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Besides, it was along a public road, as we reroads called Ercildon Road and Modena Road." member it, at about the intersection of two

[2] In the spring of 1912 the defendant | the time this accident happened to these boys. company constructed a road through a part of its property, and, in the construction of the same, it was necessary to use dynamite for blasting purposes. George Shamonski, called by the plaintiff, testified that he had acted as a labor boss for the defendant in acted as a labor boss for the defendant in the construction of the road; that he left its employment in June, 1912; that all of the blasting was over at that time; and that seven or eight days before he left he saw a little wooden box in the shanty containing dynamite. Another witness, a former employé of the defendant, called by the plaintiff, testified that all of the blasting had been done in the spring of 1912. There is no testimony that any dynamite was ever seen in the shanty from June, 1912, down to January 18, 1913; nor was there any testimony that, during that interval, the defendant company had used dynamite for any purpose whatever. The boy who found the dynamite in the shanty on January 18, 1913, testified that it was in a paper box, and the case went to the jury under the following instruction: "How will you reconcile the dynamite that was found in the paper box with the dynamite that was left there in June, 1912, if you believe the latter was in a wooden box? That, to the mind of the court, is one of the important questions for you to consider in this case; and unless you can reconcile it, and unless you can find from the testimony, not outside of the testimony, but from the testimony, as to the difference in the receptacles these two boxes of dynamite were in, some way to account for the transfer of this dynamite from a wooden box into a paper box, your verdict must be in favor of the defendant, and that would be an end of the case and it would be unnecessary for you to further consider the case in any aspect whatsoever."

The mere finding of the dynamite in the shanty on January 18, 1913, was not in itself, under the circumstances stated, evidence that the defendant was responsible for its being there. Indeed, we do not understand that learned counsel for appellee so contend. How it got into the shanty does not appear, but it does appear that for months that building, with its doors and windows at all times open, had been frequented by all sorts of people. Some of them may have carried the dynamite into it; but whether this be so It or not is not the question in the case. was upon the plaintiff to show that the defendant had put or left it there, and the only evidence in support of this material fact was that, in the preceding spring, the appellant had used dynamite for blasting purposes in the vicinity of the shanty, and that seven months before the boys went into it one of its employés had seen in it a little Wooden box containing dynamite. The dynamite which the boys found long afterwards, on January 18, 1913, was in a paper box, and the boy who found it-fifteen years of age when he testified, less than a year afterwards-admitted that he had never seen it before that day, though he had been in the shanty only the day before; and he further said, in reply to a question put to him by the court, that if it had been in the shanty on the previous day he would have seen it.

After the most careful review of all the testimony submitted by the plaintiff, we can find nothing in it which justified the finding that the dynamite which was in a little wooden box in the: shanty in June, 1912, was the same that was found by the boys in a paper box in the following January. In this connection it may be proper to say that it nowhere appears, as counsel for appellee state in their printed argument, that after the accident the appellant claimed as its own the dynamite left in the shanty by the boys.

The jury were thus given to understand that the only evidence of the defendant's negligence was the testimony of Shamonski as to the presence of dynamite in the shanty in June, 1912, and were permitted to find that what he then saw there in a little wooden box was what the boys found seven months later in a paper box. A license was thus given the jury to guess that the defendant had been negligent, and that this was error is most manifest in view of other testimony submitted by the plaintiff. For six or seven months prior to January 18, 1913, the shanty, which was unfenced, along a public road, had been empty at all times. BECKER et al. v. PHILADELPHIA RAPID

The first assignment of error is sustained, the judgment is reversed and is here entered for the defendant.

TRANSIT CO.

(245 Pa. 462)

(Supreme Court of Pennsylvania. May 22, 1914.)

Children, in playing around it, went in and out of it, using it as a playhouse. Others went to it as a loafing or resting place, and negroes frequented it in shooting crap. The testimony as to this is thus correctly summed 1. TRIAL (8 121*)-ARGUMENT OF COUNSEL

EVIDENCE.

