her husband, there is no law to prevent her paying his debts or giving him money to use in his business, even though she may have borrowed it. And the wisdom of her so doing is not for the courts to pass upon. It is not necessary to decide what Mrs. Shannon's position was with reference to the original loan from the Second National Bank of Clarion; for as to the loan here in question she was the principal debtor. [3] "The provision in the act of June 8, 1893 (P. L. 344), which forbids a married woman from becoming 'accommodation indorser, maker, guarantor, or surety for another' applies only to the technical contract of indorsement, guaranty, or suretyship inHerr v. Icluded in the words of the act." Reinoehl, 209 Pa. 483, 58 Atl. 862. [4] We see no reason to modify the rule as there stated. Of course, courts should look at the substance of the transaction, but there is not even a suspicion here that Mr. Yeany or the Marienville Gold Standard National Bank was endeavoring to evade the provisions of the statute. And the transaction must be judged as of the date of the loan, Manor National Bank v. Lowery, 242 Pa. 559, 563, 89 Atl. 678. [5] The note is presumed valid, and the burden of proof is on the defendant to show that Mrs. Shannon was a surety, and not the principal debtor. Farmers' & Merchants' Bank v. Donnelly, 247 Pa. 518, 93 Atl. 761. The evidence justifies the conclusion that Mr. Shannon was acting for his wife in the transaction with the plaintiff bank, and we do not deem the question of his general authority to act for her as of controlling importance in this case. We have examined the testimony taken on behalf of plaintiff, but do not deem it important to the defendant, nor necessary to pass upon the question of its competency. The assignments of error are overruled, and the judgment is affirmed. 2. HIGHWAYS 213(2) DEFECTS ACTION FOR INJURY-QUESTION FOR JURY. on the evidence, that its negligence was for the 3. TRIAL 125(5)-MISCONDUCT OF COUNSEL In such action the statement of her counsel to the jury that unless she had a verdict she and her children would be dependent on charity was an improper appeal to sympathy, and reversible error. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 307.1 Appeal from Court of Common Pleas, Allegheny County. Trespass by Ellen Davis against the Township of Stowe, to recover damages for the death of her husband. Verdict and judgment for plaintiff for $7,000, and defendant appeals. Reversed, with a new venire. Argued before BROWN, C. J., and MESTREZAT, POTTER, MOSCHZISKER, and WALLING, JJ. E. K. Trent and D. J. Buckley, both of Pittsburgh, for appellant. George C. Bradshaw, G. R. Speer, and Thomson & Bradshaw, all of Pittsburgh, for appellee. The MESTREZAT, J. [1, 2] This case was properly submitted to the jury, and there was ample evidence to warrant a verdict against the defendant township. The husband of the plaintiff was killed about 6:15 a. m. on January 7, 1915, on the pavement of Island avenue in defendant township by coming in contact with a guy wire which had become detached from a pole of the Pittsburgh & Allegheny Telephone Company. This wire had broken loose from the telephone pole, had fallen across a defectively insulated feed wire of the Pittsburgh Railways Company, and the end of the wire lay on the pavement of Island avenue, in front of the Municipal Building, in Stowe township. The feed wire communicated a strong current of electricity to the guy wire. plaintiff claimed, and introduced evidence to show, that three or four township policemen saw the wire "sparking on the street" about 5 o'clock on the morning of the accident, reported it to the night watchman at the Municipal Building, and then went off duty, leaving the wire hanging in the street, unprotected and unguarded. The evidence of the plaintiff tended also to show that the insulation of the feed wire was defective, and its defective condition had been noticeable for 12 years. The plaintiff claimed that the defendant, through its officers, was negligent in not guarding the fallen guy wire after they discovered its dangerous condition, and further, that the feed wire was in an uninsulated and dangerous condition for such length of time that it was notice to the township authorities that the wire was a menace In a widow's action against a township of first class for damages for death of her husband from contact in a highway with a detached guy wire which had fallen across a defectively to the public, and that the township was insulated feed wire and become charged, held, negligent in not removing it. The court sub For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes mitted to the jury to determine whether the defendant was negligent on either or both of these grounds, and the verdict was for the plaintiff. The defendant township has appealed. township had notice of the fact, and should have removed it or guarded it so as to protect persons using the street from coming in contact with it. [3] We have been compelled, in recent years, to reverse judgments so frequently for the use of intemperate and improper remarks of counsel in their address to the jury that it should now be understood that counsel who violate the well-established rule in this respect do so at the peril of their client's cause. In the case at bar, the learned counsel for the plaintiff, in addressing the jury, said "that