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preceding had been, the lessce of offices on the third floor of a building owned, and oc

cupied in part, by the Leader Publishing ComTHURSDAY, AUGUST 30, 1917

pany, hereafter called the Leader Company,

in which he was engaged in the practice of COMMON PLEAS

law. Adjoining the Leader Building on the East is the Maeder Building, owned by the

defendant, with a common or party wall C. P. of

Alleghany Co.

between them. In the reduction of the Hern v. Maeder.

Hump" the City regraded Fifth Avenue

in 1912, whereby those two buildings stood Landlord and Tenant - Trespass-Lower. six or seven feet higher than the level of the

ing of Building - Change of Grade new grade. In order to conform to the new Independent Contractor - Liability of conditions the defendant decided to lower Municipality

his entire building, and the Leader Com

pany concluded to adjust its building, for
A lessee cannot recover damages from the the same reason, at or about the same time,
lessor in an action of trespass for unlawfully en-land more or less in conjunction with the
tering upon the demised premises and depriving
him of the use the eof for a certain period during work of the defendant. In order to drop
which the building was being lowered to comply or lower the party wall between the build-
with a new grade established by a city ordinanesings, leaving the Leader Building standing
when the work was under the control of an inde- as theretofore, it was necessary to cut the
pendent contractor.

A lessor is not liable in damages for incon- front and end walls and floors of the latter
veniences to his tenants where the inconvenience from the party wall. The defendant em-
was caused by the work of a contractor, who em- ployed a contractor to do the work, accord-
ployed his own methods and men in lowering aing to certain plans and specifications. The
building to comply with a new grade of a city Leader Company empioyed the same con-
street, when the lessor had no control over the
work, and there is no evidence that the lesson tractors, and it would seem that the work
knew or might have known, from reasonable in. Son both buildings were under the supervision
quiry, that his contractor, in doing the work com- of the same architect. The work of lower-
mitted to him, would infringe on any of the rights ing the defendant's building was begun first,
of his tenants.

and on the inception or beginning of the
A municipality is not liable in damages to a
lessee in a building lowered to comply with a

same and in the prosecution of that work, grade, where the inconvenience and dainage com defendant's contractors entered the corridors plained of was not the change of grade, but the or hallways of the Leader Building, utilized lowering of the building to comply with the grade. and contracted the hallway used by the Sur motion of plaintiff for a new trial. plaintiff on the third floor in reaching his

office, entered his offices, placed supports J. D. Hern and W. H. Lemon for plair-cherein and placed and extended certain tiff.

beams in and through the window or winBrown, Moore Monahan for defendant. dows of his office, whereby he was deprived

of the use and occupancy of his law offices May 31, 1917. HAYMAKER, J. – This for a period of three or four months. It is is an action of trespass to recover damages unnecessary to give a detailed statement of for unlawfully entering upon the demised the manner of doing the work necessary to premises of the plaintiff and depriving him accomplish the purpose that the defendant of the use thereof. At the conclusion of had in view, or to pass on the merits of the the trial we directed a verdict for the de- respective contentions. We are now confendant. The plaintiff's brief was not furn-Icerned only with the question whether there ished until the present month.

was evidence on the part of the plaintiff reWere we right in thus directing a ver- quiring a submission of the case to the jury. dict? A careful reading of the evidence The plaintiff testified that the defendant's and an examination of the authorities lead contractors invaded his leased premises withus to the conclusion that we were. The out his consent; that they so used his winplaintiff is a member of the bar of this dows that they could not be closed during county, and at the time of the commission of the cold weather; that the hallway was the grievances of which he complains he was, rendered practically useless, and that altoand for some seventeen years immediately I gether he was deprived of the use of his

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offices during the greater part of a period of an invasion of his leased premises in a several months.

manner for which the city is not responsible. Is the defendant liable for the acts of his Had his action been against the contractors contractor in doing the work either in a we would have had an entirely different negligent or non-negligent manner? We proposition before us. do not think he is. In the first place, to

The motion for a new trial is refused. successfully accomplish the work of cutting the defendant's brick building of some five or six stories high from the building of the Leader Company and then lowering it bodily some six or seven feet to the level of

O'Neil v. Heininger. the new grade, required special skill possessed only by persons following that line Accord and Satisfaction-Insurance, of business. There is no evidence that the defendant had any knowledge of the sub- To a statement filed by the liquidator of a deject. He was then obliged to do just what funct, live stock insurance company, averring any property owner would have to do, and holders for unpaid losses and expenses, defend

indebtedness by reason of assessments on policy had the right to do, viz: to employ persons ant filed an affidavit of defense averring agreepossessed of the necessary skill, and that he ment on the part of the plaintiff to accept $111.78 did. He then entered into a contract with in full satisfaction of all claims and the payment John Eichleay, Jr., Company to do the work of the same by check. Held, to be a sufficient for a lump sum. There is no evidence that the defendant knew, or might have known,

No. 353 January Term, 1917. from reasonable inquiry, that his contrac- Motion for judgment for want of suffitors, in doing the work committed to them, cient of defense. would infringe on any of the rights of the

R. S. Frey and M. S. Niles for motion. plaintiff as a tenant in the adjoining building. The contractors used their own means

H. O. Ruby, contra. and methods in respect of all the details of

August 6th, 1917. Ross, J.-- The plainthe work in the course of an independent tiff in this case was appointed as liquidator occupation and contract, without any control of the York County Mutual Live Stock Inover them by the defendant. The contrac-surance Company by the Dauphin County tors had possession of the buildings, so far Court, as set forth specifically in his stateas was necessary for their particular pur- ment of claim against the defendant, and as poses, without any control or direction of such liquidator, sues the defendant to rethe defendant, except to see that the work

cover the sum of forty-three dollars and was done according to the plans and speci- ninety-nine cents, with interest thereon from fications. We are of opinion that any injury the first day of May, 1916. suffered by the plaintiff was caused by the

The statement sets forth that "the York acts of John Eichleay, Jr., Company, who at that time sustained the relation of inde

County Mutual Live Stock Insurance Compendent contractor, for whom the defendant pany was chartered January 3rd, 1907," was not responsible. The defendant em- and thereafter and up to the time of its dis

"under the laws of Pennsylvania, ployed well-known, experienced and com solution transacted the business of live stock petent coutractors, in a kind of work of which the plaintiff had no knowledge; they

insurance in Pennsylvania. furnished their own men and materials, and

Its home office at the time of dissolution did the work in their own way, free from was located in York, York County, Pa. the control of the defendant. If the plain- By order of the Court of Common Pleas tiff was injured in the course of the work it of Dauphin County, Pa., in the cause Comwas not due to the failure of the defendant monwealth of Pennsylvania, Ex. Rel. Charles to discharge a duty that he owed him under Johnson, Insurance Commissioner, v. York the law. We cannot agree with the defend- County Mutual Live Stock Insurance Comant's contention that the plaintiff's remedy pany, Commonwealth Docket No. 4, 1916, is against the City of Pittsburgh. The the corporation was ordered and decreed plaintiff's complaint is not of the incon- dissolved and its affairs liquidated by and venience and damage to him caused by a under the direction of the Insurance Comreduction of the grade of the street, but for missioner of Pennsylvania, all in accordance

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with the Act of General Assembly of June C. P. of

Lackawanna Co. 1, 1911, (Pamphlet Laws 599)."

The statement also alleges in substance Bradigan et al. v. Scranton Railway Co. that the defendant was the holder of several Contributory Negligence-- Personal Injuries policies issued by the Company, one about - Street Car---(bvious Danger-Infant. the 13th day of April, 1908, one dated the 6th day of May, 1910, and one dated the

Where a boy twelve years of age was struck 25th day of February, 1911, and numbered and injured by a street car while trying to re

cover from the track a plaything known as a respectively 1197, 2442, and 3104, each "sling shot,” and he testified on the trial that he policy having been issued on the written ap- saw ihe approaching car, fully realized and calplication of the defendant and while the culated upon the risk involved, and would have

escaped injury but for an unforeseen slip of his corporation was a going concern.

foot, a verdict should be directed for defendant. The statement also alleges that “as requir- The presumption that a boy under the age of ed by the aforesaid by-laws and the condi- fourteen years is incapable of appreciating or tions of the policies, the defendant signed avoiding danger has no weight as against his

own avowal to the contrary. three promissory notes, one of which was

To the rule that a party is bound by his ow
part of each policy and attached to the afore-testimony, so far as its import is free from doubt
said application, agreeing to pay within and ambiguity, there is no exception in favor of
thirty days after notice to the York County a plaintiff under the age of fourteen years.
Mutual Live Stock Insurance Company Motion for judgment for defendant on
such sum; as the said Company required to the whole record.
pay losses of the defendant and each and all

W'. B. Landis for plaintiffs.
members and policy holders, and also to pay
expenses of the aforesaid Company, but with

Warren, Knapp, O'Malley Hill for

defendant. the understanding and agreement that the defendant was obligated to pay not more than June 26th, 1917. NEWCOMB, J.-There a total of $111.10 for losses and expenses was a mistrial by reason of disagreement of under policy No. 1197; $114.50, under policy the jury on the initial question as to how No. 2442; and $10.00 under policy No. 3104; the accident happened out of which the suit the said sums being the total of defendant's arose. This had been formally submitted liability in the period of three years, and and further instruction reserved to await likewise being the basis of assessments. the finding on that specific issue. Among

It is not necessary, for the purpose of the other things so reserved was defendant's represent inquiry, to further quote from the quest for binding instruction, the merits of plaintiff's statement, for the seventh para- which form the question now raised by this graph of defence avers as follows:

motion. "7. On or about the 24th day of March, Father and minor son sued for damages 1916, there arose between the parties to this on account of an injury suffered by the son suit a dispute as to the amount of the de- who was alleged to have been run down on fendant's liability to the York County Mu- the street by one of defendant's cars. tual Live Stock Insurance Company and it Their averment was that the boy, then in was agreed that the plaintiff would accept his twelfth year, was crossing the street and the sum of $111.78 in full satisfaction of the suffered the injury by reason of the excessive defendant's liability, whereupon the defen- speed of the car coupled with the omission dant made his check payable to the Statu- of warning by bell or otherwise. The proof tory Liquidator or his agent for the said was that the car was going at the speed amount, in full of all his liability by reason usual at that place, with which the boy was of the assessments levied upon him and his familiar, not to exceed ten miles an hour. connection with Insurance Company afore- and that at all times with which the case is said, and said check was accepted as such by concerned it was not only in plain sight but the plaintiff, as evidenced by the endorse- he was in fact looking at it and taking ment on the back of said check."

special note of its approach. Neither did he This, in our opinion, is such a complete claim to have been crossing the street, averment of accord and satisfaction, that it While the accident occurred near a flagmust prevent the entry of any judgment on stone crossing-not one, however, at a street the pleadings alone.

intersection--that fact is without signifiThe motion for judgment for want of a cance. The place of the accident was on sufficient affidavit of defense is refused. East Drinker Street, running east and west,

dant, and a

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in the Borough of Dunmore. The railway when you got to that point and looked track is single and laid on the southerly side you saw the car coming? A. Yes, sir. Q. of the street. The car was eastbound. Ac- And the car was down a little way? A. cording to all the adult witnesses--appar. Yes, sir. Q. And you thought you could ently disinterested and unbiased--the accident get across ahead of the car? A. I thought was the result of the boy's attempt to jump I would have time to pick up the sling shot. on the car as it passed. The request for Q. But when you started to cross the binding instruction, however, was based upon track ahead of the car you saw the car comhis own version of the thing. According to ing? A. Yes, I saw it coming when I that he went on the track to pick up a play- was at the place and then I shot. Q. thing under circumstances which would pre- And you knew the car was coming then, clude recovery by an adult for his own didn't you? A. Yes, Sir. Q. And when temerity. The allegation of excessive speed your sling shot dropped you thought you was abandoned at the argument and the could get it and get out before the car could contest, therefore, now reduces itself to the catch you? A. Yes, sir. Q. And you narrow inquiry whether the question of the knew if you did not get across in front of it boy's capacity to avoia a manifest peril must--you knew the car would catch you and be submitted to the jury as a disputable in- injure you, didn't you? A.

A. Yes, sir. ference of fact notwithstanding his own Q. And knowing that, you went in to get avowal that he was fully sensible of the the sling shot and while you were there your danger, had calculated upon it, and would foot slipped ? A. Yes, sir." have made good his calculation and escaped the injury but for an unforeseen slip of his foot, of an impulsive child, either unmindful of

This describes no thoughtless, heedless act That he is a bright boy is neither disputed his surroundings, insensible of the risk he nor disputable. On the stand he made plain that he would resent any imputation was running, or incapable of appreciating to the contrary. He was not without self. and avoiding it. Taking him at his word, assurance and on occasion could make shift his account of the casualty leaves no debatato lecture counsel in order to keep him ble question either of his knowledge, preswithin what he conceived to be the bounds ence of mind, or capacity to choose as of proper cross-examination.

between the place of safety and that of Being on the southerly sidewalk with three danger; for his act was one of deliberation companions, he claimed to have been amus

done in pursuance of specific calculation ing himself with a sling shot by shooting

as to his ability to escape a conscious peril, pebbles at a dog on the opposite side of the which miscarried only through the untimely street. The car came into view nine hun- slip of his foot-- a remote chance upon dred feet to the westerward. He noted its

which he had not calculated. approach and the identity of the conductor, A boy's capacity is the measure of his rewhom he was at pains to have it understood sponsib lity; and if he has not the ability to he well knew, because he had traveled on his foresee and avoid the danger to which he car "and paid my own way too, many's the may be exposed, negligence will not be imtime."

puted to him if he unwittingly exposes himHe took his last shot after noting that self to it; Kelly v. Traction Co., 204 Pa. the car

was about one hundred and fifty 1623. Under the age of fourteen years feet distant. What damage was done to is entitled to the benefit of the presumption the dog, if any, does not appear; but the that he is without capacity. But this

, like shot proved to be the undoing of his weapon. any other presumption of fact, is rebuttable The elastic parted company with its fixture and that gives rise to the general rule that and landed on the track near the farther the defendant in such case assumes the rail.

