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on a sidewalk, evidence held to sustain a verdict negligence the proximate cause of the acci. for defendant.

dent? (Ed. Note.-For cases in point, see Cent. Dig. But for the accumulation of the ice the acvol. 36, Municipal Corporations, 88 1739-1743.)

cident would not have happened. This, howAppeal from Court of Common Pleas, Phil

ever, does not bring the answer. Quite as adelphia County.

much could be affirmed with respect to any Action by Mary E. McCabe, by her father condition antecedent, however remote, which as next friend, and by John T. McCabe in his

was in the causative line. Responsibility own right, against the city of Philadelphia.

for negligence does not extend to every conFrom an order refusing to take off a nonsuit, sequence. It must have its limitations. The plaintiffs appeal. Affirmed.

law in such cases looks at the near, not the Argued before MITCHELL, C. J., and remote. Was there any intervening cause, BROWN, MESTREZAT, POTTER, ELKIN, distinct in itself, though related to and conand STEWART, JJ.

ditioned on what went before, to which the

accident may be referred? If so, defendant's Frederick H. Warner and Arthur B. House

relation to such intervening cause is the mat. man, for appellants. Harry T. Kingston,

ter to be adjudged. By its sponsibility for Asst. City Sol., and John L. Kinsey, City, Sol.,

that, is its negligence to be determined. The for appellee.

immediate and direct cause of plaintiff's ac

cident was the hole in the ice. She did not STEWART, J. The accident to the plain- slip on the ice, nor did she fall in consequence tiff, complained of as the result of defend of any obstruction it presented. She fell be ant's negligence, happened in this wise: At cause her foot and limb plunged into a naran early hour in the morning, while it was row hole in the ice in the middle of the pave. yet dark, and darker than usual because of ment. That this hole, covered as it was by the fact that the street lighting had been a thick coating of ice, was a dangerous pit. temporarily interrupted, plaintiff in passing fall, cannot be gainsaid. Any one stepping along the sidewalk encountered a sheet of ice into it incautiously would most likely be in. that covered the entire pavement, from house jured just as the plaintiff was. Not so with line to the curb, for a considerable distance. respect to walking upon the ice itself. The Plaintiff was walking upon the ice, about continued use of the way by the public, with the middle of the way, when she stepped into the ice upon it, for months, and by the plaina hole covered with a thin coating of ice tiff herself, without injury, shows the marked and for this reason unobserved by her—which difference between the two circumstances, extended through the body of the ice to the and enables us to see how the hole may, and pavement beneath and was filled with water. should, be regarded as an independent, and The hole was just large enough to admit the at the same time the proximate, cause of foot, and into It she plunged with one limb up plaintiff's injury. If the hole was there by to her knee. The rest of her person was

the defendant's direct agency, negligence in thrown back on the ice, and her injury re leaving it uncovered would follow necessarily, sulted from this fall. The ice at this point and responsibility in connection therewith. was between two and three feet deep, and But this is not pretended. If the effort be the hole as described by the plaintiff "was to derive responsibility by connecting it with just a round little bole, like as if some one the ice accumulation, such result can only had cut it through.” To the question what

be reached in case it is made to appear that was its diameter in inches, she replied: "I pitfalls of this character are the probable could not tell you that, I know it came up and natural consequence of ice accumulation, to my knee. My stocking was all wet nearly and therefore to be anticipated. No one at: up to my knee.” When asked whether she tempted to account for the existence of the had slipped, she said: "My foot went right hole into which plaintiff fell. That it was into the hole, and it threw me, of course, on

