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ELKIN, J. After a careful review of this, cases where the facts are undisputed, and record we have concluded that the case was but one inference can be drawn from them, for the jury both as to the negligence of the that the injured party can be declared guilty defendant company and as to the contribu- of contributory negligence as a matter of tory negligence of the deceased husband. law. This is not such a case.

The passenThe excursion train upon which the accident gers had the right to assume that the railoccurred was made up of nine passenger road company had done its duty in providing coaches and a baggage car, the latter having a safe passageway to the baggage car, and been fitted up by appellant for the use of ex- could rely on this assumption in the absence cursionists as a place to get drinks and se- of notice of the defects about which comcure refreshments. The baggage car thus plaint is here made. There is no evidence of fitted up was placed in the center of the notice to the deceased husband that the plattrain for the more convenient access of pas- form of and approaches to the baggage car sengers entering it from either end. This were not properly guarded, or that the place was a plain invitation to the passengers to was not safe for the use of passengers, and make use of the baggage car as a proper what knowledge he had of existing condiplace to secure refreshments. That the ex- tions is a matter of conjecture. Under all cursionists did make use of it for the pur- the circumstances disclosed by the testimony pose intended was known to the conductor, the case is not so clear as to warrant the brakeman, and other employés in charge of court in declaring as a matter of law that the train. When the defendant company the deceased husband was guilty of contribthus equipped the baggage car, and provided utory negligence. The most favorable view accommodations for securing refreshments in that can be taken of the contention of apthat car, and the employés in charge of the pellant is that the contributory negligence train recognized without objection the use of the deceased husband was for the jury. made of the car by the excursionists, it can- This question was left to the jury with innot now be heard to say that no duty rested structions by the trial judge as to which the upon it to provide a safe passageway to and defendant company cannot justly complain. from the car for passengers who availed Our conclusion is that the case was for the themselves of the privileges which the de jury upon all questions involving the liabilifendant company evidently intended them to ty of the railroad company, and that there enjoy. In Robinson v. Railroad Co., 135 was no reversible error in the submission. Mich. 254, 97 N. W. 689, the rule applicable Judgment affirmed. to such a case is stated as follows: That the "railroad company, having placed its dining car at the rear of the train and in

(245 Pa. 114)

BOROUGH OF BELLEVUE et al. v. OHIO vited its passengers to go to and from it,"

VALLEY WATER CO. and failing “to provide them a safe passage from one car to another,” it "cannot (Supreme Court of Pennsylvania. April 20,

1914.) escape liability for its failure so to do." Many other cases might be cited to the same 1. WATERS AND WATER COURSES (8 182*) effect. This rule which is founded upon com


WATER RATES-RIGHT TO DETERMINE. mon sense and human experience is, as it

So much of the act of April 29, 1874 (P. ought to be, of almost universal application L. 95) $ 34, cl. 7, as empowered the courts to in this country. In the present case there determine the reasonableness of water rates, was abundant evidence to carry the case to was repealed by the act of July 26, 1913 (P.

L. 1374), which conferred this power on the the jury on the question of the failure of Public Service Commission. the railroad company to properly guard the [Ed. Note.-For other cases, see Waters and approaches to the baggage car and to pro- Water Courses, Cent. Dig. 8' 267; Dec. Dig. vide a safe passageway for passengers who $ 182.*] entered it upon what must be deemed an in- 2. WATERS AND WATER COURSES ($ 203*) vitation to make use of it as a place for se


AS TO TIME-RIGHT TO INCREASE RATES. curing refreshments.

