismissed at $35,075 99 appellant's costs. STEARNS CO. et al. v. HEWES. (Supreme Court of Pennsylvania. Feb. 26, 1917.) JUDGMENT 747(1) — RES ADJUDICATA — INTEREST IN LAND. In a suit to enjoin defendant from interfering with plaintiff's use of an alleged public alley, a judgment of title in defendant, in his aetion of ejectment against the same parties or those in privity with them, based on a sale of the land to defendant's predecessors in title in a proceeding scire facias sur a municipal lien, was res judicata, although every question sought to be raised by the bill in equity had not been raised in the ejectment suit, where such questions could have been raised and decided. That, the complainant having contributed to the partnership, as capital, the sum of $3,500, and having made advances to the partnership in the sum of $422.35, a total of $3,922.35, and, the defendant having contributed to the partnership in the sum of $6,500, and having made advances to the partnership in the sum of $5,761.94, a total of $12,261.94, and the plaintiff having already received on account of his capital contribution and advances the sum of $4,331.38, an amount largely in excess of the share or proportion to which the plaintiff is entitled on account of his capital contribution and advances, and the defendant having only received on account of his capital contribution and advances, the sum of $1,500, the balance remaining in the hands of the defendant is awarded to the defendant in payment of his (the defendant's) capital contribution and advances to the copartnership, and that he (the defendant) shall hold and own the same, whether consisting of real, personal, or mixed property, absolutely and in fee simple freed and discharged of and from any trust for Bill in equity for an injunction by Stearns or by reason of matters, things, or transactions set forth or complained of in the bill of com- Company and others against Charles P. plaint, subject nevertheless to the payment of Hewes. From a decree dismissing the bill [Ed. Note. For other cases, see Judgment, Cent. Dig. § 1285.] Appeal from Court of Common Pleas, Erie County. on final hearing, plaintiffs appeal. Affirmed. | of said Out-Lot and others, as a public street, Argued before BROWN, C. J., and MES- alley and highway, for the use of the public TREZAT, POTTER, STEWART, and FRA- and said other owners as persons, their sucZER, JJ. cessors, heirs and assigns for use as a public street, alley or highway forever." The action was tried, and resulted in a verdict for the defendants. The court made absolute plaintiff's rule for judgment non obstante veredicto. The defendants appealed to this court, and the judgment was affirmed. Hewes v. Miller, 254 Pa. 57, 98 Atl. 776. Frank Gunnison, Marsh & Eaton, and Monroe Echols, all of Erie, for appellants. Frank J. Thomas, of Meadville, and Clark Olds, of Erie, for appellee. MESTREZAT, J. We agree with the conclusion of the learned judge of the court below which he has amply vindicated in the opinion filed. This was a bill to restrain the defendant from obstructing or interfering with the use by the plaintiffs or the public of an alleged alley in the city of Erie. The facts have been found and stated by the learned court below, and we shall restate only those necessary for the consideration of this appeal. The plaintiffs in the present suit, the successors in title to the individual defendants in the ejectment, filed this bill, in which they averred, inter alia, that they were the owners of lots, respectively, on the east and west side of an alley or public highway; that the strip of land claimed as a highway was, and for more than 21 years prior to laying the pavement on Twelfth street had been, used In 1890, the city of Erie by a duly enacted and traveled by the public, the plaintiffs, ordinance caused a pavement to be construct- and their predecessors in title as a public ed in the roadway of Twelfth street in front highway and as a means of access to the of a piece of land abutting 40 feet on the premises of the plaintiffs by travel on foot street and extending back therefrom the and by vehicle; that the said use of the same same width for a distance of 330 feet, being was open and notorious and apparent to evthe land involved in this litigation, at the erybody; that plaintiffs were advised by expense of the owners of the property abut- their counsel that the same had been dedting on the street, and an assessment was icated to the public as a highway by the ownmade against the land for its proportion of ers, and the public had accepted the dedthe cost. The assessment was not paid, and ication immediately after it was made. The a lien was filed against the land and un- bill prays for an injunction restraining the known owner. A scire facias was issued defendant from obstructing or interfering on the lien, and the writ was served by pub-with the use of the right of way over and lication according to law. Subsequently a judgment was entered in favor of the city of Erie against the land for want of an appearance and affidavit of defense. A levari facias was issued on the judgment, the land was sold by the sheriff to one Van Cleve, and a deed was duly acknowledged and delivered. Van Cleve's title was, by sundry conveyances, vested in Charles P. Hewes, the defendant in this suit. through the alley by the public or the plaintiffs. The defendant filed an answer, admitting that the plaintiffs were the owners of the respective premises averred in the bill, but denied that the strip of land in question was a public highway or alley, and averred, inter alia, that it was the defendant's private property; that it was used by the plaintiffs' predecessors in title for a private raceway; that by proceedings upon the municipal lien it was adjudicated by the court that the land was private property; and that the purchaser at the sale upon said lien acquired a good and absolute title to the fee of the same. He, therefore, alleged that he was the owner in fee simple of the land in controversy, free the plaintiffs; that the questions as to of any easements or claims by the public or whether the land was private