The facts appear in the following opinion of Fuller, P. J., sur defendant's motion for a new trial, and for judgment n. o. v.:

This action was brought to recover damages for the death of plaintiff's husband, who was killed by a locomotive while crossing defendant's west-bound railroad track on Broad street in the city of Hazleton.

The specific and only negligence averred as the foundation of defendant's liability was the lack of warning. In support of these motions defendant urges: (1) The absence of affirmative proof establishing negligence of the defendant; (2) the presence of affirmative proof establishing contributory negligence of the deceased.

The sum total of plaintiff's proof on both branches of the case was:

Abram Salsburg, Mose H. Salsburg, and E. Lynch, all of Wilkes-Barre, for appellant. P. F. O'Neill and F. W. Wheaton, both of Wilkes-Barre, for appellee.

PER CURIAM. This judgment is affirmed on the concise and clear opinion of the court below entering judgment for the defendant non obstante veredicto.

(245 Pa. 499)

BAKER v. TUSTIN. (Supreme Court of Pennsylvania. May 22, 1914.)

1. MORTGAGES (§ 454*)-FORECLOSURE-AFFIDAVIT OF DEFENSE-SUFFICIENCY.

(1) The negative testimony of two witnesses that they heard no warning. One of these witnesses did not arrive on the scene of the acci- In an action of scire facias sur mortgage dent until the locomotive was out of sight, and an affidavit of defense, setting up that plaintiff the other was engaged in conversation with a had unlawfully entered judgment against defriend. A third witness, when called and ex- fendant on the bond accompanying the mortamined by the plaintiff respecting the occur-gage, to the damage of the defendant in the sum rence, was not asked about the warning at all, of $10,000, but not alleging that defendant but the same witness, when afterwards called had asked to have the judgment opened or by defendant, testified that a warning was stricken off, or stating the facts showing the given. damage with reasonable precision, was insufficient.

[Ed. Note.-For other cases, see Mortgages, Cent. Dig. §§ 1319-1328; Dec. Dig. § 454.*] 2. PLEADING (§ 156*)-AFFIDAVIT OF DEFENSE-REQUISITES.

Affidavits of defense should aver with reasonable precision the facts depended on. [Ed. Note.-For other cases, see Pleading, Cent. Dig. § 312; Dec. Dig. § 156.*] PLEADING (§ 142*) - SET-OFF-CERTAINTY OF AVERMENTS.

3.

Averments of set-off must be as specific as those used in a statement or claim.

(2) The bare presumption of law in favor of the deceased that he stopped, looked and listened. This meagerness was met by the defendant with: (1) The positive testimony of five disinterested eyewitnesses, including the one above mentioned, in addition to the engineer on the locomotive, that the headlight was lit and the bell was rung; (2) the testimony of one disinterested eyewitness that deceased had his head down and hands in pocket and was apparently in a deep study; the testimony of still another disinterested eyewitness that he kept right on moving; the testimony of still another disinterested eyewitness that he walked straight in front of the locomotive; the testimony of still another disinterested eyewitness who walked with the deceased as far as the east-bound track, saw the locomotive, and stop-142.*] ped to let it go by, while the deceased, with 4. PLEADING (§ 150*)-AFFIDAVIT OF DEFENSE head bowed and hands in pocket, walked -CONSTRUCTION. straight on and was struck; the physical fact that there was at the crossing an unobstructed view of the track for 800 to 1,000 feet in the direction from which the locomotive approached; the mental, moral, and physical certainty that if the deceased had stopped, looked, and listened, or even looked before going upon the west-bound track, he must have seen the locomotive.

It seems to be a case in which the plaintiff's negative weakness is overwhelmed by the defendant's positive strength.

We have given all possible consideration to the argument of counsel for plaintiff, who has argued with great force and ingenuity the long diagonal character of the crossing, the noise of the train passing on the same track just before the accident, the position of the arc light on the street, possibly affecting the vision of the deceased, the sufficiency of the bell as a warning, and certain inconsistencies developed on cross-examination of defendant's witnesses, as matters whose bearing upon the question of negligence and contributory negligence could not be withdrawn from the jury; but we feel constrained to conclude nevertheless that the verdict in favor of the plaintiff cannot be sustained on the evidence, and that defendant's request for binding instructions should have been affirmed.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 290, 291, 297, 300; Dec. Dig. §

An affidavit of defense is to be taken most strongly against the defendant.

