that the defendants were using the buckets to carry loads of iron ore to the extent of 4,000 pounds in weight. The testimony is uncontradicted that the buckets were of sufficient size, when filled, to contain 4,500 pounds of iron ore. According to the evidence, the weak point in the construction of the bucket was in the handle or bail. It was the breaking or tearing out of the bail that caused the accident in this case.

The testimony of Francis McGlashen, a fellow workman, who examined the bucket after the accident, was that the break in the bail was directly through one of the rivet holes. There was no testimony as to any cause of the breaking except overloading. All the witnesses agreed that the loads on the buckets were about 4,000 pounds each. George B. Drake, a naval architect and expert called by plaintiff, testified that the safety point in weight for such a bucket would be 1,500 pounds. If the bucket had had a bail, with a forged eye, the safety point would have been increased to 2,000 pounds. The case for the plaintiff was abundantly sustained by the uncontradicted evidence of Mr. Drake, the naval architect, who showed thorough familiarity with appliances for loading and unloading vessels, and whose experience in the building of ships and vessels had fitted him to judge of the tensile strength of iron and steel. In his testimony he discussed the different kinds of buckets, their relative merits, the question of ordinary usage, and their tensile strength. In commenting on his evidence, the learned trial judge says that he "was not able to say whether the bucket in question was made of iron or steel"; but the architect's estimate as to strength was founded upon steel, and therefore was in that respect favorable to the defendants. The architect said that the safety point for loading was 1,500 pounds, while the ultimate breaking point was 6,000 pounds, thus providing for the usual factor of safety of four to one. As the evidence showed that the load placed in the bucket was 4,000 pounds, it is apparent that no attention was paid to the factor of safety, as this was considerably more than twice the weight which the buckets could safely carry. There is no force in the suggestion of the trial judge that loads of the same amount had frequently been placed in the buckets before without breaking. Continuous overloading could only result in producing a strain which would finally cause the bail to give away, just as it did. The evidence was certainly sufficient to submit to the jury

as to the cause of the break. This was not the case of a mere guess as to how the accident happened. The value of the testimony of the naval architect was forfeited by his long experience, which gave him unusual means of knowledge of the appliances in use in work of this character. It is difficult to see how a better witness for the purpose could have been produced than one with expert knowledge of the strength of

materials, and of the methods usually employed in loading and unloading vessels by means of buckets and hoisting apparatus.

The general rule governing the liability of the employer in such cases was stated by this court in Patterson v. Pittsburg, etc., R. R. Co., 76 Pa. 389, 18 Am. Rep. 412, as follows: "It is true the master is not responsible for accidents occurring to his servant from the ordinary risks and dangers which are incident to the business in which he is engaged; for in such case the contract is presumed to be made with reference to such risks. But, on the other hand, where the master voluntarily subjects his servant to dangers, such as, in good faith, he ought to provide against, he is liable for any accident arising therefrom. * * The servant does not stand on the same footing with the master. His primary duty is obedience, and if, when in the discharge of that duty, he is damaged through the neglect of the master, it is but meet that he should be recompensed. The employer is

bound to furnish and maintain suitable instrumentalities for the work or duty which he requires of his employés, and, failing in this, he is liable for any damages flowing from such neglect of duty." We are of opinion that under the evidence in this case the questions were properly for the jury, and the court below erred in entering judgment for the defendants non obstante veredicto.

The fourth assignment of error is sustained, and in accordance with the precedent established in Hughes v. Miller, 192 Pa. 365, 43 Atl. 976, we remit the record to the court below, that such judgment may be entered, in accordance with this opinion, as law and justice require.

(217 Pa. 110)

HODDER v. PHILADELPHIA RAPID
TRANSIT CO.

(Supreme Court of Pennsylvania. Feb. 25, 1907.). TRIAL-INSTRUCTIONS-WEIGHT OF EVIDENCE.

In an action for injuries alleged to have been received by the sudden starting of a street car on which plaintiff was a passenger when she was attempting to alight, where her evidence is directly contradicted by the employés and four passengers, it is proper for the court to comment on the numerical inequality of the evidence, and it was error to minimize the effect of such inequality.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, §§ 539–548.]

Appeal from Court of Common Pleas, Philadelphia County.

Action by Augusta C. Hodder against the Philadelphia Rapid Transit Company. Judgment for plaintiff, and defendant appeals. Reversed.

