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case would have been for the jury. The non- notify the bank of the mispayment. This noşuit, which the court in banc refused to take tice was given August 5th, or 42 days after off, was evidently directed by the trial judge June 23d, when the appellant must have beca use that averment was not so supported. known that the indorsement of the payee While no reason was given for entering the was forged. It is idle for him to now connonsuit, and none for refusing to take it off, tend, as he does, that he did not then know it ought, under the material facts in the case, that the forgery had been perpetrated. Out as developed by the plaintiff himself, to have of his own mouth there is an admission that been entered for his delay in notifying the on or about June 20th he started an investibank of the forgery; and it is to be assumed it gation to ascertain whether the indorsement was entered for that reason. The vindica- (of the payee was forged, and two days later tion of the judgment of the court below is to he informed his own attorney that the checl be found in a brief recital of those facts. had been misindorsed and that the bank had

On January 24, 1910, M. Morris Moskovitz, no business to cash it. It was his duty to a member of the bar of Lackawanna county, then promptly notify the bank of its mispayapplied to the appellant for a mortgage loan ment, on what he avers in his statement of to one of his clients, Alexander Szeghi. In claim was the forged indorsement of Szeghi's 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 the jury ought to have been allowed to pass belonged to Szeghi, and, having been assured upon the question of the appellant's prompt by Moskovitz that the title was good, he ac- notice to the bank. To have submitted that cepted and left for record a mortgage, ap- question to them would have been such manparently signed and acknowledged by Szeghi. ifest error that the trial judge may be exThe mortgage was delivered to the appellant cused for not giving his reason for entering by Moskovitz, who stated that Szeghi was the nonsuit. Among the authorities that not able to be present on account of business compelled him to declare that the plaintiff engagements. Upon receipt of the mortgage, could not recover reference need be made the appellant handed Moskovitz his check for only to McNeeley v. Bank of North America, $1,450, the amount of the loan, drawn on the 221 Pa. 588, 70 Atl. 891, 20 L. R. A. (N. S.) appellee to the order of Szeghi. Moskovitz 79. deposited this check, bearing the forged in

Judgment affirmed. dorsement, "Alexander Szeghi," to his own credit in a bank, which forwarded it to the defendant bank, where it was paid and

(245 Pa. 94) charged to the appellant's account. Early in MILES et al. v. PENNSYLVANIA COAL CO. May, 1910, he went to Europe, and returned (Supreme Court of Pennsylvania. April 20, to Scranton on the 18th of the following

1914.) month, when he learned that Moskovitz was 1. ADVERSE POSSESSION ($ 66*) — EXTENSION a defaulter and had absconded. He then TO BOUNDARIES-FENCES. 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

[Ed. Note.-For_other cases, see_Adverse about June 20th went to the Union National Possession, Cent. Dig. $$ 371-383; Dec. Dig. Bank of Scranton to consult Mr. Wollerton, $ 66.*] the cashier, about the situation. His testi- 2. BOUNDARIES (48*)—ACQUIESCENCE-ADmony as to this is as follows:

VERSE POSSESSION.

Where, in ejectment to recover land occu"Q. Why did you go to Mr. Wollerton ? A. I went there for information, to find something tiff's land by a fence, both parties claimed un

pied by defendant and separated from plainout, if the check was forged or not, if the right der the commonwealth, and there was evidence party got the money or didn't get the money. by defendant that for more than 21 years the I didn't know how to make out. I wasn't in any doubt that the party didn't get the money." existing boundary had been marked by fences,

acquiesced in by adjoining landowners, judgTwo or three days later (on the 23d of ment for defendant was justified by the evi

dence. June) he employed counsel, to whom he said according to his own testimony, “The check cent. Dig. $$ 232–242; Dec. Dig. § 48.*]

[Ed. Note. For other cases, see Boundaries, was misindorsed, and the bank had no business to cash the check.” On July 2d, without Appeal from Court of Common Pleas, having given the bank any notice of what he Lackawanna County. 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. Af August 1st he got from Mr. Wollerton, the firmed. cashier of the Union National Bank, the Argued before FELL, C. J., and BROWY, 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 subELKIN, J. The numerous assignments of mitted. In our opinion, the evidence is absoerror in this case raise many interesting lutely convincing that this consentable line questions of law, but, as we view the record, was established in 1868, and that it has a discussion of a very few of the legal posi- been recognized and acquiesced in by all intions pressed upon us by learned counsel will | terested parties until within a very recent suffice to dispose of the present controversy. period, when appellants undertook to disreWe will not therefore undertake to follow the gard it. The jury must have so found, beprinted argument by discussing the specifica-cause to have done otherwise would have tions of error separately.

