Page. Subject. light. The testimony of the defendant was to the effect that the headlight was on and the whistle and bell signals given. Held, That the case was for the jury.. In an action for personal 159 165 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 lefthand side of the road at a reckless rate of speed and was evidently intending to turn off on a crossroad, and that in order to avoid him, defendant ran his machine to his left hand. Held, That the case was for the jury. Plaintiff's agent was driving a motor truck on a public highway and was attempting to pass over a grade crossing of defendant's railroad. Just as he was upon the first track he noticed the far safety gate descending and stopped the truck and attempted to back out when he was struck by defendant's train. Held, That driver's failure to stop. look and listen was the cause of the accident and that he was careless in not stopping his car and engine and listening for a train or for the crossing bell. Had he stopped his car at the usual place near the crossing before entering upon it he would have heard the warning bell of which he had knowledge... 292 In an action for personal injuries, the Plaintiff's testimony was that he was told to saw a block of wood on a circular saw which was unguarded and was injured in doing this work. In front of the saw was a good sized sign, stating that only an authorized operator must use this saw. Plaintiff testified that he did not see the notice. Held, That as there was no proof of Plaintiff's knowledge of the notice, there was nothing to show that he was not bound to obey the order of the foreman and the case was for the jury In an action for personal injuries by 280 300 344 332 366 374 dition of the manganese and refused to work, but was induced to return by the foreman promising that dry manganese would be furnished. Verdict for Plaintiff... Defendant is responsible to the plaintiff for the fair and reasonable expense of repairing cracks in the walls and ceilings of the rooms of a dwelling, and walls of a cistern, made necessary by careless and negligent acts by blasting in constructing a railroad.... Plaintiff testified that-as he passed over a highway and around the rear end of a street car then at a stop, and out into the space between the curb and the car-he was struck by an automobile running at a dangerous speed on the wrong side of the highway. Defendant testified that the injury was unavoidable, due to plaintiff's passing suddenly in front of the autimobile. In an action to recover damages Held, That the liability or non-liability of the defendant was an issue of fact for the jury Plaintiff's crippled automobile hauled by a truck was hit by street car when truck had passed over tracks and plaintiff was injured. Held, Question of negligence and contributory negligence was for the jury since the evidence was conflicting.. 384 Plaintiff drove his team across a street car track in daylight and in full view of an approaching car 250 to 300 feet away. A person intending to get on the car was standing at the usual place for the approaching car to stop, waiving an umbrella to attract the attention of the motorman to stop the car. The jury disagreed. Defendant moved for judgment on the whole record. Held, Judgment entered for defendant as there was no evidence to relieve the plaintiff of contributory negligence in driving in front of the approaching car; especially when, if he had looked immediately before driving on the tracks, he could easily have avoided the accident.... 405 The payment of medical expenses by the person causing the injuries is no consideration for a release, defendant being liable for these expenses, and any other damages, which the injuries occasioned A boy 16 years old fell into a vat of 444 487 Page. Subject. its proper use, or of any defect that would have prevented the accident, a verdict for the plaintiff would not be disturbed Plaintiff, this tinner, a employed by defendant for years in repairing cars, was injured by the breaking of a scaffold while putting a corrugated iron roof on an addition to defendant's machine shop. The defendant was а common carrier engaged in inter-State business, and in machine shop cars were repaired from all over the United States. The sole question involved on the motion for a new trial was whether the plaintiff was engaged in inter-State commerce, so as to bring him within the Federal Employers' Liability Act. Held, That it was a question for the jury to determine whether or not the work being done by plaintiff at the time of the injury was a part of the inter-state commerce in which defendant admittedly was engaged and new trial granted. The plaintiff had charge of a of workmen engaged in unloading heavy machinery from cars. Plaintiff was injured by an end-gate falling. He testified that he had told the superintendent defendant of company that the end-gate placed as it was by the superintendent's direction, was in a dangerous position, and that the superintendent had told him they would get a derrick after while, but that they should go ahead and unload in the manner directed. Whether the accident happened from any failure or unsafe condition of the apparatus as contemplated by the parties, or what might happen by reason of unsafe conditions was a question gang of fact for the jury, and a motion for judgment for defendant n. o. v. refused a a car 503 497 532 Plaintiff owned valuable dog and turned it loose for a run. The dog failing to return the owner, searching, found it standing on street car track and testified that he called to the motorman of a rapidly approaching car to stop. The was not stopped and the dog was killed. The motorman testified that he knew nothing of the incident until long afterward. Verdict for plaintiff. Held, Plaintiff was negligent in turning the dog loose as he had done, and as there was no evidence of negligence of defendant, judgment n. o. v. for defendant.... 