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of risk.

of tube as neg

on of care.

ment, and dis îailure to do so was mere fact that lighted acetylene his own neglect, so argues appellant. lamps were on the Plaintiff assulued only the usu- outside would not

-negligeace

in niling gasoal and ordinary risks, and not cause appellee's acts lene tank with

lamps burning. the risks which be- to be negligent. -assumption

came extraordinary There was no testimony to suggest

throuh negligence. any inherent danger in the acetylene It does not lie in the mouth of one lights as there placed, separated at fault to complain of another's from the tank-filling operation by a lack of care, when the care in ques- partition, the lights being about 6 tion is made necessary only be- feet from the tank. He could not

cause of the for- anticipate defendant's valve would -fault in use

mer's wrongful act, not work, and its servant would be ligence.

and would not be careless in using the hose. needed under ordinary circum- It was in evidence, unobjected to, stances. Plaintiff cannot be charged

that similar trucks were filled in the with negligence simply because he same manner while their lights were failed to anticipate negligence on burning. Defendant has never rethe part of another, which resulted garded lights burning on the outside in injury. Oil City Fuel Supply Co. as dangerous. If it did, undoubtedv. Boundy, 122 Pa. 449, 15 Atl. ly it would be the first to adopt some 865; Wagner v. Philadelphia Rapid regulations to control the menace. Transit Co. 252 Pa. 354, 97 Atl. 471. No one knows better than this comPlaintiff had the right to assume, pany whether this condition was

and act on the as- dangerous. The fact that the com-right to rely presumption sumption, that de- pany did not require lights to be put

fendant would pro- out is one of the strongest of the vide proper and safe appliances with circumstances that they were not inwhich to work, and careful serv- herently dangerous. This is quite a ants. Where defendant fails in the different case from a man walking performance of those duties, and with a lighted lamp into a cellar plaintiff suddenly placed in a posi- which he knows is filled with the tion of peril (Razzis v. Philadelphia gas, as in Mitchell v. Stewart, supra. & R. R. Co. 273 Pa. 550, 117 Atl. In the assignment of error di204), acts carelessly or mistakenly, rected to the evidence of Parker, it the defendant cannot be heard to appears the answer complain, for it was his misdeed had been given be- Appeal-ad

mission of evithat caused plaintiff to act as he did. fore the objection dence without

Mitchell v. Stewart, 187 Pa. 217, was made. 40 Atl. 799, 4 Am. Neg. Rep. 578, was no motion to does not control. Plaintiffs in that strike the evidence out, and two othand the instant case knew of the er witnesses had testified in subdangerous character of the agency stance to the custom of filling cars with which they were dealing, and while lights were burning. This in both lamps were used; but the comes within the rule in Pyle v. Finrelative positions of the lamps when nessy, 275 Pa, 54, 118 Atl. 568. the accidents occurred were quite Objection is made to the admisdifferent.

sion of the Carlisle Tables. It must Here we have a man who had be conceded by those conversant never used this type of valve, using with the trial of cases that, in acciit as directed by defendant's em- dent cases, great abuse has been ployee; the valve refused to work, made of these tables when combined and the defendant's servant, on be- with tables showing present worth. ing instructed to shut off the gas at They were first admitted in Steinthe pump, suddenly, without warn- brunner v. Pittsburgh & W. R. Co. ing, pulled the hose out of plaintiff's 146 Pa. 504, 515, 28 Am. St. Rep. hands, causing the accident. The 806, 23 Atl. 239, and it was early

There objection

error.

of Carlisle Tables.

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(282 Pa. 8, 127 Atl. 615.) pointed out the Carlisle Tables he is permanently disabled, and all might "prove a dangerous element the physicians admit he suffered a in the trial of cases.” We have cau- serious mishap. The evidence of tioned trial judges time and again the defendant's medical experts as as to the manner in which the tables to permanent disability is opposed should be used, and to be very par

in all essential parts to plaintiff's. ticular to instruct They deny he is permanently inTrial-instruction as to effect

the juries as to jured, and insist a few months' their effect. While treatment and rest at the seashore

these admonitions will improve the condition immeasdo not seem to have brought relief urably. in the present record, we can do At the time of the trial plaintiff nothing more than repeat our for- was earning $52.50 per week, with mer injunctions to trial judges. $4 incidentals. This amount must

The final question for considera- not be taken as the exclusive guide tion is the amount of the verdict. in estimating loss of earning power, There were two trials in the court and it must be understood, as one below; the first jury returned $27,- grows older, after a certain age his 500, and the second $35,000, reduced ability decreases. He had lost in by the court below to $30,000, on actual wages in the neighborhood of which judgment was entered.

