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184. The "change" called for is expressive of tomobile.-Wilson v. Philadelphia Rapid Transil
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.-lb. 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.-Ib.

not to be error.-lb.

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.

187. The Act of 1901 does not require the lien
to set out at length the Acts and ordinances under
which the work was done.-Ib.

188. If the authority to do the work does not
exist, it must be set up in the affidavit of defense
or questioned in other appropriate remedies.-Ib.

189. Eyster's Appeal, 31 YORK LEGAL RECORD
45, followed.-lb.


NEGLIGENCE, 154, 180, 254.

190. In an action against a railroad company for
damages for the death of plaintiff's husband in a
collision, between a train and an automobile at a
grade crossing, where the question of defendant's
negligence in not giving sufficient warning and the
plaintiff's contributory negligence in failing to "stop,
look and listen" before getting on the tracks were
submitted to the jury and a verdict for the defendant
returned, a new trial will not be granted on the
ground that the plaintiff was prejudiced by the
charge of the court in referring to the testimony of
the plaintiff's witness on the question of defendant's
negligence, as negative, where none of her witnesses
swore that the "whistle was not blown, or that
the bell did not ring," and this testimony was met
by the positive testimony on the part of the defend-
ant that the whistle was blown and that the bell did
ring. Diehl v. Phila. & Reading Railway Co., 98.
191. Plaintiff backed his automobile out of the
driveway across defendant's tracks to run northward
on the east side of the street. A trolley car mov-
ing in the same direction collided with plaintiff's au-

194. A plaintiff can not recover damages for an
injury to which his intoxication contributed, to the
extent that he would not have been injured if sober.

195. There is no special duty on the part of a
traction company to maintain a lookout for intoxicat-
ea persons, and it discharges its duty when its em-
ployees, after discovering them on or near the track
exercise reasonable care to avoid injuring them.—Ib.

196. A preponderance of evidence does not mean
the greater
number of witnesses but the greater
crdibility of the evidence on the one side, and
although the jury may believe the story of one
witness, against several, the testimony of one wit-
ness uncorroborated, particularly if interested, should
be considered with great care, and ordinarily, where
contradicted by a number of witnesses, some of
whom appear to be disinterested, and no good rea-
son appears for disbelieving them, the jury should
not arbitrarily disregard that preponderance.—Ib.
197. Where a boy twelve
struck and injured by a street car while trying to
recover from the track a plaything known as
"sling shot," and he testified on the trial that he
saw the approaching car, fully realized and calcu-
lated upon the risk involved, and would have es-
caped injury but for an unforeseen slip of his foot,
a verdict should be directed for defendant-Bradi-
gan et al. v. Scranton Railway Co., 63.

age was


198. The presumption that a boy under the age
of fourteen years is incapable of appreciating or
avoiding danger has no weight as against his own
avowal to the contrary.-Ib.

199. To the rule that a party is bound by his
own testimony, so far as its import is free from doubt
and ambiguity, there is no exception in favor of a
plaintiff under the age of fourteen years.-Ib.

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
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. 0. V.
HELD, that the motion must be refused.-Bruggeman
et al. v. City of York. No. 3, 1.



201. That the accumulation in the gutter, caused
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.-Ib.

202. The saliant elements of the cause of action
was that the condition was created by the careless
act of the defendant and, although it was notified of
that condition, it carelessly and negligently al-
lowed it to remain and made no effort to change it
or remedy its harmful effect.-Ib.



NUISANCE, 113-114.

203. The jury having decided that the defend-
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
that as a result, the plaintiff was
injured by some of it which splashed into her left
eye, the motion for judgment for the defendant n. o.
v. must be overruled.-lb.






204. Plaintiff brought suit to recover damages
for loss of eyesight caused by filth from a gutter en-
tering her eye, by reason of a broom, with which
she was cleaning the gutter, catching at
a wire
therein. The court below (Ross, J.,) submitted the
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
error. City of York's Appeal, 38.

