case would have been for the jury. The non- I notify the bank of the mispayment. This nosuit, which the court in banc refused to take off, was evidently directed by the trial judge because that averment was not so supported. While no reason was given for entering the nonsuit, and none for refusing to take it off, it ought, under the material facts in the case, as developed by the plaintiff himself, to have been entered for his delay in notifying the bank of the forgery; and it is to be assumed it was entered for that reason. The vindication of the judgment of the court below is to be found in a brief recital of those facts. Out tice was given August 5th, or 42 days after On January 24, 1910, M. Morris Moskovitz, a member of the bar of Lackawanna county, applied to the appellant for a mortgage loan to one of his clients, Alexander Szeghi. In company with Moskovitz the appellant view-name. In the face of all this it is urged that ed the property which the former told him belonged to Szeghi, and, having been assured by Moskovitz that the title was good, he accepted and left for record a mortgage, apparently signed and acknowledged by Szeghi. The mortgage was delivered to the appellant by Moskovitz, who stated that Szeghi was not able to be present on account of business engagements. Upon receipt of the mortgage, the appellant handed Moskovitz his check for $1,450, the amount of the loan, drawn on the appellee to the order of Szeghi. Moskovitz 79. deposited this check, bearing the forged indorsement, "Alexander Szeghi," to his own credit in a bank, which forwarded it to the defendant bank, where it was paid and charged to the appellant's account. Early in May, 1910, he went to Europe, and returned to Scranton on the 18th of the following month, when he learned that Moskovitz was 1. ADVERSE POSSESSION (§ 66*) - EXTENSION a defaulter and had absconded. He then went to look at the property described in the Where adjoining landowners occupied up mortgage and learned that Szeghi was not to a fence for more than 21 years, each claimthe owner of it. Having learned that a ing the land on his side, this gives to each party a right up to the fence, whether it is 'on the fraud had been practiced upon him, he im-line established by the original survey or not. mediately consulted a lawyer, and on or about June 20th went to the Union National Bank of Scranton to consult Mr. Wollerton, § 66.*] the cashier, about the situation. His testimony as to this is as follows: the jury ought to have been allowed to pass upon the question of the appellant's prompt notice to the bank. To have submitted that question to them would have been such manifest error that the trial judge may be excused for not giving his reason for entering the nonsuit. Among the authorities that compelled him to declare that the plaintiff could not recover reference need be made only to McNeeley v. Bank of North America, 221 Pa. 588, 70 Atl. 891, 20 L. R. A. (N. S.) | Judgment affirmed. (245 Pa. 94) MILES et al. v. PENNSYLVANIA COAL CO. (Supreme Court of Pennsylvania. April 20, 1914.) TO BOUNDARIES-FENCES. [Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. §§ 371-383; Dec. Dig. 2. BOUNDARIES (§ 48*)-ACQUIESCENCE-ADVERSE POSSESSION. Where, in ejectment to recover land occupied by defendant and separated from plaintiff's land by a fence, both parties claimed under the commonwealth, and there was evidence by defendant that for more than 21 years the existing boundary had been marked by fences, acquiesced in by adjoining landowners, judgment for defendant was justified by the evidence. "Q. Why did you go to Mr. Wollerton? A. I went there for information, to find something out, if the check was forged or not, if the right party got the money or didn't get the money. I didn't know how to make out. I wasn't in any doubt that the party didn't get the money." Two or three days later (on the 23d of June) he employed counsel, to whom he said according to his own testimony, "The check was misindorsed, and the bank had no business to cash the check." On July 2d, without having given the bank any notice of what he then knew had been a mispayment by it, he Action by William Miles and others against went to Oklahoma, returning to Scranton on the Pennsylvania Coal Company. Judgment the 26th or 27th of the same month. On for defendant, and plaintiffs appeal. AfAugust 1st he got from Mr. Wollerton, the firmed. cashier of the Union National Bank, the [Ed. Note.-For other cases, see Boundaries, Cent. Dig. §§ 232-242; Dec. Dig. § 48.