(107 A.) Appeal from Court of Common Pleas, Phil- mobile coming towards her was plainly in view. adelphia County. Trespass for personal injury by Mary A. Healy against C. Ardley Shedaker. Verdict and judgment for plaintiff for $2,500, judgment for defendant n. o. v. denied, and he appeals. Affirmed. Argued before BROWN, C. J., and FRAZER, WALLING, SIMPSON, and KEPHART, JJ. William G. Wright and Robert P. F. Maxwell, both of Philadelphia, for appellant. Sidney E. Smith, Martin J. Powers, and W. A. Rex Schultze, all of Philadelphia, for appellee. had she chosen to look, she took the risk of ge ing across the street in front of it, and was guilty of contributory negligence, and your verdict must be for the defendant." This adequately presented every phase of the appellant's case as predicated on the conduct of the appellee. [2] If the driver of the car did not know there was a street crossing at this point, this only emphasized the duty to use greater precaution while traveling in a city; as his car was without lights, this increased the caution necessary. Under such circumstances, it was his duty to have his car under such control that he might immediately stop it, or turn it aside from an object intercepting his path. The judgment of the court below is affirmed. (264 Pa. 482) HAUGHNEY v. MAHANOY CITY (Supreme Court of Pennsylvania. April 28, 1919.) 1. MUNICIPAL CORPORATIONS 796-GROSS NEGLIGENCE TO FAIL TO MAINTAIN BARRIERS IN STREET BORDERING ON CREEK. A city was grossly negligent in failing to place any barriers or guards along the retaining walls of a street running along the side of a creek from 7 to 11 feet below. 805(3)-CON 2. MUNICIPAL CORPORATIONS KEPHART, J. A mere statement of the facts is sufficient to sustain the judgment of the court below. The appellee was walking across Broad street, as it intersects Susquehanna avenue, in the city of Philadelphia. She had proceeded as far as the island safety zone, when she looked southward, from which direction travel would come. Seeing no vehicle approaching, she proceeded to a point about 20 feet from the safety zone, or 8 feet from the eastern curb, when she was struck by the appellant's car proceeding north on Broad street. The night was dark, the car had no lights, no warning sound of approach was given, and it was traveling at a speed of from 20 to 30 miles an hour as it passed a witness a short distance south of the crossing. This testimony, accepted by the jury, clearly established the defendant's negligence. It is the duty of the driver of an automobile, when approaching a street crossing, to have his car under such control that A pedestrian could not recover damages he may stop it so as to avoid an accident. from a borough, for injury from falling from [1] The appellant's contention that the ap- a street over a retaining wall, which had no pellee did not use due care in not constantly guards or barriers, into a creek from 7 to 11 looking to the south to ascertain the ap-feet below, where, though the night was dark, proach of the car, and was therefore guilty of contributory negligence as a matter of law, is without merit. It was dark, and the car was traveling without lights. Had she looked, she scarcely could have observed it in time to free herself from danger. This was, however, for the jury to determine. While it was her duty to look where she was going, and not rush blindly into danger, the facts in this case do not call for the application of that rule. She had looked before starting from the safety zone, and by continuing to look, under such circumstances, she would have added nothing to her security. At least, her act could not be declared negligence as a matter of law. That it was not due care was for the jury to say. The court below in its charge said: she was familiar with street, and had three other safer and better lighted routes, and where she testified that she did not look where she was going, and did not look for the creek, although she knew of it. Appeal from Court of Common Pleas, Schuylkill County. Trespass by Catharine Haughney against Mahanoy City Borough to recover damages for personal injuries. Verdict for plaintiff for $5,000, and from a judgment for defendant n. o. v., plaintiff appeals. Affirmed. Argued before BROWN, C. J., and STEWᎪᎡᎢ, MOSCHZISKER, WALLING, and KEPHART, JJ. A. D. Knittle, of Pottsville, for appellant. John F. Whalen and George Ellis, both of Pottsville, for appellee. "If the jury believes from the evidence that, when the plaintiff stepped from the isle of safety or concrete post base, she failed to look whether Mahanoy City Borough is a vehicle was approaching, and that the auto-a populous town. Market or Water street BROWN, C. J. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes runs through it from east to west, and Maha-, town through which the creek flowed. For noy creek flows along the middle of this 5 years her home had been on Market street. street throughout its entire length. The On the evening she was injured she left her creek-about 16 feet wide-is from 7 to 11 residence to accompany home a visitor who feet below the surface of the street, on each lived on a street north of Market street. side of which there is a roadway about 16 They crossed Market street at its intersecfeet wide. On each side of the creek there tion with Main street, where the creek was is a retaining wall reaching almost to the bridged over, and proceeding to Center street surface of the street, but there are no bar--the first street north of Market streetriers or guards of any kind along these walls turned to the west and walked three squares for the protection of pedestrians or travelers to Catawissa street, where they separated, on the street. On the night of March 22, the appellant starting to return home. She 1915, between 8 and 9 o'clock, the plaintiff, could have gone safely back by the way she a woman of about 60 years of age, while came, or she might have taken two other walking along the north side of Market perfectly safe routes. Each of the three street, fell over the retaining wall into the would have been over lighted streets, but, creek, and to recover damages for the inju- instead of taking a safe route, she proceeded ries sustained she brought this action, charg-down Catawissa street, and, upon reaching ing as the proximate cause of them the negli- Market street, turned eastward and proceedgence of the city in failing to maintain prop-ed a short distance along that unlighted er guards along the walls, A verdict result- street, with which, however, she was thored in her favor, but judgment was subse-oughly familiar. In a moment or two after quently entered for the defendant non ob- she entered it she fell into the creek. We stante veredicto, on the ground of her con- now quote from her testimony, indicating tributory negligence. most clearly that from the time she entered the street until she fell into the run, she had failed to exercise any care at all, though it was her plain duty to be careful in walking along what she well knew was an unguarded dangerous wall, slightly below the surface of the street: [1] That the city was grossly, criminally negligent in failing to guard Market street properly on each side of Mahanoy creek is beyond all doubt, and what we said of a situation somewhat similar, but not nearly so bad, may well be repeated here: "The testimony discloses the grossest carelessness on the part of the borough authorities in maintaining a dangerous pitfall, within the lines of the street, which the judicious expenditure of a few dollars could have obviated. Corbalis v. Newberry Township, 132 Pa. 9 [19 Atl. 44, 19 Am. St. Rep. 588]. If those whose duty it is to keep public highways in a reasonably safe condition for public use were properly dealt with and adequately punished for their negligence, there would be fewer nuisances and mantraps maintained in public streets and highways." Merriman v. Phillipsburg Borough, 158 Pa. 78, 28 Atl. 122. [2] Judgment was entered for the defendant in view of what the court below regarded as the plaintiff's "undoubted contributory negligence." No other conclusion was possible. In the opinion sustaining defendant's motion for judgment the learned court quoted page after page from the testimony of the plaintiff, demonstrating beyond all doubt that she had contributed by her own care lessness to the injuries she sustained. On this appeal we shall quote briefly, but sufficiently, from her testimony to show that her unfortunate fall was certainly due to a lack of proper care on her part as she was walking along Market street at night on her way to her home. "Q. Was it very dark? A. Yes; It was dark. Q. It was so dark that you could not see the road; you could not see the stone wall? A. I did not look to see it. I did not look to see a stone wall or anything else. I am not saying I did not see it. Q. I say, was it because it was dark that you could not see the stone wall? A. I told you I did not look to see. Q. Did not look to see? A. No, sir; I thought I was right, as I told you before. * * Q. How was it you did not see that stone wall until you were within a foot or a foot and a half back of it? A. I did not look to see it. I told you where I was going. I did not look for a stone wall. Q. But you did know that there was a part of the water course through the town open? A. Yes. Q. That it was closed up on the sides with stone walls and the top was open-you knew that, did you not? A. Yes, sir; I did. Q. Then you went along Water street, on the left-hand side going toward Main street, without looking to see whether you were