Work Legal Record

Vol. XXXI

C. P. of

Lancaster Co.

o'clock p. m., left that place on a car of the defendant company for his home. Not paying to the conductor his full fare to Lan

THURSDAY, JUNE 21, 1917 No. 6 caster, but only ten cents, he was told to leave the car at Refton Station. In his examination-in-chief, he testified that, when Vickers v. Conestoga Traction Co. the car reached Refton, the conductor "got hold of me and he put me off." On crossDamages-Negligence-Intoxication-Duty examination, he said he got off at Refton on of railway employees--Evidence-Pre- the platform side. However, it is of little ponderance of.

A plaintiff whose suit is grounded on alleged negligence must not only establish the negligence by a preponderance of evidence but show that it was the cause of the injury and the negligence proven must be that alleged in the statement and

no other.

consequence, so far as this case goes, whether he got off or was put off, and nothing that the Court said or omitted to say on this subject can in the least affect the result. In fact, none of this evidence should have been introduced, and it would not have been admitted if objection had been raised. Sufficient for this case is it that he was off the car at Refton, and that he had alighted from it There is no speccial duty on the part of a trac-in perfect safety. What happened theretion company to maintain a lookout for intoxicated after is the important part. After a time, persons, and it discharges its duty when its em- and while he was standing at or near the ployees, after discovering them on or near the track. exercise reasonable care to avoid injuring

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.

them.

Refton Station, a car came along, going
towards Quarryville. It has been testified
that it was the same car that had brought
the plaintiff to Refton, as that car ran to
Beaver Valley Junction, and then, as was
its custom, returned to Quarryville. When
this car came along, the plaintiff says he
was four or
and that he signaled with his left hand to
five feet away from the track,
the motorman in charge. According to his

A preponderance of evidence does not mean the greater number of witnesses but the greater credibility of the evidence on the one side, and although the jury may believe the story of one witness, against several, the testimony of one witness uncorroborated, particularly if interested, should be considered with great care, and ordinarily, where contradicted by a number of wit nesses, some of whom appear to be disinterested, and no good reason appears for disbelieving them, the jury should not arbitrarily disregard story, the car came to a full stop, and, while that preponderance.

Rule for a new trial.

C. E. Montgomery for rule."

S. R. Zimmerman and John E. Malone,

contra.

This

it was standing still, he put his left foot on the step and grasped with his hands the handle bars on each side; that then the car gave a quick jerk and threw him violently against the hind end where he had his hold with his left hand, and then he flew the January 13, 1917. LANDIS, P. J.-In opposite way, the lengthway of the car, forthis case, the question involved was purely ward and sideways, and he kind of threw one of fact, and as such it was submitted to his right hand out, and his hand got under she jury. The trouble that now arises for the car or was injured by the car. the plaintiff is not so much the alleged error was the ground upon which the plaintiff on the part of the Court as that the finding claimed to recover, for his statement reads of the jury was in favor of the defendant. that, "while said plaintiff was in the act of All of the ten reasons assigned are to the mounting the steps and getting on the rear charge of the Court and the answers to the end of the car, at a time when the car had defendant's points, and at least some of come to a full stop, said company, defendthem have no bearing upon the real point ant, did unlawfully, negligently, carelessly raised therein. and improvidently start and move said car The circumstances surrounding the ac-more or less violently and in a very sudden cident, as claimed by the plaintiff, can be briefly told. On September 25, 1915, the plaintiff, who was a carpenter, living in Lancaster City, was working as a laborer or mortarman at Quarryville, in this county. After his work was done, he, about nine

manner, before plaintiff had safely gotten thereon, or had been afforded a reasonable time to get safely thereon, or had been safely received as a passenger, whereby he

was seriously and permanently injured," and added that the plaintiff was "hurled violently

to the ground, with his right arm under the car." This, then, being the cause of the injury as alleged in the statement, the plaintiff was bound to convince the jury of its truth, before he could recover at all. Now, why should there be a quibble as to whether the car went over his hand in whole or in part? It surely caused the accident, and that, as was said to the jury, every one admitted. If it did not, why was the plaintiff before the Court, charging the defendant company with negligence?

must have been thrown from the car by the sudden starting and jolting of the car and thus injured, and if they so find, and only then, they may render a verdict in his favor. When I say a car which he had a right to enter, it is not disputed, of course, that he had a right to stop that car and get on it on that night, if that is what he was doing." We are of the opinion that this is a fair statement of the law upon this subject, and if it is not, we shall be glad to be set right.

