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road company had done its duty in providing a safe passageway to the baggage car, and could rely on this assumption in the absence of notice of the defects about which complaint is here made. There is no evidence of notice to the deceased husband that the platform of and approaches to the baggage car were not properly guarded, or that the place was not safe for the use of passengers, and what knowledge he had of existing conditions is a matter of conjecture. Under all the circumstances disclosed by the testimony the case is not so clear as to warrant the court in declaring as a matter of law that the deceased husband was guilty of contributory negligence. The most favorable view that can be taken of the contention of appellant is that the contributory negligence of the deceased husband was for the jury. This question was left to the jury with instructions by the trial judge as to which the defendant company cannot justly complain. Our conclusion is that the case was for the

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 coaches and a baggage car, the latter having been fitted up by appellant for the use of excursionists as a place to get drinks and secure refreshments. The baggage car thus fitted up was placed in the center of the train for the more convenient access of passengers entering it from either end. This was a plain invitation to the passengers to make use of the baggage car as a proper place to secure refreshments. That the excursionists did make use of it for the purpose intended was known to the conductor, brakeman, and other employés in charge of the train. When the defendant company thus equipped the baggage car, and provided accommodations for securing refreshments in that car, and the employés in charge of the train recognized without objection the use made of the car by the excursionists, it cannot now be heard to say that no duty rested upon it to provide a safe passageway to and from the car for passengers who availed themselves of the privileges which the de-jury upon all questions involving the liabilifendant company evidently intended them to enjoy. In Robinson v. Railroad Co., 135 Mich. 254, 97 N. W. 689, the rule applicable to such a case is stated as follows: That the "railroad company, having placed its dining car at the rear of the train and invited its passengers to go to and from it," and failing "to provide them a safe passage from one car to another," it "cannot (Supreme Court of Pennsylvania. April 20, escape liability for its failure so to do." Many other cases might be cited to the same effect. This rule which is founded upon common sense and human experience is, as it ought to be, of almost universal application in this country. In the present case there was abundant evidence to carry the case to the jury on the question of the failure of the railroad company to properly guard the approaches to the baggage car and to provide a safe passageway for passengers who entered it upon what must be deemed an invitation to make use of it as a place for securing refreshments.

ty of the railroad company, and that there was no reversible error in the submission. Judgment affirmed.

(245 Pa. 114) BOROUGH OF BELLEVUE et al. v. OHIO VALLEY WATER CO.

1914.)

1. WATERS AND WATER COURSES (§ 182*) WATER COMPANIES REASONABLENESS OF WATER RATES-RIGHT TO DETERMINE..

So much of the act of April 29, 1874 (P. L. 95) § 34, cl. 7, as empowered the courts to determine the reasonableness of water rates, was repealed by the act of July 26, 1913 (P. L. 1374), which conferred this power on the Public Service Commission.

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 267; Dec. Dig. § 182.*]

2. WATERS AND WATER COURSES (§ 203*) WATER COMPANIES - CONTRACT INDEFINITE AS TO TIME-RIGHT TO INCREASE RATES.

A contract between a borough and a water company, granting the water company the right to lay pipes and mains with a stipulation that certain rates shall be charged for water, will not preclude the company from raising its rates as its necessities require, where it is unlimited by its terms as to time.

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. 88 289, 290-299; Dec. Dig. § 203.*]

As to the contributory negligence of the deceased husband the case is not so clear. It is very ably argued for appellant that the danger of passing from the coaches to the baggage car was open and obvious, and that excursionists who availed themselves of the privileges afforded took the risk which must have been apparent to them. Upon this ground the trial judge was requested to direct a verdict for the defendant, and the court in banc was subsequently asked to enter judgment non obstante veredicto upon the whole record. This argument is plausible but not convincing. It is only in clear *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

Appeal from Court of Common Pleas, Allegheny County.

Bill in equity by the Bellevue Borough, a municipal corporation, and others to enjoin the Ohio Valley Water Company from increasing its rates. From a decree refusing a

preliminary injunction, plaintiffs appeal. Af- extensive with the grant. 1s such a contract firmed.

