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ferred to and under the supervision and direc- [ other than a shaking or tremor of the floor tion of the architects. The plans referred just before the catastrophe, the southern

to called for the removal of the lower stories of the brick wall on Eleventh street and Market street in the prosecution of the alterations, and such removal necessitated the placing of shoring in and outside of the building for the purpose of holding in place such portions of the upper part of the wall and of the upper portion of the building as remained in place while the changes were being made in the lower portions. This work of shoring, as well as that of erecting the steel structure that was called for within the building, was intrusted by the defendant to the hands of an independent contractor. Fritz, who was the husband of the plaintiff, was employed by the defendant company as their superintendent to supervise and have charge of all the work which was to be done on the contract of the defendant with the United Gas Improvement Company. We think that there is no ground for question as to the correctness of that statement. Mr. Abbott, the president of the defendant company, was called as a witness on behalf of the plaintiff as under cross-examination, and he testified distinctly that Fritz was employed as superintendent, and that, after full explanations were given to him in regard to the plans and what the contract called for, the whole matter of supervision was placed in his (Fritz's) hands. It is true that a witness spoke of Fritz as a foreman carpenter, and that another witness testified that he believed that one or two other employés of the defendant company who frequently visited the place where the work was going on were the superiors of Fritz. Nobody, however, testified that any person other than Fritz gave any orders or directions in regard to the work which was being done, or that Mr. Abbott or the other persons just referred to as possible superiors to Fritz ever interfered with the work or undertook to give directions in regard to how it should be done. We regard it as entirely proper to consider Fritz as the active superintendent in charge of the whole work.

The contract between the defendant and the United Gas Improvement Company was made on the 6th of May, 1909, and the subcontract between the defendant and the contractor for the shoring was entered into on the 15th of May of the same year. The removal of the wall which was to be removed, as before stated, was begun about the time when the second of these two contracts was entered into, and the shoring which was intended to support the upper part of the building was put in place as the work of removal progressed. From time to time heavy material, such as steel beams and steel columns, were drawn into the building for the purpose of enabling the steel structure to be erected. While such work was in progress, on the 15th of July, shortly after noon, without warning 91 A.-16

part of the building collapsed, the material which fell falling principally inside of the limits of the building, and not into the street. Fritz was engaged immediately prior to the accident upon the second floor of the building, superintending the operations at that point, but at the moment of the catastrophe had gone to the third floor. Unfortunately, in the falling of the structure, he was caught and killed.

It is claimed on behalf of the plaintiff that the death of her husband was due to negligence on the part of the defendant company, in that Fritz was not furnished with a safe place to perform his duties, and because the work of shoring up the building while the alterations were in progress was improperly and negligently done. Various witnesses were called, some of whom were engineers and others were builders, who testified in regard to the shoring. Some of these witnesses said that the usual method of constructing shoring in such a case was to have cross braces between the upright supports. Others said that the use of jacks at the lower end of the shoring timbers was not customary in this locality, and that in their opinion the use of jacks weakened the character of the supports. Still others said that the supporting timbers of the shoring were spliced improperly, and that the wood at the bottom of the timbers was cracked and split and obviously imperfect and unsafe. It appeared also in the evidence that the buildings referred to were old structures, and that the old joists at the eastern end rested for only about an inch in the holes made in the party wall for the joists.

There were two systems of shoring, one upon the outside, in which the upright timbers slanted from the ground upward towards the part of the building which was to be supported, where they were intercepted by other timbers called "needles," which entered the building and rested upon an inside system of shores. It is contended by plaintiff's counsel that the collapse of the building before described resulted from failure to construct the shoring properly. As we look at the case, in view of the evidence, it seems to us that there is no other ground upon which the plaintiff's case can be rested with any show of reason than that just stated, and, indeed, if the testimony offered at the trial is read, it will appear that that was practically the only phase of the case presented. We see no reason for holding that the defendant was guilty of any negligence in not providing a safe place for his employés to work. There is no evidence which would justify the conclusion that the defendant had any knowledge or reason to believe that the place was not safe, unless it can be correctly stated that there was knowledge of insecure shoring supports for the building.

ger to the place, could not relieve him of the responsibility which he assumed when he became the superintendent of the work. Doubtless it may be said that the foundation for the opinion that Fritz could not recover under such circumstances, if he were alive, is to be found in the principle that one who voluntarily assumes a risk of an employment cannot recover if he is hurt while running such a risk. That principle would seem to us beyond all question to be particularly applicable to the case of a man who was not merely an ordinary workman, but was in charge of an entire operation.

