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184. The "change" called for is expressive of tomobile.—Wilson v. Philadelphia Rapid Transit
the municipal intention and such intention must be Co., 197.
established by evidence apart from the work done.

192. At the trial the motorman's and conductor's
Defendant offered an ordinance of plaintiff city

statements which were made at the time of the acci-
regarding digging of ditches in macadamized streets, dent were admitted. The admission of these state-
to show intent. The offer was rejected. Held, not

ments are the only grounds upon which judgment for
to be error. The ordinance was too remote from the defendant non obstante veredicto is asked. Held,
time when the work was done to be any evidence that since these statements were made immediately
of intention as applied to this particular street-1b. after the occurrence of the accident, they are prop-

185. Defendant offered the report of the bor-erly admissible, and therefore, the defendant's mo-
ough engineer, showing what streets had been "paved tion for judgment non obstante veredicto must be
with macadam,” which offer was rejected. Held, overruled.- 1b.
not to be error.-
ror.-16.

193. A plaintiff whose suit is grounded on al-
186. The report of the borough engineer was not leged negligence must not only establish the negli-
approved by council. It would not have been evi- | gence by a preponderance of evidence but show that
dence of municipal intention if it had been, as there it was the cause of the injury and the negligence
is nothing to show that council knew what sort of proven must be that alleged in the statement and no
construction was embodied under the term “macad-other. Vivkers v. Conestoga Traction Co., 21.
m."-16.

194. A plaintiff can not recover damages for an
187. The Act of 1901 does not require the lien injury to which his intoxication contributed, to the
to set out at length the Acts and ordinances under extent that he would not have been injured if sober.
which the work was done.--1b.

-Ib.
188. If the authority to do the work does not

195. There is no special duty on the part of a
exist, it must be set up in the affidavit of defense

traction company to maintain a lookout for intoxicat-
or questioned in other appropriate remedies.- 1b.

ea persons, and it discharges its duty when its em-
189. Eyster's Appeal, 31 York Legal Record exercise reasonable care to avoid injuring them.--}6.

ployees, after discovering them on or near the track
45, followed.- 1b.

196. A preponderance of evidence does not mean
MUNICIPALITY, LIABILITY OF, 158, 180.

number of witnesses but the greater

crdibility of the evidence on the one side, and
NEGATIVE TESTIMONY, 190.

although the jury may believe the story of one

witness, against several, the testimony of one wit.
NEGLIGENCE, 154, 180, 254.

ness uncorroborated, particularly if interested, should
190. In an action against a railroad

be considered with great care, and ordinarily, where

company for
damages for the death of plaintiff's husband in a

contradicted by a number of witnesses, some of
collision, between a train and an automobile at a

whom appear to be disinterested, and no good rea-
grade crossing, where the question of defendant's son appears for disbelieving them, the jury should
negligence in not giving sufficient warning and the

not arbitrarily disregard that preponderance.--Ib.
plaintiff's contributory negligence in failing to "stop,

197. Where a boy twelve years

of
look and listen" before getting on the tracks were

struck and injured by a street car while trying to
submitted to the jury and a verdict for the defendant recover from the track a plaything known as a
returned, a new trial will not be granted on the “sling shot,” and he testified on the trial that he
ground that the plaintiff was prejudiced by the saw the approaching car, fully realized and calcu-
charge of the court in referring to the testimony of lated upon the risk involved, and would have es-
the plaintiff's witness on the question of defendant's caped injury but for an unforeseen slip of his foot,
negligence, as negative, where none of her witnesses

a verdict should be directed for defendant-Bradi-
swore that the "whistle was not blown, or that gan et al. v. Scranton Railway Co., 63.
the bell did not ring,” and this testimony was met 198. The presumption that a boy under the age
by the positive testimony on the part of the defend- of fourteen years is incapable of appreciating or
ant that the whistle was blown and that the bell did avoiding danger has no weight as against his own
ring.- Diehl v. Phila. & Reading Railway Co., 98. avowal to the contrary.--1b.

