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gence, and the other to our ruling on the ad- | the evidence utterly fails to warrant such in. missibility of certain testimony.

ference, it is the duty of the trial judge to so [1] Defendant's negligence depends upon | declare. whether or not it complied with the Factory Act) [Ed. Note.-For other cases, see Negligence, of May 2, 1905 (P. L. 352) $ 11, which requires, 1 Cent. Dig. 88 277, 278: Dec. Dig S136(1).] inter alia, all saws to be properly guarded.

3. MASTER AND SERVANT 265(10) - INJUWhether the saw which caused plaintiff's injury was sufficiently guarded, or capable of being

RIES TO SERVANT — ACTIONS – BURDEN OF guarded and used for its intended purpose were

PROOF. disputed questions of fact, and therefore for the

In an action for injuries to a servant, the jury. Wagner v. Standard Sanitary Manfg.

burden is on the plaintiff to affirmatively esCo., 244 Pa. 310, 91 Atl. 353. l'pon an exami

tablish his charge that the injury was the renation of our charge and answer to defendant's

sult of an unusual method of work which expospoints, in connection with the very elaborate | ed him to extraordinary risk. brief of defendant's counsel, we have not been ! (Ed. Note.-For other cases, see Master and convinced that our instructions to the jury were Servant, Cent. Dig. $ 890; Dec. Dig. Om either erroneous or prejudicial to defendant. | 265(10). ] On the contrary, the instructions were fully as 4. MASTER AND SERVANT 101, 102(5)-INfair to defendant as it was entitled to have

JURIES TO SERVANT-APPLIANCES--CARE REthem, not only on the questions of negligence QUIRED. and contributory negligence, but also the measure of damages.

When an employer furnishes his employé

the tools and appliances which, though not the [2] The exceptions to our rulings on the ad- | best possible, may by ordinary care be used missibility of testimony, in our opinion, are without danger, he has discharged his duty and without merit. The testimony objected to re

is not responsible for accidents. lated to the practicability of attaching a guard

[Ed. Note.-For other cases, see Master and to the saw in question without rendering it useless for defendant's purposes. It was, con

Servant, Cent. Dig. $ 180; Dec. Dig. Om 101,

102(5).] sequently, in our opinion, properly admitted. 13] The verdict is not excessive. Plaintiff's

Appeal from Court of Common Pleas, Allehand is badly crippled, so much so that he is prevented from following his trade as a molder, gheny County. and is obliged to seek employment that is much ! Action of trespass by U. G. Miller against less remunerative. Higher verdicts for almost

the Republic Chemical Company for personsimilar injuries have been sustained by the courts. We have not been convinced that either al injuries. From a judgment_101

al injuries. From a judgment for plaintiff motion should be sustained.

for $5,000, defendant appeals. Reversed and Verdict for plaintiff for $3,109.20 and judg- rendered. ment thereon. Defendant appealed.

Argued before BROWN, C. J., and MESArgued before BROWN, C. J., and MES- I TREZAT. POTTER. STEWART. and FRATREZAT, POTTER, STEWART, and FRA-I ZER. JJ. ZER, JJ.

C. A. Jones, Franklin T. Nevin, and SterJ. Merrill Wright and Albert B. Schultz, rett & Acheson, all of Pittsburgh, for appelboth of Pittsburgh, for appellant. H. Fred lant. L. K. Porter and S. G. Porter, both of Mercer, of Pittsburgh, and Roger Cope, of Pittsburgh, for appellee. Beaver Falls, for appellee.

STEWART, J. The appellant company PER CURIAM. This judgment is af

owns and operates a plant for the manufacfirmed on the opinion of the court below, de

ture of chemicals. In the course of the connying the motions for a new trial and judg

struction and operation of its plant, it rement non obstante veredicto.

cieved from time to time on board cars cer

tain heavy pieces of machinery known as (251 Pa. 593)

"basket tanks," varying in weight from one

to two tons each. These cars were open gonMILLER v. REPUBLIC CHEMICAL CO.

dola cars, and were delivered on the siding (Supreme Court of Pennsylvania. Jan. 3,

of the appellant company on its own prem1916.)

ises. The work of unloading was done by 1. MASTER AND SERVANT 286(10) — INJU

the appellant. The cars employed, though RIES TO SERVANT-APPLIANCES.