at the point where the culvert before I was going to the paved part of the was open or closed, is that right? A. I told you street, and thought I was right and wanted to cross that. A. I was not looking to going into the creek. I did not look for the creek." In the face of the foregoing clear admissions by the plaintiff that she was not look The appellant lived on Mahanoy avenue-ing where she was going, when the duty of the second street south of and parallel to Market street. Her home was about a square and a half southeast of where she fell into the creek. She had lived in Mahanoy City for more than 45 years, and was thor doing so rested upon her, the court below would have erred if it had not held that she had been negligent as a matter of law, and the judgment non obstante veredicto was properly entered. Robb v. Connellsville Bor (107 A.) Traction Co., 181 Pa. 26S, 37 Atl. 414; Sick- expressed the opinion that epilepsy and conels v. Philadelphia, 209 Pa. 113, 58 Atl. 128; vulsions may have resulted from the acciDougherty v. Philadelphia, 210 Pa. 591, 60 dent, and there was some evidence upon Atl. 261. which to base that opinion. The assignments of error are overruled, and the judgment is affirmed. (264 Pa. 510) KAHN v. QUAKER CITY CAB CO. (Supreme Court of Pennsylvania. 1919.) April 28, [2] We do not have before us the language used by the appellee's counsel in his address to the jury, and we are in no position to judge the effect it might have had. The trial judge heard it, and, when he refused a new trial, this matter was given due consideration. Had the appellant felt the instruction with respect to the diminution of earning power was erroneous, it should have excepted to this portion of the charge; but when the trial judge, at the conclusion of the charge, requested counsel to suggest anything he had omitted, or any correction desired made, appellant's counsel was silent. We have frequently called attention to counsel's duty, when such requests are made. It is now too late to complain. The same may be said of the objection to the court's instructions as to the value of opinion evidence, in that it was based on an examination made long after the accident. INSTRUC 1. APPEAL AND ERROR 260(1)-OBJECTION TO ADMISSION OF EVIDENCE NOT REVIEW ABLE WITHOUT EXCEPTION. An assignment of error to the admission of the opinion of an expert in a personal injury case will not be considered, where no exception was taken to the evidence, and where the record shows some evidence on which to base such opinion. 2. APPEAL AND ERROR 263(1) – CEPTIONS. It is too late on appeal to complain of instructions, where no exceptions were taken thereto. and request of judge to counsel to make further suggestions as to anything he omitted was disregarded. What ever value these objections might have to the appellant, if properly brought on the record by way of an exception and an assignment of error, need not be discussed. They do not present sufficient grounds to convict the court of an abuse of discretion in refusing to grant a new trial. The assignments of error are overruled, Appeal from Court of Common Pleas, Phil- and the judgment is affirmed. adelphia County. Trespass by Simon Kahn against the Quaker City Cab Company to recover damages for personal injury. Verdict and judgment for plaintiff for $3,500, and defendant appeals. Affirmed. Argued before STEWART, MOSCHZISKER, FRAZER, WALLING, and KEPHART, JJ. (264 Pa. 515) BAILEY et al. v. YOUNG WOMEN'S CHRIS- Robert P. Shick, of Philadelphia, for ap- APPEAL AND ERROR 954(1)-PRELIMINARY pellant. Victor Frey and Augustus Trask Ashton, both of Philadelphia, for appellee. KEPHART, J. [1] The appellee, a passenger in a taxicab owned and operated by the appellant's servants, was injured when it collided with a tree near the crossing of Sixty-Second and Arch streets, West Philadelphia. The appellant admitted liability for the injuries sustained by the plaintiff, but objected to the manner in which the case was tried, and assigns as error the action of the court on its motion for a new trial. We have carefully read the evidence and the charges, and it is not clear to us how the court could have done otherwise than refuse the motion. There is nothing on record indicating an abuse of discretion. There is no exception to the evidence of Dr. Paul, who INJUNCTION, GRANTED ON SUFFICIENT Where there is apparently sufficient ground for the action of the court below in awarding a preliminary injunction, it will not be disturbed on appeal, and the status quo will be preserved until final hearing. Appeal from Court of Common Pleas, Philadelphia County. Bill in equity by Elsie Bailey and others against the Young Women's Christian Association of Philadelphia and others for an injunction to restrain defendants from preventing plaintiff