204
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191. Plaintiff backed his automobile out of the 199. To the rule that a party is bound by his
driveway across defendant's tracks to run northward own testimony, so far as its import is free from doubt
on the east side of the street. A trolley car mov- and ambiguity, there is no exception in favor of a
ing in the same direction collided with plaintiff's au- 1 plaintiff under the age of fourteen years.Ib.

valu

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200. Plaintiff brought suit to recover damages judgment, the plaintiff having no knowledge of the
for loss of eyesight caused by filth from a gutter in agreement.--Brendle v. Schmehl, 174.
a city street entering her eye, by reason of the

TO CURB AND PAVE, 35.
catching of a broom with which she was trying to
clean the gutter. The jury found for the plaintiff NEW TRIAL, 36, 168-169.
and the defendant moved for judgment n.
Held, that the motion must be refused.-Bruggeman

NON RESIDENT DEBTOR, 103.
et al. v. City of York. No. 3, 1.

NON RESIDENT CORPORATION, 105-112.
201. That the accumulation in the gutter, caused

NOTES, PROMISSORY, 208.
by defendant's carelessness, was poisonous and pro-
ductive of disease and infection, and that plaintiff's NOTE, SET-OFF AGAINST, 266.
eye was injured thereby, is not denied.-16.

NOTICE.
202. The saliant elements of the cause of action

OF SPECIFIC PERFORMANCE, 69a.
was that the condition was created by the careless

TO CURB AND PAVEF 35.
act of the defendant and, although it was notified of
that condition, it carelessly and negligently al-

OF GRANT OF LETTERS, 210.
lowed it to remain and made no effort to change it OF MUNICIPAL LIEN, 179.
or remedy its harmful effect.- 1b.

OF PETITION FOR ROAD VIEWERS, 274,
203. The jury having decided that the defend-

NUISANCE, 113-114.
ant was careless and negligent; that that carelessness
and negligence resulted in the accumulation of a OFFER, ACCEPTANCE OF, 50-52.
substance containing filth, poisonous and infectious

OFFICERS.
disease germs; that as a result, the plaintiff was

OF ASSSOCIATION, OUSTER, 37.
injured by some of it which splashed into her left
eye, the motion for judgment for the defendant n. o. OF CORPORATION, LIABILITY, 59.
v. must be overruled.- 1b.

NEGLIGENCE OF MUNICIPAL, 180.
204. Plaintiff brought suit to recover damages ORAL TESTIMONY, CREDIBILITY OF, 36.
for loss of eyesight caused by filth from a gutter en-
tering her eye, by reason of a broom, with which ORDINANCES, 181.
she was cleaning the gutter, catching at a wire

ORPHANAGE, SCHOOLING OF INMATES,
therein. The court below (Ross, J.,) submitted the

164.
question of negligence to the jury, which found for
the plaintiff. A motion for judgment for the de- ORPHANS COURT.
fendant n. o. v. was overruled. HELD, to have been

DISCRETION IN; 173.
1.-City of York's Appeal, 38.

MINORS' ESTATE, 173.
205. Defendant's motion for judgment n. 0. V.

209. There is no Act of Assembly which au-
should have been granted on the ground that the
negligence complained of was not the proximate

thorizes the Orphans' Court to make an order in the

estate of a minor to pay out of such estate the ex-
cause of plaintiff's injury.--1b.

penses of interment of the minor's mother.-Carroll's
206. The foul mud in the street was the condi-

Estate, 12.
tion and perhaps remote cause of the unjury, but the
coiled wire which threw the mud in plaintiff's face,

210. Notice by publication of the grant of letters
as she pushed it with her broom, was the immedi- testamentary to an executor not having been given

as required by law, the court ordered that distribu-
ate cause of the accident.--1b.

tion be suspended, notice of the letters be immedi-
207. The immediate cause was not set in motion

ately published and the account be republished at the
by the original wrong doer, nor was in the result of

expiration of one year from the first publication of
an unbroken succession of events, or of concurring the letters, unless the distributees should give re-
5.-16.

funding bonds.- Daerr's Estate, 131.
NEGOTIABLE INSTRUMENTS.

QUSTER OF OFFICER, 29, 37.
208. Where the holder of a promissory note for

error.

causes.-

PARENT AND CHILD.
value sues the

aker thereof, evidence of an agree-
ment between the maker and payee that the latter
should alone be responsible, is insufficient to prevent 211. Petitioner abandoned his wife and children

CUSTODY OF CHILD.

tector,

COUNSEL FEE.

case,

use.

MAINTENANCE OF CHILD.

in 1906. In 1912 his wife oblained a divorce and But a stepfather is under no legal obligation to sup-
supported herself and children until her death in port a stepchild after the death of the mother.- 1b.
1914. The child was subsequently, by the church

221. A grandparent may maintain a prosecution
of which she was a member, placed in the custody for the support of a grandchild against its father,
of the respondents, who clothed, fed and schooled where the father had obtained a divorce from its
her. The petitioner, having remarried, asked that

mother.- 1b.
the child be remanded to him as her natural pro-

Held, that the petition must be refused.- PARTITION.
Dillon v. Glatfelter et, ux, 17.

WITHOUT KNOWLEDGE OF TENANT, 159,
212. In questions of this nature the Court will in-
vestigate the circumstances and act according to a
sound discretion, the primary object being the good

222. Under the Act 27 April 1864, P. L. 641,
of the child.--1b.

the Court of Common Pleas may, under peculiar

circumstances attending a proceeding in equity for
213. The relator has not shown that he deserves

partition, allow plaintiff's counsel a fee of $1.000
her custody, having abandoned her in her infancy, llor services rendered for the common benefit of all
and never displaying any practical solicitude for her the litigants.-- Reissnyder et al. v. Reifsnyder et al,
physical, moral or spiritual welfare, until he began

16.
this proceeding.- 1b.
214. Under the circumstances of the and

PARTNERSHIP.
in view of the protests of the child herself, now in 223. Gilt and Delone agreed with Johns to take
her fifteenth year, it would be cruel to place her over his prope: ty, make specific payments and retain
in the custody of the relator.--1b.

the residue for their own

They continued
Johns' business, and in due course Gitt endorsed

two notes in the business name; on which suit was
215. The duty of supporting, maintaining and brought. Delone denied the existence of a part-
educating children rests upon the father and during hership, ard there was no evidence to that effect.
the life time of the father the mother is not bound Held, that the court below (Ross, J..) properly en-
to support the children.-Com. v. Walburn, 110.

lered a compulsory non-suit.-Delone's Appeal, 41.
216. The husband remains liable for the support 224. The "residue” could not be regarded as
of his minor children where he and his wife volun- prohts, tut as compensation of the assignees de
tarily separate and he consents that the children pendent upon the skill and ability displayed in
live with the mother or where the wife leaves him settling the affairs of the estate.- 1b.
on good cause But, it is otherwise where the wife 225. The fact that Delone retained some of the
'eaves without cause taking the children with her.- collateral security given with the customer's note
Ib.

has nothing to do with the question of partnership.
217. When the father and mother are divorced Under the agreement it was defendant's duty to col-
and the mother marries taking with her her children lect all indebtedness due Johns, for which they must
by her divorced husband, the stepfather is entitled account as trustees.- 1b.
to the services of such children and obilges himself

PAVING, ASSESSMENT OF COST OF,
to support, maintain and educate such children.- 1b.
218. When a child is deserted by both parents

174-188.
the primary responsibility for its support rests on the

PLAINTIFF'S STATEMENT, 38-39, 54, 229,
father.- 1b.

233-238, 240-246, 251-253, 254-257, 258 -259,
219. A husband remains liable for the support of
his minor children where he and his wife volun-

260-261, 262, 262a.
tarily separate and he consents to the children liv-

PLAYGROUND, TAXATION, 302.
ing with the mother, or where the wife leaves him
for good cause.

But it is otherwise where the wife PLOT OF STREETS, 274a.
leaves without cause, taking the children with her.-
Com. v. W'alburn, 181.

POLICEMAN, SUSPENSION OF, 31-32.
220. The assumed relation of father by a step- POLICE POWERS, 34.
father entitled him, on the one hand, to the services
of his stepchildren and entitled them, on the other, POSSESSION, PROCEEDINGS TO OBTAIN,
to their support and education without remuneration. 147 - 148.

!

1

AFFFIDAVIT OF DEFENSE.

must be clearly set up in the affidavit of defence.---
PRACTICE.