the work of the elements does not seem probmy back. I did not slip at all; just went able. Its size, location, and character, and right into the hole.” In another part of her the fact that it was filled with water, wheretestimony she described the hole as just large as all about it was solid, compact ice, would enough to admit her foot. The ice that cov seem to indicate some other origin. If reered the pavement was the accumulation of sulting from other than natural causes, neg. weeks, if not months; the weather having ligence could not be imputed to the defendant been unusually and continuously severe. It from the mere fact that it was there. If had not prevented the public use of the pave from natural causes, experience and obserment, and, so far as we know, no one was in vation forbid tuat it should be regarded as jured in consequence of it. Plaintiff herself anything less than extraordinary, so unusual had passed over it daily without accident, and that the defendant could not be charged with had never observed the hole into which she negligence in not forseeing it. As was said stepped the morning of the accident. If in South Side Pass. Railway Company V. negligence on the part of the defendant in Trich, 117 Pa. 390, 11 Atl. 627, 2 Am. St. Rep. suffering so great an accumulation of ice to 672: “The utmost that can be said would remain for so long a period on the pavement be that such a consequence might possibly be conceded, the question remains, was such happen. But things or results which are on

show that the cause of the injury was the intervening and wrongful act of a stranger, for which the city was not responsible.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 8, Bridges, $ 119.)

Appeal from Court of Common Pleas, Philadelphia County,

Action by Andrew Widger, by his father, against the city of Philadelphia. From an order refusing to take off a nonsuit, plaintiff appeals. Affirmed.

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

David Lavis, Charles Knittel, and J. Fletcher Budd, for appellant. Thomas Raeburn White, Asst. City Sol., and John L. Kinsey, City Sol., for appellee.

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ly possible cannot be spoken of as either probable or natural. For the latter are those things or events which are likely to happen and which for that reason should be foreseen. Things which are possible may never happen, but those which are natural or probable are those which do happen, and happen with such frequency or regularity as to become a matter of definite inference. To impose such a standard of care as requires, in the ordinary affairs of life, precaution on the part of individuals against all the possibilities which may occur, is establishing a degree of responsibility quite beyond any legal limitations which have yet been declared."

The accumulation of ice being the proximate cause, and the defendant not being chargeable with negligence simply because of the existence of the hole, can its negligence be derived from other circumstances? This question remains to be considered. Plaintiff, though she had passed over this way daily, had never observed the opening in the ice. Two of her witnesses testify that they had seen such an opening in the imme diate locality where the accident happened. Their testimony does not certainly and clearly identify the opening they saw with that which occasioned plaintiff's fall. That however, would be a question for the jury. One saw a hole a week before the accident, and again three days before. The other saw it once, about a week before. It is not pretended that the authorities had actual notice of the existence of the hole. According to plaintiff's testimony it was a pitfall, concealed from her by a covering of ice. The testimony of all the witnesses was that the weather was unusually severe, and so continuous that the ice on the pavement was constantly accumulating. Under such conditions, the opening would be likely to escape observation at most times, except as searched for. Certainly it was not so obvious that an officer exercising reasonable supervision of the highway should have observed it; and this is the measure of defendant's dutyreasonable supervision, not actual search for defects : Duncan v. Pennsylvania, 173 Pa. 550, 34 Atl. 235, 51 Am. St. Rep. 780. Had it been an open and exposed danger, obvious to those charged with supervision, had they exercised reasonable vigilance, notice to the defendant would have been imputed from the length of time it had been allowed to remain there; but this element, too, is lacking in the case. The motion for nonsuit was properly allowed.

Judgment afirmed.

FELL, J. The city of Philadelphia maintains a drawbridge on the line of a street, which crosses a stream navigable by small vessels. Near the entrance to the bridge there are gates over the cartway and over the footways, which are kept closed while the draw is open. These gates are so connected by cogwheels that they open and close at the same time; the force applied to move either being transmitted to the other.

The cogwheels are four or five feet from the ground, and about twenty inches in diameter. The plaintiff, a boy under seven years of age, climbed on a girder of the bridge while the draw was open to see boats go through, and placed his hand on the cogwheels, which were directly over the girder on which he was standing. The bridge tender had closed the gates and fastened them by means of a heavy iron latch or bar, before opening the draw. After he had closed the draw, and was engaged in driving wedges which fasten. ed it in place, a stranger unbarred the gate over the cartway and pulled it partly open, thus moving the cogs and injuring the plaintiff's hand. On this state of facts a nonsuit was entered.