Dec. Dig. § 150.*]
[Ed. Note. For other cases, see Pleading,

Appeal from Court of Common Pleas, Columbia County.

Action of scire facias sur mortgage by Arvilla Baker, now Arvilla Troxell, against George M. Tustin. From judgment for plaintiff for want of sufficient affidavit of defense, defendant appeals. Affirmed.

Argued before BROWN, MESTREZAT, POTTER, STEWART, and MOSCHZISKER, JJ.

G. M. Tustin and R. R. John, both of Bloomsburg, for appellant. C. A. Small, of Bloomsburg, and G. W. Moon, of WilkesBarre, for appellee.

PER CURIAM. [1-4] The sole defense set up by the appellant in his affidavit is that the appellee had unlawfully entered judgment against him on his bond accompanying Argued before BROWN, MESTREZAT, the mortgage upon which this writ of scire POTTER, STEWART, and MOSCHZIS- facias was issued, and the averment upon which he relied in the court below, in asking

KER, JJ.

*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 Master and Servant, Cent. Dig. §§ 950-952, 954, 959, 970, 976; Dec. Dig. § 276.*]

Appeal from Court of Common Pleas, Luzerne County.

Trespass by Bridget Gallagher against the Black Creek Coal Company, for the death of plaintiff's son. From judgment for plaintiff, defendant appeals. Affirmed.

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

for the discharge of the rule for judgment for [ with the feed wires and thus produce a conwant of a sufficient affidavit of defense, is tinuous current. merely that he had been damaged by the entry of the said judgment in the sum of $10,000. It does not appear that he ever asked to have it opened or stricken off; but, aside from this, the vague allegation of the damage sustained was utterly insufficient to prevent the entry of judgment on the mortgage. "Affidavits of defense should aver the facts depended upon with reasonable precision and distinctness. Markley v. Stevens, 89 Pa. 279. Averments of set-off must be as specific as those used in a statement of claim. The defendant in respect to such a claim is the actor, and the obligation is upon him to aver his set-off in terms incapable of being misunderstood. Loeser v. Warehouse, 10 Pa. Super. Ct. 540. An affidavit of defense is to be taken most strongly against the defendant, for it is to be presumed that he has made it as favorable to himself as his conscience would allow. Comly v. Simpson, 6 Pa. Super. Ct. 12; Kemp v. Kemp, 1 Woodw. Dec. 154." Law v. Waldron, 230 Pa. 458, 79 Atl. 647, Ann. Cas. 1912A, 467, Judgment affirmed.

(245 Pa. 509)

GALLAGHER v. BLACK CREEK COAL CO. (Supreme Court of Pennsylvania. May 22, 1914.)

Henry S. Drinker, Jr., of Philadelphia, and G. J. Clark, of Wilkes-Barre, for appellant. Charles B. Lenahan, of Wilkes-Barre, James P. Costello, of Hazleton, and James L. Lenahan, of Wilkes-Barre, for appellee.

PER CURIAM. [1] The plaintiff's son who was employed in defendant's coal mine was killed by an electric shock while pulling, a signal wire by means of which communication was had with the hoisting engineer at the surface. The signal wire was not insulated, and was placed three or four inches below insulated feed wires by which electricity was carried to the bottom of the shaft for light and power. The pulling of the sig

nal wire caused a hammer to strike a plate in the engineer's room and the wire was slack enough to allow the hammer to drop back 1. MASTER AND SERVANT (§ 285*)-DEATH OF after the plate was struck. It appeared from EMPLOYÉ NEGLIGENCE QUESTIONS FOR JURY. the testimony on behalf of the plaintiff that Where, in an action for the death of a the range of the oscillation of the wire was mine employé from an electric current com- sufficient to allow it to come into contact with ing from a feed wire through a signal wire the feed wires, from one of which the insula which he was operating, there was evidence that the range of oscillation of the signal wire was sufficient to allow it to come into contact with feed wires, from one of which the insulation had been broken several days before the accident, the contact being indicated by a deposit of solder on the signal wire, and the evidence was conflicting on whether the control of the electric wire was in the mine foreman or in an electrician assigned to the duty by the mine superintendent, the questions whether the accident was due to the cause claimed by plaintiff, whether the defect in the feed wire would have been discovered by adequate inspection, and whether the control of such wire was in the mine foreman or the electrician, were for the jury.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1002, 1003, 1007, 1008, 1016, 1035, 1043, 1053; Dec. Dig. § 285.*]

2. MASTER AND SERVANT (§ 276*)-DEATH OF MINE EMPLOYÉ-EVIDENCE-PROBATIVE EF

FECT.

tion had been broken four or five days before and actual contact of the wires was indicated by a deposit of copper solder on the signal wire at a point corresponding to the place on the feed wire from which the insulation had been broken.

The grounds of defense at the trial were that there was not sufficient evidence to show the cause of the accident, and that if there was negligence in not inspecting the wires it was the negligence of the certified mine foreman for whose neglect the defendant was not man for whose neglect the defendant was not answerable. The issue of fact was clearly defined by the learned trial judge, and it was submitted with the instruction that to entitle the plaintiff to a verdict, the jury must find that her son's death was caused by an electric shock, and that the current in the signal wire came from the feed wire, and that the defect in the latter would have been discovered by adequate inspection, and that the control of the electric wire was not in the mine foreman, but in an electrician assigned to that duty by the superintendent of the

mine.

In an action for the death of a mine employé from an electric current coming from a feed wire through a signal wire which he was operating, evidence that deceased and his assistant were unable to release their holds on the signal wire until the controller was moved by a third person, though showing that the electric shock was continuous and not momentary, was not proof that it resulted from an unexplained cause, and not from contact between an oscillating signal wire and the bare feed wire, since the oscillation of the signal mony for the plaintiff that while the dewire may have caused it to become entangled ceased held the signal wire he called to his *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

[2] The contention that the cause of the accident was not shown is based on the testi

assistant, who also took hold of it, and that | out with the first trip in the morning to the neither was able to release his hold until the controller was moved by a third person. From this it is strenuously argued that the shock which caused the death was not a momentary one that would have resulted from contact of the signal wire and the bare feed wire but a continuous one that must have been the result of an unexplained cause. This, however, overlooks the testimony that the oscillation of the signal wire might have caused it to be entangled with the feed wires and thus produce a continuous current.

Upon a careful examination of the trial record we fail to find any warrant for the subAppeal from Court of Common Pleas, mission of the case to a jury, or for setting Luzerne County. aside the nonsuit.

*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, Al- Lackawanna county, New Castle in Lawrence legheny County.

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

tion those counties in which such conditions | fact that it applied to but few places did not do not exist. Is this a genuine classification, make the law local and special within the meanfounded upon "natural, reasonable and necessary conditions"?

It seems to us that there is a real distinction between counties wherein the county seats are within the limits of cities and counties where they are not. In the former case, cities have grown up from natural causes. They have necessarily become the centers of great populations with all that is implied thereby. The counties have in consequence, and likewise from natural causes, also become of great importance. In a county, where such a condition exists, the two municipalities must have buildings for the transaction of the business of the public. A more commodious and convenient building can be erected jointly than can two or more be erected separately, and necessarily the expense to the taxpayers of both will be far less. Many difficulties in securing a suitable and proper site will be avoided by a joint building. But the great consideration is the convenience of the public. The convenience of the people in transacting their business with the county and city will be much more efficiently subserved by having the courts and the public offices of both municipalities in substantially the same place. Especially is this true here, where the population of Pittsburgh is almost half of the entire population of the county of Allegheny. It is therefore apparent that there is a real, not a fanciful, distinction between counties in which the county seats are located within the limits of cities, and those in which they are not. The former do possess "natural, reasonable and necessary conditions," which do not belong to the latter. Pittsburg's Petition, 217 Pa. 227, 66 Atl. 348, 120 Am. St. Rep. 845.

ing of the constitutional prohibition. In this
act of 1913, there are no conditions which will
necessarily restrict its operation to particular
counties. In due time, and from purely nat-
ural causes, the act may extend to all the
counties of the state, for none can be excluded.
And we discover no prohibition in the Consti-
tution against making cities, which are county
seats, a distinct class for necessary legislative
purposes. Other circumstances than mere dif-
ferences in population justify classification.
the act of February 7, 1906 (P. L. 7), au-
thorizing the annexation of cities and provid-
ing for a temporary government and the pay-
ment of the indebtedness of each and the en-
forcement of claims, such cities had to be
"contiguous or in close proximity," and no
borough must intervene. Thus the act did not
apply to all cities, and it was therefore a
classification founded upon the conditions stat-
ed. This was sustained in Pittsburg's Peti-
tion, 217 Pa. 227, 66 Atl. 348, 120 Am. St.
Rep. 957, supra.

We must therefore conclude that the classification prescribed in the Act of April 18, 1913, is founded upon a real, genuine distinction, and that therefore it is a general, and not a local or special law. It is not local because it does not pertain to a definite place and is not restricted to one portion of the state. It is not special, because it does not relate to particular persons, places, or things. With the wisdom of the legislation we have nothing whatever to do.

[3] Neither does the act of 1913, in our opinion, offend against the last paragraph of section 7, article 3, of the Constitution above We cannot distinguish between the classifi- quoted. Even if this paragraph could be held cation prescribed in the act under consideration to extend beyond the object of said section 7, and that in the act of May 6, 1897 (P. L. 46). which is an enumeration of subjects concernThe latter made bridges over streams which di- ing which local or special legislation is prohibvided counties a separate class and authorized ited, we are unable to perceive how it has any the counties to rebuild them, under certain application to the situation disclosed by this conditions. The Supreme Court, in an opinion record. It is true, both counties and cities by Justice Mitchell, held that the classifica- had the power to acquire land and to erect tion was genuine and founded upon a real buildings for their respective public purposes, distinction. In the opinion it is said: "Leg- but they did not, prior to this act, have powislation for a class distinguished from a gen- er to join in the erection of a building, which eral subject is not special but general, and could be utilized in the manner prescribed, and classification is a législative question, subject to sell or exchange their lands as designated. to judicial revision only so far as to see that These are powers which had not been previousit is founded on real distinctions in the sub-ly provided for by general law. If this be jects classified, and not on artificial or irrele- true, it cannot be said that the act of 1913 vant ones used for the purpose of evading the offends against the last paragraph of section 7, constitutional prohibition. If the distinctions article 3, of the Constitution. are genuine, the courts cannot declare the classification void, though they may not consider it to be on a sound basis. The test is, not wisdom, but good faith in the classification. The first condition (a bridge over a river or stream forming the boundary line between two counties) is founded on a natural and manifest distinction, which is to a large extent unavoidably local. Rivers or streams forming boundaries between counties are comparatively few in number, and their locality is fixed. So, also, bridges over them are almost necessarily fixed as to location, by the centers of population and travel. They form a distinct class, because not exclusively a bridge of either county, and they are matters of exact site, style, material, expense, etc., as to which the two counties may not be in harmony. This basis of classification, therefore, is not only competent, but obviously proper." Seabolt v. Commissioners, 187 Pa. 318, 41 Atl. 22.

In the said act of 1897, the conditions prescribed coexisted in but few counties of the state, and they probably never will coexist in all of them. These conditions limited the operation of the act to but few places, and necessarily made it local in effect. But the court held that, since the conditions were genuine and called for legislation peculiar thereto, the mere

[4] We are also of opinion that the act is not in violation of section 20, article 3, above quoted. Clearly, this act of 1913 does not pretend to "delegate to any special commission" any powers whatever. It authorizes the lawfully constituted authorities of counties and of cities to do certain things. The purpose of the said section was to thereafter prohibit the Legislature from naming a commission, composed of members who were in no way connected with the constituted authorities of municipalities, which was to perform some duty of a municipal character. But it was not thereby intended to prohibit the Legislature from authorizing counties and cities, jointly or severally, to perform any lawful and necessary municipal function, which can only be done by the governing bodies thereof, whose membership will change from time to time as their terms expire.

In view of the foregoing, how can it be said that the act of April 18, 1913 (P. L. 96) "violates the Constitution clearly, palpably, plainly, and in such manner as to leave no doubt or hesitation on our minds"? Certainly we cannot say so. We, therefore, hold that said act is constitutional.

If, therefore, the Legislature had the power to enact the statute of April 18, 1913, it could