cause of the for mer's wrongful act, and would not be needed under ordinary circumstances. Plaintiff cannot be charged with negligence simply because he failed to anticipate negligence on the part of another, which resulted in injury. Oil City Fuel Supply Co. v. Boundy, 122 Pa. 449, 15 Atl. 865; Wagner v. Philadelphia Rapid Transit Co. 252 Pa. 354, 97 Atl. 471. Plaintiff had the right to assume, -right to rely on presumption of care. and act on the assumption, that defendant would pro vide proper and safe appliances with which to work, and careful servants. Where defendant fails in the performance of those duties, and plaintiff suddenly placed in a position of peril (Razzis v. Philadelphia & R. R. Co. 273 Pa. 550, 117 Atl. 204), acts carelessly or mistakenly, the defendant cannot be heard to complain, for it was his misdeed that caused plaintiff to act as he did. Mitchell v. Stewart, 187 Pa. 217, 40 Atl. 799, 4 Am. Neg. Rep. 578, does not control. Plaintiffs in that and the instant case knew of the dangerous character of the agency with which they were dealing, and in both lamps were used; but the relative positions of the lamps when the accidents occurred were quite different. Here we have a man who had never used this type of valve, using it as directed by defendant's employee; the valve refused to work, and the defendant's servant, on being instructed to shut off the gas at the pump, suddenly, without warning, pulled the hose out of plaintiff's hands, causing the accident. The in filling gaso lamps burning. mere fact that lighted acetylene lamps were on the outside would not negligeace cause appellee's acts lene tank with to be negligent. There was no testimony to suggest any inherent danger in the acetylene lights as there placed, separated from the tank-filling operation by a partition, the lights being about 6 feet from the tank. He could not anticipate defendant's valve would not work, and its servant would be careless in using the hose. It was in evidence, unobjected to, that similar trucks were filled in the same manner while their lights were burning. Defendant has never regarded lights burning on the outside as dangerous. If it did, undoubtedly it would be the first to adopt some regulations to control the menace. No one knows better than this company whether this condition was dangerous. The fact that the company did not require lights to be put out is one of the strongest of the circumstances that they were not inherently dangerous. This is quite a different case from a man walking with a lighted lamp into a cellar which he knows is filled with the gas, as in Mitchell v. Stewart, supra. In the assignment of error directed to the evidence of Parker, it appears the answer mission of evi dence without objection error. had been given be- Appeal-adfore the objection was made. There was no motion to strike the evidence out, and two other witnesses had testified in substance to the custom of filling cars while lights were burning. comes within the rule in Pyle v. Finnessy, 275 Pa. 54, 118 Atl. 568. This Objection is made to the admission of the Carlisle Tables. It must be conceded by those conversant with the trial of cases that, in accident cases, great abuse has been made of these tables when combined with tables showing present worth. They were first admitted in Steinbrunner v. Pittsburgh & W. R. Co. 146 Pa. 504, 515, 28 Am. St. Rep. 806, 23 Atl. 239, and it was early (282 Pa. 8, 127 Atl. 615.) pointed out the Carlisle Tables might "prove a dangerous element in the trial of cases." We have cautioned trial judges time and again as to the manner in which the tables should be used, and to be very particular to instruct Trial-instruc of Carlisle Tables. tion as to effect the juries as to their effect. While these admonitions do not seem to have brought relief in the present record, we can do nothing more than repeat our former injunctions to trial judges. The final question for consideration is the amount of the verdict. There were two trials in the court below; the first jury returned $27,500, and the second $35,000, reduced by the court below to $30,000, on which judgment was entered. The case presents some unusual features relative to the conflicting medical testimony; possibly six physicians on each side had diametrically opposite views as to the permanency of plaintiff's injuries. The jury could find from the evidence that, after appellee was taken to the hospital, his throat and mouth were so badly burned the latter had to be packed with cotton for days to supply medication to the injured parts, and the burning ran into the chest. The flesh was burned off the right hand; it was entirely crippled, the fingers now being rigid. His left hand was burned raw, and the face, forehead, chin, and neck were severely burned. For a time speech was affected. He was confined to his bed, with a trained nurse in constant attendance for eight weeks or more, and has since been under the constant care of a physician, being treated weekly. As a result of the burning, his hearing is also affected, and the pains in his throat, chest, stomach, and across his back still continue. It will be necessary to treat the effect of his injuries for many years, while some of the conditions are incurable. He has atrophy, chronic inflammation of the membranes of the nose, and interference with the ventilation of the ear. Plaintiff's witnesses agree that 38 A.L.R.