The city owed to the plaintiff the duty not wantonly to expose him to danger, but it was under no duty to protect him from a danger not to be anticipated, which could not have resulted from the ordinary and lawful use of the bridge, nor to maintain its structures in such a way as to prevent the possibility of an accident to a child. The exposed cogwheels were not in themselves dangerous, and no one in the proper use of the bridge could be in. jured by them. The case cannot be distinguished in principle from that of Oil City, etc., Bridge Co. v. Jackson, 114 Pa. 321, 6 Atl. 128, in which a child of seven years of age in crossing a bridge walked on a large gas pipe located at the side of the footway, and slipped and fell through an opening in the bridge. Moreover, the proximate cause of the accident was the intervening and wrongful act of a stranger, for which the city was in no way responsible.

The judgment is affirmed.

(217 Pa. 161)

WIDGER V. CITY OF PHILADELPHIA. (Supreme Court of Pennsylvania. Feb. 25, 1907.) BRIDGES MUNICIPAL CORPORATION-PERSONAL INJURIES-PROXIMATE CAUSE-EVIDENCE.

In an action against a city by a boy for injuries received on a bridge, evidence held to

(217 Pa. 190) CONSOLIDATED NAT. BANK v. MCMANUS. (Supreme Court of Pennsylvania. March 4,

1907.) 1. DISMISSAL AND NONSUIT-LEAVE OF COURT.

Though a discontinuance must be by leave of court, it is the universal practice in the state to assume such leave.

[Ed. Note.-For cases in point, see Cent. Dig. voi. 17, Dismissal and Nonsuit, 8 30.] 2. SAME-MOTION TO SET ASIDE.

A motion to set aside a discontinuance is addressed to the sound discretion of the trial court.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 17, Dismissal and Nonsuit, 88 86, 183.] 3. SAME.

Where a rule is taken by defendant to strike off a discontinuance, and is discharged by the court, such action is equivalent to leave to discontinue, and the court is under no obligation to reconsider the matter because defendant failed to present his whole case at the hearing of the rule.

Appeal from Court of Common Pleas, Philadelphia County.

Action by the Consolidated National Bank against Michael McManus. From an order dismissing the application to strike off discontinuance, defendant appeals. Affirmed.

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

James W. M. Newlin, for appellant. George R. Van Dusen and John G. Johnson, for appellee.

ant then filed a petition for a rule to show cause why the order discharging the previous rule should not be rescinded and the discontinuance be set aside. This petition the court dismissed, and from this action the present appeal was taken. Having considered and discharged the rule, the court was not bound to reconsider the matter on the new and amplified application by petition. If appellant failed to present his whole case at the hearing of the rule, as fully as his present counsel now thinks desirable, the fault or misfortune was his own. He was bound to present his whole case, and his failure to do so did not entitle him to a second hearing. The court might ex gratia have given him a second rule, but was under no obligation to do so.

Judgment affirmed.

(217 Pa. 148) LINDSAY V. DUTTON. (Supreme Court of Pennsylvania. Feb. 25, 1907.) 1. BILLS AND NOTES-PLEADING-AFFIDAVIT OF DEFENSE.

In an action on a note, the affidavit of defense alleged that the payee had brought a former suit on the note which was discontinued without defendant's knowledge. Held, to state no defense. 2. SAME-DEFENSES.

An allegation in an affidavit of defense, in an action on a note, that the indorsement was after maturity, with full notice of the maker's defense, will avail defendant only so far as he has a defense against the payee. 3. SAME-AFFIDAVIT OF DEFENSE.

An affidavit of defense, in an action on a note, that defendant believes the collateral was more than sufficient to pay the note, is insufficient.