205. Defendant's motion for judgment n. o. v.
should have been granted on the ground that the
negligence complained of was not the proximate
cause of plaintiff's injury.—Ib.



209. There is no Act of Assembly which au-
thorizes the Orphans' Court to make an order in the
estate of a minor to pay out of such estate the ex-
penses of interment of the minor's mother.-Carroll's
Estate, 12.

210. Notice by publication of the grant of letters

206. The foul mud in the street was the condi-
tion and perhaps remote cause of the unjury, but the
coiled wire which threw the mud in plaintiff's face,
as she pushed it with her broom, was the immedi-testamentary to an executor not having been given
ate cause of the accident.-Ib.

207. The immediate cause was not set in motion
by the original wrong doer, nor was it the result of
an unbroken succession, of events, or of concurring



208. Where the holder of a promissory note for
value sues the maker thereof, evidence of an agree-
ment between the maker and payee that the latter
should alone be responsible, is insufficient to prevent

as required by law, the court ordered that distribu-
tion be suspended, notice of the letters be immedi-
ately published and the account be republished at the
the letters, unless the distributees should give re-
expiration of one year from the first publication of
funding bonds.--Daerr's Estate, 131.



211. Petitioner abandoned his wife and children

But a stepfather is under no legal obligation to sup-
port a stepchild after the death of the mother.-lb.
221. A grandparent may maintain a prosecution
for the support of a grandchild against its father,

in 1906. In 1912 his wife obtained a divorce and
supported herself and children until her death in
1914. The child was subsequently, by the church
of which she was a member, placed in the custody
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.-Ib.
the child be remanded to him as her natural pro-

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

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
of the child.--Ib.

213. The relator has not shown that he deserves
her custody, having abandoned her in her infancy,
and never displaying any practical solicitude for her
physical, moral or spiritual welfare, until he began
this proceeding.-lb.

214. Under the circumstances of the case, and
in view of the protests of the child herself, now in
her fifteenth year, it would be cruel to place her
in the custody of the relator.-Ib.


215. The duty of supporting, maintaining and
educating children rests upon the father and during
the life time of the father the mother is not bound
to support the children.--Com. v. Walburn, 110.

216. The husband remains liable for the support
of his minor children where he and his wife volun-
tarily separate and he consents that the children
live with the mother or where the wife leaves him
on good cause But, it is otherwise where the wife
'eaves without cause taking the children with her.

217. When the father and mother are divorced
and the mother marries taking with her her children
by her divorced husband, the stepfather is entitled
to the services of such children and obilges himself
to support, maintain and educate such children.-Ib.
218. When a child is deserted by both parents
the primary responsibility for its support rests on the
father. Ib.

219. A husband remains liable for the support of
his minor children where he and his wife volun-
tarily separate and he consents to the children liv-
ing with the mother, or where the wife leaves him



222. Under the Act 27 April 1864, P. L. 641,
the Court of Common Pleas may, under peculiar
circumstances attending a proceeding in equity for
partition, allow plaintiff's counsel a fee of $1,000
for services rendered for the common benefit of all
the litigants.--Reifsnyder et al. v. Reifsnyder et al,



223. Gitt and Delone agreed with Johns to take
over his prope: ty, make specific payments and retain
the residue for their own use. They continued
Johns' business, and in due course Gitt endorsed
two notes in the business name; on which suit was
brought. Delone denied the existence of a part-
hership, and there was no evidence to that effect.
HELD, that the court below (Ross, J.,) properly en-
tered a compulsory non-suit.-Delone's Appeal, 41.

224. The "residue" could not be regarded as
profits, but as compensation of the assignees de-
pendent upon the skill and ability displayed in
settling the affairs of the estate.-Ib.

225. The fact that Delone retained some of the
collateral security given with the customer's note
has nothing to do with the question of partnership.
Under the agreement it was defendant's duty to col-
lect all indebtedness due Johns, for which they must
account as trustees.—Ib.


PLAINTIFF'S STATEMENT, 38-39, 54, 229,
233-238, 240-246, 251-253, 254-257, 258-259,
260-261, 262, 262a.


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

220. The assumed relation of father by a step-
father entitled him, on the one hand, to the services
of his stepchildren and entitled them, on the other,
to their support and education without remuneration.





226. The affidavit of defense to a suit to recover
balance due on a contract set forth a counter claim

for damages resulting from a stoppage of defend
ant's mill in order to repair constructive defects in
plaintiff's work. Plaintiff moved for judgment for
want of a sufficient affidavit of defence. HELD, that
the motion must be refused.-Sturtevant Company v.
York Card and Paper Company, 133.

227. Under the Practice Act of 1915, a counter
claim in the affidavit of defense must be met by an
answer, raising either a question of law or of fact.—

228. A motion for judgment for want of a suffi-
cient affidavit of defense cannot be used as a substi-
tute for an answer.-

229. When the statement, affidavit of defense, or
any other pleading is formally defective and not
in conformity with the provisions of the Practice
Act of 1915, the Court should be moved to strike
it off.--lb.

230. The contract in suit contained a clause pro-
viding that plaintiff shall not be held liable "in
any event for any special, indirect or consequen-
tial damages whatsoever." HELD, that such clause
would not relieve from liability for loss by reason
of wages of idle employees, and similar
during the necessary stoppage of a mill for repairs
to defective machinery.-Ib.


231. A proper amount of "overhead expenses"
has been held recoverable during the necessary stop-
page of work for repairs.-Ib.

[blocks in formation]

236. After the expiration of the term at which
judgment on demurrer was entered for defendant,
plaintiff asked for leave to amend the statement.
HELD, that the amendment must be refused.--Glat-
felter v. American Phosphorus Co., No. 2, 69.

237. Where a demurrer to a statement of claim
has been sustained and judgment has been entered
for the defendant, no amendment can be allowed
until the judgment has been opened or vacated.-lb.

238. An application to open or vacate a judg-
ment entered adversely, after a hearing or trial, must
be made before the end of the term at which the
judgment is entered.-Ib.

239. The law controling the opening or vacating
of adverse judgments has not been changed by the
Practice Act, 1915.-Ib.

240. Under the Practice Act of May 14, 1915,
a statement is not defective in that it does not set
forth the contract on which the plaintiff depends
and whether it is oral or written, where the action
is founded on a tort and the material facts are set
forth in concise form.-Sorrick v. Scheetz, 25.

241. The practice Act of May 14, 1915, P. L.
43, presupposes an action already brought in the
Court of Common Pleas. The statement is the first
step in the procedure when the action has been com-
menced.--American Lumber & Mfg. Co.
232. An item of loss in reduced product, indicat-minger Lumber Co.'s Receivers, 7.
v. Ens-
ing a loss of profits, is not necessarily excluded as
special and indirect under the clause of this contract
relied upon by the plaintiff.-Ib.


authorized by neccessary implication.--Ib.
242. Service of the statement is recognized and

243. There is no prohibition against filing the
statement before the return day, and defendant thus
may be compelled to file an affidavit of defence be-

233. Plaintiff's statement, in numbered para-
graphs, set forth that the contract was in writing; that fore the return day or before he is in Court pur-

was a

plaintiff resided in York; that defendant
beneficial association in York; decedent's member-
ship and death; designation of plaintiff as benefici-by serving a copy on defendant.—Ib.
ary; authority for such designation: notice and proof
of death and failure of payment by defendant.
HELD, that a motion to strike off the statement as
not in conformity with the Practice Act of 1915 must
be refused.-Ruth v. I. O. R. M., 153.

suant to the writ of summons.-
244. Service of statement of claim may be made

234. Where the plaintiff's statement is uniform
and clear, every defence whether of fact or of law,

245. Receivers of U. S. District Court may be
sued without first obtaining leave of Court.—Ib.

246. A statement that is not divided into para-
graphs, as required by the Act of May 14, 1915, P.
L. 483, will be stricken from the record in that
it does not comply with the Practice Act.-Confer
v. Smith, 130.