from voting at a corporate election, and for the appointment of a master to supervise such election. From a decree awarding a preliminary injunction and appointing a master, defendants appeal. Appeal dismissed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Argued before BROWN, C. J., and MOSCH-| ZISKER, FRAZER, WALLING, and KEPHART, JJ. Theodore F. Jenkins and William H. Peace, both of Philadelphia, for appellants. Benjamin O. Frick, of Philadelphia, for appellees. KEPHART, J. [1] The appellee's petition for review of the adjudication sets forth that, by inadvertence and mistake, the widow's exemption of $300, with other items named by her, had been omitted in final settlement and were not considered by the auditing judge. The court below ordered a reaudit, and we have this appeal from the final decree in the reaudit. The only matter raised by the statement of questions involved is: "Should a review PER CURIAM. Where there is apparently sufficient ground for the action of the court below in awarding a preliminary injunction, it will not be disturbed on appeal; the status quo will be preserved until final hearing. Gemmell et al. v. Fox et al., 241 Pa. 146, 88 Atl. 426. It not appearing that the pres-petition was presented?" ent appeal ought to be made an exception to this rule, it is dismissed at the costs of the appellants. be granted, where there is no error of law appearing" in the distribution report, "and no new evidence alleged"; tribution has actually been made before the and "should such review be granted where dis (264 Pa. 486) In re CHAPPELL'S ESTATE. Appellant's sole question, argued orally and in the paper book, is the legality of the order to review. It was a proceeding in the orphans' court, controlled by the equitable principles that should guide a judge sitting as a chancellor in hearing and determining like matters. Whelen's Appeal, 70 Pa. 410, (Supreme Court of Pennsylvania. April 28, 428; Carney v. Merchants' Union Trust Co., 1919.) 252 Pa. 381, 385, 97 Atl. 470. It has statutory enactment for its authority. The act of 1. COURTS 202(4)-POWER OF ORPHANS' October 13, 1840 (P. L. 1841, p. 1), permits COURT TO CORRECT ERRONEOUS DECREE LIB- The orphans' court has power, not only under Act Oct. 13, 1840 (P. L. 1841, p. 1), but under its inherent power, to correct an erroneous decree, and under such power it may even protect parties from their own mistakes, and where no rights have been changed in consequence of the decree such power of correction will be liberally exercised. 2. EXECUTORS AND ADMINISTRATORS 315(3) -BILL OF REVIEW FOR CORRECTION OF DISTRIBUTION IGNORING WIDOW'S EXEMPTION AND ALLOWANCE. A bill of review was properly allowed by orphans' court to permit a widow to claim her exemption and her allowance under Act May 6, 1909 (P. L. 459), where executor, on whom she relied, was absent from the audit on military service, and she was not represented by counsel, and her claim was not considered by auditing judge, and stock directed to be distributed had been voluntarily surrendered to an officer of court, and the rights of third parties had not intervened, and where she moved within a month for a review and promptly notified company issuing the stock not to transfer it. Appeal from Orphans' Court, Lackawanna County. such proceeding in the orphans' court where errors are alleged in the distribution or settlement of an estate within five years after final decree, provided the balance of the fund due shall not have been paid and discharged. But the power is inherent in the orphans' court to correct an erroneous decree independent of the act of 1840. Young's Appeal, 99 Pa. 74; Milne's Appeal, 99 Pa. 483. The court may correct its records in the interest of justice, even to protect parties from their own mistakes and blunders, and where no rights have changed in consequence of the decree, this power of correction will be liberally exercised. Sloan's Estate, 254 Pa. 346, 350, 98 Atl. 966. [2] At the first audit, the balance due, which was made up of stock in a company, was distributed in kind. It was duly assigned by the executor, handed to the trustee named to receive it, and given by him to the president of the company for transfer and the issuance of a new certificate. Complaint having been lodged against the transfer by the widow, it was returned to the trustee. Soon thereafter this petition for a review was presented, and the stock, by agreement, deposited with an officer of the court to await the determination of the question here involved. The evidence shows that the widow understood her claims for $300 exemption and for $5,000 allowance, under the act of 1909 (P. L in the first audit, and was not aware of any459), were both being considered by the court thing to the contrary until some days thereafter. The