Now, upon the motion for judgment n. o. v., | superior officers of the company must have we have this to say: We have two reasons observed defects in the character of the shorfor concluding that such a judgment shoulding, or any other defects or sources of danbe entered: First, we are of the opinion that the evidence in the case was insufficient to justify the conclusion that the fall of the building was owing to defects in the shoring. Assuming, as we must, that there was some evidence that the shoring was improperly constructed, that improper construction would have no relevancy in the present treatment of the case, unless there was some substantial reason to believe that the fall of the building was owing to the bad character of the shoring. It is true that some of the witnesses, who had evidently formed rather positive theories in regard to the cause of the calamity, endeavored to interject in their testimony opinions to the effect that the cause of the building's falling was the bad character of the shoring. But such opinions were volunteered, and they ought to have no bearing upon the disposition of the present question. We think it quite clear that no reasonable theory or explanation in regard to the cause of the calamity appears from the evidence. It may have been bad shoring, but, if so, it would only be a guess which would We have been referred by plaintiff's counsel reach that conclusion. It may have been the to the case of Ott v. General Fire Extinguishoriginal construction of the old building which er Company, 226 Pa. 337, 75 Atl. 591, as an had joists that extended only a very short authority opposed to the views which we have distance into the wall. It may have been a expressed in this opinion. The report of the weakening of the doors previous to, or at the case is very meager and unsatisfactory, but moment of, the collapse, from the amount of we think the case in question is readily disheavy material put upon them, or by reason tinguishable from that now in hand. It is of previous hoisting and moving of such ma-true that the husband of the plaintiff in that terials. Sad as the calamity was to the plain-case is described as having been employed to tiff, it seems to us that in all this uncertainty there can be found no reasonable basis upon which it can be said that the defendants have been shown to have been guilty of negligence which caused the death of the plaintiff's husband.

No doubt there are cases in which it has been held that the question of assumption of risk is oftentimes one for a jury to pass upon. At the same time there are other cases of equal importance in which it has been held, as a matter of law, that the voluntary taking of a risk relieves an employer from responsibility. We do not think it necessary to refer to such cases in detail. Each case must stand by itself.

superintend the installing of a fire-extinguishing system, but the court, in holding that it was a case for a jury to pass upon, when it appeared that he had been killed by the falling of a tank filled with water which a subcontractor had constructed on the roof of a building, said "that the design" of the substructure "was an unusual one, and had been selected and approved by the defendant." The selection and approval of the design by the defendant was a critical circumstance in the case, and it seems to us that it entirely distinguishes the authority cited from the case which we have now before us.

Verdict for plaintiff for $4,000. The court subsequently entered judgment for defendant n. o. v. Plaintiff appealed.

The second reason which we have for arriving at the same result is that Fritz was in charge of the whole work which was being prosecuted. As has been previously stated, he was the general superintendent of the whole affair. It was his duty to see that the contracts for the work that had been entered into by the defendant with the United Gas Improvement Company and with the shoring company were carried out properly; that materials which were used by the subcontractors were of a suitable character; and that the shoring was done in a proper manner. He was placed in his position for that express purpose. He had previously had experience in similar work in the construction of large buildings. Nobody questions his competency. So far as the evidence shows, there was no interference from superiors connected with the defendant company with the manner in PER CURIAM. The majority of the court which he performed his work. He had equal are of opinion that the judgment should be opportunities of knowledge and information | affirmed, for the reasons stated by the learnwith them, and the fact, if it be a fact, that ed president judge of the common pleas.

Argued before FELL, C. J., and MESTREZAT, POTTER, ELKIN, and MOSCHZISKER, JJ.

G. Von Phul Jones and Archibald T. Johnson, both of Philadelphia, for appellant. Owen J. Roberts, of Philadelphia, for appellee.

(245 Pa. 230)

In re LIVEZEY'S ESTATE.

Small, 242 Pa. 235, 88 Atl. 1014, relied upon by learned counsel for appellant, the testa

Appeal of COMMONWEALTH TITLE INS. tor, after providing for his daughter, direct

& TRUST CO.

(Supreme Court of Pennsylvania. May 4, 1914.)

WILLS (§ 683*)-CONSTRUCTION.

Under a will bequeathing to testator's wife the interest on $10,000, to be paid her semiannually during her life by trustees, and providing that on her death the said sum should be equally divided among his children, and further providing that his residuary estate should be equally divided among his children, and that a certain daughter's share be held in trust for life, such daughter was entitled on the widow's death to her share of the $10,000 free from the trust; the provision that the daughter's share should be held in trust applying only to her share of the residuary estate.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1603-1606; Dec. Dig. § 683.*]

Appeal from Orphans' Court, Philadelphia

County.

