Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

Philadelphia, at which he usually had his horses shod. There he met Charles F. Johns, a friend of his, who was an employé of Mr. Gaffney. Johns got on the wagon, and they drove up Second street and west on Widley street, then through Widley street and another street around Berks street, then through Cambridge street and over Fourth street to Girard avenue, and west on Girard avenue to Sixth street and Girard avenue in front of the Eagle Hotel, where Dr. Delany, a veterinarian, resided and had his office. Gallagher had gone up here for the purpose of seeing Dr. Delany for advice relative to the horses. Gallagher and Johns got off the wagon and went into the bar with Dr. Delany, where they had one drink, and, after stopping there a few minutes, they returned to the wagon, and Gallagher and Johns got on the wagon. They then drove west on Girard avenue to Darien street, and turned north on Darien street, and stopped at 1222 North Darien street, where Johns lived. They went into Johns' house and remained there about 25 minutes, sending out for a ket

tle of beer. After that, they got on the wag

his team and deliver the goods to his employer. He had no certain hours of employment. We are not ready to conclude that he had even left his employment when he had gone to his friend's house on the way back to the employer's place of business, but we feel that it is unnecessary for us to decide this question, for, as stated above, even had he left the course of his employment, certainly at the time of the accident he had returned to it.

As a result of the injuries sustained as aforesaid, Harry Gallagher died June 23, 1917, at the Roosevelt Hospital, Philadelphia, Pa.

The compensation board affirmed the above findings of fact.

The court dismissed the appeal from the order of the compensation board.

Argued before BROWN, C. J., and STEW-
ART, FRAZER, WALLING, and SIMP-
SON, JJ.

Archibald T. Johnson and Russell Duane,
both of Philadelphia, for appellants.
Michael D. Hayes and Francis M. Mc-
Adams, both of Philadelphia, for appellee.

PER CURIAM. The question whether the decedent was engaged in the course of his employment at the time of the accident which resulted in his death was one of fact. The finding of the referee, approved by the com

on, turned the horses south on Darien street, and went south on Girard avenue, then east on Girard avenue to Fourth street, then south on Fourth street and over George street on their way directly to the defendant's place of business, which was at 1025 Germantown avenue, Philadelphia. After they had cross-pensation board, was "at the time of the oced Third street and were near Bodine street just east of Third street, Gallagher fell off the wagon and sustained certain injuries. When the wagon was returned to the defendant's place of business, it had on it all of the things for which Gallagher had been sent, except the freight from the Ericcson Line Pier.

currence of the injury Gallagher was in the course of his employment with the defendant." This is conclusive: Poluskiewicz v. Philadelphia & Reading Coal & Iron Co., 257 Pa. 305, 101 Atl. 638; Messinger v. Lehigh Valley R. R. Co., 261 Pa. 336, 104 Atl. 623. Appeal dismissed and award affirmed.

TRANSIT CO.

(263 Pa. 559)

(Supreme Court of Pennsylvania. Feb. 17,
1919.)

STREET RAILROADS 99(5) — INJURY ON
TRACK-NONSUIT CONTRIBUTORY NEGLI-

GENCE.

In addition to being a driver, Gallagher took care of the stable, and ordinarily his work would be finished on Saturday at about 12 or 1 o'clock, and he would return in the BERGIN et ux. v. PHILADELPHIA RAPID evening to take care of the horses. At the time of the occurrence of the injury, Gallagher was in the course of his employment with the defendant. He had gone to the ho tel to see Dr. Delany in order that he might consult him with reference to the defendant's horses, of which he had charge; and, even if it might be considered that, in going to his friend's house on Darien street above Girard avenue, it was out of the direction in which he should have gone had he gone directly back to the place of business from the veterinarian's office, certainly, after he had returned to Sixth street and Girard avenue, and was proceeding from there to his employer's place of business, he had returned to the course of his employment. He had not relinquished his employer's team nor the goods which he was taking to his employer's place of business, and he was on his way to return

[ocr errors]

A nonsuit is properly entered in action against street railway company for personal injuries, where there is no evidence of negligent operation of the street car, which struck carriage in which plaintiff was riding, and it appears that driver of carriage suddenly turned into track in front of approaching car.