been to ignore the established facts. [1] It must be conceded on all sides, in

- Then, again, the case is just as clearly deed it is conceded, that if a consentable line against appellants on the questions of admarked on the ground was recognized and ac-verse possession. It has long been settled in quiesced in by the adjoining landowners Pennsylvania that a person in possession by since 1868, a permanent boundary was es

a fence as his line for more than 21 years, tablished, and with that boundary line thus establishes his right to claim title to the line fixed there is no basis for the contention thus marked. Brown v. McKinney, 9 Watts, made by appellants here. In the light of our 565, 567; Reiter v. McJunkin, 173 Pa. 82, 33 own cases no one can seriously question this

Atl. 1012. settled rule of law. As far back as Brown

It is not disputed that the appellee holds v. McKinney, 9 Watts, 565, 567 (36 Am. Dec. the title to the Hooker Smith tract, and the 139), this court said:

only question that could arise is the location "It cannot be disputed that an occupation up of the line in controversy. No matter what to a fence on each side by a party or two parties for more than 21 years, each party claim- doubt may have existed as to the original ing the land on his side as his own, gives to location of this line, the adjoining landowneach an incontestable right up to the fence, ers consented to the line marked on the and equally whether the fence is precisely on ground in 1868, and have acquiesced in that the right line or not."

Our courts have always favored the set-consentable line ever since. Most of the tlement of disputes of this character by rec- questions raised by this appeal relate to other ognizing consentable lines established by the matters, and the rulings of the court about parties themselves, and this without regard which complaint is made have no direct to whether the line agreed upon conforms to bearing upon the controlling issues in the

case. the exact courses, distances, and bounds of

No benefit would result to any one by the original surveys. This rule applies with convincing force to the facts of the case at elaborating the discussion of questions which

for the purposes of the present can only be bar.

considered academic. The consentable line [2] In the original surveys there was a large amount of surplus land, most of which marked on the ground in 1868, and the adwas included within the boundaries of the verse possession which followed for a period tract held by appellants, when the consent of 43 years, are sufficient to establish the able line was marked on the ground. They title of appellee to the land in dispute, and are not in position to say that they were all other matters which appellants sought to overreached in the division of the surplus have considered at the trial may be disreland when ine line between the two tracts garded as immaterial and irrelevant to the was marked on the ground in 1868. So

issue under the facts.

Judgment affirmed.
far as the division of the surplus land
between the two adjoining tracts is concern-
ed, the equities are with the appellee, but

(245 Pa. 15) aside from this, and without reference to

TURNER v. BOROUGH OF TOWANDA. the division of the surplus land, the fact is that a line was marked on the ground at (Supreme Court of Pennsylvania. March 30,

1914.) that time, and the evidence shows that it has been maintained, to some extent at least, and MUNICIPAL CORPORATIONS ($ 819*) – ICE ON

SIDEWALK - INJURY TO PEDESTRIAN – Eviacquiesced in by the interested parties from

DENCE. that time to the present. Appellants under In an action for personal injuries by falltook to discredit the line established in 1868, ing on ice on a sidewalk, verdict for plaintiff and to show that it had not been marked held sustained by the evidence. and recognized in such a way as to make it [Ed. Note.--For other cases, see Municipal binding on

Corporations, Cent. Dig. $$ 1739-1743; Dec. the parties. The convincing Dig. $ 819.*] weight of the evidence is against the contention of appellants, but the most favorable Appeal from Court of Common Pleas, view that could be taken of the facts as dis- | Bradford County.

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*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

Action by Jennie D. Turner against the E. Spencer Miller, of Philadelphia, für apBorough of Towanda. Judgment for plain-pellants. Paul Freeman, of Philadelphia, tiff, and defendant appeals. Affirmed. and J. Hayden Oliver and Daniel R. Reese,

Argued before FELL, C. J., and BROWN, both of Scranton, for appellee. MESTREZAT, POTTER, and STEWART, JJ.

PER CURIAM. In this action against the Rodney A. Mercur, of Towanda, for appel- defendant, a common carrier, for alleged faillant. J. Roy Lilley, William P. Wilson, and

ure to deliver goods to a consignee, the plainMial E. Lilley, all of Towanda, for appellee. tiffs failed to sustain their averment of mis

deliveries, while, on the other hand, the dePER CURIAM. The plaintiff was serious- fendant showed that proper deliveries had ly injured by falling on a ridge or mound of been made. In his charge to the jury, directice on the sidewalk of a main street of a ing them to find for the defendant, the learnborough. The flagstones with which the ed trial judge concisely, clearly, and correctstreet was paved were not of uniform height, ly presented the situation, and, as we have and on the lower of them pools of water some discovered no error in any of the assigntwo inches deep collected, which by freezing ments, the judgment is affirmed. and thawing formed slush and accumulated snow, that became worn into ridges that extended across the walk. The walk had been

(245 Pa. 28) out of repair for several years, and the ridg

ALEXANDER v. WILKES-BARRE ANes of ice had been on it a number of weeks.

