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on a sidewalk, evidence held to sustain a verdict for defendant.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, 88 1739-1743.]

Appeal from Court of Common Pleas, Philadelphia County.

Action by Mary E. McCabe, by her father as next friend, and by John T. McCabe in his own right, against the city of Philadelphia. From an order refusing to take off a nonsuit, plaintiffs appeal. Affirmed.

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

Frederick H. Warner and Arthur B. Houseman, for appellants. Harry T. Kingston, Asst. City Sol., and John L. Kinsey, City, Sol., for appellee.

STEWART, J. The accident to the plaintiff, complained of as the result of defendant's negligence, happened in this wise: At an early hour in the morning, while it was yet dark, and darker than usual because of the fact that the street lighting had been temporarily interrupted, plaintiff in passing along the sidewalk encountered a sheet of ice that covered the entire pavement, from house line to the curb, for a considerable distance. Plaintiff was walking upon the ice, about the middle of the way, when she stepped into a hole covered with a thin coating of iceand for this reason unobserved by her-which extended through the body of the ice to the pavement beneath and was filled with water. The hole was just large enough to admit the foot, and into it she plunged with one limb up to her knee. The rest of her person was thrown back on the ice, and her injury resulted from this fall. The ice at this point was between two and three feet deep, and the hole as described by the plaintiff "was just a round little hole, like as if some one had cut it through." To the question what was its diameter in inches, she replied: "I could not tell you that, I know it came up to my knee. My stocking was all wet nearly up to my knee." When asked whether she had slipped, she said: "My foot went right into the hole, and it threw me, of course, on my back. I did not slip at all; just went right into the hole." In another part of her testimony she described the hole as just large enough to admit her foot. The ice that covered the pavement was the accumulation of weeks, if not months; the weather having been unusually and continuously severe. It had not prevented the public use of the pavement, and, so far as we know, no one was injured in consequence of it. Plaintiff herself had passed over it daily without accident, and had never observed the hole into which she stepped the morning of the accident. If negligence on the part of the defendant in suffering so great an accumulation of ice to remain for so long a period on the pavement be conceded, the question remains, was such

negligence the proximate cause of the accident?

But for the accumulation of the ice the accident would not have happened. This, however, does not bring the answer. Quite as much could be affirmed with respect to any condition antecedent, however remote, which was in the causative line. Responsibility for negligence does not extend to every consequence. It must have its limitations. The law in such cases looks at the near, not the remote. Was there any intervening cause, distinct in itself, though related to and conditioned on what went before, to which the accident may be referred? If so, defendant's relation to such intervening cause is the matter to be adjudged. By its responsibility for that, is its negligence to be determined. The immediate and direct cause of plaintiff's accident was the hole in the ice. She did not slip on the ice, nor did she fall in consequence of any obstruction it presented. She fell because her foot and limb plunged into a narrow hole in the ice in the middle of the pavement. That this hole, covered as it was by a thick coating of ice, was a dangerous pitfall, cannot be gainsaid. Any one stepping into it incautiously would most likely be injured just as the plaintiff was. Not so with respect to walking upon the ice itself. The continued use of the way by the public, with the ice upon it, for months, and by the plaintiff herself, without injury, shows the marked difference between the two circumstances, and enables us to see how the hole may, and should, be regarded as an independent, and at the same time the proximate, cause of plaintiff's injury. If the hole was there by the defendant's direct agency, negligence in leaving it uncovered would follow necessarily, and responsibility in connection therewith. But this is not pretended. If the effort be to derive responsibility by connecting it with the ice accumulation, such result can only be reached in case it is made to appear that pitfalls of this character are the probable and natural consequence of ice accumulation, and therefore to be anticipated. No one attempted to account for the existence of the hole into which plaintiff fell. That it was the work of the elements does not seem probable. Its size, location, and character, and the fact that it was filled with water, whereas all about it was solid, compact ice, would seem to indicate some other origin. If resulting from other than natural causes, negligence could not be imputed to the defendant from the mere fact that it was there. If from natural causes, experience and observation forbid that it should be regarded as anything less than extraordinary, so unusual that the defendant could not be charged with negligence in not forseeing it. As was said in South Side Pass. Railway Company v. Trich, 117 Pa. 390, 11 Atl. 627, 2 Am. St. Rep. 672: "The utmost that can be said would be that such a consequence might possibly happen. But things or results which are on

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 immediate 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 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

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.

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 fastened 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 injured 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. 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. vol. 17, Dismissal and Nonsuit, § 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, §§ 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.