In an action for injuries to a servant while open, had heavy framework at the sides unloading freight from cars, where the negli- and ends extending some 3 or 4 feet above gence alleged was the failure to supply cranes the floor, the ends being detachable, but not or other appliances for unloading the cars instead of iron straps for sliding the freight to

so the sides. It was impracticable, there. the ground, but it did not appear that the meth- fore, to unload the baskets from the side of od employed was dangerous or unusual, though the car except as they were first hoisted over that suggested might have been safer, it was and above this framework, a condition which error to submit the case to the jury, and a verdict should have been directed for defendant.

would seem to require the employment of a [Ed. Note. For other cases, see Master and

crane or other similar device. The frameServant, Cent. Dig. $ 1017; Dec. Dig. Om work at either end being removable, it was 286(10).]

practicable by removal to skid the baskets 2. NEGLIGENCE Om 136(1) – ACTIONS - QUES-out from the body of the car through the TION FOR COURT OR JURY.

end of a platform, and lower them from there Where there is no conflict as to the facts

to the ground. A temporary platform for in a negligence action and the evidence admits of no other inference than negligence, it is the

this purpose was used, constructed with two duty of the trial judge to so declare; and, where heavy beams resting at one end on the bump

er of the car carrying the freight to be un-1 [1, 2] It is thus made very clearly to aploaded, and the other end resting on the pear that there was but a single allegation bumper of a car placed at a distance of 12 of negligence in the case, namely, failure feet, thus bridging over the intervening to use a crane for the unloading of the basspace. Extending out from the body of the kets; and the case was submitted to the car and across the platform two iron straps jury to find whether such failure was the were laid, each 12 feet in length, to facilitate proximate cause of the accident. The inthe moving of the baskets from the car to struction of the court begged the very questheir proper place on the platform. This was tion in issue. It assumed that the adoption the method adopted by the appellant from by the defendant of another method of unthe beginning, and was used in the present loading the basket tanks than by means of case. The plaintiff was one of four employés a crane was an act of negligence, and subwho had been assigned to this work. He was mitted to the jury the single question whethboss of the gang, and had been employed er this was the proximate cause of the dein this kind of work for six months. Hav- fendant's injury. Except as this was a neg. ing removed the framework at the end of ligent act, under no circumstances could the loaded car preparatory to the work of it have been a proximate cause. Inquiry for skidding the basket out to the platform, the proximate cause in such cases never extends plaintiff was directed by the superintendent further back than to some original negligent to place it, not on the ground where it might act which set in motion the chain of circumbe overlooked when the unloading was finish.stances leading up to the injury. However ed, but against the end of the car which was remote this is, it may, notwithstanding, be being used only as a support to the platforma proximate cause; but the first essential or bridge. These arrangements completed, is, whether near or remote, that it must be the work of skidding the basket out upon the à negligent act; for except as it involves platform began. When it had so far been negligence, it is without legal relation to the proceeded with that the basket was entering injury. As the issue was framed, the first upon the iron straps laid on the platform, question to be determined was whether the one of the straps slipped from its position, failure of the defendant to use the crane was forced forward by the pressure until the method for unloading was negligence. The farther end of it struck the end gate or charge of the court in the respect we have frame which had been placed at the end of indicated amounted to an instruction that it the other car in a slanting position, caus was, since the question was not left to the ing it to fall in such a way as to injure the

jury to pass upon. Assuming this to be the plaintiff's arm. It was for the injury thus explanation of the charge, its correctness received that plaintiff brought this action

depends on the sufficiency of the evidence for damages. In the statement of claim filed to

to warrant it. The evidence shows no conthe negligence charged is thus stated :

flict as to the facts. Where this occurs and “Said injuries were due to the negligence of the said superintendent in charge of the direct

the evidence admits of no other inference ing of the work, in failing to make use of a than negligence, it is the duty of the trial crane or other suitable appliance in unloading judge to so declare without referring it to the the said basket tank, as the defendant well knew. or in the exercise of ordinary care. should jury. Where it utterly fails to warrant have known, that the appliances used were not such inference, it is no less the duty of the safe and suitable appliances with which to un

trial judge to so declare. Now what evi. load the said tank, and knew, or in the exercise of ordinary care should have known, that the

dence was there in this case to support plainmethod of unloading said tanks was an unusual tiff's contention that it was negligence on the method and more dangerous than the ordinary

part of the defendant to adopt the method method of unloading heavy pieces of machinery

of unloading it did? If none, then defendby the use of a crane."

