Price vs. Etna Connellsville Coke Company. mine is down grade. On July 30, 1912, the day the plaintiff received his injuries, the plaintiff in making his trip was standing between the two cars, from which position under ordinary circumstances he could apply the brakes of his cars in going down the grade. On this particular occasion, just after the trip had passed the knuckle and was starting down grade, the plaintiff from his position between the two cars undertook to apply the brakes, but for some reason the brakes on the rear part of the first car would not work properly, and it became necessary for the plaintiff to get off the trip and get on the rear of the second car and apply the brakes there. The brakes on each car were on the rear thereof. When the plaintiff stepped off the trip, from his position between the two cars, his foot slipped and he was thrown and his foot was caught under the wheel of the second car causing the injury of which he complains. From the evidence it appeared that the clearance between the rail of the track on which the cars were running and the rib of the mine was about two feet. There were a number of posts along the rib at the place where the accident occurred, leaving the clearance between the rail of the track and the posts at that point only about eleven inches. Between the track and the rib there was a lot of slate and gob and muck for a height of two and a half or three feet which sloped down from the rib toward the track, and it was on this substance that the plaintiff's foot slipped when he stepped off the trip. Between the rail of the track and the nearest point of the refuse mentioned there was a distance of but a few inches. The plaintiff claims that it was through the negligence of the defendant company in permitting the pile of slate and gob and muck to remain between the track and the rib, and on account of the small amount of clearance space at that point, that the injury to him occurred. The defendant contends that the negligence in that respect was the negligence of the nine foreman, for which the defendant company cannot be held liable in damages. There was evidence by the state mine inspector of that district that he inspected this mine on July 5, 1912, and found the condition there at that time to be about as above stated, and that he called the attention of the mine foreman to the fact that the mine was not in the condition in which it should be, and directed him to take steps necessary to place it in proper condition. The mine inspector testified that he afterwards sent a copy of his report on the mine to the superintendent thereof, which would give him notice of the condition existing there. And the superintendent of the mine admitted on the witness stand that he received the mine inspector's report of the mine about July 7, 1912, and that the report was tacked up in the office of the company where everybody could see it. There was evidence that some little time before this accident occurred the mine foreman of the defendant company was changed, a new mine foreman taking charge of the mine, and that the superintendent of the defendant company instructed this new mine foreman that the mine should be cleaned up and put in proper condition. There was some evidence that the new mine foreman misunderstood his instructions and cleaned up another butt first, but nothing was done toward cleaning up the butt in which this accident occurred until after the accident had happened. In our charge to the jury, after defining negligence, we said: "By rule 3 of Article 20 of the Bituminous Mining Act of May 15, 1893, P. L. 52, it is made the duty of the mine foreman in bituminous coal mines to see that the entries at places where road grades necessitate sprags or brakes to be applied or removed shall have a clear level width of not less than two and a half feet between the side of the car and the rib to allow the driver to pass his trip safely and keep clear of the cars at that point. In this case if the failure to keep a clear level width of not less than two and a half feet between the side of the car and the rib was the fault of the mine foreman Price vs. Etna Connellsville Coke Company. alone then there can be no recovery from the mine owners. But the mine superintendent was notified of the condition of this mine before the accident and had knowledge of its condition prior to that time. The mine owners are liable for the negligence of the superintendent of the mine. While the owners are not responsible for the negligent performance of the duties imposed by statute upon the mine foreman, yet if any condition affecting the safety of the mine is brought to the attention of the mine owners or their superintendent it is their duty to take the proper steps to correct it. If the owners of the mine or their superintendent have knowledge that the mine foreman is negligent in the performance of his duties or that the mine is in a condition which endangers the safety of the workmen it is their duty to act promptly and have the danger to the safety of the men removed. Taking these principles of law into this case it will be your duty to determine whether or not the owners of this mine were negligent. As we have said to you, the owners of the mine are not responsible for the negligence of the mine foreman. If the accident in this case occurred through some negligence on the part of the mine foreman alone then the plaintiff is not entitled to recover from the mine owners, but if the mine owners, or their superintendent, for whose negligence they are responsible, knew that the mine foreman was neglecting his duties and knew the mine was not in the condition in which it should have been, and in that respect were negligent, then the plaintiff would have a right to recover from them for any injury which he received through that negligence. As we have said to you, you must first find that the defendant company was negligent before you can return a verdict for the plaintiff." These instructions gave the jury correct information as to the provisions of the act of assembly, and were, we think, right and proper according to the principles laid down by the Supreme Court in Bogdanovicz vs. Susquehanna Coal Company, 240 Pa., 124, and in Collins vs. Northern Anthracite Coal Company, 241 Pa., 55, and cases there cited. Immediately following the instructions above quoted we said to the jury: "And even if you should find under all the evidence that the defendant company was negligent, then before you should return a verdict for the plaintiff there is another thing which you must determine, and that is whether or not the plaintiff himself was negligent. The law of this state is such that even though in a case like this the defendant is guilty of negligence, if the plaintiff himself has been guilty of contributory negligence, that is, negligence contributing to the accident and to the injury, then on account of that contributory negligence the plaintiff is barred from a recovery. On this question it is proper for us to call your attention to the testimony wherein the plaintiff admitted he knew the condition of this mine prior to the time of the accident. He knew of this grade in the mine which would require the brakes to be applied. He knew of this slate and gob being piled along there between the track on which the cars run and the rib. He knew of the posts that were there. He knew of the narrow clearance space that was there. He knew of all these things prior to the accident. It will be a question for you to determine under all that evidence whether he acted in the way under the circumstances that an ordinarily prudent person would have acted. If he did then he was not guilty of contributory negligence. If he did not then he would be guilty of contributory negligence. If you find he was not negligent and the defendant was negligent then he is entitled to recover." The case was not such, in our opinion, as would have warranted the court at the trial in holding as matter of law that the plaintiff had been guilty of contributory negligence, or that would justify us now in entering judgment for the defendant on that ground. "Where the issue of contributory negligence has been submitted to the jury, a finding in favor of the plaintiff will not be set aside unless, upon a review of the Price vs. Etna Connellsville Coke Company. evidence in the light most favorable to the plaintiff, it is inconceivable that a mind desiring only a just and proper determination of the question could reasonably reach any other conclusion than that the plaintiff had brought about or contributed to the injury by his own carelessness. That is, after determining all doubts and drawing all inferences in favor of the plaintiff, 't must be clear that he was guilty of contributory negligence before it can be so ruled as a matter of law." Cramer vs. Aluminum Company, 239 Pa., 120. Both the question of negligence and that of contributory negligence were questions for the jury and not for the court. The negligence charged against the defendant was its failure to perform a statutory duty, and in cases of that kind questions relating to assumption of risk do not arise. Amiano vs. Jones & Laughlin Steel Company, 233 Pa.. 523; Smith vs. Stoner, 243 Pa., 57. It is true that Section 1 of Article XXII of the Act of May 15, 1893, P. L. 52, provides that, "The provisions of this act shall not apply to any mine employing less than ten persons in any one period of twenty-four hours," and it does not appear in the evidence that this was a mine in that respect to which the act was applicable. But the case was tried throughout on the theory that the mine was one to which the act applied, the defendant invoked the aid of the act in an attempt to relieve itself from liability for the plaintiff's injuries by placing the responsibility on the mine foreman, for whose negligence the defendant company is not liable under the act, and the defendant cannot be heard to allege now that the act is not applicable to this mine. And, in fairness to the defendant and its counsel, it may be said that the defendant does not seek to escape liability for the plaintiff's injuries on the ground that the plaintiff assumed the risks of his employment. Under all the circumstances of the case we conclude that the motion for judgment for the defendant non obstante veredicto cannot he sustained. A motion for a new trial was filed, the principal reason assigned in support thereof being that the verdict was excessive in amount. We cannot so declare. While there was considerable controversy over the facts concerning certain elements of damage, it appeared satisfactorily that the plaintiff was laid up for a considerable time after the accident, during which time he was unable to do any work, and that he underwent severe pain and suffering, and while the evidence did not show any of the bones of the plaintiff's foot to have been broken, there was the testimony of one of the physicians that the bending of the plaintiff's toes may be impaired permanently. The question of the amount of damages was one for the jury under all the evidence, and we do not feel warranted in interfering with the verdict returned. There is nothing in any of the other reasons assigned, in our opinion, requiring the granting of a new trial. And now, November 17, 1914, for the reasons set forth in the opinion herewith filed, the motion for judgment for the defendant non obstante veredicto is denied, the motion for a new trial is overruled and dismissed and a new trial refused, and it is ordered that judgment be entered on the verdict upon payment of the jury fee. Commonwealth vs. Filler. Criminal law-Homicide Trial-Misconduct of jury-New trial. A motion for a new trial in a murder case giving as a reason that the jurors while exercising and in charge of the court officer visited, at the suggestion of the jury a place mentioned by the defendant in his testimony which motion is based on the affidavit of several of the jurors, will be refused. The Jurors are incompetent to give evidence of their own misconduct. In such a case the affidavit of the officer in charge of the jury that they visited while in his charge a place mentioned by the defendant in his testimony will not be a sufficient ground for a new trial when it appears that the defendant's evidence in regard to his being at this spot was not material and the inspection of the place by the jury could not work the defendant any injury. Motion for new trial. No. 62 November Sessions, 1914. O. & T. Westmoreland County. C. Ward Eicher, District Attorney, for Commonwealth. MCCONNELL, J., December 19, 1914. The defendant was convicted of aurder in the first degree, and, on the 23rd of November, 1914, he filed a motion and reasons for a new trial. The reasons in support of the motion are four in number, the first being: "The learned Court erred in his charge to the jury." It is not possible to deal with a question so vague and general, and it is, therefore, overruled. The second reason is to this effect: "The verdict was against the weight of the evidence." Although the evidence was of a circumstantial character, yet it was, when looked at in its entirety, very convincing. A careful examination of the testimony convinces us that the verdict was in accord with the evidence. Where that is the case, a new trial should not be granted on the reasons assigned. Com. vs. Rogers, 10 Phil., 187; Com. vs. Alsop, 1 Brewster, 328; Com. vs. Tritchell, 1 Brewster, 551. The next two reasons may be considered together, for they, in fact, constitute but one reason: "Third. The verdict was not based on the evidence submitted to the jury in the case, but on the personal observations and views of the jurors of places, objects and conditions viewed by the jurors during the trial of the case, without permission of the Court, and without notice to the defendant or his counsel. Fourth. The jury was guilty of misconduct in viewing the premises and places testified about at the trial, and in considering evidence which was not submitted by the Court." These reasons filed on the 23rd day of November are not sworn to, but are simply signed by defendant's counsel. "Reasons for a new trial, where not founded on evidence in the cause, should be verified by affidavit." Dietrich vs. Lancaster, 212 Pa., 566. Our Rule No. 139 so requires. However, on the second of December, five affidavits were filed designed to support the motion that had theretofore been made and filed. Of these five affidavits, four are by jurors who were empaneled in the case and who joined with their fellows in the rendering of the verdict. In the case of Smalley vs. Morris, 157 Pa., 352, the Court below said: "The great weight of authority everywhere, and I think all the authorities in Pennsylvania, are against the reception of the testimony of jurors to impeach their verdict, either by showing their own misconduct, or by contradicting the record as to their determinations." The Supreme Court, in affirming the judgment of the lower court, speaking through Mr. Chief Justice Sterrett, said: "To sanction the introduction of affidavits made Commonwealth vs. Filler. by some of the jurors after their verdict has been received and recorded by the Court would be fraught with the most dangerous consequences." "The testimony of one juror cannot be received to impeach the verdict on the ground of misconduct of other jurors." Com. vs. Reber, 10 Dist., 683; Cluggage vs. Swan, 4 Binn, 150; White vs. White, 5 Rawle, 61; Stull vs. Stull, 197 Pa., 243: Willing vs. Swasey, 1 Brown, 123; Kunkel vs. Hughes, 6 Dist., 356. The verdict cannot be impeached by the affidavits or declarations of jurors showing that they acted on evidence other than that adduced before them on the trial." Taylor vs. Com., 90 Va., 109, 17 S. E., 812; Smith vs. State, 26 S. W., 712. In White vs. White, supra, it was held that "affidavits of jurors are inadmissible to inculpate their fellows or themselves." This rule from the time of Lord Mansfield has been well nigh universally adhered to. One writer says that there are but six States in the Union where it is modified, and an examination will show that, in most of those States, it has been modified by code or statute. "Upon grounds of public policy courts have almost universally agreed upon the rule that no affidavits, depositions or other sworn statement of a juror will be received to impeach the verdict, to explain it, to show on what ground it was rendered, or to show a mistake in it." Thompson on Trials, Sec. 2618. "An affidavit showing that the jurors considered facts not legally in evidence is not admissible. Accordingly, that a juror stated to the jury matters purporting to be within his personal knowledge cannot be proved by the affidavit or testimony of other jurors. An affidavit of a juror showing that the jury improperly visited the premises and had the facts explained to them is not admissible." 8 Ency. of Evidence, 969 and 970. "Could jurors, grand or petit, nullify their findings, they would be constantly subject to corrupt approaches from defeated parties; for which, and other reasons, the law does not permit it." 1 Bishop New Crim. Procedure, Section 1270. "The general rule is the same in criminal cases, as that in civil cases." & Ency. Ev., 965. The affidavit of jurors filed in support of this motion are wholly designed to show misconduct on the part of the jurors themselves, or the considerations, that, in their opinion, were factors in arriving at a verdict. It is too plain for further discussion that the affidavits are incompetent evidence in support of the motion. Were we engaged in taking depositions, we could not allow these jurors to testify to what is set out in these affidavits. The jurors are incompetent as witnesses to establish the things set out in the affidavits. The affidavits filed in support of the rule stand on the same incompetent basis as the witnesses themselves do. What then results? In the case of Megargel and Connell vs. Waltz, 21 C. C., 633, that question is answered by Judge Archbald: "The Court must decline to listen to the evidence, and argument based on it falls." The motion, therefore, stands without any support whatever from these four affidavits of jurors. We cannot consider or hear argument about what appears only in them. That leaves the motion for a new trial supported only by the affidavit of James Caldwell, one of the officers who had been appointed to take charge of the jury. He seems to be unaware of the fact that, in his affidavit, he is attesting his own unfaithfulness to the trust reposed in him. From that affidavit it appears that: "On Thursday morning, November 19, 1914, between the hours of seven and eight o'clock, while the jurors were taking a walk, for exercise, northward on Pennsylvania Avenue, Greensburg, Pa., one or more of said jury requested him to take the jury to the Arch at Brushton Avenue; that, without permission of the Court or notice to defendant, H. E. Filler, |