land or a public or private driveway and as to whether the public or the plaintiffs had an easement or not were adjudicated and determined upon the scire facias issued upon the municipal lien, and that the judgment in the scire facias proceeding and in the action of ejectment was conclusive as to all the questions attempted to be raised in the present proceeding. Hewes brought an action of ejectment in 1912 against all the then owners of real estate abutting on the alley or land in question and the city of Erie. The plaintiffs in the present suit are the successors in title to the individual defendants in that action. Hewes filed an abstract of title setting forth, inter alia, title out of the commonwealth and the ordinance and subsequent proceedings on the municipal lien, resulting in a sale to his predecessor in title. It is conceded by the plaintiffs in this bill that Hewes relied upon the title acquired by the sale on the municipal lien to recover in the action of ejectment. The defendants pleaded the general issue in that action and, as required by the act of May 8, 1901 ̊ (P. L. 142), filed an answer, in which they averred that the owners in fee of a larger piece of land, known as The learned court below held that the the "Outlot," of which the land in contro- judgment in the proceedings on the scire versy here was a part, "dedicated the said facias on the municipal lien was conclusive land in dispute, * * * to the public, as to the character of the land in suit, that it in ejectment being between the same parties and for the same land in dispute in the present suit was conclusive against the right of the plaintiffs to maintain this bill. We are of the opinion that the learned court below was clearly right in holding that the questions raised by the plaintiffs in this proceeding were adjudicated in the action of ejectment, which was in a court of competent jurisdiction, between the same parties, and for the same cause of action. Section 23, art. 15 of the act of May 23, 1889 (P. L. 324), provides that: "A sale of any property under a writ of levari facias, issued upon a judgment obtained upon any lien filed in pursuance of this act, whether the real owner be named or not, shall be deemed a procceding in rem and shall vest a good title in the purchaser to the property thus purchased. When the owner of a lot is unknown, the claim shall be filed against the land assessed and 'unknown owner,' and indexed accordingly." The enactment of the ordinance authorizing the paving of Twelfth street, the filing of the lien against the property in question, the proceeding on the scire facias, the entry of the judgment thereon, and the subsequent sale of the property were strictly regular and conformable to the statutory requirements. The judgment on the scire facias was conclusive of all questions which were or could have been raised in the proceeding. It determined conclusively, as we held in the ejectment suit, the status or character of the land, whether it was private property subject to the lien or a highway, and therefore not assessable or subject to the lien. It was conclusive evidence of every fact on which it must necessarily have been founded. Hamner v. Griffith's Adm'r, 1 Grant, Cas. 193. It is unquestionably true that the plaintiffs in this proceeding could have raised and had adjudicated, on the trial of the scire facias, whether, as alleged by them, they and the public had a right of way over the strip of land in question, and whether, therefore, the land was the subject of a municipal lien for the paving on Twelfth street. It is no answer to this suggestion that the plaintiffs here might have been ignorant of the proceeding which resulted in the judgment and sale on the municipal lien. That proceeding was strictly in conformity with statutory requirements, and the parties affected thereby were required to take notice of it. It was a proceeding in rem, against the property itself, and the title that passed by the sheriff's sale on the judgment was a fee-simple title to the land unincumbered with any easement or right of way over it. It is familiar law that a judgment of a court of competent jurisdiction upon the merits of a question litigated between the parties is conclusive in any subsequent controversy directly involving the same question, and is a defense in any further litigation of The doctrine of res adjudicata is based upon the principle that there should be an end of litigation, and that a cause of action once duly adjudicated between the parties shall protect the successful party against further vexation in regard to it. The present suit, although in equity, is between the same parties and for the same cause of action as the ejectment which was determined in favor of the present defendant, who was the plaintiff in that action. He relied upon the title to the land in controversy obtained at the sheriff's sale of the property made in pursuance of an execution issued on the judgment in the scire facias on the municipal lien. The plaintiffs in the present suit, who were the defendants in the ejectment, relied upon the defense which they set up in that proceeding as the ground for the relief prayed for in their bill. It will be observed that in the ejectment suit they not only pleaded the general issue, but, as required by the statute, in their answer they averred as their defense the dedication of the land in dispute as a public highway and its use by the public as such and its acceptance by the municipal authorities, and that therefore the sale made in pursuance of the judgment obtained on the municipal lien did not extinguish the easement or right of the public to use the strip of land as a highway, and did not convey to the purchaser a title free and discharged of the easement. In other words, the contention of the defendants and the issue raised by them on the trial of the cause was that the strip of land was a public alley, and was such at the time of the construction of the pavement, and, as such, not liable for the assessment or the expense thereof. The learned court below, in entering judgment in the ejectment suit for the plaintiff notwithstanding the verdict for the defendants, held that the judgment on the scire facias was conclusive as to whether the strip of land was a public alley, and therefore not assessable for the cost of a pavement constructed in a street into which it enters. The learned court said: "The city having treated this strip of land as private property and filed said paving lien against it as such, and all the proceedings leadand the proceedings being in rem, the defendants ing up to the sheriff's sale thereof being regular, are concluded by the judgment there entered, and cannot now set up that question in this collateral proceeding." We affirmed the judgment on the opinion of the trial court, and it is therefore apparent we determined in the ejectment suit that whether the plaintiffs or the public or both had an easement over the strip of land in question was adjudicated against the present plaintiffs in the proceeding on the scire facias issued on the municipal lien. If such easement existed, the lien was not good, and it would have been so determined on the trial of the scire facias, and a judgment would have been entered against the city. The 1. RAILROADS 301-INJURIES AT CROSSING -RIGHT OF ROAD AND FOOT PASSENGER. Foot passengers have the same abstract right to use a street crossed by a railroad as has the railroad to run its trains over the crossing. [Ed. Note.--For other cases, see Railroads, Cent. Dig. § 956.] 2. TRIAL 125(3)—ArguMENT OF COUNSEL. In an action against a railroad for injuries at a crossing, counsel for plaintiffs in argument stated in effect that plaintiffs had as much right to use the road at the crossing as the railroad had to run trains there, and also stated, "We have not yet reached the point-we may sometime, but we have not yet reached the pointwhere everybody has got to stand back when the Boston & Maine Railroad runs its trains." Held, that it could not be said as matter of law that the expression created such a prejudice, or so called attention to existing prejudices, as necessarily to render the trial unfair. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 305.] 3. APPEAL AND ERROR 294(1)—VERDICT— PREJUDICE. If the verdict is in fact the result of prejudice, and not sustainable upon the evidence, relief must be sought in the superior court. inne Lavigne and Olivin Girard, each one of them, had just as good a right there. They were had just as good a right to travel up and down within their rights, every one of them, and they that street, Silver street, that day, as the Boston & Maine Railroad had to run its trains over the public, the traveling public, had a right to the crossing. It was a public highway, where be. That is one circumstance." Taggart, Burroughs, Wyman & McLane, of Manchester, for plaintiffs. Branch & Branch, of Manchester, for defendant. PARSONS, C. J. [1] The statement of counsel to which objection was taken was a correct statement of the law as to the abstract right of the parties. Gahagan v. Railroad, 70 N. H. 441, 443, 50 Atl. 146, 55 L. R. A. 426. Whether the law as to the care required to be exercised by the parties in the exercise of their common and equal right was correctly stated by counsel in argument does not appear. In the absence of further exception, it cannot be inferred erroneous use was made of the abstract principle stated, or that the court failed to give such instructions as would enable the jury to apply the law. Counsel made no statement of fact and did not misstate the law. The sentence to which special exception is taken, "We have not yet reached the point-we may sometime, but we have not yet reached the point-where Boston & Maine Railroad runs its trains," everybody has got to stand back when the was a forceful statement of the legal proposition that a highway traveler is not necessarily in fault who is on a grade crossing when the railroad attempts to occupy it. [2, 3] If for any reason developed in the course of the trial the form of expression used appeared likely unfairly to influence the jury, the presiding justice could have corrected such tendency. Sanders v. Railroad, 77 N. H. 381, 383, 92 Atl. 546; Hoxie v. WalkException from Superior Court, Hillsbor- er, 75 N. H. 30S, 310, 74 Atl. 183. It cannot ough County; Pike, Judge. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 1727.] Actions by Olivier Girard, by her next friend, Alphee Picard, and by Corinne Lavigne against the Boston & Maine Railroad. There were verdicts for plaintiffs, and defendant excepts. Exception overruled. Exception was taken to the following portion of the argument of counsel for the plaintiff's: be held as matter of law that the expression (91 Conn. 642) MOLZON v. CARROLL. (Supreme Court of Errors of Connecticut. June 1, 1917.) 1. "Let me call your attention in the first place to the fact that this was a public highway, and that these girls and this man, Barth, that they refer to, had just as good a right to be there that day as the Boston & Maine Railroad had, just exactly. They were exercising their rights as American citizens, gentlemen. They were on the public highway of Manchester, and although the Boston & Maine had a right to run its tracks over that crossing, that was not an exclusive right, and that did not mean that you and I and others might not go there, too, and travel up and down that street. We have not yet reached the point-we may sometime, but we have not yet reached the point-where everybody has got to stand back when the Boston & Maine be in writing. Railroad runs its trains. Not yet, I say, gentle- [Ed. Note.-For other cases, see Landlord and men. I say this: That Joseph Barth and Cor-Tenant, Cent. Dig. § 1303.] LANDLORD AND TENANT 303(1)—SUMMARY EVICTION-PLEADING-SUFFICIENCY. A complaint, alleging that the lease contained a provision for termination on 60 days' notice should the lessor have an opportunity to sell, and that he gave the notice and had an opportunity to sell, is not demurrable for failure to show that the opportunity to sell was evidenced by an agreement in writing, in the absence of provision in the lease that the agreement must For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |