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In re Motor Licenses.

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wealth. Among the persons so prohibited are those "physically incapacitated as defined in this Act.' The same Section provides further that "any person who has lost the use of one hand or both

shall be considered physically incapacitated.” If the provisions of the Act relative to this character of physical incapacity had ended at this point, persons who had lost an arm might not operate motor vehicles upon the public highways of the Commonwealth. There is in the same section of the Act, however, a saving clause which is as follows:

"Provided, That the State Highway Commissioner may, at his discretion, issue a special license or permit to a person who has lost the use of one hand only, upon the receipt of such evidence or demonstration as shall satisfy him that such person has had sufficient experience in the operation of a motor vehicle to enable him to do so without endangering the safety of the public."

There arises therefore your inquiry whether a special license or permit may be issued to a person who has lost the use of his arm as well as the use of his hand.

The physical incapacities defined in the Act are in relation to "hands," "feet," "eyesight” and “hearing.” The use of these members or senses is made necessary to qualify one to operate a motor vehicle. It is a matter of common knowledge, however, that some persons who have lost the use of an arm are competent operators of motor vehicles. The evident intention of the Legislature was to make it possible for such persons to continue to operate automobiles on the highways of the Commonwealth, and to that end that body lodged in the State Highway Commissioner the discretion of granting a special license or permit to such persons after he has received satisfactory evidence that such persons can operate a motor vehicle without endangering the safety of the public In referring to this character of incapacity, the Act uses the words “lost the use of one hand" and the word "arm" is nowhere used. There is sound reason for this because the loss of the use of an arm includes the loss of the use of a hand; and if the Act had used the words “loss of the use of an arm," the loss of a hand only would not render one incapacitated. The hand is the important part of the arm in the operation of a motor vehicle. When its use is lost, the use of the arm is substantially destroyed. With this in mind, the Legislature used the word "hand” as including the word “arm” and not as distinguished from it. A construction of this Section of the Act which distinguished between the loss of the use of a hand and the loss of the use of an arm would be narrow and unreasonable and contrary to the intent and spirit thereof. It would be sticking in the back to hold that the proviso above quoted authorizes the State Highway Commissioner to issue a special license or permit to one who has lost his hand at the wrist, but does not permit him to issue such license or permit to one who has lost his arm at the elbow.

You are advised, therefore, that a license to operate a motor vehicle on the highways of the Commonwealth may be issued to a person who has lost his arm or any part thereof, provided such person has satisfied the State Highway Commissioner of the propriety of granting him a license.

Yours very truly,

ROBERT S. GAWTHROP,

First Deputy Attorney General.

Borough of Swissvale v Collingwood Estate et al.

Junicipal Liens -Borougli -Public or Private Street

Former Suit-Res Adjudicata.

-Right to Recover

Binding instructions were given for defendant at the trial on a scire facias by a borough to recover on a municipal lien for grading, paving and curbing a street, where the borough failed to prove that the improvement had been on a public rather than a private street, defendant claiming that it was a mere private road and the borough authorities had entered upon the same without having acquired any right or title therein.

An action on a scire facias sur a municipal lien was res adjudicata, where plaintiff neither proved nor offered to prove any change in the subject matter or parties in a former action involving the same improvement and upon which a final judgment had been entered.

Jotions for: 1. New Trial; 2. Judgment, Non Obstante Veredicto. No. 2503 January Term, 1918. C. P. Allegheny County.

Samuel J. JcKim, for plaintiff.
Brown, Stewart & Bostwick, for defendants

WASSON, J., December 2, 1919. This case and the case at No. 2504 January Term, 1918, between the 'same parties, and the two cases at No. 2505 and 2506 January Term, 1918, between the Borough of Swissvale, plaintiff, and the Dickson heirs, defendants, were, by agreement, tried together and resulted in verdicts for the defendants under binding instructions given by the Court. They involved four municipal liens for improvements on what is known as Schoyer Avenue, two for cement sidewalks and two for grading, paving and curbing the street.

The fundamental question involved in all these cases was whether Schoyer Avenue was a public street as contended for by the plaintiff or a mere private road upon which, as the defendants asserted, the borough uthorities entered upon without having acquired any right or title therein, either by prescription, dedication, condemnation or otherwise and treated as though it were a public street. It was precisely the same question which was fully presented to and tried by this Court at Nos. 2452 and 2453 April Term, 1912, actions between the same parties for the enforcement of liens for boardwalks on the identical sites of the present cement walks and resulted adversely to the plaintiff's contention. From the judgments entered the borough appealed to the Superior Court and that Court at No. 20 April Term, 1917 (68 Penna. Sup. Ct., 170), affirmed the judgment.