Appeal from Court of Common Pleas, Philadelphia County.

Action by Daniel S. Lindsay against Lewis G. Dutton. From an order making absolute rule for judgment for want of a sufficient affidavit of defense, defendant appeals. Reversed.

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

William S. Divine, for appellant. John Eckstein Beatty, for appellee.

PER CURIAM. A discontinuance in strict law must be by leave of the court, but it is the universal practice in Pennsylvania to assume such leave in the first instance. This was stated to be the established practice as long ago as 1813, in Schuylkill Bank v. Macalester, 6 Watts & S. 147, where it is said per curiam: “All the cases show that a dis. continuance must be founded on the express or implied leave of the court. In England this leave is obtained on notion in the first instance, and here it is taken without the formality of an application, but subject to be withdrawn on cause shown for it; that is the whole difference.” The causes which will move the court to withdraw its assumed leave and set aside the discontinuance are addressed to its discretion, and usually involve some unjust disadvantage to the defendant, or to some other interested party, such as a surety. The fact that a case is at issue on a plea of set-off is not sufficient to prevent the plaintiff from taking a nonsuit. McCredy v. Fey, 7 Watts, 496; Gilmore v. Reed, 76 Pa, 462. And without some other hardship the same rule applies to a discontinuance, in actions at law. The practice in equity is somewhat stricter.

The plaintiff, following the usual practice, entered a discontinuance on the assumed leave of the court. A rule was then taken by defendant to strike off the discontinuance, which the court heard and discharged. This was equivalent to a grant of leave. Defend

MESTREZAT, J. This is an action by an indorsee against the maker of a negotiable collateral promissory note for $1,525, dated September 9, 1903, made by the defendant, and payable September 17, 1903, to the order of Charles S. Warner, who indorsed and delivered it after maturity to the plaintiff. By the note it appears that the maker de livered to the payee certain bonds and stocks as collateral security for its payment at maturity, and authorized the holder of the note to sell the collateral at public or private sale at any time or times thereafter without any further notice to the maker. The defendant filed an affidavit of defense which was declared insufficient by the court below, and

judgment was entered in favor of the plain pears that the collateral was disposed of by tiff and against the defendant for the full the holder of the note strictly in accordance amount of the note and interest. The de with the terms of the instrument itself. fendant alleges the court erred in entering There is a distinct averment in the affidavit judgment against him, and has taken this of defense that there was paid on account appeal.

of the note in suit at the time it was given, The statement avers that the payee, “for or shortly thereafter, the sum of $250. To valuable consideration, indorsed and deliver this extent we think the affidavit is suffied said note with collateral, to plaintiff." cient. As to the other matters set up in the The plaintiff concedes that the note was affidavit, they disclose no reason why the transferred to him after maturity, and ad plaintiff should not have judgment for the mits that the defendant is entitled in this amount of the claim. The court below, suit to any defense he might have against therefore, should have entered judgment for the original payee. There is little clearness the plaintiff for the amount of the note, less or precision about the affidavit of defense. $250 as of the date it is alleged to have been In drawing it, the defendant seems to have paid, with leave to the plaintiff to proceed ignored the well-established rules requiring for the recovery of the balance which he precision and definite averments in affidavits claims to be due and unpaid. of defense. It sets up no sufficient defense The judgment of the court below is reexcept the payment of $250 which, it is versed, with instructions to enter judgment averred, was paid on the note in suit. To in conformity with this opinion. that extent we think the affidavit is sufficient. The averment in the affidavit that the payee had brought a former suit on the

(217 Pa. 159) note, and that it was discontinued without MEYERS V. CITY OF PHILADELPHIA. the defendant's knowledge or consent, is no (Supreme Court of Pennsylvania. Feb. 25, defense in this action. If the discontinuance

1907.) was improperly or illegally entered the de 1. MUNICIPAL CORPORATIONS STREET IMfendant should have applied to the court to

PROVEMENTS-INDEPENDENT CONTRACTORS.

Property owners, working on a city street strike it off. So long as the record of that

in front of their properties under an ordinance, case shows that the suit has been discoutin are not contractors exercising an independent ued, we must, in this action, treat it as hav. employment, over whom the municipal authori

ties have no control. ing been regularly and legally done. The ac

2. SAME-OBSTRUCTIONS IN STREET. tion of the court in permitting that case to

Where a city requires a property owner to be discontinued by the plaintiff cannot be reset a curb, and the owner contracts with a reviewed by this court on this appeal. The

curbsetter to do the work at a fixed price, and

the curbsetter leaves a pile of old curbstones allegation in the affidavit of defense, that

on the cartway on finishing the work, and they the indorsement was after maturity with remain in the street for four or five days, when full notice of the maker's defense, will only a cab is overturned by collision therewith, the avail the defendant, so far as he may have

driver may recover against the city for the in

juries received. a defense against the payee. As we have already seen, the plaintiff admits that the Appeal from Court of Common Pleas, indorsement and transfer to him was after Philadelphia County. the maturity of the note. The defendant, Action by Charles G. Meyers against the therefore, can set up in this action any de city of Philadelphia. Judgment for plainfense he may have against the payee. It is tiff, and defendant appeals. Affirmed. įmmaterial, however, in this case, as between Argued before MITCHELL, C. J., and . the plaintiff and the defendant, whether the FELL, BROWN, MESTREZAT, POTTER, note was transferred before maturity and | ELKIN, and STEWART, JJ. for value, unless the defendant has, and suffi Robert Brannan, Asst. City Sol., Francis ciently avers in his affidavit, a sufficient de M. McAdams, and John L. Kinsey, City Sol., fense against the payee. There is no merit for appellant. Fred Taylor Pusey, for apin the averment as a defense in this action pellee. that the defendant believes that the collateral was of sufficient value to more than pay FELL, J. The city of Philadelphia gave the note in suit. The defendant admits that notice to the Monument Cemetery Company it was not readily marketable. In addition to reset the curb on the part of Fifteenth to that admission, the terms of the note show street, about two squares in length, which that the holder was authorized to sell the

passes through its grounds. The cemetery collateral at public or private sale. The company entered into a contract with a curbstatement avers that the plaintiff gave de setter, who agreed to do the work at a fixed fendant written notice that the collateral price per foot. He left a pile of old curbwould be sold at public sale at a certain time stones that were unfit for use on the asphalt and place, that the defendant was present in pavement between the new curb and the car person at the sale, and that the collateral track. This pile was one foot high and exwas then and there sold for a nominal con tended into the street two feet from the curb, sideration. These facts are not denied in and on the night of the accident there was the affidavit of defense. It, therefore, ap no light near it to give notice to persons driv

ing on the street. The plaintiff was the The note in suit was in the following form: driver of a hansom, and ran into the pile of “$1,500.00. Newark, N. J., Feb. 18, 1904. stones at midnight. His cab was overturned Four months after date we promise to pay to and he was injured. The stones had been in the order of Clay Product Supply Co. Fifteen the street four or five days before the acci hundred and 0-100 dollars, at Essex Co., Na

ent, and there was evidence tending to tional Bank. Value received, with interest. show that the work at this place had been [Signed] Van Keuren & Son, Wm. Van Keucompleted for that length of time. The city ren, President." Indorsed: “Pay to the orseeks to relieve itself of liability, on the der of Hickory Run Brick Co. Clay Product ground that a municipal corporation is not Supply Co., J. Mortimer West, Jr., Treasurresponsible for an injury caused by the negli er.” “Hickory Run Brick Co., S. N. Weaver, gence of an independent contractor, But Treasurer." “Duly protested for nonpayment. this principle has no application to the case. Costs of protest, $1.85.” Other facts appear Property owners, engaged in work on a city

by the opinion of the Supreme Court. The or borough street in front of their properties, trial judge gave binding instructions for, in obedience to the requirements of an ordi

plaintiff. nance, are not com actors exercising an in

Argued before MITCHELL, C. J., and dependent employment, over whom the mu

FELL, BROWN, MESTREZAT, POTTER, nicipal authorities have no control. Trego ELKIN, and STEWART, JJ. v. Honeybrook Borough, 160 Pa. 76, 28 Atl. 639. A municipality may not be responsible