Where, in an action against a street railway company for injuries to a passenger from a collision between two cars, there was nothing in the testimony of a physician called by defendant as a witness to indicate that he was unfair or biased, and no attempt was made to impeach him, it was improper for plaintiff's counsel to say in his argument, "Will you believe the testimony of the physician for the transit company, whose business it is to minimize inju

up by the learned trial judge in his charge: "It appears from the very testimony on the part of the plaintiffs in this case that this shanty was open that it was used as a common resort by children, playing there, by men taking their lunches there, and by negroes and others going into it as a place for loafing or resting; and that it was in that condition for a period of from six to seven months, from the time Shamonski said he saw the dynamite there to *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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ries?" and the refusal of the court to withdraw a juror was error.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 294-298, 300; Dec. Dig. § 121.*]

2. EVIDENCE (§ 553*)-EXAMINATION OF EXPERT WITNESS-HYPOTHETICAL QUESTIONS.

Where a medical expert was asked in a personal injury case, "Will you give us the result of each examination afterwards, when you saw her, and give us the results of each?" and "taking the history of the case as given to you, and the evidence that you have heard here, would you be able to state as to what is the cause of her condition as you found it at the present time or as you found it in May 1911?" such questions, being hypothetical but not framed pursuant to the rules applicable to hypothetical questions, should have been excluded.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 2369-2374; Dec. Dig. § 553.*] Appeal from Court of Common Pleas, Philadelphia County.

as you found it at the present time, or as you found it in May, 1911? (Objected to by Mr. Smyth. Objection overruled. Exception for defendant.) By Mr. Smyth: Q. That also includes what she told you, does it? A. That is better. Do you include that? By Mr. Harris: Q. Yes, I will include that. A. Yes, sir; she could have this traumatic neurasthenia from that accident."

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

David J. Smyth, of Philadelphia, for appellant. Bernard Harris and William M. Lewis, both of Philadelphia, for appellees..

ELKIN, J. This is an action in trespass to recover damages for personal injuries resulting from the collision of two cars operTrespass by Anna Ruth Becker, by her ated by the defendant company, in one of next friend and father, David Becker, and which cars the plaintiff, Anna Ruth Becker, David Becker, individually, against the was a passenger. At the trial there was no Philadelphia Rapid Transit Company, for attempt to defend against the negligence personal injuries. From judgment for plain-charged, and the case was made to turn upon tiffs, defendant appeals. Reversed. For the extent of the injuries sustained. this purpose medical testimony was introducErrors assigned, among others, were in re-ed to show the extent and character of the fusing to withdraw a juror and continue the injuries and how the plaintiff was affected case, because of an alleged improper remark thereby. by plaintiff's counsel, and the third and fourth assignments of error, which were as follows:

of

[1] The defendant called a physician who had examined the plaintiff, and this witness testified in detail as to her condition. There was nothing in his testimony to indicate that he was unfair in his statements or biased in his professional judgment. His testimony was straightforward, and no attempt was made to impeach his veracity. This was the situation at the close of the testimony when counsel proceeded to argue the case to the

(3) The learned court below erred in overruling defendant's objection to the questions and answers on direct examination of plaintiff's witness Dr. Bochroch, and in admitting testimony as follows: "Q. Will you give us the results cach examination afterwards; when you saw her, and give us the results of each? A. I will give you the result on last Sunday. The subjective examination was that she slept poorly at night- Q. When was that examination? A. On Sunday morning. Q. Last Sun-jury. In his argument counsel for plaintiffs day morning? A. Yes, sir. A. Yes, sir. Q. October 26th? A. Yes, sir. She says she cannot work; she says she volunteered the statement that she constantly felt tired, and she specially felt tired in the a. m.—in the morning on arising. She still complained of passing urine frequentlyMr. Smyth: This is all objectionable, as they are statements made several years after the accident. (Objection overruled. Exception for defendant. Witness continuing.) She told me that-volunteered the statement. There was no objective symptoms of those. Now, the objective symptoms were these: All these muscles reflexes were still exaggerated, both the upper and lower extremities; her left pupil is still larger than the right; the limitation of the field of vision has very largely disappeared, and is distinctly better. She has a gross tremor of the tongue. When the tongue is protruded, there is a distinct tremor there. Her pulse is 80. Her knee jerks are very markedly increased. She has cold hands and feet, and moving her backward and forward causes pain; that is, she has increased pain when moving this woman backward and forward, and it causes a rapidity of the pulse."

severely criticized the testimony of the physician called by defendant, saying, among other things, "Will you believe the testimony of the physician for the transit company, whose business it is to minimize injuries?" At this point counsel for defendant called the attention of the court to the remarks complained of and moved for the withdrawal of a juror, whereupon counsel for plaintiffs said: "I stand upon that." Now, the objec- stand upon that." The motion was overruled and the case proceeded. This improper remark of counsel is made the subject of the first assignment of error. If standing alone we might hesitate to reverse on this ground, but taken in connection with other matters complained of, we feel it to be our duty to admonish counsel that remarks of this character in making appeals to juries are highly improper and counsel making them do so at their peril. In recent years we have had occasion in several cases to remind counsel

(4) The learned court below erred in overruling the defendant's objection to the question of of the impropriety of making such appeals plaintiff's counsel on examination in chief of to the prejudice and sympathy of the jury. plaintiff's witness Dr. Bochroch, and admitting Wagner v. Hazle Township, 215 Pa. 219, 64 testimony as follows: "Q. Taking the history Atl. 405; Saxton v. Pittsburgh Railway Co., of the case as given to you, and the evidence that you have heard here, would you be able to 219 Pa. 492, 68 Atl. 1022. This rule will not state as to what is the cause of her condition be relaxed, but will be enforced. As was *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

said by the present Chief Justice in Saxton v. Railway Co., above cited:

"If courts are to continue to be places where justice is judicially administered, causes must be fairly presented and fairly defended, and the duty of counsel in this regard is not less important nor less imperative than that of the judge."

Remarks of counsel not warranted by the evidence are always improper, and especially so when the attempt is made to unfairly prejudice the minds of jurors.

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All the assignments of error except the last were in the following form:

"(1) The learned court below erred in dis

ception was as follows: (3) The learned trial judge erred in refusing plaintiffs' twelfth reThat the said brick building, fronting upon and quest for finding of fact, as follows: “(12) towards Eighteenth street, materially interferes with and obstructs the free circulation of light and air to the owners and occupants of the lots lying west of the premises at the southwest corner of Eighteenth and Arch streets, including the plaintiffs', and will result in irreparable damage to plaintiffs."' The court declines so to find."

[2] The third and fourth assignments must be sustained. The questions can only be re-missing plaintiffs' third exception, which exgarded as hypothetical and must of necessity be governed by the well-defined rules applicable to questions of this character. In the present case counsel ignored the limitations of the rule in the examination of a witness called as an expert to express an opinion upon a state of facts developed at the trial. Nothing will be gained by a general discussion of this subject. For the purposes of the present case, we need only refer to Rouch v. Zehring, 59 Pa. 74, and Gillman v. Electric Railway Co., 224 Pa. 267, 73 Atl. 342, as a guide to all concerned when the case is again

tried.

The first, third, and fourth assignments of error are sustained.

Judgment reversed, and a venire facias de novo awarded.

(245 Pa. 426)

COATES et al. v. YOUNG WOMEN'S
CHRISTIAN ASS'N OF PHIL-
ADELPHIA et al.

(Supreme Court of Pennsylvania. May 22,
1914.)

1. INJUNCTION (§ 113*)-BUILDING RESTRICTIONS-ENFORCEMENT-LACHES.

Where, in an action to restrain the erection of a building in violation of a building restriction, prohibiting the erection of houses fronting on a certain street, it appeared that a contract for a building fronting on the street, and to cost $19,281, was let September 18, 1913, and its construction begun shortly thereafter; that all passersby could see that it fronted on the prohibited street, and that the work was steadily progressing; that the plaintiffs learned in September and early in October that the work was going on, but made no objection until November 8th, and gave no notice until November 11th, when the building was nearly completed and substantially all the subcontracts had been let-the court properly held that plaintiffs' right of action was barred by laches.

[Ed. Note.-For other cases, see Injunction, Cent. Dig. §§ 198-201; Dec. Dig. § 113.*] 2. APPEAL AND ERROR ($ 724*)-ASSIGNMENTS OF ERROR-SUFFICIENCY.

Assignments of error, stating that the court erred in dismissing exceptions, without giving the language of the court in dismissing same, not being in proper form, will be dismissed.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2997-3001, 3022; Dec. Dig. § 724.*]

The last assignment was as follows:

"(21) The learned court below erred in entering a final decree, as follows: 'And now, January 15, 1914, defendants' exceptions are sustained and the requests therein quoted are affirmed. Plaintiffs' exceptions are dismissed, and it is ordered and decreed that their bill in equity be dismissed at their costs.""

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

Albert L. Moise, Samuel D. Matlack, and George W. Wilgus, all of Philadelphia, for appellants. Alex. Simpson, Jr., and Ernest L. Tustin, both of Philadelphia, for appellees.

MOSCHZISKER, J. This was a proceeding to restrain an alleged violation of a building restriction. After final hearing, on bill, answer, and proofs, the court below refused the injunction; the plaintiffs have appealed.