Appeal from Court of Common Pleas, Philadelphia County.

Trespass by John Bergin and Mary Bergin, his wife, against the Philadelphia Rapid Transit Company, to recover damages for personal injuries. From a judgment refusing to

(107 A.)

take off a compulsory nonsuit, plaintiffs ap- plaintiffs, based upon the covenants of a lease. peal. Affirmed.

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

John J. McDevitt, Jr., Harry A. Gorson, and W. W. Mentzinger, Jr., all of Philadelphia, for appellants.

Bernard J. O'Connell, of Philadelphia, for appellee.

PER CURIAM. On the trial of this case there was not the slightest evidence of any negligent operation of the car of the defendant which ran into the carriage in which the injured plaintiff was riding. An averment in the statement of claim is that the car was running at a high and excessive rate of speed. There is not a word in the testimony as to its speed. The case as presented showed that the driver of the carriage suddenly turned over onto the track of the defendant company in front of the approaching car. Judgment affirmed.

[blocks in formation]

Judgment for plaintiffs in each case, and de-
fendant in each case appeals. Appeals
argued together, and each judgment affirmed.
The lower court, per Ferguson, J., filed the
following opinion in the case of Ridge Ave.
Passenger Ry. Co. v. Philadelphia Rapid
Transit Co.:

which is invoked to require it to pay the taxes
The covenant which binds the defendant, and
imposed by the federal government under Act
Cong. Sept. 8, 1916, c. 463, 39 Stat. 756, as
amended by Act Oct. 3, 1917, c. 63, 40 Stat.
300, requires the defendant to "pay all taxes,
charges and assessments now or hereafter law-
fully imposed upon Ridge avenue [the plaintiff]
or for which Ridge avenue would otherwise in
any wise be liable or chargeable on account of
its *
*
* earnings * * or profits."

At the time the lease which contained this covenant was executed the federal tax laws above referred to were not in existence. The covenant provided, however, for the payment of all taxes thereafter lawfully imposed, and the question to be determined is whether or not such taxes are within the meaning of the covenant.

We think the case is ruled by North Pennsylvania R. R. Co. v. Phila. & Reading Ry. Co., 249 Pa. 326, 95 Atl. 100. In that case the covenant provided for the payment of all taxes upon the yearly payments which the lessee was obligated to pay the lessor as rent. It was held that the lessee in that case was obliged to pay the amount assessed as income tax under the act of Congress of October 3, 1917. In that case the tax was not imposed on the "yearly payments" or "rent" as such, but was laid upon the net income. In the case at bar the income tax is laid upon net income, and the socalled war excess profits tax is laid upon income, received during the calendar year preceding the time when the tax is assessed. So far as the covenant under consideration is concerned we think it amply sufficient to cover both the income tax and the excess profits tax, in view of the fact that any tax assessed upon the earnings or profits of the plaintiff were to be paid by the defendant. The plaintiff having turned over all of its property to the defendant, the only earnings or profits it can

Appeal from Court of Common Pleas, Phil- receive are from the lease, and whether the adelphia County.

tax be imposed upon income, net or gross, it is in fact imposed upon the rental. Earnings and profits under the circumstances must be regarded as was the yearly rent in the North Penn Case.

The distinction between a tax laid upon the lessor in a lease of this character, and one laid upon the premises or business, or receipts ent Chief Justice in Catawissa R. R. Co. v. thereof, is very clearly pointed out by the presPhila. & Reading Ry. Co., 255 Pa. 269, 99 Atl. 807.

