says he saw it off the one side of the foundation the day before the accident, and that it looked out of place. This, he says, could be seen if you looked down at it. Francis Logan testified it was loose on the day of the accident, and he could see it was loose; that it was off its foundation is also clear from the fact that it tilted immediately when she stepped on it. She was walking heedlessly, and not looking at this dangerous place over which she was going, which, according to the testimony, she could have seen and avoided had she looked. She had crossed it with more or less frequency for years, and the danger was there during all of that time, so that it was a danger that she knew of. Under this state of facts, we do not think she exercised that degree of care which has been judicially determined to be the standard in such cases. She undertook to walk by faith, and was injured by a defect which she could have seen and avoided had she looked, and is therefore guilty of such negligence as prevents her recovering for the injury sustained. The cases cited by the Counsel for the plaintiff, in support of his contention, that the question of her contributory negligence was one of fact for the jury are not at variance with the position which we have above stated. The distinction between whether a question of contributory negligence shall or shall not be submitted to the jury is clearly stated in Bannon vs. Penna. R. R. Co., 29 Sup., 231, where it is decided that when there is no conflicting testimony and the standard of individual duty has been judicially determined, the decision of the question of negligence affecting the plaintiff's right to recover and the liability of the defendant becomes the duty of the Court. In Beach on Contributory Negligence, Sec. 162, the learned author says, What amounts to negligence is, as we have already seen, a question of law. It is for the Court to say, in a majority of instances, what is, and what is not, negligence as an abstract proposition. When, therefore, the facts of a given case are undisputed, and the inferences, or conclusions to be drawn from the facts, indisputable; when the standard of duty is fixed and defined, so that a failure to attain it is negligence beyond a cavil, then contributory negligence is a matter of law. In such a case there would be nothing for the jury to decide. The case has decided itself, and it only remains to the court to declare the rule. When the facts are unchallenged, and are such that reasonable minds could draw no other inference or conclusion from them, than that the plaintiff was, or was not, at fault, then it is the province of the court to determine the question of contributory negligence as one of law." West Chester Railway vs. McElwee, 67 Pa., 311. Germantown Railway Co. vs. Walling, 97 Pa., 55, Baker vs. Fehr, 97 Pa., 70. VS. The distinction between the cases we have cited and those cited by the plaintiff's counsel is found in this rule. In the former the standard of care required of the plaintiff was judicially determined, in the latter it was not, or the facts were in dispute. In the former cases it became the duty of the Court only to state the rule, in the latter it was held to be a question for the jury whether or not the plaintiff had exercised such care as was required of him under the circumstances, there being no fixed standard of the degree of care which was required. Thus in Merriman Phillipsburg, 158 Pa., 78, the accident occurred in the night time on a bridge maintained by the defendant without a guard rail. The defendant was familiar with it, but notwithstanding her knowledge of the danger she was injured as she crossed it at night. The standard of the degree of care under such circumstances has not been judicially determined. In Glase vs. Philadelphia, 169 Pa., 488, there was a dangerous place in a park or playground it was admitted, but no standard is fixed of the degree of care necessary in such place. Nicholson vs. Philadelphia, 194 Pa., 460, the plaintiff had a lot of bundles in her arm which prevented her from seeing the defect in the sidewalk. In Musselman vs. Hatfield, 202 Pa., 489, the plaintiff knew of the defect in the sidewalk. The night was dark and stormy. She was looking for the dangerous place, but In owing to the darkness failed to see it. I tagonistic interpretations upon the same In Iseminger vs. York Haven Water language. The interpretation put upon Power Co., 209 Pa., 615, the accident oc- this testimony by the court is, first, that curred in daytime. There was nothing by plaintiff's own admission, he was not to indicate that the ditch was on the looking where he was going, and second, sidewalk. The plaintiff was not walking that the exercise of ordinary care in the on the sidewalk but came out of the use of his eyes would have disclosed the office, and, while talking to a person in hole, and he would have avoided stepthe office, took one step backward