A contract between a borough and a water As to the contributory negligence of the company, granting the water company the right deceased husband the case is not so clear. to lay pipes and mains with a stipulation that It is very ably argued for appellant that the not preclude the company from raising its rates

certain rates shall be charged for water, will danger of passing from the coaches to the as its necessities require, where it is unlimited baggage car was open and obvious, and that by its terms as to time. excursionists who availed themselves of the

[Ed. Note.-For other cases, see Waters and privileges afforded took the risk which must Water Courses, Cent. Dig. Ś8 289, 290-299;

Dig* have been apparent to them. Upon this ground the trial judge was requested to di Appeal from Court of Common Pleas, Alrect a verdict for the defendant, and the legheny County, court in banc was subsequently asked to en Bill in equity by the Bellevue Borough, a ter judgment non obstante veredicto upon municipal corporation, and others to enjoin the whole record. This argument is plausi- the Ohio Valley Water Company from inble but not convincing. It is only in clear I creasing its rates. From a decree refusing a

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

preliminary injunction, plaintiffs appeal. Af- extensive with the grant. ls such a contract firmed.

binding in the face of the declared statutory From the record it appeared that a con- policy of the law that the Public Service tract had been entered into between the bor-Commission shall have the power to inquire ough of Bellevue and the water company into and determine the reasonableness of which fixed the rates to be charged for the rates in all such cases? This question was use of water. Subsequently the water com- answered adversely to the contention of anpany increased its rates, and the borough pellants in Turtle Creek Boro. v. Penna. Wa

We did and certain citizens filed a bill restraining ter Co., 243 Pa. 415, 90 Atl. 199. the water company from enforcing its new not then decide whether a contract between

a borough and a water company, for a defrates.

Argued before BROWN, MESTREZAT, inite term of years and for specified rates POTTER, ELKIN, and MOSCHZISKER, JJ. during the limited term, would be enforced

as between the parties, because that quesLeonard K. Guiler and David L. Starr, tion was not then raised; and it is not raisboth of Pittsburgh, for appellants. Wm.

ed now, so that this will be left as an open Watson Smith, of Pittsburgh, for appellee.

question until it is presented in concrete form ELKIN, J. [1] We fully agree with the upon facts calling for a decision of the point.

[1] We fully agree with the We did decide in that case that a contract general conclusions reached by the learned of this kind, unlimited by its terms, and court below, and nothing contained in this hence indeterminate as to time, could not be record, or said in the argument, would war- enforced indefinitely, and must give way to rant us in disturbing the decree refusing the the general policy of the law under which motion for a preliminary injunction. If the the Legislature created a special tribunal to case in any of its aspects involves the rea

pass upon and determine questions relating sonableness or unreasonableness of water to the reasonableness of rates charged by rates, it is a sufficient answer to say that

public service corporations. The learned the section of the act of April 29, 1874 (P. court below in the present case very prop L. 73), which gave courts the power to deter-erly followed the decision in that case and mine questions of this character, was re- held that the borough of Bellevue could not pealed by the Public Service Company Law, enforce through the courts a compliance with approved July 26, 1913 (P. L. 1374). In

the rates thus established. It is not a conother words, the Legislature took this pow. tinuing binding contract enforceable through er away from the courts and conferred it a court of equity. This is so, not because upon the Public Service Commission. Here the courts have any desire to avoid the perafter, so long as the act of 1913 remains in formance of duties cast upon them by the force, the question of the reasonableness of law, but because the people, speaking through rates established by public service corpora- the Legislature, have declared that these dutions must, in the first instance, be submit- ties shall be performed by a special tribunal ted to the Public Service Commission when

created for the purpose. The disposition challenged. This is now the declared stat- everywhere is to commit questions relating utory policy of the law, and it is binding not to the regulation, and to the rates of public only upon the interested parties, but upon service corporations, to the supervisory powthe courts as well. We do not know that ers of special tribunals, and concededly matthis position is seriously controverted by ters of this character are within the domain learned counsel for either side of the pres- of legislative action. ent controversy.

We agree with the learned court below that [2] It is argued, however, and with much the Public Service Commission is the only force, that there is an existing contract be tribunal that has the power, as the law now tween the borough and the water company stands, to give the complainants the relief fixing the rates to be charged, and that the prayed for in the present bill, if such relief courts are always open to protect the con- be deemed proper. tractual rights of the parties on one side,

Decree affirmed, at the cost of the appeland to enforce their obligations on the other.

lants. This is true, and if there was a valid binding contract in the present case, it would be

(245 Pa. 101) necessary to sustain the contention of appel- McANDREW v. BOROUGH OF DUNMORE lants. The case therefore turns upon the

et al. continuance and validity of the contract re

(Supreme Court of Pennsylvania. April 20, lied on. The contract in question was made