$6,000, his bills for medical attenThe case presents some unusual tion amounted to approximately features relative to the conflicting $1,100, making an actual loss of apmedical testimony; possibly six phy- proximately $7,000. There is no sicians on each side had diametri- doubt his continued medical treatcally opposite views as to the per- ment as described by plaintiff's phymanency of plaintiff's injuries. The sicians will run up to a large sum, jury could find from the evidence considering plaintiff's station in that, after appellee was taken to the life, and we agree the figure will be

, hospital, his throat and mouth were considerable. so badly burned the latter had to be Appellant suggests an award of packed with cotton for days to sup- $18,000 would have been sufficient. ply medication to the injured parts, In this, however, it does not allow and the burning ran into the chest. for all the loss of earnings up to the The flesh was burned off the right date of trial, nor is a fair amount hand; it was entirely crippled, the allowed for future medical attenfingers now being rigid. His left tion. Its basis for loss of earnings hand was burned raw, and the face, is made up from figures we cannot forehead, chin, and neck were se- discover in the evidence, and no alverely burned. For a time speech lowance is made for the horrible was affected. He was confined to pain and suffering which the man his bed, with a trained nurse in con- must have undergone. stant attendance for eight weeks or The court has no intention to demore, and has since been under the part from the principles announced constant care of a physician, being in Gail v. Philadelphia, 273 Pa. 275, treated weekly. As a result of the 117 Atl. 69, or Smith v. Times Pub. burning, his hearing is also affected, Co. 178 Pa. 481, 35 L.R.A. 819, 36 and the pains in his throat, chest, Atl. 296. But there is a zone of unstomach, and across his back still certainty as to loss of earning powcontinue. It will be necessary to er and compensation for pain and treat the effect of his injuries for suffering, which is exclusively withmany years, while some of the con- in the jury's province to determine. ditions are incurable. He has atro- The case is not so clear as to cause phy, chronic inflammation of the us to invoke the membranes of the nose, and inter

rule of the two cas- for burns. ference with the ventilation of the

es just announced. Plaintiff's witnesses agree that We are of the opinion that the rec

38 A.L.R.-43.

Damages

ord presents no reversible error; I have reached the opposite concluthe questions therein presented sion, and therefore express my diswere clearly for the jury, whose sent. judgment must be accepted as final in the determination of the case.

NOTE. The judgment of the court below is affirmed.

Liability for injuries incident to Schaffer, J., dissenting:

filling gasolene tank of automobile The majority of the court has or motorcycle is the subject of the concluded that the judgment recov- annotation in 33 A.L.R. 774. Other ered by plaintiff is not such an ex- than the reported case (FREDERICKS cessive admeasurement of the com- V. ATLANTIC REF. Co. ante, 666) there pensation to which he is entitled as appear to be no reported cases in to warrant our interference with it. point since that annotation.

JAMES C. DAVIS, Director General of Railroads, Apptog

V.
WILLIAMS CREAMERY COMPANY, Respt.

Wisconsin Supreme Court - March 10, 1925.

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of way.

Heavy machinery upon which the freight has been paid, and which has been unloaded from the cars onto railroad property within a few feet of where it is to be installed upon property of the consignee, and left there, at the volition of the consignee, without agreement with the railroad company, is not within a rule subjecting freight received for delivery to storage charges if stored on railroad premises.

[See note on this question beginning on page 676.]

APPEAL by plaintiff from a judgment of the Circuit Court for Eau Claire County (Wickham, J.) in favor of defendant in an action brought to recover storage charges alleged to be due plaintiff on a shipment of machinery to defendant. Affirmed.

The facts are stated in the opinion of the court.

Messrs. Bundy, Beach and Holland, held a lease from the appellant railRichard L. Kennedy, and G. F. Dames road company of a parcel of land for appellant.

600 feet in length and 70 feet in Messrs. E. M. Bradford and Linder

width off the northerly side of the man, Ramsdell, & King for respondent.

railway company's depot grounds Owen, J., delivered the opinion of and immediately adjoining the conthe court:

densary property on the south. This action was brought to re- About June 1, 1919, two carloads cover storage charges claimed to be of freight for the respondent ardue the appellant on a shipment of rived at Osseo. This freight conmachinery to the respondent. At sisted of heavy machinery, weighthe time in question respondent ing in the aggregate some 73,000 owned a parcel of land, on which a pounds, for installation in its concondensary was being erected, at densary plant. The respondent Osseo, Wisconsin and in addition promptly paid the freight charges,

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(- Wis. 30% N. W. 663.) receipted to the appellant for the V. Director Gen. 59 Inters. Com. freight, and unloaded it from the Rep. 101. cars. The freight thus unloaded Storage rule 1, above quoted, is: was not removed from the railway in the nature of a preamble to the premises, but was left thereon at a other rules relied upon, and fixes point 10 feet from the sidetrack, their scope, as there is nothing in about 300 feet from the depot, and the subsequent rules repugnant to about 30 or 40 feet from the prem- the general language of storage rule ises which respondent held under 1, which refers to freight “received lease from the railroad company. for delivery or held to complete a The machinery was left at this place shipment or for forwarding direcuntil June 16th.

tions." If the rules upon which the The appellant bases its right to appellant relies for a recovery are recover upon certain rules which it applicable to the situation, it must had promulgated and filed as a part appear that the machinery, when

; of its tariff charges with the Inter

unloaded from the cars, constituted state Commerce Commission. The freight “received for delivery or pertinent parts of said rules are as held to complete a shipment or for follows:

forwarding directions.” Manifestly “Storage rule 1. Freight, except it was not held “to complete a shipcompany material, received for de- ment or for forwarding directions." livery or held to complete a ship- If paying the freight charges, rement or for forwarding directions, ceipting for the goods, and unloadif stored in or on railroad premises, ing the same from the cars by the is subject to these rules.

respondent constituted a delivery of "Section b. Other carload freight the goods to the respondent, then held in cars for delivery and sub

it certainly no longer constituted sequently unloaded in or on railroad

freight received for delivery. Depremises is subject to demurrage livery had already been made, and rules while in cars and to these the dominion of the railroad comstorage rules after it is unloaded. pany over, and its responsibility for "Section d. Freight upon which

the safe-keeping of, the same, were the free time allowed under demur

terminated by such delivery. rage rules has expired while in cars

The trial court held that the maand subsequently unloaded in or

chinery was not left on the railroad railroad premises is subject to these

company's premises pursuant to storage rules when unloaded, with

any understanding or agreement out free time allowance."

between the parties, and during the Since there is no controversy as

time it remained on said land no to the applicable rate, if appellant

contractual relation existed between is entitled to the charge provided appellant and respondent, either as for by the rules, it is deemed un- shipper and carrier, bailor and necessary to make further reference

bailee, storer and warehouseman, or thereto. Similar rules were estab

otherwise; and that during said time lished by the Director General of

the appellant owed to the

defendant Railroads on lines under Federal

no duty in reference to said propcontrol during the war, and were

erty. This is tantamount to a find

ing that there was a complete deadopted for the purpose of promot

livery of the freight to the responding the removal of freight from rail

ent. It is not always an easy matter road premises, thus preventing the

to determine whether there has been congestion of storage, which inter

a delivery of freight to the confered with the efficient operation signee. This does not always deand movement of freight. Rules of pend upon the mere payment of the

class have been uniformly sanc- freight charge, or the unloading of tioned by the Interstate Commerce the freight from the cars, or upon Commission. Dakota Monument Co. the signing of a receipt by the con

signee. As said in Southern R. Co. There is no contention that the v. Prescott, 240 U. S. 632, 60 L, ed. railroad company owned any duty 836, 36 Sup. Ct. Rep. 469: “Regard of safeguarding the machinery, or must, of course, be had to the sub- that it would have been in any man-, stance of the transaction. The ques- ner responsible in case of its detion is not one of form, but of ac- struction. Its dominion over, and tuality.'

its responsibility for the safe-keepWhat will amount to a delivery ing of, the property, had been comdepends somewhat upon the nature

pletely terminated. The situation of the subject of the delivery and

is the same as though the respondthe circumstances of the case. What would constitute delivery of equipment upon the right of way

ent had placed building material and heavy chattels would not neces

of the railroad company, awaiting sarily suffice in cases of lighter

its installation into the building it articles that may conveniently be passed from hand to hand. The in

was constructing upon or adjacent

to the right of way. tention of the parties is always a material consideration. Here the

We hold that there Carriers-stor

age chargessubject of delivery consisted of

was a complete de- freight anlond. heavy machinery. It could not be

livery of the freight, right of way.

ed onto railroad easily moved. While it was left on

and that the rules the railway premises, it was within

relied upon have no application to 30 or 40 feet of the place where it

the situation. To apply them to the was to be permanently installed. circumstances here presented would It was left there by the consignee, be to say that the rules operate to of its own volition, in the absence prescribe penalties for trespasses of any agreement with the railroad upon railroad property. company.

Judgment affirmed.

ANNOTATION.

Rights and duties of carrier and consignee as to freight unloaded from cars

and left on right of way.

There are few cases involving the weeks, the court, in denying the carrights of the parties, i. e., the carrier rier's right to storage charges, holds and the consignee, as to freight which

that since complete delivery had been has been unloaded and left on the

made, the carrier's dominion over, and right of way. The reason for this is

responsibility for the safeguarding of,

the freight, was completely ended; apparent. With the delivery the re

that there having been no further conlationship between the carrier and

tractual relationship between the parthe consignee is terminated, and there

ties, such as that of bailment or wareis no further duty or liability on the

houseman, the carrier could collect carrier's part in respect to the freight, nothing, as it in return had fulfilled and no corresponding right on the part no duty; and that, in the absence of of the consignee against the carrier, any express agreement, no bailment in the absence of any agreement by other contractual relationship the carrier to assume or continue the could be implied. duty of warehouseman or bailee.

Substantiating the decision in the Thus, in the reported case (DAVIS reported case that there can be no v. WILLIAMS CREAMERY Co. ante, 674) relationship of bailor and bailee imwhere the consignee promptly paid plied from the mere leaving of goods the freight charges, receipted for the on the right of way is Walker v. Norfreight, and unloaded it, but left it on folk & W. R. Co. (1907) 67 W. Va. 273, the carrier's right of way for two 67 S. E. 722, wherein the court held

or

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