below erred in permitting the jury to infer negli- been suffered through the defendant's negligence gence from such circumstances. Easton v. Neff, 102 Pa. 478. is competent and may be shown, in the absence of evidence that the offer was made in comprom ise. Mixter v. Imperial Coal Co., 152 Id. 397. While admissions by parties are as a rule competent evidence against them, this is meant of admissions of fact and not of mere statements of Swift El. Light Co. v. Grant, 51 N. W. 539. opinion as to the merits of a controversy. The An offer to settle made by the defendant and admission of testimony showing an expression by declined by the plaintiff is evidence for the plainLewis Schaeffer, one of the defendants, to the tiff. plaintiff's brother of an opinion or belief that "we owe him for his injuries and I was always willing to pay, but the rest of the partners were not," was erroneous, as it shed no light upon the issue trying, while its effect upon the jury was prejudical to the defendants. Admission of liability is an evidence of negligence, but does not create liability. Steffy v. Carpenter, 37 Pa. 41. J. H. Jacobs, (with him H. P. Keiser and John H. Rothermel), for appellee. It cannot be said that Folk, in assuming the ordinary risk of his employment as an apprentice in the shop, assumed any extraordinary one. The business of his general employment did not carry him to the top of the furnace stack where the danger was more apparent, nor was he working at a carding machine, a picker, or a dynamite factory, and, therefore, where the master called him from an apparently safe position to one more dangerous, it was incumbent upon employer to exercise more than ordinary care in protecting him against injury. the There must be exercised by the master the same duty of inspection, and the same constant and] vigilant supervision to discover defects that exist or may occur, as is imposed upon him in regard to the condition of his appliances and machinery, varied only in respect to the danger that may be anticipated, and which is to be avoided. Brice v. Bauer, 108 N. Y. 428. April 12, 1897. FELL, J. The plaintiff was injured while assisting his fellow workmen in placing a hood on the top of an iron smoke-stack. The direct cause of the accident was the slipping of a knot in one of the guy ropes which held a derrick in place. The knot had been tied by one of the defendants, Merkel. The action was against Schaeffer, Merkel and Betolette, co-partners as Schaeffer, Merkel & Company. At the time of the accident the work was in charge of the plaintiff. None of the defendants were present and none of them except Merkel had seen the appliances used or had any connection with the work. At the trial an offer was made to prove by a witness that after the accident Schaeffer had said that the plaintiff ought to be paid, that he had always been willing to pay him, that the other members of the firm did not agree with him, and that he preferred to pay the plaintiff, rather than that the money should go to the lawyers who had brought the action. Under objection this witness testified that two years after the accident Schaeffer had made to him a statement substantially the same as that set out in the offer. It does not appear that Schaeffer had any personal knowledge of the accident or of the cirVan Dusen v. Letellier, 78 Mich. 502; 44 N. W. 572. cumstances under which it happened. He made Bessex v. Railway Co., 45 Wis. 482. no admission of a fact from which negligence could be inferred, and no acknowledgment of a liability recognized by the firm. At the most he but expressed his individual opinion that the plaintiff should be paid, and a willingness on his part, not acquiesced in by his partners, that the firm should pay something to avoid litigation. His opinion as to the legal liability of his firm In an action by an employee against his employer for negligence, the plaintiff must show a case resulting exclusively from the negligence of the defendant, yet, when the measure of care which he ought to have exercised shifts with the circumstances, or has been varied by an act of his employer, the jury alone can determine whether the plaintiff was guilty of contributory negli- and his expression of a willingness to pay some gence. Woodward v. Shumpp, 120 Pa. 458. thing in compromise of pending litigation neither imposed a liability nor tended to establish facts It is necessarily a question of fact for the jury from which it would arise. This testimony was whether his employer had sufficiently warned and doubtless prejudicial to the defendants, and the instructed him as to the dangers of the employ-error in admitting it was not cured by limiting ment and how to avoid them. its effect to the party who made the statement. As the action was against the firm there could