Pa.) NEWINGHAM v. J. C. BLAIR CO. In an action for injuries from the giving way of a fire escape on defendant's building while plaintiff was in the employ of a contractor engaged by defendant, evidence that the vice president of defendant company gave directions that the workmen should not go through the building, but should use the fire escape to reach the roof, that the plaintiff in the discharge of his duties had occasion to descend, and, while on the fire escape, one of the platforms gave way, causing his injuries, and that the accident was due to defective construction which would have appeared had there been a proper examination or inspection, was sufficient to sustain a verdict for plaintiff; there being no evidence of any inspection of the fire escape. [Ed. Note. For other cases, see Negligence, Dec. Dig. § 134.*] 8. NEGLIGENCE (§ 32*)-CONDITION OF PREMISES-INJURIES TO LICENSEES. The owner of property owes to an independent contractor and his servants at work thereon, not the absolute duty of having the premises safe, but the duty of exercising reasonable care to have them in a safe condition, and it is incumbent on the owner of premises on which persons come by invitation, express or implied, to maintain them in a reasonably safe condition for the contemplated uses thereof and the purposes for which the invitation was extended. [Ed. Note.-For other cases, see Negligence, Cent. Dig. §§ 42-44; Dec. Dig. § 32.*] 9. NEGLIGENCE (§ 121*)-ACTIONS-PRESUMP 557 you seen Newingham frequently in the building during the time this work was going on? (Objection.) "Mr. Bailey: We propose to show by the witness that the plaintiff was in the building 'A' of the defendant a day or two before the accident, and subsequent to the Tuesday before the accident, for the purpose of showing that if there was any inhibition or restriction in his movements by an officer of the company, to wit, that he should not use the stairways or elevators in the building, that he did not obey those instructions and was inside of the building, and it comes to the question of his exercising due care in leaving a safe way of departure from the building and going on the fire escape where he was injured, and also for the purpose of affecting the credibility of the plaintiff, who testified that subsequent to the Tuesday. when he was told by Hershey that he should not use the stairways or elevators of the building, he was not in said building. "Mr. Waite: That is objected to as utterly immaterial, irrelevant, and inadmissible as to how much the plaintiff was in the building on another day. The plaintiff did not testify that he had not been in the buildings on other days, so it does not contradict him. He simply states in his examination that he did not remember to have used the inside of building 'A' on the morning of the day on which he was hurt, but he did not testify that he had not been in building 'A' on other days; but, even if he had been, it would tend to contradict him only on an immaterial point. "The Court: Objection sustained. Evidence rejected. Bill of exceptions sealed for defendant." William Hassenflue being on the stand, this offer was made. "Mr. Bailey: I propose to show by the witness on the stand that he passed over the fire escape at the point where the accident occurred a number of times before the accident occurred; that he had intended to speak to Mr. Woolheater of the J. C. Blair Company and to his own employés, but overlooked it, for the purpose of showing that that omission on the part of the witness is what produced the accident which forms the basis of this action, that it was his negli [Ed. Note. For other cases, see Negligence, gence which prevented the proper supporting Dec. Dig. § 121.*] Appeal from Court of Common Pleas, Huntingdon County. Action by Frank E. Newingham against the J. C. Blair Company. From a judgment for plaintiff, defendant appeals. Affirmed. Trespass for personal injuries. The facts appear by the opinion of the Supreme Court. At the trial James Sleeman, being on the stand, was asked this question: "Q. Had of the fire escape and which was the proximate cause of the plaintiff's injury. "Mr. Waite: That is objected to, because, it would only show contributory negligence if the evidence was even to go to the jury, on the part of the plaintiff's employer, which would not relieve the defendant from its negligence, if the jury believe it was negligence, and if the negligence contributed to this accident. "The Court: Objection sustained. Evi *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes dence rejected. Bill of exceptions sealed for cated, on the part of the employer, its effect defendant." Argued before BROWN, MESTREZAT, POTTER, ELKIN, and MOSCHZISKER, JJ. W. S. Dalzell and Thomas F. Bailey, for appellant. H. H. Waite and Jas. S. Woods, for appellee. POTTER, J. In this action the plaintiff sought to recover damages for injuries which he