THRACITE COAL CO. et al. The main question at the trial was whether (Supreme Court of Pennsylvania. March 30,

1914.) the plaintiff's contributory negligence barred a recovery. She was familiar with the con- NUISANCE ($ 25*) — WORKING OF COLLIERY –

PRELIMINARY INJUNCTION. dition of the walk, and knew of the ridges

Where an owner of a dwelling house sued of ice, but not of their exact location, and for an injunction to restrain defendant coal was carefully trying to avoid them. It was company from working its colliery near his dark, and a slight fall of snow obscured the ly denied, where the injuries to plaintiff were

residence, a preliminary injunction was properridges, and the shadows

the shadows of poles, tree not of a pressing character, and an injunction branches, and wires across the pavement in- would stop the mining operations of defendant, creased her difficulty. The sidewalk on the throw a large number of employés out of work,

and cause a large loss to defendant, and the opposite side of the street was in the same injuries complained of had been endured for condition, and it did not appear that there some time. was a safer way open to her. She was not [Ed. Note.-For other cases, see Nuisance, unnecessarily or heedlessly testing a known Cent. Dig. 88 5, 60–63; Dec. Dig. & 25.*] danger, but attempting to guard against one

Appeal from Court of Common Pleas, Luthat she could not avoid. Whether she exer-zerne County. cised proper care was a question for the

Bill of Robert B. Alexander against the jury, and we find no error in the manner in Wilkes-Barre Anthracite Coal Company and which it was submitted that calls for a re- another. From an order refusing a prelimiversal.

nary injunction, plaintiff appeals. Affirmed. The judgment is affirmed.

Woodward, J., filed the following opinion

in the court of common pleas: (245 Pa. 71)

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.

other relief, and the answer denying the mate

rial allegations in the bill. (Supreme Court of Pennsylvania. April 13, The first three prayers of the bill must be de1914.)

nied for the following reasons: The first prayer

is for a temporary or preliminary injunction CARRIERS ($ 94*) — MISDELIVERY OF GOODS

to restrain the defendant, the Wilkes-Barre AnDIRECTING VERDICT.

thracite Coal Company, its officers, agents and In an action against a carrier for failure employés, from working its colliery in violation to deliver goods to a consignee, the verdict was of the law, as is alleged in the bill and denied properly directed for defendant, where plaintiff in the answer. This must be refused, because failed to show misdelivery, and defendant show the inconvenience and injury that the plaintiff ed proper delivery made.

alleges he has sustained and still sustains are [Ed. Note. For other cases, see Carriers, not of such a pressing character as to warrant Cent. Dig. $$ 367–395, 456; Dec. Dig. § 94.*] a preliminary injunction, the result of which Appeal from Court of Common Pleas, Phil- defendant and throw a large number of em

would be to stop the mining operations of the adelphia County.

ployés out of employment, and also result in Action by William A. Maltus and Heber J. large loss of business to the defendant company, Ware, trading as Maltus & Ware, against for some time, and various other efforts to re

The injuries complained of have been endured the Delaware, Lackawanna & Western Rail- lieve the situation have been resorted to by the road Company. Judgment for defendant, plaintiff, so that it seems clear that this is not and plaintiffs appeal. Affirmed.

a case for a preliminary injunction. The secArgued before BROWN, MESTREZAT, compel the Wilkes-Barre Anthracite Coal Com

ond prayer is for a mandatory injunction to POTTER, ELKIN, and MOSCHZISKER, JJ. pany 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 (8 56*)—"PROXIMATE CAUSE." juries to the plaintiff; and the third prayer is The test of "proximate cause” is whether for a mandatory injunction to compel the re- the facts constitute a continuous succession of. moval of the coal breaker of the defendant com- events so linked together that they become a pany to some other location. This relief, of natural whole, or whether the chain of events course, could not be granted by preliminary in- is so broken that they become independent, and junction, especially under the pleadings in this the final result is not the natural and probable case.

consequence of the primary cause. The fourth prayer is for an order on the [Ed. Note. For other cases, see Negligence, Wilkes-Barre Anthracite Coal Company to al. Cent. Dig. $$ 69, 70; Dec. Dig. § 56.* low the plaintiff's engineer access to the coal

For other definitions, see Words and Phrascompany for the purpose of inspecting the appli- es, vol. 6, pp. 5758–5769; vol. 8, p. 7771.] ances used in the preparation of coal, and for Appeal from Court of Common Pleas, Bradthe purpose of ascertaining if persons are em- ford County. ployed contrary to law in the preparation of coal in said structures. As one complaint in the

Trespass by Jay King against the Lehigh bill is that the breaker of defendant company Valley Railroad Company for personal inemits larger quantities of dust than it would if juries. From judgment for defendant non equipped with approved appliances for control obstante veredicto, plaintiff appeals. Arling dust, and that the dust thus produced enters

firmed. the dwelling house of the plaintiff in large quantities, and that the said breaker on this account Argued before FELL, C. J., and BROWN, is a nuisance from which the plaintiff suffers MESTREZAT, POTTER, and STEWART, JJ. peculiar damage, and also that the smokestacks, through which the smoke from the fires under

D. C. De Witt, of Towanda, for appellant. the boilers is carried, throw out dust of differ-J. Roy Lilley, William P. Wilson, and Mial E. ent colors which enters the plaintiff's residence, Lilley, all of Towanda, for appellee. causing peculiar damage to the plaintiff, we feel disposed to grant this prayer of the bill, provided that the examination is made in such

PER CURIAM. [1] This appeal is from a a way as not to interfere with the defendant judgment entered for the defendant by direccompany in the operation of its colliery, and tion of the court non obstante veredicto on therefore order and decree that the defendant a question of law reserved at the trial. The the Wilkes-Barre Anthracite Coal Company permit the plaintiff by his engineer, to inspect plaintiff was one of the lessees and the manits breaker and other outside structures at such ager of a coal yard that had a switch contime as may be convenient and reasonable, and nection with the defendant's tracks. Within accompanied by a representative of defendant company, if it so chooses, to ascertain wheth- the yard the track of the switch was on ed the defendant company has in use such ap- trestle work, and under it there were a numparatus for the prevention of dust as is ordina- ber of bins, and at one side a narrow footrily in use in like collieries in these regions.

The fifth prayer is "for such other and fur-walk of planks supported on the trestles and ther relief as the circumstances of the case may extending over the bins. The track and bins require, and to the court may seem meet.” With were covered by a frame shed. Loaded coal the order and decree just made, the court has cars were delivered by the defendant on the granted all the relief that can be given at this switch at the west end of the yard from which stage of the case.

Robert B. Alexander and John McGahren, place they were removed by the plaintiff and both of Wilkes-Barre, for appellant. Benja

to which empty cars were returned by him. min R. Jones, of Wilkes-Barre, for appellee. A loaded car that was pushed onto the switch

ran into the building with such force as to PER CURIAM. The decree appealed from injure the trestle work, to break down the is affirmed on the opinion of Judge Wood- bumper at the end of the track, to injure the ward refusing a preliminary injunction.

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 (245 Pa. 25)

carpenters went to the shed to make repairs. KING v. LEHIGH VALLEY R. CO.

While they were at work, the plaintiff in (Supreme Court of Pennsylvania. March 30, walking towards them from the end of the 1911.)

shed opposite that at which they had com1. NEGLIGENCE (8 82*)-CONTRIBUTORY NEG- menced work stepped on the end of the plank

LIGENCE - PERSONAL INJURIES – RIGHT OF that was without support and fell into one RECOVERY.

The manager of a coal yard having switch of the bins. The carpenters had done nothing connections with railroad tracks was injur- ing to the walk and it was then in the coned from a fall due to a giving way of a foot-dition caused by the impact of the car a week walk, the support of which had been weakened before. During the week the plaintiff had by a freight car being, pushed against it by trainmen about a week before. He had, or by carried on his business in the yard as usual, looking while working about the yard during and the nature and extent of the injury to the week would have had, full knowledge of the shed and walk were apparent. the exact extent of the clearly apparent damage done by the car, and yet without taking

[2] At the trial there was no dispute as to any precaution went upon the walk. Held, that any material fact. Judgment non obstante his own negligence, and not that of the train-veredicto was entered on the ground that men a week before, was the proximate cause the plaintiff's negligence was the proximate of his injury.

