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[2] In the spring of 1912 the defendant the time this accident happened to these boys. company constructed a road through a part Besides, it was along a public road, as we reof its property, and, in the construction of roads called Ercildon Road and Modena Road." the same, it was necessary to use dynamite for blasting purposes. George Shamonski,

The mere finding of the dynamite in the called by the plaintiff

, testified that he had shanty on January 18, 1913, was not in itacted as a labor boss for the defendant in that the defendant was responsible for its

self, under the circumstances stated, evidence the construction of the road ; that he left its employment in June, 1912; that all of the being there. Indeed, we do not understand employment in June, 1912; that all of the that learned counsel for appellee so contend. blasting was over at that time; and that seven How it got into the shanty does not appear, or eight days before he left he saw a little but it does appear that for months that wooden box in the shanty containing dyna: building, with its doors and windows at all mite. Another witness, a former employé of the defendant, called by the plaintiff, tes of people. Some of them may have carried

times open, had been frequented by all sorts tified that all of the blasting had been done the dynamite into it; but whether this be so · in the spring of 1912. There is no testimony or not is not the question in the case.

It that any dynamite was ever seen in the or not is not the question in the case. shanty from June, 1912, down to January 18, was upon the plaintiff to show that the de1913; nor was there any testimony that, duro fendant had put or left it there, and the ing that interval, the defendant company had only evidence in support of this material

fact was that, in the preceding spring, the used dynamite for any purpose whatever. The boy who found the dynamite in the appellant had used dynamite for blasting purshanty on January 18, 1913, testified that it poses in the vicinity of the shanty, and that was in a paper box, and the case went to seven months before the boys went into it

one of its employés had seen in it a little the jury under the following instruction:

“How will you reconcile the dynanite that wooden box containing dynamite. The dynawas found in the paper box with the dynamite mite which the boys found long afterwards, that was left there in June, 1912, if you believe on January 18, 1913, was in a paper box, the latter was in a wooden box? That, to the and the boy who found it-fifteen years of mind of the court, is one of the important questions for you to consider in this case; and un age when he testified, less than a year afterless you can reconcile it, and unless you can wards-admitted that he had never seen it find from the testimony, not outside of the tes before that day, though he had been in the timony, but from the testimony, as to the dif- shanty only the day before; and he further ference in the receptacles these two boxes of dynamite were in, some way to account for the said, in reply to a question put to him by the transfer of this dynamite from a wooden box court, that if it had been in the shanty on into a paper box, your verdict must be in favor the previous day he would have seen it. of the defendant, and that would be an end of the case and it would be unnecessary for you

After the most careful review of all the to further consider the case in any aspect what- testimony submitted by the plaintiff, we can soever."

find nothing in it which justified the finding The jury were thus given to understand that the dynamite which was in a little woodthat the only evidence of the defendant's en box in the shanty in June, 1912, was the negligence was the testimony of Shamonski same that was found by the boys in a paper as to the presence of dynamite in the shanty box in the following January. In this conin June, 1912, and were permitted to find nection it may be proper to say that it nothat what he then saw there in a little where appears, as counsel for appellee state wooden box was what the boys found seven in their printed argument, that after the months later in a paper box. A license was accident the appellant claimed as its own thus given the jury to guess that the de- the dynamite left in the shanty by the boys. fendant had been negligent, and that this The first assignment of error is sustained, was error is most manifest in view of other the judgment is reversed and is here entered testimony submitted by the plaintiff. For for the defendant. six or seven months prior to January 18, 1913, the shanty, which was unfenced, along

(245 Pa. 462) a public road, had been empty at all times. BECKER et al. v. PHILADELPHIA RAPID Children, in playing around it, went in and

TRANSIT CO. out of it, using it as a playhouse. Others went to it as a loafing or resting place, and

(Supreme Court of Pennsylvania, May 22,

1914.) negroes frequented it in shooting crap. The testimony as to this is thus correctly summed 1. TRIAL (8 121*)-ARGUMENT OF COUNSEL

EVIDENCE. up by the learned trial judge in his charge:

Where, in an action against a street rail“It appears irom the very testimony on the way company for injuries to a passenger from a part of the plaintiffs in this case that this shan-collision between two cars, there was nothing in ty was open; that it was used as a common the testimony of a physician called by defendresort by children, playing there, by men taking ant as a witness to indicate that he was untheir lunches there, and by negroes and others fair or biased, and no attempt was made to imgoing into it as a place for loafing or resting; peach him, it was improper for plaintiff's counand that it was in that condition for a period sel to say in his argument, “Will you believe of from six to seven months, from the time the testimony of the physician for the transit Shamonski said he saw the dynamite there to company, whose business it is to minimize inju*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

ries?" and the refusal of the court to withdraw , as you found it at the present time, or as you a juror was error.

found it in May, 1911? (Objected to by Mr. [Ed. Note.- For other cases, see Trial, Cent. Smyth. Objection overruled. Exception for deDig. Sp 294–298, 300; Dec. Dig. § 121.*]

fendant.) By Mr. Smyth: Q. That also in2. EVIDENCE (8 553*)-EXAMINATION OF Ex- better. Do you include that? By Mr. Harris:

cludes what she told you, does it? A. That is PERT WITNESS-HYPOTHETICAL QUESTIONS. Where a medical expert was asked in a could have this traumatic neurasthenia from

Q. Yes, I will include that. A. Yes, sir; she personal injury case, “Will you give us the result that accident." of each examination afterwards, when you saw her, and give us the results of each ?” and “tak Argued before FELL, C. J., and POTTER, ing the history of the case as given to you, and ELKIN, STEWART, and MOSCHZISKER, the evidence that you have heard here, would you be able to state as to what is the cause of

JJ. her condition as you found it at the present time or as you found it in May 1911?" such

David J. Smyth, of Philadelphia, for apquestions, being hypothetical but not framed pellant. Bernard Harris and William M. pursuant to the rules applicable to hypothetical Lewis, both of Philadelphia, for appellees. questions, should have been excluded.

[Ed. Note. For other cases, see Evidence, Cent. Dig. $8 2369-2374; Dec. Dig. $ 553.*]

ELKIN, J. This is an action in trespass Appeal from Court of Common Pleas, to recover damages for personal injuries rePhiladelphia County.

sulting 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

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.

the extent of the injuries sustained. For

this purpose medical testimony was introducErrors assigned, among others, were in reed 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 had examined the plaintiff, and this witness

[1] The defendant called a physician who follows:

(3) The learned court below erred in overrul- testified in detail as to her condition. There ing defendant's objection to the questions and was nothing in his testimony to indicate that answers on direct examination of plaintiff's wit- he was unfair in his statements or biased in ness Dr. Bochroch, and in admitting testimony his professional judgment. His testimony as follows: "Q. Will you give us the results was straightforward, and no attempt was of each examination afterwards; when you saw her, and give us the results of each ? A. I made to impeach his veracity. This was the will give you the result on last Sunday. The situation at the close of the testimony when subjective examination was that she slept poorly counsel proceeded to argue the case to the at night, Q. When was tion? A. On Sunday morning. Q. Last Sun- jury. In his argument counsel for plaintiffs

A. Yes, sir. Q. October 26th ? severely criticized the testimony of the physiA. Yes, sir. She says she cannot work; she cian called by defendant, saying, among other constantly felt tired, and she specially felt tired things, “Will you believe the testimony of in the a. m.-in the morning on arising. She

the physician for the transit company, whose still complained of passing urine frequently, business it is to minimize injuries?" At this Mr. Smyth: This is all objectionable, as they point counsel for defendant called the attenare statements made several years after the ac- tion of the court to the remarks complained cident. (Objection overruled. Exception for defendant. Witness continuing.) She told me of and moved for the withdrawal of a juror, that-volunteered the statement. There was no whereupon counsel for plaintiffs said: “I objective symptoms of those. Now, the objec- stand upon that.” The motion was overruled tive symptoms were these: reflexes were still exaggerated, both the upper and the case proceeded. This improper reand lower extremities; her left pupil is still mark of counsel is made the subject of the larger than the right; the limitation of the first assignment of error. If standing alone field of vision has very largely disappeared, and is distinctly better. She has a gross tremor of but taken in connection with other matters

we might hesitate to reverse on this ground, the tongue. When the tongue is protruded, there is a distinct tremor there. Her pulse is complained of, we feel it to be our duty to 80. Her knee jerks are very markedly increas- admonish counsel that remarks of this chared. She has cold hands and feet, and moving acter in making appeals to juries are highly her backward and forward causes pain; that is, she has increased pain when moving this improper and counsel making them do so at woman backward and forward, and it causes a their peril. In recent years we have had rapidity of the pulse.”

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 Injunction by Anna K. Coates, surviving v. Railway Co., above cited:

trustee of the estate of Abraham Coates, "If courts are to continue to be places where deceased, and others, against the Young justice is judicially administered, causes must Women's Christian Association of Philadelbe fairly presented and fairly defended, and the duty of counsel in this regard is not' less im- phia, a corporation, and another. From deportant nor less imperative than that of the cree for defendant, plaintiff appeals. Afjudge."

firmed. Remarks of counsel not warranted by the

The court on final hearing dismissed tbe evidence are always improper, and especially bill. so when the attempt is made to unfairly

All the assignments of error except the prejudice the minds of jurors.

last were in the following form: [2] The third and fourth assignments must

“(1) The learned court below erred in disbe sustained. The questions can only be re- missing plaintiffs' third exception, which exgarded as hypothetical and must of necessity ception was as follows: '(3) The learned trial be governed by the well-defined rules appli- judge erred in refusing plaintiffs' twelfth recable to questions of this character. In the That the said brick building, fronting upon and

quest for finding of fact, as follows: "(12) present case counsel ignored the limitations towards Eighteenth street, materially interof the rule in the examination of a witness feres with and obstructs the free circulation of called as an expert to express an opinion light and air to the owners and occupants of upon a state of facts developed at the trial. the lots lying west of the premises at the south

west corner of Eighteenth and Arch streets, Nothing will be gained by a general discus- including the plaintiffs', and will result in irsion of this subject. For the purposes of the reparable damage to plaintiffs.". The court depresent case, we need only refer to Rouch v. clines so to find.” Zehring, 59 Pa. 74, and Gillman v. Electric The last assignment was as follows: Railway Co., 224 Pa. 267, 73 Atl. 342, as a “(21) The learned court below erred in enguide to all concerned when the case is again tering a final decree, as follows: 'And now, tried.

January 15, 1914, defendants' exceptions are The first, third, and fourth assignments affirmed.

sustained and the requests therein quoted are

Plaintiffs' exceptions are dismissed, of error are sustained.

and it is ordered and decreed that their bili Judgment reversed, and a venire facias in equity be dismissed at their costs.'” de novo awarded.

Argued before FELL, C. J., and MESTRE

ZAT, POTTER, ELKIN, and MOSCHZIS(245 Pa. 426)

KER, JJ.
COATES et al. v. YOUNG WOMEN'S
CHRISTIAN ASS'N OF PHIL-

Albert L. Moise, Samuel D. Matlack, and
ADELPHIA et al.

George W. Wilgus, all of Philadelphia, for (Supreme Court of Pennsylvania. May 22,

appellants. Alex, Simpson, Jr., and Ernest 1914.)

L. Tustin, both of Philadelphia, for appel1. INJUNCTION ($ 113*)—BUILDING RESTRIC

lees. TIONS-ENFORCEMENT-LACHES.

Where, in an action to restrain the erection of a building in violation of a building

MOSCHZISKER, J. This was a proceedrestriction, prohibiting the erection of houses ing to restrain an alleged violation of a fronting on a certain street, it appeared that building restriction. After final hearing, on a contract for a building fronting on the street, and to cost $19,281, was let Septem- bill, answer, and proofs, the court below reber 18, 1913, and its construction begun short-fused the injunction; the plaintiffs have aply thereafter; that all passersby could see pealed. that it fronted on the prohibited street, and

a that the work was steadily progressing; that

[1] The defendant corporation owns the plaintiffs learned in September and early piece of land at the southwest corner of in October that the work was going on, but Eighteenth and Arch streets, Philadelphia, made no objection until November 8th, and extending from Arch street 160 feet to Cuthgave no notice until November 11th, when the building was nearly completed and substantial- bert street, containing in front on the two ly all the subcontracts had been let the court last-mentioned streets, 132 feet. The lot was properly held that plaintiffs' right of action originally divided into two equal parts, and was barred by laches.

the eastern, or Eighteenth street, half is sub[Ed. Note.-For other cases, see Injunction, ject to the restriction, “That all the buildCent. Dig. $S 198-201; Dec. Dig. $ 113.*]

ings which shall be built and erected on the 2. APREAL AND ERROR (8 724*)-ASSIGNMENTS OF ERROR—SUFFICIENCY.

Mulberry (now Arch) street front of said Assignments of error, stating that the lot shall be placed at least three feet southcourt erred in dismissing exceptions, without ward from the regulated south line of said giving the language of the court in dismissing

street,

*

and that no such buildsame, not being in proper form, will be dismissed.

ing or buildings or any addition or back [Ed. Note.-For other cases, see Appeal and building attached thereto shall extend to a Error, Cent. Dig. $$ 2997–3001, 3022; Dec. greater depth than 120 feet southward from Dig. § 724.*]

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 In addition, the court found that one of granted lot and to prevent any obstruction the plaintiffs knew of the intention to erect thereto in all time to come no building or a new building in September, 1913, and had buildings shall ever be built, erected or plac- knowledge that the work was actually being ed, upon the said lot to front upon or towards done upon it "for five weeks prior to NovemSchuylkill Fifth (now Eighteenth) street"; | ber 13, 1913,” that another of the plaintiffs and the other half of the defendant's land had such knowledge by “the first week of is subject to the first part of this restriction. October," and the last of them "knew about Some years ago the defendant erected a it in the middle of October, 1913.” On these building at the southwest corner of Eight-facts the court concluded that the “plaineenth and Arch streets; and the structure tiffs were guilty of laches in not sooner obwhich the plaintiffs now seek to restrain is jecting to the construction of said building”; in the rear of that building, at the northwest further, that "the plaintiffs have lost by corner of Eighteenth and Cuthbert streets. their laches all right to proceed in equity to Each of the plaintiffs owns property to the compel the tearing down of said building, or west of the defendant's land.

to prevent its completion"; and the bill was The chancellor found as a fact that:

dismissed.

Many other points were raised in the court “The building which is being erected

* is neither an addition nor a back below, and argued before us on appeal; but building to the building situated at the corner as we are not convinced of error in the findof Eighteenth and Arch streets."

ings of fact or conclusions of law just narFurther, that:

rated, and since they amply vindicate the "The building at the corner of Eighteenth decree entered, it seems unnecessary to go and Arch streets does not extend to a greater further. In this connection, however, it may width than 120 feet southward from the reg- not be out of place to note that the building ulated south line of Arch street."

restriction here insisted upon first appears These findings effectually dispose of the in 1837, in a conveyance of a lot 66 feet wide first part of the building restriction. In con extending along the west side of what is now nection with the second part of the restric-Eighteenth street, from Arch to Filbert tion, the chancellor found the following facts: street, that since that date Cuthbert street For nearly 25 years one of the main en

has been opened as an intermediate highway, trances of the building on the southwest cor- and all the ground between the latter street ner of Eighteenth and Arch streets has been and Filbert street has been built upon for upon Eighteenth street. . *

* For about the some years, several of the houses fronting same time there was a 112-story building at the northwest corner of Eighteenth and Cuth-upon Eighteenth street, in apparent violabert streets, which was occupied and used by tion of the building restriction in question; * * * the defendant, during all that time, thus it may be seen that the west side of and until torn down to make way for the build-Eighteenth street was built up, almost soliding now objected to. * * * The building now objected to * * * is 34 feet on Eightly, from Arch to Filbert street, before the eenth street by 91 feet on Cuthbert street, defendant undertook the erection of the and is 32 feet high at the eaves and 43 feet structure now objected to. The facts at bar high at the highest point of the roof, and is far remove the defendant's case from those roofed in. The contract for its erection and construction was made September 18, 1913. involving a deliberate violation of a building It is to cost $19,281. It is more than 120 restriction, after notice; and, under the feet southward from the regulated south line circumstances, the officers of the defendant of Arch street.

On or about the last of. September, 1913, all persons passing the corporation might well have believed that building

could see that its front and this old restriction would not be insisted upentrance were upon Eighteenth street, and on. But, be that as it may, we are convinced thereafter the work upon said building steadily the court below did not err in deciding that progressed. * * * None of the plaintiffs made any objection to the building * the laches of the plaintiffs barred them until November 8, 1913, and no notice was giv- from the relief sought. en to the builder, Franklin B. Davis, one of the defendants, until November 11, 1913: the last which goes to the decree, are dis

[2] All the assignments of error except At that time the building was largely completed, being nearly to its full height in missed, as technically defective (see Prenatt the rear and over one-half its full height in v. Messenger Printing Co., 241 Pa. 267, 270, the front, and the builder had made all his con- 88 Atl. 439), the last assignment is overruled,

in it thereof, and there had been then expended' up- and the decree is affirmed, at the cost of the on it the sum of $7,000.”

appellants.

* *

* *

(112 Me. 559)

being unable to climb the precipitous wall of DORNBERGER V. MAINE CENT. R. CO. snow and ice, was injured. At the time of (Supreme Judicial Court of Maine. Sept. 14, the accident, the plaintiff had held the posi1914.)

tion of signal maintainer for defendant for MASTER AND SERVANT (

8217*)-LIABILITY about eight months and been in the employ FOR INJURIES-ASSUMPTION OF RISK.

of defendant for about two years. That he A railway signal maintainer, who had held knew that snowplows were necessarily and that position for several months, was directed to investigate the condition of a signal, but was frequently employed and often preceded the given no instructions as to the manner of doing passage of trains by a short interval of time the work, leaving him free to use such methods was the result of his experience. He was as he thought best. In remedying the difficulty, also familiar with the general manner of he found it necessary to pass several times through a cut, against the sides of which snow operating the plows and knew that the plow had been thrown by a snowplow so as to make usually preceded the locomotive as was the perpendicular walls of snow and ice. On one On one case at the time of the accident.

He was of his trips through the cut he was overtaken also aware that a passenger train from the by a snowplow and injured. He knew that a passenger train was due in a few minutes, and east was due at Crawford Station at 12:02 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 as to the manner in which he should do cover, irrespective of the company's negligence.

[Ed. Note.--For other cases, see Master and his work nor could his employer, unadvised Servant, Cent. Dig. $$ 574-600; Dec. Dig. šof the cause of the difficulty, know the char217.*1

acter of the work required to repair the sig. On Motion from Supreme Judicial Court, was therefore free to use such methods and

nal of the time necessarily employed. He Somerset County, at Law.

seize such occasions as he thought prudent Action by J. B. Dornberger against the

and best. Maine Central Railroad Company. On mo. tion by defendant for a new trial. Motion ligence of defendant, it is the opinion of the

Without considering the question of neg. sustained. Argued before SAVAGE, C. J., and COR- conditions which resulted in his injury.

ed before SAVAGE, C. J., and COR-court that plaintiff assumed the risk of the NISH, BIRD, HALEY, HANSON, and PHIL

"It is well-established law, reiterated in hun. BROOK, JJ.

dreds of decisions, that when one enters into the 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

he assumes the risk of all obvious and apparent defendant.

all of which, by the exercise of reasonable care,

one of his age, capacity, and experience ought PER CURIAM. The accident occasioning risk of all dangers of which he knows and which

to know and appreciate. He also assumes the the injury for which plaintiff seeks the re- he should appreciate, whether obvious and visicovery of damages occurred on defendant's bly apparent or not.” Babb v. Oxford Paper railroad at a point between Crawford Sta- Co., 99 Me. 298, 59 Atl. 290. tion and Crawford Notch. The distance be

Instances of the application of the printween the station and notch is about 900 feet, ciple will be found in Morris v. B. & M. R. and at either end is a cut. That from the R. Co., 184 Mass. 368, 371, 68 N. E. 680; notch west is about 375 feet long, while the Wiley V. Batchelder, 105 Me. 536, 75 Atl. length of the other, or western cut, is about 47; Brown v. C., R. J. & P. Ry. Co., 69 Iowa, 250 feet. In the space between these cuts, the 161, 162, 28 N. W. 487; Id., 64 Iowa, 652, land upon one side is either level with the 21 N. W. 193; Howland v. M., L. S. & W. roadbed or slopes below its level. In winter Ry., Co., 54 Wis. 226, 11 N. W. 529. the snow is thrown by the snowplows against

The motion must be sustained. So ordered. the sides of the two cuts, forming perpendicular walls of snow and ice some five or six

(77 N. H. 307) feet high. As the plows are wider than the SANBORN v. BOSTON & MAINE R. R. trains, the cuts afford a narrow space on

(Supreme Court of New Hampshire. Merrieither side of a train. While the cuts were

mack County. June 2, 1914.) in this condition early in the morning of 1. CONSTITUTIONAL LAW ($ 322*)-RIGHT TO March 2, 1912, plaintiff was directed to in REMEDY-NEW TRIAL-NEWLY DISCOVERED vestigate the condition of signal 847 near EVIDENCE. the western end of the western cut. The

Denial of a motion for a new trial for wind was blowing and the snow drifting newly discovered evidence is not a violation of

plaintiff's constitutional right to a certain remduring the day.

edy for all injuries guaranteed by the Bill of To remedy the difficulty he found existing Rights, art. 14. made it necessary for him to pass several [Ed. Note.-For other cases, see Constitutiontimes through the cuts. At about 11:55 in al Law, Cent. Dig. $ 951; Dec. Dig. $ 322.*] the forenoon he was making his third or 2. JURY (8 31*)-RIGHT TO JURY TRIAL-MOfourth trip and, proceeding westerly, had

TION FOR NEW TRIAL-DENIAL.

The court's finding that if the alleged newreached about the middle of the western cut ly discovered evidence for which a new trial when he was overtaken by a snowplow and, I 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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