ant was entitled to binding instructions. In his final instructions to the jury the

[3] But two witnesses for the plaintiff tes. learned trial judge said:

tified on this branch of the case, both me"Now all of this that I have said to you de

chanical engineers. The first one called gave pends upon whether you find that the want of a crane was the proximate cause of this injury. it as his opinion that the crane method was Of course, if this man had not been working the safer, and spoke from no wider exthere at all, he would not have been injured ; and I will submit to you the question whether

perience and observation than that acquired or not you find that the fact that there was in the two different establishments in which not a crane furnished, and that they were do- he had been employed. The other expressed ing it in this way, was the proximate and di-uile

like opinion based on an experience and obrect cause of this injury, under the circumstances; this injury having taken place, not by the servation in the plant in which he was emfalling of the object that they were moving, but ployed. Neither testified that the method by the falling of this door. That is a question for you to determine whether you believe the

adopted by the defendant in this case was falling of this door on him was the proximate not a reasonably safe method, and neither result of the absence of a crane. If it was, and testified that it was not in common use. there is no assumption of risk or contributory negligence, then the plaintiff is entitled to re

One of these witnesses, the latter one called,

Son

“Q. As a general proposition the heaviest piec-, be adduced as evidence of negligence." Cunes can be handled by pinching bars and skids ningham v. Ft. Pitt Bridge Works, 197 Pa. as well as by overhead crane?"

625, 47 Atl, 846. His answer was “Yes, sir." The insuf- Upon a careful review of all the evidence, ficiency of this evidence becomes apparent we can reach no other conclusion than that when we consider the burden that rests up- the case called for binding instruction for on a plaintiff in such cases, and the measure the defendant, and that it was error, thereof duty required of the employer. The bur-fore, to refuse the motion made by defendden was on the plaintiff to affirmatively es ant. We think it clear beyond question that tablish the negligence that his statement the immediate cause of the accident was the charges, namely, that his injury was the re- sliding of the iron strap. Whether this was sult of an unusual method which exposed the result of negligence, and, if so, whose, him to an extraordinary risk. Northern Cen are questions outside the issue we are dealtral Ry. Co. v. Husson, 101 Pa. 1, 47 Am. ing with. The assignments of error are susRep. 690; Titus v. Bradford, Bordell & Kin- tained, and the judgment is reversed, and zua R. R. Co., 136 Pa. 618, 20 Atl. 517, 20 judgment is now entered for defendant Am. 'St. Rep. 944. The plaintiff admits that as an employé of the defendant he had been engaged in exactly the same work, using

(251 Pa. 529) the same device, for a period of six months FIRST NAT. BANK OF BIRMINGHAM V. prior to the accident complained of. He men FIDELITY TITLE & TRUST CO. tions not a single mishap during this period. If his injury was the result of an unusual

(Supreme Court of Pennsylvania. Jan. 3, 1916.) occurrence, to the ordinary mind it would 1. INSANE PERSONS 77 - CONTRACTS seem that the unusual occurrence was the BILLS AND NOTES-LIABILITY.

Where the indorser of a promissory note sliding of the iron strap which, striking

was insane at the time of the indorsement, he against the end gate, threw it down, rather became liable only to the extent of the benefits than the method of unloading which had received by him, whether the notes were given been employed so long without accident. for his own individual indebtedness or as an

accommodation. This suggests a proximate cause, if negli.

[Ed. Note.-For other cases, see Insane Pergence were connected therewith, which seems

sons, Cent. Dig. 8 131 ; Dec. Dig. @ 77.) not to have been considered.

[4] But aside from this, what duty, owing 2. INSANE PERSONS 77-CONTRACTS-BILLS to the plaintiff in the choice of method, did

AND NOTES - INDORSEMENTS - LIABILITY OF

INDORSER. the defendant neglect to observe? In Pitts

Where a bank had no knowledge that notes burgh & Connellsville R. R. Co. v. Sentmeyer, indorsed by a depositor were given for the bene92 Pa. 276, 37 Am. Rep. 684, we said that fit of a brokerage firm, and the entire proceeds when the employer furnishes his employé

were credited to the depositor, his estate is lia

ble on the notes, whether he was sane or insane, the tools and appliances which, though not since he received the benefit of the entire prothe best possible, may, by ordinary care be ceeds. used without danger, he has discharged his [Ed. Note.-For other cases, see Insane Perduty, and is not responsible for accidents. sons, Cent. Dig. § 131 ; Dec. Dig. Om77.] And this is the doctrine of all our cases. In 3. BANKS AND BANKING 116(2)-OFFICERS Payne v. Reese, 100 Pa. 301, 306, we said: -NOTICE. “If the machinery be of an ordinary charac

Knowledge of the president of a bank as the ter, and such as can, with reasonable care, be

member of a brokerage firm that notes indorsed used without danger to the employé, it is all

| by a depositor were for the benefit of the firm is that can be required from the employer; this

not imputable to the bank. is the limit of his responsibility, and the sum (Ed. Note.-For other cases, see Banks and total of his duty.”

Banking, Cent. Dig. 8 283; Dec. Dig. Om Even were it admitted that the evidence

116(2).) was sufficient to warrant the conclusion that Appeal from Court of Common Pleas, Althe crane method was the safer, it comes legheny County. far short of showing a disregard of any duty Action of assumpsit by the First National on part of the defendant in not adopting it. Bank of Birmingham, a corporation under A plaintiff can only prove negligence in such the laws of the United States, against the case as this by showing that the appliance Fidelity Title & Trust Company, administraused was not reasonably safe. Even though tor of Samuel B. Walton, on two promissory it be made to appear that it was not in or-notes. From a judgment for plaintiff for dinary use, such fact would not warrant an $27,613.02, defendant appeals. Affirmed. inference of negligence.

Argued before BROWN, C. J., and MES"The party charged with negligence disproves TREZAT, POTTER, STEWART, and FRAit by showing that the tools he employed were

ZER, JJ. those in general use in the business, but the converse does not follow. The party charging Ernest C. Irwin, Chantler & McClung, and negligence does not show it by showing that watson

Watson & Freeman, all of Pittsburgh, for apthe machinery was not in common use. If it shoulil be so held, the use of the newest and pellant. George Monro, Jr., and George Monbest machine, if not yet generally adopted, could ro, both of Pittsburgh, for appellee.

MESTREZAT, J. This is a voluminous evidence that the notes and securities 'glven record, made so by the irrelevant matters Walton by Scully, Painter & Beech were de which were injected into the case on the trial posited by Scully in the firm's safe deposit in the court below. The questions presented box in a sealed envelope marked "Property for consideration by the jury and by the of Samuel B. Walton" where other securities learned trial court were few, and a brief were kept for Walton by Scully. statement of the material facts will disclose The defense interposed on the trial of the that there is but one question for our consid- cause was that Walton was mentally defieration and it was properly answered by the cient or insane at the time he executed the jury as well as by the learned judge in his notes, and that he drew and indorsed them opinion refusing a new trial.

for the accommodation of Scully, Painter & Samuel B. Walton, the defendant's intes Beech. Under this defense, the testimony tate, like his father, had been for many took a wide range and the result was the voyears a stockholder and depositor in the luminous record we have before us. The deplaintiff bank. In March, 1894, Walton exe- fendant contended that no consideration passcuted and delivered to James W. Scully, a ed to Walton for the notes, that the giving of member of the firm of Scully, Painter & the notes by Walton to the bank, and notes Beech, a power of attorney authorizing him of the same date by Scully, Painter & Beech to perform any act, matter or thing necessa- to Walton were all parts of the same transry or convenient to be done in the manage action and was intended to and did make ment or control of his estate; and especially Walton simply an accommodation indorser to execute any check, note, or any other in- for that firm, and that the bank, through its strument in writing whatever, and to receive president, had knowledge of the situation and receipt for all moneys due or to become and was therefore affected by it. due, to convey all property, and generally The learned court below submitted to the to act for him as fully as he could act if per- jury to determine whether Walton was sane sonally present. Scully exercised the powers at the time he executed the notes, and whethand authority conferred on him by the letter er he was an accommodation indorser on the of attorney until 1912 when Walton was de- notes in suit for Scully, Painter & Beech; clared a weak-minded person, and the Fidel- and instructed them that if Walton was sane ity Title & Trust Company was appointed his when he signed the notes they should find for guardian. Subsequent, to the institution of the plaintiff, that if he was insane at that this suit, in February, 1914, Walton died, time there could be no recovery on the notes and the trust company was appointed his ad- except to the extent that he or his estate was ministrator and was substituted as defendant benefited by the transaction, by virtue of any on the record.

consideration, or the value of any security This is an action of assumpsit to recover that passed to him or his estate by reason of the amount due on two promissory notes, one the two indorsements at the time he executed for $10,000, dated March 30, 1911, and the the papers. The court charged, as requested other for $15,000, dated May 12, 1911, signed by the defendant, that if Walton was mentalby Walton, payable on demand to his own or- ly incompetent when he signed the notes in der and indorsed by him. The $10,000 note suit the plaintiff could "recover only so far was discounted March 31, 1911, and the $15,- as and to the extent that Samuel B. Walton 000 note was discounted May 16, 1911, by the or his estate, received consideration, directly plaintiff bank, and the proceeds in each in- or indirectly, for the signing of said notes; stance were placed in the checking account and it is not necessary that the plaintiff be of Walton with the bank. The notes were shown to have had knowledge of his mental presented for discount by Daniel Beech, a incompetency at the time of said transacmember of the firm of Scully, Painter & tions." Throughout the charge, the court Beech, and the president of the bank. On time and again told the jury that if Walton the days the respective notes were discount was insane, if the notes sued on were solely ed and the proceeds placed in Walton's ac- for the accommodation of Scully, Painter & count, James W. Scully, Walton's attorney-in- Beech, and if neither Walton nor his estate fact, drew checks on Walton's account in the received any benefit therefrom, then the ver. bank for, the same amounts as the notes re- dict should be for the defendant; and that spectively, which were duly paid. Likewise, on the plaintiff could only recover so far as and the days these notes were discounted and the to the extent that Walton or his estate receive amounts credited to Walton's account, the ed consideration at the time he executed the latter received from Scully, Painter & Beech, notes. a brokerage firm, notes payable to himself [1, 2] The verdict was for the full amount for like sums with certain collateral attach- of the claim which would indicate that the ed thereto. These notes provided that the jury found that Walton was sane at the owner had the right to call for additional se time he executed and delivered the potes to curity should there be a decline in the mar- the bank; or if insane, that he received full ket, and on failure to respond, the obligation consideration for the notes, as they were diswas payable without demand or notice with tinctly told that if he was deficient in menthe notes beyond the amount that Walton | Power Co., 181 Pa. 327, 37 Atl. 550, 59 Am." actually received as a consideration for giv. St. Rep. 650; United Security Life Ins. & ing them. There was some evidence tend- Trust Co. y. Central Nat. Bk. of Philadeling to show that several smaller sums might phia, 185 Pa. 586, 40 Atl. 97; Dominion have been received by Walton as a considera- Trust Co. v. Hildner, 243 Pa. 253, 90 Atl. 69. tion for the notes. It is clear, however, that | There is no evidence in the case that would on the record presented to us whether Wal-warrant the conclusion that as between Walton was sane or insane the plaintiff bank ton and the bank the notes sued on were for had the right to recover the full amount of the accommodation of Scully, Painter & the notes sued on. If he was sane at the Beech. Their names do not appear on the time he gave the notes, whether he received notes either as makers or indorsers. Scully, a consideration or was simply an accommoda- Painter & Beech had nothing whatever to do tion indorser, he was liable to the plaintiff with the notes in suit. They were simply the on the notes. If he was insane, he was only obligations of Walton given to secure the liable to the extent of the benefits received payment of the money loaned by the bank by him whether they were given for his own to him. That transaction was entirely be individual indebtedness or were indorsed as tween them, and the firm had no connection an accommodation for Scully, Painter & whatever with it. The money was subject to Beech. Lancaster County National Bank v. Walton's check, and he or his duly author. Moore, 78 Pa. 407, 21 Am. Rep. 24; Wire ized agent withdrew it on a properly drawn bach's Executor y. First National Bank of check. If the agent misappropriated the Easton, 97 Pa. 543, 39 Am, Rep. 821. Under money by paying it to his firm, it cannot af. the evidence, he was not, in a legal sense, an fect the bank or its right to recover in this accommodation indorser. There is no dis. action. Morris v. Great Northern Railway pute as to the fact that he executed and in- Co., 67 Minn. 74, 78, 69 N. W. 628. Walton's dorsed the notes, that they were discounted estate must, in that event, look to his agent by the bank, the proceeds placed to his credit for redress. in his checking account, and that the money In the view we take of the case, the eviwas withdrawn from the bank by checks sign. dence failed to disclose any defense to the ed by him or his duly authorized agent. As action, and the learned trial judge should said in the opinion of the learned trial judge have directed a verdict for the plaintiff. in refusing the motion for a new trial, there The judgment is affirmed. was no fraud on the part of Scully, Painter & Beech or of the plaintiff bank "established, urged or proven at the trial or set forth in

(251 Pa. 536) any of the points submitted or in the reasons FIRST NAT. BANK OF BIRMINGHAM v. alleged for a new trial by the defendant." FIDELITY TITLE & TRUST CO. The money was not only deposited to the credit of Walton in the bank, but it was

(Supreme Court of Pennsylvania. Jan. 3, 1916.) checked out by him or his agent, and hence 11. NEW TRIAL E39_GROUNDS-ERROR IN INthere was full consideration passing to him | STRUCTIONS-DISCRETION OF COURT, from the bank when he gave the notes in Where it appeared that a promissory note suit. The proceeds were deposited in Wal

was indorsed by defendant's decedent and dis

counted by plaintiff for a brokerage firm, that ton's checking account, and it was with

the firm gave the decedent a note for a like drawn on a check in the usual course of amount with certificates of stock in a coal combusiness. When the notes were executed and pany as collateral security, that at the time of delivered to the bank a credit was given

| trial the note had disappeared and the stock

was in the possession of plaintiff, not held as Walton for the proceeds. The evidence does

collateral for any loan, and that the value of the not show that the bank had any knowledge stock when delivered was sufficient to secure the of Walton's purpose in procuring the money

note given by the firm, but at the time of trial or what he intended to do with it. In fact,

had no value, and the court charged that de

fendant was chargeable with the value of any it was none of their concern. The bank did securities decedent might have received to pronot know that Scully, Painter & Beech in- tect him on his signature to the note at their tended to or had given their notes to Walton, val

| value at the time of delivery and not at the

time of trial, the grant of a new trial on the or that the money was procured by Walton ground of error in instructions was not an abuse for the purpose of loaning it to him. The of the court's discretion. bank, so far as the evidence disclosed, was [Ed. Note.-For other cases, see New Trial, ignorant of the transactions between Walton Cent. Dig. 88 57-61; Dec. Dig. 39.] and Scully, Painter & Beech.

2. APPEAL AND ERROR O 89-REVIEW-D18[3] It is true that the president of the

CRETION OF TRIAL COUBT-GRANT OF NEW bank, who was also a member of the firm, TRIAL. presented the notes in suit for discount, and

While the Supreme Court bas power to en:

tertain an appeal from an order granting a new le nad knowledge that the proceeds Of | trial, it will be exercised only in clear cases of the note were to be used by the firm, but his | abuse of discretion by the trial court. knowledge cannot be imputed to the bank. | Ed. Note. For other cases, see Appeal and Gunster v. Scranton Illuminating Heat & Error, Cent. Dig. 598; Dec. Dig. 89.}

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