between the rails, and before the chain was attached a car from the main track to a siding. S. attempted | his footsteps, and that this want of care was due to hitch a horse to the car, but whilst the horse was to the distraction caused by his knowledge of his danger, and by watching and guarding against the extra danger of a moving car which he could have avoided, and under these circumstances he cannot recover, and the verdict should be for the defendants. to the car, B. loosened the brake, and the car started down a grade. S. held the reins in his left hand, and attempted to attach the chain with his right, but failing, called several times to B. to stop the car, but the brake was not applied. S. ran ahead of the car for upwards of fifty feet, when his foot became fastened in the rails, and the car running over him caused the injuries for which suit was brought. The Court refused to grant a compulsory nonsuit: Held, That the question of contributory negligence was properly submitted to the jury. Answer. We cannot affirm this point as stated, but refer to you for determination the question whether the accident of the plaintiff was in any degree due to a failure on his part to exercise reasonable and ordinary care. If the accident was not due alone to the negligence of Mr. Bobb, Error to the Common Pleas of Cumberland and was contributed to in any degree by the plainCounty. Case, by Felix Shumpp against Charles R. Woodward, John D. Graybill, and John G. Bobb, trading as Woodward, Graybill & Co., Limited, to recover damages for injuries received while operating a railroad owned by defendants. Plea, not guilty. tiff, he is not entitled to recover. (Third assignment of error.) (2) If the Court should decline to affirm the first point, then if the jury believe that the plaintiff knew the danger of the position he assumed in front of a moving car, and attempted to hook the horse to it, and continued in that dangerous position for a distance of some sixty feet until his The facts, as they appeared upon the trial, are sufficiently set forth in the opinion of the Su-foot caught in the guard rail, and that he had preme Court, infra. ample time while passing over that distance to move outside of the railroad tracks, then his conduct was not that of an ordinarily careful and prudent man, and he cannot recover in this action. Answer. If the jury find the facts to be as stated in this point, and further find that the plaintiff was negligent in assuming the position that he did in front of the car, then we instruct you that he would not be entitled to recover in Upon the conclusion of plaintiff's testimony defendants moved for a compulsory nonsuit, which the Court refused, saying: "This motion raises the question: Did the plaintiff act as an ordinarily prudent man, with a like relation existing between him and the defendants, and under like circumstances, would have avoided? If he did not do so, and his failure to do so contributed to the injury, he was guilty of contributory negli-this action. (Fourth assignment of error.) gence. If he did act as an ordinarily prudent Verdict for plaintiff for $800 and judgment man, situated as he was, would have acted, then thereon. Defendants then took this writ, assignwe do not think he would be guilty of contribu- ing error, inter alia, as above. tory negligence. The fact that we may conceive that the plaintiff in the light of subsequent results might have acted in a manner by which this injury would have been avoided, does not alter the case. It does not clearly appear to us, from the evidence already submitted, that the plaintiff did not act as an ordinarily prudent man would have acted like situated, and therefore we would not be justified in taking this question from the jury. The motion for a nonsuit is overruled." (First assignment of error.) Defendants asked the Court to charge as follows: S. Hepburn, Jr. (Henderson & Hays with him), for plaintiffs in error.. F. E. Beltzhoover and J. M. Weakley, for defendant in error. May 21, 1888. THE COURT. It is contended by the counsel for Woodward, Graybill & Co., Limited, that the admitted facts of this case exhibit clear contributory negligence on the part of Felix Shumpp; that the case should not have been submitted to the jury, but the Court should have given specific and binding instructions to find for the defendants. The first and second points submitted by the defendants' counsel were doubtless intended to raise this question in the Court below, and, as they were refused, we will consider the case as if the points were in this precise form. (1) The evidence of the plaintiff shows that he was in the employ of the defendants; that at the time of the accident he was doing work which he had been employed to do, and which for many years he had been in the habit of doing, A brief reference to these facts is necessary to and with the risks and dangers of which he was a complete understanding of the case. In the rewell acquainted, and, if his own testimony be be- cital of the circumstances under which the injury lieved, he stepped in front of a moving car, and was received, we, of course, assume the proof of put himself and remained in an extra-hazardous the plaintiff's testimony, as it is upon this theory position, and that the direct cause of the accident of the case the defendants contend the plaintiff was the want of care on his own part in watching cannot recover. Woodward, Graybill & Co. were, in the year structions at the side of the track, which pre1883, engaged in the coal, grain, and forwarding vented him from leaving it, and as the car adbusiness in Carlisle. John G. Bobb was a mem-vanced towards him he was obliged to keep out ber, and Felix Shumpp an employé of the com- of its way, under all the embarrassments stated. pany. On the 24th of August, of that year, Bobb If these facts are true, can it be pretended that called upon Shumpp to assist him in shifting a car the Court would have been justified in saying, as from the side track to the main track of the matter of law, that Shumpp was guilty of negliCumberland Valley Railroad Company, for some gence? The rate of speed at which the car was purpose connected with the business of the de- moving, the nature and extent of the obstructions fendants. Shumpp, by Bobb's direction, hitched at the side of the track, the spirit and conduct of a horse to the west end of the car and hauled it the horse, and the manner in which the plaintiff up the grade to a point above the switch, where conducted himself throughout the transaction the brake was applied. The horse was then un- were all matters to be considered in arriving at a hitched and driven to the east end of the car to conclusion on the question of contributory neglipull it back on the main track. Whilst the horse gence. The plaintiff, as we said in Lee v. Woolwas between the rails, and before Shumpp could sey (109 Penn. 104), must in all cases "show a attach the chain to the bull-nose of the car, Bobb case clear of his concurrent negligence, a case reloosened the brake, and the car, impelled by its sulting exclusively from the negligence and wrong own gravity, started slowly down the grade; of the defendant; but when the measure of care, Shumpp, holding the line in his left hand, at- which he ought to have exercised, shifts with the tempted to attach the chain to the car with the circumstances, or when the care which ought to right; the horse was a spirited animal and he be exacted from an employé has been varied by did not succeed. He called repeatedly to Bobb his employer, the jury alone can determine to stop the car, but the brake was not applied, whether he negligently performed his duty." and after advancing fifty feet or more in the ef- We are of opinion that the case was one for the fort to hitch the horse, his left foot became fast-determination of the jury, and that it was fairly ened between the guard rail and the north rail of the track; the car came upon him, and cut and crushed his left leg so that amputation became necessary. submitted. The judgment is affirmed. GORDON, C. J., and TRUNKEY, J., absent. It is undoubtedly true, as a general proposition, that one who places himself on the track in front of a moving railroad car assumes a place of known danger, and will ordinarily be supposed July '87, 116. to accept the peril and risk to which he thus recklessly subjects himself. It is equally true H. C. O. January 16, 1888. Schmidt v. McGill. where he engages to perform a hazardous work Negligence-Contributory negligence-Ordinary care What constitutes - Driving in cityJudge's charge. are required to use care, the material question is, who was negligent? and this is a question for the jury. A. was run over at a street crossing by B.'s servant, that the driver was going at a rapid pace, but this he who was driving a wagon. There was some evidence denied. B. asked the Court to charge "That if the jury believe that the driver was travelling in an ordinary manner, the defendant is not liable for an injury resulting from the use of the public street." This the he takes the risks incident thereto (Rummel v. Dilworth, 111 Penn. 343; Railroad Co. v. Hughes, 21 WEEKLY NOTES, 166); but if the master, by any negligent act not involved in or In an action to recover for injuries resulting from reasonably incident to that work, causes his serv-negligence under circumstances in which both parties ant to receive a personal injury, he is responsible therefor, if the servant did not otherwise contribute to the result. When Shumpp placed him. self in front of this car he did so by the direction of Bobb, his employer, and had no reason to suppose that the brake would be lifted until he had completed the connection with the car. Before this could be done, however, the car was set in motion, and he was obliged to regulate the movements of his horse, observe the approach of the car, watch his opportunity to connect the hook with the car, and have regard for his own safety, all at one and the same time. He had committed himself and the horse to the space in front of the car on the track, whilst the brakes were on, and the car standing still; and it was the negligent act of Bobb which put the car in motion before Shumpp was prepared for it. There were piles of railroad iron and other ob- [delphia County. Court refused to do: Held, not to be error. Waters v. Wing, 59 Pa. St. 211; Goshorn v. Smith, 92 Id. 435, and Baker v. Fehr, 97 Id. 70, distinguished. Where the testimony is neither complex nor vospecially on the evidence, it is sufficient if the attenluminous, it is not the duty of the Court to comment tion of the jury is clearly called to the law governing the case. Error to the Common Pleas No 1, of Phila Case, by Mary McGill, against Christian "The case has been gone over thoroughly by Schmidt, to recover damages for injuries caused both counsel, and you have had the plans shown by the alleged negligence of defendant's servant. Plea, not guilty. On the trial, before BIDDLE, J., the following facts appeared: On May 27, 1884, between nine and ten o'clock in the morning, an employé of the defendant was driving a two horse wagon, loaded with kegs of lager beer, up Eleventh Street, in the city of Philadelphia. According to the defendant's evidence, the driver of the wagon was driving at a moderate rate of speed; but the witnesses for the plaintiff testified that he was driving "at a right fast trot for a beer wagon," and that the "driver did not slacken speed when he came to the crossing." At the same time the plaintiff was going west, on the north side of Susquehanna Avenue. The plaintiff testified that she looked about and saw that the road was clear, and then proceeded to cross Eleven th Street. As she attempted to pass over, she was knocked down by the defendant's wagon, and the injuries were inflicted for which this suit is brought. The defendant submitted the following point: If the jury believe that at the time of the alleged accident, the driver was travelling in an ordinary manner the defendant is not liable for an injury resulting from the use of the public street. Answer. Refused. (First assignment of error.) The Court charged as follows:— "This is an action brought by Mrs. McGill against Christian Schmidt to recover damages for an injury inflicted by his driver. It is not denied that Foelker was Schmidt's driver at the time of the accident, so that, if he was guilty of negligence, the defendant is the proper person to sue. you. Mr. Dougherty and Miss Nagle both testify that the driver was on the other side of Susquehanna Avenue when they first saw him, and he says so himself in his testimony. Now you must consider whether it was negligence for Mrs. McGill to attempt to cross then, and whether he should have stopped. "If the plaintiff establishes her case, you will consider the question of damages. "The damages will be compensatory. I don't think there is any question of vindictive damages in this case. In considering the question of damages, you will take into account the direct expenses incurred, the loss of time, bodily suffering, and any incurable injury. These are the elements of the damages. "Of course, the mere fact of an accident is not proof of negligence. Your own common sense will tell you that." The defendant excepted to the charge on the ground that it was "inadequate in this, that it did refer to the facts proved at the trial, and did not direct the attention of the jury to the contributory negligence of the defendant in error." (Second assignment of error.) Verdict for the plaintiff for $3000 and judgment thereon. Whereupon the defendant took this writ, assigning for error the answer to his point, and the Judge's charge as above. Joseph L. Tull, for plaintiff in error. Where both parties, at the time of an accident, are in the lawful use of a public street, negligence is not to be presumed from the mere fact of an accident causing injury and death. R. R. Co. v. Long, 25 Smith, 257. Waters v. Wing, 9 Smith, 211. The charge was wanting in not referring to those acts of the plaintiff, alleged by the defendant to amount to negligence on her part. "This accident occurred on a public highway, where both parties had the right to be, but both parties must exercise that right in an ordinary and reasonable manner. It is impossible to define their exact duties, and the ordinary and reasonable care must depend upon the circumstances of each particular case. There is no obligation on the part of persons driving along the public streets to haul up their horses and stop at every crossing. Nor must people look in every possible direction for vehicles approaching and cipher out George H. Earle, Jr. (Richard P. White with how long it will take them to arrive at the cross-him), for defendant in error. ing. Each must exercise reasonable and ordinary The charge of the Court will show that everyOf course, more caution must be used at thing was said by the Judge which he ought to crossings than at other parts of the highway, for have said; but even if this were not so, mere that is where the stones are placed to cross. The omission to charge is not error in the absence of obligation is mutual. Each must use reasonable special requests so to do. and ordinary care. care. "This being an action for negligence, the plaintiff must establish that fact. If both parties are at fault, the verdict must be for the defend Reeves v. R. R. Co., 6 Casey, 463. Company v. Getz, 113 Pa. St. 219. Fox, 96 Id. 60. The case of Waters v. Wing, cited by the ant. You should be satisfied that there was neg-plaintiff in error, has been overruled. The law ligence on the part of one party alone. is that the care to be exercised is that which careful drivers are accustomed to use, not that of both, and the former ran his horse so hard which is ordinarily used. McIlvaine v. Lantz, 100 Pa. St. 589. Clerk v. Petrie, 6 Ct. of Sess. 1076. Helmrick v. Hart, 16 N. Y. Weekly Dig. 356. against one of the shafts of the buggy as to instantly kill it. Thus, whilst the rule cited was altogether proper for the case to which it was applied, it would be altogether improper for the case in hand. Nor are the cases of Goshorn v. Smith (92 Pa. 435), and Baker v. Fehr (97 Id. 70), more in point than the one cited, for in neither did the accident happen through the negligence of the defendant. In the one, the plaintiff, unexpectedly to the driver of the wagon, by which May 21, 1888. THE COURT. We have be- he was injured, moved suddenly in the way of fore us two assignments of error for our consider- the coming team, and in such a manner that the ation: the first to the Court's answer to one of defendant could neither anticipate nor guard the defendant's points, and the other to the against the accident. In the other, Fehr, the decharge. The defendant requested the Court to ceased, was struck and killed by a passing ice rule that "if the jury believe that at the time wagon. He had just got off the front platform of a of the alleged accident, the defendant's driver street car, whilst the wagon was passing; several was travelling in an ordinary manner, the defen- persons endeavored to warn him of his danger, dant is not liable for an injury resulting from the and the driver did what he could to stop his mules, use of the public street." This request was re- but Fehr either did not hear, or did not heed the fused. It is also alleged that the charge of the warnings, and backed or walked directly against Court was inadequate in this, that it did not re- one of the mules, and was killed. To discover fer to the facts proved at the trial, and did not the analogy between these cases, and the case properly direct the attention of the jury to the under discussion, is beyond our power; hence we evidence tending to establish contributory negli- conclude that it does not exist. Here is an accigence on part of the plaintiff below. We are of dent at a public crossing, where both team and foot the opinion that neither of these assignments can passenger had the right of way, and where both be sustained. The first, because it assumes the were required to use care. Who, then, was neglivery point in controversy. The question was, gent, if either? was the natural and material quesWas the driver of the beer wagon travelling over tion; and the solution thereof was clearly for the the public crossing in an ordinary manner? That jury, not for the Court. Nor can we discover any is, with the ordinary care which was requisite defect such as that complained of in the learned when passing a point such as that where the ac- Judge's charge. It is true, he does not comment cident happened. Common sense will teach any specially on the evidence, and calls attention only person of ordinary mental calibre, that what is to such of it as indicates the position of the wagon ordinary care must depend largely upon circum- when the witnesses first saw it. But the testistances. Trotting a team of horses at a "fast mony was neither complex nor voluminous, thererate for a beer wagon," may be well enough along fore, particular reference to it was unnecessary. the open street, whilst on the other hand, it may The attention, however, of the jury was very be gross carelessness when passing a crossing clearly called to the law governing the case. where foot passengers are constantly to be ex- The plaintiff must establish the fact of negligence pected, and among them many old people and on part of the defendant's driver; if both parties children. As the learned Judge, before whom were in fault, the verdict must be for the defenthis case was tried, well said, under such circum-dant; they must be satisfied that there was negstances both parties are held to ordinary care, and ligence by the one party alone. This was surely the careless party must suffer the consequences so plain that the ordinary juryman could not fail resulting from his own carelessness. Here was a to understand it, or if he did so fail, it was not place where both parties must be on the lookout; the fault of the Court. the one for passing teams, and the other for foot passengers. Both have the right of way, and both must be equally cautious. How then, is it possible to apply the doctrine found in Waters v. Wing (59 Pa. 211) to the contention in hand? The accident in that case did not occur at a crossing, but on the open road. The plaintiff's son, on horseback, was approaching the defendant, who was driving his buggy along the highway, which was abundantly wide for the safe passage The judgment is affirmed. S. H. T. Jan. '88, 43. May 10, 1888. Niagara Fire Insurance Company v. Miller. judgments against him to the amount of $500, when in fact judgments existed to the extent of $1500, which were a lien on the insured real estate. The company claimed, by reason of these misstatements and omission to disclose inInsurance Warranty-Forfeiture-Increase of formation material to the risk, that the contract risk-Waiver of forfeiture-Estoppel. In an action upon a policy of insurance, which contained, inter alia, a warranty on the part of the assured that he had not overvalued the property described nor omitted to state to the company information material to the risk, the defence was (1) that the assured did not make known that the sheriff had a levy on his household goods at the time, and (2) that he had said that the judgments against him did not exceed $600, whereas they exceeded $1500, and that both these things increased the risk within the meaning of the warranty: Held, that as the goods insured were not taken out of plaintiff's possession by sheriff, and as there was nothing in the policy to show that the company regarded a levy as an increase of risk, there was no breach of warranty unless the company could show that the assured knew that the risk was increased thereby : of insurance was void. The records produced in evidence showed that the sheriff had a levy on his personal property, but the proof showed that it was still in the actual possession of Miller; and the records also showed that the judgments then against him were about $1500. Plaintiff requested the Court to charge, inter alia, as follows: (2) "If the jury believe that the defendant, three days after the fire, sent the manager of the company to plaintiff's premises, who inquired as to the full circumstances attending the taking of the insurance, and with this information and full knowledge of all the statements now claimed by defendant to have been made by plaintiff at procuring insurance, and with the further information of the actual amount of liens, and that the personal property had been levied on by the sheriff, the company called on the plaintiff for proofs of loss, which were forwarded and then returned by the defendant for correction, and cor Held, further, that although the false statement as to the amount of judgments against the property was a breach of the above warranty, which the company did not waive by the mere calling for proofs of loss; yet if the company, after a full knowledge of the facts that created the breach of warranty, did not inform the insured that they would set up this defence, but misled him by various letters and subjected him to the ex-rected proofs on the printed blank sent for that pense of procuring proofs of loss, plans, and specifications, thus delaying him for nearly a year, they will then be estopped from setting up this defence. Error to the Common Pleas of Bedford County. Assumpsit, by Frank Miller against the Niagara Fire Insurance Company of the city of New York, to recover on a policy of insurance the loss occasioned by the burning of his house and personal property in Hyndman, Bedford County. purpose by the company were forwarded by plaintiff, and after that defendant called for plans and specifications, which he at great expense and trouble procured, and during all this time made no objection to the payment of this loss on any grounds, and wrote plaintiff's attorney the letters in evidence, the jury may find from these facts and circumstances the company waived the forfeiture of the policy on the grounds of any misstatement as to liens or execution on personal property and incumbrances or any omission to The policy contained, inter alia, the follow-state fully in relation thereto, and then the vering: "WARRANTY OF THE INSURED. "The assured by the acceptance of this policy hereby warrants that any application, survey, plan, statement, or description connected with procuring this insurance, or contained in or referred to in this policy, is true and shall be a part of this policy; that the assured has not overvalued the property herein described nor omitted to state to this company information material to risk. And this company shall not be bound under this policy by any act or statement made to us by any agent or other person which is not contained in this policy or in any written paper above mentioned." dict should be for plaintiff." Affirmed. (First assignment of error.) (3) "If the jury believe that Miller, in procuring the insurance, made the statement and representations in the manner testified to by the plaintiff, then he is entitled to recover under the contract of insurance and the pleadings in this case, if he made no concealments and was guilty of no fraud or bad faith." Affirmed. (Fourth assignment of error.) The Court charged, inter alia, as follows: [Assuming for the purpose of the statement that, On the trial, before BAER, P. J., the defend- as the defendant claims by the terms of the warant proved that at the time of the application ranty, this state of facts created a warranty, and for the insurance, the personal property insured that the breach of it made the policy void accordwas under levy and execution on a judgmenting to its terms, we still have to say to you that against the plaintiff, which he failed to disclose if the defendant, having knowledge of the breach, to the company's agent at the time insurance had time to make it void and did not do so, it is was effected; and that he stated that there were not void; for the law is that it is voidable at the |