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.-Ib.
trespasss regardless of the personality of the parties,
whether individual or corporate, except as therein
designated, and municipal corporations are not ex-
empt from its provisions.-Sweeney v. Allegheny
County, 8.

243. Where the question of law raised by the
affidavit of defense disposes of the whole of the
plaintiff's claim, the judgment should be for the
defendant and not of nonsuit.- Raeder v. Stewart
Silk Mill Co., 175.

249. Where a statute is relied on for a defense,
the party relying on it need not refer to, or negative
an exception or proviso unless it is contained in the
enacting clause.-lb.

250. "The Workmen's Compensation Act of
1915 is constitutional.-Ib.

257. Absence of allegations of negligence on the
part of the defendant or its employees, or no aver-
ment of specific facts from which such negligence
could be inferred, if presented in an affidavit of de-
fense, might result in a judgment for the defendant,
a motion
but they cannot be finally ruled upon on
to strike off the statement.-lb.

258. Under the Practice Act of 1915, a state-
ment should disclose, for the information of the de-
fendant, the essential facts of plaintiff's case with a
copy of all accounts where that is made necessary
by the character of plaintiff's claim.-Robertson v.
International Textbook Co., 91.

259. Where the claim is for salary and commis-
sions and money expended, in accordance with a
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.--Ib.
Harding v. Heindel, 118.

252. Where, without any objections to the suffi-
ciency or legality of the statement and cause of ac-
tion, defendant enters bail, it is too late to raise ob-
jections subsequently and make them effective to
avoid the merits of the cause of action.-lb.

253. The allegation that the plaintiff is not the
owner of the property alleged to have been detained,
but only a bailee thereof, is one of fact which can-
not be decided as a question of law.-Ib.

260. In an action against a railroad company for
damages for injury by fire to property adjoining its
tracks alleged to have been caused by sparks from a
defective smoke-stack on a locomotive the plaintiff
should not be compelled to file a more specific state-
menut, although his stataement fails to give the num-
ber of the locomotive, the direction in which it
was going or the time of day, and avers that these
facts are unknown to the plaintiff-Shaeffer v.
Pennsylvania Railroad Co., 136.

261. A more specific statement will not be re-
quired in relation to matters as to which the defend-
ant should have as much knowledge as the plaintiff.

254. Plaintiff's statement alleged damages caused
by his wife swallowing a pin contained in bread
manufactured, sold and delivered to her. The de-
fendant moved to strike off the statement because-lb.
it failed to give the date of delivery of the bread
or the swallowing of the pin, or the value of the
wife's services, nor did it allege any negligence on
the part of defendant or its employes, or specify
any act from which negligence could be inferred.
HELD, that the rule must be made absolute.-Kohr
v. Fox Baking Co., 161.

255. The defendant is entitled to a sufficient
specific averment of the material facts of the case,
so as to enable it to understand the real nature and
extent of the plaintiff's claim.—Ib.

262. A statement in an action of trespass for de-
ceit is insufficient where it shows that the plaintiff
received a deed for certain lands described in
courses and distances and the averment of fraud
consists in the allegation that the "defendant, or his
agents represented that a contiguous tract was includ-
ed in the premises sold. The statement should set
forth the names of the agents, and also that the de-
fendant had knowledge that the agents had made the
false statements before the deed was delivered.
Fluck v. Heller, 24.

262a. Under the "Practice Act, 1915" an op-

256. It is the apparent purpose of the "Practice
Act of 1915" to require that material facts intend-portunity to amend the statement may be given.—Ib.
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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