Pa.) COMMONWEALTH v. PENNSYLVANIA R. CO. 197 Appeal from Court of Common Pleas, Blair of Antis township into the township of SnyCounty. Application by the Commonwealth, on the relation of M. Hampton Todd, Attorney General, for writ of quo warranto against the Pennsylvania Railroad Company. From a decree making absolute rule to quash writ, plaintiff appeals. Affirmed. The Attorney General filed the following suggestion for a writ of quo warranto: "Be it remembered that on this 15th day of May, 1909, comes M. Hampton Todd, the Attorney General of the commonwealth of Pennsylvania, and files this suggestion, and gives the court to understand and be in formed: "(1) That the Tipton Water Company, a corporation created and existing under the laws of the state of Pennsylvania, was chartered on the 12th day of February, 1903, for the purpose of 'supplying water to the public in Antis township, Blair county, Pennsylvania, and to such persons, partnerships and corporations residing or located therein, as may desire the same.' der and borough of Tyrone, which water is used exclusively by said railroad company out of the township of Antis. "(6) That prior to the taking of the water as aforesaid by the Pennsylvania Railroad Company for use out of the township of Antis the waters of Tipton Run, and its tributaries, flowed into the Juniata river near Tipton in undiminished volume at all times and were available to the riparian owners along said streams for all lawful purposes to which the same might be applied, but since the taking and use above stated all of the waters of said Tipton Run have been taken, leaving the channel of said stream destitute of water and dry, thus diminishing the volume and power of water in the Little Juniata river and depriving the riparian owners along Tipton Run and the Little Juniata river of its use. "All of which acts, matters, and things in the premises have been and continue to be and are in excess of the legitimate power to the great loss and damage of the public, of the Pennsylvania Railroad Company, and in the doing of said acts, matters, and things the said Pennsylvania Railroad Company has willfully abused its corporate powers and functions. "(2) That the Pennsylvania Railroad Company, a corporation created and existing under the laws of the state of Pennsylvania, has constructed an underground line of 16inch pipe leading westwardly from a point "Wherefore, the said commonwealth prays in said township of Antis from and out of said township, through the borough of Bell- the consideration of the court here in the wood and the township of Logan to its shops premises, and that a quo warranto be issued in said township of Logan, and has connected against the said Pennsylvania Railroad Comthis line of pipe, at a point in Antis town-pany to show cause by what warrant or auship, with a similar line of pipe constructed by the Tipton Water Company leading from its impounding dam on Tipton Run in said township. thority it claims to do the acts complained of and takes the waters of Tipton Run to be consumed by the said railroad company outside of the township of Antis. And that the "(3) That the said Tipton Water Company court will, after investigation of the several is now, and has been for some time past, de- matters herein set forth, if it shall appear livering to the Pennsylvania Railroad Com- that the said acts complained of were and pany through the lines of pipe above men- are in excess of the legitimate powers of tioned about 1,500,000 gallons of water daily the said corporation, and in abuse of its corfor consumption in its shops in Logan town- porate powers and functions, decree the ship, and that said water is propelled from same to be so, and that judgment be entered the point of connection in Antis township that it be excluded or ousted from the perto the said shops, which are higher in eleva-formance of the said acts, to wit: Taking tion by about 100 feet, by the pressure gen- the waters of Tipton Run to be by it conerated at Tipton station from the elevation sumed and used out of the township of Anof the impounding dam above that point. "(4) That the Pennsylvania Railroad Company has constructed an underground line of 12-inch pipe bearing eastwardly from a point in said township of Antis from and out of said township into Snyder township and Tyrone borough, and has connected this line of pipe, at a point in Antis township, with a similar line of pipe constructed by the Tipton Water Company and leading from its impounding dam in said township. "(5) That the said Tipton Water Company is now and has been for some time past delivering to the Pennsylvania Railroad Company through the lines of pipe last above mentioned large quantities of water daily, which water is transported by gravity out tis." The defendant moved to quash the writ for the reason that the facts set forth in the suggestion were not sufficient in law to entitle the commonwealth to the writ. The court made absolute the rule to quash the writ. Commonwealth appealed. Argued before BROWN, MESTREZAT, POTTER, ELKIN, and MOSCHZISKER, JJ. W. I. Woodcock and John C. Bell, for appellant. John G. Johnson and Neff, Riley & Hicks, for appellee. PER CURIAM. This appeal is utterly without merit. It challenges the corporate power of the appellee to purchase water from a water company in a territory within run. which it is authorized by its charter to supply water to the public. In that territory the appellee is part of the public (Bland v. Tipton Water Co., 222 Pa. 285, 71 Atl. 101) and it must have water if its cars are to Apart from its implied power to purchase water from a water company authorized to sell it, express authority to do so is found in the comprehensive words of the second section of the act incorporating it. Act April 13, 1846 (P. L. 312). Nothing said in Bland v. Tipton Water Company justified the application for the writ of quo warranto; on the contrary, that case was authority for refusing it, and the learned judge below correctly so held. Appeal dismissed. JUDGMENT (§ 392*)-VACATING-PERJURY. A rule to show cause why judgment in an action for personal injuries should not be set aside as procured by fraud and perjury is properly discharged where defendant's depositions showed that its witnesses entertained opinions inconsistent with its contention, and plaintiff's depositions contradicted the averments of defendant's petition. [Ed. Note. For other cases, see Judgment, Cent. Dig. 88 750-754; Dec. Dig. § 392.*] Appeal from Court of Common Pleas, Blair County. Action by Forrest W. Benson against the Altoona & Logan Valley Electric Railway Company. From a decree refusing to vacate judgment, defendant appeals. Affirmed. The facts appear in the following opinion of Baldrige, P. J., dismissing the rule: "Plaintiff instituted suit against the defendant to recover damages alleged to have been sustained by him by reason of the negligence of the defendant company. A verdict was recovered by the plaintiff in the sum of $3,200. A motion for a new trial was made to the trial judge, which was overruled. Thereafter an appeal was taken to the Supreme Court of this state. The Supreme Court overruled all the assignments of error and affirmed the judgment entered on the verdict. (77 Atl. 492.) of the judgment by the Supreme Court the plaintiff has entirely recovered from his paralysis; that he is able to use his right arm, hand and leg as well as he did prior to the accident. At the time this case was tried the defense was that the plaintiff was suffering from paralysis by reason of a disease he had acquired prior to the accident. The trial judge in his charge to the jury instructed them that, if the plaintiff was suf fering from the disease as contended for by the defendant, there could be no recovery whatever. The verdict of the jury under the instructions from the court showed conclusively that in their judgment the paralysis of the plaintiff was due to the accident, resulting from the defendant's negligence. "The depositions taken under the rule granted to show cause why this judgment should not be vacated reveal the fact that the defendant's own witnesses entertain the opinion that the plaintiff has not fully recovered, and that he will continue to be more or less affected by reason of the paralysis, and the depositions taken upon the part of the plaintiff are to the effect that there is no improvement whatever in the physical or mental condition of this plaintiff. "If this judgment was vacated and a new trial granted, the same facts would be in dispute as at the first trial, and there has been no uncontradicted testimony submitted to us that would justify us in acceding to this extraordinary request to grant a new trial after the affirmance of the judgment by the Supreme Court. The alleged new evidence set up by the defendant now is practically the same evidence that was submitted to the jury. Judge Dean, in the case of Gazzam v. Reading, 202 Pa. 231, 51 Atl. 1000, speaking for the Supreme Court, says that equity will rarely open or set aside a judgment at law. The equity of the complainant must be free from doubt. "Under these circumstances, we are of the opinion that we are not justified in vacating the judgment and granting a new trial. The rule granted at the request of the defendant is therefore discharged." Argued before PROWN, MESTREZAT, POTTER, ELKIN, and MOSCHZISKER, JJ. Thos. H. Greevy and E. G. Brotherlin, for appellant. J. Banks Kurtz, for appellee. PER CURIAM. Shortly after this court had affirmed the judgment obtained by the appellee in the court below, the appellant "A petition was presented to this court, setting forth that at the trial of the cause the plaintiff and his witnesses testified that he was permanently paralyzed, incapacitated, and disabled from doing or performing made application to that court to vacate it any work, which was false and fraudulent, as the alleged paralysis was not due to the result of the injury sustained to his head at the time of the alleged accident, but by reason of a disease which the plaintiff acquired prior to the accident, and in no way connected therewith; that since the affirmance for the alleged reason that it had been procured by the fraud, perjury, and deceit of the appellee. The relief sought was extraordinary, and it was denied because in the opinion of the court below the appellant had not made out a case calling for it. We have not The been persuaded that this was error. Pa.) COBB v. BRADFORD TP. 199 reasons for discharging the rule to show to the testimony. The tire came off the cause why the judgment should not be vacated and a new trial awarded are set forth in the court's opinion denying appellant's petition. wagon, the little boy went back after the tire, and while looking for the tire the horses commenced to back, having been frightened by a dog running across the road in front In it we concur, and on it the appeal is of him, barking in front of the horses. The dismissed, at appellant's costs. (232 Pa. 198) dog barked, the horses began to back and backed off the road and over a sidewalk and down, at least they were found down in this gully, the wagon overturned, Mr. Cobb underneath, and he expired in a few minutes after May 23, the neighbors had arrived." Verdict for plaintiff, and judgment thereon for $4,800. Argued before FELL, C. J., and BROWN, ELKIN, STEWART, and MOSCHIZSKER, JJ. COBB v. BRADFORD TP. (Supreme Court of Pennsylvania. 1911.) 1. HIGHWAYS (§ 194*)—GUARD RAILS-NECES SITY. Township supervisors are required to maintain guard rails as against gullys or declivities only when they become dangerous on account of their proximity to the highway. [Ed. Note. For other cases, see Highways, Cent. Dig. § 486; Dec. 'Dig. § 194.*] 2. HIGHWAYS (§ 211*)-DAMAGES-CONDITION -EVIDENCE. In an action to recover for personal injuries, where the negligence alleged is that the defendant township failed to maintain a guard rail at a dangerous place in the highway, the evidence should show the exact condition of the ground, that it may be determined whether the situation was so dangerous as to require a guard rail. [Ed. Note. For other cases, see Highways, Cent. Dig. §§ 527-532; Dec. Dig. § 211.*] 3. HIGHWAYS (§ 210*)-DAMAGES-CONDITION -EVIDENCE. In an action for failure to maintain a guard rail at a highway, evidence of the condition of the alleged dangerous point some two years after the accident is inadmissible. John G. Johnson, D. H. Jack, and W. E. Burdick, for appellant. D. U. Arird and V. B. Bouton, for appellee. ELKIN, J. The negligence charged in this case is that appellant township failed to erect and maintain a guard rail at an alleged dangerous place in the highway. If appellant is liable at all, it is because it was its duty to maintain a guard rail over the gully at the south end of the tile culvert, and was negligent because of its failure to perform that duty. In cases of this character the first step at the trial should be the introduction of evidence to show the exact conditions on the ground in order that it may be determined whether the situation is so dangerous as to make it the duty of the township to maintain a guard rail as a protection to the traveling public. [1] The law does not impose on supervisors the duty of maintaining a guard rail at every point where a gully starts at the roadside, or where some natural depression, or small declivity on adjacent land, may happen to be. It is only when these gullies, or declivities, become dangerous on account of their proximity to the highway that the duty of mainMc-taining guard rails arises. It is true that whether the situation is so dangerous as to Action by Annie M. Cobb against Bradford require the performance of the duty is genTownship. Judgment for plaintiff, and de-erally a question for the jury. But a jury fendant appeals. Reversed. [Ed. Note. For other cases, see Highways, Cent. Dig. §§ 527-532; Dec. Dig. § 210.**] 4. TRIAL (8 258*) - INSTRUCTIONS-SPECIAL REQUESTS. Where points are submitted asking for definite instruction, they should be so framed as to make the law applicable to the particular facts in issue. [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 646-650; Dec. Dig. § 258.*] Appeal from Court of Common Pleas, Kean County. In the charge the trial court stated the facts as follows: "It appears that on the 1st day of August, 1908, A. T. Cobb went from his home in Corydon township to the city of Bradford; that he returned or started from the city of Bradford to return to his home on the evening of that day. There may be a little discrepancy in the opinion of the witnesses as to the exact time he left the city of Bradford; most of the witnesses, however, testifying that before he reached the place where the accident occurred that it was somewhere near 8 o'clock in the evening. From the evidence of the little boy it appears that it was dark, and quite a dark night. He came to the place or near the place where the accident occurred according cannot draw a correct conclusion without an intelligent understanding not only of what the law requires, but what the facts are. In the present case there was a new macadam road built by the state in conjunction with the local authorities. The traveled roadway thus constructed is 16 feet wide, at either side of which there is a grass covered berme 2 feet wide, thus making the highway at the point where the accident occurred 20 feet wide. It was in good condition and free from obstructions. It was a modern highway, and much better than the average country road. To the south of the macadam roadway was a sloping bank covered with grass and other vegetation, and extending southward to a sidewalk for a distance of about 12 feet. In other words, there was *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes an intervening space of about 12 feet between the traveled highway and the pavement. portance of more fully developing all the facts relating to the construction and maintenance of the sidewalk. Was it a part of the highway? Had the township any duty to perform in connection with its maintenance? Was the sidewalk itself, independently of who maintained it, a barrier or protection to persons traveling on the roadway at the point where the gully crossed? If so, the township had the right to rely upon that protection, and was under no duty to provide additional safeguards. [2] The evidence does not satisfactorily show whether this intervening space was a part of the highway, or what its condition was at and before the happening of the accident. In our judgment- this is important as directly bearing upon the duty of the township. Again, it was stated at the argument, and seems to be a conceded fact, that the sidewalk which figured very largely in the trial of the case was not constructed or [3] The first assignment is based on the maintained by the township, but by individu- admission of evidence tending to show the als. The record is silent as to the rights and condition at the point alleged to be dangerliabilities of the individuals who maintained ous some two years after the accident. This the sidewalk, and as to the duties, if any, of was too remote for evidential purposes, and the township in relation to it, or the condi- did not throw any light on the exact question of the ground upon which it is located. tion before the jury. tion before the jury. Standing alone, it The natural inference is that the township might not be deemed sufficient cause for rehad nothing to do with that portion of the versal, but, when the case is again tried, ground upon which the sidewalk was located this testimony should be excluded. While because no public supervision was exercised the instruction complained of in the third asover it, and the private individuals did as signment may be a correct statement of the they pleased about it. The proofs, photo-law when the facts warrant its application, graphs, and map do not make it plain to us just how this sidewalk bridged over the gully at the end of the tile sewer. The indications are that the sidewalk was elevated several feet above the ground as it crossed over the gully, and, if so, the supervisors might very properly conclude that this was a sufficient barrier to guard against dangers at the point where the gully passed through. In other words, if the sidewalk itself protected the alleged dangerous place, there was no duty resting on the supervisors to provide additional safeguards, and, so far as we are able to discover from this record, no duty rested upon the township in connection with the safeguarding of the sidewalk. Again, even if a duty did rest upon the township to guard the gully, this does not mean that the guard rail had to be extended to the telephone pole where there was no danger of the character about which complaint is made. As we understand the facts, a considerable part of the distance between the gully and the telephone pole was a smooth, natural surface. If the team backed upon the sidewalk near the telephone pole where there was no danger, and then continued to back along the sidewalk or over it to a place of danger at the south side of the pavement, such a contingency could not have been provided against by the township maintaining a guard rail between the traveled roadway and the pavement. Under these circumstances, the accident would have happened just the same, because the team would have backed over the pavement and south of the guard rail. In that event failure to maintain a guard rail at the side of the highway would not have been the proximate cause of the injuries complained of. Enough has been said to indicate the im it did not take into account the many contingencies upon which the right to recover depends in the present case. For this reason it may have misled the jury. [4] When points are submitted asking for definite instructions, they should be framed so as to make the law applicable to the particular facts of the case being tried. The mere fact that the roadway was of sufficient width for the usual and ordinary travel would not relieve the township from maintaining guard rails at dangerous places, but it has something to do in determining whether under all the circumstances it was necessary to provide additional safeguards in the present case. As to the question of contributory negligence, the general rule is that it is for the jury, when there is any evidence of this character to be considered. As the case stands, we do not see the evidence of contributory negligence, but, when it is again tried, evidence of this character may be offered if it is desired to rely upon it as a defense. defense. When the case is again tried along the lines indicated in this opinion, all the questions raised by this appeal can be presented and considered upon the facts as they are then developed. Judgment reversed and a venire facias de novo awarded. est in it, his wife possessing the other half interest, and where he, eight years later, joined with her in asking for the appointment of viewers in condemnation proceedings and received the amount of the award and the proceeds of a sale of the property; it being found that the widow did not intend that decedent should hold these moneys as a gift from her. [Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. § 260; Dec. Dig. § 494.*] 2. EXECUTORS AND ADMINISTRATORS (8 507*)EXCEPTIONS TO ADMINISTRATOR'S ACCOUNTDUTIES OF AUDITOR. Where an auditor is appointed to pass on specific exceptions to an administrator's account, he cannot surcharge the administrator as to an item not covered by any of the exceptions. [Ed. Note. For other cases, see Executors and Administrators, Dec. Dig. § 507.*] Appeal from Orphans' Court, Blair County. In the matter of the estate of Albert Ford. From a decree of distribution, Bertha A. Ford appeals. Affirmed. 201 quently executed by the said grantors, would not pass title to his wife's interest in the land. Nearly eight years later he recognized her as the owner of the half interest by joining with her in asking for the appointment of viewers to assess damages they had sustained by the construction of a railroad over their property, and he received the amount awarded by the viewers in a report in which they found that he and his wife were the joint owners of the land. In addition to the amount awarded by the viewers he received the proceeds of sales of the property, and an unchallenged finding of fact by the auditor is that the appellee did not intend that he should hold these moneys as a gift from her. She was, therefore, clearly entitled to recover from his estate one-half of what he had received as the proceeds of the sale of the farm, and the first and second assignments are overruled. [2] The third, complaining of the failure of the auditor to surcharge the appellee with the sum of $1,016.12, is also dismissed. He was appointed to pass upon nine exceptions to her administration account; but by no one of them was he asked to surcharge her with that sum, alleged to have been paid to her by Silas Jenkins. The assignments of error are overruled,. and the decree is affirmed, at appellant's costs. Albert Ford died on October 22, 1907, intestate, leaving to survive him a widow, Mary E. Ford, and three children, Dr. Frank A. Ford, Charles K. Ford, and Margaret C. Myers. Letters of administration were granted to his widow, Mary E. Ford. Charles K. Ford died on August 23, 1908, leaving to survive him a widow, Bertha A. Ford, to whom by will he left his entire estate. The auditor appointed to make distribution of the estate of Albert Ford found that the balance for distribution belonged to the widow, Mary E. Ford, by reason of the transactions stated in the opinion of the Supreme Court. Exceptions filed to the report on behalf of Bertha A. Ford, executrix of Charles K. Ford, deceased, were dismissed, and the report confirmed. Errors assign-1. ed were (1) in awarding the entire estate to Mary E. Ford; (2) in allowing Mary E. Ford's claim to one-half the proceeds of the Westmoreland county farm; (3) in not making a surcharge of $1,016.12, being proceeds of two notes paid to the administratrix since the death of Albert Ford and not accounted for. Argued before BROWN, MESTREZAT. POTTER, ELKIN, and MOSCHZISKER, JJ. D. E. North, for appellant. H. F. Walters, for appellee. (232 Pa. 204) DOUGHERTY v. BRIGGS et al. (Supreme Court of Pennsylvania. May 23, 1911.) CONTRACTS (§ 176*)-CONSTRUCTION-QUES TIONS FOR JURY. Where the written correspondence between parties to a contract shows that it does not conbe ascertained from letters and acts of the parstitute the whole agreement, and the terms must ties, the construction of the contract is for the jury. Cent. Dig. §8 767-770; Dec. Dig. § 176.*] [Ed. Note.-For other cases, see Trial, Cent. Dig. 8 628; Appeal and Error, Dec. Dig. § 216.*] 3. EVIDENCE (§ 501*)-OPINION EVIDENCE. Where a contract for a building provided cash, and for the balance of his compensation that plaintiff was to receive a certain amount in equities in the property, the question to a witness, "What were those equities, from your knowledge of the situation?" was not subject witness upon facts not in evidence, where the to objection, because asking the opinion of a testimony elicited fully showed the facts on which his opinion was based. PER CURIAM. [1] Upon the death of Jacob Kimmell his farm in Derry township, Westmoreland county, passed to his two children, Edmund B. Kimmell and Mary E. Ford, subject to the dower interest of Barbara E. Kimmell, his widow. By the deed of October 30, 1895, from the son and widow, Albert Ford acquired title to an undivided half interest in the farm, and that he fully understood he was acquiring no more clearly appears from the letter addressed to him by Messrs. Marchand, Gaither & Woods, in which they explained to him that the deed as prepared by them, and subse- Jadelphia County. [Ed. Note. For other cases, see Evidence, Dec. Dig. 501.*] Appeal from Court of Common Pleas, Phil *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes |