Keystone Union Development Company vs. American Locomotive Company. neither party resided and that the "proper district" was the district in. which suit might have been brought. As we view the matter it is the plain duty of this Court to make the necessary order for removal to the District Court for the Northern District of New York.

ORDER FOR REMOVAL.

The defendant herein having, within the time provided by law, filed its petition for removal of this cause to the District Court of the United States for the Northern District of New York, and having at same time offered its bond in the sum of five hundred ($500.00) dollars, with good and sufficient surety, approved by this Court, it is hereby ordered that this cause be removed for trial to the District Court of the United States for the Northern District of New York, pursuant to the statute of the United States, and that all other proceedings of this Court be stayed.

Steffler vs. Seif.

Negligence- - Automobiles— -Proper side of road——Case for jury.

In an action for personal injuries, Plaintiff's testimony showed that he was riding a motor cycle near the right-hand side of the road and as he approached defendant's automobile, defendant swerved his machine to defendant's left-hand, thus causing a collision. Defendant's testimony was to the effect that the plaintiff was riding on the left-hand side of the road at a wreckless rate of speed and was evidently intending to turn off on a cross road, and that in order to avoid him, defendant ran his machine to his left hand. Held, that the case was for the jury.

Sur motion by defendant for judgment non obstante veredicto in an action of trespass to recover damages for personal injuries of Clarence W. Steffler, a minor, C. P. Allegheny County.

Wishart & Dickie, for plaintiff.

E. J. Kent, for defendant.

HAYMAKER, J., January 19, 1915.-We find no reasons on file in support of this motion, but from the argument and brief of defendant's counsel we find that he contends in support of his motion (1) that the evidence of the defense is overwhelmingly in his favor; (2) that the testimony of the defendant and his witnesses not having been rebutted must be taken by us as true, and (3) that the evidence of the plaintiff and his witnesses establishes a case of negligence on the part of plaintiff barring any right of recovery. As to the first, it is sufficient to say that if there is any evidence on the part of the plaintiff that, if believed, will entitle him to a verdict, we cannot pass upon its weight, as against that of the defendant's, and we were bound to submit the case to the jury.

The other two reasons may be disposed of by a brief reference to the history and evidence of the case. The minor plaintiff was 20 years of age on July 13th, 1912, the day of the accident, and was riding a motorcycle on the Freeport improved public road; the defendant was driving his automobile on the same road, in an opposite direction, and the accident was a head-on collision, happening about four o'clock in the afternoon, at the village of Harmarville, in the intersection of that road and the Guy Run public road, the latter crossing the former at a right angle. The Freeport road runs generally East and West, is a 33-foot road, but not used or opened to its full width. The usable part of the road on the

Steffler vs. Seif.

southerly side has a single street car track upon it, and the macadam is North of that track and separated from it by a twelve-inch plank, running between the north rail and the macadam. At the Red Raven Store, or intersection of the two roads, about where the accident occurred, the macadam part of the road was eighteen feet wide and the street car track 5.2 feet in width. Just West of the Guy Run Road, to which point much of the testimony relates as to the position of the plaintiff, immediately before the accident, there are two feet of good road North of the macadam, the macadam is twelve feet wide, then comes one foot of plank, 5.2 feet of street car track, and two feet of plank along the outside of the southerly rail, making a total width of 21.2 feet; so that we have fifteen feet of usable road North of the North rail of the street car track. We are not concerned with the width of this road as it might appear from the records, or where its center line would be if it were opened to its full width, but rather with it as it actually existed on the ground at the time of the accident.

The testimony of the plaintiff was to the effect that he was traveling at the rate of twelve to fifteen miles an hour, on the extreme southerly, and (his) right side of the macadam, close to the street car rail; that when he saw the defendant first he, the defendant, was on his proper side of the macadam, but when they were fifty or sixty feet apart the defendant swung to his left in the direction of plaintiff. Plaintiff, supposing that the defendant changed his position on the road to avoid some defect and would swing back to his proper side, turned his motorcycle toward the street car track to avoid a collision when the defendant suddenly veered his car to his left, striking the plaintiff when his motorcycle was between the rails. Carolin testified that he was driving an automobile in the rear of the plaintiff; that for some time before and at the time of the accident plaintiff was upon the right edge of the macadam; that when he was about to pass the automobile the defendant swerved to his left and the plaintiff, to avoid a collision, swung his motorcycle further to his right, when defendant struck him, over on the street car track. Mrs. Bitzer testified that the plaintiff was over on the street car track when he was struck, and that the defendant turned his car to his left just before the collision occurred. Two other witnesses, sitting near the store, swcre that they saw the defendant's car turn from the right to the left side of the macadam and a collision followed, but they had not noticed the motorcycle approach the point of accident. This is practically plaintiff's case in relation to the location and movements of the respective machines just before, and at the time of, the accident.

The testimony of the defendant and his witnesses puts a different aspect on the case, and had the jury adopted their account of the affair the defendant would have been relieved of all liability. The defendant's evidence showed that just before the collision he was traveling at a moderate rate of speed, on his right or proper side of the macadam; that the plaintiff was traveling on his left or wrong side, and as the defendant believed, and had reason to believe, that the plaintiff intended to turn into the Guy Run road to the North, or maintain his position and pass defendant on the wrong or North side, he, the defendant, to avoid the possibility of a collision, swung his car to the left, which was instantly followed by the plaintiff's suddenly turning his motorcycle to the right, thereby causing the accident. In his statement of the facts he was supported by his two daughters who were in his car, and another witness.

It will be seen that if the evidence of the plaintiff and his witnesses gave the true account of the accident the defendant was guilty of negligence, but it is equally clear that, had the jury taken the evidence of the defendant and his witnesses as showing the true state of facts, the plaintiff was guilty of negligence and the defendant clearly without fault. While

Steffler vs. Seif.

we might entertain a view of the case different to that of the jury, it is not our province, on a motion for judgment non obstante veredicto, to determine the weight of the evidence. The defendant contends that there was no rebuttal of his evidence, and therefore we should have given binding instructions, or should now enter judgment in his favor. If we understand the position of defendant's counsel it is this: the defendant having sworn that the plaintiff was on the wrong side of the road, and he, the cefendant, turned to his left to avoid the plaintiff, which was followed by a sudden turn of the motorcycle to its right and the consequent collision, the plaintiff was legally bound to recall his witnesses and rebut that evidence; otherwise it must be taken as true. We know of nc such rule. The plaintiff and his witnesses negatived, by their testimony in chief, all the evidence of the defendant, and the case became one for the jury. Nor are we able to hold as a matter of law, as defendant contends, that the plaintiff was guilty of negligence. This position is probably based on the theory that the plaintiff was reckless in the matter of speed. He testified to twelve to fifteen miles an hour. While it might be inferred from other evidence that he was traveling much faster, we are not required as a matter of law to determine just what the speed was, and then say whether or not that was negligence, contributing to the accident. In fact, we attach little importance to the question of speed under the circumstances as they then and there existed. The defendant would have no right to suddenly deflect his machine to the wrong side of the road and strike the plaintiff, no matter what the latter's speed was. If the plaintiff was on his proper side of the road he was not obliged to anticipate that the detendant would suddenly violate "the law of the road." We are unable to see that plaintiff was obliged to travel wholly upon the brick pavement between the street car rails, because that was the extreme right of the whole usable road, in order to give the defendant fifteen feet north of the north rail; but even if such were the requirement, the plaintiff was between the rails when struck, if his evidence is to be believed.

We have no doubt that this was a case for the jury, and therefore the motion for judgment non obstante veredicto is overruled and judgrent is to be entered on the verdict for the plaintiff on payment of the verdict fee.

McLaughlin vs. Pennsylvania Water Company.

Malicious prosecution--Search warrant

--Liability.

Corporation-Action of an officer

In an action for false arrest it appeared that certain brass fittings had disappeared from the plant of the defendant Company and that the Chief Engineer of the plant had caused the arrest of the plaintiff on the charge of larceny and caused his premises to be searched under the authority of a search warrant. During such search and for some time thereafter the plaintiff was detained under arrest. The property was not found and the plaintiff was discharged. Upon the trial it was admitted that the General Superintendent of the Company authorized the Chief Engineer to secure a search warrant for the property, but the defendant sought to escape liability on the ground that there was no authority given to make the arrest.

Held that the authority given to the Chief Engineer to secure a search warrant included the authority to cause the arrest of the person in whose custody it was thought the goods would be found.

Motion for judgment non obstante veredicto. No. 2756 January Term, 1913. C. P. Allegheny County.

R. P. Marshall, for plaintiff.

Duff & Carmack, for defendant.

REID, J., February 9, 1915.—This is a motion ex parte defendant for judgment Non Obstante Veredicto.

The plaintiff, who had resided for a long time in the village of Port Perry, was arrested upon an information made by defendant's chief engineer, M. B. Scott, charged with larceny of certain brass fittings, couplings, etc. A search warrant issued on the same information, by virtue of which his home was searched by officers, and, though nothing was found there, he was arrested and imprisoned until some time after the hearing, when he was discharged by the magistrate who heard the case. He brought this action in trespass against defendant, alleging the false arrest and the unlawful use of process in unwarrantably searching his home and exposing him to the humiliation of such a procedure. Defendant presented a point for binding instructions, which was refused by the Court, and the case was submitted to the jury, which found a verdict in favor of the plaintiff for Four Hundred and Twenty-five Dollars, a very reasonable amount in view of the previous good character of the plaintiff.

Although in their motion for judgment Non Obstante Veredicto defendants' counsel assign as one reason that the Court should have ruled that, under the circumstances, there was probable cause for the arrest, we do not understand that they seriously pressed this position. If there were beyond any question such probable cause and there were nothing on the subject to submit to the jury, such a position would be tenable. But the plaintiff was an old and well-known citizen of the community in which he lived, and against whom no suspicion of dishonesty had ever arisen. The only clue pointing to him was that tracks led from the defendant's premises apparently to plaintiff's house. To ask the Court to say as a matter of law that footsteps apparently leading from the scene of the robbery thus traced to a citizen's doorstep, with no other circumstances of suspicion, establish probable cause would put every honest man in jeopardy with no redress in case of mistaken or malevolent action.

M. B. Scott, who swore out the warrant on which plaintiff was arrested, before making the information called up his superior officer, the General Superintendent of the defendant company, and after explaining to him the theft and circumstances of suspicion, was authorized to take out a search warrant and have plaintiff's premises searched. After such warrant was issued and search made, nothing being found, the arresting officers informed Mr. Scott of the result, but stated that, in their judgment, plaintiff knew

McLaughlin vs. Pennsylvania Water Company.

something of the theft and recommended his arrest, which had not up to that time been effected, and thereupon Mr. Scott assented to it and plaintiff was arrested and held for a hearing.

Mr. Scott was the chief engineer in full charge of the property and plant of the defendant company at Port Perry, having employees under him and being responsible only to his superior, Mr. Hawley.

The question is did Mr. Scott, by causing plaintiff's arrest, act under the authority, either express or implied, of the defendant, for which act the latter would be responsible, or did he exceed his authority and by his action impose no liability upon the defendant?

An extended discussion of the facts is necessary to arrive at a conclusion.

Exhibit No. 3, being the information made by Mr. Scott, shows that it is signed and sworn to by "M. B. Scott, Chief Engineer."

He says (testimony, pp. 4-8):

"Q. Before you made the information on which the search warrant and other warrants were issued, did you consult with any of the officers of the company? A. I certainly did. I didn't go ahead altogether on my own hook in regard to the search warrant. Q. Who did you consult with? A. The general superintendent, on the search warrant. Q. Who was that general superintendent? A. Mr. W. C. Hawley. Q. Did he advise you to swear out a warrant? A. He advised me to take out a search warrant. Q. And that was the general superintendent of the whole company? A. Yes, sir. Q. Was that as far as he went-that is what he told you to do? A. Yes, sir. Q. And the premises were searched? A. Yes, sir. Q. You were not there when they were searched? A. No, sir, I was not there. Q. What were your duties out there at Port Perry? A. Keeping the machinery and everything in complete shape and running the machine shop, general machinist; keeping up the repairs. Q. There was no one that stayed at the Port Perry plant that was over you? A. I was held responsible for everything that went on there, as far as I know." At page 10, his testimony was as follows: "Q. This search warrant you issued was for the purpose of recovering the goods in the indictment? A. I suppose so. Q. Was that what you were instructed to do? Was that issued for the purpose of recovering those goods? A. Why, certainly."

Mr. Scott, who was not present at the time the search was made, at page 19 of the testimony explained what happened:

"Q. What was the first you learned after that with reference to this matter? A. I had to go to Turtle Creek the next morning on business, and when I was coming back I met those two officers at the Bessemer House * * *. They told me they had searched the property but hadn't found anything, and under the circumstances, they thought he knew something about it. Well, I took their advice; I told them then they could do it. Q. Did you call up Mr. Hawley or anybody in reference to that? A. No, sir, I did not. I thought I was doing as near right as I could."

Mr. Hawley, General Superintendent, at page 35 of the testimony, confirms the statements of Mr. Scott as to the authority of the latter to issue the search warrant.

We recognize the force of the numerous authorities cited by counsel for defendant upon the subject of the necessity of subordinates being authorized by their principals to act before the latter can be held responsible for damages for false arrest, and it is not necessary to discuss them in detail. It is evident that the purpose of the defendant company was to procure the return of its goods and it is, therefore, proper to consider whether or not the arrest directed by Mr. Scott was one of the steps reasonably necessary to be taken to effect such recovery.