538 Plaintiff had been run into and in jured on a public street by an automobile delivery truck, bearing the defendant company's name, was operated by the secretary of the defendant company and it was a question whether the secretary had authority to use the vehicle. The accident happened on Sunday and the defendant's store was open on that day. Held, That the case was for the jury Plaintiff sued to recover for personal injuries received while employed in defendant's mill. Plaintiff admitted having signed a release. Defendant produced the release which in its written terms materially differed from the allegations of plaintiff. was not denied that defendant had carried out the terms of the written release and had paid even more than was therein stipulated. Verdict for plaintiff but judgment n. o. v. for defendant. On petition to allow an appeal from the County Court to the Common Pleas. Held. That judgment n. o. v. was properly entered in that the oral evidence was insuf It 620 Subject. were Page. ficient to overcome the legal effect of the written release; that there no allegations or proot of fraud, accident or mistake and that voluntary payments by defendant could not be tortured into a corroboration of plaintiff's alleged oral agreement NEGOTIABLE PAPER. See Bills and Notes. NEW TRIAL. The affidavit of the officer in charge of the jury in a murder case 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 new trial will be granted where plaintiff's counsel in cross-examining the defendant, referred to the amount of damages claimed plaintiff's statement A 680 18 in 35 A new trial on the ground that the amount of the verdict is wrong will be granted only with reluctance. and the Jury's verdict should not be disturbed unless it appears to have been the result of sympathy, prejudice or disregard of the evidence or the instructions of the court A motion for a new trial in a negligence case was made by the plaintiff. Defendant based his motion on the ground that after the trial new evidence was discovered to the effect that plaintiff's condition was not due to the accident complained of, but a result of a long standing ailment. In support of which defendant offered the affidavits of nine witnesses and three physicians. Plaintiff answered by filing an affidavit of 19 witnesses, flatly contradicting those on behalf of the defendant, at the same time urging the additional evidence of 10 witnesses examined at the trial. Held, That the Court would not be justified in granting a new trial unless it would reasonably appear that the evidence contained in defendant's depositions, if given on another trial. would result in a different verdict. New trial refused.. as In the trial of a negligence case for the personal injuries at the close of the charge, counsel requested the Court to submit the question of pain and suffering to the jury as an element of damages. This request was refused on the ground that no evidence had been submitted that plaintiff had endured pain and suffering as a result of his injuries. Held, This was error as pain and suffering would be presumed and plaintiff was not required to submit evidence and his rights were infringed when this question was taken from the jury. New trial granted At the trial of a negligence case the evidence of both the defendant and the superintendent showed that defendant had no control or direction over the superintendent as to anything more than the result of the work; that the defendant was never present but once during the progress of the work and lived away from the place: never saw the stone quarry, and had no knowledge of the work involved. Held, That the jury was not justified in finding that the relation of master and servant existed; that the Court is not obliged 42 731 751 Page. men 428 Subject. to recognize any finding of a jury, regardless of the great weight of evidence. New trial granted....... 757 On a motion for a new trial on the ground that the verdict was not in accordance with the weigh: of the evidence, the question is not what the Court would have decided nor what jury a of reasonable ought to have done, but what a jury of reasonable men might have done under similar circumstances. Plaintiff, a tinner, employed by defendant for years in repairing cars, was injured by the breaking of a scaffold while putting a corrugated iron roof on an addition to defendant's machine shop. The defendant was a common carrier engaged in inter-state business, and in this machine shop cars were repaired from all over the United States. The sole question involved on the motion for a new trial was whether the plaintiff was engaged in interstate commerce, so as to bring him within the Federal Employers' Liability Act. Held, That it was a question for the jury to determine whether or not the work being done by plaintiff at the time of the injury was a part of the inter-state commerce in which defendant admittedly was engaged and new trial granted .... 497 A new trial will be refused; where the verdict was for the defendant in a case involving damages to the plaintiff's property, alleged to have been caused by the change of grade made in accordance with the terms of a city ordinance; where the jury had made a view, and both sides were accorded a full opportunity to submit evidence, the only question being as to the charge of the Court as to general and special benefits and measure of damages, and there was apparently nothing in the charge that would likely mislead the jury on any material question.. 551 A locomotive collided with a street car and knocked it off the track at a crossing. Plaintiff, a pedestrian, was found beside the track and taken to a hospital. There was a question as to whether plaintiff was actually hit or suffered heart trouble as a consequence of the excitement. Plaintiff vainly tried to collect damages from both the railroad company and the street car compaany, and then sued the railroad. There was no evidence that plaintiff contributed to the accident. Plaintiff's statement of claim averred "that the car struck and knocked him down." Plaintiff testified that "the train didn't hit me and the street car didn't hit me and nothing hit me I just got so scared that my heart is out of place now, etc." Verdict for plaintiff and motion for new trial ground of variance between allegata and probata and instructions as to measure of damages. New trial granted NON-PARTISAN TICKET. See Elections. NOTES. See Bills and Notes. NOTICE. See also Process Service. on Publication in a Sunday newspaper of a notice or advertisement required by law does not constitute legal notice 571 537 The bringing of suit on a demand note is sufficient notice of demand. 206 In posting notice of an ordinance by petition for a street improvement, the notice must show that there is a right of appeal to court on the question whether there was a maA jority in number and interest. failure of the notice to so state permits the property owners to raise that question on exceptions.. 254 While the Act of 1913 does not require notice to all the candidates of the proposed action to reject the whole vote as to all candidates and for all the offices, it is proper practice that such notice be given..... 585 Plaintiffs sued to recover for casinghead gas alleged to have been used by defendant from wells in the operation of the wheels on the lease and adjoining farm. Plaintiffs' testimony was very indefinite as to the amount of gas used and the market value thereof. Defendant testified as to how the wells were connected and that the gas from each well was sufficient for its operation and, in effect, that no gas was used from plaintiffs' wells, or if used, was of no value. Verdict for defendant and new trial refused 555 OPIUM. See Criminal Law. ORDINANCES. See Pleading and Practice. ORPHANAGE. See Public Schools. PAROLE OF PRISONERS. See Criminal Law and Habeas Corpus. PARTITION. See also Equity; Appeal and Error; Landlord and Tenant. In a partition proceeding in equity, all proceedings before a Master after the preparation of his report showing his scheme of partition and valuation are under the immeThe diate direction of the Court. Master after preparing his report showing the purparts and their valuations must give notice to the parties for the purpose of allowing exceptions, and then file his report in Court. When the report is finally passed upon by the Court, either party may appeal. The rule upon the parties to appear and bid over or choose or refuse the purparts or show cause why same should not be sold, emanates from the Court and is not granted by the Master 133 In a partition proceedings, all the parties of record admitted that a parol been agreement had perfected. Held, That no other or further partition could be made and no deeds are necessary to perfect it.. 494 Page. Subject. Subject. In a partition proceeding the land was divided into two purparts, and the heirs elected to take the purparts at their valuation. Exception was filed to the decree in that no provision was made for the payment to the life tenant of interest in the whole tract. Held, That a decree requiring payment of interest on the valuation of this purpart to the life tenant, who was in possession, and whose right could not be questioned, could not be sustained equitable principle a wife's on any In a bill for partition of real estate it appeared that two properties, purchased by money, were sold on July 31st, 1902, and during the following months three Tots were purchased by the husband. After his death, leaving a widow and five children, this bill was filed to partition these three lots. One of the contentions was that as the wife's money had paid for this realty, the Court should declare a resulting trust. Held, That the evidence as to a resulting trust was too indefinite and uncertain. That as the property stood in the name of the husband at the time of his death, partition ordered.... 599 673 sold out his interest to B, and B subsequently went into bankruptcy. Upon proof of claims by creditors of the partnerships and individual creditors of B, it was held that the individual creditors should have priority in payment out of all the assets of B, including the former partnership property. By reason of the sale from A to B, the partnership was dissolved, the property vested individually in B and the right of priority of the partnership creditors for payment out of this property had been lost.. Plaintiff alleged a partnership and demanded an accounting on the strength of having contributed money for the conduct of a business with the three defendants on a promise that an agreement would be entered into forming a partnership, but the evidence showed that no agreement was ever formally entered into in writing. Held. Evidence insufficient to establish a partnership and bill dismissed..... 334 PENSIONS. The Act of April 29, 1913, relating to Mothers' Pensions and providing for payments to indigent, widowed or abandoned mothers applies only to mothers who are widowed or have been deserted. and not to those who are merely indigent. A mother whose husband is in an Insane Asylum does not come under the Act The object and purpose of the Mothers' Pension Act of 1913, and supplement thereto of June 18, 1915, is to assist indigent, widowed or abandoned mothers in the partial support of their children in their homes, and it will be proper for the Attorney General to make as accurate an estimate of such probable expenses as possible for the distribution of said fund, and deduct the same from the amount to be portioned to the various counties under the Acts. The Attorney General, cannot lawfully continue payments under the Act of April 28, 1913. P. L. 118. as amended by the Act of June 18, 329 60 510 Page. 1915, P. L. 1038, to indigent mothers whose husbands are disabled. or have abandoned them, or to unfortunates who are mothers without lawful husbands. All such applications should be stricken from the list PERSONAL PROPERTY. a .... 671 See Distribution; Sales. PLEADING AND PRACTICE. Where under a lease of a portion of building the entire building becomes unsafe, this may be an excuse for failure to make further payment of rent, yet the facts setting forth the condition of the premises and the facts justifying removal should be specifically set forth and averred with reasonable certainty. In a proceeding to contest an election an affidavit of the required number of qualified electors is essentially necessary to give the court jurisdiction In proceedings to obtain possession of land after Sheriff's Sale, under the Act of April 12, 1905, the petition must conform in all particulars to the Act, and must set forth the names of the persons in possession and that they are the defendants in the execution or derived tine therefrom or otherwise. The petition, however, may be amended under Section 12 of the Act... A petition to strike off names of voters from a registry list in a City of the Third Class must set forth specifically as to each name, the grounds or reasons for complaint. It is not sufficient to make a general charge or averment and attach merely a list of names taken from the registry. 27 32 46 106 319 In an appeal from the County Court to the Common Pleas, appellant should attach all the testimony to his petition when this is necessary to determine whether the jury erred 282 Even with the changes made by the Act of 1905, P. L. in the requirements set forth in the 11th Section of the Act of 1901, the fact that the contract was in writing should have been set forth by the claimant in his statement, and the claim or extras under a subsequent verbal agreement or isolated orders should have been set out separately 305 A statement of claim is defective where plaintiff seeks to recover against two persons jointly one amount of money, and a further sum against one of them individually. An affidavit by husband on behalf of his wife should show his authority Misjoinder of parties should be raised in the answer or by demurrer. At the argument and filing of briefs, on a rule for want of a sufficient affidavit of defense, counsel requested that should the Court find that the affidavit was insufficient, that the defendant be given ten days to file a supplemental affidavit of defense. Request granted. The fact that the petition for the adoption is not accompanied with a sworn certificate of two residents of the county as to the character and standing of the petitioner is unimportant in the absence of a rule of Court requiring it, and when the Court is satisfied otherwise that the welfare of the child will be promoted by the adoption.. Plaintiff filed a bill to have declared illegal an ordinance for the construction through her property of a sewer to drain a certain designated 322 392 474 489 property owned by a single owner for the reason that the preamble of the ordinance designated the owner by name and for its use and did not recite that the sewer was to be public. Held, The fact that the preamble merely designated that the sewer was for the use of the owner of the land to be drained, and did not specify that the sewer was for public use was immaterial, when the enacting part of the ordinance clearly stated that the sewer was to be public. Respondents in an election contest further objected to the opening of the ballot boxes in that petitioners did not sufficiently aver any grounds for the action of the Court in that no specific acts of fraud or reasons for their belief were set out. Held, That an allegation upon