1914.) in 1896, and by its terms the water company 1. MUNICIPAL CORPORATIONS (8 907*)—STREET was granted the right to lay pipes and mains

IMPROVEMENTS_VALIDITY OF ORDINANCEin the streets of the borough with a stipu BONDS. lation that certair specified rates should be Under Act May 12, 1911 (P. L. 288), and charged the borough and the inhabitants Act June 15, 1911 (P. 'L. 971), requiring' that

bonds issued for payment of street improvethereof for water furnished. The contract as ments shall be payable in five years, an ordito water rates is unlimited in time, being co-nance authorizing the issuance of such bonds

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

payable "at any time within six years from five years from the date of their issue, to be their respective dates” was void.

provided in the ordinance directing the im[Ed. Note.-For other cases, see Municipal provement. The moneys received by the muCorporations, Cent. Dig. $ 1895; Dec. Dig. $nicipality from the assessments are to be ap907.*] 2. MUNICIPAL CORPORATIONS (8266*) – MU- plied to the payment of the bonds exclusively. NICIPAL IMPROVEMENTS — STATUTE — CON

The ordinance authorizing the improveSTRUCTION.

ment in this case provides that two-thirds Municipal improvements are regulated en: of the cost of the improvement shall be tirely by statute, to which the rule of strict paid by assessments against the abutting construction applies.

[Ed. Note.-For other cases, see Municipal property, payable in seven equal annual payCorporations, Cent. Dig. § 712; Dec. Dig. 8 ments, the first thereof 30 days after work 266.*]

shall commence, and that the bonds shall be 3. MUNICIPAL CORPORATIONS (323*)-STREET issued payable "at any time within six years IMPROVEMENTS-INJUNCTION.

from their respective dates." It is clear A taxpayer against whom a street improvement assessment has been made may sue therefore that the ordinance fails to meet the to enjoin the municipality from making such statutory requirement that the bonds be payimprovement under a void ordinance authoriz- able in five years and, necessarily, the asing the issuance of bonds payable beyond the period prescribed by statute, though the change sessments within a like period, as the bonds in the time of payment of the bonds is not prej- are payable exclusively out of the proceeds udicial to his interests.

of the assessments. [Ed. Note. For other cases, see Municipal

[2] Municipal improvements are regulated Corporations, Cent. Dig. 88 965–972; Dec. Dig. entirely by statute to which the rule of strict $ 323.*] 4. MUNICIPAL CORPORATIONS (8 303*)—STREET well settled that it does not need the citation

construction applies. This principle is so IMPROVEMENTS_VALIDITY OF ORDINANCE.

Under the constitutional requirement that of authorities to support it. · There was an ordinance authorizing street improvements therefore no authority in the councils in provide lawful means of payment for same, the

the case in hand either to issue the bonds whole of such an ordinance is void where the provisions for payment are unlawful.

payable at a longer period than five years [Ed. Note.-For other cases, see Municipal from the date of issue or to make the assessCorporations, Cent. Dig. $S 808–810, 821; Dec. ments payable in installments extending beDig. § 303.*]

yond that period. These requirements of the Appeal from Court of Common Pleas,

Court of Common Pleas, statute under which the improvement was to Lackawanna County.

be made were entirely disregarded in the orBill by P. A. McAndrew to enjoin the Bor- dinance. They were a substantial and mateough of Dunmore and others from improv-rial part of the ordinance, and, being dising certain streets. From decree awarding regarded, the ordinance necessarily was in. an injunction, defendants appeal. Affirmed. valid. If a time of payment of the bonds

Argued before FELL, C. J., and BROWN, fixed by the statute may be enlarged by one MESTREZAT, ELKIN, and MOSCHZIS year by the ordinance authorizing the imKER, JJ.

provement, it may be extended any number

of years, in the discretion of the council. It C. P. O'Malley, R. A. Zimmerman, and A. is immaterial what the legislative purpose A. Vosburg, all of Scranton, for appellants. may have been in fixing five years as the time Cornelius Comegys and William W. Lath-within which the bonds issued for the payl'ope, both of Scranton, for appellee.