From the record it appeared that a contract had been entered into between the borough of Bellevue and the water company which fixed the rates to be charged for the use of water. Subsequently the water company increased its rates, and the borough and certain citizens filed a bill restraining the water company from enforcing its new

rates.

Argued before BROWN, MESTREZAT, POTTER, ELKIN, and MOSCHZISKER, JJ. Leonard K. Guiler and David L. Starr, both of Pittsburgh, for appellants. Wm. Watson Smith, of Pittsburgh, for appellee.

We did

binding in the face of the declared statutory policy of the law that the Public Service Commission shall have the power to inquire into and determine the reasonableness of rates in all such cases? This question was answered adversely to the contention of appellants in Turtle Creek Boro. v. Penna. Water Co., 243 Pa. 415, 90 Atl. 199. not then decide whether a contract between a borough and a water company, for a definite term of years and for specified rates during the limited term, would be enforced as between the parties, because that question was not then raised; and it is not raised now, so that this will be left as an open question until it is presented in concrete form upon facts calling for a decision of the point. ELKIN, J. [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 reasonableness or unreasonableness of water rates, it is a sufficient answer to say that the section of the act of April 29, 1874 (P. L. 73), which gave courts the power to determine questions of this character, was repealed by the Public Service Company Law, approved July 26, 1913 (P. L. 1374). In other words, the Legislature took this power away from the courts and conferred it upon the Public Service Commission. Hereafter, so long as the act of 1913 remains in force, the question of the reasonableness of rates established by public service corporations must, in the first instance, be submit

ted to the Public Service Commission when

challenged. This is now the declared statutory policy of the law, and it is binding not only upon the interested parties, but upon the courts as well. We do not know that this position is seriously controverted by learned counsel for either side of the present controversy.

pass upon and determine questions relating to the reasonableness of rates charged by public service corporations. The learned court below in the present case very properly followed the decision in that case and held that the borough of Bellevue could not enforce through the courts a compliance with the rates thus established. It is not a con

tinuing binding contract enforceable through a court of equity. This is so, not because the courts have any desire to avoid the performance of duties cast upon them by the law, but because the people, speaking through the Legislature, have declared that these duties shall be performed by a special tribunal created for the purpose. The disposition everywhere is to commit questions relating to the regulation, and to the rates of public service corporations, to the supervisory powers of special tribunals, and concededly matters of this character are within the domain of legislative action.

Decree affirmed, at the cost of the appellants.

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, and to enforce their obligations on the other. This is true, and if there was a valid binding contract in the present case, it would be necessary to sustain the contention of appel- MCANDREW v. BOROUGH OF DUNMORE lants. The case therefore turns upon the continuance and validity of the contract relied on. The contract in question was made in 1896, and by its terms the water company was granted the right to lay pipes and mains 1. MUNICIPAL CORPORATIONS (§ 907*)—STREET

et al.

(245 Pa. 101)

(Supreme Court of Pennsylvania. April 20, 1914.)

IMPROVEMENTS-VALIDITY OF ORDINANCE

BONDS.

in the streets of the borough with a stipulation that certain 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 their respective dates" was void.

five years from the date of their issue, to be 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 ap

907.*1

2. MUNICIPAL CORPORATIONS (§ 266*) - MuNICIPAL IMPROVEMENTS- STATUTE-CON

STRUCTION.

