sale of the timber, can now appropriate it on either of the mortgages in suit. The learned court below thought it could do so, and accordingly entered a judgment in each case in favor of the plaintiff, for want of a sufficient affidavit of defense. In justice to that court, it ought to be stated in this connection that the judgments were entered before the decision of this court in Pratt v. Waterhouse, 158 Pa. St. 45, 27 Atl. 855, was announced. The use plaintiff in that case is the use plaintiff in the cases we are considering, and the decision in the former was based on the facts relied on as a defense to the latter. In the case referred to, we decided that the bank's consent to the sale of the timber and its acceptance of the proceeds of the sale operated as a release of the timber from the lien of the mortgages it then held, and raised an equity in the purchaser which required that, in enforcing a judgment on a first mortgage which it purchased more than a year after the sale, the execution should be confined, in the first place, to the land. It was conceded that Pratt and Phillips, the assignors of the mortgage, had done nothing to raise the equity, and the decision was distinctly based upon the ground of the bank's consent to the sale of the timber, and its acceptance of the proceeds of such sale. It is clear, therefore, that the decision in the case cited requires a reversal of the judgments in the cases before us. But, aside from this decision, the injustice of allowing the plaintiff to sell the timber on either of the mortgages in suit, and to retain the proceeds of a former sale to which it consented, is so obvious that the appellant should have an opportunity to establish the facts interposed by him as a defense. The judgment in No. 6 is reversed, and a procedendo is awarded.

et al.

PERRIN et al. v. WATERHOUSE (No. 8.) FREDONIA NAT. BANK v. BORDEN et al. (No. 7.) Appeal of COLLINS. (Supreme Court of Pennsylvania. Jan. 21, 1895.)

Appeal from court of common pleas, Forest county.

Two actions, one by H. P. Perrin and others against J. A. Waterhouse and another to foreclose a mortgage executed by defendants, and assigned by plaintiffs to the Fredonia National Bank; and the other by the Fredonia National Bank, assignee of J. A. Waterhouse, against Andrew Borden and H. P. Perrin, to foreclose a mortgage executed by defendants to Waterhouse. T. D. Collins was permitted to appear and defend in both suits as terre-tenant. From judgments for plaintiffs for want of sufficient affidavits of defense, Collins appeals. Reversed.

T. F. Richey and Sam'l T. Neill, for appellant. H. M. Byles, J. M. McClure, and P. M. Clark, for appellees.

McCOLLUM, J. For reasons given in Bank 7. Borden (No. 6, October term, 1894), 30 Atl. 975, judgment reversed, and procedendo awarded.

DAVIS v. KOENIG et al. (Supreme Court of Pennsylvania. Jan. 7, 1895.) SALE-RIGHTS OF PURCHASER.

A purchaser who has paid the freight on and receipted for a car of goods is not bound to accept and pay for them if they were unmerchantable when shipped, or became so before arrival, because of the negligent manner in which they were packed by the seller, where there was no opportunity to make such an examination of the goods as would disclose their condition until the car was delivered and was being unloaded.

Appeal from court of common pleas, Allegheny county.

Action by A. E. Davis against H. C. Koenig and others to recover the price of a car load of barreled cabbage, sold and consigned by plaintiff to defendants. From a judgment in favor of plaintiff for want of sufficient affidavit of defense, defendants appeal. Reversed.

T. L. Gaertner, for appellants. William R. Blair, for appellee.

FELL, J. The affidavit in this case is lacking in the merit of clear and concise statement, but it appears to contain the elements of a good defense. The payment of the freight and the receipt of the goods were not, under the circumstances, an acceptance of them. Until there was a delivery by the railroad company, and the car was being unloaded, there was no opportunity to make such an examination of the goods as would disclose the condition of those in the middle of the car. The purchaser might rely upon the goods being merchantable at the time of shipment, and upon their being packed in the manner and with the care usual to prevent their deterioration and decay while in transit. If the goods were unmerchantable at the time of shipment, or if they became so before arrival, because of the unusual and negligent manner in which they were packed by the vendor, it was the right of the vendee to refuse them. These points are sufficiently covered by the affidavit of defense, and we are of opinion that it was sufficient to prevent judgment, and to entitle the defendant to go to trial. The judgment is reversed, with a procedendo.

STURGIS v. KOUNTZ. (Supreme Court of Pennsylvania. Jan. 7, 1895.) NEGLIGENCE-PROXIMATE CAUSE.

Where horses on a ferryboat are frightened by the whistle of a steamer met by the ferry, and a horse jumps against and breaks a defective rail placed across the entrance to the ferry, and is drowned, the defective rail, and not the blowing of the whistle, is the proximate cause of the loss of the horse.

Appeal from court of common pleas, Allegheny county.

Action by W. W. Sturgis against William J. Kountz, Jr., to recover the value of a horse and sulky lost by the horse leaping from de

fendant's ferryboat. From a judgment for plaintiff, defendant appeals. Affirmed. The opinion of the court of common pleas is as follows (White, J.):

"The only legal question raised at the trial, and the only point presented, was that of the defendant that, under all the evidence, the verdict should be for the defendant, which was refused. The question of the defendant's contributory negligence was submitted to the jury, and found in his favor. The negligence of the defendant was alleged to be a broken and defective rail across the wagon entrance, which was an insufficient guard; and, in consequence thereof, the plaintiff's horse and buggy broke through, and fell into the river. The evidence showed that the rail had been broken and spliced, and that a new rail had been ordered before the accident, but was not furnished until a day or two afterwards. The defendant's contention was that, admitting a defective rail, the plaintiff could not recover, because the proximate and controlling cause of the accident was the blowing of the tug's whistle, which frightened the horses, and for which the defendant was not responsible. This is the legal question upon the facts stated in the special verdict, which was reserved.

"The defendant, on the question of proximate cause, relies upon Jackson Tp. v. Wagner, 127 Pa. St. 184, 17 Atl. 903, and the subsequent cases of Worrilow v. Upper Chichester Tp., 149 Pa. St. 40, 24 Atl. 85; Herr v. City of Lebanon, 149 Pa. St. 222, 24 Atl. 207; Schaeffer v. Jackson Tp., 150 Pa. St. 145, 24 Atl. 629; and Kieffer v. Hummelstown Borough, 151 Pa. St. 310, 24 Atl. 1030. But all these cases may be distinguished from the one at bar. In Jackson Tp. v. Wagner the plaintiff's horse was frightened at two donkeys on the road, suddenly turned round, broke off a wheel of the wagon, ran back some distance, when the hub of the broken wheel struck a stone pile, and the hind wheel dropped into a depression in the road, overturning the wagon, and injuring plaintiff. The road was in good condition for a width of 15 feet at the place of the accident, and safe for all ordinary purposes. It was held that if the plaintiff's injury was not due to any unsafe condition of the road, but to the successive accidents which befell her, and which had no connection whatever with the road or with the doings or misdoings of the supervisors,' the township was not liable. In Worrilow v. Upper Chichester Tp. the plaintiff was driving in a wagon, and, to avoid two bulls that were fighting in the road, he drove close to one side, when his wagon struck a tree projecting over the road: He was thrown out and injured. As the road was sufficiently wide and safe for all ordinary purposes, the fact that the tree projected somewhat over the road, it was held, was not negligence in the township. In Herr v. City In Herr v. City of Lebanon the plaintiff was a passenger in an omnibus going up a hill, when one of the v.30A.no.20-62

horses fell, and, in his repeated struggles to get up, dragged the other horse and vehicle to the side of the street, and the omnibus and team went over a steep declivity, injuring the plaintiff. The street was 20 feet wide, and in good condition. It was held that the proximate and efficient cause of the accident was the fall and struggles of the horse; that, even if there was not negligence in not having a guard rail at the declivity, the city was not liable, because this was such an accident (the fall and struggles of the horse) as the city was not bound to anticipate or guard against. Schaeffer v. Jackson Tp. was another case arising out of the same accident as Jackson Tp. v. Wagner, where the horse was frightened by the donkeys. It was held that, although the township may have been guilty of negligence in not remedying a defect in the highway, yet in this case the township was not liable, because there was a concurring outside cause (scaring at the donkeys), which was not a natural or probable consequence of not remedying the defect in the road, and not such an event as might be foreseen by ordinary foresight, and to be guarded against. In Kieffer v. Hummelstown Borough the plaintiff's horses became frightened at the firing of guns, and the horse he was riding fell on a pile of stones at the side of the road, crushing his leg. It was held that, as the road was sufficiently wide and safe for all ordinary purposes, the borough was not liable, because the frightening of horses by the firing of guns was not a danger that could reasonably be anticipated, imposing a duty on the borough to guard against it. It was said that, to enable a plaintiff to recover, he must show that the ordinary needs of the public travel, conducted in the ordinary way, had not been anticipated and provided for, and that his injury was a natural and probable consequence of the neglect of this duty.' Jackson Tp, v. Wagner, Worrilow v. Upper Chichester Tp., and Schaeffer v. Jackson Tp., were cited and approved. This brief review of those cases shows that they were all decided on the ground that there was no responsible negligence on part of the defendants. The accident occurred from outside or extraordinary causes, against which the defendants were not bound to provide, because they were not to be anticipated or foreseen by ordinary foresight.

"In the case at bar it was undoubtedly the duty of those in charge of the ferryboat to guard against accidents from horses becoming frightened on the boat, for that might fairly and reasonably be anticipated. It was something that might naturally and probably be expected. No doubt for this purpose the guard rail at the wagon entrance was provided. Horses might be frightened by the shaking and moving of the boat on the water; they might be frightened by passing boats or steam whistles on the river; and these were matters to be expected and provided against. Whether the ordinary rail used on this ferry

boat was sufficient for all ordinary purposes, or was such as would have prevented this accident, we do not certainly know. I am inclined to think that the ordinary rail would have given way from the force with which the horse struck it. In his fright he whirled suddenly round, and struck it with his body. It would have required a very heavy and strong rail to have prevented him from plunging into the river. But the rail was defective. It had been broken, and was spliced temporarily until the new rail could be procured. The very fact that a new rail had been ordered indicates that the men in charge thought it was not safe or sufficient. Upon the facts stated in the special verdict, we are of opinion, on the question of law reserved, that the law is with the plaintiff, and order judgment on the verdict for the plaintiff on payment of the verdict fee."

Patterson & Smith, for appellant. M. H. Stevenson and W. T. Tredway, for appellee.

DEAN, J. The defendant was the owner of a ferryboat, William Thaw, plying between the lower part of Allegheny City and south side of the Ohio river. On 9th of February, 1892, the plaintiff, Dr. W. W. Sturgis, a practicing physician, drove on the boat in a light two-wheeled sulky, to be ferried from north to south side. The boat left the wharf, and was some distance from it, in the channel, when it was passed by a small tugboat, the John Dippel, which, when near to the Williaw Thaw, blew its steam whistle. This frightened the horses, of which there were a number on the ferryboat. The entrance on the boat from the landing had been closed by a wooden rail or bar, to prevent frightened or unruly horses from backing vehicles off the boat, or from plunging over into the water. When frightened by the scream of the whistle, the horses commenced backing and plunging. The plaintiff was sitting in his sulky, the horse's head in the direction of the forward part of the boat, and the rear of the sulky not far from the crossbar which protected the entrance. In front of him was a two-norse team, which backed against plaintiff's horse. His horse then backed, turned almost around towards the outside of the boat, struck the crossbar with his shoulder, broke it, and plunged into the river with sulky and driver. The horse was drowned, the sulky lost, but the owner was rescued without sustaining any serious personal injury. He brought suit for loss of his horse and sulky against defendant, the owner of the ferryboat, averring negligence in putting up and using a defective and insufficient crossbar to protect the owners of teams in traveling on the boat. The bar had been broken and spliced, to be used, temporarily, until a new one was procured. Several days before the accident, the inspector of hulls had called attention to the defective rail, and directed it should be replaced. The jury

rendered a special verdict for plaintiff, in the sum of $365 damages, subject to the opinion of the court on the question whether the blowing of the whistle on the tug Dippel was the proximate cause of the accident, in the sense that the owner of the Thaw was not responsible, even if the guard bar or rail was defective. If so, then judgment to be entered for defendant, notwithstanding verdict for plaintiff. The court afterwards, in an opinion filed, entered judgment for the plaintiff on the verdict. From this defendant appeals.

While, as argued by appellant, the liability of a ferryman, under the facts in this case, was not exactly as great as that of a common carrier of goods, nevertheless, having undertaken to carry the plaintiff, with his horse and vehicle, for hire, his duty was to carry safely as against defects and insuffi ciency of his boat or neglect on part of himself and servants. At the same time, the plaintiff, the owner of the horse and sulky, assuming the care of them while on the boat, was bound to exercise ordinary watchfulness and skill to prevent loss or injury. Wyckoff v. Ferry Co., 52 N. Y. 32. And, as is said in Clark v. Ferry Co., 35 N. Y. 485: "They [the owners of the boat] are also required to be provided with all proper and suitable guards and barriers on the boat, for the security of the property thus carried, and to prevent damage from such casualties as it would be naturally exposed to, although ordinary care is required on the part of the traveler." In this last case, as here, a horse was lost while the owner was in the vehicle. It took fright, and backed against the chain which was used to close the entrance to the ferry deck. The chain broke, because of a defective hook in it. The ferry company was held answerable for negligence. To the same effect are Lewis v. Smith, 107 Mass. 334; Walker v. Jackson, 10 Mees. & W. 161.

Therefore, in view of the verdict, the single assignment of error for our consideration is the one urged that, even if the broken rail was defective, the proximate and controlling cause of the accident was the blowing of the tug whistle, for which defendant is not answerable, and that the court erred in not so instructing the jury. The question of negligence of defendant in not providing such a guard rail as ordinary care required, and the question of the alleged contributory negligence of plaintiff in not getting from his sulky, and taking his horse by the head, and' quieting him, were both fully and impartially submitted to the jury, and found against defendant. It seems to us, under the facts, the blowing of the whistle, although the originating cause of the injury, cannot relieve the defendant from liability. The cases cited and presented so concisely by the learned counsel for appellant are unanswer able when applied to the facts in them, and even to facts as he assumes them to be in this issue, if some of the significant inter

is that the injury must be the natural and probable consequence of the negligence,-such a consequence as, under the surrounding circumstances of the case, might and ought to have been foreseen by the wrongdoer, and likely to flow from his act." Township of West Mahoy v. Watson (Pa. Sup.) 3 Atl. 869. To the same effect is Behling v. Pipe Lines, 160 Pa. St. 359, 28 Atl. 777. And so all the cases cited on both sides, either expressly or by implication, rule.

Was the plunging of this frightened horse against the guard rail such a consequence as ought to have been foreseen by the owner of the ferryboat? The primary cause of the plunging was the blowing of the whistle; but the primary is by no means always the natural and probable cause of the particular injury. It is not when there is a sufficient and independent cause between it and the injury. In such case resort must be had by the sufferer to the originator of the intermediate cause. As is said by Agnew, J., in Railroad Co. v. Hope, 80 Pa. St. 377, the question is: "Was there a continuous succession of events, so linked together that they become a natural whole, or whether the chain of events is so broken that they become independent, and the final result cannot be said to be the natural and probable consequence of the primary cause." The primary, natural, and probable consequence of the blowing of the whistle was the fright of the horses, and their rearing and plunging. Any injury they might have done to each other, or those in charge of them on the boat, would not have been attributable to the owner of the ferryboat, because that was the consequence of the primary cause,the blowing of the whistle. But what is naturally to be expected from a frightened horse on the narrow circumscribed deck of a ferryboat? Manifestly, that he will plunge off it into the water. This the ferryboat owner, to a large extent, provided against by guard railing of sufficient strength all around the boat except at the one place,-the entrance; and here it was usually strong enough to prevent such an accident, but on this day was not. The horse plunged against the spliced and defective rail, which broke, and it went over. Here was an independent intermediate cause or omission of duty, without which, notwithstanding the primary cause, the injury would not have been suffered. And the jury, on sufficient evidence, have found defendant was negligent in maintaining a defective guard rail at that point. Says Appleton, C. J., in Moulton v. Sanford, 51 Me. 134: "Ordinarily, that condition is usually termed the 'cause' whose share in the matter is the most conspicuous, and is the most immediately preceding and proximate in the event." It does not help us much in the administration of justice to refine on the distinctions between "cause" and "condition" in bringing about results. Taking the case before us on its facts, it is not essentially different from Hey v.

tiff was driving his horse in a park maintained by the city for the use of the public. He was on a roadway 50 feet wide, which curved round the declivity very near a steam railroad, the high bank on the right of the roadway descending very abruptly to the Schuylkill river. At this side there was no barrier or railing. The horse took fright at a locomotive whistle on the railroad, plunged down the bank into the river, and was drowned. This court held it was for the jury to say whether, under the circumstances, it was negligence in the city not to have erected a proper barrier at such a point. If such omission were negligence, then that condition interposed between the originating cause-the blowing of the whistle-and the event, so as to constitute the negligent omission the efficient and proximate cause of the loss. To the same effect are Alger v. Lowell, 3 Allen, 398; Norris v. Litchfield, 35 N. H. 271; City of Joliet y. Verley, 35 Ill. 58.

The owner of the ferryboat in this case, on whom was the duty of care according to the circumstances, ought to have foreseen such a result, because it was natural and probable, and have guarded against it by a sufficiently strong rail. The fact is he did foresee it, but negligently did not guard against it. His business was to ferry persons and vehicles across a navigable river, at a point where other water craft were constantly passing and repassing. When approaching each other, passing or crossing each other's path, signaling or warning by steam whistles is the settled custom. Whether any less startling signal might, with comfort and safety, have been adopted, has not yet been determined. It is now, and has been since the use of steam power, the recognized method of communication between steam vessels. He knew this, and could not have been ignorant of the fact that fright by a screeching whistle was a constant menace to the safety of the animals and those having them in charge on that boat. Horses will take fright at just such noises, especially in such a situation, penned up on a boat. That, when frightened, they would press against each other and the guard rails, he was bound to know, for he was bound to have such knowledge of his business as would enable him to conduct it with reasonable safety to the public, whose patronage he invited. If the blowing of a steam whistle by a passing vessel had been out of the ordinary course of things, or if it were out of the ordinary and usual habit of horses to take fright at such a sound, he would not have been expected to foresee and provide against such an accident. Ordinary care would not have required precaution against extraordinary contingencies. But, here, the breaking of the bar, by the pushing of a frightened horse against it, was the natural and probable consequence of putting such a defective bar there; and this was the negligence which, under the circumstances, was the proximate cause of plaintiff's

1. Plaintiff, a tinner in defendant's employ, was directed to repair the roof of a passenger car which was standing on a side track. Soon after he began work, an engine was attached to the car, and it was drawn rapidly forward. He walked forward on the upper deck of the roof, to learn the cause of the movement. As he neared the front end he turned his head to one side, to avoid the smoke and cinders, which came directly against his face, and was struck on the neck by a guy wire stretched across the track. The wire was 57 inches higher than such upper deck, and 74 inches higher than the main roof of the car, and plaintiff did not know of its existence. Held, that the questions of negligence and contributory negligence were for the jury.

2. Where the negligence charged was in maintaining such wire, if it could be reasonably anticipated by defendant that at some time a passenger car might pass under the wire while an employé was on the roof, it was its duty to place the wire high enough to avoid striking such person.

Appeal from court of common pleas, Allegheny county.

Action by John A. Stoltenburg against the Pittsburgh & Lake Erie Railroad Company for personal injuries caused by defendant's negligence. From a judgment for plaintiff, defendant appeals. Affirmed.

The assignments of error are as follows: "(1) The court erred in its charge to the jury, as follows: 'If it could be reasonably anticipated by the defendant company that at some time a passenger car might pass under the wire while an employé of the company might be on the top, or a mechanic be making repairs on the roof, it would then be the duty of the company to place the wire high enough to avoid striking such a person, and a failure to place it that high would be a neglect of duty, which would be negligence.' (2) The court erred in its answer to the defendant's point, which point and answer are as follows: "That, under all the evidence in the case, the verdict must be for the defendant. Refused.'"

Knox & Reed and Edwin W. Smith, for appellant. A. M. Brown and John D. Brown, for appellee.

FELL, J. At the time of his injury, the plaintiff was in the employ of the defendant, as a tinner. He had been working for sey

eral months at the company's shops, and on the morning of the accident was sent to a station some miles distant, to make repairs on the roof of a passenger car. The car was standing on a side track, and he was told that it would remain there until noon, and that he would have ample time to do the required work. He had been on the top of the car but a short time, when an engine was attached to it. It was drawn rapidly forward, and he was struck by a wire stretched across the tracks, and seriously injured. When the car moved, he arose from his work, and walked forward on the upper deck, to learn the cause of the movement. As he approached the front of the car, the smoke and cinders from the engine came directly against his face, and, to avoid them, he turned his head to one side, and was struck by the wire almost immediately afterwards. The wire, which was used as a guy to support a pole, was stretched across the track at a height of 19 feet and 1 inch, and the top of the upper deck of the car was 14 feet and 4 inches above the tracks. The main roof was some 17 inches lower. plaintiff was not employed in the movement of trains, and he had no knowledge of the existence of the wire. There was nothing to call for unusual vigilance, upon his part, to avoid such a danger, nor was there anything to warn him of it. His only opportunity to avoid it was during the few moments after the car had started, when he was in a position of danger, without neglect on his part, and when he was bewildered by smoke and cinders from the engine. He was held by the charge to the full measure of duty in this respect, and the case could not have been taken from the jury, either upon the ground of contributory negligence, or of the negligence of an employé in moving the car.

The

The remaining assignment relates to the portion of the charge excepted to, and we are of opinion that, under the facts of the case, it cannot be sustained. The negligence charged against the defendant was in maintaining a wire improperly and negligently strung across the tracks. While this might not have been dangerous to men employed in the movement of freight trains, because of the smaller size of the cars, or to those engaged in the ordinary operation of the road, it was still a fair question for the jury whether, in the use of the siding for passenger cars, and their repair thereon, the wire was not a source of manifest danger to the company's employés. If the use was probable, and the danger was one to have been reasonably anticipated, the defendant was held to the duty of guarding against it. The case, as was said by the learned judge before whom it was tried, is a close one; but we think it could not have been taken from the jury, and it was submitted in a charge which clearly and adequately stated the law applicable to the testimony. The judgment is affirmed.