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Pa.)

COMMONWEALTH v. PENNSYLVANIA R. CO.

197

Appeal from Court of Common Pleas, Blair of Antis township into the township of SnyCounty.

der and borough of Tyrone, which water is Application by the Commonwealth, on the used exclusively by said railroad company relation of M. Hampton Todd, Attorney Gen- out of the township of Antis. eral, for writ of quo warranto against the “(6) That prior to the taking of the waPennsylvania Railroad Company. From a ter as aforesaid by the Pennsylvania Raildecree making absolute rule to quash writ, road Company for use out of the township plaintiff appeals. Affirmed.

of Antis the waters of Tipton Run, and its The Attorney General filed the following tributaries, flowed into the Juniata river suggestion for a writ of quo warranto:

near Tipton in undiminished volume at all “Be it remembered that on this 15th day times and were available to the riparian of May, 1909, comes M. Hampton Todd, the owners along said streams for all lawful purAttorney General of the commonwealth of poses to which the same might be applied, Pennsylvania, and files this suggestion, and but since the taking and use above stated gives the court to understand and be in all of the waters of said Tipton Run have formed:

been taken, leaving the channel of said "(1) That the Tipton Water Company, a

stream destitute of water and dry, thus dicorporation created and existing under the minishing the volume and power of water in laws of the state of Pennsylvania, was

the Little Juniata river and depriving the chartered on the 12th day of February, 1903, riparian owners along Tipton Run and the for the purpose of 'supplying water to the Little Juniata river of its use. public in Antis township, Blair county, Penn

“All of which acts, matters, and things in sylvania, and to such persons, partnerships the premises have been and continue to be and corporations residing or located therein, to the great loss and damage of the public,

and are in excess of the legitimate power as may desire the same.'

“(2) That the Pennsylvania Railroad Com- of the Pennsylvania Railroad Company, and pany, a corporation created and existing un- the said Pennsylvania Railroad Company has

in the doing of said acts, matters, and things der the laws of the state of Pennsylvania, has constructed an underground line of 16- willfully abused its corporate powers and inch pipe leading westwardly from a point

functions. in said township of Antis from and out of the consideration of the court here in the

"Wherefore, the said commonwealth prays said township, through the borough of Bellwood 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 thority it claims to do the acts complained by the Tipton Water Company leading from of and takes the waters of Tipton Run to be its impounding dam on Tipton Run in said consumed by the said railroad company outtownship.

side 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- sumed and used out of the township of An

l of to it conerated at Tipton station from the elevation of the impounding dam above that point.

tis." "(4) That the Pennsylvania Railroad Com

The defendant moved to quash the writ pany has constructed an underground line for the reason that the facts set forth in of 12-inch pipe bearing eastwardly from a

the suggestion were not sufficient in law to point in said township of Antis from and out entitle the commonwealth to the writ. The of said township into Snyder township and court made absolute the rule to quash the Tyrone borough, and has connected this line

writ. Commonwealth appealed. of pipe, at a point in Antis township, with

Argued before BROWN, MESTREZAT, a similar line of pipe constructed by the POTTER, ELKIN, and MOSCHZISKER, JJ. Tipton Water Company and leading from its W. I. Woodcock and John C. Bell, for impounding dam in said township.

appellant. John G. Johnson and Neff, Riley “(5) That the said Tipton Water Company & Hicks, for appellee. is now and has been for some time past delivering to the Pennsylvania Railroad Com PER CURIAM. This appeal is utterly pany through the lines of pipe last above without merit. It challenges the corporate mentioned large quantities of water daily, power of the appellee to purchase water which water is transported by gravity out from a water company in a territory within

which it is authorized by its charter to of the judgment by the Supreme Court tho supply water to the public. In that terri- plaintiff has entirely recovered from his tory the appellee is part of the public (Bland paralysis; that he is able to use his right v. Tipton Water Co., 222 Pa. 285, 71 Atl. 101) arm, hand and leg as well as he did prior and it must have water if its cars are to to the accident. At the time this case was run. Apart from its implied power to pur- | tried the defense was that the plaintiff was chase water from a water company authoriz- suffering from paralysis by reason of a dised to sell it, express authority to do so is ease he had acquired prior to the accident. found in the comprehensive words of the The trial judge in his charge to the jury insecond section of the act incorporating it. structed them that, if the plaintiff was sufAct April 13, 1846 (P. L. 312). Nothing said fering from the disease as contended for by in Bland v. Tipton Water Company justified the defendant, there could be no recovery the application for the writ of quo warranto; whatever. The verdict of the jury under the on the contrary, that case was authority for instructions from the court showed conclurefusing it, and the learned judge below cor- sively that in their judgment the paralysis rectly so held.

of the plaintiff was due to the accident, reAppeal dismissed.

sulting from the defendant's negligence.

"The depositions taken under the rule

granted to show cause why this judgment (232 Pa. 187)

should not be vacated reveil the fact that BENSON V. ALTOONA & L V. ELECTRIC the defendant's own witnesses entertain the RY. CO.

opinion that the plaintiff has not fully re(Supreme Court of Pennsylvania. May 23, covered, and that he will continue to be more 1911.)

or less affected by reason of the paralysis, JUDGMENT ($ 392*)-VACATING-PERJURY.

and the depositions taken upon the part of A rule to show cause why judgment in an action for personal injuries should not be set the plaintiff are to the effect that there is no aside as procured by fraud and perjury is prop- improvement whatever in the physical or erly discharged where defendant's depositions mental condition of this plaintiff. showed that its witnesses entertained opinions inconsistent with its contention, and plaintiff's

"If this judgment was vacated and a new depositions contradicted the averments of de- trial granted, the same facts would be in fendant's petition.

dispute as at the first trial, and there has [Ed. Note.-For other cases, see Judgment, been no uncontradicted testimony submitted Cent. Dig. 88 750–754; Dec. Dig. § 392.*]

to us that would justify us in acceding to Appeal from Court of Common Pleas, Blair this extraordinary request to grant a new County.

trial after the affirmance of the judgment by Action by Forrest W. Benson against the the Supreme Court. The alleged new eviAltoona & Logan Valley Electric Railway dence set up by the defendant now is pracCompany. From a decree refusing to vacate tically the same evidence that was submitted judgment, defendant appeals. Affirmed. to the jury. Judge Dean, in the case of GazThe facts appear in the following opinion zam v. Reading, 202 Pa. 231, 51 Atl. 1000,

speaking for the Supreme Court, says that of Baldrige, P. J., dismissing the rule:

“Plaintiff instituted suit against the de-equity will rarely open or set aside a judgfendant to recover damages alleged to have ment at law. The equity of the complainant

must be free from doubt. been sustained by him by reason of the neg

“Under these circumstances, we are of the ligence of the defendant company. A verdict was recovered by the plaintiff in the opinion that we are not justified in vacating sum of $3,200. A motion for a new trial was the judgment and granting a new trial. The made to the trial judge, which was overrul- rule granted at the request of the defendant

is therefore discharged." ed. Thereafter an appeal was taken to the

Argued before PROWN, MESTREZAT, Supreme Court of this state. The Supreme Court overruled all the assignments of error POTTER, ELKIN, and MOSCHZISKER, JJ. and affirmed the judgment entered on the Thos. H. Greevy and E. G. Brotherlin, for verdict. (77 Atl. 492.)

appellant. J. Banks Kurtz, for appellee. "A petition was presented to this court, setting forth that at the trial of the cause PER CURIAM. Shortly after this court the plaintiff and his witnesses testified that had affirmed the judgment obtained by the he was permanently paralyzed, incapacitat- appellee in the court below, the appellant ed, and disabled from doing or performing made application to that court to vacate it any work, which was false and fraudulent, for the alleged reason that it had been proas the alleged paralysis was not due to the cured by the fraud, perjury, and deceit of the result of the injury sustained to his head at appellee. The relief sought was extraordinathe time of the alleged accident, but by rea- ry, and it was denied because in the opinion son of a disease which the plaintiff acquired of the court below the appellant had not prior to the accident, and in no way con- made out a case calling for it. We have not nected therewith; that since the affirmance been persuaded that this was error. The

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 va- wagon, the little boy went back after the cated and a new trial awarded are set forth tire, and while looking for the tire the horses in the court's opinion denying appellant's pe- commenced to back, having been frightened tition.

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.

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 (232 Pa. 198)

gully, the wagon overturned, Mr. Cobb underCOBB v. BRADFORD TP.

neath, and he expired in a few minutes after (Supreme Court of Pennsylvania. May 23, the neighbors had arrived." Verdict for 1911.)

plaintiff, and judgment thereon for $4,800. 1. HIGHWAYS (8 194*)-GUARD RAILS-NECES Argued before FELL, C. J., and BROWN, SITY.

ELKIN, STEWART, and MOSCHIZSKTownship supervisors are required to main

ER, JJ. tain guard rails as against gullys or declivities only when they become dangerous on account of John G. Johnson, D. H. Jack, and W. E. their proximity to the highway. [Ed. Note. For other cases, see Highways, B. Bouton, for appellee.

Burdick, for appellant. D. U. Arird and V. Cent. Dig. $ 486; Dec. 'Dig. § 194.*] 2. HIGHWAYS ($ 211*)-DAMAGES-CONDITION -EVIDENCE.

ELKIN, J. The negligence charged in this In an action to recover for personal inju- case is that appellant township failed to ries, where the negligence alleged is that the erect and maintain a guard rail at an aldefendant township failed to maintain a guard leged dangerous place in the highway. If rail at a dangerous place in the highway, the evidence should show the exact condition of the appellant is liable at all, it is because it was ground, that it may be determined whether the its duty to maintain a guard rail over the situation was so dangerous as to require a guard gully at the south end of the tile culvert, rail.

and was negligent because of its failure to [Ed. Note.--For other cases, see Highways, perform that duty. In cases of this charCent. Dig. &$ 527–532; Dec. Dig. § 211.*]

acter the first step at the trial should be the 3. HIGHWAYS ($ 210*) DAMAGES-CONDITION introduction of evidence to show the exact -EVIDENCE.

In an action for failure to maintain a guard conditions on the ground in order that it may rail at a highway, evidence of the condition of be determined whether the situation is so the alleged dangerous point some two years aft- dangerous as to make it the duty of the er the accident is inadmissible. [Ed. Note. For other cases, see Highways, tection to the traveling public.

township to maintain a guard rail as a proCent. Dig. SS 527-532; Dec. Dig. $ 210.*]

11] The

law does not impose on supervisors the duty 4. TRIAL (S 258*) – INSTRUCTIONS-SPECIAL REQUESTS.

of maintaining a guard rail at every point Where points are submitted asking for def- where a gully starts at the roadside, or inite instruction, they should be so framed as where some natural depression, or small deto make the law applicable to the particular clivity on adjacent land, may happen to be. facts in issue.

[Ed. Note. -For other cases, see Trial, Cent. It is only when these gullies, or declivities, Dig. 88 646-650; Dec. Dig. $ 258.*]

become dangerous on account of their prox

imity to the highway that the duty of mainAppeal from Court of Common Pleas, Mc- taining guard rails arises. It is true that Kean County.

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.

cannot draw a correct conclusion without an In the charge the trial court stated the intelligent understanding not only of what facts as follows: “It appears that on the 1st the law requires, but what the facts are. day of August, 1908, A. T. Cobb went from In the present case there was a new mahis home in Corydon township to the city cadam road built by the state in conjuncof Bradford; that he returned or started. tion with the local authorities. The traveled from the city of Bradford to return to his roadway thus constructed is 16 feet wide, at home on the evening of that day. There may either side of which there is a grass covered be a little discrepancy in the opinion of the berme 2 feet wide, thus making the highway witnesses as to the exact time he left the at the point where the accident occurred 20 city of Bradford; most of the witnesses, feet wide. It was in good condition and however, testifying that before he reached free from obstructions. It was a modern the place where the accident occurred that highway, and much better than the average it was somewhere near 8 o'clock in the even- country road. To the south of the macadam ing. From the evidence of the little boy it roadway was a sloping bank covered with appears that it was dark, and quite a dark grass and other vegetation, and extending night. He came to the place or near the southward to a sidewalk for a distance of place where the accident occurred according | 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 Indexea

an intervening space of about 12 feet be- portance of more fully developing all the tween the traveled highway and the pave- facts relating to the construction and mainment.

tenance of the sidewalk. Was it a part of [2] The evidence does not satisfactorily the highway? Had the township any duty show whether this intervening space was a to perform in connection with its maintenpart of the highway, or what its condition ance? Was the sidewalk itself, independentwas at and before the happening of the ac-ly of who maintained it, a barrier or proteccident. In our judgment- this is important tion to persons traveling on the roadway at as directly bearing upon the duty of the the point where the gully crossed? If so, township. Again, it was stated at the argu- the township had the right to rely upon that ment, and seems to be a conceded fact, that protection, and was under no duty to prothe sidewalk which figured very largely in vide additional safeguards. 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. 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 assignment 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 it did not take into account the many conjust how this sidewalk bridged over the gully tingencies upon which the right to recover at the end of the tile sewer. The indications depends in the present case. For this reason are that the sidewalk was elevated several it may have misled the jury. feet above the ground as it crossed over the [4] When points are submitted asking for gully, and, if so, the supervisors might very definite instructions, they should be framed properly conclude that this was a sufficient so as to make the law applicable to the parbarrier to guard against dangers at the ticular facts of the case being tried. The point where the gully passed through. In mere fact that the roadway was of sufficient other words, if the sidewalk itself protected width for the usual and ordinary travel the alleged dangerous place, there was no would not relieve the township from mainduty resting on the supervisors to provide taining guard rails at dangerous places, but additional safeguards, and, so far as we are it has something to do in determining whethable to discover from this record, no duty er under all the circumstances it was necesrested upon the township in connection with sary to provide additional safeguards in the the safeguarding of the sidewalk.

present case. Again, even if a duty did rest upon the

As to the question of contributory neglitownship to guard the gully, this does not gence, the general rule is that it is for the mean that the guard rail had to be extended jury, when there is any evidence of this to the telephone pole where there was no character to be considered. As the case danger of the character about which com- stands, we do not see the evidence of conplaint is made. As we understand the facts, tributory negligence, but, when it is again a considerable part of the distance between tried, evidence of this character may be ofthe gully and the telephone pole was a fered if it is desired to rely upon it as a smooth, natural surface. If the team backed defense. When the case is again tried along upon the sidewalk near the telephone pole the lines indicated in this opinion, all the where there was no danger, and then con- questions raised by this appeal can be pretinued to back along the sidewalk or over sented and considered upon the facts as they it to a place of danger at the south side of are then developed. the pavement, such a contingency could not Judgment reversed and a venire facias de have been provided against by the township novo awarded. maintaining a guard rail between the traveled roadway and the pavement. Under

(232 Pa. 179) these circumstances, the accident would have

In re FORD'S ESTATE. happened just the same, because the team (Supreme Court of Pennsylvania. May 23, would have backed over the pavement and

1911.) south of the guard rail. In that event fail- 1. HUSBAND AND WIFE ($_4934*)-GIFTSure to maintain a guard rail at the side of JOINT ESTATE-RIGHTS OF WIDOW. the highway would not have been the proxi- widow is entitled to one-half of the proceeds re

On distribution of a decedent's estate, his mate cause of the injuries complained of. ceived from a certain farm, where decedent acEnough has been said to indicate the im- quired title by deed to an undivided balf inter

Pa.)

DOUGHERTY V. BRIGGS

201

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est in it, his wife possessing the other half in- quently executed by the said grantors, would terest, and where he, eight years later, joined not pass title to his wife's interest in the ers in condemnation proceedings and received the land. Nearly eight years later he recognized amount of the award and the proceeds of a sale her as the owner of the half interest by joinof the property; it being found that the widowing with her in asking for the appointment did not intend that decedent should hold these of viewers to assess damages they had susmoneys as a gift from her.

[Ed. Note. For other cases, see Husband and tained by the construction of a railroad over Wife, Cent. Dig. $ 260; Dec. Dig. $ 4934.*]

their property, and he received the amount 2. EXECUTORS AND ADMINISTRATORS (8 507*)– awarded by the viewers in a report in which

EXCEPTIONS TO ADMINISTRATOR'S ACCOUNT- they found that he and his wife were the DUTIES OF AUDITOR.

joint owners of the land. In addition to the Where an auditor is appointed to pass on amount awarded by the viewers he received specific exceptions to an administrator's account, he cannot surcharge the administrator as

the proceeds of sales of the property, and to an item not covered by any of the exceptions. an unchallenged finding of fact by the au

[Ed. Note. For other cases, see Executors ditor is that the appellee did not intend that and Administrators, Dec. Dig. § 507.*]

he should hold these moneys as a gift from Appeal from Orphans' Court, Blair County.

her. She was, therefore, clearly entitled to In the matter of the estate of Albert Ford. recover from his estate one-half of what he From a decree of distribution, Bertha A. had received as the proceeds of the sale of Ford appeals. Affirmed.

the farm, and the first and second assign

ments are overruled. Albert Ford died on October 22, 1907, in

[2] The third, complaining of the failure testate, leaving to survive him a widow, of the auditor to surcharge the appellee with Mary E. Ford, and three children, Dr. Frank the sum of $1,016.12, is also dismissed. He A. Ford, Charles K. Ford, and Margaret C. was appointed to pass upon nine exceptions Myers. Letters

of
administration

to her administration account; but by no granted to his widow, Mary E. Ford.

one of them was he asked to surcharge her Charles K. Ford died on August 23, 1908, with that sum, alleged to have been paid to leaving to survive him a widow, Bertha A. her by Silas Jenkins. Ford, to whom by will he left his entire es

The assignments of error are overruled, tate. The auditor appointed to make dis- and the decree is affirmed, at appellant's tribution of the estate of Albert Ford found

costs. that the balance for distribution belonged to the widow, Mary E. Ford, by reason of the transactions stated in the opinion of the

(232 Pa. 204) Supreme Court. Exceptions filed to the re

DOUGHERTY V. BRIGGS et al. port on behalf of Bertha A. Ford, executrix

(Supreme Court of Pennsylvania. May 23, of Charles K. Ford, deceased, were dismiss

1911.) ed, and the report confirmed. Errors assign- 1. CONTRACTS ($ 176*)-CONSTRUCTION-QUESed were (1) in awarding the entire estate to

TIONS FOR JURY. Mary E. Ford; (2) in allowing Mary E. Where the written correspondence between Ford's claim to one-half the proceeds of the parties to a contract shows that it does not conWestmoreland county farm; (3) in not mak- be ascertained from letters and acts of the par

stitute the whole agreement, and the terms must ing a surcharge of $1,016.12, being proceeds ties, the construction of the contract is for the of two notes paid to the administratrix since jury. the death of Albert Ford and not accounted [Ed. Note. For other cases, see Contracts, for.

Cent. Dig. $$ 767--770; Dec. Dig. § 176.*] Argued before BROWN, MESTREZAT,

2. APPEAL AND EPROR ($ 216*)-OBJECTIONS

TO INSTRUCTIONS-NECESSITY OF REQUESTS. POTTER, ELKIN, and MOSCHZISKER, JJ.

The sufficiency of a charge cannot be quesD. E. North, for appellant. H. F. Walters, i tioned on appeal, where no request was made for for appellee.

fuller or more specific instructions.

[Ed. Note.-For other cases, see Trial, Cent.

Dig. 8 628; Appeal and Error, Dec. Dig. 8 PER CURIAM. [1] Upon the death of 216.*] Jacob Kimmell his farm in Derry township, 3. EVIDENCE (8 501*)-OPINION EVIDENCE. Westmoreland county, passed to his two chil

Where a contract for a building provided dren, Edmund B. Kimmell and Mary E. that plaintiff was to receive a certain amount in

cash, and for the balance of his compensation Ford, subject to the dower interest of Bar- equities in the property, the question to a witbara E. Kimmell, his widow. By the deed ness,, "What were those equities, from your of October 30, 1895, from the son and wid- knowledge of the situation?" was not subject ow, Albert Ford acquired title to an undi- witness upon facts not in evidence, where the

to objection, because asking the opinion of a vided half interest in the farm, and that testimony elicited fully showed the facts on he fully understood he was acquiring no which his opinion was based. more clearly appears from the letter address

[Ed. Note.-For other cases, see Evidence, ed to him by Messrs. Marchand, Gaither & Dec. Dig. $ 501.*] Woods, in which they explained to him that Appeal from Court of Common Pleas, Phil. the deed as prepared by them, and subse- Jadelphia County.

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

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