Assumpsit by the Philadelphia City Passenger Railway Company, by the Thirteenth & Fifteenth Streets Passenger Railway Company of Philadelphia, by the Ridge Avenue Passenger Railway Company, by the Germantown Passenger Railway Company, by the Frankford & Southwark Philadelphia City Passenger Railroad Company, by the Union Traction Company of Philadelphia, by the Philadelphia Traction Company, by the Hestonville, Mantua & Fairmount Passenger Railroad Company, and by the Citizens' Passenger Railway Company of Philadelphia Judge Davis concurs in this opinion. against the Philadelphia Rapid Transit ComMcMICHAEL, P. J., concurs with the views pany, to recover amount of federal income of Judge Ferguson in the opinion he has filed tax and assessed profits tax assessed against in this case, but, as stated in an opinion this

We are of opinion, therefore, that judgment should be entered for the plaintiff for the full amount of its claim, with interest.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

[ocr errors]

day filed by him in the case of Union Traction | plaintiff's decedent. From a judgment refusCo. v. Phila. Rapid Transit Co., C. P. No. 3, ing to take off a nonsuit, plaintiff appeals. June Term, 1918, No. 3158, thinks the first Affirmed. clause of the covenant is sufficiently broad to cover the case, without consideration of the other clauses.

[blocks in formation]

(263 Pa. 558)

TILLI v. PHILADELPHIA & R. RY. CO.
(Supreme Court of Pennsylvania. Feb. 17,
1919.)

COMMERCE 27(5) — FEDERAL EMPLOYERS'
LIABILITY ACT-INJURY WHILE ENGAGED IN
INTERSTATE COMMERCE.

Argued before BROWN, C. J., and STEWART, MOSCHZISKER, FRAZER, WAL

LING, SIMPSON, and KEPHART, JJ.

John J. McDevitt, Jr., Samuel S. Herman, and Harry A. Gorson, all of Philadelphia, for appellant.

William Clark Mason, of Philadelphia, for appellee.

PER CURIAM.

This action was brought under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. §§ 8657-8665]). At the threshold

of the trial below plaintiff undertook to show

by the first two witnesses called that when

the decedent was killed the defendant com

pany was engaged in interstate commerce, but their testimony was just to the contrary. The tunnel in which he was working when struck by a train was not used at all by the defendant in the business of interstate commerce, and the judgment of nonsuit could not have been withheld. Hench v. Pennsylvania R. R. Co., 246 Pa. 1, 91 Atl. 1056, L. R. A. 1915D, 557, Ann. Cas. 1916D, 230; Mayers v. Union R. R. Co., 256 Pa. 474, 100 Atl. 967. Judgment affirmed.

(263 Pa. 569)

THOMPSON v. PHILADELPHIA & R.
RY. CO.

(Supreme Court of Pennsylvania. Feb. 17,
1919.)

RAILROADS 328(4) —INJURY ON TRACK-
CONTRIBUTORY NEGLIGENCE - FAILURE TO
STOP, LOOK, AND LISTEN.

A motorist attempting to cross tracks on a clear night who stops 125 feet from the crossing, where it is impossible to see the tracks, and after seeing a watchman waive a white lantern which he mistakes for a signal to go ahead, proceeds at the rate of 20 miles an hour without stopping at a place where he could see, and is struck almost immediately after seeing approaching train, is guilty of contributory negligence.

Appeal from Court of Common Pleas, Philadelphia County.

A nonsuit is properly entered in an action under the federal Employers' Liability Act (U. 8. Comp. St. §§ 8657-8665) for the death of an employé struck by a train where it appears that the tunnel in which he was working when killed was not used by the railroad in the busi-sonal injuries by David Thompson, Jr., Action in trespass for damages for peragainst the Philadelphia & Reading RailFrom an order refusing to Aftake off a nonsuit, plaintiff appeals. firmed.

ness of interstate commerce.

Appeal from Court of Common Pleas, Phila-way Company. delphia County.

Trespass under the federal Employers' Liability Act by Enrico Tilli, administrator of the estate of Vincenzo Tilli, deceased, against the Philadelphia & Reading Railway Company, to recover damages for the death of

At the trial the court entered a nonsuit in the following opinion:

The plaintiff was driving an automobile on Walnut street in the town of North Wales.

(107 A.)