ment of municipal improvements should be

paid; it is sufficient to know that such is MESTREZAT, J. [1] We agree with the the statutory requirement and the council learned court below that the ordinance in has no authority to disregard it. question authorizing the improvement of cer [3] It is contended, however, by the detain streets in the defendant borough is fendant borough, that the variance of one void, and that a taxpayer against whom an year between the statutory provision and the assessment was made for the improvement ordinance is immaterial and that no one is can attack its validity in a court of equity. prejudiced by the fact that the time of payThe validity of the ordinance depends upon ment is enlarged.

ment is enlarged. It is therefore claimed the authority conferred by the Acts of May that the plaintiff, a taxpayer against whom 12, 1911 (P. L. 288), and June 15, 1911 (P. L. an assessment had been laid, has no standing 971). The later act authorizes the council to complain, and hence cannot maintain this by ordinance to provide for the payment of bill. This contention overlooks the fact the expenses and costs of a municipal im- that this is a proceeding to impose a burden provement by assessments on the properties upon the plaintiff and to compel him, willingfronting thereon payable in semiannual or ly or unwillingly, to contribute to the pubannual installments, and also to provide for lic improvement, and that it is only sustainthe payment of the costs and expenses of able by virtue of statutory authority. The the improvement as it progresses by issuing right of the plaintiff to maintain this bill does bonds which shall rest alone for their se- | not depend upon whether a change in the curity and payment on the assessments and time of the payment of the bonds injuriously shall be payable at periods not exceeding i affects him or not. The test of his standing

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

ing it.

to invoke the aid of a chancellor in resisting | suffering no harm through the judgment bepayment of the assessments laid upon his ing entered for want of a sufficient affidavit, property is whether the municipality has though his plea be also of record. legally exercised the authority imposing the Cent. Dig. $ 319; Dec. Dig. $ 160.*]

[Ed. Note.-For other cases, see Pleading, burden upon him. Whether therefore the time fixed by the ordinance for the payment 2. PLEADING ($ 155*)—AFFIDAVIT OF DEFENSE

-SUFFICIENCY. of the bonds beyond the statutory period is

In an action on an express contract which or is not prejudicial to the plaintiff's inter- cannot be established by copies of entries in ests is not the test of his right to success- books of original entry, an affidavit of defully resist the enforcement of the ordinance fense, not denying the contract is insufficient,

though it denies "that the copies of charges which compels him to pay for the improve and credits" as set out in the statement of ment. He sustains his right to maintain the claim, and "averred to be copies of the original bill when he shows that the improvement is entries thereof, are incorrect and improperly

stated.” not made in pursuance of an ordinance passed in conformity with the statute authoriz-Cent. Dig. $$ 309-311, 313, 314; Dec. Dig. $

[Ed. Note.-For other cases, see Pleading,

155.*] [4] There is nothing in the contention that the part of the ordinance providing that the

Appeal from Court of Common Pleas, Philimprovement bonds shall be redeemable in adelphia County. six years may be invalid and the balance of Assumpsit by Emanuel Dreifus and others, the ordinance be legal and enforceable. It trading as Emanuel Dreifus & Co., to the use may be conceded that an ordinance, like a of W. Vernon Phillips and another, trustees, legislative statute, may be good in part and against the Logan Iron & Steel Company, a upheld, while another part may be illegal corporation. From a judgment for plaintiff and void. A section or a part of an ordi- for want of a sufficient affidavit of defense, nance or statute may be so disconnected in defendant appeals. Affirmed. purpose and effect that its illegality will not

The facts appear in the following opinion necessarily avoid the ordinance or legislative of Willson, P. J., in the common pleas: act in toto. But that principle cannot be

We are informed by the counsel in the case invoked here to sustain any part of the ordi- that the Supreme Court, to which an appeal nance authorizing the improvement in ques- from the judgment entered therein has been tion. The ordinance provides for a contract taken, has requested this court to state the for the grading and paving of certain streets was entered. We will do so briefly.