In chief he accounted for his injury burden of affirmative proof in order to overin this way: "Q. Did you notice the come the negative presumption. It follows street car coming when you went out to get that where the countervailing proof comes the rubber band? A. Yes, sir; but I thought from sources supplied by defendant, or, for I would have lots of time to get over and that matter, from any source except the have the rubber picked up, and if I didn't mouth of plaintiff himself, it must inevitably have slipped I would."

be circumstantial and as such would furnish Cross-examined more at length on the ground only for an inference of the essential point he testified as follows: "Q. And fact to be drawn only by the jury.

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Daniel S. Bittenger, Atlantic City. He Work Legal Record

also leaves a sister, Mrs. Louisa Young,

THURSDAY, SEPTEMBER 6, 1917. No. 17 Ex-Judge John W. Bittenger was born

at York Springs, Adams County, Nov. 10,
But that is not this case. The fact of 1834, son of Henry and Julia A. Sheffer
ability and capacity is distinctly avowed Bittenger. He was descended on both his
here by the plaintiff. Thus the presump- paternal and maternal sides from patriotic
tion vanishes, and to submit the question of soldiers of the Revolutionary war. He
his negligence would be simply to accord the acquired his elementary education in the
jury the privilege of an arbitrary and un public schools, at the Academy at Strasburg,
founded inference to the contrary of plain-Pa., and at Rockville, Md., which was sup-
tiff's unequivocal assertion upon a point plemented by a partial course at Pennsyl-
whereof he alone can speak decisively. To Ivania College, Gettysburg. While study-
the rule that a party is bound by his own ing at Pennsylvania College he registered
testimony, so far as its import is free from with Moses McClean, of Gettysburg, as a
doubt and ambiguity, there is no exception student at law.
in favor of a plaintiff under the age of four-

He subsequently went to Rockville, Md., teen years.

where he finished his legal studies in the It is believed that defendant's request for office of W. Viers Bonic, subsequently binding instruction should have been affirmed, judge of the circuit court of that county and the rule for judgment is accordingly and was admitted to the bar of Montgommade absolute. Let judgment be entered ery county in 1856. In that same year Mr. for defendant on the whole record, with ex- Bittenger enterei Harvard Law School and ception for plaintiff, sec. leg.

was graduated in 1857 with the degree of LL. B. He then went to Lexington, Ky.,

and entered upon the practice of his proOBITUARY.

fession, remaining in that state three years.

Attorney Bittenger removed to York in

1860, being identified with its bar and judicJohn W. Bittenger.

iary until the time of his death. In poliEx.Judge John W. Bittenger, of the tics he was always a Democrat, having York County Courts, who occupied the been a leader and campaign orator in the bench for a period of twenty-one years, died Democratic contests in York county. In at 4:45 p. m., Monday, August 27, 1917, 1862 he began his official career with the at his residence, 36 North Duke street, nomination for and election to the district York, Pa. Death was caused by chronic attorneyship of the county, at the end of his nephritis. He was confined to his bed only first term being re-elected. a week. The deceased was in his eighty- In 1888 Mr. Bittenger represented his

party in the national convention at St. Louis. Since his retirement from the bench, in In November, 1890, he was appointed by 1911, Judge Bittenger practiced law. He Governor Beaver to fill the vacancy occashad gained for himself a state-wide reputa- ioned on the bench by the death of Judge tion as a leader in his profession. He was John Gibson. The same year Mr. Bittenger president of the board of trustees of the became the nominee of his party for the York County Academy and a member of judgeship. He was elected at the NovemTrinity Reformed Church. Among the ber election and in 1900 was re-elected by a orders with which he was affiliated, are: handsome majority, the Republican party York Lodge, No. 266, Free and Accepted having endorsed him in convention and Masons; Mt. Zion Lodge, No. 74, I. 0. made no nomination against him. From O. F.; Mt. Vernon Encampment, No. 14, 1895 until his retirement from the bench I. O.O. F., and Conewago Tribe, No. 37, he acted as president judge of the York Improved Order of Red Men. He was County courts. also a member of the York Club.

The funeral was held on August 29th, The deceased leaves the widow and four 1917, with services conducted by the Rev. children: Ida M. Bittenger, at home; Mrs. Samuel H. Stein, pastor of Trinity ReformJ. A. Hollinger, 108 South Water street; ed Church, at 2 p. m., at the house.

InterMrs. G. G. Morgan, Richmond, Va., and ment at Prospect Hill Cemetery.

calculation scious peril, ne untiinels nance upon

e of his re e ability to ) which he

third year.

not be im iposes him 3., 204 Pa. n years he resumption it this

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