information and which petitioners believed to be true that votes were cast for a candidate which in error were not counted for him was sufficient to bring petitioners within the provisions of the Act of 1913, and motion to vacate order to open boxes refused, and a recount should be made according to the provisions of the Act, and an order of Court deemed proper under the circumstances In an action of ejectment defendants are not entitled to a non pros on the ground of insufficiency of plaintiff's abstract of title, where plaintiffs allege that they have given all the information in their possession, unless they set forth the evidence upon which they rely as to when and where their ancestors were born when the claim rests entirely on descent Exceptions to a master's report will be deemed abandoned when not renewed or pressed in court... At the trial of a case for negligence the defendant was permitted to amend the statement as follows: "That defendant's employe so driving said automobile as aforesaid was at the time of said accident the secretary of the defendant corporation, a stockholder therein, and at the time of said accident was engaged in the business of said corporation." The defendant urged that this amendment states a new cause of action and was barred by the Statute of Limitations. Motion denied The affidavit should set forth with reasonable certainty the date or time when the fraud was discovered, when tender was made and what was tendered. On request leave will be granted to amend. 513 521 544 599 620 637 A petition to allow an appeal to the Common Pleas from the County Court will be refused where the jury was instructed that recovery could be had on an insurance policy, when the evidence clearly brought the case within the provisions of the policy. and the trial judge committed no error in his charge...... 647 A supplemental affidavit of defense is sufficient which avers that the parol agreement was made at the time of the execution of the note, that the bank was to hold the stock as collateral security not only for this note, but also for the indebtedness evidenced by the endorsement of three other renewal notes, and that the collateral note would not have been discounted had not the parol agreement been entered into. Amendment allowed where the objection to the form of the affidavit and the person were not made to the original 648 A general denial in an affidavit of defense that a certain deed is good and sufficient for the purposes intended, is merely the defendant's legal conclusion, and not a specification of particulars from which a legal conclusion may be drawn by the court, and is not sufficient to prevent judgment. General averments in an affidavit of defense are not sufficient, particular specifications must be assigned. Questions raised in the argument and briefs of counsel but not alleged in the bill of complaint will not be determined or passed upon by the court Suit was entered to recover the unpaid balance on a written lease or a gas engine and fixtures. Defendant filed an affidavit of defense, admitting having signed the lease, but set up other matters of defense. A rule was entered for want of a sufficient affidavit. At the argument of the rule, defendant asked leave to present a supplemental affidavit with his brief with the understanding that it would be considered notwithstanding the rule requiring affidavits to be filed at or before the argument. Leave to file refused A rule for judgment for want of a sufficient affidavit of defense will be discharged where the defendant alleged payment, but failed to give the date or amount and whether in cash or otherwise, and the plaintiff's averments as to default are equally uncertain as to cash payments and what monthly payments were not made In an action to recover the purchase price of five barrels of whiskey sold by certificate while in bond, the defendant set up that when buying the whiskey the plaintiff made certain representations as to the age, quality and proof of the whiskey which were false. These representations were not in the certificate evidencing the contract. Held, That the affidavit set up a good defense..... PRIMARY ELECTION. See Elections. PRINCIPAL AND AGENT. See Agent. PRINCIPAL AND SURETY. See also Bonds. or Discharge of surety on building contract by change in obligation duty of principal, see notes to United States vs. Walsh, 52 C. C. A., 427; O'Neill vs. Title Guaranty & Trust Co.. 113 C. C. A.. 214: United States Fidelity Co. vs. United States, 116 C. C. A.. 196.. A corporation engaged in the business of suretyship can be relieved from its obligation on a bond only when the departure from the contract, the performance of which it insures, is a material one and to the disadvantage of the surety, and so where the bond is conditioned for the faithful performance by the principal of the building of certain houses and their completion free from mechanics' liens and the contract is changed so that the risk of mechanics' liens is materially increased there can be no recovery against the surety.. Prior to the May Sessions, the court. after hearing, disposed of a desertion and non-support case by directing the defendant to make a certain weekly payment to his wife, and to enter into his recognizance with sufficient surety, conditioned that he comply with said order, but no 661 665 745 782 71 81 113 |