not at that time be offered for sale. Before, the notice of the improvements, and the fact the premises were reached on the list, how- that the only number on the main building ever, the sheriff was notified of the court's was 2409. The additional numbers in the action, and, counsel for plaintiff and for advertisement gave notice that more than defendant in the execution joining in a re- the single building was included in the sale. quest that the sale be proceeded with, he A discussion at length of the irregularity then offered the property for sale. Evidence in the sale, by reason of the announcement was produced to show that in the meantime that the premises would not be sold and the persons intending to bid on the property subsequent sale thereof, becomes unneceshad left the room and were not present when sary, as it does not appear appellant was the sale took place. The attorney who rep- harmed thereby. The evidence offered to resented the trustees in the petition to stay show that, following the announcement of the sale was in the courtroom and bid on a postponement of the sale by the sheriff, inthe property, stating, however, he did so tending bidders left the room, is not conon behalf of another client, and not as the vincing. Furthermore, appellant makes no representative of the trustees. He also tes- offer to bid or secure a purchaser at a hightified he made no protest against the sale, er price, merely averring he is informed and and considered the trustees had discharged believes that upon a resale the property their duty in attempting to secure a postpone- would bring approximately $8,000. This is ment. The trustees are not here complain- not enough. Snyder v. Snyder, 244 Pa. 331, ing, nor is appellant complaining on their 90 Atl. 717. behalf, but on his own behalf, as real and Appellant not only failed to establish to registered owner. It may be doubted wheth- the satisfaction of the court below that he er appellant has shown such interest in the possessed sufficient interest to enable him to property as entitles him to intervene on his intervene, but also failed to produce suffiindividual behalf, and especially is this so cient evidence of a material misdescripas he does not claim to act on behalf of tion and an irregularity resulting in the sale those who have the beneficial interest. of the property at a less price than would [2] Neither does it appear that the de-otherwise have been obtained. We can find scription was calculated to mislead bidders. no such error in the record as would justify The property alleged to have been insuffia reversal. ciently described consisted of a lot on which was built a three-story brick house and a two-story brick stable. On the books of the board of revision of taxes the house is No. 2409, and the stable Nos. 2411-2417 Cedar street. In advertising the premises they were properly described by metes bounds, but the numbers were given as "2409-11-13 Cedar street," instead of “240911-13-15-17 Cedar street." The evidence failed to show that there were in fact any numbers on the property, except on the house, which was No. 2409.

and

[3] Setting aside or refusing to set aside a sheriff's sale is in the sound discretion of the court below, and the decree of that court will not be reversed, in absence of clear abuse of discretion. Chase v. Fisher, 239 Pa. 545, 86 Atl. 1094; Snyder v. Snyder, 244 Pa. 331, 90 Atl. 717; Watkins v. Justice, 256 Pa. 37, 100 Atl. 488. The judgment is affirmed.

(261 Pa. 6)

TWERSKY v. PENNSYLVANIA R. CO. (Supreme Court of Pennsylvania. March 18, 1918.) 1. CARRIERS 333(1) — INJURY TO PASSENGER-CONTRIBUTORY NEGLIGENCE.

A passenger who, though there was no pressure from behind, walked so close to the passenger in front of her that she was not able to see the open space between the car platform and the station platform into which she fell, was guilty of contributory negligence and could not re2. CARRIERS 280(1) SAFETY OF PASSEN

cover.

GERS-STATION.

This case falls within Home Buyers' B. & L. Ass'n v. Peterman, 253 Pa. 418, 421, 98 Atl. 619, 620, where premises, described as messuage, in fact consisted of a three-story brick store, with two upper floors suitable for apartments, and also a garage. The court below held, in an opinion adopted on appeal, that as "the dimensions of the lot are correct, the property is a corner property, so that the garage was visible to any one inspecting it, and no allegation appears in the petition that any buyers were deterred from bidding, and the person who makes the objection does not allege that she had no knowledge of the sale, and there is no offer on the part of the petitioner, either individually or as trustee, to make any bid at a sale," the rule was properly discharged. In the present case it is difficult to see how the omission of the additional street numbers could have misled any one, in view of the situation of the property, fendant appeals. Reversed.

The duty of a carrier rises no higher than to make and keep its stations safe for persons exercising ordinary care.