Municipal improvements are regulated entirely by statute, to which the rule of strict construction applies.

plied to the payment of the bonds exclusively. The ordinance authorizing the improvement in this case provides that two-thirds of the cost of the improvement shall be paid by assessments against the abutting property, payable in seven equal annual pay

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 712; Dec. Dig. §ments, the first thereof 30 days after work 266.*]

3. MUNICIPAL CORPORATIONS (§ 323*)-STREET IMPROVEMENTS INJUNCTION.

A taxpayer against whom a street improvement assessment has been made may sue to enjoin the municipality from making such improvement under a void ordinance authorizing the issuance of bonds payable beyond the period prescribed by statute, though the change in the time of payment of the bonds is not prejudicial to his interests.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 965-972; Dec. Dig. § 323.*]

4. MUNICIPAL CORPORATIONS (§ 303*)-STREET IMPROVEMENTS-VALIDITY OF ORDINANCE.

Under the constitutional requirement that an ordinance authorizing street improvements provide lawful means of payment for same, the whole of such an ordinance is void where the provisions for payment are unlawful.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 808-810, 821; Dec. Dig. § 303.*]

shall commence, and that the bonds shall be issued payable "at any time within six years from their respective dates." It is clear therefore that the ordinance fails to meet the statutory requirement that the bonds be payable in five years and, necessarily, the assessments within a like period, as the bonds are payable exclusively out of the proceeds of the assessments.

[2] Municipal improvements are regulated entirely by statute to which the rule of strict construction applies. This principle is so well settled that it does not need the citation of authorities to support it. There was therefore no authority in the councils in the case in hand either to issue the bonds payable at a longer period than five years from the date of issue or to make the assessments payable in installments extending beyond that period. These requirements of the Appeal from Court of Common Pleas, statute under which the improvement was to be made were entirely disregarded in the orLackawanna County. Bill 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 inan injunction, defendants appeal. Affirmed. Argued before FELL, C. J., and BROWN, MESTREZAT, ELKIN, and MOSCHZISKER, JJ.

C. P. O'Malley, R. A. Zimmerman, and A. A. Vosburg, all of Scranton, for appellants. Cornelius Comegys and William W. Lathrope, both of Scranton, for appellee.

valid. If a time of payment of the bonds fixed by the statute may be enlarged by one year by the ordinance authorizing the improvement, it may be extended any number of years, in the discretion of the council. It is immaterial what the legislative purpose may have been in fixing five years as the time within which the bonds issued for the payment of municipal improvements should be paid; it is sufficient to know that such is the statutory requirement and the council has no authority to disregard it.

MESTREZAT, J. [1] We agree with the learned court below that the ordinance in 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. 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.

[Ed. Note. For other cases, see Pleading, Cent. Dig. § 319; Dec. Dig. § 160.*]

2. PLEADING (§ 155*)-AFFIDAVIT OF DEFENSE

-SUFFICIENCY.

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 burden upon him. Whether therefore the time fixed by the ordinance for the payment of the bonds beyond the statutory period is or is not prejudicial to the plaintiff's interests is not the test of his right to successfully resist the enforcement of the ordinance which compels him to pay for the improvement. He sustains his right to maintain the bill when he shows that the improvement is not made in pursuance of an ordinance passed in conformity with the statute authorizing it.

[4] There is nothing in the contention that the part of the ordinance providing that the improvement bonds shall be redeemable in six years may be invalid and the balance of the ordinance be legal and enforceable. It may be conceded that an ordinance, like a legislative statute, may be good in part and upheld, while another part may be illegal and void. A section or a part of an ordinance or statute may be so disconnected in purpose and effect that its illegality will not necessarily avoid the ordinance or legislative act in toto. But that principle cannot be invoked here to sustain any part of the ordinance authorizing the improvement in question. The ordinance provides for a contract for the grading and paving of certain streets of the municipality, and it is a constitutional requisite of such ordinance that it provide at the same time the lawful means of payment for the improvement. It is therefore manifest that the means and method for payment of the obligations contemplated in the contract are essential features of the ordinance and, if illegal, invalidate the entire ordinance.

A further consideration of the questions involved is unnecessary in view of the very thorough discussion of them by the learned trial judge.

Decree affirmed.

(245 Pa. 196)

DREIFUS et al. v. LOGAN IRON &
STEEL CO.

(Supreme Court of Pennsylvania. April 27,
1914.)

1. PLEADING (§ 160*)-JUDGMENT FOR WANT OF SUFFICIENT AFFIDAVIT OF DEFENSE.

Under rule 42 of the common pleas of Philadelphia county, providing that in actions on contract the statement of claim shall have indorsed on it notice to defendant that he is required to file a plea and an affidavit of defense within 15 days of service thereof, the fact that, pursuant to such notice, defendant files a plea and an affidavit of defense at the same time does not preclude plaintiff from taking a judgment for want of a sufficient affidavit of defense; plaintiff's demand for a plea and an affidavit of defense not being voluntary so as to constitute a waiver of his rights, and defendant, in view of rule 60, providing that the entire defense shall be set out in the affidavit,

In an action on an express contract which cannot be established by copies of entries in books of original entry, an affidavit of defense, not denying the contract is insufficient, though it denies "that the copies of charges and credits" as set out in the statement of claim, and "averred to be copies of the original entries thereof, are incorrect and improperly stated."

[Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 309-311, 313, 314; Dec. Dig. § 155.*]

Appeal from Court of Common Pleas, Philadelphia County.

Assumpsit by Emanuel Dreifus and others, trading as Emanuel Dreifus & Co., to the use of W. Vernon Phillips and another, trustees, against the Logan Iron & Steel Company, a corporation. From a judgment for plaintiff for want of a sufficient affidavit of defense, defendant appeals. Affirmed.

The facts appear in the following opinion of Willson, P. J., in the common pleas:

We are informed by the counsel in the case that the Supreme Court, to which an appeal from the judgment entered therein has been taken, has requested this court to state the was entered. We will do so briefly. reasons upon which the judgment in the case

[1] The first question to be considered relates to the effect and force of rule 42 of the viding, as the rule does, that in actions on concourts of common pleas of this county in protracts the statement of claim should have indorsed upon it notice to the defendant that he is required to file a plea and an affidavit of deservice thereof, and that otherwise judgment fense to the statement within 15 days of the may be entered against him. In the case in hand such notice was given upon the filing of the statement, and the defendant filed both a plea and an affidavit of defense. Subsequently a rule was entered asking that judgment should be rendered for want of a sufficient affidavit of defense. Such a judgment was entered, notwithstanding the contention on the part of defendant'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 affidavit of defense had lapsed.

There is no question but that, previous to the recent adoption of rule 42, and other rules, the ordinary effect of a plaintiff ruling the defendant to plead would have been a waiver on the plaintiff's part of his right to ask for judgment for want of a sufficient affidavit of defense. We concede freely that such is the fair interpretation of the cases which were decided previous to the adoption of the rule in question. The said rule, however, and various others were recently adopted by the courts of common pleas after long consideration and conference with many attorneys of high standing within the county. They were adopted for the purpose of arriving at a prompt and definite statement of the issues involved in any case, so that as soon as possible litigation might be brought to a finality. By rule 60 it was provided as follows: "Neither party shall be permitted at the trial to make any defense except that set forth in the affidavit of defense, or 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 of court, and a copy of the amendment shall be served on the adverse party, or his attorney, at least ten days before the day set for trial." It was thus provided that the entire and exclusive defense in any case of contract must be set out in the affidavit of defense. This being so, and there appearing to be no doubt that under the act of June 16, 1836, section 21 (P. L. 792), the court has statutory authority to make suitable rules for the regulation of its practice, we regard the making of rule 42 as entirely within the powers of the court. We do not think it can be said with any propriety that the rule violates the Constitution or any law of this commonwealth. Nor do we think that it can be said with any propriety that by the entry by a plaintiff of a notice requiring, under the rule referred to, that a plea and an affidavit of defense shall be filed at the same time, the plaintiff has waived his right to ask for judgment for want of a sufficient affidavit of defense. Under the previous state of affairs, before the rule in question was adopted, any such course on a plaintiff's part would have been a voluntary step which might, for reasons given in various decisions, well have been regarded as a waiver of his right to ask for judgment. As the case stands, however, there is nothing voluntary in the act of the plaintiff in such a case. He is compelled by the requirements of the rule to demand both a plea and an affidavit of defense.

We see no reason why, in the interest of a prompt and efficient administration of justice, the court cannot properly require the two forms of defense to be made at the same time, and to enter a final judgment, as was done in the case in hand. Inasmuch as rule 60, before 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 want of a sufficient affidavit of defense, notwithstanding his plea is also on the record.

[2] The only other point in the case which needs to be referred to relates to the propriety of the judgment entered, so far as the merits of the case are concerned. The defendant seems to rely largely upon its averment "that copies of the charges and credits, as the same appear in the plaintiff's statement of claim, and averred to be copies of the original entries thereof, are incorrect and improperly stated." The averment was probably intended to comply with the requirements of rule 72 of the Rules of the Courts of Common Pleas, but we do not think that the language adopted comes up to the demands of that rule, which has uniformly been interpreted as making alleged copies of original entries in plaintiff's books prima facie evidence of plaintiff's claim in an action of assumpsit, unless the defendant takes upon himself the responsibility of asserting in his affidavit of defense that the alleged copies are not true copies of the entries in the books. They may be incorrect, not because they are untrue copies, but because they do not correctly set forth the facts of a transaction. However, we do not think the case rests upon such a narrow or technical point. The case of the plaintiff, as appears from the large number of exhibits attached to the statement of claim, rests upon what may be regarded as an express contract, and one which could not be established by the production of copies of entries in books of original entries. The contract and dealings, as evidenced by the writings and exhibits just referred to, are nowhere denied by the defendant in its affidavit of defense. All the items of credit claimed by the defendant and all the items of charge denied by him were deducted from the total amount of the plaintiff's claim in the entry of judgment, and these disputed items remain for final determination in a trial before a jury.

The court entered the following judgment: And now, to wit, December 15, 1913, the plaintiffs' rule for judgment in the above case for such portions of their claims as to which the affidavit of defense filed is insufficient with leave to proceed for the balance of said claim coming on to be heard, the said rule is made absolute for the first reason therein specified, and judgment is entered in favor of the use plaintiffs and against the defendant for $5,263.95, being the amount of so much of plaintiffs' claim as to which the defendant's affidavit is insufficient as set forth in the third paragraph of the affidavit of defense filed, viz.....$10,809 80 Less the amount of defendant's setoff as set forth in the statement of set-off forming part of the affidavit of defense filed, viz...

Interest from April 1, 1912, to December 13, 1913...

Total amount for which judgment is now entered......

6,033 25 $4,776 55 487 40

$5,263 95

Argued before FELL, C. J., and BROWN, POTTER, ELKIN, and MOSCHZISKER, JJ. Wm. Clarke Mason and William Maul Measey, both of Philadelphia, for appellant. Lewis Lawrence Smith, of Philadelphia, for appellees.

PER CURIAM. The judgment is affirmed on the opinion of the learned president judge of the common pleas.

(245 Pa. 171)

FRITZ v. SAX & ABBOTT CONST. CO. (Supreme Court of Pennsylvania. April 27, 1914.)

JUDGMENT (§ 199*)-NOTWITHSTANDING VERDICT-INJURY TO SERVANT-NEGLIGENCE OF MASTER.

of defendant occasioned by collapse of part of In an action for the death of an employé a building alleged to be due to improper shoring, judgment is properly entered for defendant notwithstanding the verdict, where deceased was the superintendent in charge, and had opportunity to remedy defects in the shoring, and the evidence failed to justify the opinion that the fall of the building was due to such

defects.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 367-375; Dec. Dig. § 199.*]

Appeal from Court of Common Pleas, Philadelphia County.

Action by Harriet Fritz, widow of Peter Fritz, against the Sax & Abbott Construction Company. Judgment for defendant notwithstanding the verdict, and plaintiff appeals. Affirmed.

The defendant company in the year 1909, under a contract with the United Gas Im provement Company, was engaged in alteration and reconstruction of two buildings at the northeast corner of Eleventh and Market streets in this city. Plans had been prepared by a firm of architects for the work to be done, and the defendant company, by the terms of the written contract, undertook to 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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