Pa. He was injured by being struck by a loco-, injury results because of disregard of such opmotive on the tracks of the defendant company. portunity, the original act of stopping cannot The accident occurred February 18, 1915, at 10 operate to relieve the injured of the consequences o'clock at night. It appears that the plaintiff of contributory negligence." So in the case at was driving an automobile; that as he approach- bar, there was sufficient space and sufficient ed the tracks at the intersection of Walnut time, when the plaintiff arrived at the point bestreet he stopped in front of a hotel. He testi- tween the tracks, the space referred to between fied that he blew the horn of his automobile, the siding and the main line tracks upon which and that he got a signal from the flagman or the approaching train was coming, to have stopwatchman to come ahead. I am inclined to ped his automobile and to have seen the apthink that is an assumption on his part that it proaching train. As was said in Smith v. P. was a signal to go ahead, in view of the fact R. R. Co., 256 Pa. 501, 100 Atl. 956: "The that he had stopped his automobile, and that plaintiff's own testimony clearly establishes that the light which was waved by the watchman he saw the car almost at the instant he was at the crossing was a white light waved paral- struck; consequently the conclusion is unavoidalel to the street, Walnut street, at the point ble that he failed to take proper precautions plaintiff stopped, and at the only stop he made, for his safety. Though snow was falling at the 125 feet from the point where his automobile time, and the plaintiff stated he could scarcely was struck, it was impossible, according to his see the opposite side of the street, even this limtestimony, to see down the tracks of the railway ited vision, considering the slow movement of company. He failed to stop when he did ar- the train, was ample to enable him to avoid rive at a point where he could see along the the collision, had he stopped and looked, as line of the defendant's track and where stopping he testified he did. His admission that immediwould have been effective. On the contrary, he ately before coming in contact with the car he proceeded at the rate of 20 miles an hour across saw its front and side clearly indicates a failthe tracks. When he had crossed the track of a ure on his part to look until too late, and that siding between the rails of which and the he walked directly in front of the moving train. rails upon which the train which struck the Under such circumstances it is useless for plainplaintiff was approaching, there was a space of tiff to say he looked and listened, and did not about 15 feet unoccupied by rails where he could see the approaching train, which he and should have stopped and looked. There could not have failed to both see and hear, had were no safety gates at this crossing at the he taken such precautions for his safety as the time. I am brought to the conclusion that un- circumstances required. In Carroll v. R. R., der the law the plaintiff should have stopped, 12 W. N. C. 348, 349, this court said: "The looked, and listened where he could have seen injury received by plaintiff was attributable the approaching train. Notwithstanding the solely to his own gross carelessness. It is vain fact that he might have misunderstood the signal for a man to say that he looked and listened, of the person who was waving the lantern, such if, in despite of what his eyes and ears must an act on the part of a watchman does not have told him, he walks directly in front of a relieve the plaintiff of the legal duty to stop moving locomotive.' The same doctrine was at a point where he could see whether or not applied in R. R. Co. v. Bell, 122 Pa. 58 [15 there was an approaching train, and it is quite Atl. 561]; Marland v. Pittsburgh & Lake Erie evident that the train was very near to the plain-R. R. Co., 123 Pa. 487 [16 Atl. 623, 624, 10 tiff, in view of his testimony that he could not stop after he saw the train before he was struck; that he was struck almost immediately. It was not raining or snowing or a bad night. The plaintiff testified it was clear. Following out the line of cases as I read them, it was the duty of the plaintiff, before he attempted to cross, to bring his car to a stop and to have his car under such control that he could have stopped within 15 or 20 feet when he was knowI am ingly approaching a railroad crossing.

of opinion that this case is ruled by the case of Earle v. Phila. & Reading Ry., 248 Pa. 193, 93 Atl. 1001, Smith v. Penna. R. R. Co., 256 Pa. 501, 100 Atl. 956, and the later case of Reigner v. Penna. R. R. Co., 258 Pa. 257, 101 Atl. 995. In the latter case it was held: "It is the duty of a person about to cross railroad tracks to be observant so long as danger threatens; if between where the party stops and the tracks of the railroad the situation affords opportunity to discover an approaching train and

Am. St. Rep. 541]; Blight v. Camden & Atlantic R. R. Co., 143 Pa. 10 [21 Atl. 995]." Under all the evidence I grant the motion for a nonsuit.

The court subsequently refused to take off the nonsuit. Plaintiff appealed.

Argued before BROWN, C. J., and MOSCHZISKER, FRAZER, WALLING, and KEPHART, JJ.

John J. McDevitt, Jr., and Harry A. Gorson, both of Philadelphia, for appellant. Wm. Clarke Mason, of Philadelphia, for appellee.

PER CURIAM. This judgment is affirmed for the reasons given by the learned trial judge below for entering the nonsuit

(264 Pa. 13)

MCMILLEN v. STRATHMANN. (Supreme Court of Pennsylvania. Feb. 17, 1919.)

1. MUNICIPAL CORPORATIONS 705(3)—COLLISION WITH AUTOMOBILE-INJURY TO CHILD -CARE REQUIRED OF DRIVER.

Although the driver of an automobile truck, on seeing a boy across the street 40 feet away, was required to use care, he was not bound to anticipate that boy would run back across the street in front of the truck.

2. MUNICIPAL CORPORATIONS 706(8)-INJURY FROM AUTOMOBILE TRUCK-CARE REQUIRED OF DRIVER-INSTRUCTION.

In action for killing a boy by defendant's automobile truck, an instruction that driver was not compelled at all times to run so slowly that he could stop instantly, but was bound to bear in mind that children are apt to run into street, and to keep his truck under control so as to be able to stop in a reasonable time in an emergency, and that, if he saw danger in time, he should have controlled his car so as to stop and avoid accident, was proper.

[blocks in formation]

In an action for the killing of a boy by an automobile truck, an instruction that defendant was not liable unless the evidence convinced jury that accident resulted from driver's negligence, and, unless he neglected to do what he should have done, there could be no recovery, proper.

[ocr errors]

was

5. MUNICIPAL CORPORATIONS 706(8) — INJURY FROM AUTOMOBILE TRUCK-NEGLIGENCE-INSTRUCTION.

Where the only evidence suggesting negligent speed was failure to stop in time to avoid accident, an instruction that, unless truck was being driven at an excessive and dangerous speed, or boy was standing or playing in street sufficiently long enough for driver to have seen him and stop, verdict should be for defendant,

was not error.

6. APPEAL AND ERROR 216(3)—OBJECTIONS BELOW-MISSTATEMENT OF EVIDENCE.

Trial judge's mistake in statement of testimony to jury cannot be taken advantage of on appeal where his attention was not called thereto at the time, as a party cannot sit silent and take his chance of a verdict, and, after an adverse verdict, complain of matter which, if erroneous, would have been rectified and made harmless.

7. APPEAL AND Error

OF ERROR-REVIEW.

[blocks in formation]

Appeal from Court of Common Pleas, Philadelphia County.

Trespass by William McMillen, administrator of the estate of John McMillen, deceased, against Henry E. Strathmann, Jr., administrator of the estate of Henry E. Strathmann, deceased, to recover for death from being struck by defendant's automobile truck. Verdict for defendant, and judgment thereon, motion for new trial overruled, and plaintiff appeals. Affirmed.

Argued before STEWART, MOSCHZISKER, FRAZER, WALLING, and SIMPSON, JJ. William Linton, of Philadelphia, for appellant.

Robert T. McCracken and Roberts, Montgomery & McKeehan, all of Philadelphia, for appellee.

WALLING, J. This is an action of tresAt the time in pass for personal injuries. question John McMillen was 5 years of age and resided with his parents in Philadelphia on the west side of Amber street, which was of the width of 40 feet with a paved cartway 20 feet wide in the center thereof. On the afternoon of November 19, 1917, John left his yard and ran across the street to the east curb, where there was another small boy, and then turned and ran back across the street, and as he did so was struck by a north-bound autocar truck owned by Henry E. Strathmann, now deceased. The truck was heavily loaded with sand, and the boy was so injured that he died in 6 days. This suit brought before his death alleged negligence on behalf of the driver of the truck. The appeal is by plaintiff from judgment entered on a verdict for the defendant. We find no error in the record.

[1, 2] Unfortunately the child ran in front of the truck when it was close upon him, but the evidence tending to show negligence of the driver was very meager. The truck was 730(2)—ASSIGNMENT not running more than 10 or 12 miles an hour, and was stopped within less than its length. It was some 40 feet away when the boy first crossed the street, and there is no

The Supreme Court will not consider a complaint that the charge of the court was inade

« ΠροηγούμενηΣυνέχεια »