Clifton Maloney, for appellant. Thomas F. for the negligence of an owner of property Gross, for appellee. engaged in work on a street, done on notice from it, where the negligence is in the man STEWART, J. This was an action on a ner of doing the work on the part of the promissory note by holder against indorser. street necessarily occupied for that purpose, The defense attempted was twofold: First, but its duty to exercise reasonable supervi. failure of consideration; and, second, that sion of streets thrown open for travel always the plaintiff had discharged all liability on continues. The placing of the rejected curb the note in suit by retaining another which stones in the street was not a part of the was given and intended as a renewal. An eswork of resetting the curb, but the unauthor sential preliminary to the first defense was ized use of the street as a place of storage denial that plaintiff was a holder in due for material that should have been placed

course, The facts were these: Van Keuren elsewhere or at once removed. It was al & Sons had contracted to do certain municilowed to remain there, a menace to travel,

pal paving work in the city of Newark. The during the progress of the work and after

contract provided that the brick to be used its completion, and the question of construc should be subject to the acceptance of the tive notice to the city was for the jury.

city authorities. Van Keuren & Sons conThe judgment is affirmed.

tracted with the Clay Product Supply Company, the defendant, to furnish the brick for

the work, and the Clay Product Supply Con(217 Pa. 128)

pany, not being a manufacturer, engaged ALLENTOWN NAT. BANK V. CLAY

them of the Hickory Run Brick Company. PRODUCT SUPPLY CO.

Each contract contained the stipulation that (Supreme Court of Pennsylvania. Feb. 25,

the brick were to be subject to the acceptance 1907.)

of the city authorities. The Hickory Run 1. Bills AND NOTES-BONA FIDE HOLDER. Where a debtor gives a bank a note on

Brick Company, in order to fill its contract, which he is a second indorser, and the bank on was compelled to borrow money to carry receipt of the note extends time to the debtor, on its operations. The Allentown National and applies the proceeds of the note as a credit to the debtor, and relinquishes bills of lading

Bank, the plaintiff, discounted certain notes pledged as collateral, the bank is a holder for of this company, receiving, as collateral sevalue, if without notice of any infirmity in the curity at the same time for their payment, instrument, or any right of set-off in connection

the bills of shipment of brick to the Product therewith. [Ed. Note.-For cases in point, see Cent. Dig.

Supply Company duly assigned and transfervol. 7, Bills and Notes, & 908.]

red to the bank. Such of these assigned bills 2. SAME — RENEWAL - EVIDENCE OF ACCEPT

as were paid were paid by the Product SupANCE.

ply Company directly to the bank, and the Where a bank refuses to accept a renewal amounts were credited to the account of the note, acceptance is not shown by the fact that, when it wanted to make a demand on the orig

Hickory Run Brick Company. Some of the inal note, it attached to it the renewal note, so

brick for which bills of shipment had been that both could be restored to the maker on assigned to the bank, were condemned by payment.

the city authorities. Van Keuren & Sons Appeal from Court of Common Pleas, Phil withheld payment to the Product Supply adelphia County.

Company for these, and that company, in Action by the Allentown National Bank turn, withheld payment to the bank on the asagainst the Clay Product Supply Company. | signed bills. Thereupon the bank demanded Judgment for plaintiff, and defendant ap payment of the note of the brick company, peals. Affirmed.

which was then due, and also made demand

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