-43. he is permanently disabled, and all the physicians admit he suffered a serious mishap. The evidence of the defendant's medical experts as to permanent disability is opposed in all essential parts to plaintiff's. They deny he is permanently injured, and insist a few months' treatment and rest at the seashore will improve the condition immeasurably. At the time of the trial plaintiff was earning $52.50 per week, with $4 incidentals. This amount must not be taken as the exclusive guide in estimating loss of earning power, and it must be understood, as one grows older, after a certain age his ability decreases. ability decreases. He had lost in actual wages in the neighborhood of $6,000, his bills for medical attention amounted to approximately $1,100, making an actual loss of approximately $7,000. There is no doubt his continued medical treatment as described by plaintiff's physicians will run up to a large sum, considering plaintiff's station in life, and we agree the figure will be considerable. Appellant suggests an award of $18,000 would have been sufficient. In this, however, it does not allow for all the loss of earnings up to the date of trial, nor is a fair amount allowed for future medical attention. Its basis for loss of earnings is made up from figures we cannot discover in the evidence, and no allowance is made for the horrible pain and suffering which the man must have undergone. The court has no intention to depart from the principles announced in Gail v. Philadelphia, 273 Pa. 275, 117 Atl. 69, or Smith v. Times Pub. Co. 178 Pa. 481, 35 L.R.A. 819, 36 Atl. 296. But there is a zone of uncertainty as to loss of earning power and compensation for pain and suffering, which is exclusively within the jury's province to determine. The case is not so clear as to cause us to invoke the Damages rule of the two cas- for burns. es just announced. We are of the opinion that the rec ord presents no reversible error; the questions therein presented were clearly for the jury, whose judgment must be accepted as final in the determination of the case. The judgment of the court below is affirmed. Schaffer, J., dissenting: The majority of the court has concluded that the judgment recovered by plaintiff is not such an excessive admeasurement of the compensation to which he is entitled as to warrant our interference with it. I have reached the opposite conclusion, and therefore express my dissent. NOTE. Liability for injuries incident to filling gasolene tank of automobile or motorcycle is the subject of the annotation in 33 A.L.R. 774. Other than the reported case (FREDERICKS v. ATLANTIC REF. Co. ante, 666) there appear to be no reported cases in point since that annotation. JAMES C. DAVIS, Director General of Railroads, Appt., 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. E. M. Bradford and Linder man, Ramsdell, & King for respondent. Owen, J., delivered the opinion of the court: At This action was brought to recover storage charges claimed to be due the appellant on a shipment of machinery to the respondent. the time in question respondent owned a parcel of land, on which a condensary was being erected, at Osseo, Wisconsin and in addition held a lease from the appellant railroad company of a parcel of land 600 feet in length and 70 feet in width off the northerly side of the railway company's depot grounds and immediately adjoining the condensary property on the south. About June 1, 1919, two carloads of freight for the respondent arrived at Osseo. This freight consisted of heavy machinery, weighing in the aggregate some 73,000 pounds, for installation in its condensary densary plant. The respondent promptly paid the freight charges, (— Wis. —, 202 N. W. 663.) receipted to the appellant for the freight, and unloaded it from the cars. The freight thus unloaded was not removed from the railway premises, but was left thereon at a point 10 feet from the sidetrack, about 300 feet from the depot, and about 30 or 40 feet from the premises which respondent held under lease from the railroad company. The machinery was left at this place until June 16th. The appellant bases its right to recover upon certain rules which it had promulgated and filed as a part of its tariff charges with the Interstate Commerce Commission. The pertinent parts of said rules are as follows: "Storage rule 1. Freight, except company material, received for delivery or held to complete a shipment or for forwarding directions, if stored in or on railroad premises, is subject to these rules. "Section b. Other carload freight held in cars for delivery and subsequently unloaded in or on railroad premises is subject to demurrage rules while in cars and to these storage rules after it is unloaded. "Section d. Freight upon which the free time allowed under demurrage rules has expired while in cars and subsequently unloaded in or on railroad premises is subject to these storage rules when unloaded, without free time allowance." Since there is no controversy as to the applicable rate, if appellant is entitled to the charge provided for by the rules, it is deemed unnecessary to make further reference thereto. Similar rules were established by the Director General of Railroads on lines under Federal control during the war, and were adopted for the purpose of promoting the removal of freight from railroad premises, thus preventing the congestion of storage, which interfered with the efficient