sustained through the alleged negligence of the defendant company. He was a tinner and roofer, in the employ of a contractor who had engaged to copper flash the roofs of certain buildings for the defendant. There were three ways of gaining access to the roofs-by the elevator, by the inside stairway, and by the fire escape. The evidence tends to show that shortly after the work began the vice president of the defendant company gave directions that the workmen should not go through the buildings, but should use the fire escape to reach the roof. On the morning of June 6, 1908, the plaintiff was on the roof, in the discharge of his duties, and had occasion to descend. While on the fire escape, one of the platforms gave way beneath him, and he fell, and was severely injured. The defendant company was charged with negligence in failing to maintain the fire escape in a safe condition, and in requiring plaintiff to use an unsafe way of passage. Upon the trial, a request for binding instructions in favor of defendant was refused, and the case was submitted to the jury, who returned a verdict in favor of the plaintiff for the sum of $7,175. From the judgment entered thereon defendant has appealed. [1] In the first assignment of error counsel complain of the action of the court below in excluding defendant's offer to show that plaintiff was in one of the buildings of defendant a day or two before the accident, and after the direction had been given to use the first escape in order to reach the roof. We see no error in the exclusion of this offer. Its purpose was evidently to show that plaintiff did not obey the orders which had been issued prohibiting the use of the elevator and the stairway. But the offer of proof, as made, fell short of that end. It was merely a proffer to show that plaintiff was in the building. If he was, it would not necessarily follow that he used the elevator or the stairway; and, even if he did do so, the relevancy of that fact to the issue being tried is not apparent. would not be to relieve the defendant of its own responsibility. [3] In the third and fourth and assignments it is alleged that the trial judge in charging the jury inadvertently misquoted certain testimony. Our examination of the printed records leads us to think that the court was substantially correct in the statements made. But, if in the opinion of counsel for defendant a mistake was made, it should have been brought to the attention of the court before the jury retired; otherwise, the matter is not properly assignable for error. Kuntz v. N. Y., etc., R. R. Co., 206 Pa. 162, 55 Atl. 915; Commonwealth v. Razmus, 210 Pa. 609, 60 Atl. 264. The assignments from the fifth to the eleventh, inclusive, complain of portions of the charge and of the answers to points relating to the extent of the injuries and to the measure of damages. In none of these do we see any substantial error. There was ample evidence as to the probable permanence of the injuries. Dr. Northup testified that the probability of recovery was very unlikely; and, again, that it was doubtful. Dr. Hoffman testified that he considered plaintiff to be permanently injured, and did not believe that he would be able to do any laborious work. Dr. Chisholm said on cross-examination that the probabilities were that plaintiff would not ever fully recover from his injuries. [4] The refusal of defendant's ninth point is made the subject of the twelfth assignment of error. We do not find that this point accurately states the testimony of Mr. Koch. An examination of the record does not show that he said positively that he never instructed any of the employés of the contractor to use the fire escape, but only that he testified that. to the best of his recollection, he did not tell Mr. Hershey not to use the elevator, or that he must use the fire escape. There was some evidence tending to show that plaintiff used the elevator, and on one occasion used the stairway between two of the upper floors, after he had been notified not to do so. Plaintiff, however, denied this. But even if he did use the elevator or stairway at times, in disregard of orders, that fact would not affect his right to rely upon the fire escape being in a proper condition, when he was ordered to use it. His action would not have affected the fact, if the jury found it to be such, that defendant's manager had not only invited, but ordered, the employés of the contractor to use the fire escape. In the shape in which the ninth point was presented, it was properly refused. [2] The second assignment is to the overruling of an offer to show that plaintiff's employer had passed over the place, and had noticed, and intended to give warning of, In the thirteenth assignment of error comthe dangerous character of the fire escape at plaint is made that the trial judge failed the point where the accident occurred. The to give the jury certain instructions; but offer