the plaintiff, Ellen Davis, and her children will have to be supported by charity unless the jury give them a verdict." There was no evidence offered to prove the assertion, and had it been offered it would have been irrelevant, and therefore would have been excluded. The single issue before the court and jury was whether the death of the plaintiff's husband was caused by the negligence of the defendant township. The financial condition of the plaintiff and her children had no relevancy to the issue, and hence was not evidence for either party. It manifestly would not tend to prove or disprove the negligence of the defendant township, the only issue in the case. The remarks of counsel were not a discussion of the evidence, and, as is obvious, tended to arouse the sympathy of the jury and prejudice them against the defendant. We cannot permit a verdict obtained by such means to stand, as we have ruled in many cases, among which may be cited Wagner v. Hazle Township, 215 Pa. We do not agree with the contention of the defendant that the township is not responsible for the unsafe condition of its highways caused by the defective condition of the overhanging electric wires. The act of April 28, 1899 (P. L. 104), creating townships of the first class, invests the township commissioners with authority over the highways, and especially imposes on the township commissioners the duty to keep the highways in repair at all seasons and "clear of all impediments to easy and convenient passing and traveling." The act also authorizes the commissioners to construct footways along the highways, to establish lights along the highways where deemed expedient, and to establish and maintain a night watch and police force, and to define the duties of the same. Invested with such ample statutory powers, it was manifestly the duty of the township commissioners to protect the public in using the street in question by removing the defectively insulated feed wire. That wire was clearly an impediment in the street within the meaning of the act, and therefore it was a failure of duty on the part of the commissioners not to protect the public against it. It would be a very narrow construction of the act to hold, as contended by the defendant, that the duty of the commissioners was limited to keeping simply the surface of the highway clear of impediments. | 219, 64 Atl. 405, Saxton v. Pittsburg Rys. Co., The general road law which requires the supervisors to keep the highways free from obstructions was never so construed. At present there is frequently as much danger to persons using highways from overhead wires and structures as from obstructions on the surface. The purpose of the act was to afford to the public, in the language of the act, "easy and convenient passing and traveling" on the highways of first-class townships, and it is apparent that this purpose can be accomplished only by keeping the highways "clear of all impediments" both on and above the surface. It was the duty of the township to remove the fallen wire from the street, and we think that notice to its officers was notice to the township. The ordinance adopted by the board of township commissioners provided that they should cause nuisances to be removed, and that policemen should perform similar duties. It also appeared by the evidence that it was the duty of police officers, expressly imposed by the township supervisors, to examine and report daily upon the condition of the streets and highways of the township. When, therefore, the police offisaw the guy wire "sparking on the street" on the morning of the accident, the cers 219 Pa. 492, 68 Atl. 1022, Carothers v. Pittsburg Rys. Co., 229 Pa. 558, 79 Atl. 134, and Connelly v. Pittsburg Rys. Co., 230 Pa. 366, 79 Atl. 635. The trial court should have granted the request of defendant's counsel and withdrawn a juror. The sixth and seventh assignments of error are sustained, and the judgment is reversed, with a new venire. (256 Pa. 90) VILSOCK v. YOUGHIOGHENY & OHIO COAL CO. (Supreme Court of Pennsylvania. Jan. 8, 1917.) 1. MASTER AND SERVANT 241-ACTION FOR INJURY-CONTRIBUTORY NEGLIGENCE. In an action by an 18 year old servant to dict and judgment for him could not be susrecover damages for personal injuries, a vertained, where it appeared that his foot came in contact with a lump of coal beside the track brake rod at the side of a moving electric motor, while he was attempting to jump upon the that he was familiar with the operation of such motors and with his duties as brakeman, and where riding on the side of the moving motor manifestly dangerous. was no necessary part of his duties and was [Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 757.] 2. MASTER AND SERVANT FOR INJURY-NEGLIGENCE. 217(1)-ACTION | Cover damages for injuries resulting from the alleged negligence of the defendant. In such case, the mere fact that the presence of the lump of coal beside the track contributed to the injury was not enough to convict the master of actionable negligence, where the servant also had full notice of its presence. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 574.] 3. MASTER AND SERVANT 234(7)-INJURY TO SERVANT-CONTRIBUTORY NEGLIGENCE. In such case, it was immaterial that the servant had complained to his superiors of the presence of the lump of coal and that they had promised to remove it, where the accident was due to his failure to perform his duties in the safe and efficient method that the circumstances afforded. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 686.] 4. MASTER AND SERVANT 238(3)-ACTION FOR INJURY-CONTRIBUTORY NEGLIGENCE. Where two ways of discharging a service are apparent to an employé, one dangerous and the other safe or reasonably so, he must select the latter, whether or not it is the less convenient to him; and if he chooses the former, and the danger is such that a reasonably prudent man would not incur the risk under the same circumstances, he is guilty of such negligence as will bar a recovery, although the master may also have been negligent. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 745.] [1] It appears from the evidence that John Vilsock, Jr., was between 18 and 19 years of age when he received the injuries for which recovery is here sought, and that he had then been employed by the defendant for some 3 years, and was familiar with the operation of electric motors used in hauling coal from the mines, and that for a time he was in charge of such a motor. During a period of about 6 months prior to the accident in question, he was employed as a brakeman or "snapper" in connection with an electric motor used for hauling loaded coal care out of defendant's mine. The motor was built in the form of a low four-wheeled flat car, with a steel-cased body. At one end of the car was a seat for the motorman, and at the other was a handrail for the use of the brakeman in getting on or off the motor. No provision was made for getting on at the side of the machine, and it was manifestly dangerous to attempt to mount at the side when the car was in motion. The side wheels were about 3 feet apart, and between them on each side, arranged to work against each wheel, were brake shoes, connected by a short horizontal brake rod, located about 8 Appeal from Court of Common Pleas, Al- inches above the track. After the coal cars legheny County. Trespass by John Vilsock, Jr., a minor, by his father and next friend, John Vilsock, Sr., for personal injuries, and by John Vilsock. Sr., for loss of the minor's services, against the Youghiogheny & Ohio Coal Company. Judgment for plaintiffs, and defendant appeals. Judgments reversed. The court's rulings upon defendant's points for charge were as follows: "(1) Under all the pleadings in the case, your verdict must be for the defendant." Answer: "Refused; not read." "(2) The evidence discloses no negligence on the part of the defendant, and your verdict must Answer: "Refused; not be for defendant." read. were loaded in the mine, they were drawn by the motor over a main track towards a "tipple," which consisted of an inclined plane, up which the cars were drawn to be emptied. As the motor approached the tipple, it was disconnected from the loaded cars by the brakeman and was switched upon a siding. The switch was then closed, and the cars were allowed to run ahead on the main track towards the tipple. It was the duty of Vilsock, Jr., as brakeman, to aid in stopping the cars after they had passed the switch. It appears that in the regular course of the operation, after dropping the loaded cars, the motor was taken back a short distance towards the mine, and switched to another track upon which empty cars were standing, waiting to be taken into the mine. The brakeman aided in coupling these cars together and in coupling them to the motor. The exact distance which the motor had to run from switch to switch upon the cross-over track does not clearly appear from the evidence, but it was not more than 300 feet. Plaintiff's witness Hensberger, a motorman, testified that the snapper "would be up at the pit mouth most of the time waiting B. J. Jarrett and Willis F. McCook, both for me, or somewhere around there about the of Pittsburgh, for appellant. Elder W. Mar- center of the track." The testimony showed shall and Meredith R. Marshall, both of Pitts-that, when the brakeman was at that point, burgh, for appellees. (3) The plaintiff John Vilsock, the minor, did not require instructions, as he was familiar with the duties of his employment and aware of the dangers incident thereto." Answer: "Refused; not read." was Verdict for plaintiffs, John Vilsock, Sr., $1,847.90; and John Vilsock, Jr., $10,000, and judgment thereon. Defendant appealed. Argued before BROWN, C. J., and MESTREZAT, POTTER, FRAZER, and WALLING, JJ. POTTER, J. This was an action of trespass brought in behalf of John Vilsock, Jr., by his father and next friend, John Vilsock, Sr., and by the latter in his own right, to re he threw the switch near the pit mouth. If the brakeman was not there, the motorman attended to that duty. It appears that Vilsock was in the habit of jumping upon the side of the moving motor, with his foot upon the brake rod, riding in that position, the foot under a car wheel, he would be hurt, and his employment as a snapper for months prior to the accident must have given him a short distance to the switch near the pit mouth. At the time of his injury, he jumped upon the side of the moving motor, and, according to his story, he succeeded in get-full understanding of the situation. The danting his right foot on the rod; but at that moment he said his left foot struck against a lump of coal lying near the track, and the blow knocked that foot under the wheel, which crushed it, so that