less of consent; it is not a trade usage or custom. There is no such thing as discretion in trade usages or customs. They are absolute and final, unless set aside by agreement of statute. [3] A custom must be continuous, in that it should have existed without interruption, as controlling the subject-matter affected. While these and other elements are ordinarily for the jury, where it appears the custom or usage has been lately established, with but few instances of its recognition,, or it lacks other qualities to make it enforce able, the court should determine its nonexistence as a custom without submitting the question to the jury. It should be universal and uniform with respect to the territory covered by it, so that knowledge may be presumed. It must be certain-not one thing to one person, and something else to another. It must appeal to the courts as being reasonable, fair between persons engaged in the particular business, and not imposing unusual or oppressive conditions, or restrictive of the free and unlimited exchange or sale of commodities. [4, 5] Particular customs are such as prevail in some county, city, town, parish, or place. Knowledge of a local or particular custom may be shown by the receipt of actual information of the subject, or from evidence of circumstances upon which an implied knowledge may be found; but, where a person lives outside the place affected by a custom, presumptive knowledge does not apply and actual knowledge must be shown. Miller v. Wiggins, 227 Pa. 564, 569, 76 Atl. 711, 19 Ann. Cas. 942. [6] To establish the custom, Albus, plaintiff, living in Philadelphia, testified that, in the 22 years he had been in the business of manufacturing ladies' wear, there was a custom in the trade as to the time when goods were to be examined; such custom was known to the people who buy and sell woolens to and from manufacturers, and the custom was to "buy the goods three months ahead before he needs them to cut the piece; he never examines them and never sponges them, but puts them in stock, and when he gets ready for a piece, he takes out the goods and sends them to an examiner and sponger, and puts them in a different place, ready to be cut. *** The custom is to examine the goods when a manufacturer gets ready to make up the samples." Even though the goods were paid for and held as long as 6 months, it was the custom in the business to examine the goods when needed for manufacture, and not the custom to examine immediately, because "we buy from reliable people." When further questioned by the court as to the custom of time limitation within which an examination should be made, he replied, "About 60 days." If we are to assume some sort of custom evidence to show the extent of the one here contended for. If it was intended to cover all such transactions in the Eastern states, or part of them, so that it could be said to be a general custom, it should have been so stated. It might have been limited to the city of Philadelphia; but, as defendant is a New York jobber, it could not have affected him, unless he knew of it. The so-called custom is not as precise and certain as a rule of conduct should be that is intended to govern a designated subject-matter, uncertain in that the right to inspect may be in 60 days in some instances, in others 6 months, as they "deal with reliable people." All this is contrary to the express elements of a good custom. The character of the people, reliable or unreliable, has nothing to do with its operation; a custom governs all alike engaged in the line of business affected. The evidence does not show how prevalent the custom has been; sufficient detail of its existence is lacking to warrant a court or jury in declaring it to be notorious. If 6 months is the time limit, it is unreasonable, as injecting confusion into validly subsisting obligations. If such contracts are to be influenced by evidence of this character, our mercantile dealings will stand on a flimsy foundation. In further support of the custom, witness Melnicove does not attempt to speak of its continuousness or extent, and fixes a different period of time within which goods may be returned. His evidence indicates it is a matter of grace rather than right. Koplin's testimony is lacking in the same particulars, more especially with respect to the element of discretion or right. When asked, "Is that the custom of the trade?" he answered: "Well, it seems to be. They tolerate it." While he dealt in various cities, he does not attempt to plant his custom in those cities, except inferentially. Written contracts cannot be lightly set aside by uncertain evidence of usage or custom. It should be clear, certain, precise, and leave no doubt in the minds of the court as to its existence, scope, and extent. Koplin fixes a standard different. from other witnesses as to the time within which goods may be returned. Uditsky does not attempt to fix any length of time, nor the extent of the custom; nor does he attempt to imply knowledge to defendant, assuming him to be a nonresident, and limits the knowledge to the manufacturers and the mills, and not to jobbing houses. Plaintiff is here undertaking to write intoa written contract a usage or custom that greatly modifies its terms, and extends waat is ordinarily considered in law as an unreasonable to a reasonable time; it is an effort to wipe out a substantial right of defendant. A jury, from the evidence here introduced, could not have found a definite, fixed custom or trade usage, good in all its parts, such as is required to control the affairs of men. It (116 A.) tain in its terms, indefinable as to the imper- damages for personal injuries sustained in a [7] To sustain a custom, all these matters must be shown, unless judicial notice can be taken of them. Plaintiff presents no reason in law that excuses his neglect to inspect the goods within a reasonable time, to determine their quality; he was not entitled to recover for any supposed breach of warranty. The court below was in error in not directing a verdict for defendant. The judgment of the court below is reversed, and it is directed that a judgment n. o. v. be there entered for defendant. (273 Pa. 259) [1] On a clear day, plaintiff, driving a Ford roadster automobile, approached defendant's single track railroad on a highway, the grade of which ascended toward the track. When 20 feet distant therefrom, the automobile was stopped and observation made by the occupants of the motor, plaintiff and his father, to ascertain whether a train was approaching. Plaintiff was familiar with the crossing. At the place where he stopped, and from there to the track, he had an unobstructed view of it, for a distance of 150 yards in the direction from which the train which struck him approached. Seeing or hearing nothing indicating a coming train, he started his automobile on the upgrade, in low gear, at a speed estimated by him at from 2 SEIWELL v. HINES, Director General of to 4 miles an hour, continuing to look and lis Railroads. (Supreme Court of Pennsylvania. 1922.) ten, so he testified, for approaching trains. When just about on the first rail, his 2 front March 6, wheels not having gone over it, he, for the first time, saw a train approaching "real fast." At his first observation of it from 80 to 100 yards distant, he immediately shifted gears into neutral so the car would run backward down hill by gravity. When the motor, backing down hill, was about 2 feet from the 1. Railroads 324 (1) Automobile driver nature. The cowcatcher and front wheels of the locomotive passed the automobile, but the rear or driving wheels struck and demolished it; plaintiff was injured; his father killed. [2] Appellant testified that the suction of the moving train drew the automobile against Where plaintiff drove an automobile, which, the locomotive, notwithstanding the automowith passengers weighed at least 900 pounds, bile with its passengers weighed at least 900 up a grade on a railroad track, and, on seeing a train approaching, backed it about 2 feet off pounds, that it was standing at rest on a the track and put the brake on, testimony on grade below that of the track and with the the theory that air currents around the train brake on. It is inconceivable that any such drew the automobile against it, is incredible as thing could have occurred, as such a happencontrary to human experience and the laws of ing is opposed to all natural laws and common experience. Every day trains at high other objects standing on the platforms, in speed pass stations with baggage trucks and close proximity to the tracks, and they are not disturbed by the moving train. Here we are asked to give credence to the proposition, that the suction from a passing train was sufficient to draw into it, upgrade, a stationary automobile with the brake on. We answer the proposition by repeating what we said in Lessig v. Reading Transit & Light Co., 270 Pa. 299, at page 303, 113 Atl. 381 at page 382: Appeal from Court of Common Pleas, P. B. Roads and Geo. M. Roads, both of Otto E. Farquhar, of Pottsville, for appel- physical facts. *** lee. SCHAFFER, J. From the refusal to take off a nonsuit, in an action brought to recover "In the present case plaintiff's testimony cannot be accepted in the face of the infallible Courts are not required to believe that which is contrary to human experience and the laws of nature, or which they judicially know to be incredible. * * * As the disinterested evidence and physical facts show that plaintiff was struck immediate For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes J ly as he drove upon the track, he was guilty of the real names of the persons operating under contributory negligence." Plaintiff either drove in front of a rapidly approaching train, which he could have seen if he had looked, and therefore cannot recover; Luken v. Penna. R. R., 267 Pa. 315, 110 Atl. 151; Smith v. McAdoo, Director General, 266 Pa. 328, 109 Atl. 759; Bernstein v. Penna. R. R. Co., 252 Pa. 581, 97 Atl. 933; or, when he backed his car, did not permit it to travel far enough before he put the brake on, to clear the overhang of the locomotive, in which event, his negligence is too plain for dispute. What was said in Joyce v. Baltimore & Ohio R. R. Co., 230 Pa. 1, at page 6, 79 Atl. 171, at page 172, has close pertinence to the controlling facts here: "Neither the plaintiff nor any of her witnesses gave evidence from which the inference could be drawn 'that the suction or current of air' created by the passing train caused her dress to be caught and thus led to her injuries; on the contrary they state that she was hit directly by the train. If the story told by the plaintiff and her witnesses is to be accepted, it is apparent that she came to grief by standing too close to the railroad tracks; and it is likewise clear that had she acted with due care she would have escaped injury." The learned court below properly refused to disturb the nonsuit, and its judgment is affirmed. (273 Pa. 310) MANGAN et al. v. SCHUYLKILL COUNTY. (Supreme Court of Pennsylvania. March 20, 1922.) 1. Parties 95 (5) - Amendment by adding names as parties plaintiff held proper. Where plaintiffs, suing as partners, amended the record at trial by adding the names of two persons as members of the partnership, defendant was not deprived of any rights, and it was not error to permit such amendment. 2. Partnership 242 (3)-Actions brought to use of persons subsequently acquiring interest in firm with plaintiff held proper. Where, subsequent to the execution of a written contract, two other parties acquired interest in the firm, an action may be brought in the names of the parties to the contract, or in the names of those parties to the use of all persons having an interest in the contract. 3. Partnership 64-Firm name indicated by names of real members not "assumed" or "fictitious." Under Act June 28, 1917 (P. L. 645; Pa. St. 1920, §§ 15968-15971), making it unlawful unless its provisions are first complied with, to carry on any business under any "assumed" or "fictitious" name, style, or designation, held that the word "fictitious" as employed in said statute is synonymous with and explains the word "assumed," and a firm name representing the name and style of the firm is not "assumed" or "fictitious" under the statute. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Fictitious.] Appeal from Court of Common Pleas, Schuylkill County; H. O. Bechtel, Judge. Action by M. A. Mangan and W. S. Pugh, trading as Mangan & Pugh, to the use, etc., against the County of Schuylkill. From a judgment of nonsuit, plaintiffs appeal. Reversed, with a procedendo. Argued before MOSCHZISKER, C. J., and FRAZER, WALLING, SIMPSON, KEPHART, SADLER, and SCHAFFER, JJ. John F. Whalen and George Ellis, both of Pottsville, for appellants. Edmund D. Smith, C. A. Snyder and Arthur L. Shay, all of Pottsville, for appellee. MOSCHZISKER, C. J. April 30, 1918, "M. A. Mangan and William S. Pugh, trading under the firm name of Mangan & Pugh," brought suit against the county of Schuylkill, to recover $3,400, with interest from November 1, 1917, on a written contract for the erection of a county bridge, completed and opened to the public about October 1, 1917, since which time it has been in regular use. At the close of the testimony, counsel for defendant moved for a compulsory nonsuit on several grounds, two of which are now before us; namely (1), that there were not proper parties plaintiff, as certain persons, other than the two named above, had been admitted by amendment to the record after the jurors were sworn, and (2), that no certificate, as required by the Act of June 28, 1917 (P. L. 645; Pa. St. 1920, §§ 1596815971), relating to persons doing business under assumed or fictitious names, had been filed. The trial judge adopted the last-mentioned ground, and the court below, after discharging a rule to show cause why the nonsuit should not be taken off, entered judgment for defendant; plaintiff has appealed. [1] As to the first ground for the nonsuit, at trial counsel for plaintiff amended the record "by adding the names of Hugh Dolan and I. D. Beahm, as plaintiffs, members of the firm of Mangan & Pugh." In disposing of defendant's objection to this course, the court below says, "The test of an amendment is whether or not it will deprive defendant of any right. We do not see how [the present one] does; we will therefore permit it." In this we discover no error. [2] The court erred, however, in sustaining the last ground for the nonsuit. The contract in this case was made July 12, 1917, when the bridge building firm was composed (116 A.) (80 N. H. 351) (Supreme Court of New Hampshire. Hills borough. April 4, 1922.) 1. Master and servant 141-Method of blasting held reasonably safe and equivalent to reasonable rules. Where employees working near blasting were warned by a whistle, and a man was on watch until all were in places of safety, and a fore firing the blast, the method of operation further signal by crying "Fire!" was given bewas reasonably safe, and in effect equivalent to the establishment of reasonable rules for safety of employees. of only M. A. Mangan and W. S. Pugh, the first-named parties plaintiff, and the testi- DESHAIES v. RAYMOND CONCRETE PILE mony so shows. Since the action was on a CO et al. (No. 1799.) written agreement between the original members of plaintiff partnership and defend ant county, when, after the execution of the contract, the two other parties acquired an interest in the firm, the suit might properly have been brought by M. A. Mangan and W. S. Pugh, trading as Mangan & Pugh, to the use of M. A. Mangan, W. S. Pugh, Hugh Dolan, and I. D. Beahm (see Walker v. Mason, 272 Pa. 315, 116 Atl. 305); but all parties in interest having been brought upon the record, they could be placed by the court below in whatever position would best and most practically work out the ends of justice. Patton v. P., C. & St. L. Ry. Co., 96 Pa. 169, 173, 174. That which might have been done at trial, can and will be done here. Patton v. P., C. & St. L. Ry. Co., supra, and Fritz v. Heyl, 8 Wkly. Notes Cas. 374; M. E. Church v. Equitable S. Co., 269 Pa. 411, 415, 112 Atl. 551. We accordingly treat the suit as though instituted in the manner above indicated. 2. Master and servant 141-Rules for use of pit exit by trucks and men held unnecessary. Where plaintiff, leaving a pit to avoid a blast, was following a truck which had to back up to let a truck come in and fell from being pushed by another employee and was injured by the truck backing on him, the failure to enforce rules concerning the joint use of exit from the pit by trucks and men did not render the employer liable. 3. Master and servant 219(15)-Risk of use of roadway by workmen and trucks assumed. Where plaintiff, a carpenter, had worked two weeks near an excavation involving blasting before he was injured by a backing truck on a roadway jointly used by men and trucks when a blast was imminent, such use of the roadway occurring two or three times a day, the danger from the use of the roadway by men. and trucks was apparent to his observation, and he assumed the peril. Transferred from Superior Court, Hillsborough County; Sawyer, Judge. [3] This brings us to the main question in the case, whether the court below correctly construed the act of 1917, as controlling against plaintiffs' right to maintain the present action; and, as previously indicated, this question must be answered in the negative. The act of 1917 makes it unlawful, unless its provisions are first complied with, to carry on business "under any assumed or fictitious name, style, or designation." It is to be noticed, the act does not say "under either an assumed or a fictitious name," but "under any assumed or fictitious name." We are of opinion the word "fictitious" is here used as explanatory of "assumed," and the two were not intended to have different meanings; that these two words have like meanings may be seen by the following excerpts from Webster's New International The defendants were engaged in excavaDictionary: It defines "assumed" thus- tion and concrete construction. The exca"supposed, pretended, make-believe," and vation involved blasting and the use of a "fictitious" thus-"feigned, imaginary, pre- steam shovel. The plaintiff was a carpenter, tended, not real, counterfeit, false, not genuine, arbitrarily invented, or devised." It is in these general senses that both words are employed in the statute before us. The name "Mangan & Pugh" is not "assumed or fictitious" within the meaning of the act of 1917; on the contrary, it represents the real names of the two men who contracted, under that style, with defendant county. The act was never intended to cover old-fashioned, genuine, firm names (see opinion of Mr. Justice Frazer, in Walker v. Mason, 272 Pa. 315, 116 Atl. 305), and the court below erred in so applying it. The order refusing to take off the nonsuit and the judgment in favor of defendant are reversed, with a procedendo. Action by Joseph Deshaies against the Raymond Concrete Pile Company and another. From an order of nonsuit, plaintiff excepts. Exception overruled. and had been engaged for about two weeks in building cement forms near the excavation. There were some 25 or 35 men, including the plaintiff, at work on the job so near the place where the blasting was done that it was necessary for them to leave their work whenever a blast was to be fired, which was two or three times a day. When a blast was to be fired the steam whistle was blown when all the men left their work and sought a place of safety. While so doing the plaintiff received the injury for which suit is brought. The place where the plaintiff worked and the steam shovel was in operation was a pit or hole made in the course of the work. The material excavated by the shovel was drawn out of the pit by motortrucks For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes over a road which at one point was too nar- [2] However this may be, the plaintiff was row for two trucks to pass each other. not injured by any lack of defendants' care There was a place where the empty trucks in blasting. He was injured while walking returning after unloading could turn and in the roadway behind one of the defendback into the pit under the shovel or they ants' trucks by the truck running backward could turn after reaching the pit. When the a few feet. It is not at all probable he whistle was blown on this occasion one truck would have suffered any injury by the backwas being loaded under the shovel, while ing of the truck except for the fact that an empty one was in the pit ready to take just at this moment being pushed by another its place for loading. When the whistle workman he stumbled and fell in the path sounded the empty truck commenced to back of the truck. If the injury arose from the out of the pit followed by the other. In careless operation of the truck or the fault backing out the first truck got out of the of the one who pushed or fell upon him, the road, and it became necessary for it to go injury was due to the negligence of a fellow ahead in order to get into the road again. servant for which in this common-law action The following truck stopped and backed to no recovery can be had against the common give room for this maneuver. The plaintiff employer. If there was no such negligence, and another employee who were following the plaintiff's injury, in the absence of negthe trucks, being pushed by another work-ligence on his part, was a pure accident, the man, slipped and fell immediately behind unforeseeable result of the unexpected situathe truck, which backed on to them, causing tion disclosed in the evidence. the injury. There was evidence that, in addition to the signal given by the whistle, men were stationed to observe and notify the one exploding the blast when all the men were in places of safety, and that before firing the blast a further signal by crying "Fire!" was given, but that on one occasion the blast had been fired before all the men had reached places of safety. The defendants had accepted the provisions of the Workmen's Compensation Act (Laws 1911, c. 163). Upon the close of the plaintiff's evidence a nonsuit was ordered, subject to the plaintiff's exception. While the plaintiff contends in his brief that it could be found from the evidence that rules were necessary for the safe conduct of the defendants' business, he fails to specify any rule the want of which could be found the cause of his injury. There was no evidence that for a second truck to follow another into the pit and there turn to take its place under the shovel was not as reasonable and safe a method of doing the work as the alternative method of backing in after the first truck came out. It is true, if no second truck had been allowed in the pit, the occasion of the stopping and backAlbert Terrien, Arthur A. Tremblay, Luciering of the truck which injured the plaintiff & Lucier, and Alvin J. Lucier, all of Nashua, for plaintiff. Streeter, Demond, Woodworth & Sulloway, of Concord, Doyle & Doyle, of Nashua, and Jonathan Piper, of Concord, for defendants. would not have existed. But it does not follow that something else might not have occurred to cause this truck to stop and back. The situation which caused the inJury was the use of the roadway for trucks ing complicated or hidden about it. Hence there was no occasion for a rule or instruction as to the joint use of the means of exit by trucks and men. Parmaleau v. Company, 75 N. H. 69, 71, 71 Atl. 31; McLaine v. Head & Dowst, 71 N. H. 294, 297, 52 Atl. 545, 58 L. R. A. 462, 93 Am. St. Rep. 522. PARSONS, C. J. [1] The sole ground up-and men at the same time. There was nothon which the plaintiff seeks to hold the defendants responsible for his injury is the alleged absence of rules and regulations in the conduct of the work. The special danger to the workmen was the use of explosives in close proximity to their workplace. As to this it was plainly the duty of the defendants at least to establish such a method of operation as would reasonably protect their employees from this occasional danger. "A reasonably safe method of operation, customarily followed, is in effect equivalent to the establishment of reasonable rules, so far as the employer's duty in this respect is concerned." Parmaleau v. International Paper Co., 75 N. H. 69, 71, 71 Atl. 31. It cannot be found that the manner in which this work was done with the precautions taken for the safety of the workmen before the blasts were fired, detailed in the evidence, did not constitute a reasonably [3] The plaintiff had been on the job two weeks, and this use of the roadway because a blast was imminent took place two or three times a day. The danger from workmen and trucks jointly using this roadway for such a purpose was open and apparent to the plaintiff's observation. Hence it could not be found that he did not assume the peril of such use, if any there was. Bjork V. Company, 79 N. H. 402, 405, 111 Atl. 284, 533. Exception overruled. PLUMMER, J., was absent. |