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 1843, in Schuylkill Bank v. Macalester, 6 Watts & S. 147, where it is said per curiam: "All the cases show that a discontinuance 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

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.

LINDSAY v. DUTTON.

(217 Pa. 148)

(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.

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 delivered 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 plaintiff and against the defendant for the full amount of the note and interest. The defendant alleges the court erred in entering judgment against him, and has taken this appeal.

The statement avers that the payee, "for valuable consideration, indorsed and delivered said note with collateral, to plaintiff." The plaintiff concedes that the note was transferred to him after maturity, and admits that the defendant is entitled in this suit to any defense he might have against the original payee. There is little clearness or precision about the affidavit of defense. In drawing it, the defendant seems to have ignored the well-established rules requiring precision and definite averments in affidavits of defense. It sets up no sufficient defense except the payment of $250 which, it is averred, was paid on the note in suit. To that extent we think the affidavit is sufficient. The averment in the affidavit that the payee had brought a former suit on the note, and that it was discontinued without the defendant's knowledge or consent, is no defense in this action. If the discontinuance was improperly or illegally entered the defendant should have applied to the court to strike it off. So long as the record of that case shows that the suit has been discontinued, we must, in this action, treat it as having been regularly and legally done. The action of the court in permitting that case to be discontinued by the plaintiff cannot be reviewed by this court on this appeal. The allegation in the affidavit of defense, that the indorsement was after maturity with full notice of the maker's defense, will only avail the defendant, so far as he may have a defense against the payee. As we have already seen, the plaintiff admits that the indorsement and transfer to him was after the maturity of the note. The defendant, therefore, can set up in this action any defense he may have against the payee. It is immaterial, however, in this case, as between the plaintiff and the defendant, whether the note was transferred before maturity and for value, unless the defendant has, and sufficiently avers in his affidavit, a sufficient defense against the payee. There is no merit in the averment as a defense in this action that the defendant believes that the collateral was of sufficient value to more than pay the note in suit. The defendant admits that it was not readily marketable. In addition to that admission, the terms of the note show that the holder was authorized to sell the collateral at public or private sale. The statement avers that the plaintiff gave defendant written notice that the collateral would be sold at public sale at a certain time and place, that the defendant was present in person at the sale, and that the collateral was then and there sold for a nominal consideration. These facts are not denied in the affidavit of defense. It, therefore, ap

pears that the collateral was disposed of by the holder of the note strictly in accordance with the terms of the instrument itself. There is a distinct averment in the affidavit of defense that there was paid on account of the note in suit at the time it was given, or shortly thereafter, the sum of $250. To this extent we think the affidavit is sufficient. As to the other matters set up in the affidavit, they disclose no reason why the plaintiff should not have judgment for the amount of the claim. The court below, therefore, should have entered judgment for the plaintiff for the amount of the note, less $250 as of the date it is alleged to have been paid, with leave to the plaintiff to proceed for the recovery of the balance which he claims to be due and unpaid.

The judgment of the court below is reversed, with instructions to enter judgment in conformity with this opinion.

(217 Pa. 159)

MEYERS v. CITY OF PHILADELPHIA. (Supreme Court of Pennsylvania. Feb. 25, 1907.)

1. MUNICIPAL CORPORATIONS STREET IMPROVEMENTS INDEPENDENT CONTRACTORS.

Property owners, working on a city street in front of their properties under an ordinance, are not contractors exercising an independent employment, over whom the municipal authorities have no control.

2. SAME-OBSTRUCTIONS IN STREET.

Where a city requires a property owner to reset a curb, and the owner contracts with a curbsetter to do the work at a fixed price, and the curbsetter leaves a pile of old curbstones on the cartway on finishing the work, and they remain in the street for four or five days, when a cab is overturned by collision therewith, the driver may recover against the city for the injuries received.

Appeal from Court of Common Pleas, Philadelphia County.

Action by Charles G. Meyers against the city of Philadelphia. Judgment for plaintiff, and defendant appeals. Affirmed.

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

Robert Brannan, Asst. City Sol., Francis M. McAdams, and John L. Kinsey, City Sol., for appellant. Fred Taylor Pusey, for appellee.