The material portion of the charge of the court was as follows:

"Now, then, gentlemen, you are to decide from the evidence, applying to it the rules which govern you in the ordinary affairs of life, whether or not this lady stepped from a

moving car, or, as one of the witnesses said, jumped from a moving car; or whether, having notified the conductor to stop the car, he gave the bell to stop the car, and the car having stopped, she then attempted to alight, and the car was started forward before she got off, and she was thrown from the car. Counsel with great clearness and great fairness to each other and to us have put that question before you, and that is a fact for you to decide.

"I shall say very little about the testimony of the witnesses. That is for you. You should reconcile it if you can; if not, you must decide between the witnesses. On the one hand, it has been argued from the circumstances of the case that the lady's story is hardly credible, but you have a right to believe it, and, if you believe it, to determine that the company was, through its employés, guilty of carelessness in that, having stopped the car to give her an opportunity to alight, they did not give her time enough to alight. But if you believe the testimony of the defendant's witnesses and believe she stepped or jumped from a moving car, she is guilty of contributory negligence. Of course, the credibility of witnesses is for you. You should look a witness straight in the face, and you 12 men are to decide whether you believe or do not believe the witnesses. You heard the plaintiff, you heard her examined and crossexamined, and you have doubtless by this time come to a conclusion as to whether her recollection is accurate, or whether her story is to be believed. And so as to the witnesses for the defendant. They are more numerous in number, and agree pretty well that the lady stepped or jumped off the car while it was in motion; but when they come to describe the accident, it is for you to say whether you think their story holds together. I am not going into a disquisition on evidence; but where witnesses come in and tell exactly the same story to the letter, it is rather thought to be against their credibility than for it. That is, if people make up a story, they are apt to make it up exact in all the details. But I do not want to take up time on that. I want to get right at this case. You have got to decide, as these witnesses said this woman either jumped off the car or stepped off the car while it was in motion, whether their story is accurate or not, and first of all applying to her and her witnesses your careful consideration, critical consideration, do the same thing to the witnesses for the defendant. Because they seem to agree in this, that the lady jumped or stepped off the car while it was in motion; but you can test their accuracy by the testimony. The witness Southcott, who testified quite fully about it, when asked where he sat, was not quite sure of the seat, but was back in the smoking seats. He thought it was the second from the back and on the same side, as I understood his testimony, though that is for you, as the lady was on,

and he said there were two empty seats be tween him and the lady. We will pass over Smith and Meredith, the conductor and motorman. They testified simply and directly. The motorman was not cross-examined. But you may test their testimony. Then we come to the testimony of the witness Siglang. Siglang first said that he was on the left side of the car, and then said he was on the righthand side. That may have been a slip of the tongue or the memory. And the other witness, Carlin, also said: 'I was on the east side; that is, on the same side as the lady that I saw.' Now, you have got to test the accuracy of the recollection of those witnesses by their accuracy and by the way they stood cross-examination, because, while they did say-and one of the witnesses not having stated how the lady got off, in answer to a question, said she jumped off with both feet. The other witnesses described her getting off in a rather different way. I am not arguing this case. I am simply putting to you the testimony of these witnesses. It is not always numbers, but it is whom the jury believe. However, I have called your attention first of all to the testimony of the plaintiff. Counsel for the defendant was accurate in his statement that though the testimony of a witness who is interested is no longer excluded by the law, the jury must take into consideration the great interest she has in the case. At the same time, you heard her examined and cross-examined, and you must determine whether her story was true and accurate, because her right to recover from this defendant company depends on the accuracy of her statement that the 'car had stopped, and while she was in the act of alighting started forward suddenly and threw her down. And so you should apply the same critical analysis and care to the testimony of the defendant. They are both entitled to it. It has been well and fairly presented by counsel on both sides. There has been no attempt to either move your sympathy or to stir your indignation or to excuse anything. Your business in that jury box is not to decide for this lady because you sympathize with her, or against the company because you have any prejudice against it, but to determine the facts, and if you determine that her story is accurate and true, and that the others are mistaken, you have a right to do it and to decide in favor of the plaintiff. That is the foundation of our government."

Verdict and judgment for plaintiff for $2,000.

Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.

Thomas Leaming and Chester N. Farr, Jr., for appellant. Haines D. Albright and Herry B. Tawresey, for appellee.