operation and movement of freight. Rules of this class have been uniformly sanctioned by the Interstate Commerce Commission. Dakota Monument Co. v. Director Gen. 59 Inters. Com. Rep. 101. Storage rule 1, above quoted, is in the nature of a preamble to the other rules relied upon, and fixes their scope, as there is nothing in the subsequent rules repugnant to the general language of storage rule 1, which refers to freight "received for delivery or held to complete a shipment or for forwarding directions." If the rules upon which the appellant relies for a recovery are applicable to the situation, it must appear that the machinery, when unloaded from the cars, constituted freight "received for delivery or held to complete a shipment or for forwarding directions." Manifestly it was not held "to complete a shipment or for forwarding directions." If paying the freight charges, receipting for the goods, and unloading the same from the cars by the respondent constituted a delivery of the goods to the respondent, then it certainly no longer constituted freight received for delivery. Delivery had already been made, and the dominion of the railroad company over, and its responsibility for the safe-keeping of, the same, were terminated by such delivery. The trial court held that the machinery was not left on the railroad company's premises pursuant to any understanding or agreement between the parties, and during the time it remained on said land no contractual relation existed between appellant and respondent, either as shipper and carrier, bailor and bailee, storer and warehouseman, or otherwise; and that during said time the appellant owed to the defendant no duty in reference to said property. This is tantamount to a findlivery of the freight to the responding that there was a complete deent. It is not always an easy matter to determine whether there has been a delivery of freight to the consignee. This does not always depend upon the mere payment of the freight charge, or the unloading of the freight from the cars, or upon the signing of a receipt by the con signee. As said in Southern R. Co. v. Prescott, 240 U. S. 632, 60 L. ed. 836, 36 Sup. Ct. Rep. 469: "Regard must, of course, be had to the substance of the transaction. The question is not one of form, but of actuality." What will amount to a delivery depends somewhat upon the nature of the subject of the delivery and the circumstances of the case. What would constitute delivery of heavy chattels would not necessarily suffice in cases of lighter articles that may conveniently be passed from hand to hand. The intention of the parties is always a material consideration. Here the subject of delivery consisted of heavy machinery. It could not be easily moved. While it was left on the railway premises, it was within 30 or 40 feet of the place where it was to be permanently installed. It was left there by the consignee, of its own volition, in the absence of any agreement with the railroad company. There is no contention that the railroad company owned any duty of safeguarding the machinery, or that it would have been in any manner responsible in case of its destruction. Its dominion over, and its responsibility for the safe-keeping of, the property, had been completely terminated. The situation is the same as though the respondent had placed building material and equipment upon the right of way of the railroad company, awaiting its installation into the building it was constructing upon or adjacent to the right of way. age charges We hold that there Carriers—storwas a complete delivery of the freight, unloaded onto railroad freight and that the rules relied upon have no application to the situation. To apply them to the circumstances here presented would be to say that the rules operate to prescribe penalties for trespasses upon railroad property. 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 rights of the parties, i. e., the carrier and the consignee, as to freight which has been unloaded and left on the right of way. The reason for this is apparent. With the delivery the relationship between the carrier and the consignee is terminated, and there is no further duty or liability on the carrier's part in respect to the freight, and no corresponding right on the part of the consignee against the carrier, in the absence of any agreement by the carrier to assume or continue the duty of warehouseman or bailee. Thus, in the reported case (DAVIS v. WILLIAMS CREAMERY Co. ante, 674) where the consignee promptly paid the freight charges, receipted for the freight, and unloaded it, but left it on the carrier's right of way for two weeks, the court, in denying the carrier's right to storage charges, holds that since complete delivery had been made, the carrier's dominion over, and responsibility for the safeguarding of, the freight, was completely ended; that there having been no further contractual relationship between the parties, such as that of bailment or warehouseman, the carrier could collect nothing, as it in return had fulfilled no duty; and that, in the absence of any express agreement, no bailment or other contractual relationship could be implied. Substantiating the decision in the reported case that there can be no relationship of bailor and bailee implied from the mere leaving of goods on the right of way is Walker v. Norfolk & W. R. Co. (1907) 67 W. Va. 273, 67 S. E. 722, wherein the court held |