*] Appeal from Court of Common Pleas, Lackawanna County. Argued before FELL, C. J., and BROWN, check which he had left with him, and hand- MESTREZAT, ELKIN, and ELKIN, and MOSCHZISed it to his attorney, with instructions to KER, JJ. *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes S. B. Price, C. B. Price, and J. H. Price, all | closed by the record is that the marking of of Scranton, for appellants. H. A. Knapp the line in 1868, the maintenance of fences, and John P. Kelly, both of Scranton, for ap- and the acquiescence of the adjoining landpellee. owners in the line thus established were questions for the jury, and they were so submitted. In our opinion, the evidence is absolutely convincing that this consentable line was established in 1868, and that it has been recognized and acquiesced in by all interested parties until within a very recent period, when appellants undertook to disregard it. The jury must have so found, because to have done otherwise would have been to ignore the established facts. ELKIN, J. The numerous assignments of error in this case raise many interesting questions of law, but, as we view the record, a discussion of a very few of the legal positions pressed upon us by learned counsel will suffice to dispose of the present controversy. We will not therefore undertake to follow the printed argument by discussing the specifications of error separately. [1] It must be conceded on all sides, indeed it is conceded, that if a consentable line marked on the ground was recognized and acquiesced in by the adjoining landowners since 1868, a permanent boundary was established, and with that boundary line thus fixed there is no basis for the contention made by appellants here. In the light of our own cases no one can seriously question this settled rule of law. As far back as Brown v. McKinney, 9 Watts, 565, 567 (36 Am. Dec. 139), this court said: "It cannot be disputed that an occupation up to a fence on each side by a party or two parties for more than 21 years, each party claiming the land on his side as his own, gives to each an incontestable right up to the fence, and equally whether the fence is precisely on the right line or not." Our courts have always favored the settlement of disputes of this character by recognizing consentable lines established by the parties themselves, and this without regard to whether the line agreed upon conforms to the exact courses, distances, and bounds of the original surveys. This rule applies with convincing force to the facts of the case at bar. [2] In the original surveys there was a large amount of surplus land, most of which was included within the boundaries of the tract held by appellants, when the consentable line was marked on the ground. They are not in position to say that they were overreached in the division of the surplus land when the line between the two tracts was marked on the ground in 1868. So far as the division of the surplus land between the two adjoining tracts is concerned, the equities are with the appellee, but aside from this, and without reference to the division of the surplus land, the fact is that a line was marked on the ground at that time, and the evidence shows that it has been maintained, to some extent at least, and acquiesced in by the interested parties from that time to the present. Appellants undertook to discredit the line established in 1868, and to show that it had not been marked and recognized in such a way as to make it binding on the parties. The convincing weight of the evidence is against the contention of appellants, but the most favorable view that could be taken of the facts as dis Then, again, the case is just as clearly against appellants on the questions of adverse possession. It has long been settled in Pennsylvania that a person in possession by a fence as his line for more than 21 years, establishes his right to claim title to the line thus marked. Brown v. McKinney, 9 Watts, 565, 567; Reiter v. McJunkin, 173 Pa. 82, 33 Atl. 1012. It is not disputed that the appellee holds the title to the Hooker Smith tract, and the only question that could arise is the location of the line in controversy. of the line in controversy. No matter what doubt may have existed as to the original location of this line, the adjoining landowners consented to the line marked on the ground in 1868, and have acquiesced in that consentable line ever since. Most of the questions raised by this appeal relate to other matters, and the rulings of the court about which complaint is made have no direct bearing upon the controlling issues in the case. *For other cases see same pic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes Action by Jennie D. Turner against the Borough of Towanda. Judgment for plaintiff, and defendant appeals. Affirmed. Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, and STEWART, JJ. Rodney A. Mercur, of Towanda, for appellant. J. Roy Lilley, William P. Wilson, and Mial E. Lilley, all of Towanda, for appellee. PER CURIAM. The plaintiff was seriously injured by falling on a ridge or mound of ice on the sidewalk of a main street of a borough. The flagstones with which the street was paved were not of uniform height, and on the lower of them pools of water some two inches deep collected, which by freezing and thawing formed slush and accumulated snow, that became worn into ridges that extended across the walk. The walk had been out of repair for several years, and the ridges of ice had been on it a number of weeks. The main question at the trial was whether the plaintiff's contributory negligence barred a recovery. She was familiar with the condition of the walk, and knew of the ridges of ice, but not of their exact location, and was carefully trying to avoid them. It was dark, and a slight fall of snow obscured the