amputation was necessary. We can find nothing in the evidence which fairly justifies an inference that it was the duty of the brakeman to mount the moving motor from the side, and ride there, standing upon the brake rod. The rod was not intended for any such purpose, and the danger of such an attempt was apparent. There was danger of missing the rod, and failing to get a foothold. As the rod was round and smooth, there was danger of slipping from it, and going under the wheel, and, as the rod was so near the ground, there was danger of striking an obstruction, which, as plaintiff says, is what actually did happen. He attempted to justify his action by the statement that when he began this particular line of work, several months before, he was told to do the work as another snapper did, and. as he saw that brakeman riding upon the side of the car standing upon the rod, he inferred that he could do the same thing. The excuse was wholly insufficient, as the danger in this practice was manifest, and Vilsock was an experienced man familiar with the work and with the operation of the motors. The service, which was at the time committed to him, consisted in manipulating the brakes on the coal cars, and in coupling and uncoupling these cars, and in throwing a switch, all of which duties, with the exception of uncoupling the motor, were to be performed while he was standing upon the ground. The superintendent testified that the brakeman had no occasion to ride upon the motor, as his proper place was near the rear of the train, and that in going the short distance to the switch near the pit mouth he should have walked. He said that he warn ed Vilsock against the danger of attempting to ride upon the side of the motor. If, for any reason, he desired to get upon the motor, the proper place was at the rear end. There was positive testimony of the mine foreman, the machinist, the boss motorman, and other witnesses, that Vilsock was warned against the risk which he incurred in attempting to jump upon the side of the moving motor. His unsupported denial of these warnings would perhaps make that particular question one of fact for the jury. But there was nothing in the testimony to show that he lacked knowledge of the danger in such an attempt, or required any instruction to avoid it; nor did the evidence disclose anything which tended to excuse in any way his reckless disregard of that danger. It was certainly not ger incident to jumping on the side of the moving motor was obvious, and the possible result of a misstep, or a slip of the foot from the brake rod located so near the wheels, was one which a person of plaintiff's age and intelligence was bound to foresee. [2] It is further contended that plaintiff's injuries were directly caused by reason of his foot striking a lump of coal lying near the track, and that defendant was negligent in permitting the coal to remain there. But the lump of coal which caused the accident was in plain view, and plaintiff admitted he saw it there when he got on the car, and he testified further that the same lump of coal was there two or three weeks before the accident. In view of this testimony, he must be held to have voluntarily assumed the risk of coming in contact with it. [3, 4] It is argued, however, that since plaintiff had complained to the foreman of the presence of the coal, and the latter had promised to remove it, plaintiff was justified in continuing his work and that he did so in reliance upon such promise. Had he been performing his duties in the only manner in which they could reasonably be performed, there would be some force in this argument. But there is no evidence that it was necessary for plaintiff, in the proper performance of his duties, to ride on the side of the moving motor. On the contrary, plaintiff could easily have walked the short distance to the siding switch, and, according to the testimony of one of his witnesses, the snapper often did so and was at the switch ahead of the motor and waiting for it. It thus appeared there was a safe and efficient method of doing the work, and plaintiff cannot be defendant to remove the coal, as an excuse permitted to set up the alleged promise of for continuing the dangerous practice of jumping upon the side of the motor and rid ing there. "Where two ways of discharging the service are apparent to an employé, one dangerous and the other safe or reasonably so, the employé must select the latter, whether or not it is the less convenient to him; and if he chooses the former, and the danger is such that a reasonably the same circumstances, he is guilty of such negprudent man would not incur the risk under ligence as will bar a recovery, although the master may also have been negligent." Fritchle V. Steel City Elec. Co., 251 Pa. 513, 516, 96 Atl. 1084, 1085. Plaintiff unnecessarily put himself in a position which he knew to be dangerous. The evidence clearly shows that he brought his misfortune upon himself, by his reckless disregard of his own safety in mounting the moving motor at the side, and in attempting to ride thereon while it was operating under conditions with which the record shows he The first, second, and third assignments of error are sustained, and the judgments are reversed. (256 Pa. 82) RAFFERTY v. CITY OF PITTSBURGH. (Supreme Court of Pennsylvania. Jan. 8, 1917.) 