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Jas. G. Glessner, S. H. Forry and negligent in not maintaining guard rails Stewart, Niles & Neff, contra.

at the sides of this bridge. It is imposMarch 26, 1894. LATIMER, P. J.-sible to see how they could have found Plaintiff's husband died from injuries re- otherwise, and the qualification of the deceived in falling over the unguarded end fendant's first point was right. of a bridge on one of the defendant's When the facts are undisputed, in such highways.

a case as this, the question of proximate The facts and circumstances attending cause is for the Court, not the jury; W. the accident were not in the least in dis- Mahanoy Twp. vs. Watson, 116 Pa. 334; pute, the defendant having adduced no Railway Co. vs. Frick, 117 Pa. 390; and testimony on that branch of the case. the Court did not exceed its proper prov

The road at the scene of the accident ince in its charge on that subject. was about thirty feet wide. The bridge The defendant's 2d, 3d, 4th, 5th and 6th was not in the middle of the road but at points could not have been affirmed withthe left side, as the deceased was travel-out error and if defendant desired more exing. It was about sixteen feet wide, plicit instructions on the subject of proxiabout eight to twelve feet long from one mate cause it should have asked for them. abutment to the other, and about three The case was tried and the jury chargfeet high above the water of a smalled on all the questions of law involved, stream that crossed the road at that point. in accordance with the principles laid The sides of the bridge were entirely des- down in L. Macungie Twp. v. Merkhoftitute of guard rails or any barrier to fer, 71 Pa. 276; Newlin Twp. vs. Davis, prevent persons crossing the bridge from 77 Pa. 317; Hey v. Philadelphia, 81 Pa. falling over. But immediately after the 44; Burrell Twp. v. Wicapher, 117 Pa. accident the defendant supervisors caus- 353; Plymouth Twp. v. Gruver, 125 Pa. ed guard rails to be placed on each side. 24; Herr v. Lebanon, 149 Pa. 222. The

The deceased was riding in a close car- language of Mr. Justice Cnilliams in the riage, called a rockaway, drawn by one latter case seems to fit precisely the facts horse driven by Jacob Welcomer, and of this case: “If any injury were suffered when they had gotten on the bridge, and by reason of the absence of the barrier, were about two or three feet from the of which such absence was the proximate right hand side of it, a horse and buggy or efficient cause, the municipality would containing a young man named Stam- be liable. If, therefore, in the ordinary baugh and his sister traveling in the same use of the street one had been crowded direction, came upon the bridge behind over the bank by the volume of travel, the Worley and Welcomer. Welcomer testi-, sudden shying of his horse, or the accufied that the front wheel of the buggy mulation of ice in the roadway, the abstruck the front wheel of the rockaway. sence of the barrier might justify a reStambaugh and his sister thought there covery, if the plaintiff was not guilty of was no collision, having observed none. contributory negligence.” Welcomer's horse scared and shied and The accident which resulted in Edward the rockaway fell and was pushed over Worley's death occurred in the usual the unguarded side of the bridge, turn- and ordinary use of the highway, from ing nearly bottom up. Worley fell on his an ordinary usual cause. which should head and shoulder, fractured one of the have been guarded against. No extracervical vertebræ, and died the next ordinary and unforeseen event produced morning. Welcomer testified, “the young it or concurred with defendant's negliman drove in behind and caught my gence in producing it, as in Jackson Twp. rockaway, the wheel and throwed us v. Wagner, 127 Pa. 185; and in Shaffer right over." And again, "you see the v. Jackson Twp. 150 Pa. 145; and there horse scared too when it struck and it was no question of contributory negliwent over swift. And in answer to the gence, as in Philip v. Chartress Twp. 122 question, “The horse got off the bridge Pa. 601, and Herr v. Lebanon, 149 Pa. after your carriage went over?” he said, 222, and there is nothing laid down in “yes, the horse was just over the planks, either of those cases to prevent plaintiff's throwed the carriage, fell right in the recovery in this. There is no good reamiddle of the stream."

son for granting a new trial. The jury found that the defendant was The rule for new trial discharged.

Vol. VII.

Park Legal Record. wife is traced to the husband's hands, the

law presumes she loaned it to him. In TIIURSDAY, MARCH 29, 1894. No. 42. that case her money had been given to

the husband twenty-six years before his ORPHANS' COURT. death, during which long interval she

never claimed either principal or interest. 0. C. of

Delaware Co. Yet it was held, reversing the court beMcGarvey's Estate.

low, that it was a loan, and that the burHusband and wife-Will.

den was on the husband's heirs to prove A married woman, having a separate bank it was a gift, failing in which the law account, drew money at various times from her presumed it was a loan. The probability account and deposited it to the credit of her- is that if the husband's will had been self and husband, “either to draw." After the first advance her husband, by a codicil to his inade after the receipt of the balance of will, acknowledged that the transaction was a the money, he would have provided for loan. HELD, that the presumption is that the its repayment just as he did the one hunsubsequent advances, made after the date of dred dollars borrowed before the making the codicil, were also loans and not gifts.

of the codicil. The burden is on the husband's heirs to

We are of the opinion the Auditor has prove that such advances are gifts.

fallen into an error in holding the burden Sur exceptions to auditor's report.

was upon the widow. He should have The facts sufficiently appear by the cast the burden on the other side. opinion of the court.

Exceptions sustained and report re0. B. Dickinson for the exceptions. committed for correction in accordance A. Lewis Smith, contra.

with this opinion. December 4, 1893. CLAYTON, P. J.The Auditor finds that Mrs. McGarvey, QUARTER SESSIONS. the widow of the decedent, at the time of

Chester Co. her marriage, September 21, 1882, then Q. S. of

Commonwealth v. Davis. late in life, had on deposit five hundred dollars undoubtedly of her own money. Criminal law-Rape-Character. She drew a check for one hundrej dul The object of the legislature being to protect lars, which her husband, by a codicil to the innocence of youth, it is evidence of real

character, his will admits was a loan to him. He

distinguished from supposed gave her nothing to show for it, and with- ted to determine whether a woman child was

qualities or reputation, which should be admitout the acknowledgment in the will she or was not of good repute. would have had no evidence of the loan.

The defendant was indicted for feloniThis loan was made about August 17,1883. ous rape, under the Act of May 19, 1887, The codicil to the will was dated in 1886. P. L. 128. It was alleged on the part of

She personally Jrew her money from the Commonwealth that the "woman the bank and deposited it in the name of child” in question was under sixteen herself and husband, “either to draw.” years of age, while on the part of the June 29, 1887, the husband drew by check defendant it was claimed she was not of one hundred dollars. October 25, 1888, good repute, and that carnal knowledge fifty dollars ; May 9, 1889, fifty dollars; was with her consent. No question was December 1, 1890, fifty dollars.

made as to the illicit intercourse, and the It will be observed that all of these testimony indicated her consent. checks were drawn after the date of the E. D. Bingham, District Attorney, and decedent's will. It would seem reason-Wilmer W. MacElree for Commonwealth. able that if the first one hundred dollars Thomas W. Pierce and William S. he received of his wife's money was a Harris for defendant. loan, all of it was. The Auditor holds

Rape. that the presumption is that the money October 13, 1893. WADDELL, P. J.drawn by the decedent was a gift and not Admitted evidence of the conduct of the a loan, and that the burden is upon her prosecutrix with the defendant on the octo prove they were loans which, he holds, casion of the alleged rape, and at other she has not done to his satisfaction. times, and of her statements and conver

Wormley's Appeal, 137 Pa. 101, clearly sation, as bearing on the question of her declares that wherever the money of the good repute.

as

The court also instructed the jury that made until September 21, 1893. It is arthe word "repute," used in the proviso gued that the view must be made before of the Act of May 19th, 1887, must be the term to which the order is returnable understood as meaning character, as dis. begins, and the cases of Road in East tinguished from reputation, saying: Nottingham, Ch. Co. Rep. 237, and

The legislature meant to allow the Je- Road in Newlin, 2 Ch. Co. Rep. 373, are fendant to show what the woman really cited in support of this proposition. In was. This would establish her character. Metzler's Road, 62 Pa. 151, Agnew, J., This character might not be known to the said: "Now it is very clear that when no public, and hence her reputation might view has been had on the ground until be one thing and her actual character an- after the meeting of the court on the reother. The object of the legislature was turn day of the order, and where all perto protect the innocence of youth, but if sons interested, therefore, had a right to that innocence was already gone, there conclude that the order had been abanwas no occasion to protect it.

doned, it furnishes no notice whatever to The qualities impressed by nature or the persons interested.” If the report habit on a person which distinguish him showed that there was personal notice to from others constitute his real character, the land owner of the view there might while the qualities he is supposed to pos- be room for argument that the principle sess constitute his established character upon which these decisions were made or reputation; Anderson's Dict. 165. It would not be applicable. But the report was the former qualities the legislature does not show such notice, and in the meant should be given in evidence to de- case of a private road this is essential. termine whether the "woman child" was “In the recent case of the private road in or was not of good repute.