dark, and a slight fall of snow obscured the ridges, and the shadows of poles, tree branches, and wires across the pavement increased her difficulty. The sidewalk on the opposite side of the street was in the same condition, and it did not appear that there was a safer way open to her. She was not unnecessarily or heedlessly testing a known danger, but attempting to guard against one that she could not avoid. Whether she exercised proper care was a question for the jury, and we find no error in the manner in which it was submitted that calls for a reversal. The judgment is affirmed. (245 Pa. 71) E. Spencer Miller, of Philadelphia, for appellants. Paul Freeman, of Philadelphia, and J. Hayden Oliver and Daniel R. Reese, both of Scranton, for appellee. PER CURIAM. In this action against the defendant, a common carrier, for alleged failure to deliver goods to a consignee, the plaintiffs failed to sustain their averment of misdeliveries, while, on the other hand, the defendant showed that proper deliveries had been made. In his charge to the jury, directing them to find for the defendant, the learned trial judge concisely, clearly, and correctly presented the situation, and, as we have discovered no error in any of the assignments, the judgment is affirmed. (245 Pa. 28) ALEXANDER v. WILKES-BARRE ANTHRACITE COAL CO. et al. (Supreme Court of Pennsylvania. March 30, 1914.) NUISANCE (§ 25*) — WORKING OF COLLIERY PRELIMINARY INJUNCTION. Where an owner of a dwelling house sued for an injunction to restrain defendant coal company from working its colliery near his residence, a preliminary injunction was properly denied, where the injuries to plaintiff were not of a pressing character, and an injunction would stop the mining operations of defendant, throw a large number of employés out of work, and cause a large loss to defendant, and the injuries complained of had been endured for some time. [Ed. Note.-For other cases, see Nuisance, Cent. Dig. §§ 5, 60-63; Dec. Dig. § 25.*] Appeal from Court of Common Pleas, Luzerne County. Bill of Robert B. Alexander against the Wilkes-Barre Anthracite Coal Company and another. From an order refusing a preliminary injunction, plaintiff appeals. Affirmed. Woodward, J., filed the following opinion in the court of common pleas: This case comes before the court on bill and MALTUS et al. v. DELAWARE, L. & W. R. answer; the bill praying for an injunction and CO. (Supreme Court of Pennsylvania. April 13, 1914.) CARRIERS ($ 94*) MISDELIVERY OF GOODS— DIRECTING VERDICT. In an action against a carrier for failure to deliver goods to a consignee, the verdict was properly directed for defendant, where plaintiff failed to show misdelivery, and defendant showed proper delivery made. [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 367-395, 456; Dec. Dig. § 94.*] Appeal from Court of Common Pleas, Philadelphia County. Action by William A. Maltus and Heber J. Ware, trading as Maltus & Ware, against the Delaware, Lackawanna & Western Railroad Company. Judgment for defendant, and plaintiffs appeal. Affirmed. Argued before BROWN, MESTREZAT, POTTER, ELKIN,, and MOSCHZISKER, JJ. other relief, and the answer denying the material allegations in the bill. The first three prayers of the bill must be denied for the following reasons: The first prayer is for a temporary or preliminary injunction to restrain the defendant, the Wilkes-Barre Anthracite Coal Company, its officers, agents and employés, from working its colliery in violation of the law, as is alleged in the bill and denied in the answer. This must be refused, because the inconvenience and injury that the plaintiff alleges he has sustained and still sustains are not of such a pressing character as to warrant a preliminary injunction, the result of which would be to stop the mining operations of the defendant and throw a large number of employés out of employment, and also result in large loss of business to the defendant company. for some time, and various other efforts to reThe injuries complained of have been endured lieve the situation have been resorted to by the plaintiff, so that it seems clear that this is not a case for a preliminary injunction. The second prayer is for a mandatory injunction to compel the Wilkes-Barre Anthracite Coal Company to remove its washery and boilers to some For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes place where they will not cause the alleged in- 12. NEGLIGENCE (§ 56*)-"PROXIMATE CAUSE. juries to the plaintiff; and the third prayer is for a mandatory injunction to compel the removal of the coal breaker of the defendant company to some other location. This relief, of course, could not be granted by preliminary injunction, especially under the pleadings in this case. The fourth prayer is for an order on the Wilkes-Barre Anthracite Coal Company to allow the plaintiff's engineer access to the coal breaker and other structures of the defendant company for the purpose of inspecting the appliances used in the preparation of coal, and for the purpose of ascertaining if persons are employed contrary to law in the preparation of coal in said structures. As one complaint in the bill is that