Court of Common Pleas of Lancaster County Helman v. Conestoga Traction Co. Trolley cars-Explosion in controller box-Negligence of motormanContributory negligence of passenger-Sudden peril. Where the bursting of the controller box sent a sheet of flame into the front of a crowded trolley car, causing a panic, and the plaintiff, a passenger in the front of the car, jumped out of the window after the motorman jumped or was thrown from the car, which was running fast, on action to recover damages for the injury sustained, the case is for the jury on the question of the negligence of the motorman and the plaintiff, and a verdict for the plaintiff will be sustained. Where one is without fault unexpectedly placed in a position of peril, he is to be dealt with in the light of his surrounding circumstances and is not necessarily negligent, even though his judgment was wrongly exercised. Rule for judgment for defendant n. o. v. March Term, 1919, No. 48. S. R. Zimmerman and John E. Malone, for rule. December 31, 1920. Opinion by LANDIS, P. J. Let Upon the trial of this case there was but one disputed fact, and that has been established by the verdict in favor of the plaintiffs. us, then, briefly recite the substance of the evidence presented. On June 22, 1918, Nora Helman boarded a car of the Conestoga Traction Company at Lititz. It left for Lancaster about 1:25 or 1:35 p. m. The car was filled with passengers, so much so that some of them were obliged to stand in the aisle. When the car arrived at a point east of Neffsville, smoke was observed coming from beneath the floor at the front end of the car. The conductor and motorman took up a trap-door, and, with a fire-extinguisher, put out a fire which seemed to be burning underneath. The car then proceeded on its trip. When it came to what was called the schoolhouse hill, it stopped for a short time, and then went on to the power-house. Here a passenger got on the car. It passed the hill at Locher's and went on to the Roseville Road and a turn-out. West of this turn-out, while going down a hill, the controller-box burst into a flame. The flames came into the car almost to the second seat. One witness testified: "I saw the whole front of the car filled with flames; then I tried to get out in the aisle, and I fell over the grip that was between the girl and I, and fell on my knees, in the aisle. . . . Then I got up, and by that time the people in the front of me had rushed back" towards the rear of the car; "I just heard somebody yell, 'The motorman jumped,' and then, after that yell, then I glanced around and saw Nora jump out the window." This witness and another witness also jumped out. Nora Helman was near the front end of the car. She testified: "I seen the flames come in before I jumped. . . . I didn't hear anything about the motorman. All I was looking for was for a safer place, and I couldn't get out in the aisle for to get back at the rear end of the car, so I went out the VOL. XXXVII, No. 77 Helman v. Conestoga Traction Co. window, for a safer place. The car was running fast. It was running wild. . . . Fast." It was admitted that the motorman either jumped or was thrown off the car. Some of the plaintiffs' witnesses said that he jumped off. The motorman himself said that he “ came right out a little over the step and went out back. I got out on the righthand side of the car, into the gutter." The plaintiffs' statement charged that "the flames burst forth from said controller-box so that they came back through the front door and partially through the car. The motorman carelessly and negligently jumped from the said car and carelessly and negligently left it run wild and uncontrolled at a great rate of speed down the said grade. The said fire coming as aforesaid through the front door, frightened the passengers so that they blocked the exit through the back door of the car, and the fire blocking the exit for the passengers through the front door, the plaintiff to escape was obliged to make her exit through the window of the said car." This was the point at issue, and the Court confined the jury to its determination. In the charge we said: "It is, however, the law that, when a passenger, in a moment of sudden peril, jumps from a car and is injured, he is not chargeable with negligence, provided the surrounding circumstances justify such action; and if the jury shall find in this case that the motorman jumped from the car, and that, together with the flame coming into the car, created a panic in the car, and the panic was the natural and proximate result of his act, then the defendant can be held liable for damages, even though the plaintiff did jump from the car. If the motorman left the car uncontrolled and apparently on fire, it is for the jury to say whether such an act was not negligence and such as to necessarily throw the passengers in a panic and reasonably lead them to the conclusion that they were in imminent peril, taken in connection, of course, with all the other facts, and what the plaintiff did was what a reasonably prudent person would do under the circumstances. Now, the jury have heard the evidence