1. EMINENT DOMAIN 141(3) CHANGE OF GRADE-MEASURE OF DAMAGES. The measure of damages for any injury to a property owner from a change of the grade of a street is the difference in the market value of the property immediately before and immediately after the change. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. § 374.] 2. EMINENT DOMAIN 315 CHANGE OF GRADE-MEASURE OF DAMAGES. The giving of erroneous instruction that in determining damages market value before and after change was not to be considered, was reversible error. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 617, 619.] The difference is as affected by the injury? The same doctrine was announced in Cummings v. Williamsport, 84 Pa. 472, where we held that in estimating the damages sustained by the opening of a street the proper measure is the difference between what the property would bring in the market before the improvement, and what after the improvement was made, without reference to the purpose for which it may be used. [2] The parts of the charge embraced in the third and fourth assignments are clearly erroneous, and do not state the correct rule as to the measure of damages. The court said in its instructions to the jury: "You heard a great deal of testimony as to the selling value of the property before and after the change. You understand, of course, that you are not to consider what is known as the general market in regard to that matter; I mean by that that you are not to consider those things that affect the general market for real estate at or about, or since that improvement Appeal from Court of Common Pleas, Al- took place. If there was a general boom in priclegheny County. Action by Gilbert Rafferty against the City of Pittsburgh. Verdict and judgment for defendant, and plaintiff appeals. Reversed, with a new venire. Argued before BROWN, C. J., and MESTREZAT, POTTER, MOSCHZISKER, and WALLING, JJ. W. W. Stoner, of Pittsburgh, for appellant. H. M. Irons, Asst. City Sol., and Charles A. O'Brien, City Sol., both of Pittsburgh, for appellee. es, or a general depression in prices in the community, owing to the state of business, and the condition of the real estate market, that does not enter into this case." In other words, the jury were told that, in determining the damages sustained by the plaintiff, they were not to consider the general market value of the plaintiff's property before and since the improvement. That, the learned court tells the jury, does not enter into the case. Again the court says: "The question for you to determine is: What effect this improvement had upon this property, and in determining that, you determine not exactly the prices before and the prices after, beMESTREZAT, J. This was an issue fram- cause men differ very widely as to what it was ed by the court below to determine the dam-worth before and as to what it is worth after, * but you are to determine whether this ages, if any, done to the property of the plain- change that was made over there made a change tiff by reason of the change in the grade of in the value of that property." Federal street in the city of Pittsburgh. The This is a repetition, in different language, trial resulted in a verdict and judgment for of the prior incorrect instructions. The the defendant city, and the plaintiff has ap-court says to the jury that they are to "depealed. [1] The third and fourth assignments allege error in the charge of the court on the measure of damages. The rule in such cases was announced by this court nearly a century ago, and since then, as appears by an unbroken line of decisions, there has been no departure from it. We then held in Schuylkill Navigation Co. v. Thoburn, 7 Serg. & R. 410, that the measure of damages is the difference between what the property would sell for as unaffected by the injury, and what it would bring as affected by such injury. In delivering the opinion in that case, Mr. Justice Gibson said (7 Serg. & R. 422): termine not exactly the prices before and the prices after" the improvement, and assigns as a reason "because men differ very widely as to what it was worth before and as to what it is worth after." As suggested by the learned counsel for the plaintiff, if the witnesses had not differed as to the market value of the property before and after the improvement, there would have been no necessity for litigation to determine whether or not the plaintiff was injured by the improvement. The court says, in this connection, as will be observed, that they are to determine whether the change in grade made a change in the value of the property. How this is to be de"The jury are to consider the matter just as if termined the learned judge does not say, but they were called on to value the injury at the he does instruct the jury that it is not to be moment when compensation could first be demanded; they are to value the injury to the determined by considering the value of the property, without reference to the person of the property before and after the improvement. owner, or the actual state of his business; and This is, therefore, not simply a failure to in in doing that, the only safe rule is to inquire struct the jury as to the measure of damages what would the property, unaffected by the obstruction, have sold for, at the time the injury but it is clearly an incorrect instruction as was committed? What would it have sold for, to the true measure of damages in such cases. |