was properly excluded, as immaterial. it does not appear that counsel for defend Pa.) tions. NEWINGHAM v. J. C. BLAIR CO. 559 This specification is not therefore I tions in favor of defendant, and of his re to be sustained. Kaufman v. Pittsburg, etc., R. R. Co., 210 Pa. 440, 60 Atl. 2. fusal to enter judgment for defendant non obstante veredicto. These specifications raise [5] In the fourteenth assignment it is sug- broadly the question of the plaintiff's right gested that the court below erred in the an- to recover. In support of their contention swer made to defendant's tenth point, which that defendant owed no duty to plaintiff in requested the trial judge to charge that the way of keeping the fire escape in safe if the jury believed that plaintiff jumped condition, counsel for appellant cite the a distance of 32 feet from the top of the case of Callan v. Pugh, 54 App. Div. 545, 66 fire wall to the floor of the fire escape, and N. Y. Supp. 1118. But an examination of thus subjected it to an undue strain, he that decision shows that it was put upon the could not recover. While the trial judge ground that the excavation which caused refused the point as put, nevertheless he the fall of the arch was not made under the instructed the jury that it was for them to owner's direction, nor did it appear that he say "whether the plaintiff acted in the way had notice of the dangerous condition of the an ordinarily prudent person under the same arch. Apparently it had been weakened by circumstances would have acted." We think excavations which were being made by an this was a fair submission of the question independent contractor. The distinction beinvolved to the consideration of the jury. tween such facts and those of the case now More especially is this true in view of the before us is obvious. They also cite Maguire fact that in affirming the very next point v. Magee, decided by this court, but reportfor charge offered by counsel for defendant ed in 13 Atl. 551. There the injury resultthe jury were instructed that, if they believ-ed from a defective scaffold, of a temporary ed that the negligence of the plaintiff con- character, erected by a contractor for the use tributed in any way to his injury, there of his own employés alone. In the case of could be no recovery in this action. Myers v. Electric Illuminating Co., 225 Pa. 387, 74 Atl. 223, the decision was based on the fact that the danger from uninsulated wires was an obvious one, of which the plaintiff was held to have assumed the risk. In the argument of the case at bar, counsel rely strongly upon Hotchkin v. Erdrich, 214 Pa. 460, 463, 63 Atl. 1035, 1036 (10 L. R. A. [N. S.] 506), where the plaintiff was injured by a fall caused by the giving way of a round of a ladder inside a chimney, which he was ascending in order to perform some work at the top. But in that case it was said: "The testimony does not show any direction to the plaintiff by the defendant to use the inside ladder, but it does show permission, or possibly an invitation, to do so." In the present case there was not only an invitation by the defendant company to use the fire escape, but there was, according to the testimony for the plaintiff, an express direction to make use of that means of access to the roof, and a prohibition of the use for that purpose of the elevator or of the inside stairway. It was further pointed out in that case that the same degree of attention is not required in caring for a place seldom used, as is requisite in the maintenance of a passageway frequently called into use. In that case no occasion for inspecting the ladder fastened upon the inside of the chimney had arisen for some nine years. In the present case the defect was in a fire escape which from its very nature, and by reason of the purpose it was intended to serve should have been kept in safe condition for use at all times. To be sure, the use which the defendant company directed should be made of it by the plaintiff was not the ordinary office of a fire escape, but it was apparently not an improper use, and, at any rate, it was placed at the disposal of [6] In the fifteenth assignment of error it is alleged that the court, "having admitted the Carlisle Tables of. Mortality, erred in not carefully guarding the effect of the evidence by directing the attention of the jury to the circumstances affecting the duration of the life in question." This specification is subject to the same criticism as that made upon the thirteenth assignment, in that it does not appear that counsel made any request upon the trial for any such instructions. It is undoubtedly true that, where mortality tables are admitted in evidence, the jury should be cautioned not to accept the results set forth in the tables as conclusive; and they should have been directed to take into consideration the circumstances affecting the duration of the life in question. It would have been