employment. Mills was about thirty years old; he had been a lineman for five or six years; he had the reputation of being a skilled workman and prided himself upon the fact. On July 27, 1910, the day of the accident, Metzgar, the foreman of the gang, gave Mills orders to go up this pole and cut around some arc circuit wires. Mills went on this pole and completed the work, as he thought, which had been assigned to him. The foreman called his attention to the fact that he had forgotten to close his circuits. Mills went back on the pole and a short time afterwards met with the accident. If Mills had done his work properly the first time, there would have been no occasion for him to go up the second time.

Mills knew the primary wires were on this pole and their location. He knew the dangers incident to working on this pole. Before going upon this pole he said he hated the telephone wires. Metzgar warned Mills before he went upon this pole the second time to be very careful and that he should not crawl up into the primary wires, that it was dangerous.

Under these facts we are of opinion that the plaintiff's decedent assumed the risks naturally and reasonably incident to his employment. He was perfectly acquainted with the conditions existing on the pole. He knew the dangerous character of the work in which he was engaged. He voluntarily engaged in it:

Diehl vs. Iron Co., 140 Pa. 487, and cases cited.

Where a workman employed by a telephone company is injured by coming in contact with an electric light wire, attached to a pole on which he is working, and he was aware of the danger connected with such wires, the risk is one which is assumed and he cannot recover: Moyer vs. Co., 4 Lehigh County Law Journal, 268.

Upon all reason and authority he was bound by the consequences of his own act and cannot recover.

Plaintiff's decedent had been warned by the foreman to be careful about the wires.

This was evidence of contributory negligence in the plaintiff, and that he assumed the risk: Lehigh Valley Coal Co. vs. Jones, 86 Pa. 432.

"While electric companies are bound to use the highest degree of care practicable to avoid injury to

everyone who may be in lawful proximity to their wires, yet the ordinary person is held to know that danger attends contact with electric wires, and it is his duty to avoid them so far as he may. If one heedlessly brings himself in contact with such wire, and is injured in consequence, his imprudence must be regarded as a contributory cause and will prevent a recovery:" Haertel vs. Penna. L. & P. Co., 219 Pa. 640 (1908).

"It is the duty of a plaintiff seeking to recover, when the gravemen of the action is the alleged negligence of the defendant, to show a case clear of contributory negligence on his part. In other words, he must establish a prima facie cause of action resulting exclusively from the negligence and wrong of the defendant, before the latter need answer at all:" Waters vs. Wing, 59 Pa. 211.

What Mr. Justice Stewart speaking for the Supreme Court says in Lee vs. Dobson, 217 Pa. 349 (1907) at page 352, is fully applicable to the case at bar: "There is no uncertainty in the law applicable to cases of this kind. The master is not an insurer of the servant's safety. While he is required to furnish reasonably suitable and safe means with which to carry on his business, yet the servant will be deemed to have assumed all risks naturally and reasonably incident to his employment; and to have notice of all risks which to a person of his experience and understanding are or ought to be open and obvious. When one undertakes a perilous employment by operating a machine obviously wanting in suitable appliances for safety, knowingly and voluntarily, he cannot afterwards complain in case of injury in consequence thereof that the machinery was of a dangerous kind, and that it was wanting in appliances reasonably necessary to render it safe. In the light of the

evidence the plaintiff's employment was a specially dangerous one, and for this the plaintiff engaged with full appreciation of the risk. Having voluntarily and knowingly assumed the risk, now that he has suffered in consequence, he can have no recourse upon his employer.'

From the foregoing discussion we conclude that plaintiff's decedent was guilty of contributory negli

gence, that he assumed the risk of his employment and that the compulsory non-suit was properly entered.

Now, December 26, 1912, the motion to take off the non-suit is refused.

Eo die, to this action of the Court in this respect an exception is noted for the plaintiff and a bill sealed.

FRICK vs. LEHIGH VALLEY TRANSIT CO.

Verdict-Weight of Evidence-New Trial.

While the Court is very reluctant to interfere with a verdict of a jury based on facts, still, where the verdict is so clearly against the great weight of the evidence, a new trial will be granted.

In the Court of Common Pleas of Lehigh County. No. 18 September Term, 1911. Eliza Frick and William R. Frick vs. The Lehigh Valley Transit Company. Trespass. Rules for Judgment, n. o. v., and a New Trial.

Allen W. Hagenbach, for Plaintiffs.
Arthur G. Dewalt, for Defendant.

Heydt, P. J. 56th Judicial District, specially presiding, November 13, 1912. Upon the argument it was admitted that the court could not have directed a verdict for the defendant under the evidence at the time of the trial, from which it follows that the court could not now enter judgment n. o. v. and therefore the rule for judgment n. o. v. must be discharged.

The rule for a new trial is pressed only for the reason that the verdict is against the weight of the evidence.

On March 26, 1911, Eliza Frick, one of the plaintiffs, left her home in Allentown and accompanied by her daughter, Helen, about nine years old, went on a visit to Catasauqua. About 9 P. M. she came to Pine and Front streets to take one of defendant's trolley cars to return home. What happened according to Mrs. Frick's testimony is, that when the car stopped, she attempted to get on and got as far as the edge of the platform, then the conductor rang the bell and started the car, then she hollered "my little girl is not on" and that by reason of

the sudden starting of the car she was thrown from the car and sustained the injuries, to recover damages for which this suit is brought.

What happened according to the testimony of the defendant's witnesses is that Mrs. Frick was safely on this car and the car was started in the usual way, that she discovered her little girl was not on the car, that she either jumped off or was thrown off the car while the car was in motion; that the conductor tried to prevent her from jumping or getting off the moving car and told her he would stop the car, but that he could not prevent her from getting off.

The plaintiff's testimony, if believed, warrants her recovery. Her testimony, however stands alone and is not corroborated in respect to any essential fact. On the other hand five witnesses, all of them intelligent and disinterested, all with a favorable opportunity for knowing, testify to a state of facts which, if believed, would compel a verdict for the defendant.

The question now before the court is whether the preponderance of the evidence is so great in defendant's favor as to move the court, to set aside the verdict. No benefit could be obtained from a citation of authorities or a discussion of the law.

In the case of Holden vs. Penna. R. R. Co., 169 Pa. 1 (1895) which may be considered a leading case on this subject, Mr. Justice Green speaking for the Supreme Court, said, at page 17:

"The second verdict was manifestly against the law and the evidence, and should have been promptly set aside by the learned court below. When juries are so palpably regardless of their duty, and of the sanctity of their oaths, that they permit their verdicts to be rendered in obedience to their prejudices or their sympathies, as is too often the case, the trial courts should deal with them in a firm and decisive manner and should reject their erroneous verdicts without the least hesitation or delay. Otherwise the administration of justice is brought into public contempt and dishonor.

While the Court is very reluctant to interfere with the verdict of a jury based upon facts. the ascertaining of which was exclusively within its power; and while we cannot, (or at least will not), say that the verdict in the

present case is a perverse one, we feel that the verdict is so clearly against the great weight of the evidence, that another jury should be given an opportunity to verify the correctness of the verdict before it be allowed to stand.

Now November 13, 1912, the rule for judgment n. o. v. is discharged; the rule for a new trial is made absolute; the verdict is set aside, and a new trial granted.

Eo die, exception noted to the plaintiff and to the defendant to the foregoing action of the court, and to each a bill is sealed.

ROLLAND vs. COHEN.

Landlord and Tenant-Lease-Construction-Lease of Storeroom-Right of Lessee to Erect Show Case Againsl Front of Building.

A lease will be construed in the light of the situation at the time and as applied to the subject matter concerning which the parties were dealing.

The owner of a realty may divide it up by leases in any way he sees fit.

The owner of a building leased part of it to the defendant as a storeroom and put in a front whose design visibly included the whole front extending to the outer wall of a partition which separated the storeroom from a hallway which led from the street to back part of the building. Subsequently, the owner leased the said hallway to plaintiff who erected a show case on the front of the building extending over the partition line onto the storeroom front. The lessee of the storeroom tore down the show case and erected one of his own in its place. The plaintiff then filed a bill in equity asking the court to compel the defendant to remove his show case and to restore the plaintiff's. Held, that the plaintiff by his lease acquired no right to use any part of the face of the building for the purpose of placing a show case against it.

"Partition."

In legal contemplation a partition is not a party wall.

Equity.

Equity will not determine a right which a party to the cause has no standing to raise.

Municipal Law-Obstruction of Sidewalk-Equity-General

Relief.

Where the erection of a show case against the face of a building does not involve any violation of municipal regulations or amount to an obstruction more injurious than the complainant claims the right to erect in the same place, equity will not grant general relief.