practically be no such limitation. Rummel v. Dilworth, 111 Pa. 343; 131 Id. 509. The case could not have been properly with- At the scene of the occurrence the whole width drawn from the jury, and it was carefully sub- of defendant's road was about 50 feet, of which mitted by the learned trial Judge. The first, the improved or artificial portion was 20 to 25 second and third assignments of error are over-feet, with a summer or dirt track adjacent to this ruled and for the reasons stated the fourth and portion on the south side, very little used in fifth assignments are sustained. summer and not at all in winter. On the day be The judgment is reversed with a venire facias fore Christmas a contractor of the defendant de novo. W. D. N. company repaired a culvert which crossed the road just west of the place where the accident occurred, by removing six planks, each 16 feet long and I foot wide, constituting the flooring of the south end of the culvert, and putting in new ones, the whole length of the culvert being 32 feet. These six old planks were piled by the workmen in two piles of three planks each, November 17, 1896. lengthwise of the road, on the south side and enLanahan v. Philadelphia & West Ches-tirely outside of the tracks or traveled portion Superior Court. Nov. '96, 44. Superior Court. ter Turnpike Road Co. thereof. He piled them straight, as previously directed, after which he reported what he had Turnpike roads-Negligence-Duty to avoid cause done to a manager of the company, who said he of accident. It is the duty of a turnpike company to keep its road in a good, safe condition, and when repairs are made, to pile up the old materials in such a manner as not to obstruct the way, or frighten a well-trained horse, and it can be held liable only when a failure to do so is clearly shown. A turnpike road company which, after repairing its road, has piled planks in a proper manner outside of the roadway, cannot, when they have been left there for a reasonable time only, be held responsible for an accident occurring through their displacement, unless it is shown that they were displaced by the company, or by some one connected with it, or that the company had notice of the displacement for a time sufficient to have permitted it to have been remedied. Appeal of the Philadelphia and West Chester Turnpike Road Company, defendant, from the judgment of the Common Pleas of Delaware County, in an action of trespass brought by Richard H. Lanahan. This was an action to recover for alleged negligence on the part of the defendant. On the trial of the case, the following facts appeared: The defendant company was the owner of a turnpike road between Philadelphia and West Chester. would attend to having them removed. The plaintiff drove past the same place the morning previous to the accident (Christmas) without noticing the planks, and, according to one of his witnesses, they remained in the position in which they had been placed when he, the witness, drove past about noon the same day. Between that time and the time of the accident next morning the top planks had become disarranged so that at one end two or three of them rested in the gutter alongside of the pile with the other ends projecting upwards at different angles. It did not appear from the testimony who disarranged them or that their condition was known to the turnpike company. On the morning in question the plaintiff was sitting on the right-hand side of his wagon, accompanied by a boy sitting on the same seat to his left, and was driving along the macadamized part of the road. When approaching the locality he testified that his horse "kind of scared" at the ends of the planks sticking up and ran suddenly to the left, that he pulled the right-hand rein or line, but was unable to hold him and that he ran across the bridge over the culvert, the front wheel The plaintiff was engaged in the business of of the wagon going over "the corner of the edge carrying milk from the country to Philadelphia of the bridge," and that his team was thrown for distribution among his customers. Between into the ditch on the north side of the road. His four and five o'clock on the morning of Decem-right driving line was found after the accident to ber 26, 1894, he was driving his horse and wagon be broken. With the assistance of neighbors his containing some cans of milk along defendant's wagon was righted, and, having procured another road eastward towards the city, when the horse horse and harness, he drove this wagon with the took fright and ran suddenly to the left, upset- remnant of his milk to the city. ting the wagon into the road ditch along the north side of the road, breaking the wagon, spilling a portion of the milk and doing other damage. The morning was dark and very cold. The depth of the ditch was about three feet, according to the testimony of one of plaintiff's witnesses. The plaintiff stated it was about four or five feet; another witness, four feet. Philadelphia & Reading R. R. Co. v. Yerger, 73 Id. 121. Hoag v. R. R. Co., 85 Id. 293. V. Gilpin Robinson, for appellee. The Court charged the jury as follows: "Now, the whole question will be, therefore, for you, whatever the workmen did, defendants are responsible for. Did they leave the materials in such a way and arrange them in such a manIt was for the jury to say whether the plank ner as would naturally frighten a well-bred road had been properly piled, or whether it had not. horse? If they did, they are liable; if they did It was for them to say whether the appearance not, they are not." (First assignment of error.) of the plank, "standing in the ditch and extending The defendant submitted, inter alia, the follow-out into the road" at different angles-was or was ing point: not unusual and extraordinary and calculated to "2. Even if such materials had a tendency to frighten an ordinarily quiet and well broken frighten horses, this of itself was not negligence in horse, and whether from the knowledge of the the company, nor that they were so arranged that disposition of horses to shy at unusual objects or skittish, easily-frightened or over-sensitive horses new objects upon familiar roads, due care was would shy or take fright at them." used in placing this pile of plank in such close Answer. "Well, gentlemen, that is about what proximity to an unguarded bridge. All these facts I said to you in my charge; but I think that if were properly submitted to the jury, under the authe material was so placed as to have a tendency thority of Mallory v. Griffey, 35 Pa. 275; Piollet v. to frighten horses, that was evidence to them that Simmers, etc., 106 Pa. 98; North Manheim Townthey ought not to leave that in that condition. ship v. Arnold, 119 Pa. 380; Plymouth Twp. v. But if they were piled in line, one upon the other Graver, 125 Pa. 25; Horstick v. Dunkle, 145 Pa. at the side of the road, no sensible horse ought|233. to get frightened at that." (Second assignment, of error.) April 12, 1897. REEDER, J. The facts in this The Court refused to affirm the defendant's case are practically undisputed. The only quesfourth point: "Under the evidence in this case tion is whether the testimony shows that the dethe verdict should be for the defendant." (Third fendant might have been guilty of such negligassignment of error.) The jury found for the plaintiff in the sum of $272.46, judgment was entered thereon, and this appeal taken, the assignments of error being as above indicated. A. Lewis Smith, for appellant. ence as to warrant the submission of that fact to the jury. The defendant's duty was to keep their road in a good safe condition. They had a right to deposit outside of the traveled track of the road material used in making repairs providing the materials were so arranged that they were not from their unusual appearance likely to The bald question is should not the testimony have been withheld from the jury? The learned frighten an ordinarily trained horse. It was the Judge charged as stated in the first assignment duty of the company to repair this bridge. They of error, and repeated two or three times, that had the right to pile the old plank taken from the whole question was, whether the defendant the bridge as they did at the side of the road. They had the right to leave it there on Christleft the materials taken out of the culvert armas and until the morning after Christmas when ranged in such a manner as to naturally frighten this accident occurred. The only question for the a well-bred road horse. It is respectfully sub-jury therefore was whether the planks were so mitted that there was no testimony to show negligently piled or placed as to frighten a well either: (1) That they were so left, or, (2) That trained foad horse. This was the theory upon at the time of the accident the planks were so which the question was tried and the view taken arranged in such "an extraordinary and unusual mode as would probably produce fright with ordinarily gentle and well-trained horses," if indeed the fright was produced by the planks at all. The burden of proving negligence is on the party alleging it, and a mere scintilla of evidence is not enough to carry a case to the jury. Fouhy v. Pa. Railroad Co., 17 WEEKLY NOTES, 177. by the learned Judge of the Court below in submitting the case to the jury. Was there sufficient testimony to justify the submission of that question? The testimony of Kinsey, a witness called for the defendant, and corroborated by Hall, a witness for the plaintiff, was that six planks taken from the old bridge were laid in two piles of three planks each alongside of the road and away from the traveled track. Hall, one of the plaintiff's witnesses, passed after the planks had been piled, and testifies that they were placed as testified to by Kinsey, and adds, "that The obligation on the part of the recognizor in this case was a contract to pay the debt, the amount of which had been ascertained and fixed by the judgment. Hannum v. West Chester, 63 Pa. 478. they would not have frightened an ordinarily The Court entered judgment on the case stated quiet horse the way they were lying when he saw against the defendant and he appealed. No excepthem." Lanahan, the plaintiff, testifies when he tions were taken or assignments of error filed. passed, about four o'clock in the morning, his Linn Harbaugh, for appellant. horse took fright at the place where the planks were placed, and that "the planks were piled up against the fence, some standing straight and others kind of slanting." This was the only evidence of negligence. The testimony that when the timber was left at the roadside they were regularly and orderly placed was uncontradicted. There was no evidence of their subsequent displacement by any one with the knowledge or consent of the defendant. So far as the testimony discloses they may have been displaced by some A recognizance is a matter of record in the natrespasser or by the wind. Unless it was done ture of a judgment. The process upon it whether by the defendants or some one authorized by by scire facias or a summons, is intended to carry them they are not liable. The fourth point of it into execution, and is judicial; it is an original the defendant should have been affirmed and a suit in the sense that the defendant may plead verdict directed for the defendant. to it. When final judgment is given the whole of the proceedings constitute one record. Judgment reversed. March '97, 5. W. C. S. Superior Court. An action upon a recognizance of bail for stay of execution, is not founded upon such a contract as is contem: plated by the statute of limitations in the words, "all actions of debt grounded on any lending, or contract without specialty." A case which comes by appeal and certiorari into the Superior Court, without an exception having been taken to the judgment of the Court below, which is specified for error, has nothing upon the record for the Superior Court to decide, and the judgment of the Court below will be affirmed. Appeal of William N. Meredith, from the judgment of the Common Pleas of Franklin County, entered in a case stated, wherein James C. Roller and C. F. Shoemaker, trading as Roller & Shoemaker, were plaintiffs. The facts appearing in the case stated were as follows: Being a contract it is subject to be barred by the statute of limitations. Wickersham v. Lee, 83 Pa. 422. Respublica v. Cobbet, 3 Dal. 475. Bail on appeal from a magistrate is not en- April 19, 1897. ORLADY, J. This is an appeal from a judgment ordered by the Court below upon a case stated, but the record does not show that a judgment was entered thereon; that any exception was asked for or allowed in the Court below. No assignment of error has been filed and there is nothing on this record for us to decide: Shaffer v. Eichert, 132 Pa. 285.. However, the case has been examined as if regularly in Court and the decision below was correct. The judgment is affirmed. W. D. N. Feb. '97, 39. Poor law-Removals-Appeals-Act of March 16, The plaintiffs, on December 28, 1888, obtained judgment against one E. Goss, before a justice. In an appeal from a decree upon an order of removal of the peace of Franklin county, for sixty-seven of a pauper, nothing but the record, including that which dollars and fifty-five cents ($67.55) and costs. On is brought upon it by special exceptions, can be considered. the same day the defendant became bail for stay A general exception to the opinion and decision of the of execution upon Goss. No execution was ever Court is not enough to bring up rulings upon evidence and findings of fact for review. issued against Goss and nothing was ever done by the plaintiffs until December 27, 1895, when Appeal of the Overseers of the Poor of Libthey issued a scire facias against Meredith to erty Township, Centre County, from the decree show cause why they should not have execution of the Quarter Sessions of Centre County, susagainst him in satisfaction of the judgment. taining the appeal of the Overseers of the Poor Meredith appeared and pleaded the bar of of Castanea Township, Clinton County, from an the statute of limitations to the scire facias. order removing Charles Aikey and Samuel Aikey, paupers, from the former to the latter township. the Court, asking exceptions as to findings of This case was heard by LOVE, P. J. No ex-fact or rulings of law by the Court. The proviceptions were taken to the admission or rejection sions of the Act, under which the appeal was of evidence by the Court. After hearing the taken and the uniform and very numerous deciCourt affirmed the appeal and discharged the or- sions of the Courts in regard to the same were der of removal at the costs of Liberty Township. entirely disregarded. Although not necessary, it The Overseers of Liberty Township then took a may be well to say that in our opinion there was general exception "to the opinion of the Court," competent and sufficient evidence in the case to and took this appeal, assigning as error, num- sustain the conclusions reached by the Court beerous findings of fact and rulings upon evidence low. The decree is, therefore, affirmed and the by the Court, the decree itself and parts of the appeal dismissed at the costs of the appellant. opinion. Clement Dale, (with him A. A. Dale and A. O. Furst), for appellant. C. S. McCormick, for appellee. Orphans' Court. April 12, 1897. BEAVER, J. The right of ap- April '93, 457. Orphans' Court. H. B. May 17, 1897. Orphans' Court-Citation to file account-Proceeding pending in Common Pleas where decedent's title to real and personal estate is at issue-Jurisdiction where administratrix claims decedent's alleged estate to be hers individually. The Orphans' Court will not order an administratrix to account for personal estate received by her when an equity issue is raised, whether or not the personal estate, as well proceeding is pending in the Common Pleas, wherein the as the real estate, belonged to the administratrix in her own right, the answer therein alleging the decedent's title to have been as trustee only. Sur petition and answer. peal from the judgment or decree of the Court of Quarter Sessions in the determination of appeals from orders of removal, in pursuance of which paupers have been removed from one district to another, is purely statutory. It is provided by the Act of the 16th of March, 1868. The remedy is to be pursued in strict accordance with the provisions of this Act. The Act has been construed and the mode of procedure under it carefully pointed out by the Supreme Court, whose decisions therein have been followed by this Court in several cases. In Lower Augusta v. Selinsgrove, 64 Pa. 166, the Supreme Court said: "The general exception to the opinion of the Court below is not an exception to any point of The petition of Robert Frederick Marschall, evidence or of law." The provisions of this Act by his guardian, Nicholas Marshall, set forth that of Assembly have been construed by this Court in he was the only child of Robert F. and Theresa Spring Township v. Walker Township Overseers, Marschall; that his father died March 29, 1893, 1 Pa. Super. Ct. 383, and again in Overseers of intestate, and letters of administration were Elderton Borough v. Overseers of Plumcreek granted to the said Theresa Marschall, who filed Township, 2 Pa. Super. Ct. 397. In the latter an inventory and appraisement of her husband's case there was a general exception to appellants estate, amounting to $1929.25, and who subseand it was held that "although the appellants' quently, upon her petition to the Orphans' Court, paper book contains seven assignments of error was allowed her exemption of $300 thereout. That on question of law and fact, none of them can decedent died seised of premises 1236 Columbia be considered by this Court, for the reason that avenue, and 2320 Brown street, the former being there are no exceptions to support them." In subject to a mortgage of $4000. That on July both of these cases the uniform decisions of the 20, 1893, suit was brought on said mortgage, and Supreme Court are fully collected and considered. at the sheriff's sale which resulted the mortgaged It is not necessary, therefore, to requote the premises were bought by Theresa Marschall, in authorities at length. It is sufficient for the pur- her own right, for $8500; that in said suit, on poses of this case to say that, following the uni- January 4, 1894, Theresa Marschall petitioned the form decisions of both of our Courts of appel- Common Pleas for an order on the sheriff to late jurisdiction, we must hold that the thirteen pay her, as administratrix, the balance in his assignments of error presented by the appellants hands, remaining after all liens were paid, upon for our consideration have nothing in the record her entering security therefor as provided in the which can sustain them. The Court below was Act of February 24, 1834. The Court granted the not asked to find specific facts nor were any petition, and Theresa Marschall, with a surety, prayers offered for specific rulings upon points gave bond for $4275.75, to legally distribute, as of law. No bills of exception were presented to administratrix, the sum of $2136.86, paid to her |