Ib.
APPEAL FROM JUSTICE OF PEACE, 9,

235. Allegations that the statement "presupposes
DUPLICATE PETITIONS, 294-296.

and rebuts theories of the defence," and that to an-

swer the statement would require the defendant "to
226. The afhdayit of defense to a suit to recover

divulge its entire defence, to answer matters that

may
balance due on a contract set forth a counter claim

not be material to the issue and to argue matters
for damages resulting from a stoppage of defend that are questions of evidence," are beyond com-
ant's mill in order to repair constructive defects in prehension and cannot be considered at this time.-
plaintiff's work. Plaintiff moved for judgment for

Ib.
want of a sufficient affidavit of defence. Held, that

236. After the expiration of the term at which
the motion must be refused.-- Sturtevant Company v.

judgment on demurrer was entered for defendant,
York Card and Paper Company, 133.

plaintiff asked for leave to amend the statement.
227. Under the Practice Act of 1915, a counter Held, that the amendment must be refused.-Glat-
claim in the affidavit of defense must be met by an felter v. American Phosphorus Co., No. 2, 69.
answer, raising either a question of law or of fact.-

237. Where a demurrer to a statement of claim
Ib.

has been sustained and judgment has been entered
228. A motion for judgment for want of a suffi- for the defendant, no amendment can be allowed
cient affidavit of defense cannot be used as a substi-until the judgment has been opened or vacated.--1b.
lute for an answer.-lb.

238. An application to open or vacate a judg.
229. When the statement, affidavit of defense, or ment entered adversely, aíter a hearing or trial, must
any other pleading is formally defective and not be made before the end of the term at which the
in conformity with the provisions of the Practice judgment is entered.1b.
Act of 1915, the Court should be moved to strike 239. The law controling the opening or vacating
it off.--1.

of adverse judgments has not been changed by the
230. The contract in suit contained a clause pro-

Practice Act, 1915.- 1b.
viding that plaintiff shall not be held liable "in

240. Under the Practice Act of May 14, 1915,
any event for any special, indirect or consequen-

a statement is not defective in that it does not set
tial damares whatsoever." HELD, that such clause forth the contract on which the plaintiff depends
would not relieve from liability for loss by reason

and whether it is oral or written, where the action
of wages of idle employees, and similar expense is founded on a tort and the material facts are set
during the necessary stoppage of a mill for repairs forth in concise form.—Sorrick v. Scheetz, 25.
u defective machinery.-lb.

241. The practice Act of May 14, 1915, P. L.
231. A proper amount of "overhead

13, presupposes an action already brought in the

expenses"
has been held recoverable during the necessary stop-

Court of Common Pleas. The statement is the first
page of work for repairs.- 1b.

step in the procedure when the action has been com-

menced.--American Lumber & Mfg. Co. v. Ens-
232. An item of loss in reduced product, indicat- minger Lumber Co.'s Receivers. 7.
ing a loss of profits, is not necessarily excluded as

242. Service of the statement is recognized and
special and ir direct under the clause of this contract

authorized by neccessary implication.--1b.
relied upon by the plaintiff.- 1b.

243. There is no prohibition against filing the
PLAINTIFF'S STATEMENT AND PLEADINGS.

statement before the return day, and defendant thus
233. Plaintiff's

in numbered

may be compelled to file an affidavit of defence be-

para-
graphs, set forth that the contract was in writing that fore the return day or before he is in Court pur-

suant to the writ of summons.- 1b.
plaintiff resided in York; that defendant was
beneficial association in York; decedent's member-

244. Service of statement of claim may be made
ship and death; designation of plaintiff as benefici- by serving a copy on defendant.- 1b.
ary; authority for such designation: notice and proof 245. Receivers of U. S. District Court may be
of death and failure of payment by defendant. sued without first obtaining leave of Court.- 1b.
Held, that a motion to strike off the statement as 246. A statement that is not divided into para-
not in conformity with the Practice Act of 1915 must graphs, as required by the Act of May 14, 1915, P.
be refused.--Ruth v. I. 0. R. M., 153.