reasons upon which the judgment in the case of the municipality, and it is a constitution. [1] The first question to be considered real requisite of such ordinance that it pro-lates to the effect and force of rule 42 of the vide at the same time the lawful means of viding, as the rule does, that in actions on con

courts of common pleas of this county in propayment for the improvement. It is there-tracts the statement of claim should have infore manifest that the means and method dorsed upon it notice to the defendant that he for payment of the obligations contemplated is required to file a plea and an affidavit of dein the contract are essential features of the service thereof, and that otherwise judgment ordinance and, if illegal, invalidate the en- may be entered against him. In the case in tire ordinance.

hand such notice was given upon the filing of A further consideration of the questions in the statement, and the defendant filed both a

plea and an affidavit of defense. Subsequently volved is unnecessary in view of the very a rule was entered asking that judgment should thorough discussion of them by the learned be rendered for want of a sufficient affidavit of trial judge.

defense. Such a judgment was entered, not

withstanding the contention on the part of deDecree affirmed.

fendant's counsel that in consequence of a plea having been filed the right of the plaintiff

to ask for judgment for want of a sufficient (245 Pa. 196)

affidavit of defense had lapsed. DREIFUS et al. V. LOGAN IRON &

There is no question but that, previous to STEEL CO.

the recent adoption of rule 42, and other rules, (Supreme Court of Pennsylvania. April 27,

the ordinary effect of a plaintiff ruling the de

fendant to plead would have been a waiver on 1914.)

the plaintiff's part of his right to ask for judg1. PLEADING (8 160*)—JUDGMENT FOR WANT ment for want of a sufficient affidavit of deOF SUFFICIENT AFFIDAVIT OF DEFENSE. fense. We concede freely that such is the fair

Under rule 42 of the common pleas of Phil- interpretation of the cases which were decided adelphia county, providing that in actions on previous to the adoption of the rule in question. contract the statement of claim shall have in- The said rule, however, and various others dorsed on it notice to defendant that he is re- were recently adopted by the courts of comquired to file a plea and an affidavit of defense mon pleas after long consideration and conferwithin 15 days of service thereof, the fact that, ence with many attorneys of high standing pursuant to such notice, defendant files a plea within the county. They were adopted for the and an affidavit of defense at the same time purpose of arriving at a prompt and definite does not preclude plaintiff from taking a judg- statement of the issues involved in any case, ment for want of a sufficient affidavit of de- so that as soon as possible litigation might bé fense; plaintiff's demand for a plea and an affi- brought to a finality. By rule 60 it was prodavit of defense not being voluntary so as to vided as follows: "Neither party shall be perconstitute a waiver of his rights, and defend- mitted at the trial to make any defense except ant, in view of rule 60, providing that the en- that set forth in the affidavit of defense, or tire defense shall be set out in the affidavit, plaintiff's reply, as the case may be. New mat*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

ter may be added only by amendment by leave The court entered the following judgment: of court, and a copy of the amendment shall

And now, to wit, December 15, 1913, the be served on the adverse party, or his attorney, plaintiffs' rule for judgment in the above case at least ten days before the day set for trial.'

for such portions of their claims as to which It was thus provided that the entire and ex: the affidavit of defense filed is insufficient with clusive defense in any case of contract must leave to proceed for the balance of said claim be set out in the affidavit of defense. This becoming on to be heard, the said rule is made ing so, and there appearing to be no doubt that absolute for the first reason therein specified, under the act of June 16, 1836, section 21 (P. and judgment is entered in favor of the use L. 792), the court has statutory authority to plaintiffs and against the defendant for $5,263.make suitable rules for the regulation of its 95, being the amount of so much of plaintiffs' practice, we regard the making of rule 42 claim as to which the defendant's affidavit is inas entirely within the powers of the court. We sufficient as set forth in the third paragraph of do not think it can be said with any propriety the affidavit of defense filed, viz.....$10,809 80 that the rule violates the Constitution or any Less the amount of defendant's setlaw of this commonwealth. Nor do we think off as set forth in the statement of that it can be said with any propriety that by

set-off forming part of the affidavit the entry by a plaintiff of a notice requiring,

of defense filed, viz.....

6,033 25 under the rule referred to, that a plea and an affidavit of defense shall be filed at the same

$4,776 55 time, the plaintiff has waived his right to ask Interest from April 1, 1912, to Defor judgment for want of a sufficient affidavit of

cember 13, 1913...

487 40 defense. Under the previous state of affairs, before the rule in question was adopted, any Total amount for which judgment is such course on a plaintiff's part would have

now entered....

$5,263 95 been a voluntary step which might, for reasons given in various decisions, well have been re

Argued before FELL, C. J., and BROWN, garded as a waiver of his right to ask for POTTER, ELKIN, and MOSCHZISKER, JJ. judgment. As the case stands, however, there is nothing voluntary in the act of the plaintiff

Wm. Clarke Mason and William Maul in such a case. He is compelled by the re- Measey, both of Philadelphia, for appellant. quirements of the rule to demand both a plea Lewis Lawrence Smith, of Philadelphia, for and an affidavit of defense. We see no reason why, in the interest of a

appellees. prompt and efficient administration of justice, the court cannot properly require the two PER CURIAM. The judgment is affirmed forms of defense to be made at the same time, on the opinion of the learned president judge and to enter a final judgment, as was done in the case in hand. Inasmuch as rule 60, before of the common pleas. quoted, requires a defendant to set out his whole defense in his affidavit, he can suffer no harm by reason of judgment being entered for

(245 Pa. 171) want of a sufficient affidavit of defense, not FRITZ V. SAX & ABBOTT CONST. CO. withstanding his plea is also on the record. [2] The only other point in the case which

(Supreme Court of Pennsylvania. April 27, needs to be referred to relates to the propriety

1914.) of the judgment entered, so far as the merits JUDGMENT (8 199*)—NOTWITHSTANDING VERof the case are concerned. The defendant

DICT-INJURY TO SERVANT-NEGLIGENCE OF seems to rely largely upon its averment “that

MASTER. copies of the charges and credits, as the same

In an action for the death of an employé appear in the plaintiff's statement of claim, and of defendant occasioned by collapse of part of averred to be copies of the original entries thereof, are incorrect and improperly stated." a building alleged to be due to improper shorThe averment was probably intended to com- anť notwithstanding the verdict, where deceas,

ing, judgment is properly entered for defendply with the requirements of rule 72 of the ed was the superintendent in charge, and had Rules of the Courts of Common Pleas, but we opportunity to remedy defects in the shoring, do not think that the language adopted comes and the evidence failed to justify the opinion up to the demands of that rule, which has that the fall of the building was due to such uniformly been interpreted as making alleged

defects. copies of original entries in plaintiff's books prima facie evidence of plaintiff's claim in an

[Ed. Note.-For other cases, see Judgment, action of assumpsit, unless the defendant takes Cent. Dig. &367–375; Dec. Dig. $ 199.1 upon himself the responsibility of asserting in his affidavit of defense that the alleged copies Appeal from Court of Common Pleas, are not true copies of the entries in the books. Philadelphia County. They may be incorrect, not because they are

Action by Harriet Fritz, widow of Peter untrue copies, but because they do not correct. ly set forth the facts of a transaction. How-Fritz, against the Sax & Abbott Construcever, we do not think the case rests upon such tion Company. Judgment for defendant nota narrow or technical point. The case of the withstanding the verdict, and plaintiff applaintiff, as appears from the large number of exhibits attached to the statement of claim. peals. Affirmed. rests upon what may be regarded as an express The defendant company in the year 1909, contract, and one which could not be established by the production of copies of entries in under a contract with the United Gas Im books of original entries. The contract and provement Company, was engaged in alteradealings, as evidenced by the writings and ex- tion and reconstruction of two buildings at hibits just referred to, are nowhere denied by the northeast corner of Eleventh and Market the defendant in its affidavit of defense. All the items of credit claimed by the defendant and streets in this city. Plans had been prepared all the items of charge denied by him were de- | by a firm of architects for the work to be ducted from the total amount of the plaintiff's done, and the defendant company, by the claim in the entry of judgment, and these disputed items remain for final determination in terms of the written contract, undertook to à trial before a jury.

do the work in accordance with the plans re

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

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