FELL, J. The city of Philadelphia gave notice to the Monument Cemetery Company to reset the curb on the part of Fifteenth street, about two squares in length, which passes through its grounds. The cemetery company entered into a contract with a curbsetter, who agreed to do the work at a fixed price per foot. He left a pile of old curbstones that were unfit for use on the asphalt pavement between the new curb and the car track. This pile was one foot high and extended into the street two feet from the curb, and on the night of the accident there was no light near it to give notice to persons driv

ing on the street. The plaintiff was the driver of a hansom, and ran into the pile of stones at midnight. His cab was overturned and he was injured. The stones had been in the street four or five days before the accldent, and there was evidence tending to show that the work at this place had been completed for that length of time. The city seeks to relieve itself of liability, on the ground that a municipal corporation is not responsible for an injury caused by the negligence of an independent contractor. But this principle has no application to the case. Property owners, engaged in work on a city or borough street in front of their properties, in obedience to the requirements of an ordinance, are not contractors exercising an independent employment, over whom the municipal authorities have no control. Trego v. Honeybrook Borough, 160 Pa. 76, 28 Atl. 639. A municipality may not be responsible for the negligence of an owner of property engaged in work on a street, done on notice from it, where the negligence is in the manner of doing the work on the part of the street necessarily occupied for that purpose, but its duty to exercise reasonable supervision of streets thrown open for travel always continues. The placing of the rejected curbstones in the street was not a part of the work of resetting the curb, but the unauthorized use of the street as a place of storage for material that should have been placed elsewhere or at once removed. It was allowed to remain there, a menace to travel, during the progress of the work and after its completion, and the question of constructive notice to the city was for the jury. The judgment is affirmed.

(217 Pa. 128)

ALLENTOWN NAT. BANK v. CLAY PRODUCT SUPPLY CO. (Supreme Court of Pennsylvania. Feb. 25, 1907.)

1. BILLS AND NOTES-BONA FIDE Holder.

Where a debtor gives a bank a note on which he is a second indorser, and the bank on receipt of the note extends time to the debtor, and applies the proceeds of the note as a credit to the debtor, and relinquishes bills of lading pledged as collateral, the bank is a holder for value, if without notice of any infirmity in the instrument, or any right of set-off in connection therewith.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 7, Bills and Notes, § 908.]

2. SAME RENEWAL - EVIDENCE OF ACCEPTANCE.

Where a bank refuses to accept a renewal note, acceptance is not shown by the fact that, when it wanted to make a demand on the original note, it attached to it the renewal note, so that both could be restored to the maker on payment.

Appeal from Court of Common Pleas, Philadelphia County.

Action by the Allentown National Bank against the Clay Product Supply Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The note in suit was in the following form: "$1,500.00. Newark, N. J., Feb. 18, 1904. Four months after date we promise to pay to the order of Clay Product Supply Co. Fifteen hundred and 0-100 dollars, at Essex Co., National Bank. Value received, with interest. [Signed] Van Keuren & Son, Wm. Van Keuren, President." Indorsed: "Pay to the order of Hickory Run Brick Co. Clay Product Supply Co., J. Mortimer West, Jr., Treasurer." "Hickory Run Brick Co., S. N. Weaver, Treasurer." "Duly protested for nonpayment. Costs of protest, $1.85." Other facts appear by the opinion of the Supreme Court. The trial judge gave binding instructions for plaintiff.

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

Clifton Maloney, for appellant. Thomas F. Gross, for appellee.

STEWART, J. This was an action on a promissory note by holder against indorser. The defense attempted was twofold: First, failure of consideration; and, second, that the plaintiff had discharged all liability on the note in suit by retaining another which was given and intended as a renewal. An essential preliminary to the first defense was denial that plaintiff was a holder in due course. The facts were these: Van Keuren & Sons had contracted to do certain municipal paving work in the city of Newark. The contract provided that the brick to be used should be subject to the acceptance of the city authorities. Van Keuren & Sons contracted with the Clay Product Supply Company, the defendant, to furnish the brick for the work, and the Clay Product Supply Company, not being a manufacturer, engaged them of the Hickory Run Brick Company. Each contract contained the stipulation that the brick were to be subject to the acceptance of the city authorities. The Hickory Run Brick Company, in order to fill its contract, was compelled to borrow money to carry on its operations. The Allentown National Bank, the plaintiff, discounted certain notes of this company, receiving, as collateral security at the same time for their payment, the bills of shipment of brick to the Product Supply Company duly assigned and transferred to the bank. Such of these assigned bills as were paid were paid by the Product Supply Company directly to the bank, and the amounts were credited to the account of the Hickory Run Brick Company. Some of the brick for which bills of shipment had been assigned to the bank, were condemned by the city authorities. Van Keuren & Sons withheld payment to the Product Supply Company for these, and that company, in turn, withheld payment to the bank on the assigned bills. Thereupon the bank demanded payment of the note of the brick company, which was then due, and also made demand

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