L. 483, will be stricken from the record in that
234. Where the plaintiff's statement is uniform it does not comply with the Practice Act. Confer
and clear, every defence whether of fact or of law, 1 v. Smith, 130.

statement,

a

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247. It would seem that under the Practice Act both parties shall thereafter be restricted thereto, and
of 1915, the Legislature intended to require uni- it is the duty of the Court to see that its provisions
formity of pleadings in all actions of assumpsit and are literally and fully complied with.-1b.
trespasss regardless of the personality of the parties, 257. Absence of allegations of negligence on the
whether individual or corporate, except as therein part of the defendant or its employees, or no aver-
designated, and municipal corporations are not ex- ment of specific facts from which such negligence
empt from its provisions.Sweeney v. Allegheny could be inferred, if presented in an affidavit of de-
County, 8.

fense, might result in a judgment for the defendant,
243. Where the question of law raised by the but they cannot be finally ruled upon on a motion
affidavit of defense disposes of the whole of the to strike off the statement.- 1b.
plaintiff's claim, the judgment should be for the 258. Under the Practice Act of 1915, a state-
defendant and not of nonsuit.-- Raeder v. Stewart ment should disclose, for the information of the de-
Silk Mill Co., 175.

fendant, the essential facts of plaintiff's case with a
249. Where a statute is relied on for a defense, copy of all accounts where that is made necessary

by the character of plaintiff's claim.-Robertson v.
the party relying on it need not refer to, or negative

International Textbook Co., 91.
an exception or proviso unless it is contained in the
enacting clause.-16.

259. Where the claim is for salary and commis-
250. "The Workmen's Compensation Act of

sions and money expended, in accordance with a
1915" is constitutional.- 1b.

contract between the parties, the defendant is en-

titled to a statement showing for what period a given
251. Where plaintiff's statements alleges the re- weekly salary is claimed; on what items or moneys
ceipt of plaintiff's property by defendant in a law- the commissions are based, and where and how
ful manner; but further alleges unlawful detention earned; and in the matter of moneys expended it
or disposition thereof, a writ of capias ad respon should state when and to whom the moneys were
dendum in trespass is a proper legal process.- paid.- 1b.
Harding v. Heindel, 118.

260. In an action against a railroad company for
252. Where, without any objections to the suffi- damages for injury by fire to property adjoining its
ciency or legality of the statement and cause of ac- tracks alleged to have been caused by sparks from a
tion, defendant enters bail, it is too late to raise ob- defective smoke-stack on a locomotive the plaintiff
jections subsequently and make them effective to should not be compelled to file a more specific state-
avoid the merits of the cause of action.-16.

menut, although his stataement fails to give the num-
253. The allegation that the plaintiff is not the ber of the locomotive, the direction in which it
owner of the property alleged to have been detained, was going or the time of day, and avers that these
but only a bailee thereof, is one of fact which can- facts are unknown to the plaintiff-Shaeffer v.
not be decided as a question of law.-16.

Pennsylvania Railroad Co., 136.
254. Plaintiff's statement alleged damages caused 261. A more specific statement will not be re-
by his wife swallowing a pin contained in breadquired in relation to matters as to which the defend-
manufactured, sold and delivered to her. The de- ant should have as much knowledge as the plaintiff.
fendant moved to strike off the statement because-b.
it failed to give the date of delivery of the bread 262. A statement in an action of trespass for de-
or the swallowing of the pin, or the value of the ceit is insuffcient where it shows that the plaintiff
wife's services, nor did it allege any negligence on received a deed for certain lands described in
the part of defendant or its employes, or specify courses and distances and the averment of fraud
any act from which negligence could be inferred. consists in the allegation that the “defendant, or his
Held, that the rule must be made absolute. Kohr agents represented that a contiguous tract was includ-
v. Fox Baking Co., 161.

ed in the premises sold. The statement should set
255. The defendant is entitled to a sufficient forth the names of the agents, and also that the de-
çpecific averment of the material facts of the case, fendant had knowledge that the agents had made the
so as to enable it to understand the real nature and false statements before the deed was delivered. -
extent of the plaintiff's claim.-16.

Fluck v. Heller, 24.
256. It is the apparent purpose of the “Practice

262a. Under the "Practice Act, 1915" an op-
Act of 1915" to require that material facts intend- portunity to amend the statement may be given.--1b.
ed to be proven and relied upon by either party at

PREPONDERANCE OF EVIDENCE, 196.
the trial of the case, shall be specifically set forth
on the face of their rspective pleadings, and that PRESUMPTION, 198. 336.

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