better if the trial judge had given such instructions. But we do not regard the omission in this case as amounting to reversible error. The testimony showed that plaintiff was in excellent health prior to the accident, so that, if the matter of his expectancy of life had been referred to by the trial judge in his charge, the evidence as to the age and physical condition of the plaintiff would have justified the jury in adopting the most favorable view of the probabilities of the continuation of his life. Counsel made no request for instructions as to the weight to be given to the evidence obtained from the mortality tables, nor did they call the attention of the trial judge to his omission to charge upon that subject. We do not think the failure to so charge is sufficient to justify a reversal of the judgment. [7] In the sixteenth and seventh assignments of error complaint is made of the refusal by the trial judge of binding instruc care." And in 21 Am. & Eng. Ency, of Law (2d Ed.) 471, it is said: "All the authorities agree that it is incumbent upon the owner of premises upon which persons come by invitation, express or implied, to maintain such premises in a reasonably safe condition for the contemplated uses thereof and the purposes for which the invitation was extended." The underlying principle of these general statements has been recognized and enforced in our own cases. For example, in Pottstown Iron Co. v. Fanning, 114 Pa. 234, 6 Atl. 578, the plaintiff was a brakeman employed on a train of the Reading Railroad Company, which, while lawfully thereon, was wrecked by the collapse of a defective trestle owned and operated by the defendant. The latter was held liable for the damages resulting from the death of the plaintiff. And in Pender v. Raggs et al., 178 Pa. 337, 35 Atl. 1135, the owners of a building which was undergoing alteration were held liable to an employé of the contractor who was making the alterations for injuries resulting from the fall of a wall, which (as found by the jury) became unsafe from the act of the owner. the plaintiff and his fellow workmen by the | duty of having the premises safe. His duty express direction of the officer of the defend- is discharged by the exercise of reasonable ant company. In making use of the fire escape, as directed and required, the plaintiff had a right to rely on the presumption that the defendant had performed its duty in providing a reasonably safe means of access to the roof. The fire escape was under the circumstances to all intents and purposes, an outside stairway. If, instead of making use of it, the plaintiff had been instructed to take the inside stairway, and had been injured by the giving way of an improperly constructed platform, it would hardly be contended that the defendant would not be liable for the results. The fact that the fire escape temporarily transformed at the direction of the defendant into a stairway was located outside of the building, rather than inside, cannot change the principle involved. The decision in Hotchkin v. Erdrich is put expressly upon the grounds, first, that there was no direction to the plaintiff to use the old ladder inside the chimney; second, that the crude iron rounds on the inside of the chimney wall did not constitute, under the circumstances, such an appliance as the defendant was required to inspect and keep in repair; third, that plaintiff did not in that case rely on any presumption that the crude ladder was in safe condition, but, instead, proceeded to test and inspect it himself as he ascended it, thus acknowledging and assuming the risk of its being defective. No one of these conditions, or anything similar thereto, is to be found in the case at bar. [9] It is suggested in the argument that because section 22 of the act of May 2, 1905 (P. L. 359), provides for an inspection of fire escapes, it is to be presumed that defendant had complied with the law, and that the fire escape here in question had been duly inspected and approved. There is no evidence, however, of any such inspection. The record shows the positive testimony of David Hershey that the accident was due to defective construction of the fire escape which would have appeared had there been a proper examination or inspection. We are satisfied that, under all the evidence, this case was for the jury, and that in the manner of its submission there was no substantial error. [8] In White's Supplement to Thompson on Negligence, § 979, what seems to be a sound general rule is thus expressed: "It is the rule that the owner of property owes to an independent contractor and his servants at work thereon the duty of exercising reasonable care to have the premises in a safe condition for the work, unless the defects responsible for the injury were known to the contractor. It is to be observed that The assignments of error are therefore disthe owner is not charged with the absolute | missed, and the judgment is affirmed. N. J.) (82 N. J. L. 206) STATE v. BOWMAN JURGENS v. BOOTH et al. (Supreme Court of New Jersey. Dec. 4, 1911.) (Syllabus by the Court.) COUNTIES ($ 134*)-EXPENSES OF ELECTIONLIABILITY. The Geran act (P. L. 1911, p. 322) does not relieve boards of freeholders of the duty of paying the expenses of a general election, held in and for the whole county, imposed upon them by section 180 of the general election law (P. L. 1898, p. 317). [Ed. Note. For other cases, see Counties, Cent. Dig. § 202; Dec. Dig. § 134.*] Application by the State, on the relation of Frederick Jurgens, for writ of mandamus to Richard W. Booth and others. Rule to show cause made absolute. Argued November term 1911, before GARRISON, PARKER, and BERGEN, JJ. J. H. Harrison, for relator. Wm. A. Lord, for defendants. GARRISON, J. This is an application by an election officer for a mandamus to compel the auditor and collector of Essex county to draw a warrant and pay to him the money due him for services and lawful expenses in 561 expenses of carrying out this act in their municipality, except as herein otherwise provided." The force of this section, as antagonizing the construction just indicated, is weakened by several considerations: First, it may be said that a county is a municipality within the meaning of this section; secondly, it may be said that it is not, and that the section deals only with elections not co-extensive with the whole county; thirdly, it may be said that it is "herein otherwise provided" viz., by section 64; and, lastly, if sections 10 and 64 cannot both stand, the later section overrides the earlier. In the view we take of these statutes, the Geran law does not relieve the freeholders of the duty of paying the expenses of a general election held in and for the whole county, imposed by section 180 of the general election law. The rule to show cause is made absolute, and a peremptory mandamus may issue according to its terms. (82 N. J. L. 210) STATE v. BOWMAN. curred at a general election held in and for (Supreme Court of New Jersey. Nov. 29, 1911.) the entire county in November, 1911. The duty to make these payments must be found in the Geran act (P. L. 1911, p. 276) and such parts of the pre-existing election laws as were not repealed by that act. It is perhaps not possible absolutely to harmonize these statutes, if strict effect be given to every word by which the Legislature has sought to express its will. The paramount purpose thereby expressed, however, may be arrived at by a construction that does the least violence to the language employed. Section 180 of the general election law (P. L. 1898, p. 317) clearly places the duty in question upon the county in which a general election is held. Section 64 of the Geran act (P. L. 1911, p. 322) provides that the board now charged with this duty shall pay any additional expense made necessary by this (the Geran) law. This provision, and especially the word "additional," indicates with sufficient clearness that the duty imposed upon the county by the existing law was increased, which, of course, negatives the idea that it was supplanted. The duty of the freeholders to meet the expenses of a general election therefore continues, and is recognized as continuing by the Geran act. (Syllabus by the Court.) CRIMINAL LAW (§ 1011*)-REVIEW-CERTIORARI-GROUNDS. A defendant under indictment applied for a writ of certiorari to remove into this court said indictment, also the order under which a special term of the oyer was held, also an order disqualifying the sheriff from selecting the grand jury, and also an order appointing elisors to select and summon the grand jury, by which the defendant was indicted, for the purpose of basing a motion to quash the indictment upon such extraneous matters. Held, that the writ would not be allowed for the purpose of enabling the court to entertain a motion to quash, based upon grounds extraneous to the indictment. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 2569; Dec. Dig. § 1011.*] Frank Bowman was indicted for illegal voting, and applies for a writ of certiorari. Denied. Argued November term, 1911, before GARRISON, PARKER, and BERGEN, JJ. George A. Bourgeois and Gilbert Collins, for the motion. Edmund Wilson, Atty. Gen., for the State. GARRISON, J. The defendant, being under indictment for illegal voting at a general election held in Atlantic county, of November 8, 1910, applies for the allowance of a writ of certiorari to remove into this court not only such indictment and its caption, but also the order under which a special term of the oyer of that county was held on July 5, 1911; also the order of said court, disquali As opposed to this view is section 10 of the Geran act, which provides that "the board or body having charge of the finances in each municipality shall provide for the *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 81 A.-36 |