the breaker of defendant company emits larger quantities of dust than it would if equipped with approved appliances for controlling dust, and that the dust thus produced enters the dwelling house of the plaintiff in large quantities, and that the said breaker on this account is a nuisance from which the plaintiff suffers peculiar damage, and also that the smokestacks, through which the smoke from the fires under the boilers is carried, throw out dust of different colors which enters the plaintiff's residence, causing peculiar damage to the plaintiff, we feel disposed to grant this prayer of the bill, provided that the examination is made in such a way as not to interfere with the defendant company in the operation of its colliery, and therefore order and decree that the defendant the Wilkes-Barre Anthracite Coal Company permit the plaintiff by his engineer, to inspect its breaker and other outside structures at such time as may be convenient and reasonable, and accompanied by a representative of defendant company, if it so chooses, to ascertain whethed the defendant company has in use such apparatus for the prevention of dust as is ordinarily in use in like collieries in these regions. The fifth prayer is "for such other and further relief as the circumstances of the case may require, and to the court may seem meet." With the order and decree just made, the court has granted all the relief that can be given at this stage of the case. Robert B. Alexander and John McGahren, both of Wilkes-Barre, for appellant. Benjamin R. Jones, of Wilkes-Barre, for appellee. PER CURIAM. The decree appealed from is affirmed on the opinion of Judge Woodward refusing a preliminary injunction. (245 Pa. 25) KING v. LEHIGH VALLEY R. CO. (Supreme Court of Pennsylvania. March 30, 1914.) 1. NEGLIGENCE (§ 82*)-CONTRIBUTORY NEGLIGENCE PERSONAL INJURIES — RIGHT OF RECOVERY. The manager of a coal yard having switching connections with railroad tracks was injured from a fall due to a giving way of a footwalk, the support of which had been weakened by a freight car being pushed against it by trainmen about a week before. He had, or by looking while working about the yard during the week would have had, full knowledge of the exact extent of the clearly apparent damage done by the car, and yet without taking any precaution went upon the walk. Held, that his own negligence, and not that of the trainmen a week before, was the proximate cause of his injury. [Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 112-114; Dec. Dig. § 82.*] The test of "proximate cause" is whether the facts constitute a continuous succession of events so linked together that they become a natural whole, or whether the chain of events is so broken that they become independent, and the final result is not the natural and probable consequence of the primary cause. Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, and STEWART, JJ. D. C. De Witt, of Towanda, for appellant. J. Roy Lilley, William P. Wilson, and Mial E. Lilley, all of Towanda, for appellee. 'PER CURIAM. [1] This appeal is from a judgment entered for the defendant by direc tion of the court non obstante veredicto on a question of law reserved at the trial. The plaintiff was one of the lessees and the manager of a coal yard that had a switch connection with the defendant's tracks. Within the yard the track of the switch was on trestle work, and under it there were a number of bins, and at one side a narrow footwalk of planks supported on the trestles and extending over the bins. The track and bins were covered by a frame shed. Loaded coal cars were delivered by the defendant on the switch at the west end of the yard from which place they were removed by the plaintiff and to which empty cars were returned by him. A loaded car that was pushed onto the switch ran into the building with such force as to injure the trestle work, to break down the bumper at the end of the track, to injure the studding of the shed, and to move from its support the end of a plank of the footwalk, A week after the occurrence, the defendant's carpenters went to the shed to make repairs. While they were at work, the plaintiff in walking towards them from the end of the shed opposite that at which they had commenced work stepped on the end of the plank that was without support and fell into one of the bins. The carpenters had done nothing to the walk and it was then in the condition caused by the impact of the car a week before. During the week the plaintiff had carried on his business in the yard as usual, and the nature and extent of the injury to. the shed and walk were apparent. [2] At the trial there was no dispute as to any material fact. Judgment non obstante veredicto was entered on the ground that the plaintiff's negligence was the proximate cause of his injury. We concur in the conclusion reached by the learned trial judge. *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes The plaintiff had, or by looking would have | light. The injury to his back has so weakhad, full knowledge of the exact extent of ened it that he is unable to do more than the damage done, and without taking any half the work he before did, or to do heavy precaution he went where he had reason to work of any kind. He had not incurred exapprehend danger. His injury cannot be penses for medical attendance, and he had said to be the natural and probable result of lost nothing in wages. He had been ema negligent act of the defendant's trainmen ployed as a farm laborer by the same per a week before. son for 18 years before his injury, and has since continued to receive the same wages, although his service was worth only half as much. The amount of wages received was not, however, shown. "The test of proximate cause is whether the facts constitute a continuous succession of events so linked together that they become a natural whole, or whether the chain of events is so broken that they become independent, and the final result cannot be said to be the nat ural and probable consequence of the primary cause, the negligence of the defendants." Thomas v. Railroad Co., 194 Pa. 511, 45 Atl. 345. The judgment is affirmed. (245 Pa. 7) HITZ v. PITTSBURGH & B. ST. RY. CO. (Supreme Court of Pennsylvania. March 30, 1914.) 1. APPEAL AND ERROR (§ 1004*) REVIEW EXCESSIVE DAMAGES. The power given by Act May 20, 1891 (P. L. 101), to the Supreme Court to reverse a judgment on the ground that the damages are excessive, will be exercised only where the injustice is so manifest as to show clear abuse of discretion below. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3944-3947; Dec. Dig. § 1004.*1 2. DAMAGES (§ 132*)-PERSONAL INJURIESEXCESSIVE DAMAGES. Verdict for $4,000 for personal injuries was not excessive, where plaintiff's head and back were injured, and he was unconscious for nearly an hour after the accident, had suffered constant headaches and insomnia, and the sight of one eye was impaired, and its removal might be necessary, and his back was so injured that he was unable to do more than half the work he did before. [Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig. § 132.*] Appeal from Court of Common Pleas, Allegheny County. Action by Jacob Hitz against the Pittsburgh & Butler Street Railway Company. Judgment for plaintiff for $4,000, and defendant appeals. Affirmed. Argued before FELL, C. J., and BROWN, ELKIN, STEWART, and MOSCHZISKER, JJ. William A. Challener and Clarence Burleigh, both of Pittsburgh, for appellant. Thomas M. Marshall and Thomas M. Marshall, Jr., both of Pittsburgh, for appellee. PER CURIAM. In a collision of the defendant's car with a wagon on which the plaintiff was riding, his head and back were injured. He was unconscious for nearly an hour, and has since suffered from constant headaches and insomnia. The injury to his head seriously impaired the sight of one eye, and the testimony tended to show that it may be necessary either to remove the eye or to wear a patch over it to exclude the [1, 2] It is conceded that the case was for the jury, and no exception was taken to the rulings of the court on the evidence, or to the charge. The only question presented by the assignment of error is whether a new trial should have been granted because the verdict of $4,000 was excessive. While there was no proof of expenses incurred, or of the amount of wages paid, by which the loss in earning power could be determined, there remained, as elements to be considered and allowed for, pain, suffering, and inconvenience endured and likely to be endured in the future. These were the elements of damage submitted to the jury, and we are not persuaded that its verdict was excessive. It was certainly not so excessive that the court can be charged with error in allowing it to stand, and there is no ground for our interference with it. The power conferred by act May 20, 1891 (P. L. 101), has been exercised but once (Smith v. Times Publishing Co., 178 Pa. 481, 36 Atl. 296, 35 L. R. A. 819), and it has been repeatedly said that it will not be exercised, except in extreme cases, where the injustice of allowing an excessive verdict to stand is so manifest as to show a clear abuse of discretion by the trial court (Harrisburg, Carlisle & Chambersburg Turnpike Road Co. v. Cumberland County, 225 Pa. 467, 74 Atl. 340). The judgment is affirmed. (245 Pa. 12) GOSS v. SPENCER. (Supreme Court of Pennsylvania. March 30, 1914.) 1. EQUITY (§ 182*)-PLEADING-DECISION IN LIMINE. Where an answer to a bill in equity avers that the bill is a mere ejectment bill raising only the question of right of possession, and not setting forth any equitable jurisdiction, and that the court has no jurisdiction, it sufficiently complies with the requirements of Act June 7, 1907 (P. L. 440), that if an "answer be filed averring that the suit should have been brought at law, that issue shall be determined in limine." [Ed. Note.-For other cases, see Equity, Cent. Dig. §§ 413, 418-421; Dec. Dig. § 182.*] 2. QUIETING TITLE (§ 12*)-JURISDICTION. A bill to remove cloud from title to land will not lie where plaintiff is out of possession and claiming a title passed on the nullity of a certain deed, and defendant claims on the validity of the same deed, and the bill prays that defendant, who is in possession, be restrained *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |