had seen a representative of the defendant com- As to the refusal of the Court to withdraw a pany, ordered Dr. Robinson, the junior physician, juror because counsel in his opening argument to against his will and opinion, to write on the rec- the jury used the words, "slimy fingers," although ord that Nugent was drunk; Dr. Robinson hav- appellant has abandoned this specification in his ing testified that the symptoms relied on by Dr. paper book, as it has been brought before the Hassler were symptoms of shock, not drunken- Court, we think that it is due to the Court, as well ness. Counsel for defendant moved to withdraw as to counsel, that the attending circumstances a juror, which was refused by the Court. (Third should be considered. assignment of error.)

Thomas Leaming, for appellant.

The assignment of error cannot be considered, for this Court has repeatedly held that remarks

The defendant's fifth point should have been of counsel are not reviewable, even though exunqualifiedly affirmed.

Aspell v. Railroad Co., 23 Pa. 147.

Upon an admitted state of facts, it is the duty

of the Court to declare the law.

Nagle v. Railroad Co., 88 Pa. 35.
Barnes v. Sowden, 119 Id. 53.

ceptions have been taken to them.

Evans 7. Mengel, 3 Pa. 241.
Thompson v. Stevens, 71 Id. 161.
Com. v. Nicely, 130 Id. 261.

McCloskey v. Bells Gap R. R. Co., 156 Id. 254.

May 3, 1897. WILLIAMS, J. The plaintiff was

After the plaintiff started to cross the street and seriously injured by one of the cars belonging to had crossed the east bound track on Market the defendant company. He alleges that this instreet, there was still a chance, however, for pru-jury was due to the defendant's negligence. On dence and care. The space between the two sets the other hand, it is asserted that the plaintiff was of tracks was four and a half feet, and the over- guilty of such contributory negligence as clearly hang of the cars rather less than a foot on each makes him the author of his own misfortune. It side, still leaving room enough to stand in com- becomes necessary, therefore, to ascertain and plete safety where a turn of his head would have state the facts as shown by the testimony, in orshown him the whole track he was about to step der that we may determine upon which side of on. Instead of looking, he bolted ahead right the line drawn in Davidson v. Lake Shore R. W. into the car which was upon him at the instant Co., 171 Pa. 522, this case may fall. he set foot on the track. This was a plain disregard of the dictates of the most ordinary prudence, and there was no room for a jury to be allowed to draw any other inference.

Buzby v. Traction Co., 126 Pa. 559. Ellery P. Ingham, (Harvey K. Newitt with him), for appellee.

The plaintiff had spent the afternoon socially with some friends in this city. He was starting at about eight o'clock in the evening for his home in Germantown. In order to reach the railway station, he had to cross Market street, at its intersection with Fifteenth street. According

to the testimony of those who saw him shortly before and at the time of his crossing the street, The testimony of the motorman of the car that he was somewhat affected by what he had been it was so constructed that his view of the street drinking during the afternoon. His gait appearwas entirely obstructed except in front between ed to these witnesses to be unsteady and his manhis own rails was proof of the negligence on the ner is described by them as that of one dazed or part of the defendant and the plaintiff has a right bewildered. He says that as he stood upon the to avail himself of this fact although proved by south side of the street railway tracks on the west crossing at this intersection, he looked up and down Market street to see if he could safely

defendant's witnesses.

Jackson v. Traction Co., 159 Pa. 399.

Where a man, without negligence on his part, finds himself in a position of danger he is not responsible if he make a mistake in judgment in getting out.

Railroad Co. v. Werner, 89 Pa. 59.

The single circumstance that a plaintiff drove directly in front of a moving train and is injured is not enough to deny him access to a jury.

Davidson v. Railway Co., 171 Pa. 522.
Howett v. Railroad Co., 166 Id. 607.
Railroad Co. v. Carr, 99 Id. 505.

Gray v. Penna. Railroad Co, 172 Id. 383.

cross. He saw some wagons directly in front of him on the southern or eastbound track. He also saw a car approaching from the west at what he considered a safe distance from the crossing. As soon as the wagons moved out of his way, he started to cross and without looking for a car approaching from the east, he crossed the southern track and the space between the tracks and while upon the northern track, was struck by a west bound car and received the injury complained of. The testimony shows that he stepped upon the northern track some six or seven feet in

front of a slowly moving car.

W. D. N.

Sheridan v. Township of Palmyra.

Townships-Bridges over streams which are county boundaries-Act of June 13, 1836, P. L. 551— Negligence.

The motorman point should also have been affirmed. The first instantly halloed to him, but he seems to have and, second specifications of error are sustained gone forward a step or two without looking up, and the judgment appealed from is reversed. when he was struck by the car. The witnesses who saw him when he came upon the track seem to think that he might have escaped injury if he had acted promptly upon the motorman's call to Jan. '96, 436. Supreme Court. February 22, 1897. him. The distance, however, was shown to be so slight as to make it impossible for the motorman to have stopped the car in time to prevent the accident. The car was well lighted and provided with an automatic bell. It was impossible for the plaintiff, had he looked while crossing, Although the Act of June 13, 1836, section 46, P. L. not to see the car. But he does not allege that he 551, provides for the construction and maintenance of bridges "over any river, creek, or rivulet being on the looked. He testifies that he did not look after line of adjoining counties," by the counties, it is competent he started to cross. The testimony leaves no for townships in such adjoining counties to build bridges room to doubt that if he had used his senses and themselves, and when such a bridge has been divided at acted upon the information which they would of the structure as lies within the township, as any other a fixed point, each may build and keep in repair so much certainly have given him, he would not have gone township road or bridge is built and repaired, and where directly in front of a moving car to be struck by this is done each township is liable for the negligence of it. It is very clear also that the motorman be- its own authorities in the care of its own end of the bridge. came aware of the danger to the plaintiff, only when he stepped in front of his car, and that he had no sufficient opportunity to stop its motion after this occurred. To whose negligence is the accident due?

Appeal of the Township of Palmyra, from the judgment of the Common Pleas of Pike County, in an action of trespass wherein Bridget Sheridan, widow of Michael L. Sheridan, was plaintiff.

As the facts are practically uncontroverted, they raise a question of law, the decision of which was for the Court: Davidson v. Lake Shore R. R. Co., supra. It was called to the attention of the Court below by the defendant's fourth point for charge, as well as by the fifth point. The fourth point was declined without explanation or qualification. It should have been affirmed with the explanation that it was applicable, where no obstruction interfered with the view: Buzby v. The Traction Co., 126 Pa. 559. The fifth point should also have been affirmed with the explanation that if by looking, at any point before reaching the west bound track, he could have seen the car and escaped from danger by stopping before reaching the track, it was his duty so to look and stop. Negligence is the want of such care as the circumstances may require. In the, crowded streets of the city, it is not enough for a pedestrian to lows: "stop, look and listen" at one side of a street like "I. That the bridge on which the plaintiff's Market street, which is one hundred feet in width, husband was injured formed a part of the public and seeing an opening directly before him, cross highway, and the defendant was bound to keep the entire street with the street railway tracks

The facts of the case appearing at the trial were that on September 19, 1894, the husband of the plaintiff was driving a load of stone over the bridge which crosses the Wallenpaupack creek, which divides the counties of Pike and Wayne, and was killed by a portion of the bridge falling and precipitating him with his load and team in the stream below. The bridge had been constructed by the authorities of the townships of the respective counties on each side of the stream, each township constructing the part of the bridge from the bank to a pier erected in the middle of the

stream which marked the boundary.

The Court, PURDY, P. J., admitted evidence offered by the plaintiff showing that the bridge was a part of a public road which had been laid out from Wilsonville, in Pike county, to a point in Wayne county. (First assignment of error.) The plaintiff asked the Court to charge as fol

the same in such safe condition and repair as to make it reasonably safe for all persons having upon it, without further attention to the traffic occasion to use said bridge in the ordinary mode of the street, or the dangers to be encountered. and means of travel, and in the pursuit of their It is his duty to himself and to the public to lawful business and employment.”—Affirmed. look about him and to avoid the obvious dan- "2. The undisputed evidence being that the gers with which his path may be beset. Upon bridge from the south bank to the pier was rethe whole case, we think the defendant's sixth paired and maintained by the supervisors at the

expense of the township and by them kept open "That is refused. The point asks us to take this for public travel for a period of twelve years, and case from you and decide it in favor of the townten years ago was re-built by them at the expense ship, the defendant, and we think we have no of the township, the township is liable for dam- right to do that; that there are questions of fact ages sustained by the plaintiff and due to the in this case for the jury." (Sixth, seventh and negligence of the supervisors in the construction eighth assignments of error.) and repair of such bridge, no contributory negligence being shown."

Answer "This point we refuse. The question of contributory negligence we think is involved here, and this asks us to say to you that there was no contributory negligence in this case. We think that is a question for the jury."

Mr. Monaghan-"It is not the intention to assume that there was no contributory negligence. It was intended to mean, provided there was no contributory negligence shown."

Verdict for plaintiff, $2100 and judgment thereon. The defendant took this appeal and filed assignments of error, inter alia, as above indicated. H. Wilson, (with him H. T. Baker and C. W. Bull,) for appellant.

Under the provisions of sec. 26, of the road law of 1836, for laying out a road on a county line, portions of a road cannot be laid in one county and portions in another.

Roaring Creek Road, 11 Pa. 356.

Gouldsboro v. Coolbaugh, 87 Pa. 48.
Keiser v. Commissioners, 156 Id. 315.

When a county boundary is described in the The Court-"Reading the point in this way, thread of a stream, a bridge over the stream must 'The undisputed evidence being that the bridge be built and maintained by both counties in the from the south bank to the pier was repaired and manner provided by the Act. maintained by the supervisors at the expense of the township and by them kept open for public travel for a period of twelve years, and ten years In order to charge a corporation for negligence ago was re-built by them at the expense of the in the performance of a public work, the law township, the township is liable for damages sus-must have actually, not merely in form, imposed tained by the plaintiff and due to the negligence a duty or conferred an authority to do such work. of the supervisors in the construction and repair Hence, where the officers and agents of a city of such bridge, if no contributory negligence is shown'-as read in that way, the point is affirmed.".

corporation assumed to build a bridge, under the authority of a statute not constitutionally passed (for want of a two-thirds vote), and the bridge fell in consequence of negligent construction, it was held that the corporation was not liable to

"4. If the bridge was unsafe from general decay or defective construction, and Michael Sheridan knew the traveling public there so regarded a person injured by the fall. the same to be unsafe from said causes, or either of said causes, but also saw the general public at the time of the accident still using the bridge for the general business there transacted, he would not be guilty of contributory negligence in using it himself in an ordinary way in the transaction of his own business, and the defendant would still be liable under the above state of facts for any injury to him."-Affirmed. (Third, fourth and fifth assignments of error.)

Mayor, etc. v. Cunliff, 2 Comst. 165.

Frank P. Kimble, O. L. Rowland and F. M. Monaghan), for appellee.

At common law a bridge is part of the highway which it serves to mend and make more convenient and serviceable to the public; and such it is regarded in this State.

Rapho Township v. Moore, 68 Pa. 404. Penn Township v. Perry Co., 78 Id. 457. Washer v. Bullitt Co., 110 U. S. 564. Westfield Borough v. Tioga Co., 150 Pa. 152. A bridge does not become a county bridge till all the formal proceedings required by statute are done, and the county can not be held responsible for the condition of a bridge not so legally put upon the county.

The defendant asked the Court to charge: "2. That the law imposed no duty upon the supervisors of the township of Palmyra to construct, maintain and repair a bridge across the at the point or place Wallenpaupack stream. where said bridge was erected."-Refused. "3. That the law imposed no duty upon the Township of Newlin v. Davis, 77 Pa. 321. supervisors of the township of Palmyra to conA duty to construct and repair may be primarstruct, maintain and repair any portion of a ily in another, yet the township still be liable to bridge across the Wallenpaupack stream at the the traveling public for the condition of the highpoint or place where said bridge was erected."-way. Refused.

“11. Under the facts proved in this case the verdict should be for the defendant."-Answer. I

Woodring v. Forks Township, 28 Pa. 355.
Pittsburgh, etc. R. W. Co. v. Point Bridge Co., 165
Id. 37:

Plymouth Township v. Graver, 125 Id. 24.

Thompson v. Traction Co.

If a person uses a bridge known by him to be Oct. '96, 55. Supreme Court. November 10, 1896. defective, but without distinct notice to him or to the public not to use it, he can not be held in case of accident, guilty of contributory neglig

ence.

Street railways-Injury to property-Damages.

Humphreys v. Armstrong Co., 56 Pa. 204. Monongahela Bridge Co. v. Bevard, 10 Cen. Rep. or enlargement of its works takes for its own use, or in415.

The rule that, when a corporation in the construction

jures, private properties, it becomes liable to the owner of the property, is not restricted to those corporations intaking or injuring occurs the damages recoverable are comvested with the right of eminent domain, and where such pensatory of either a permanent depreciation of the property or the cost of removing the obstructions and restoring to its former use.

March 22, 1897. WILLIAMS, J. The bridge, by the failure of which the plaintiff lost her husband, was over a stream that had been designated by law as the line between the counties of Wayne it and Pike. The road running over it connected the township of Palmyra, Pike county, with the borough of Hawley, in Wayne county. A pier near the middle of the stream was recognized as the boundary between them and each district built and maintained the bridge from its shore to this pier under an agreement with each other. The accident happened at the Palmyra end of the Appeal of the Citizens Traction Company, from bridge. The township denies its liability on the the judgment of the Common Pleas No. 1, of ground that the Act of June 13, 1836, sec. 46, pro- Allegheny County, in an action of trespass wherevides a mode for building bridges over streams in Samuel B. Thompson and Martha J., his wife, upon the line between two counties which must in right of said wife, were plaintiffs.

A street railway company having constructed its line on a public road, without the consent of the abutting property owners, is liable to them for an injury done to their property by such location and construction, and this liability is the same as if it had obtained their consent to the construction of the line, on giving bonds to compensate them for such injury to their property as its location and construction might inflict.

be pursued. This is true if the bridge is to be The facts of the case appearing at the trial, bebuilt at the expense of the adjoining counties as fore STOWE, P. J., were as follows: The plaintiff a county bridge, but not otherwise. was the owner of a lot of ground on a public

It is competent for the people of the respective road known as Freeport Road, in the township townships to build the bridge themselves, and of O'Hara, Allegheny county; in the fall of 1890, when they divide the bridge at a fixed point, each the defendant constructed a double track of railmay build and keep in repair so much of the structure as lies within the township, as any other township road or bridge is built and repaired. Where this is done, as in the case before us, each township would be liable for the negligence of its own authorities in case of its own end of the bridge. If this was not so, it might be important for every traveler when approaching such a bridge, to leave his team and make a journey to the county seat to examine into the legality of the proceedings under which the bridge had been erected before venturing himself upon it.

way on the road in front of the plaintiff's property without the consent of the plaintiffs. In the course of the construction the defendant, under the direction of the supervisor of the highway, filled the road, which had the effect of putting the plaintiff's ground below its former grade.

The question of negligence was for the jury and was properly submitted to them. So, also, was the question of contributory negligence on the part of the deceased. The case was well tried by the learned Judge of the Court below and the judgment is affirmed.

W. D. N.

Evidence was admitted as to the value of the property before and after the filling of the road in front of the lot and as to the effect of the change upon the value of the property. (First, second and third assignments of error.)

The Court charged:

"That brings you down simply to the question of how much the plaintiff has lost. We have got to calculate these things in dollars and cents. Somebody may put near my property a mill that I would not like to have there at all-perhaps I move away by reason of its being there. Yet if that mill will make my property sell for more than it would have sold for if it was not there, I am not injured, in a legal point of view. I may be annoyed, I may be put in such position that possibly I would not care to live there; but that is not what we are to consider in cases of this kind." (Fourth assignment of error.)

And "To bring it up to a level it would have

to be filled in. That would involve expense to the change of grade, as affected thereby, taking bring it up to its former condition. Apparently into consideration the advantages thereof, if any, whatever that would cost would be the amount of peculiar to the property in question, and this damage done. And yet that amounts to nothing measure of damage is not confined to a taking if, as the property stands and without that being under the right of eminent domain, but is equally done, it is worth more in the market than if the applicable to a case where property is "injured or road had not been fixed as it is. Quite a number destroyed by a municipal or other corporation of witnesses in their judgment think the property in the construction or enlargement of their works, is worth more with the road in the condition it is highways or improvements," under the provinow than it would have been if the road had not sions of Article XVI., section 8, of the Constitubeen raised. Whatever their opinion is worth is tion of 1874. for you to consider. Others think differently." (Fifth assignment of error.)

O'Brien v. Philadelphia, 150 Pa. 589.

In this case the injury was a permanent one. Plaintiff not having sought to enjoin defendant before the work was done, the embankment made by defendant in front of the property was a permanent fixture.

And "We come back to just where we started; is that property worth as much since this work has been done? If it is, then the plaintiff is entitled to recover only nominal damages, six cents. Her legal rights have been trespassed upon, but she has suffered no actual injury. And she is enRailroad Co. v. Railway Co., 167 Pa. 62. titled to only nominal damages. If the property The measure of damage in case of consequenis worth less than it was before, and would sell tial injuries where the damage is permanent in its for less, then the difference she is entitled to in nature, and where no direct physical injury is her verdict. You will get at that either one way averred, is the diminution of the value of the or another. As I have suggested, the whole thing comes back to this one question: is this property in value worth more or less than it would have been if this work had not been done? If worth more, she is entitled to at least nominal damages. If less, she is entitled to the difference between what it is worth now and what it would have been worth if the work had not been done." (Sixth assignment of error.)

property.

Vanderslice v. Philadelphia, 103 Pa. 103.
Weir v. Plymouth, 148 Id. 566.
Williams v. Fulmer, 151 Id. 405.

It was proper to admit evidence of the depreciation of the property as a whole, including the buildings thereon.

O'Brien v. Philadelphia, 150 Pa. 589.
Groff v. Philadelphia, Id. 594.

May 3, 1897. MCCOLLUM, J. The right of the plaintiffs to compensation for the injury done

Verdict and judgment for plaintiff. Defendant appealed, and filed assignments of error as above indicated. William D. Evans, (George C. Wilson with to their property by the change of grade of the him), for appellant.

highway in front of it and the construction thereon of the railway is not disputed. The defendant however, contends that the Court adopted a wrong method of ascertaining the compensation they were entitled to receive for the injury thus inflicted. All the specifications of error relate to this contention and the cases cited as sustaining it are Lentz v. Carnegie, 145 Pa. 612; McGettigan v. Potts, 149 Pa. 155; and Eshleman v. Martic Township, 152 Pa. 68. The rulings and instructions complained of were to the effect that the depreciation in the value of the property as the result of the change of grade and the construction and maintenance of the railway furnished the measure of compensation. Why the defendant in the light afforded by the testimony in the case complains of this measure is not apparent. The uncontradicted evidence on the part The measure of damages in the case is the dif- of the plaintiffs was to the effect that the cost of ference in the market value of the property, in- raising the lot and buildings to the level of the cluding the buildings thereon, before and after railway would exceed the depreciation in the

The measure of damages is not the difference between the value of plaintiff's lot of ground before the filling was made and after the filling was made, but the measure of damages sustained by the plaintiff up to the time of suit brought by reason of the matters complained of.

Robb v. Carnegie, 145 Pa. 324. Lentz v. Carnegie, Id. 612. McGettigan v. Potts, 149 Id. 155. The measure of damages should be the cost of remedying the injuries, unless that equals or exceeds the value of the thing injured, when such value becomes the measure; and the difference in the market value is not appropriate to the case. Eshleman v. Martic Township, 152 Pa. 68.

S. B. Schoyer, (with him S. Schoyer, Jr., and J. M. Cook), for appellee.