In the matter of the estate of Miers P. Livezey, deceased. From a decree dismissing exceptions to the adjudication, the Commonwealth Title Insurance & Trust Company, substituted trustee for Emma Eckert under the will of Miers P. Livezey, deceased, appeals. Affirmed.

Argued before BROWN, C. J., and MESTREZAT, POTTER, ELKIN, and MOSCHZISKER, JJ.,

ed in a codicil to his will that the principal of her share in his estate should be held in trust for her, and this, of course, included all that she took under the will. In the case now before us the testator was speaking only of his residuary estate when he directed that the daughter's share should be held in trust. Decree affirmed, at appellant's costs.

ROACH v. IRVIN.

(245 Pa. 162)

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

1. SPECIFIC PERFORMANCE (§ 13*)-IMPOSSIBILITY OF PERFORMANCE.

Specific performance of a contract to exchange real estate will not be decreed where sible, where prior to the filing of the bill the the conveyance by defendant would be impos

land had been sold at foreclosure.

[Ed. Note.-For other cases, see Specific Performance, Cent. Dig. §§ 30-32; Dec. Dig. § 13.*]

2. SPECIFIC PERFORMANCE (§ 128*)-IMPOSSIBILITY OF PERFORMANCE-DAMAGES.

Where a contract to exchange land could not be specifically performed, and the hand money paid plaintiff was more than sufficient to cover all damages suffered, he was not entitled to a decree for money damages.

[Ed. Note.-For other cases, see Specific Performance, Cent. Dig. §§ 412-419; Dec. Dig. §

Theodore F. Jenkins, of Philadelphia, for 128.*] appellant.

PER CURIAM. The testator made the following provisions for his wife, in addition to a bequest of $2,500:

"I also give and bequeath to my said wife the interest at six per cent. on the sum of ten thousand dollars to be paid to her half yearly by the trustees hereinafter named during the term of her natural life, the first payment of interest to be made in six months after my decease. Upon the death of my said wife the said sum of ten thousand dollars to be equally divided among my children, the issue of a deceased child receiving their parent's share.”

Appeal from Court of Common Pleas, Philadelphia County.

Bill by George B. Roach against Harold C. Irvin for specific performance. From a decree dismissing the bill, plaintiff appeals. Affirmed.

Ralston, J., filed the following opinion in the common pleas:

By a formal agreement in writing dated October 7, 1912, Van Cleave agreed to convey the property at the northwest corner of Thirty-Fifth and Spring Garden streets to Bailey, and Bailey agreed to convey No. 3307 Race street to Van Cleave, both properties to be subject to mortgages then existing. Van Cleave subsequently conveyed the property at Thirty-Fifth and Spring Garden streets to the plaintiff subject to transaction for the defendant. the agreement of sale. Bailey was acting in the

In order to facilitate the exchange a mortgage of $10,000 was placed upon the property at Thirty-Fifth and Spring Garden streets. The money advanced on this mortgage was used to pay taxes, water rent, and principal and interest of the old mortgage, and the balance was paid to the plaintiff. The expenses incidental to the negotiation and placing of the mortgage amounted to $378.25.

He then divided his residuary estate equally among his children, directing that the share of his daughter Emma Eckert be held in trust for her. The widow is dead, and the fund for distribution before the court below was the above-mentioned sum of $10,000. The appellant, substituted trustee for the daughter Emma, asked that one-sixth of the same be awarded to it, to be held in trust for her as a part of her share of her father's estate. The court below awarded one-sixth to her directly, on the ground that the testator had given her and his other children an absolute estate in remainder in the said fund, payable on the death of his widow. In this construction of the will we concur. The share of the daughter which the father directed should be held in trust for her was her share in the residuary estate. The will is not to be read otherwise. In Small v. *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

[1, 2] On July 7, 1913, No. 3307 Race street was sold by the sheriff under a mortgage, and deed was made to the purchaser on August 11, ent bill was filed on July 26, 1913. The court 1913, recorded on August 18, 1913. The prescannot decree specific performance, as it would be impossible for the defendant to convey to The plaintiff, however, is entitled to recover the the plaintiff the premises No. 3307 Race street. damages that he has suffered by the defendant's failure to perform his contract. The measure

of his damages is the expense which he has incurred. So far as appears, the only expense is that incidental to the placing of the $10,000 mortgage on Thirty-Fifth and Spring Garden streets, amounting to $378.25. This he would be entitled to recover from the defendant; but it appears further that at the time the contract was signed the defendant paid $1,000 down money to Van Cleave. The plaintiff purchased from Van Cleave subject to the contract of sale, and consequently must give credit to the defendant for the money paid by him to Van Cleave. It therefore appears that the plaintiff has already received from the defendant more than the amount of the expense to which he has been put in carrying out the contract. There is therefore nothing further due him.