The statements of the evidence, which are complained of in the third, fourth and fifth reasons, will, on reference to the Notes of Testimony, be found to be fully sustained. The testimony of John E. McFalls in relation thereto is contained on page 61; that of Harry E. Donahue on pages 68, 69 and 70; and that of Amos H. Shaub and John P. Gerhart on pages 78 and 80. But, even

some degree, it nevertheless remains that the principal issue involved in this case was fully and fairly submitted to the jury.

The affirmance of the defendant's first, second and third points is in accord with the authorities. The first point reads: "If the jury believe that Joseph M. Vickers, the plaintiff, at the time of the accident, was intoxicated, and would not have been injured if he had been sober, and that the motorman did everything in his power to stop the car to prevent the accident, then the verdict

In Brickwood Sackett's Instructions, Vol. 3, pl. 3740, it is stated that the jury shall not consider the question of damages until they have determined: "* * Second, whether the defendant was guilty of the negligence charged in the declaration;" and in Black's Law and Practice in Accident Cases, sec. 222, that "there cannot be a recovery upon a ground of negligence not if inaccuracies of statement were made in alleged." In Kepner v. Harrisburg Traction Company, 183 Pa. 24, Mr. Justice McCollum said: "The general rule is, that the plaintiff, whose suit is grounded upon the alleged negligence of the defendant, must not only establish the negligence by competent evidence, but he must show that it was the cause of the injury for which he sues." It has also been decided that the statement in an action for negligence must set forth with particularity the defendant's acts on which negligence is predicated and the cause and nature of the inquiry; mere of the jury must be for the defendant;" and general averments of negligence are not suf- the second point: "If the jury believe that ficient. Now, what were the instructions the plaintiff, at the time of the accident, of the Court to the jury as to his right to was intoxicated and was sitting west of the recover? After a full statement of the Refton Station thirty-five or forty feet, plaintiff's version of the manner in which close to a pole, and near the tracks of the the injury occurred, the Court said: "Only defendant company, and pitched forward in if the jury find that the car stopped and the front of the car because of his intoxicated plaintiff was on the step, attempting to enter, condition, and thus caused the injury to his and that the conductor signaled and the car right hand, then the verdict of the jury started violently and threw him off and his must be for he defendant." In Wynn v. arm got under the hind wheel of the car Allard, 5 W. & S. 524, it is held that "a and was mangled, can there be a verdict in plaintiff in an action of trespass is not enfavor of the plaintiff. That is the cause titled to recover damages for an injury done which the plaintiff sets forth in his state- to him which was the consequence of his ment as having caused his injury, and he own negligence as well as that of the decan recover for this and nothing else. If fendant," and in Black's Law and Practice the accident was caused in any other way in Accident Cases, sec. 344, it is said that than is asserted by him in his statement, the "intoxication on the part of the injured perverdict must be in favor of the defendant." son does not per se establish contributory And again: "The jury must, as we have negligence, but it is a circumstance that may said and we again repeat, find that he was be considered as bearing upon the question attempting to get upon a car which was of plaintiff's due care. Intoxication is not standing still when he made the attempt and a defense, unless it was the proximate cause which he had a right to enter, and that he of the injury, because a drunken man is not

beyond the protection of the law:

cases. The burden of proof is on the plain" bur, if plaintiff's intoxication contributed to tiff to prove negligence, and the mere fact the injury, he cannot recover, because the of injury will not in general raise such preplaintiff's intoxication is no excuse for his sumption. It is the duty of the driver to own negligence." In Wharton on the Law | watch, and to have his car under as comof Negligence, pl. 332, it is laid down that, plete control as the necessary motion of it "where the injury is a consequence flowing will permit, and his attention should be diin the usual course of events from the plain-rected steadily to the track ahead of him to tiff's misconduct, then the plaintiff cannot observe its condition and any danger that recover. Thus, an intoxicated person, or a may threaten either his car or the public; person driving recklessly, cannot recover for Reilly v. Phila. Traction Co., 176 Pa. 335. an injury caused by a collision with an ob- It must be, however, remembered that the ject negligently on the road, because, in the plaintiff does not contend that he was inusual course of events, a person who is jured in this way, for, according to his drunk, or drives recklessly, precipitates him-statement, he was attempting to enter a car self against whatever is in his way, and as that was at a full stop, but which was sudsomething in any ordinary drive will be in denly started, thereby causing the accident. his way, the question of the defendant's The point as stated was really only a thenegligence is immaterial." In Hershey v. oretical proposition, legally correct, but one Road Commissioners of Mill Creek Town- which neither helped nor hurt either of the ship, 9 Atlantic Reporter 452, the Court parties, and it might well have been omitted. below charged that: "If the parties were on The answer to the fourth point was a debauch, and find from the evidence that, rather in the interest of the plaintiff than but for the drunkenness of Briggs, the the contrary. It sets forth that the plainaccident would not have happened, then, tiff was bound to show by a preponderance notwithstanding the neglect of the town of evidence, that the injury to him occurred authorities, the plaintiff will not be entitled by him being thrown from the car by the to recover in this case." On appeal to the Supreme Court of this state, this ruling was affirmed. Again, in Munley v. Hull, 3 Lackawanna Jurist 277, Archbald, P. J., held that "intoxication is evidence that should go to the jury on the subject of negligence, and, if found to be the cause of the accident, the plaintiff cannot recover."

sudden jolting of the same, and in no other way. As this was the cause assigned in the statement, the law of the point was manifestly correct, and it was, therefore, affirmed. But it will be remembered that the plaintiff was the only witness who testified on his part concerning the manner in which the injury was brought about, and, thinking The proposition as contained in the third that the jury might misunderstand what point seems to me to be a correct statement was meant by a preponderance of the eviof the law. That point reads: "The rule dence, the Court proceeded to explain it. of law is, that there is no special duty on the It was said that a preponderance of the part of a traction company to maintain a testimony did not mean the greater number lookout with a view of promoting the safety of witnesses called on any one side, as a of intoxicated persons, but that the railway jury might believe one witness and disbelieve company discharges its duty when its em- a number of contradicting witnesses, if they ployees, after discovering them lying upon were convinced that the one witness, from the track, or near it, in front of their ad- his manner of testifying, the opportunities vancing car, exercise reasonable care to avert which surrounded him and the general facts injury to them." It certainly is not pre-appearing in the case, had told the correct sumed that the employees having the cars in story. But we then added the caution concharge will find intoxicated persons along the track, and, therefore, the company must maintain a lookout to promote the safety of such persons. It is undoubtedly true that, if, in the course of the employment, and while performing the duty required of him, an employee shall see such persons on or along the track, he cannot ruthlessly run them down. He must exercise reasonable care to avert injury, the same as in all other

tained in Cromley v. Penn'a R. R., 211 Pa. 429, that the testimony of one witness, uncorroborated, particularly if interested, should be considered with great care, and under all ordinary circumstances, where one interested witness, unsupported, is contradicted by a number of witnesses, some of whom appear disinterested, and no good reason appears for disbelieving them, the preponderance of the testimony inclines to

that side, and the jury should not arbitrarily | yet it does not appear from the report of the disregard that preponderance of the testi- case that the sufficiency of the statement was mony. Mr. Justice Fell, in that case, said: ever questioned. Nor is the present case "Only one witness testified that there had been a stop; five witnesses, who had a better like Griswold v. Gebbi et al., 126 Pa. St. opportunity to see what happened, testified 353. That case was a very close one, and that there had been no stop. If there was Mr. Justice Mitchell said that the liability nothing in the manner of defendant's wit- of the defendant for the acts of her agent nesses to throw doubt on their testimony, was not involved in the decision. Referring the preponderance of the testimony should to that subject, he said: "But the question have led the jury to find for the de- does not really arise, as there was testimony fendant, and on their failure so to find, the not only that the defendant knew of the Court should have granted a new trial." preparation of the circular by her agent, See, also, Anderson v. Pittsburgh Railways but also that she had herself given it to Co., 251 Pa. 517. parties who inquired about the property." An examination of the testimony will, we Again, the same judge, in Freyer v. Mcthink, conclusively show that the plaintiff Cord, 165 Pa. St. 539, referring to the was intoxicated and thus brought about his case, said: "Griswold v. Gebbie was said injury. The jury, after carefully consider- to be a very close case, but attention was ing the evidence, so viewed the case, and called in the opinion to the fact that the properly found for the defendant. The defendant not only knew of the preparation rule for a new trial is therefore, discharged. Rule discharged.

Fluck v. Heller
Trespass for Deceit -Sufficiency of State-
ment-Practice Act, May 14, 1915, P.
L. 486.

A statement in an action of trespass for deceit 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 included in the premises sold. The statement should set forth the names of the agents, and also that the defendant had knowledge that the agents had made the false statements before

the deed was delivered.

Under the "Practice Aet, 1915" an opportunity to amend the statement may be given.

Trespass to recover damages for deceit.

Smith, Paff & Lamb and Russell N Koplin for plaintiff.

James T. Woodring for defendant. January 1, 1917. STEWART, P. J.-This is a question of law raised by the defendant in his affidavit of defense as to the sufficiency of the statement of claim under section 20 of the "Practice Act, 1915," P. L. 486. Plaintiff claims that his statement is founded upon Martachowski v. Orawitz, 14 Pa. Super Ct. 175. That case, however, is not at all similar to the present case, and while Judge Porter did say "the statement on de murrer must have been adjudged sufficient,"

of the deceptive circular by her agent, but had herself given it to some parties who inquired about the property. That element is entirely wanting in the present case. There is no evidence that either the defendant, or Graham, her agent to prepare the deed, knew of any fraud, if in fact any fraud was committed." When we turn to the statement in the present case, we find that the defendant was the owner of the tracts described in paragraph one, and we find that by paragraph twelve those tracts were conveyed by deed to the plaintiff and described by courses and distances. The allegations of the plaintiff, without quoting fully, are as follows: "the defendant, through his agents," represented that the contiguous tract described in paragraph second, also belonged to the defendant; "that in pursuance of the solicitations of the defendant, or his agents, the agents of the defendant" showed certain land to the plaintiff; "that the defendant or his agents unlawfully, fraudulently and deceitfully did represent and state to the plaintiff, with intent to deceive the plaintiff, that the defendant was the owner of all the real estate," &c.; that the defendant was not the owner of the real estate, &c.; that the fact that the "defendant did not own part of the land was well known to the defendant, or his agents"; "that the defendant, or his agents, made such unlawful, fraudulent and deceitful representations to the plaintiff with the intent that they should be acted upon by the plaintiff." All the averments, with the exception of the one in paragraph fifth, are in

No. 7 Tort-Statement-Sufficiency of-Act of
May 14, 1915, P. L. 483.

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 ac-
tion is founded on a tort and the material facts
are set forth in concise form.
Rule to strike off statement.
Harnish & Harnish for rule.

B. F. Davis, contra.

the disjunctive; that is to say, "the defendant, or his agents." Nowhere is the name of the agent given. The foundation of this action is moral turpitude on the part of the defendant. That must be averred and proved before the plaintiff can recover. If the transaction was by the defendant and his agents, it should be so stated. If the false representations were made by the agent, knowledge that they were so made, and that the defendant knew that they were false at the time the agent made them, must January 13, 1917. HASSLER, J.-This be brought home to the defendant. The is a rule to strike off a statement filed under plaintiff must have known just what land the Act of May 14, 1915, P. L. 483. The he received. His deed must have told him Act requires that the statement shall set that. If the agents represented that the forth the material facts, upon which a plainBoyer tract belonged to Heller, before the tiff relies to recover, in a concise form and plaintiff can recover he must aver in his that it shall state whether the contract on statement, and prove on the trial, that which the plaintiff depends is oral or in Heller knew that the agents had made the writing. In this case, however, it does not false representations before he gave the appear that the plaintiff depends upon an deed. This is the plain doctrine of Freyer express contract. The statement sets forth v. McCord, 165 Pa. St. 539: and Keefe et that he was the owner of eight pigeons, ux. v. Sholl, 181 Pa. St. 90. The plain which he left in the possession of the defendtiff must know the names of the agents, ant when he ceased to be employed by him. what they said, and when they said it, and He subsequently directed the defendant to must also know whether Heller had knowl- ship them to him, and on defendant's failure edge of their statements. If he cannot truthfully aver these facts, he ought not to put the defendant to the trouble and expense of going to trial, because he could not recover. It would not be right to enter judgment for the defendant without giving the plaintiff an opportunity to amend, if he

can.

If the plaintiff shall amend his statement within fifteen days from this date, in conformity with the views above set forth, the defendant shall file his affidavit of defense to the averments of fact in said statement within fifteen days after service of the amended statement upon him. If the plaintiff shall fail to file his amended statement within the time set forth, upon motion of the defendant, the prothonotary shall enter judgment for the defendant and against the plaintiff.

to do it, he, or by his agents or attorneys for him, demanded the return of the pigeons, which the defendant failed to make. He further alleges that defendant has converted and disposed of said pigeons to his own use.

The act of the defendant in converting and disposing of the pigeons which are the property of the plaintiff, though in his, the defendant's possession, to his own use, is a tort. The plaintiff can, however, waive the tort and sue in assumpsit for money had and received; Finney v. McMahon, 1 Yeates 248; Dundas v. Muhlenberg's Executors, 35 Pa. 351; Zell v. Dunkle, 156 Pa. 353; Barley v. Beegle, 29 Sup. 635; O'Neill v. Brown, 17 D. R. 1062.

Under these circumstances the statement the contract and allege whether it was oral is not defective in that it does not set forth or written, as the material facts upon which the plaintiff relies to recover are set forth in a concise form. The fact that he brought them to defendant's place of business through an arrangement need not have been set forth in the statement, but it is not defective be