[Ed. Note. For other cases, see Negligence, cause of his injury. We concur in the conCent. Dig. $$ 112-114; Dec. Dig. § 82.*] clusion 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 "The test of proximate cause is whether the since continued to receive the same wages, alfacts constitute a continuous succession of though his service was worth only half as events so linked together that they become a natural whole, or whether the chain of events much. The amount of wages received was is so broken that they become independent, and not, however, shown. the final result cannot be said to be the nat [1, 2] It is conceded that the case was for ural and probable consequence of the primary the jury, and no exception was taken to the cause, the negligence of the defendants." Thomas v. Railroad Co., 194 Pa. 511, 45 Atl. 345. rulings of the court on the evidence, or to the The judgment is affirmed.

charge. The only question presented by the assignment of error is whether a new trial

should have been granted because the verdict (245 Pa. 7)

of $4,000 was excessive. While there was HITZ v. PITTSBURGH & B. ST. RY. CO. no proof of expenses incurred, or of the (Supreme Court of Pennsylvania. March 30, amount of wages paid, by which the loss in 1914.)

earning power could be determined, there 1. APPEAL AND ERROR ($ 1004*) REVIEW remained, as elements to be considered and EXCESSIVE DAMAGES. The power given by Act May 20, 1891 (P. Vience endured and likely to be endured in the

allowed for, pain, suffering, and inconvenL. 101), to the Supreme Court to reverse a judgment on the ground that the damages are future. These were the elements of damage excessive, will be exercised only where the in- submitted to the jury, and we are not perjustice is so manifest as to show clear abuse suaded that its verdict was excessive. It of discretion below.

[Ed. Note.-For other cases, see Appeal and was certainly not so excessive that the court Error, Cent. Dig. 88 3944-3947; Dec. Dig. & can be charged with error in allowing it to 1004.*]

stand, and there is no ground for our inter2. DAMAGES (8 132*)-PERSONAL INJURIES- ference with it. The power conferred by EXCESSIVE DAMAGES.

act May 20, 1891 (P. L. 101), has been exerVerdict for $4,000 for personal injuries cised but once (Smith v. Times Publishing was not excessive, where plaintiff's head and back were injured,' and he was unconscious for Co., 178 Pa. 481, 36 Atl. 296, 35 L. R. A. 819), nearly an hour after the accident, had suffered and it has been repeatedly said that it will constant headaches and insomnia, and the sight not be exercised, except in extreme cases, of one eye was impaired, and its removal might where the injustice of allowing an excessive be necessary, and his back was so injured that he was unable to do more than half the work verdict to stand is so manifest as to show a he did before.

clear abuse of discretion by the trial court [Ed. Note. For other cases, see Damages, (Harrisburg, Carlisle & Chambersburg TurnCent. Dig. 88 372-385, 396; Déc. Dig. & 132.*] pike Road Co. v. Cumberland County, 225 Pa.

Appeal from Court of Common Pleas, Al-467, 74 Atl. 340). legheny County.

The judgment is affirmed. Action by Jacob Hitz against the Pittsburgh & Butler Street Railway Company.

(245 Pa. 12) Judgment for plaintiff for $4,000, and de

GOSS v. SPENCER. fendant appeals. Affirmed.

(Supreme Court of Pennsylvania. March 30, Argued before FELL, C. J., and BROWN,

1914.) ELKIN, STEWART, and MOSCHZISKER, 1. EQUITY (8 182*)-PLEADING-DECISION IN JJ.

LIMINE. William A. Challener and Clarence Bur- that the bill is a mere ejectment bill raising

Where an answer to a bill in equity avers leigh, both of Pittsburgh, for appellant. only the question of right of possession, and Thomas M. Marshall and Thomas M. Marsh- not setting forth any equitable jurisdiction, and all, Jr., both of Pittsburgh, for appellee.

that the court has no jurisdiction, it sufficiently complies with the requirements of Act June 7,

1907 (P. L. 410), that if an "answer be filed PER CURIAM. In a collision of the de- averring that the suit should have been brought fendant's car with a wagon on which the at law, that issue shall be determined in lim

ine." plaintiff was riding, his head and back were

[Ed. Note.-For other cases, see Equity, injured. He was unconscious for nearly an Cent. Dig. 88 413, 418-421; Dec. Dig. § 182.*] hour, and has since suffered from constant 2. QUIETING TITLE (8 12*) — JURISDICTION. headaches and insomnia. The injury to his A. bill to remove cloud from title to land head seriously impaired the sight of one eye, will not lie where plaintiff is out of possession and the testimony 'tended to show that it and claiming a title passed on the nullity of a

certain deed, and defendant claims on the validmay be necessary either to remove the eye ity of the same deed, and the bill prays that or to wear a patch over it to exclude the 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

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