and ping into it. If this were the only infell into the ditch. While this was held terpretation that could be put upon this to be a question for the jury, it was inti- language, or if it were manifestly the mated that if she had been walking on only reasonable one, the conclusion of the sidewalk it might have been different, contributory negligence on part of plainand when the case was before the Su- tiff was warranted, and the settled law preme Court before in 206 Pa., 591, it would have barred a recovery. But, the expressly says so. In Curry vs. Erie witness says positively he was not lookCity, 209 Pa., 283, the plaintiff was rid- ing around or about him. If he had ing on a bicycle. The defect was a de- been looking across the way, or gazing pression in the street which was not up at the stars, that is, looking around noticeable until the rider got near it, or about him, he certainly would not when she could not stop. In all these have been exercising the ordinary care cases the circumstances were different required of a foot traveler. What was from those to which the rule laid down in he doing? He says 'minding my own Robb vs. Connellsville is applicable, and business.' That business just then was consequently the standard of care re- to look where he was going, and that dequired was not judicially determined, so gree of care is all the law required." that it was for the jury to find whether The testimony in the present case, howreasonable care under the circumstances ever, is not capable of two constructions. was exercised. In our case, and those All witnesses who testify on the subject which we have cited in support of our say that the plate was off its foundaposition, that standard was determined, tions or loose and could be seen if one and it was the duty of the court simply looked at it. One witness said you had to apply the rule. to look particularly, and another said that a stranger or one in the night time might not see it, but both say that it could have been seen had one looked at it. The testimony of the plaintiff was that she did not look, in effect, that she was walking heedlessly and carelessly, so that we do not think that it is possible to place a construction on the evidence that does not show her guilty of contributory negligence. Elias vs. The City, 203 Pa., 638, is also cited by the defendant. In that case it does not appear in the report, that the question of contributory negligence was raised. Counsel for the plaintiff in quoting from the paper book says it was. The case differs from this one, in that it does not appear that the defect could have been seen had the plaintiff looked or that there was any defect that was obvious. The plaintiff cites a number of cases which are authority for the proposition that when the testimony is capable of two constructions, one of which shows the existence of contributory negligence and the other the lack of it, a case is presented for the consideration of the jury. One of these cases is Bruch vs. Philadelphia, 181 Pa., 588. In it Justice Dean says, "Here, we have two entirely competent and impartial tribunals placing an We are therefore of the opinion that the non-suit was properly entered, and discharge the rule to strike it off. NOTE: See following case. C. P. OF LANCASTER COUNTY. Damages-Defect in sidewalk-Contri- A non-suit is properly entered in a suit for damages against a municipality for injury caused by the plaintiff slipping on a part of the sidewalk where it slanted very much on which February Term, 1909. No. 40. contra. bricks. Into the depression caused by this displacement plaintiff stepped, with the result that she fell and injured herself. In bringing her action she assumed the burdens of exhibiting a case clear of contributory negligence. Having testified that she stepped into the depression without having observed it, and having shown conditions which should have been sufficient, nothing intervening, to January 15, 1910. Opinion by HAS- secure one exercising ordinary care from SLER, J. At the trial of this case we entered judgment of non-suit, to strike off which, this rule was granted. It appeared in the testimony that on the 13th day of December, 1908, about noon, the plaintiff was walking on the sidewalk in the defendant borough. The sidewalk was 10 feet 6 inches wide. From the house line to the center it sloped 1 inch to wards the gutter. In the next 2 feet 8 inches the slope was 4 inches, and in the next 2 feet 8 inches it was 8 inches. Two ladies were in front of him, and, in attempting to pass them on the side towards the gutter, he stepped, in one part of his testimony he says 2 feet 9 inches, and in another, from 9 to 13 inches towards the gutter from the center of the sidewalk, when he slipped and fell, sustaining the injuries he seeks to recover damages for here. In his explanation of the accident he says, "There was a slope in the pavement, and I stepped down with my left foot lower than what I thought I was steping at the time, and that is what caused me to fall. I seen there was a grade there, but I didn't know at the time I was walking along it was as bad as what it was, but the dip in the pavement caused me to fall." Whether the Borough was guilty of negligence in maintaining this pavement in the condition testified to, is immaterial in disposing of this rule, as the plaintiff's own testimony showed such a clear case of contributory negligence, on his part, as would prevent him recovering damages for the injury, which resulted from his fall. In Lerner vs. Phila., 221 Pa., 294, it is said, "The defect in the pavement was the displacement of some such accident, she would be entitled to recover only as she explained, in a way consistent with ordinary care on her part, how and why she failed to see what was directly before her. Failing in this, it could not be said that her injury resulted exclusively from the defendant's negligence *** One is not required in walking along a traveled highway, to keep his eyes fastened upon the ground continually to discover points of possible danger; nor is it necessary that he should in order to avoid exposed pitfalls lying directly in the path before him; but the law does require that he be observant of where and how he is going so as to avoid dangers which ordinary prudence would disclose. The law governing cases of this character is so fully discussed, and so clearly and explicitly declared, in the opinion of Mr. Justice Mitchell in Robb vs. Connellsville Boro., 137 Pa., 42, that reference to other authority is unnecessary." To the same effect see numerous cases cited in Clark vs. City, in the opinion filed this day. [See preceding case.] The present case discloses an even stronger one of contributory negligence than the one from which we have just quoted. The plaintiff not only saw the defect in the sidewalk and made no ef fort to avoid it, but deliberately stepped into it. Clearly under such circumstances it could not be said that the accident resulted exclusively from the defendant's negligence, if its act in maintaining this pavement amounts to negligence, of which we have some doubt. The rule to strike off the non-suit is therefore discharged. com A real estate agent cannot recover missions by suit against one of two persons for both of whom, he avers he was employed to sell a property owned by them jointly they not agreeing to be severally liable. Where one of two joint owners of real estate wrote to the other signifying a willingness to sell and sign a deed whenever your lawyer or real estate man has a buyer" and a real estate agent sold the property at the instance of the latter these letters do not constitute an employment by the former. June Term, 1909. No. 43. Rule to strike off judgment of nonsuit. John B. Graybill, for rule. Harnish & Harnish, contra. and when she signed the agreement to sell, it does not appear that she knew or was informed that the plaintiff was acting as her agent in the transaction. At the trial we entered a judgment of non-suit which we are now asked to strike off. Two reasons were given by us why we thus disposed of the case, which were (1) That the contract of employment of the plaintiff, according to his own showing, was between him, on the one part, and the defendant and her daughter jointly on the other, and that a separate action could not lie against the defendant, and (2) That no authority was shown for his employment as the agent of the defendant. It is said in Pittsley vs. King, 206 Pa., 193, "Wherever an obligation is undertaken by two or more, or a right given to two or more, it is a joint obligation or right. Words of joinder are not necessary for this purpose; but, on the other January 15, 1910. Opinion by HAS- hand, there should be words of severSLER, J. In this case the plaintiff seeks to recover commissions from the defendant for the sale of real estate. It appeared at the trial that the defendant and her married daughter, Mary E. Trout, were joint owners of certain real estate which the latter was anxious to sell. In reply to a letter from her the defendant wrote, "If you wish to sell the property you are at liberty to do so, and I have no objections providing the terms and price is favorable to me, but not giving the purchaser the opportunity offered before of leaving my share of sale in the hotel." And in another letter, "I am perfectly satisfied eny way yous do and any time your loyer or real estate man has a buyer let me know and I am ready to sine. If you cannot transact the business without me do your part and tell me where to go and I will do my part." After the receipt of these letters by the daughter, her husband employed the plaintiff to sell the property, and he did effect a sale of it, which was not consummated, though through no fault of the plaintiff or the purchaser. The letters constituted the only authority from the defendant to employ the plaintiff as her agent to sell, ence, in order to produce a several responsibility or a several right. Whether the liability incurred is joint or several, or such that it is either joint or several, at the election of the other contracting party, depends (the rule above stated being kept in view) upon the terms of the contract, if they are expressed. Whether the liability of covenantors is joint, or several, or both, depends exclusively upon the words of the covenant. The language of severalty or joinder is the test. The covenant is always joint unless declared to be otherwise." See also Bank vs. Buckwalter, 214 Pa., 289; Boltz vs. Muehlhof, 37 Superior, 375. In this case the defendant and her daughter, according to plaintiff's contention, employed him to sell a piece of real estate owned by them jointly. If they did this they assumed a joint liability to pay him for his service in effecting the sale, and there is nothing to show that it was intended or agreed that they should be severally liable each for the payment of one half of it. In the absence of such agreement the presumption of law is that it is a joint covenant, and the plaintiff could not maintain his action against one of the parties separately. the cat to make pie tracks out of the room. Then the boy sneaked back to the field. In a little time the father came out with a shot gun over his shoulder and a covered basket in his hand. He went into the woods, a report of the gun was heard, and the father came back with an empty basket. The boy leaned on his hoe and with sadness and tears exclaimed, "Poor old Tom! You were a faithful old cat, and we all loved you, but you were a victim of circumstantial evidence." The case went to the jury, and they stayed out just long enough to sign a verdict of "Not guilty." Nor do we think any authority to em- | putting him down on the floor, he left ploy the plaintiff as agent for the defendant was shown. The letters are all the plaintiff depended upon to show such authority, and they do not do so. The first one does not even contemplate the employment of an agent to sell, nor, that any expense should be incurred by the defendant for that purpose, but only agrees that her daughter might sell. The second shows that the defendant understood that she was not to have an agent, but that, if her daughter's real-estate man or lawyer should sell, she would be willing to sign the deed. No intention is shown in either letter to incur any expense of such sale by the defendant, nor is any authority given to do so. Both show that she was only accommodating her daughter, in her desire to sell the property, and not carrying out any wish of her own. We could not under such circumstances and from such testimony allow a jury to infer that she authorized the employment of the plaintiff. We therefore think no error was committed in entering judgment of non-suit, and must refuse to strike it off. Rule discharged. Tegal Miscellany. Circumstantial Evidence. A Chicago judge tells how he once lost a case when he was prosecuting attorney when he thought it was conclusively proved by circumstantial evidence. The defendant's attorney merely told a story. He said a young farmer boy, for some fault, was compelled by his father to work all day in a corn field without any dinner. But about 2 o'clock, getting very hungry, and knowing that his father was at that time taking a nap, he sneaked into the house, into the pantry, and helped himself, finishing his luncheon on a nice pumpkin pie. Then he realized that his mother would miss the pie, and that his troubles would begin again. Just then the old house cat came up to him, and, seizing the cat, rubbing his feet in the remains of the pie, and -Case and Comment. Going Some. Being pursued by a farmer and his three sons after being caught in the chicken yard, a young colored person had just made up his mind that he was not eluding his followers as quickly as might be, when a long-eared jack rabbit jumped up from the roadside and started down the road ahead of him. The would-be chicken thief had run a few hundred feet farther when the farmer and his boys were astonished to hear the negro shout in a voice that quavered with fright, though unrestrained, "Say, for de Lord sake, you rabbit, get out ob de way and let some one run who can run." -Argonaut. Did the Best He Could. Magistrates sitting in the central police court have listened to many unusual pleas in excuse for wife desertion or failure to support a spouse, but one of the most unusual was presented by a negro recently whose wife had him summoned before the bar of justice because he had given her no money for three weeks. "Why don't you support your wife?" the magistrate asked. "Well, you see, it's this way, boss," replied the man. "I've just started a bank account, and I don't make enough to keep that going and support the old woman, too, so I had to let her go." -Philadelphia Times. · |