In the trial of the present cases, with the possible exception of one item regarding the change of certain fire limits, the plaintiff neither proved nor offered to prove any change in the situatiori, the acquisition of any new or better rights nor anything that would tend to alter and improve the basis in law or in fact of its claim. This being the case we are unable to see how it can be argued that the rule of res judicata does not apply.

"A fact or question which was actually and directly in issue in a former suit and was there judicially passed upon and determined by a domestic court of competent jurisdiction, is conclusively settled by the judgment therein, so far as concerns the parties to that action and persons in privity with them, and cannot be again litigated in any further action between the same parties or privies, in the same court or in any other court of concurrent jurisdiction, upon the same or a different cause of action.”

23 Cyc., p. 1215.

“The judgment of a proper court being a sentence or conclusion of law upon the facts contained in the record, puts an end to all further litigation on account of the same tter, and becomes the law of the case, which

Borough of Swissvale v Collingwood Estate et al.

cannot be changed or altered, even by the consent of the parties, and not only binding upon them, but upon all courts and juries afterwards as long as it shall remain in force and unreversed.”

Marsh v Pier, 4 Rawle, 273, 388.

The motions for new trial and judgment non obstante veredicto, must be denied.

Sedlak v National Slovak Society, Etc.

Insurance-Widow

-Action by Son-Petition to Intervene— Procedure.

A widow's petition to intervene in an action brought by son of decedent on a beneficial insurance policy was denied, the court holding that she should sue in assumpsit.

Assumpsit. Petition of Mary Sedlak for Leave to Intervene as a Party Defendant. No. 1134 October Term, 1919. C. P. Allegheny County.

John Kulamer, for plaintiff.
Homer N. Young and Robert R. Elder, for defendant.

Before Cohen and CARPENTER, JJ. CARPENTER, J., November 28, 1919.-The defendant is a fraternal beneficial association. The plaintiff is a son of George Sedlak, Sr., who was a member of said association and whose death occurred May 28, 1919. Claiming to be the beneficiary of decedent, George Sedlak, Jr., brought suit to recover the sum of $850.00, attaching to his statement of claim a copy of the “Disposition of Death Benefit."

Mary Sedlak, widow of said George Sedlak, Sr., has petitioned the Court for leave to intervene as defendant alleging that the benefit certificate issued to her husband provided for the payment of said death benefit to her. The only question requiring present consideration is her right to intervene. We are unable to discover any reason why her prayer should prevail.

If she has, or thinks she has, a valid claim against defendant her remedy is by action of assumpsit. If, and when, she brings suit, the defendant may seek such protection as it is advised the exigency makes necessary.

Rule discharged.

Butler v Jones & Laughlin Steel Co. Negligence Skip-Pit at a Furnace -Employe Familiar with Place-Evi

dence-Jury.

Where plaintiff was injured by falling into a skip-pit in a furnace while walking over some planks temporarily placed there while improvements were being made it was a question for the jury whether defendant was liable in damages when there was evidence from which the jury could have found that the place was not properly lighted, although strongly contradicted, and from plaintiff's testimony the jury could also have found there was no other way, inside the stock-house, that was safe for travel, even though that position was strongly denied by defendant, and defendant's motions for new trial and judgment n. 0. v. overruled.

Sur Motion of Defendant for Judgment Non Obstante Veredicto, and a New Trial. No. 1096 January Term, 1916. C. P. Allegheny County.

T. M. & R. P. Marshall, for plaintiff.
Burleigh & Challener, for defendant.

ore.