Appeal from Court of Common Pleas, Philadelphia County.

Trespass to recover damages for personal injury by Rebecca Twersky against the Pennsylvania Railroad Company. Verdict for plaintiff for $2,800, motion for judgment n. o. v. denied, and judgment thereon, and de

Argued before MOSCHZISKER,

LING, JJ.

POTTER,
FRAZER,

STEWART, | no consideration here, inasmuch as the plainand WAL- tiff's testimony discloses in unmistakable way contributory negligence on her part. In

Francis B. Biddle and Sharswood Brinton, broad daylight, with her eyes open, herself both of Philadelphia, for appellant. William Morgan Montgomery, Samuel R. Lazowick, and E. Clinton Rhoads, all of Philadelphia, for appellee.

ing some three or four passengers who had left the car before she did. The one passenger immediately in her front was a woman wearing a trailing dress and carrying a suit case. Plaintiff was so close to this woman

unincumbered with baggage of any character, with entire freedom of limb, with nothing requiring haste on her part, she apparently walked this platform with as much unconcern and indifference for her own safety as STEWART, J. On the afternoon of the one would walk the floor of his own domicile 3d of July, 1915, the plaintiff, a middle-aged with which he was familiar. She did not see woman, unescorted, was a passenger on one this open space between the platforms, into of defendant company's trains, her destina- which she stepped until after she had been tion being North Philadelphia, where she extricated therefrom. She says that if she intended to alight. She had boarded the had seen it she would have avoided it. But train at New York, and had arrived on why did she not see it? The only answer schedule time, 4:45 p. m. The passenger sta- that can be made is that she did not see it tion at this point is provided with a raised because she did not look. This is her own platform, which is on a level with the plat-explanation: When advancing on the platform of the car when the train stops. The | form toward the open space, she was followcar platform is a trapdoor which is let down when the car stops, and the door of the car is opened for the discharge of the passengers. There is always, in such cases where the station platform is elevated, somewhat of a space between the station platform and the car platform. This is required in order to give sufficient clearance to passing trains. On arrival at North Philadelphia station plaintiff left her seat, and, with two or three other passengers walking in advance of her, she proceeded out to the platform of the car. When about to step from this platform over to the station platform she encountered the open space between the platforms, which she had not previously observed, and into which she stepped with one of her feet, with the result that she received the injury of which she complains, and for which she claimed to recover damages in the present action, referring the accident to negligence of the de fendant company in failing to provide for passengers at this point a safe means of exit from the car. As the case was submitted to the jury it presented two questions of fact for their determination: First, the question of negligence of the defendant; and, second, the question of plaintiff's contributory negligence. Both issues were found in favor of the plaintiff, and a verdict in her favor was accordingly rendered. A motion for judgment for defendant, on the whole record, non obstante, was refused, and judgment on the verdict was directed. To this order of the court exception was taken, and it is made the subject of defendant's fifth assignment of error, the only assignment necessary to be here considered.

[1, 2] Whether in the light of the evidence the defendant came short of its legal duty, which is to so construct and maintain its platforms in the condition that they may be used, without danger, by a passenger exercising ordinary care (Graham v. Penna. Co., 139 Pa. 149, 21 Atl. 151, 12 L. R. A. 293), is a question in regard to which there may be

that she could not see the open space had she looked directly down. Whether the trailing dress, or the suit case, or both interfered is a matter about which she was somewhat indefinite in her statement, but she leaves it in no doubt that she attributes her failure to observe the open space as due wholly to the circumstance that she was following too closely upon the passenger next in advance of her to admit of her looking down. She makes no complaint that this person was detaining her, or that there was pressure by those following her, nor does she suggest any reason whatever why she could not at her own pleasure have increased the distance be tween herself and the passenger in front. The insufficiency of the excuse she gives for not seeing the open space becomes apparent when it is considered that with knowledge of the fact that because of her position, so close behind the woman walking next in advance of her, she was prevented from seeing what lay directly in her path, she chose to retain that position when there was nothing requiring her so to do. A moment's delay on her part would have prejudiced nothing, and would have enabled her with a mere look to take in the whole situation with respect to her own safety. All that we have said is derived from the plaintiff's own testimony, and it leaves it not open to question that her own want of ordinary care was a contributing factor in the accident. The duty resting on the railroad company rises no higher than to make and keep its stations safe for persons exercising ordinary care. When injury results to any one who fails in this regard, the law charges the injury to the party's heedlessness as the proximate cause. Defendant's motion for judgment non obstante should have prevailed.

EY-NONSUit.

In assumpsit to recover part of agreed price of an automobile in view of plaintiff's pleadings and contentions that there was a written contract that the automobile should be in good condition when delivered, and that the vendor should keep the car in repair, a breach by defendant and rescission by plaintiff, it was error to nonsuit plaintiff.

Exceptions from Superior Court, Androscoggin County.

Action by Mark Berman against E. P. Langley. Judgment for defendant, and plaintiff excepts. Exceptions sustained.

Argued before CORNISH, C. J., and SPEAR, HANSON, and PHILBROOK, JJ.

Benjamin L. Berman, of Lewiston, and Jacob H. Berman, of Portland, for plaintiff. J. G. Chabot, of Lewiston, for defendant.

PER CURIAM. This is an action of assumpsit to recover $800 paid by the plaintiff as part of the agreed price of one National Highway Six automobile, and is before the court on the plaintiff's exceptions: (1) To the ruling of the presiding justice excluding the contract between the parties; and (2) an order of nonsuit.

The declaration contained four counts, the first two alleging a breach of warranty in the sale of the automobile, the third for money had and received, and the fourth the general omnibus count, with the specification:

"That under the latter the plaintiff will rely upon the evidence to be introduced under counts 1 and 2 in this declaration, as constituting grounds for the rescission of his contract, and that the evidence to be introduced under these counts will amount to a rescission of his contract, and thereby entitle him to recover the money paid by him on account of said automobile."

The plaintiff in his brief abandons the first count, and as to the second says:

said car at time of delivery to said purchaser or his agent." The contract is printed in the record. The only provisions of moment here are as quoted above.

A perusal of the evidence in the case, in view of the plaintiff's pleadings and contention that: (1) There was a written contract between the parties; (2) that the contract contained the provision that the automobile should be in good order and condition when delivered; (3) that the vendor shall keep said car in repair for the term of one year, etc.; and (4) that the contract was broken by the defendant and for that reason rescinded by the plaintiff-persuades us that in directing a nonsuit the trial judge erred. The questions involved were nearly, if not quite all, properly for the jury, and not for the court. The entry must be: Exceptions sustained.

PER CURIAM. This is an action to recover damages caused by the alleged negligence of employés of the defendant in negligently starting a car of defendant, on Court street, in Auburn, whereby the plaintiff was thrown to the pavement and sustained inju

upon motion for a new trial specifying the usual grounds.

"Plaintiff under this count does not seek to enforce the contract; he does not attempt to recover damages for its breach. Nor does he attempt to enforce his rights under it. But, on the contrary, he says the sealed contract ries. The case comes before the law court has been terminated, ended, and as a result of its termination the defendant is unjustly enriched and has of the plaintiff's money the sum of $800. Plaintiff offers the sealed contract in evidence, not to support his claim for damages for its breach, but to prove the status of the parties, and to show the circumstances under which the defendant unjustly came into possession of his money."

The contract in question contained the usual clause that the automobile to be delivered should be "in good order and condition," and a further and final provision "that the vendor shall keep said car in repair for the term of one year from this date on account of any imperfections in the construction of

The testimony was conflicting; the account given by the plaintiff and her witnesses would, if believed, warrant a verdict in her favor; on the other hand, the testimony of the defendant's witnesses would warrant the opposite conclusion. In weighing this conflicting evidence, the opportunity of the jury to see and hear the witnesses, to consider their appearance and demeanor on the stand, and to judge of the spirit with which they testified, must have been of great assistance in arriving at a correct de

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

To this indictment the defendant demurred clearly shown that the plaintiff was injured on the ground:

SHUMWAY, J. Of the numerous reasons of appeal, it is apparent that the treatment A review of the entire evidence now before by the trial court of what the defendant calls this court sustains the comment of the court a "vital" question of fact is the controlling as to the testimony, but the defendant conquestion in this case. This question is what tends that the rulings and charge of the court was the relation of the parties with respect were erroneous because the court did not to the stairway leading from the ground charge the jury in accordance with his refloor of the building to the cellar. It was quest, to wit: