Held, that as the plaintiff's testimony was clearly capa ble of more than one construction, on a jury trial, the question of contributory negligence would have been one for the jury: Held, therefore, that a referee having been substituted for a jury, his finding of fact on this point was conclusive. to himself to invoke the aid of the proper Court leged negligence of the defendant, the only testimony as in deciding to which he shall yield himself. If, to the accident was that of the plaintiff himself. The without the direction of the Court, he follows there was no contributory negligence. Upon exceptions referee to whom the case had been referred, found that his personal interest and pays money that be- this finding was reversed by the Court: longs, prima facie to the assigned estate, to one who under the assignment has no right to it, the presumptions are against him and he must overcome them by satisfactory evidence establishing his own fairness, and the legal right of the person to whom he has made the payment. This he has not yet done. If not fully done upon a Appeal of Thomas Bruch, plaintiff, from the rehearing, it will be the duty of the auditor to judgment of the Common Pleas No. 3, of Philasurcharge him with all the money so paid. It is delphia County, in an action of trespass brought a significant circumstance that this controversy by Thomas Bruch, against the city of Philadel is between the assignee and those whose inter-phia, to recover damages for injuries caused by ests he should have protected; and that it is over the alleged negligence of said city of Philadel money apparently belonging to the creditors phia. which he has paid to Mr. Carr for the benefit of By agreement the case was referred under the himself and other judgment creditors. Act of May 14, 1874, to George DeB. Myers, Esq., as referee. The facts of the case as found by the referee are substantially as follows: It shows how unfortunate it was in this case, and must be in all cases, where one is selected as assignee whose position is necessarily hostile to those interested in the fund, and where such an The accident occurred on the night of April 12, assignee employs as his official adviser an attor-1894, shortly after nine o'clock. The night was ney whose previous engagements prevent the pos- dark but it was not raining. Plaintiff was a sibility of his representing the unsecured creditors working man, and at the time of the accident was in the only controversy to be anticipated in which 54 years old. He lived about nineteen squares their interests are involved, and in which they from where the accident occurred. He was gowill need professional aid. ing northwards towards home and was walking The decree is reversed and the record is remit-in about the middle of the pavement on the west ted for further proceedings in accordance with side of Kensington avenue, midway between Inthis opinion. APPEAL OF CONVERSE ET AL. July 15, 1897. WILLIAMS, J. This case is identical in character with that of the Appeal of Fred. Vietor, in which an opinion has just been filed. The decree is reversed for the reasons there given. H. B. Jan. '96, 570. Supreme Court. January 18, 1897. Referees-Powers of, under Act of May 14, 1874 The findings of fact by a referee, appointed under the Act of May 14, 1874, are as conclusive as the verdict of a jury. diana avenue and Clearfield street, when he stepped in a hole in the sidewalk and fell, and in so doing was seriously injured. The sidewalk at this place is a brick pavement about eight feet wide. The nearest lamp-post was about thirty-five yards away on the opposite side of the street; and there was an electric light in either direction from eighty to one hundred yards away. Adjoining the pavement was a large unfenced vacant lot about two hundred feet long and a hundred feet deep. The hole into which plaintiff stepped was large and in the shape of a half moon. The straight side of the half moon shaped hole corresponded with the house lines of the pavement and was from four to six feet long. The circular part of the hole extended out to about the middle of the pavement. The hole was partly filled with loose bricks. The hole had been there for from five to six months. The plaintiff was alone when the accident happened, but there was evidence that it was difficult to see the hole, because of the dazzling of the eyes by the electric If under the evidence a trial Judge would have been bound to direct a compulsory non suit, or to instruct the jury to find for the defendant, the Court may properly reverse the findings of fact by a referee; but where the light. The plaintiff had never walked on the west question is, under the evidence, one for the jury, it is error for the Court to set aside the report of the referee. In an action of trespass for injuries caused by the al side of Kensington avenue at this place before. Upon these facts the referee found that the defendant was guilty of negligence, and that there was no evidence of contributory negligence on he fell. The plaintiff says he did not see the hole the part of the plaintiff, and he gave judgment until he fell into it, but had he looked carefully, against the city and in favor of the plaintiff. he would have seen it.] Upon exceptions the Court set aside the refer- "[It was urged on behalf of the plaintiff that ee's report, and entered judgment for the city, his eyes may have been dazzled by an electric MCMICHAEL, J., filing, inter alia, the following light, and one of the plaintiff's witnesses testifies opinion: that the electric light, called in the testimony the "There remains, however, the question as to Commercial light,' did so affect the witness's the contributory negligence of the plaintiff. eyesight. But the plaintiff himself says nothing "[The referee has found that there was no evi- at all about being dazzled or blinded by this or dence of contributory negligence, and in this any other electric light, and whether or not the ruling we think he was in error. The contribu- plaintiff was guilty of any want of care in the tory negligence of the plaintiff appears by his circumstances, which contributed to his injury, own evidence, and if the case had been before a must be determined from the evidence of what jury, it would have been, we think, the duty of did happen, not what was probable, or what hapthe trial Judge to have entered a non-suit. The pened to some other witness at some other time.] question of contributory negligence having been. "The rule of law which must be applied is raised by the plaintiff's own testimony, it be- given by MITCHELL, J., in the case of Robb v. comes, therefore, a question of law for the Court, Borough of Connellsville, 26 WEEKLY NOTES, and not of fact for the jury, and it is the duty of 517. In his opinion he says: "That the reasonthe Court, if the referee was in error, to reverse able care which the law exacts of all persons in his findings.] whatever they do involving the risk of injury, re"The plaintiff in the present case was walking quires travelers even on the footways of public along a paved footway of the city of Philadel- streets to look where they are going, is a prophia. [The night was pretty dark, but it was position so plain that it has not often called for not raining, and at the point where the plaintiff formal adjudication. Thus in Barnes v. Sowden, testifies he fell, the street was lighted by both 119 Pa. 53, the Court below instructed the jury gas and electric lights.] that persons who walk along the footways or "The plaintiff says that he stepped on a brick cross the streets of our city are bound to use and that brick turned and threw him; that it their own faculties. The plaintiff was bound to was a big hole, big enough for a man to fall into use her eyes. Not that she was to keep her eyes it; it was five feet by four feet eight; that there were some loose bricks in it, but that they did not near fill up the hole. constantly and at every moment upon the pavement, but she was bound to do what people walking along the streets ought to do as they walk "[The plaintiff was asked: 'Q. Did you see the streets in order to use them safely.' It was the hole? A. No, sir. Not till I fell into it. I held that even this instruction was, under the eviseen it then. Q. How do you mean? A. When dence, too favorable for the plaintiff, and that I got up I seen it. Q. You could see it? A. the obstruction was such as she was bound to Oh, yes. You could see it by looking at it care-see, and that her negligence was too clear to be fully.' The plaintiff was bound to look carefully left to the jury. where he was going, and this he did not do, as "So in King v. Thompson, 87 Pa. 365, the his own testimony shows he could have seen the hole or depression in the pavement by looking at it carefully.] Supreme Court held that walking into an opening left for light and ventilation, and extending fifteen or sixteen inches from the wall was negligence per se, the present Chief Justice saying, persons using public streets ought to exercise some little caution. "[Travelers are bound to look where they are going, by night as well as by day, and where as in the present case, the testimony shows that the obstruction or depression in the highway could "In Dehnhardt v. City, 15 WEEKLY NOTES, 214, have been avoided if the party injured had looked the Judge below who tried the case without a where he was going, he cannot recover, as his jury said in his findings of law that the condition own want of care has contributed to his injury. of the pavement 'could have been seen by the Had there been a conflict of testimony on the question whether there was light enough to see plaintiff if she had given attention to it. the hole, the contributory negligence would not duty of vigilance is obligatory on the citizen as on be assumed as a matter of law. But, in this case, the municipality,' and the Supreme Court said the testimony is overwhelming that the street was the law was correctly declared. The well lighted at the place where the plaintiff says "[The accident in the case of Robb v. Borough of Connellsville, took place in the early evening. the electric light was under an awning, and so In the case at bar, it happened on a dark night, dazzled the eyes of the traveler, that he could not but in a place where, according to the testimony see clearly in front of him, and especially could of the plaintiff and his witnesses, there were both not see the pavement. Plaintiff had never walked gas lamps and electric lights. There is no con- on that side of the street before. flict about this. If we look at both the plaintiff's He alleged, his injury was caused by the city's and defendant's testimony on this point we find negligence in not maintaining a reasonably safe that there was light enough at the point where sidewalk, and brought suit for damages. The the plaintiff located his fall for him to have seen case was referred to George DeB. Myers, Esq., the hole or depression in the pavement."] under Act of 1874, to find the facts, and apply the Whereupon the plaintiff took this appeal, as-law, who, after hearing all the evidence, found:signing for error, inter alia, the reversal of the 1. The negligence of the city caused the accireferee on the ground of contributory negligence dent. 2. The evidence did not show contributory of the plaintiff, and the portions of the opinion of negligence on part of plaintiff. 3. That plainthe Court, given above in brackets. tiff had sustained damages to the amount of Joseph R. Embery, (William Embery with him), $2750, and so reported to the Court. On excepfor appellant. tions to the report, the Court approved the find The finding of the referee as to the facts was ing of the referee as to negligence of city, but conclusive, unless the evidence was such as would dissented from that which declared the plaintiff justify the Court in withdrawing the case from free from contributory negligence, and accorda jury. ingly set aside the report, and entered judgment Merriman v. Borough of Phillipsburg, 33 WEEKLY for the city. From that judgment, plaintiff apNOTES, 214. Ely v. Railway, 158 Pa. 233. The Act of May 14, 1874, under which the reference was made clothes the referee with the same authority as a Judge trying a case without a jury, under the Act of April 22, 1874. City v. Linnard, 97 Pa. 249. Gonser v. Smith, 19 WEEKY NOTES, 250. The cases cited by the Court in reversing the referee are sufficient to sustain this action. peals. The referee was appointed under Act of May 14, 1874. We have held in City v. Linnard, 97 Pa. 249, that his power is the same to all intents and purposes under such appointment, as that of a Judge, who, under Act of April 22, 1874, by agreement finds the facts and determines the law of the issue. The referee's findings of fact, then, are as conclusive as the verdict of a jury. If, under the evidence of plaintiff in this case before a jury, the trial Judge would have been bound to direct a compulsory non-suit, or to peremptorily direct the jury to find for defendant, then the Court below, properly, entered judgment for defendant; but, if the question of contributory negligence would have been for the jury, then the Court committed error in setting aside the report: Bradlee v. Whitney, 108 Pa. 362. July 15, 1897. DEAN, J. On the night of 12th April, 1894, the plaintiff, while walking on the The learned Judge of the Court below, was of pavement of west side of Kensington avenue, in opinion, plaintiff's own evidence disclosed a case Philadelphia, on his way to his home, stepped of contributory negligence, and for that reason into a hole, fell, and was seriously injured. The set aside the report. The evidence on which the hole was about four feet long, narrow, irregular Court found one way and the referee another, is or crescent-shaped, and had been in the pavement as follows: "Q. What were you doing as you for three months. Plaintiff was 54 years of age, walked along that night? A. I wasn't doing anywith sense of sight unimpaired. There were electric lights at Clearfield street and Indiana avenue, ing out in any way, round or about you? A. No, thing; only walking along. Q. Were you lookboth eighty to one hundred yards distant from sir, minding my own business. Q. Did you see where he fell; there was also a lamp on the same side of the street, about forty-four yards off, but the hole? A. No, sir, not until I fell into it. I it did not clearly appear this was lighted that seen it then. Q. How do you mean? A. When I got up I seen it. Q. Could you see it? A. Oh, night. A witness who resided on the same side of the yes, you could see it by looking at it carefully." street, near the place of accident, testified, that Here, we have two entirely competent and imon walking in the direction plaintiff was going, partial tribunals, placing antagonistic interpreta tions upon the same language. The interpreta- witness means when he uses language warranttion put upon this testimony by the Court is, ing distinct and opposite inferences. They must first, that by plaintiff's own admission, he was not determine his meaning, not only from his words, looking where he was going, and second, that the but from his manner and all the surrounding cirexercise of ordinary care in the use of his eyes cumstances, and find whether he was careful or would have disclosed the hole, and he would have careless. Therefore, the judgment is reversed, avoided stepping into it. If this were the only the finding of fact by the referee adopted, and interpretation that could be put upon this lan-judgment is now entered for plaintiff on his reguage, or if it were, manifestly, the only reason-port. able one, the conclusion of contributory negli-| gence on part of plaintiff, was warranted, and the Supreme Court. S. H. T. January 8, 1897. Maher v. Philadelphia Traction Co. Negligence-Damages for personal injuries resulting in death—Who entitled to maintain action therefor-Acts of April 15, 1851, and April 26, 1855-Measure of damages. settled law would have barred a recovery. But, Jan. '96, 335. Under the provisions of the Act of April 15, 1851, an action begun for injuries to the person does not abate by reason of plaintiff's death, but survives by substitution of his personal representatives. But as a further admission of negligence, on which the judgment of the Court is based, he Birch v. Pittsburgh, etc., Ry. Co., 36 WEEKLY NOTIS, said he did not see the hole until he fell into it; 69, confirmed and followed. Where an action for personal injuries is brought by the injured party in his lifetime, and is continued after his death by his administrator, the damages recoverable by his personal representative should be the same as he could have recovered had death not ensued. when he got up, he saw it, and then he could see This provision has not been either expressly or by im. it by looking at it carefully. This is the iden-plication, repealed or modified by subsequent legislation. tical experience of the most careful man who has met with such an accident. In the exercise of ordinary care, he does not see a peril, otherwise he would avoid it; he falls into an excavation, crawls out, and by looking carefully, with all his senses quickened by the mishap, he sees and real- Appeal of the Philadelphia Traction Company, izes the cause. By the exercise of extraordinary defendant, from the judgment of the Common care before the accident, he might have discover-Pleas No. 1, of Philadelphia County, in an action ed that which was not ordinarily observable. But, of trespass, brought by Agnes Maher, against the the public, walking on the pavements of a large Philadelphia Traction Company, to recover damcity, are not bound to exercise extraordinary ages for injuries alleged to have been received care; care according to the circumstances, is all from the negligence of the defendant company. the law enjoins. They have the right to assume, Pending the action, the plaintiff died, and John the pavements are reasonably safe, and that they, Maher, her administrator, was substituted by the ordinary use of their eyes, at an ordinary plaintiff. pace, can safely walk on them. Upon the trial, before BIDDLE, P. J., the folWhile we will not undertake to say, the inter-lowing facts appeared. On the thirtieth of March, pretation put upon plaintiff's testimony by the 1894, Agnes Maher, the plaintiff, was run over learned Judge of the Court below, was clearly by a car of the Philadelphia Traction Company, a wrong one, we are of opinion, it was not clearly on Thirteenth street, near Reed street, Philadelthe only one of which it was susceptible, and was phia. The plaintiff, who was a minor, between not clearly the right one; hence the evidence six and seven years of age, brought action against would have been for the jury, if that method of the company by her father and next friend for trial had been adopted, and the referee having personal injuries. She died on October 30, 1894, been substituted for the jury, his finding of fact and the action was thereafter prosecuted by her is conclusive on the defendant: Ely v. Railway Co. administrator, who was her father, John Maher, 158 Pa. 233. under the Act of April, 1851. as The authorities cited by appellee, are unquesThe plaintiff claimed that the accident was tionably the law, but they do not touch the ques- caused by the negligence of the motorman, in not tion on which the case turns. No precedent can keeping a proper look-out, and neglecting to ring control a jury or referee in determining what a the bell, and introduced evidence to this effect. nesses. This evidence was contradicted by defendant's wit- Verdict for plaintiff for $8000, and judgment thereon. Whereupon the defendant took this apThe defendant submitted the following points, peal, assigning for error, the refusal of the third the first and second of which were subsequently point, both absolutely, and "in connection with withdrawn: the fact that the cause of action was for the death "1. If the jury believe from the evidence that of Agnes Maher, and the suit was prosecuted by the child unexpectedly and without warning ran her administrator;" and the portion of the charge from the pavement in front of a moving car and given above. the motorman did not see it in time to avert the accident, there can be no recovery, and the verdict should be for the defendant. J. Howard Gendell, for appellant. Had the accident occurred elsewhere than at the corner of the street, the case would be governed by Funk v. Traction Co., 175 Pa. 559. Unless, therefore, the Court holds that Funk v. "2. The mere fact of the injury and death of the child raises no presumption of negligence against the defendant company, and if the jury believe from the evidence that the motorman was attending to his business and did not see the Traction Company, does not apply at the crosschild in time to avert the accident the verdict ing of main streets, there was no evidence of should be for the defendant." negligence, and there can be no recovery. "Under all of the evidence the verdict should be for the defendant. Answer-Refused." (First assignment of error.) The Court charged the jury, inter alia, as follows: It is well settled that the motorman's duty, both permits, and requires him at times to glance side ways. Thomas v. Citizens Pass. Ry. Co., 25 WEEKLY Johnson v. Reading City Pass. Ry. Co., 34 WEEKLY The 18th section of the Act of April 15, 1851, The right of action for death given by the 19th section, is an entirely new cause of action, and as modified by the Act of April 26, 1855, cannot be maintained by an administrator. Acts of April 15, 1851, and April 26, 1855, Purdon, 1603-4. "Unfortunately the young lady is not here to receive whatever sum you should think her due, but she is represented by her personal representatives. They, of course, can do nothing for her. only refers to cases in which death has ensued The trouble in all these cases is that most of them from causes other than the injuries; where the tend very much to excite one's feelings particular- right of action existing in the injured party to ly in a case where an accident like this happens sue for injuries is continued in his administrator. to a young and attractive girl. Our sympathies are so excited that when we have listened to eloquent counsel we can hardly come down to consider the matter as we are bound to consider it, as a matter of business, and the law very wisely requires us to be slow about giving a verdict,according to the evidence, not allowing our minds to Fink v. Garman, 40 Pa. 95. be inflamed when we consider such a question, Books v. Borough of Danville, 95 Id. 158. Mann v. Wieand, 4 WEEKLY NOTES, 6. but only to consider it as a business question. Undoubtedly if this young lady were here in per- 339, would seem to be erroneous, and the Court The decision in Birch v. The Railway, 165 Pa. son she would be entitled to compensation for is requested to reconsider it. the injury she had received and for the pain and suffering she had undergone and for whatever disability she had sustained for her future life, which the accident caused, and for whatever diminution of earning power there was due to the accident. If you-in regard to this question about earning power, were to die, or any other citizens, the question would be how much ought to be paid to the family or to the circle dependent upon you for support. This young lady was six years of You will have to determine her earning power-how much it was. You will have to consider that question without prejudice or feeling such a case as this is well settled. one way or the other and whatever sum you think would be a proper and reasonable compensation you have a right to give her." age. The language of the Court was misleading, and cident to a suit brought by the injured party, not submitted to the jury a measure of damages, inby her administrator. Goodhart v. Penna. R. R Co., 38 WEEKLY NOTES, 548. A. S. L. Shields, for appellee. The evidence for and against the plaintiff's negligence was so conflicting as to compel its submission to the jury. The right of recovery by the administrator in Penna. R. R. Co. v. McCloskey, 23 Pa. 526. |