upon this point. If they find that the plaintiffs are correct in this respect, they may find a verdict in their favor. If, on the contrary, they find that the motorman did not jump from the car, but was accidentally thrown off, or that the circumstances of the case were such as not to warrant a reasonably prudent person in jumping out of the window as this plaintiff did, then the verdict should be in favor of the defendant. If the woman became hysterical, and, without good reason or justification, jumped out of the window of the car, and if she had used proper judgment under the circumstances and remained where she was she would not have been hurt, and she was not justified in her act, then she is responsible for her injury and the defendant company is not.” แ I think the above excerpt is a correct statement of the law in this case. Many cases sustain this view. Thus, in Nikl v. Wilkesbarre Railway Co., 72 Sup. 11, it was held that, I when one who is without fault is unexpectedly placed in a position of peril, he is to be dealt. with in the light of his surroundings at the time, and he is not necessarily negligent even though his judgment was wrongly exercised." See, also, Sieb v. Central Penn'a Traction Co., 47 Sup. 228. Helman v. Conestoga Traction Co. Again, it is held in Dunlay v. The United Traction Co., 18 Sup. 206, that, "if a motorman of an electric car, after the explosion of the controller, when he is in no danger, abandons his post, and, in full view of the passengers upon a crowded summer car, many of whom are women and children, jumps over the back of the front seat among the passengers, leaving the car to run uncontrolled and apparently on fire, it is for the jury to say whether the act was not negligent and such as to necessarily throw the passengers into a panic and reasonably lead them to the conclusion that they were in imminent peril." And in Rundle v. State Belt Electric Street Railway Co., 33 Sup. 233, it was held that, "where, in a case against a street railway company to recover damages for personal injuries, it appears that an electric car ran away down grade, and was abandoned by the conductor and motorman, that the track was not properly sanded, and that the plaintiff, a passenger, left his seat in the body of the car under the influence of fear and placed himself on the rear platform, where he was thrown off at a curve, the question of the company's negligence is for the jury, and a verdict and judgment for plaintiff will be sustained. The fullest discussion of the principle is, however, contained in Palmer v. Warren Street Railway Company, 206 Pa. 574. There it appeared that the brake chain on a descending car had broken, and the motorman was unable to control it. The motorman on the car on which the plaintiff was riding stopped his car, and started it backwards. The other car was gaining on it, until it seemed that a collision could not be avoided, and a number of passengers, including the plaintiff, jumped just before the cars came together. For the injuries she sustained in jumping from the car, the suit was brought. Mr. Justice Brown, in delivering the opinion of the Court, said: "But the plaintiff was not bound to wait for the collision. It was rather for her, under the instinct of self-preservation, to try to escape from its danger, and, in seeking to avoid it, she is not necessarily chargeable with neglect of her own safety in exposing herself to another risk by jumping from the car. . . . If, therefore, a person should leap from the car under the influence of a well-grounded fear that a fatal collision is about to take place, his claim against the company for the injury he may suffer will be as good as if the same mischief had been done by the apprehended collision itself. When the negligence of the agents puts a passenger in such a situation, that the danger of remaining on the car is apparently as great as would be encountered in jumping off, the right to compensation is not lost by doing the latter; and this rule holds good even where the event has shown that he might have remained inside with more safety': Penn'a Railroad Company v. Aspell, 23 Pa. 147. To this we can add nothing, except that a well-grounded fear that a collision is about to take place, which will result in fatal or even serious injury to the passenger, is a justification to him to leap from the car; and the presumption of the common carrier's negligence is not confined to the case of injuries resulting from actual collision, but extends to those caused by an effort to escape it, when made on a wellgrounded belief that it will occur." See, also, Lehner v. Pittsburg Helman v. Conestoga Traction Co. Railways Co., 223 Pa. 208; Willis v. Second Avenue Traction Co.. 189 Pa. 430. In 45 Lawyers' Reports Annotated, N. S., p. 443, note 6, numerous authorities are cited to the conclusion that, where a passenger was caused to jump by fear induced by the blowing out of a fuse or explosion of a controller on an electric car, the company can be held liable. For these reasons, I am fully persuaded that there is no merit in the defendant's contention, and that the motion for judgment non obstante veredicto should be overruled. Motion overruled. Court of Common Pleas of Lancaster County Philip Schum, Son & Co. v. Waitz. Failure of plaintiff to register under fictitious name under Act of June 28, 1917, P. L. 645-When not defense-Appeal from magistratePractice Act of May 14, 1915, P. L. 483. The question of the failure of the plaintiff to comply with the Act of June 28, 1917, P. L. 645, requiring parties doing business under assumed names to file their real names, cannot be raised as to a portion of the debt sued for which was contracted before the passage of that Act. The Practice Act of May 14, 1915, P. L. 483, does not apply in cases of appeals to the common pleas from judgments of magistrates. An appeal from the judgment of a magistrate brings the action into court de novo. The plaintiffs presumably had a right to bring their suit, and if they did not, that question can be ascertained on the trial. Rule for judgment on question of law raised by affidavit. August Term, 1920, No. 118. F. Lyman Windolph, for defendant and rule. B. F. Davis, contra. March 26, 1921. Opinion by LANDIS, P. J. In this case, suit was commenced by the plaintiffs against the defendant before an Alderman, and after a hearing duly had, judgment was entered in favor of the plaintiffs for $57.92. Thereupon the defendant appealed, and in this way the suit was brought into this Court. The plaintiffs filed their statement, alleging therein that there was due to them the sum of $49.50 with interest. The defendant filed an affidavit of defense, in the nature of a question of law, in which she asserted that the plaintiffs have not complied with the Act of June 28, 1917, P. L. 645, and asks for judgment in her favor on that account. By that Act, it is provided that no individual or individuals shall hereafter carry on or conduct any business in this Commonwealth under any assumed or fictitious name, style or designation, unless the person or persons conducting or carrying on the same shall have first filed in the office of the Secretary of the Commonwealth and in the Philip Schum, Son & Co. v. Waitz. office of the Prothonotary . . . a certificate under oath . . . setting forth the real name or names and addresses of all the persons owning or interested in said business . . ." Section 3 declares that any person carrying on or conducting any business in violation of this Act shall be guilty of a misdemeanor." The defendant contends that the statement is defective because it is not affirmatively set forth that the plaintiffs have complied with the provisions of this Act and registered in accordance therewith. We think that no such judgment should be entered for several reasons. Presumptively, the plaintiffs had the right to bring their suit before the Alderman. The appeal brought it de novo into this Court. If the plaintiffs had no right to bring their action, that question can be ascertained on the trial. While it does appear that Mary A. Schum and Walter R. Schnader are doing business under the firm name of Philip Schum, Son & Co., it does not appear that they are not registered in conformity with the Act of 1917. As a matter of fact, all of the items of debit, except a few charges aggregating eight dollars, were contracted before the passage of that Act, and therefore, as to them, it did not apply. 'No individual or individuals shall hereafter carry on or conduct any business in this Commonwealth" are the words of the Act. In addition, however, it has in Maiorana v. Sacchetti, 73 Sup. 510, and in Commonwealth ex rel. French v. Foley, 74 Sup. 253, been decided by the Superior Court that the Practice Act of May 14, 1915, P. L. 483, does not apply to appeals taken from judgments of Aldermen and Justices of the Peace. We are bound by these decisions. Therefore, we are of the opinion that the rule should be discharged, and this is accordingly done. Rule for judgment discharged. Court of Common Pleas of Lancaster County S. K. Bitner & Co., Inc. v. H. T. Warfel. Sale Gambling device-Purchase price-Affidavit of defense—Insufficient denial of facts-Judicial notice. In a suit for the price of candy sold and delivered to the defendant, an affidavit of defense is insufficient which admits the correctness of the account but avers that the defendant bought the candies together with a punch-board on the representation of the plaintiff's agent that one of the judges of the local court had advised the plaintiff that the punch-board was not a gambling device, whereas the defendant was arrested and sentenced for operating it and the punch-board confiscated, without alleging that the said representation of the plaintiff's agent was not true. The court cannot take judicial notice of the untruth of said representation. A defendant must set forth all the facts necessary to constitute a good defense, in his affidavit to prevent judgment. There was nothing to prevent the plaintiff from selling a punch-board to the defendant. The violation of the law for which the defendant was punished and the punch-board confiscated was its operation and not the sale, purchase or possession of it. |