[1] The defendant corporation owns રી piece of land at the southwest corner of Eighteenth and Arch streets, Philadelphia, extending from Arch street 160 feet to Cuthbert street, containing in front on the two last-mentioned streets, 132 feet. The lot was originally divided into two equal parts, and the eastern, or Eighteenth street, half is subject to the restriction, "That all the buildings which shall be built and erected on the Mulberry (now Arch) street front of said lot shall be placed at least three feet southward from the regulated south line of said street, *

* and that no such building or buildings or any addition or back building attached thereto shall extend to a greater depth than 120 feet southward from such regulated line, and secondly, that in orAppeal from Court of Common Pleas, Phil- der to secure the free circulation of light adelphia County.

and air to the owners and occupants of the

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

lots of ground lying westward of said hereby granted lot and to prevent any obstruction thereto in all time to come no building or buildings shall ever be built, erected or placed, upon the said lot to front upon or towards Schuylkill Fifth (now Eighteenth) street"; and the other half of the defendant's land is subject to the first part of this restriction. Some years ago the defendant erected a building at the southwest corner of Eighteenth and Arch streets; and the structure which the plaintiffs now seek to restrain is in the rear of that building, at the northwest corner of Eighteenth and Cuthbert streets. Each of the plaintiffs owns property to the west of the defendant's land.

The chancellor found as a fact that: "The

building which is being erected * * * is neither an addition nor a back building to the building situated at the corner of Eighteenth and Arch streets."

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*

These findings effectually dispose of the first part of the building restriction. In connection with the second part of the restriction, the chancellor found the following facts: "For nearly 25 years one of the main entrances of the building on the southwest corner of Eighteenth and Arch streets has been upon Eighteenth street. .* * **For about the same time there was a 12-story building at the northwest corner of Eighteenth and Cuthbert streets, which was occupied and used by ** the defendant, during all that time, and until torn down to make way for the building now objected to. * to. *The building now objected to * is 34 feet on Eighteenth street by 91 feet on Cuthbert street, and is 32 feet high at the eaves and 43 feet high at the highest point of the roof, and is roofed in. The contract for its erection and construction was made September 18, 1913. It is to cost $19,281. It is more than 120 feet southward from the regulated south line of Arch street. * * On or about the last of September, 1913, all persons passing the building ** *could see that its front and entrance were upon Eighteenth street, and thereafter the work upon said building steadily progressed. * *** None of the plaintiffs made any objection to the building ** until November 8, 1913, and no notice was given to the builder, Franklin B. Davis, one of the defendants, until November 11, 1913. At that time the building was largely completed, being nearly to its full height in the rear and over one-half its full height in the front, and the builder had made all his contracts in regard to it, except about $1,200 thereof, and there had been then expended upon it the sum of $7,000."

*

In addition, the court found that one of the plaintiffs knew of the intention to erect a new building in September, 1913, and had knowledge that the work was actually being done upon it "for five weeks prior to November 13, 1913," that another of the plaintiffs had such knowledge by "the first week of October," and the last of them "knew about it in the middle of October, 1913." On these facts the court concluded that the "plaintiffs were guilty of laches in not sooner objecting to the construction of said building": further, that "the plaintiffs have lost by their laches all right to proceed in equity to compel the tearing down of said building, or to prevent its completion"; and the bill was dismissed.

Many other points were raised in the court below, and argued before us on appeal; but as we are not convinced of error in the findings of fact or conclusions of law just narrated, and since they amply vindicate the

decree entered, it seems unnecessary to go further. In this connection, however, it may not be out of place to note that the building restriction here insisted upon first appears in 1837, in a conveyance of a lot 66 feet wide extending along the west side of what is now Eighteenth street, from Arch to Filbert street, that since that date Cuthbert street has been opened as an intermediate highway, and all the ground between the latter street and Filbert street has been built upon for some years, several of the houses fronting upon Eighteenth street, in apparent violation of the building restriction in question; thus it may be seen that the west side of Eighteenth street was built up, almost solidly, from Arch to Filbert street, before the defendant undertook the erection of the structure now objected to. The facts at bar far remove the defendant's case from those involving a deliberate violation of a building restriction, after notice; and, under the circumstances, the officers of the defendant corporation might well have believed that this old restriction would not be insisted upon. But, be that as it may, we are convinced the court below did not err in deciding that the laches of the plaintiffs barred them from the relief sought.

[2] All the assignments of error except the last which goes to the decree, are dismissed, as technically defective (see Prenatt v. Messenger Printing Co., 241 Pa. 267, 270, 88 Atl. 439), the last assignment is overruled, and the decree is affirmed, at the cost of the appellants.

(112 Me. 559)

DORNBERGER v. MAINE CENT. R. CO.
(Supreme Judicial Court of Maine. Sept. 14,
1914.)

