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to her, knowledge of such fraud or want In that case it was clearly proven that of consideration."

the plaintiff took the notes, sued on, in In charging the jury that "there is no payment of an antecedent debt. In this legal evidence in the case at all from case the plaintiff's testimony leaves it which you could infer any such thing as entirely to conjecture as to whether that; for whatever may have taken place these notes were given to and received between S. B. Gleason and the defendant, by her in payment of or only as security David W. Crider, there is no knowledge for the antecedent debt of her husband. if it brought home to this plaintiff and She testified: “I got them from Mr. if she be the holder of these notes, ac- Gleason on January 9th, Toth, 1890." cepted by her in payment of the debt of "He brought them in and said, 'this is for her husband to her, she is entitled to re- you.' Being admonished that her huscover the amount of these notes with in- band's declarations were not evidence in terest from the defendant, David W. her behalf, she went on “I got them from Crider."

Mr. S. B. Gleason." "For his indebtedJames Kell and H. L. & G. G. Fisher ness to me.” And this is all the testifor motion.

mony on the subject. Yet this very ques

tion whether the notes were given and reStewart, Niles & Neff, contra.

ceived in payment of an antecedent debt, March 26, 1894. LATIMER, P. J.-- or merely as collateral security is of conThe plaintiff was the payee and the de- trolling importance, even regarding the fendant the maker of the notes sued on. plaintiff as occupying the position of an

Ordinarily, in a suit between payee and endorser instead of payee. For the holder maker, even of accommodation paper, of a negotiable note who took it before fraud or want of consideration is a good maturity in payment of a pre-existing defence.

debt, cannot be 'subjected to equities This case was tried on the theory that which might furnish a defence between the plaintiff—under the peculiar facts original parties, of which he had no notestified to by her-stood in the same tice. But if the paper be taken as colposition as would an endorsee for value lateral security, merely, for the anteceof accommodation paper, and was an in-dent debt, the defendant may aver any nocent holder for value. Snyder vs. Elli- ground of defence which would have ott, 2 Penny 474, was the authority relied been competent between antecedent paron, That, too, was a suit by payee ties; Kirkpatrick vs. Muirhead, 16 Pa. against maker. Holt was indebted to El- 123; except want of consideration which liott and procured Snyder to make his ac- is not available as a defence to accommocommodation note for the amount. In- dation paper except between payee and stead of making his note payable to maker; Lord vs. Ocean Bank, 20 Pa. Holt's order, to be by him endorsed and 386; Cummings vs. Boyd, 83 Pa. 372; delivered to his creditor, Elliott, Snyder's Bardsley vs. Delp, 88 Pa. 420; Rozer vs. note was made payable directly to Elliott, Bank, 83 Pa. 248. who, having accepted it in payment of Moreover according to the testimony Holt's debt, was held to be an innocent of defendant, the notes were given by holder for value unaffected by any equi- him to Gleason not as accommodation paties between Holt and Snyder. The case per but for a restricted but undisclosed is unique. Extended search has failed to purpose, and fraudulently diverted therereveal any case like it in its peculiar facts. from by Gleason. In such a

case the At the trial it seemed to govern this question whether or not the note was case, but mature reflection has led to a made as claimed and whether it was different conclusion. The facts were transferred in payment of a pre-existing widely different. In that case the defence debt or as collateral security therefor, are set up was manifestly insufficient even to be submitted to the jury; Cozzens vs. between original parties. In this case the Middleton, 118 Pa. 622; Carpenter vs. defence sought to be established by de- Bank, 106 Pa. 170. fendant's testimony was not only want of It follows from what has been said consideration, but such a fraudulent use that there was error in the charge of the of the notes sued on as would avoid them Court, and in taking the case from the as between original parties.

jury on the admitted evidence which can

only be remedied by a new trial, at which tiff brings this suit to recover from the the controlling questions in the case, in- township of Dover damages which she cluding that of the competency of the has suffered by reason of the death of witnesses, can be properly determined. her husband, which she avers in her Rule for new trial made absolute. narr., and has introduced evidence here

to prove, was occasioned by the negliWorley v. Dover Township.

gence of the township of Dover in the Bridges-Guard railsNegligence. maintenance of its highway in such a

Deceased was being driven in a closed car. manner as the law requires the highways riage across a bridge in a public highway in de- to be maintained. fendant township. The bridge was sixteen feet The facts in the case are in a very limwide, about ten feet long, and three feet above ited compass. They are practically unthe water, with no guard rails or barriers at the sides. While on the bridge another vehicle, disputed so far as relates to this acciin attempting to pass decedent's conveyance dent, and to its causes, and to its consefrom the rear, collided therewith, and the quences. It seems that Mr. Worley was horses shying, the latter vehicle was thrown riving along a public road in the townover the side of the bridge into the stream, re

ship of Dover-a road which it was the sulting in the death of the deceased the next morning. The jury having found the defen- Juty of the township of Dover to keep in dant township was negligent in not maintain- proper repair and condition-on a Suning guard rails at the sides of the bridge, and day afternoon, or a Sunday about noon, rendered a verdict for the plaintiff, Held, that returning from a funeral. He was in a a new trial will be refused.

A request to charge the jury that even if the rockaway driven by Mr. Welcomer, and jury believed from the evidence that the de- as they drove along this road they came fendant township was negligent in not main to the bridge which has been described by taining guard rails or other barriers at the the witnesses in your hearing.

The bridge where the injury was received, then be- bridge seems to have been not in the midcause said injury was received through the con- dle of the road, but at one side of the currence of said negligence with an extraordinary and outside cause not likely to be foreseen road-3 or 4 feet from the fence on the by ordinary forecast, to wit: The violent strik-left hand side, and 16 feet or more from ing of the vehicle containing the deceased by the fence on the right hand side, and another vehicle driven in the same direction by about 8, 10 or 12 feet from one abutFrank Stambaugh, their yerdict must be for ment to the other, about 16 feet in width, the defendant, was properly refused.

If, in the ordinary use of the street, one had from side to side of the bridge, and about been crowded over the bank by the volume of 3 feet or 3 and 1/2 feet high above the travel, the sudden shying of his horse, or the water. The bridge had no guard rails at accumulation of ice in the roadway, the ab- either side. Mr. Welcomer was driving sence of the barrier might justify a recovery, i if the plaintiff was not guilty of contributory quite fast, he said; and just after he negligence.

Trove on the bridge he says that the The accident which resulted in plaintiff's de- rockaway in which he was sitting was cedent's death, occurred in the usual and ordi- struck by a vehicle driven in the same nary use of the highway, from an ordinary direction and coming on the bridge beusual cause, which should have been guarded hind him, and the wheel of his rockaway against. Where the facts are not in dispute the question of proximate cause is for the was more or less broken ; his horse frightCourt, not for the jury.

ened, and commenced to jump, and the The supervisors of a township must afford carriage in which he and Edward Worley an easy, convenient and safe passage to per- , were sitting fell, or was thrown over the sons traveling on the township roads, by day side of the bridge into the stream, nearly or by night; and where there is special peril involved, they must provide such protection as upside down. Mr. Worley struck upon will make it safe for travel even with horses his head and shoulder and broke his neck, that are easily frightened.

in consequence of which the next mornMotion for new trial.

ing at 3 o'clock he died. On the trial of the case, the Court, The plaintiff alleges that the township Latimer, P. J., charged the jury as fol- of Dover was negligent in not providing lows:

proper safe-guards upon this bridge, Gentlemen of the Jury. The plaintiff as to make its use by the public, and by in this case is Leah Worley. She is the those traveling over

traveling over it, safe. widow of Edward Worley. The defend- alleges furthermore that the cause of ant is the township of Dover. The plain- this accident--the efficient cause—that

SO

She

Vol. VII. THURSDAY, MARCH 22, 1904.

York Legal Record. part of it in a reasonable condition of

safety, and what is reasonable safety vaNo. 41. | ries with the particular facts of each par

ticular location. They are bound to rewhich produced it—that without which it gard the peculiar location of the road, its would not have occurred, was this very proximity to places of peril, and the kind negligence in the township or what she and amount of travel that it accommosays was negligence in the township, in dates. They are bound to reasonable and not maintaining guard rails at this place, ordinary care, according to the circumand that if there had been guard rails stances. Where no danger is to be antithere, the accident would not have oc- cipated, or the peril is but slight, then a curred; for whether the falling over of less degree of care suffices than where the carriage was occasioned by the vio- the danger is manifest. They must aflence of the blow, or the frightening of ford an easy, convenient and reasonably the horse, the plaintiff says that if safe safe passage to persons traveling thereon and efficient guard rails had been main- with horses and wagons, and they must tained at that point, the rockaway could do whatever is necessary to secure that not have got over the side of the bridge. end, so as to make the road reasonably

The defense does not deny any of the safe and convenient by day and by night. facts alleged in regard to the condition of In cases where there is special peril inthis bridge. There is no dispute about volved, such as precipice, or steep declivthe size of the bridge, or the height of ity, or a bridge sufficiently elevated to the bridge, or the want of guard rail, or lead to accident in case anybody falls off, the way the accident happened. But the they must provide such barriers and such defense, as I understand the defense, protection as will prevent such an acciavers that the accident was occasioned by dent occurring there in the ordinary use an unusual and extraordinary cause, one of the road, and they must make it safe not to be expected or looked for by an for travel even with skittish horses or ordinary use of the highway, to wit: The those which are easily frightened. collision of teams on the bridge; and that Now, the first question in the case, and that was not such an occurrence as the the fundamental question in this case, is supervisors of the township were bound whether this bridge at that particular to regard, or to provide against.

place was maintained in the condition of The supervisors are the officers of safety which I have just explained and every township who have charge of the defined to you. And that is a question highways within the township, as you all for you to determine from the evidence know. Their duty in the opening and in regard to the condition of things at repairing of public roads is defined by that place; and you have a right to con statute. The statute provides that the sider, in your determination of that quespublic roads shall be effectually opened tion, the fact that an accident did occur and constantly kept in repair, and at all upon that bridge, and apparently occurseasons shall be kept clear of all impedi- red in the reasonable and ordinary use of ments to easy and convenient passing and the road by those who were traveling traveling, at the expense of the township. upon it; and, as far as anything in the For any wilful failure to discharge these evidence shows, lawfully using it as travduties, or any negligence in the discharge elers upon the highway. of these duties, the township is responsi- If this road was not reasonably and orble in damages to those who suffer from dinarily safe, and it is for you to say their neglect. The liability of every whether the road was reasonably and ortownship is commensurate with the du- dinarily safe, from the fact that in its ties of the supervisors. For a failure to reasonable and ordinary use an accident perform the duty on the part of the su- occurred; if this road was not reasonpervisors, the township becomes liable. ably and ordinarily safe so as to guard

Now, the degree of cảre which the su- against the accidents of collision, or accipervisors of a township are bound to ex- dents occurring from a frightened or ercise is not very well defined by fixed le- skittish horse, or anything of that sort gal limits; but they are bound to main- at this particular place, then the neglitain any and every public road in every gence of the township in not making it safe is made out by the evidence in this death of her husband, growing out of case. And that is a question of fact which that negligence. I propose to leave to your determination. Now, damages are divided into two

Now, the next question is, what was sorts-compensatory damages and puni the efficient or proximate cause of the tive damages. Compensatory damages are accident which occurred there ? After you such damages as will compensate the have determined the question of whether party who has been injured for the inthe township was negligent in not main- jury—such a sum of money as will put taining guard rails there, the next ques- the party in as good a position pecunition for you to determine, if you shall de- arily as he or she would have been if the termine it was negligent in not maintain accident or the injury had not occurred. ing guard rails, the next question for you Punitive damages are not claimed in to determine is whether the want of the this case, as I understand it; and it is not guard rails was the cause of the accident. necessary for me to explain them to you.

It has earnestly been contended by the If, under the law as I have laid it down defendant in this case, through their to you, you find that the township of learned counsel, that the real cause of Dover was guilty of negligence, which this accident was the collision, and that was the proximate cause of the death of the want of the guard rails was not the Edward Worley, our next inquiry will be cause, but was simply an existing inci- as to the amount of damages that the dent there which contributed to the result. plaintiff has shown she has suffered. A

(Now, what we mean by “proximate considerable amount of evidence has been cause,” which is a legal term, is thai introduced in your hearing necessarily, in which produced the accident, that with- my judgment, of a vague and indefinite out which the accident would not have character as to the value of the life of occurred. It seems perfectly plain to my this husband to this widow, his earning mind that this accident on this way would power, his age, his health,

his

prospect of not have occurred by reason of that col- life, the nature and character of the laboi lision, if the end of the bridge had been he was in the habit of performing; and, so guarded as to prevent a carriage from to a limited extent, and somewhat vaguebeing driven or falling over the sides of ly and indefinitely, the amount of it, the bridge. It seems to be perfectly plain the amount of labor that he could peras a matter of fact that the death of this form in a year. What was called the Carman was occasioned by a fall, and that lisle tables—which are always introduced the fall would not have taken place if in evidence in such trials as this, where there had been a guard there sufficient to the question of the probability of the prevent it. If that is so, then the proxi- man's life is involved—what are called mate cause--the efficient cause—the the Carlisle tables indicate the tables cause which led to and resulted in the that were offered in evidence—that the accident, and without which it would not prospect of the life of Edward Worley, have occurred, was the want of a guard or the further prospect of a man of ordirail on the bridge; and the remote cause nary health at that age was 13 years. was the collision on the bridge.)