policies. The present action being or the list for trial in common pleas No. 2, of ♪ hiladelphia county was called for trial on the morning of December 3, 1913. The defendant's counsel moved for a postponement of the trial until the following morning, assigning therefor orally the following reasons: (1) That two days prior thereto the counsel for the parties met, and it was mutually agreed that the position of the case on the list was such that there was but little chance of the same being reached on the first day it was called, and that counsel should meet on the morning of the day it was to be called,

The court dismissed the bill. Plaintiff ap- more with a view to making arrangements pealed.

Argued before FELL, C. J., and MESTREZAT, POTTER, ELKIN, and MOSCHZISKER, JJ.

Paul Reilly, of Philadelphia, for appellant. Robert Mair, of Philadelphia, for appellee.

PER CURIAM. The decree appealed from is affirmed on the opinion of Judge Ralston.

(245 Pa. 132)

for the trial on the following day than on the day it was called and in consequence thereof the defendant did not subpoena its important witnesses to be present on the day the case was called for trial; (2) that a number of important witnesses of the defendant did not reside in or are not in the jurisdiction of the court, but have agreed to be present on the following day if summoned by telephone or telegraph, that the witnesses had possession of books, papers, and other documents which were of prime and essential

EPSTEIN v. INSURANCE CO. OF NORTH importance to the defense in the case, and

AMERICA.

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

CONTINUANCE (§ 12*)-Grounds-AbuSE OF DISCRETION.

Where counsel had mutually agreed that a case should go over for a day in view of the fact that it was not likely to be reached and defendant had not sent for a number of important witnesses who had agreed to be present on summons by telegraph, and counsel for defendant was unfit to take part in the trial, it was an abuse of discretion to refuse to postpone the trial for one day.

[Ed. Note.-For other cases, see Continuance, Cent. Dig. §§ 40, 42, 49, 50, 52; Dec. Dig. § 12.*]

Moschzisker, J., dissenting.

which could not be obtained by the defendant on the day the case was called for trial; (3) that counsel of record for the defendant was physically unfit to take part in the trial of the case. The court refused the application for a postponement of the trial, and thereupon counsel for defendant requested that his reasons in support of his motion might be put upon the record of the proceedings which was also denied by the court. The court stated that counsel might reduce his reasons to writing, and subsequently present them to the court for consideration, but refused to permit counsel to dictate the reasons to the official stenographer. A jury was drawn and sworn to try the case. The coun

Appeal from Court of Common Pleas, Phil-sel for the defendant left the courtroom for adelphia County.

Action by Samuel Epstein, trading as the Progressive Neckwear Company, and Epstein Bros., against the Insurance Company of North America. Verdict for plaintiff, and defendant appeals. Reversed.

Argued before FELL, C. J., and MESTREZAT, POTTER, ELKIN, and MOSCHZISKER, JJ.

Frank R. Shattuck, of Philadelphia, for appellant. Alfred Aarons and Henry N. Wessel, both of Philadelphia, for appellee.

MESTREZAT, J. The plaintiff's property in the city of Philadelphia was insured in 70 companies, under 76 policies, aggregating $133,000. The property was destroyed by fire on October 9, 1912. Payment was resisted on all the policies on the ground that the claims were excessive and fraudulent, and suits were brought by the insured on the

the purpose of reducing his reasons to writing, which he did, and, having had a typewritten copy duly verified by an affidavit returned to the courtroom which he found closed, the court having adjourned. The case was tried in the absence of counsel and a verict rendered for the plaintiff on which judgment was subsequently entered. The defendant company moved for a new trial and its counsel filed an affidavit setting forth the facts relative to the application and the denial of the motion for postponement of the trial. The plaintiff filed an affidavit denying some of the allegations in the affidavit of the defendant's counsel, but we do not regard these denials as affecting any of the material facts, the subject of the defendant's complaint here.

We are of opinion that under the circumstances the motion of the defendant's counsel to postpone the trial of the cause should

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

MOSCHZISKER, J. (dissenting). While, on the day the case was reached in its regular turn, one attorney for the defendant was "physically unable to take part in the trial," yet it appears he had a colleague who was well and able to try; it further appears that counsel for plaintiff did not agree to a continuance. Under the circumstances, I cannot concur in the conclusion that there was an abuse of discretion; therefore I note my dissent.

(245 Pa. 166)

MOTT v. PENNSYLVANIA R. CO. (Supreme Court of Pennsylvania. April 27, 1914.)

QUESTION FOR

fall from a train, where the only ground of In an action for injury to a servant by a negligence alleged was failure of the conductor to stop the train after notice that the passenbe stopped with safety to the passengers, and ger was missing, and where the train could not it was within a minute or two of the next station, where an investigation was started, there was nothing to submit to the jury.

Cent. Dig. §§ 1346, 1350-1386, 1388-1397, 1402; [Ed. Note.-For other cases, see Carriers, Dec. Dig. § 347.*1

Appeal from Court of Common Pleas, Philadelphia County.

not have been refused. We must assume, in the absence of the denial of record by the plaintiff's counsel, that the counsel of the parties did not, for the reasons stated, anticipate that the cause would be reached for trial on the day the list was first called, and that they expected that it would go over until the next day. Of course, this of itself would not be a sufficient reason for the postponement of the trial because it is the duty of counsel to be ready when his case is called, but in view of the condition of the trial list and the understanding of counsel it was a matter for the learned court to take into consideration with the other reasons assigned for the postponement in passing upon the defendant's application. A number of CARRIERS (§ 347*)-INJURY TO PASSENGERS— the important witnesses for the defendant NEGLIGENCE EVIDENCE JURY. who had possession of books and documents essential to the defense resided out of the jurisdiction of the court, but were ready and willing to appear when summoned by telephone or telegraph. By reason of the uncertainty of the case being reached on the 3d of December these witnesses had not been notified to appear until the following day, when it was thought, apparently by the counsel of both parties, that the case would be tried. These witnesses had agreed to be present on the 4th of December. In addition to these reasons, and one we think which should have appealed to the court, was the fact that the defendant's counsel of record was physically unable to take part in the trial of the cause. This is not denied so far as the record discloses. The postponement of the trial for one day would not, so far as appears, have been injurious to the interests of the plaintiff. The case would then have been tried, possibly not by the counsel of record for the defendant, but by other counsel who could have protected his client's interests. The case was tried while the defendant's counsel was absent reducing to writing the reasons in support of his motion for the postponement of the trial. His absence was due to the refusal of the court to permit the official stenographer to take the counsel's reasons in support of his motion for a postponement. The judgment against the defendant was in effect a judgment by default. It was most important, not only to the defendant in the present action, but to the numerous other insurance companies against which the plaintiff had claims arising out of the same fire that the cause be tried on its merits, and that the defendant have an opportunity to be heard on its averment that the plaintiff's claim was false and fraudulent. We think the circumstances of the case, brought to the court's attention orally by the defendant's counsel, required it to grant the motion and postpone the trial of the cause.

Action by Anna Mott against the Pennsylvania Railroad Company. From an order refusing to take off a nonsuit, plaintiff appeals.

Affirmed.

Carr, J., in the court below, filed the following opinion sur plaintiff's motion to take off nonsuit.

The plaintiff is the widow of Emil Mott, de1911, was a passenger in a train of the deceased, who upon Sunday evening, August 6, fendant company, and who came to his death under distressing circumstances, between the street in this city. Upon the morning of that North Philadelphia Station and Twentieth day he was one of a party which had journeyed in an automobile to the Delaware Water Gap, and he fell ill after his arrival and vomited, thereupon decided to return home by rail, and the effect of traveling upon rough roads. He boarded a train at Stroudsburg at 5:20 p. m. It was made up of eight or nine coaches, some of which had enclosed platforms and others without. Mott sat toward the front on the left side of the smoking car, which was next but one to the engine. McCarthy, a witness called for the plaintiff, but to whom the deceasStroudsburg and the North Philadelphia Station, Mott had made use of the water-closet several times, and from the sounds heard it appears that the disturbed condition of his stomach had not abated. The train arrived at the North Philadelphia Station at 8:56, being a few minutes late on its schedule time, and just as it pulled out, McCarthy saw the deceased leave his seat and step upon the platform, which was not inclosed. McCarthy saw Mott standing upon the platform holding the handrails and facing north. McCarthy left his seat and went toward the door, and did not see Mott, and, becoming alarmed for his safety, The judgment is reversed and a venire sought the conductor, and after passing through facias de novo is awarded. several coaches, found him in the next to the

ed was a

stranger, noticed that between

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

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