Plumcreek Township, 110 Pa. 544, we Verdict, not guilty.

endeavored to point out the distinction

between private and public roads; that as Q. S. of

Luzerne ('o. to the latter there is a taking of private Road in Union Township.

property for private use; that a condemPrivate roadNotice.

nation of this kind can be justified only In the case of a private road the court may, on the plea of strict necessity, and that at a subsequent term, correct a mistake in fix- personal notice to the owner of the land, ing the width, allowing another term to elapse over which it is proposed to lay the road, before confirming the report absolutely

There must be personal notice to the land is an imperative requisite without which owners of the view, and it is not sufficient to such taking cannot be permitted. So state in the report that application was made in like manner, must he have an opporto them for a release of damages.

tunity of being heard on the assessment A view made after the beginning of the term of damages, and it is not sufficient to to which the order was returnable, without personal notice to the land owner, is bad.

state in the report that application was Exceptions to report of viewers.

made to him for a release thereof; Private Road in

Redstone, 112 Pa. 183; T. R. Martin for road.

Harburgh's Road, 8 C. C. 671. (The J. P. Hand, contra.

italics are ours.) In this case the viewers January 8, 1894. Rice, P. J.-It has gave the notice required in views of pubbeen held by this court, in the case of a lic roads, which under the decisions above private road, the court may at a subse- cited, was not sufficient. Under no conquent term, correct a mistake in fixing struction of the law can a view of a prithe width, allowing another term to vate road, made after the beginning of the elapse before confirming the report abso- term to which the order is returnable, lutely. In Re Private Road in Kingston, without personal notice to the land owner 5 Kulp 235. This case is exactly like the be sustained. As the viewers followed case cited, in this particular, and if the the direction of the order issue:1 to them mistake in fixing the width of the road in giving notice they had a right to supwere the only irregularity in the proceed- pose that they had done all the law reings we think it might be rectified.

quired. To prevent this mistake in fuThe order to view was returnable at ture cases it would be well to change the September sessions, which began on Sep- form of the order. The exceptions are tember 11, 1893, but the view was not sustained and the report set aside.

Abstracts of Recent Decisions. gess in office at the time will hold over.

Sharon Hill Election, (Delaware C. P.)

5 Delaware County Reports 433. (Cases not otherwise designated are

Exccution - Indizidual -- Partnership Supreme Court cases.)

debts.- Partnership property can be lev

ied upon and sold under an execution Affidavit of defence-Sufficiency of.- against an individual member of the firm When the statement of claim, in an ac- if the execution be for a firm debt. It is tion by an insurance company to collect competent for a creditor to show that an the amount of assessments upon certain execution against individuals is for a policies, sets forth in detail the particular partnership debt, and that the debtors are claims for which the assessments were members of a partnership. The levy was made, an affidavit of defence which avers on a judgment signed by three members that the specified claims for which the of a firm, but not in the firm's name. assessments were made have been paid, The second levy was on a judgment and that at the time the assessments were against the firm. The property levied made there was no such indebtedness by was firm property, and both judgments the company, nor is there now, is suffi

were for debts of the firm. Held, that cient.--Hoffman 2'. Whelan, (Delaware the first levy had priority.-In re McC. P.) 5 Delaware Co. Reports 445. Hose Fund, (Montgomery C. P.) 10

Commission to take testimony—Wher. Montgomery Co. Law Reporter 47. improperly returned-Presumption of le Insolvent law-Negligence of physigality.A commission to take deposi- | cian-Not "actual force.”—A physician tions was

sent to Illinois, and three who was arrested on a capias on a judg months after they purported to have been ment for damages for the negligent use taken, the depositions were found among of an electric battery on a patient, may the record papers on file. It could not be be discharged under the insolvent law discovered how or when they got there, without undergoing sixty days' imprisonand they were not marked filed or enter- ment.Drumm 2. MacTaggart, (Lancased as filed on the docket. They were ter C. P.) u Lancaster Law Review 102. not returned closed up with the seal of Justice of the Peace-Constable's depthe commissioner, as the commission di- uty-Action against foreign life insurrected, and notice was not given of their ance company. -In order to sustain the receipt by the Prothonotary, as required judgment of a justice in a suit against a by the rules of court. HELD, that in the foreign insurance company where the absence of any memoranda of their re-process is served outside of the county, ceipt it would not be presumed that the the record should show: (1) that the dedeposition had been legally returned and fendant is a foreign insurance company; received, and they could not be admitted (2) that the summons issued to a conin evidence.Ulrich v. Gets, (Lancaster stable of the county in which the justice C. P.) 1 Lancaster Law Review 142.

resides; (3) that such constable depuElection laa-Defective marking of tized, by writing endorsed or attached to ballotsThe vote for Burgess.-Where the summons, a constable of the county the voter has made his cross at the left of where the state agent of the company rea candidate's name, instead of the right, sides, to serve the process on him; (4) his intention is sufficiently clear and the that the person upon whom the process ballot should be counted, especially if the was served was the duly designated state printed ballot does not show a square at the right of the name as the law requires. agent to receive service of process, and Since the passage of the Act of June 10,

this should appear by the return. Where 1893, all election returns must be made special deputation is incomplete in not to the Court of Common Pleas, which showing that it was made by a constable therefore has jurisdiction to correct palp- of the proper county, and the record does able errors or fraud in the election re- not show that he appeared before the justurns for township and borough officers. tice to make his return or identify his ofWhen the returns of an election for Bur- ficial character, the service is irregular, gess show a tie vote, neither candidate and on certiorari, the judgment being by has any right to the office, but the Bur- 1 Jefault, the proceedings will be reversed.

an

Metropolitan Life Insurance Co. v. Cook, 1885, and 4 May, 1889, judgments ob(Luzerne C. P.) 7 Kulp 257.

tained before an alderman or justice of Practice Appearance

the peace amounting to one hundred dol

Unauthorised.-A general and unqualified appear- Court of Common Pleas by transcript

lars and upwards, may be entered in the ance by counsel entered on the proper and

attachment execution issued docket, is a waiver of all defects or irregularities affecting the notice, process execution and return nulla bona before

thereon, even though there has been no or service, necessary to obtain jurisdic- transcript issued. Nor is it necessary that tion over the defendant. The entry of an

there shall be a revival by scire facias.appearance for a defendant carries with it a presumption that it was entered by C. P.) 3 Lackawanna Jurist 231.

Miller & overy V. Stone, (Lackawanna authority. This presumption may be rebutted by clear proof to the contrary. Where a defendant denies the authority tained-When will not be set aside.-H.

Transfer of mortgage fraudulently obof counsel to enter an appearance and plea, he should act promptly in the pre- to D., of a mortgage she held against A.

signed and executed a written transfer mises, so as to prevent injury to the

This transfer had been sent by the attorrights of the plaintiff. This is especially true when parties have died, or there has ney who had procured the loan for her been a loss of evidence or change of cir- to a justice, with instructions to have her cumstances during the interval.-Kem- record, and D. paid over the amount of

execute it. The transfer was entered of merer v. Markle & Co., (Luzerne C. P.) the mortgage in good faith to the said at7 Kulp 262.

torney, who, however did not turn it over Railroad-Eminent domain-Right to to H. H. never received any consideratake dwelling house.—Any railroad com- tion for the transfer, did not know that pany, chartered by special Act of Assen- she had signed a transfer, and did not bly prior to the Act of February 19, 1849, authorize the said attorney to make any may, if not prohibited by its charter, take transfer or receive any of the money. a dwelling house for the purpose of wid- HELD, that the rule that of two innocent ening and straightening its track, in the parties the one whose act occasioned the exercise of the right of eminent domain loss must suffer applied here, and the given by the Act of March 17, 1869. The transfer would not be set aside.Himes' Act of 1869 must be treated as supple Petition, (Lancaster C. P.) 11 Lapraster mental to the charter of such railroad Law Review 135. company, and should be read into it without the limitation imposed by Section 10 Written contract for sale of tobaccoof the Act of 1849. Whether the Act of When modified by subsequent agreement. 1869 confers such power upon a railroad -The defendant bought a lot of tobacco company incorporated after the passage from the plaintiff under a written conof the Act of 1849, not decided, but it tract, but on the day of delivery refused would seem that it does.-Marlor v. P., to pay the contract price, alleging defects W. & B. R. R. Co., (Delaware C. P.) 5 in the tobacco, and after a dispute beDelaware County Reports 425.

tween the parties, offered to give the

plaintiff a check for two-thirds of the Real Estate-Partition wall-Right of contract price. The plaintiff, after some use. --A former owner of two adjoining hesitation, told the defendant to make houses conveyed one, retaining the other, out the check, and accepted it without to which he subsequently built an addi- further protest or qualification. Held, tion, using the wall between the premises. on a suit for the balance of the contract HELD, such use was permissible without price, that the offer and acceptance of the compensation, even in the absence of a check was a mutual rescission of the reservation contained in the deed as to written contract and the making of a new the division wall.--Giess v. Schadt, (Le- one, whatever may have been the plainhigh C. P.) 3 Lackawanna Jurist 217.

tiff's secret intention and meaning, and

a non-suit was properly entered.-Smith Transcripts-Alderman --- Attachment 2. Cohen & Co., (Lancaster C. P.) II execution. -Under the Acts of 24 June, Lancaster Law Review 103.

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