HAYMAKER, J., January 13, 1919.—This action is to recover damages for personal injuries received while plaintiff was defendant's employee. The plaintiff fell into a skip-pit in the Eliza Furnaces owned and operated by defendant. At that time he was about thirty-eight years of age and was foreman of the stock-house, which position he had held seven years immediately preceding the accident. In all he had been an employee in and about the plant, in various capacities, for 14 years. For a proper understanding of the situation at the time of the accident a statement of the facts is important. The plant occupies practically all the ground between Second Avenue and the Mononga hela River, and extends East and West, between the avenue and the river, in the Hazelwood district of the City of Pittsburgh, a distance of about 1,300 feet or three squares. The stockhouse is on the Second Avenue side of the plant; it has a width of about 33 feet; and extends throughout the length of the plant; it consists of a number of bins, each containing either coke, limestone or On the South or river side of the stock-house, and connected therewith, are five furnaces that receive their supplies from those bins. Between the stockhouse and each furnace was a skip-pit, the top of which was practically on a level with the ground floor of the stock-house. Throughout the length of the stockhouse, on the southerly side and on the ground foor thereof, was a lorry track, underneath or in close proximity to the different bins, equipped with two iron “T” rails of the standard gauge of about five feet, over which was hauled, in lorry cars, the ore, limestone and coke from the bins to the skip-pits, where it was discharged into skip-buckets standing in the skip-pits, underneath the track. An incline plane of two tracks ran from the bottom of the skip-pits in the direction of the river to the top of the furnace, a distance or height of probably one hundred and fiftyfeet, over and upon which the skip-buckets travelled, containing the supplies. discharged therein from the lorry cars, to the top of the furnace and their contents dumped therein. There was one passage way, seven or eight feet wide, that ran the entire length of the stock-house, along side of, and about fifteen feet from the lorry track, which was used by many employees in going to and from their various places of employment in the plant, by others in transporting coke in ore barrows and performing other kinds of labor. That passage way was covered with iron plates, excepting at near the point of accident.

Furnace No. 5 is at the upper or east end of the plant, below which, in regular succession, come Nos. 1, 2, 3 and 4. In front and to the north of each furnace is a skip-pit of which we have spoken. The plaintiff fell

or

Butler v Jones & Laughlin Steel Co.

into the skip-pit in front of furnace No. 1, which is the only pit directly involved in this controversy. Furnace No. 1 was not then in blast, owing to certain changes and improvements that were being made in relation to the pit in question. Before the improvement the coke was hauled to the skip-pit by the side dump lorry cars and discharged into the outh of the skip-bucket that stood in the pit at the south edge of the track. The change was from side dump cars to those with hopper bottoms so that their contents could be discharged from the bottom thereof and down between the rails of the lorry track into the skip-buckets. Another improvement consisted in converting certain over-head space into a coke bin, which to some extent over hung the passage way and the skip-pit, in the bottom of which were chutes through which the coke from 'that bin could be discharged underneath the north rail of the lorry track directly into the skip-buckets. To make those changes it became necessary to widen and deepen the skippit, so that when it was finished it had an irregular width of, approximately, 25 feet and a depth of about 16 feet. At the same time a change was made in the large limestone bin that theretofore was located some twenty feet north of the lorry track and the old skip-pit, the south wall of which formed or fixed the north line of the passage way heretofore mentioned. That south wall was about fifty feet long and the depth of the bin northwardly was probably of the same number of feet. At the beginning of the changes that wall was eritirely removed, excepting certain upright iron columns that formed a part thereof, and stood flush with that passage way, thereby producing what was called “a pocket in the wall.” In the enlargement of the pit it encroached upon the passage way at that point to practically its full width, but at the time of the accident it wa fully restored excepting that the iron plates had not been replaced thereon. During the work at the pit the lorry track across the same had been removed, but at the time of the accident it had been restored to its original position and the work at the pit was practically completed, with the exceptions of some slight adjustments to be made, but thc new improvement was not yet in

In the course of the reconstruction of the pit the workmen at times had heavy wooden planks laid over the top thereof as a means of performing their work, and when plaintiff was injured the excavation between the rails of the lorry track was fully covered with five planks running lengthwise with the track. The time spent in making the improvement was about two months, during which the work was prosecuted day and night, until about one week before the accident, when no work was done after about six o'clock in the evening, the time at which the plaintiff came to work as night foreman of the stock-house. The work was carried on under the personal supervision of Mr. Bradley, the assistant master mechanic under Mr. Epkins the master mechanic. When the work ceased in the evenings five or six planks were laid by the men in charge, over the pit-mouth covering the entire space between the two rails of the lorry track, and so remained until the next morning. The plaintiff's work required him to pass back and forth throughout the entire stock-house. In going to work on the evening of November 28, 1914, at a few minutes before six o'clock, the plaintiff used an archway or tunnel from Second Avenue, that brought him into the works betweer: No. 5 and No. 1 furnaces. From that point he travelled to the skip-pit (into which he later fell) in front of furnace No. 1, before reaching which he saw Mr. Bradley the assistant master mechanic, when he had quit work for that day, walking over the same upon the planks placed thereon by him or those working under him. The plaintiff then walked over the planks on his way down to furnaces Nos. 2, 3 and 4 at which he was to place certain men under him at work. On his way back a few minutes later, to furnace No. 5, on his master's business,

use.

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