The daily wages earned at various parts Now, that disposes of the only two of the year by that man seem to have questions of law that are raised in this been agreed upon practically by all of the case by any points that have been pre- witnesses at seventy-five cents a day for sented to me. If you shall find under the some kinds of labor, and a dollar to a dollaw, as I have laid it down to you, that lar and 50 cents a day for others; but the township was guilty of negligence in there is no evidence showing precisely not maintaining guard rails at the end of how many days in the year the man was that bridge; and if you shall find, as in employed. But from the evidence which my judgment there is no doubt (assum- has been introduced on this subject, it ing the negligence) that the efficient will be your duty to estimate the value. cause of the accident was the want of the having regard to the prospect of the guard rail, then the plaintiff's case is man's life the value of his life to his made out so far as to entitle her to re- widow, if you shall find, as I have alcover from the township of Dover such ready stated, that the death of the plaindamages as have resulted to her from the tiff's husband was occasioned proximate

ly by the negligence of the township of ship was not guilty of negligence and Dover in not maintaining proper guard their verdict must be for the defendant ; rails at the end of that bridge.

Borough of Pittston v. Hart, 89 Pa. 389. If you find from the evidence that the Even if the jury believe from the evitownship of Dover was not negligent, dence that the defendant township was that is an end of the case, although the negligent in not maintaining guard rails plaintiff has suffered; and your verdict or other barriers at the bridge where the will be for the township. But if you find injury was received, then the said neglifrom the evidence, under the law as I gence being the remote and not the proxihave laid it down to you, that the town- nate cause of injury, their verdict must ship of Dover was negligent in properly be for the defendant; Hoag v. Lake protecting that bridge, and that that neg- Shore R. R. Co., 85 Pa. 293; West Newligence resulted in the death of the plain- bury township v. Watson, 116 Pa. 344; tiff's husband, then you will find for the Ellenger v.P. B. and W.R.R. 153 Pa 213. plaintiff such an amount of damages as

Even if the jury believe from the eviin your judgment under the evidence you dence that the defendant township was shall consider will have compensated her negligent in not maintaining guard rails for the loss of her husband's services and or other barriers at the bridge where the support.

injury was received, then because the abThe reasons filed for a new trial were sence of said guard rails or other baras follows:

riers was not the sole efficient cause of Because the court erred in refusing to said injury, their verdict must be for the affirm defendant's first point uncondi- defendant; Chartier's Twp. v. Philips, tionally.

122 Pa. 601. Because the court erred in refusing to affirm defendant's second, third, fourth, dence that the defendant township was

Even if the jury believe from the evififth and sixth points.

negligent in not maintaining guard rails The Court erred in its charge to the or other barriers at the bridge where the jury upon the question of proximate injury was received, then because said cause, the erroneous language being: injury was received, through the concur"Now. what we mean by 'proximate rence of said negligence with an extraor

, cause, which is a legal term, is that dinary and outside cause not likely to be which produced the accident—that with- foreseen by ordinary forecast, to wit: out which the accident would not have the violent striking of the vehicle conoccurred. It seems perfectly plain to taining the deceased by another vehicle my mind that this accident on this way driven in the same direction by Frank would not have occurred by reason of that Stambaugh, their verdict must be for the collision, if the end of the bridge had been defendant; Schaffer v. Jackson Twp., so guarded as to prevent a carriage from 150 Pa. 145. being driven or falling over the sides of the bridge. It seems perfectly plain as a

The undisputed evidence in this case matter of fact that the death of this man showing that the accident to plaintiff's was occasioned by a fall, and that the fall decedent was caused by the violent strikwould not have taken place if there had ing of the vehicle containing the deceased been a guard there sufficient to prevent by the vehicle of Frank Stambaugh passit. If that is so, then the proximate ing in the same direction or from this cause which led to and resulted in the cause concurring with an alleged defect accident, and without which it would not in the highway, then their verdict must

, have occurred, was the want of a guard be for the defendant, whether they find rail on the bridge, and the remote cause

that the absence of guard rails or other was the collision on the bridge."

barriers at the place of the accident was The points referred to were as follows: negligence on the part of the defendant

If the jury, find from the evidence that township or not; Chartiers Twp. v. Phil. the highway where the injury was re- lips, 122 Pa. 601. ceived was at the time of the accident in Under all the evidence in this case the a reasonably safe condition for ordinary verdict must be for the defendant. travel conducted in the usual and ordi- Geise, Ziegler & Strawbridge for monary manner, then the defendant town-Ition.

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