STEWART, J. It is complained in the assignment of error that the charge of the court was not a fair and adequate presenta→

tion of the case upon the facts. That it was a very full and entirely correct exposition of the law applicable to the case itself is conceded. It does not concern us to inquire whether the verdict was in accordance with the facts or otherwise, but the assignment of error puts upon us the duty of inquiring whether the jury, in reaching its conclusion, was properly and sufficiently aided by the court in the presentation and discussion of the evidence. The plaintiff was injured in the attempt to alight from the car of the defendant company, and the action was for the recovery of damages.

The negligence

charged was the sudden starting of the car from a state of rest while plaintiff was in the act of getting off, with the result that she was thrown upon the ground and injured. The case presented this marked feature, that while but one witness, and that the plaintiff herself, testified to the particular fact relied upon to establish negligence, viz., that the car was at rest when plaintiff attempted to alight, the conductor, motorman, and four passengers, all of whom witnessed the occurrence, testified, in direct and positive contradiction to the plaintiff, that when she attempted to alight the car was moving, that it had not then reached the crossing, and that it had not stopped at all. Did the case present no other feature than this marked numerical inequality in the support given one side and the other by the witnesses, this of itself would be a circumstance properly calling for remark in the general charge, and the least the court could do would be to instruct the jury to allow it due weight. By so much the greater reason should it be the subject of observation and instruction when, as in this case, the solitary witness on the one side is the plaintiff herself testifying in her own behalf, unsupported by a single fact or circumstance not equally supporting those testifying adversely to her; and, on the other side, a half dozen witnesses, each with equal opportunity with the plaintiff to know what the actual fact was, testifying without impeachment of credibility by witness or circumstance, in positive contradiction to the plaintiff's statement. Here was a state of evidence which not only invited comment by the court, but required it, in order that what was so unusual might have neither too much nor too little influence in determining the conclusion of the jury, but strictly its proper weight. In deciding the question of defendant's liability, the jury had but one fact to ascertain-was the car at rest or in movement when plaintiff attempted to alight? The answer to this question depended on where they rested their belief in the plaintiff's testimony, or that of the opposing wit

nesses.

The complaint is, not that the feature of the case referred to was overlooked in the charge, but that in remarking upon it the learned trial judge not only failed to allow it the prominence and force it was entitled to, 66 A.-16

but so minimized its effect as to make what was said on the subject, if not a positive misdirection, a prejudicial misleading. The charge contains but two references to this pronounced inequality, both so brief that their insertion here will add but little to the length of this opinion. The first is: "And so as to the witnesses for the defendant, they are more in number, and agreed pretty well," etc. The next is: "It is not always numbers, but whom the jury believe." Since the only question was, as the court correctly put it, whom they should believe on the disputed point, the impression left on the minds of the jurors by these brief references to the disparity of the number of witnesses testifying on the one side and the other to the vital fact of the case would most likely be that it was a circumstance too unimportant for fuller reference, and therefore too important for their serious consideration. Had the learned judge said so in so many words, it would have been manifest error, because it would have denied the defendant the benefit of an advantage it had a right to claim on the state of the evidence as exhibited. That it was differently expressed is immaterial, if, as expressed, it was calculated to produce the same effect. The case, for the reasons referred to, called for full and explicit instruc tions as to the weight of the evidence, as to what is meant by this expression, and what instructions should influence in determining where the weight of evidence lay. The charge would have been open to exception had it by implication even allowed the jury to suppose that it was necessarily determined by numbers. The error was none the less decided, if by implication it left the jury free to disregard, or treat as unimportant, the fact that the issue of credibility was between one interested party and half a dozen others, four of whom, so. far as the evidence disclosed, stood clear of all bias, and all of whom had equal opportunity with the one to know the truth. What was impressed on the minds of the jury with an earnestness out of proportion to the requirements of the case was their right to accept the testimony of plaintiff, rather than that of the opposing witnesses. We say out of proportion to the requirements, because this right was unchallenged, and nothing called for such a vindication of it by the court as it received.