executor, who advised her, havA. A. Vosburg, of Scranton, for appellant. ing been called into the military service of H. M. Streeter, of Scranton, for appellee. the United States government, she was not Petition for bill of review in the matter of ART, MOSCHZISKER, FRAZER, and KEP- (107 A.) represented by counsel at the first audit. FRAZER, J. In 1910 plaintiff's decedent There is not the slightest pretense that her obtained from defendant an endowment claims were then considered by the auditing policy on his life for the sum of $15,000, projudge, and he expressly finds they were not. viding for the payment of an annual preThe property directed to be distributed was mium for a period of 15 years, or until the voluntarily surrendered, its character had death of the insured. On September 22, not changed, the rights of third parties had 1914, the insured obtained a loan of $3,510, not intervened, and no rights whatever were this amount being the full loan or cash value prejudiced by the action of the court. As of the policy on August 3, 1915, the date the the first decree of distribution was confirmed next annual premium became due. The inabsolutely on December 8th, and the widow sured died November 27, 1915, without havmoved to have the audit reviewed in the fol- ing paid either the premium due on August lowing month, having meanwhile served no- 3d preceding or the loan of $3,510. The tice on the company not to transfer the stock, executor of decedent then brought this action she should not be found guilty of laches in to recover the face value of the policy, less her efforts to secure a readjudication. It the loan and unpaid premium, claiming the was clearly a case which called for correc- policy continued in force under a provision tion; otherwise, a palpable wrong would have automatically extending it for a period of 8 been done. The court below did not err in years and 4 months after nonpayment of preordering the reaudit. mium. The trial judge directed a verdict The decree is affirmed, at the cost of the for defendant, subsequently, however, enterappellant. (264 Pa. 505) CARTER V. METROPOLITAN LIFE INS. CO. ing judgment non obstante veredicto for plaintiff. The contention of defendant in this appeal is that failure to pay the loan, which in amount was identical to the full face surrender value of the policy at the time of default in payment of premium, was (Supreme Court of Pennsylvania. April 28, equivalent to the exercise of an option under 1919.) 1. INSURANCE 1792-RIGHTS OF ADMINISTRATOR ON DEATH OF INSURED WITHOUT PAYMENT OF LOAN ON TERM POLICY DETER MINED. the policy to take its cash value; consequently nothing remained in reserve to purchase paid-up endowment or term insurance. [1] A clause in the policy relating to payment of premium states: is payable." Under policy allowing insured, within 3 "Except as herein provided the payment of months after any default, to accept its cash a premium or installment thereof shall not value or term insurance from default for its maintain the policy in force beyond the date face amount, and providing that failure to re-when the next premium or installment thereof pay a loan, with interest, should not avoid it, unless indebtedness equaled or exceeded its loan value, the administrator of insured, who secured a loan to full cash value as of date of next annual premium and died within three months of such date, without having paid loan or premium, might recover face value of policy, less loan and unpaid premium, where pre-paid premiums should be deducted from the scribed notice of avoidance was not given. There is a further provision allowing a grace period of 31 days for payment of all premiums after the first, and if death should occur during that time the amount of un sum payable under the policy. A subsequent paragraph provided that, after the policy had been in force for 3 years, the holder"within 3 months after any default, may elect (a) to accept the cash value of this policy, er (b) to have the insurance continued in force as term insurance from date of default for its Appeal from Court of Common Pleas, Sus- face amount, without participation and withquehanna County. Assumpsit on a life insurance policy by one Carter against the Metropolitan Life Insurance Company. Verdict for defendant, and from the entry of a judgment for plaintiff n. o. v., defendant appeals. Affirmed. Argued before STEWART, MOSCHZISK. ER, FRAZER, WALLING, and KEP HART, JJ. Benj. R. Jones, of Wilkes-Barre, for appellant. * If the out the right to loan or cash value, or (c) to Under the heading "Loans" the insured John D. Miller and Allan D. Miller, both of is permitted to borrow from the company, Susquehanna, for appellee. after three annual premiums have been paid, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |