Negligence

Years

Schlicker et al. v Hines, Dir. Gen. of Railroads.

-Railroad Crossing--Watchman-Duty-Decedent Aged 85
Adult Children-Excessive Verdict..

In an action against a railroad company to recover damages for death at a grade crossing the presumption that deceased looked and listened and in making the crossing exercised due care under the circumstances, may be overcome by evidence upon behalf of the plaintiff or by such clear, positive, credible and uncontradicted testimony upon the part of the defendant as will justify the Court in holding that a verdict against it must be set aside.

Where the defendant railroad company employed a watchman at a crossing, it was the watchman's duty to watch trains and warn pedestrians, and while this would not relieve them from the duty of vigilance, the company would be liable if one in crossing behind an eastbound train was hit by a westbound train on a dark night and after the watchman had signalled him to cross.

Where a father, aged 85, was killed at a railroad crossing and his adult children recovered a verdict for his death the Court remitted all of the verdict over $1,400 as excessive.

Motion for Judgment N. O. V. No. 2093 July Term, 1919. C. P. Allegheny County.

R. A. Hitchens, for plaintiff.

Dalzell, Fisher & Dalzell, for defendant.

Before MACFARLANE, STONE and FORD, JJ.

FORD, J., January 31, 1920.-On the night of September 28, 1918, John G. Schlicker was injured on the Crafton Avenue crossing of the Pittsburgh, Cincinnati, Chicago and St. Louis Railroad as a result of which he died the following day.

The action is by adult children of the deceased to recover damages for the pecuniary loss sustained because of the death of their father. The verdict of the jury was for the plaintiffs and the cause is now before the Court on a motion, ex parte defendant, for judgment non obstante veredicto and for a new trial. The reason assigned in support of the motion for judgment is that the Court erred in refusing to charge that the deceased, John G. Shlicker, was guilty of contributory negligence.

In an action against a railroad company to recover damages for death at a grade crossing the presumption that deceased looked and listened and in making the crossing exercised due care under the circumstances, may be overcome by evidence upon behalf of the plaintiff or by such clear, positive, credible and uncontradicted testimony upon the part of the defendant as will justify the Court in holding that a verdict against it must be set aside. The testimony was conflicting but the jury was warranted in finding that the crossing is located at Crafton Station and is the principal and main railroad crossing in the Borough of Crafton. The avenue runs approximately North and South and the tracks-three in number-approximately East and West. In passing from the South to the North side of the crossing the first is an East-bound track, the next an East-bound siding and the third a West-bound track.

Between 8:30 and 9 o'clock on the night of the accident, an East-bound freight of considerable length passed over the crossing. The train was running East on the East-bound track. As the freight was proceeding over the crossing, a West-bound train consisting of a caboose pushed by a locomotive approached from the East, running on the West-bound track. The caboose and locomotive passed the rear of the freight at a point about 90 or 100 feet from the crossing. When the East-bound freight cleared the

Schlicker et al. v Hines, Dir. Gen. of Railroads.

crossing, a number of persons and one or more automobiles, started over. Shortly before the East-bound freight had passed, Mr. Schlicker was seen at the South side of the crossing at or near a grocery. He started across, passed over the East-bound track and the East-bound siding and when in the act of stepping over the West-bound track, he was struck by the caboose, knocked down and his legs were cut off by the outer wheels of the caboose. The defendant does not contend that the presumption that deceased stopped, looked and listened was overcome by the evidence, the contention is that the testimony respecting the care exercised by defendant in walking over the tracks to and on the West-bound track, justified the Court in holding as a matter of law that the deceased was chargeable with contributory negligence. With this contention we cannot agree.

The defendant company had a watchman stationed at the crossing. It was the duty of the watchman to observe the movement of trains and give warning to persons about to cross. Pedestrians and others were not relieved from the duty of vigilance, but to a great extent their actions would be influenced by the watchman's assurance of safety. The testimony upon the part of the plaintiff is to the effect that immediately after the Eastbound freight had passed, the watchman waved those in waiting to come on. Witnesses for defendant testified that the watchman displayed a danger signal, cautioning not to attempt the crossing. The disputed testimony, however, was for the jury. There is also a dispute as to the position of deceased when struck by the caboose. For the plaintiff, James McDermott testified that when struck Mr. Schlicker was in the middle of the track: "One more step would have brought him across." It is true he speaks of Mr. Schlicker being on the tracks when defendant's employes riding on the front of the caboose called out and that he was not then on the Westbound track. The different parts of his testimony are perhaps inconsistent, but it was the province of the jury to reconcile the conflicting statements. The facts present a case where the jury was justified in finding that the caboose and locomotive were running in reverse, without a head-light, and passing a freight running in the opposite direction. Conceding that the whistle was sounded at the signal-post, distant 700 feet from the crossing, and the bell was rung, yet, by reason of the noise made by the passing freight, neither might have been heard. Mr. Schlicker was waiting on the South side apparently about to make the crossing. As the freight cleared the crossing and after the signal made by the watchman, he started over. The night was dark and the caboose could not be seen for any considerable distance. Without observing the approaching train, he attempted to cross the West-bound track. By their verdict the jury found, that he did not hear the cries made by the defendant's employes or that their warning was given too late to prevent the accident. It is apparent that there was a well defined conflict in regard to the facts connected with the accident and the reasonable inferences to be drawn therefrom. The question of contributory negligence was therefore one for the determination of the jury.

In support of the motion for a new trial, the defendant alleges that the verdict is excessive. The father was 85 years of age; the plaintiffs, except Mrs. Walsh, resided with their father in his home; in the rear of the home was a garden in which he raised vegetables which were used by the family; all of the work, planting and the like was done by the father. Mrs. Walsh was married and lived with her children in a house of her own. She had been deserted by her husband and supported herself in part by canning vegetables and preserving fruits. She testified that her father assisted her during the canning season and gave her vegetables and fruits. In view of the age of the father, the amount contributed to the plaintiffs, with whom he resided as a member of the family, and the aid given Mrs. Walsh, we are

Schlicker et al. v Hines, Dir. Gen. of Railroads.

of opinion that the amount awarded plaintiffs is excessive and should be reduced.

ORDER.

Now, January 31, 1920, The motion for judgment non obstante veredicto, is refused.

Exception noted to defendant and bill sealed.

January 31, 1920. It is ordered that if the plaintiffs shall within ten days file a remittance of all the verdict herein over $1,400. with condition that the same be paid within thirty days after notice of its filing, given defendant's Counsel, a New Trial is refused, otherwise a New Trial is granted.

July 12, 1919, P. L. 933.

If an applicant for an architect's certificate under the Act of July 12, 1919, P. L. 933, who has been "engaged in the practice of architecture under the title of Architect' for at least one year prior to the date of the approval of the Act," does not satisfy the State Board of Examiners that he is a "properly qualified person," or does not submit proof that is satisfactory to the Board of Examiners of his "competency and qualification and evidence as to character," the board may refuse to grant such an applicant a certificate or to register him.

Section 15 of the Act of July 12, 1919, P. L. 933, applies only to those who on and after July 1, 1919, enter upon the practice of architecture in Pennsylvania. It does not apply to those persons who have been practicing architecture prior to the passage of the Act.

OFFICE OF THE ATTORNEY GENERAL,

Harrisburg, Pa.

March 5, 1920.

Mr. M. I. Kast,

Secretary, State Board of Examiners of Architects,
Harrisburg, Pa.

Dear Sir:

We have your letter of the 1st inst., asking for a construction of the Act of July 12, 1919, P. L. 933, creating the State Board of Examiners of Architects, and defining its powers and duties.

The first question you propound is whether the Board may refuse to grant a certificate of registration to any person who has been engaged in the practice of architecture for at least one year prior to the passage of this Act, if the Board deem such person not properly qualified. Section 6 of this Act provides in part:

** Any properly qualified person who shall have been engaged in the practice of architecture under the title of 'architect' for at least one year prior to the date of the approval of this Act may secure such certificate and be registered in the manner provided by this Act."

In re Architects.

Sub-division "C" of Section 7, provides:

"The board of examiners may grant a certificate of qualification to and register without examination any one who has been engaged in the practice of architecture in this State for at least one year prior to the date of approval of this Act as a member of a reputable firm of architects or under his or her own name, or to any one who has been engaged in the practice of architecture as an employe for at least five years prior to the date of approval of this Act: Provided, That applicants under this sub-division shall present satisfactory proof of competency and qualifications and evidence as to character: And provided, That the application for such certificate shall be made within two years after the date of approval of this Act."

The certificate to be issued is called a "certificate of qualification." Section 6 provides that it may be issued to "any properly qualified person," who, as provided in Section 7, "shall present satisfactory proof of competency and qualifications and evidence of character." The State Board of Examiners necessarily must be the judges as to whether, a person is "properly qualified" and has presented "satisfactory proof of competency and qualifications and evidence as to character."

If an applicant who has been "engaged in the practice of architecture under the title of 'architect' for at least one year prior to the date of the approval of this Act" does not satisfy the State Board of Examiners that he is a "properly qualified person," or does not submit proof that is satisfactory to the Board of Examiners of his "competency and qualifications and evidence as to character," the Board may refuse to grant such an applicant a certificate or to register him, as provided by the Act of Assembly. This applies to persons who have been in practice more than one year prior to the passage of the Act, who desire to secure a certificate and to be registered.

The Act, however, also provides that any person who has been engaged in the practice of architecture under the title "architect" for a period of more than one year prior to the approval of the Act may continue to do so without a certificate or registration, provided he file an affidavit setting forth the facts with the Board of Examiners within five years after the date of the approval of the Act.

The second question you ask is whether a person who has been engaged in the practice of architecture for a period of one year prior to the approval of this Act of Assembly comes within the provision of Section 13.

Section 13 provides:

"On and after July first, one thousand nine hundred nineteen, it shall be unlawful for any person in the State of Pennsylvania to enter upon the practice of architecture in the State of Pennsylvania, or to hold himself or herself forth as an architect or as a 'registered architect,' or to use the word or any letters or figures indicating or intended to imply that the person using the same is a 'registered architect,' unless he or she has complied with the provisions of this Act and is the holder of a certificate of qualification to practice architecture issued or renewed and registered under the provisions of this Act."

It is very plain that this section applies only to those who on and after July 1, 1919, enter upon the practice of architecture in the State. It does not apply to those persons who have been practicing architecture prior to the passage of the Act.

Very truly yours,

WM. M. HARGEST,

Deputy Attorney General.

Where plaintiff entered into possession of premsies under a verbal lease for one year and when the lease came to be reduced to writing, plaintiff objected to conditions not embodied in the original agreement, and refused to sign the amended lease, equity will by preliminary injunction restrain defendant from ejecting plaintiff until final hearing.

In Equity. No. 2027 January Term, 1920. C. P. Allegheny County.

J. Welfred Holmes, for plaintiff.

Jacob I. Simon, for defendant.

FORD, J., January 31, 1920.-This is a bill in equity to restrain the defendant from interfering with a business conducted by plaintiff and her occupancy of premises leased to her by defendant. The cause is now before the Court on a motion to continue a preliminary injunction heretofore issued.

In April, 1919, the plaintiff and defendant entered into a verbal agreement whereby defendant agreed to lease plaintiff a hall room on the first floor of the building, No. 1924 Center Avenue, Pittsburgh, for the term of one year commencing May 1, 1919 for the total rent of One Hundred Twenty Dollars, payable in monthly installments of Ten Dollars each. It was understood that defendant would prepare a lease to be submitted to and signed by plaintiff.

On May 1, the plaintiff, with the knowledge of defendant entered into possession of the room and has ever since conducted and now conducts a florist business therein. In the latter part of May or the first part of September-there is a dispute as to the time-the parties met in the office of the defendant who was in the real estate business and occupied a room on the same floor but in the rear of the building. The defendant submitted an original lease and a copy thereof drawn by him and requested plaintiff to sign the original. As first prepared, the instrument was in accord with and expressed the terms of the parol agreement made by the parties in April. Subsequently, and before submission of the lease to plaintiff, defendant inserted a proviso obligating the plaintiff to operate her business in a peaceful manner and "not to interfere with other tenants or cause any disturbance whatsoever among the same." Plaintiff refused to sign the lease with the added covenant, whereupon the defendant erased the provision from the copy and gave it to the plaintiff explaining that it was a copy of the lease.

Plaintiff testified that she and defendant both signed the original lease. The defendant denies that the original lease was signed by either of the parties and contends that by reason of her refusal to sign the lease prepared by him containing the added clause, plaintiff became a tenant from month to month. With this contention we cannot agree. The verbal agreement was for a term of one year and to that extent the lease written by defendant is in accord with the agreement, it being for twelve months. The lease was to be drawn by defendant, and with the knowledge that a lease had not been signed, he permitted plaintiff to take possession of the premises and-if the meeting for the signing of a lease was delayed until September— the delay was caused by the defendant, he accepted rent as the same accrued under the terms of the parol agreement and made no objction to her occupying the premises.

At no time did plaintiff refuse to sign a lease containing the terms verbally agreed upon. Without consulting her, defendant undertook to insert in the lease an additional covenant, binding upon her and to which she had