MASTER AND SERVANT (8 217*)-LIABILITY
FOR INJURIES-ASSUMPTION OF RISK.

being unable to climb the precipitous wall of snow and ice, was injured. At the time of the accident, the plaintiff had held the position of signal maintainer for defendant for about eight months and been in the employ of defendant for about two years. That he knew that snowplows were necessarily and frequently employed and often preceded the passage of trains by a short interval of time was the result of his experience. He was also familiar with the general manner of operating the plows and knew that the plow usually preceded the locomotive as was the case at the time of the accident. He was also aware that a passenger train from the east was due at Crawford Station at 12:02

A railway signal maintainer, who had held that position for several months, was directed to investigate the condition of a signal, but was given no instructions as to the manner of doing the work, leaving him free to use such methods as he thought best. In remedying the difficulty, he found it necessary to pass several times through a cut, against the sides of which snow had been thrown by a snowplow so as to make perpendicular walls of snow and ice. On one of his trips through the cut he was overtaken by a snowplow and injured. He knew that a passenger train was due in a few minutes, and that a plow usually preceded the locomotive. p. m. Held, that he assumed the risk of the condi- It is clear that no instructions were given tions resulting in the injury, and could not re-him cover, irrespective of the company's negligence. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dec. Dig. § 217.*]

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Argued before SAVAGE, C. J., and CORNISH, BIRD, HALEY, HANSON, and PHILBROOK, JJ.

him as to the manner in which he should do
his work nor could his employer, unadvised
of the cause of the difficulty, know the char-
acter of the work required to repair the sig-
was therefore free to use such methods and
nal of the time necessarily employed.
seize such occasions as he thought prudent

and best.

He

Without considering the question of negligence of defendant, it is the opinion of the conditions which resulted in his injury. court that plaintiff assumed the risk of the

"It is well-established law, reiterated in hundreds of decisions, that when one enters into the he assumes the risk of all obvious and apparent

Merrill & Merrill, of Skowhegan, for plain-service of another, by virtue of the employment, tiff. Johnson & Perkins, of Waterville, for dangers which are incident to the business, and

defendant.

PER CURIAM.

The accident occasioning the injury for which plaintiff seeks the recovery of damages occurred on defendant's railroad at a point between Crawford Station and Crawford Notch. The distance between the station and notch is about 900 feet, and at either end is a cut. That from the notch west is about 375 feet long, while the length of the other, or western cut, is about 250 feet. In the space between these cuts, the land upon one side is either level with the roadbed or slopes below its level. In winter the snow is thrown by the snowplows against the sides of the two cuts, forming perpendicular walls of snow and ice some five or six feet high. As the plows are wider than the trains, the cuts afford a narrow space on either side of a train. While the cuts were in this condition early in the morning of March 2, 1912, plaintiff was directed to investigate the condition of signal 847 near the western end of the western cut. The

wind was blowing and the snow drifting during the day.

To remedy the difficulty he found existing made it necessary for him to pass several times through the cuts. At about 11:55 in the forenoon he was making his third or fourth trip and, proceeding westerly, had reached about the middle of the western cut when he was overtaken by a snowplow and,

all of which, by the exercise of reasonable care, one of his age, capacity, and experience ought to know and appreciate. He also assumes the risk of all dangers of which he knows and which he should appreciate, whether obvious and visibly apparent or not." Babb v. Oxford Paper Co., 99 Me. 298, 59 Atl. 290.

Instances of the application of the principle will be found in Morris v. B. & M. R. R. Co., 184 Mass. 368, 371, 68 N. E. 680; Wiley v. Batchelder, 105 Me. 536, 75 Atl. 47; Brown v. C., R. J. & P. Ry. Co., 69 Iowa, 161, 162, 28 N. W. 487; Id., 64 Iowa, 652, 21 N. W. 193; Howland v. M., L. S. & W. Ry., Co., 54 Wis. 226, 11 N. W. 529.

The motion must be sustained. So ordered.

(77 N. H. 307) SANBORN v. BOSTON & MAINE R. R. (Supreme Court of New Hampshire. Merrimack County. June 2, 1914.) 1. CONSTITUTIONAL LAW (§ 322*)-RIGHT TO REMEDY-NEW TRIAL-NEWLY DISCOVERED EVIDENCE.

Denial of a motion for a new trial for plaintiff's constitutional right to a certain remnewly discovered evidence is not a violation of edy for all injuries guaranteed by the Bill of Rights, art. 14.

[Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 951; Dec. Dig. § 322.*] 2. JURY (§ 31*)-RIGHT TO JURY TRIAL-MOTION FOR NEW TRIAL-DENIAL.

The court's finding that if the alleged newly discovered evidence for which a new trial was asked was relevant, it should be excluded

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 91 A.-55

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