This is the language of the charge: "Your business is not to decide for this lady because you sympathize with her, or against the company because you have any prejudice against it, but to determine the facts, and if you determine that her story is accurate and true, and that the others are mistaken, you have a right to do it and to decide in favor of the plaintiff. That is the foundation of our government." It may be that the collective intelligence of the jury prevailed to avoid misunderstanding what was here said, but we cannot be made certain of it. It would not be at all strange if the less intelligent and

discriminating of the jurors derived from it the notion that their acceptance of plaintiff's testimony as true would relieve them of a responsibility, which otherwise would be theirs, of exposing to serious danger our civil institutions. It was in marked contrast to the earlier references made to the testimony of defendant's witnesses. Not only was the effect of the marked numerical preponderance there unduly minimized, but the testimony was not reviewed with that accuracy of statement required for careful investigation by the jury. As to whether the car was in motion or at rest when the plaintiff attempted to alight, the only question in the case, these witnesses were in entire and absolute accord. There was some uncertainty as to the seats occupied in the car by each, and some slight discrepancy with respect to some other wholly unimportant details; but on the one fact to be inquired about their agreement was positive and exact. The reference to this testimony was as follows: "They [the defendant's witnesses] are more numerous and agree pretty well that the lady stepped or jumped off the car while it was in motion, but when they come to describe the accident, it is for you to say whether you think their story holds together." This was an unwarranted depreciation of the testimony of these witnesses, to say the least. It was not a case where explanation and reconcilement were required to show agreement, but where concurrence was so pronounced and exact that no refinement could make of it anything less than unanimity. Such characterization of the testimony was inaccurate and unfair, because calculated to rob it of its true significance.

Nor was the effect at all corrected by what was said as to the individual witnesses testifying for the defendant, but rather intensified. Reference to the testimony of each was made, only, however, to point out those things which the learned judge thought proper to consider as testing their accuracy. Matters thus indicated for the jury's consideration were unrelated to the one important fact. However found to be, they could not qualify in the slightest the witnesses' opportunities to see how the fact was, nor could they furnish any reasonable basis for discrediting the testimony. One witness spoke of the plaintiff jumping off the car, while all the others described it as a stepping off. Another could not be certain whether he was two seats in the rear of the plaintiff or three, and another immediately corrected his statement that he was on the left-hand side of the car. These are the features of the testimony specifically pointed out by the court to enable the jury to test the accuracy of their testimony. To say that a jury may reject the testimony of a half dozen witnesses for no other reason than here appears is simply to invite them to do so. The testimony of the conductor and motorman was in accord with that of the other witnesses. The only refer

ence to it was as follows: "We will pass over Smith and Meredith, the conductor and motorman. They testified simply and directly." An omission of all reference to the testimony of these two witnesses would have been marked, but its effect would not have been so prejudicial to the defendant as the reference that was made. Why pass over them? The inference that the jury would be likely to derive from such a remark would be that because the witnesses were employés of the defendant company their testimony need not be seriously considered, and yet it bore as directly upon the one fact in issue as that of the other witnesses, and was in entire accord with it. Of course, the court intended no such inference to the drawn, but the jury would be most likely to accept it as the obvious one.

It is unnecessary to illustrate further. We have sufficiently indicated wherein the charge comes short of being a fair and impartial résumé of the evidence. Any review of the evidence by the court that is inaccurate in statement, or that gives such undue prominence to minor considerations as to divert the attention of the jury from the material questions in the case, and deprives either side of an advantage it is entitled to under the rules of evidence, is in effect misleading. That is what is complained of in respect to the charge in this case; and what we have indicated shows, we think, that the complaint is not without reason. It was not a fair and adequate presentation of the case, and the assignment of error must be sustained.

Judgment reversed, and venire facias de novo awarded.

(217 Pa. 82)

WILSON v. WERNWAG et al. (Supreme Court of Pennsylvania. Feb. 25, 1907.) 1. CONTRACT-CONSTRUCTION.

In construing a doubtful contract, the situation of the parties, circumstances, and relations of the property in regard to which they have negotiated are to be considered.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 11, Contracts, §§ 723-770.]

2. DAMAGES-BREACH OF CONTRACT.

Plaintiff was a manufacturer, and defendant was his sole agent. In 1890 plaintiff proposed that, if defendants would remain in business for one year from January 1, 1891, plaintiff would guaranty the business against losses for 1 per cent., and defendant continued in business during that year, and late in the year plaintiff proposed a similar guaranty for the year 1892, which defendants accepted; but in April, 1892, they went out of business, and another firm conducted the business under its name, employing the same salesmen and clerks. Held that, for the breach of the contract of the defendants to continue the sale of plaintiff's goods during the whole year of 1892, plaintiff was entitled to recover the 1 per cent. guaranty on the total sales, less the losses.

3. SAME EVIDENCE.

Where defendants agreed to act as selling agent for plaintiff manufacturer for a certain year, and thereafter discontinued the business, and plaintiffs had agreed in the contract to guaranty defendants against losses from fail