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Butler v Jones & Laughlin Steel Co.

when he stepped on one of the planks it gave way and he fell into the skip-pit and receive i the injuries of which he complains. The plank did not break, and as it gave way when he made his first or second step upon it, evidently it slipped off the object upon which its end had been resting.

The plaintiff contends that inasmuch as the plaintiff and many other employees used the planks as a passage way, and believed it to have been intended as such, the defendant was negligent in neither fastening the planks properly, nor warning workmen by a proper light or barrier, or word cf mouth, not to use the same. The defendant contends, in its motion for judgment no. v. that (1) under the evidence and the law the defendant was under no legal duty to furnish the plaintiff a reasonably safe place to work at the point or location where he received his injuries, and that (2) even if it were a place where plaintiff's work required him to be, he was guilty of negligence in attempting to use the planks when there were other and safe ways to travel, open and known to him.

The case is not one easy of solution. It will be conceded that the plaintiff, when injured, was about the business of his employer. It must be admitted that the place of accident had not been used by anyone as a way for pedestrians down until about a week before the accident, and that it was not to be so used after the improvement was completed, for the reason that before the improvement began it was the place over which lorry cars were hauled in the transportation of supplies to the various furnaces and would be so used on and after the improvement was completed, all of which was well known to the plaintiff, for he had a thorough knowledge of the nature and purpose of the improvement. The plaintiff testified that the regular passage way was encroached upon and dangerous, whereby he was obliged to leave the same at that point, cross over the pit mouth on the planks and return to it. His uncontradicted evidence is that he had used the planks from fifteen to twenty times a night from four to seven nights before the accident, and that they were firm and solid, with their ends resting on angle irons or iron beams; that during the saine nights he had seen from fifty to a hundred employees each night travelling over the planks on their way to different shops and places of work in the stock-house; that the planks were not fastened and that the place was not guarded or the plaintiff warned not to use the same; and that he used his eyes and watched his feet when stepping upon the planks that appeared to be safe, as far as he could see. There was evidence on the part of plaintiff from which the jury could have found that the place was not properly lighted when and where he was injured, although strongly contradicted. From the 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 thai position was strongly denied by defendant.

We are asked to say as a matter of law that there is no evidence of defendant's negligence to carry the case to the jury. Can we so pronounce?

In considering the defendant's motion for judgment non obstante veredicto the contradictory testimony of the defence must be eliminated, and it then becomes a question whether the evidence for the plaintiff, if believed, was sufficient to warrant a verdict in his favor. As was said in Sturtz vs. Delaware, L. & W. Railroad Co., 225 Pa., 249: "It is only in clear cases where the facts and inferences to be drawn from the testimony are free from doubt, and but one conclusion is deducible that the court may not permii a jury to reach a different one."

In the first place, the defendant was bound to furnish the plaintiff a reasonably safe place in which to work, and, in this case, that means place in and over which to travel in performing the work he then had in charge, requiring him to travel through the stock-house. The regular and

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Butler v Jones & Laughlin Steel Co.

only passage way in the stock-house was unsafe, according to the plaintiff's testimony, at the point of improvement. At that point the plaintiff found the means at hand of avoiding the danger by diverting his steps a few feet from the regular way, passing over the planks for the distance of possibly fifteen feet, and then back to the former or old way. He and numerous other employees had been doing that for nearly a week before the accident, in perfect safety, and their use of the same was lue to the action of the defendant's master mechanic in so constructing and placing those planks. Whether the circumstances as heretofore related ju: tified the plaintiff and other employees in the use of the planks as a part of a passage way, was a question of fact for the jury, rather than one of law for the court. It was contended by the plaintiff that the manner in which the planks were laid by the master mechanic in charge, at the end of each day's work and before the plaintiff arrived, was liable to deceive and mislead workmen into the belief that they were intended as a walk and to lead them to use it as such, even though it was not so intended by the defendant. Whether a notice or guard was necessary under all the circumstances was, in our opinion, for the jury. If it was such a way, the defendant's duty was to make it reasonably safe, and maintain it in a reasonably safe condition by inspection and repair; which obligation was an absolute and personal one, from which only performance can relieve the employer, and the person to whom it was delegated became a vice-principal whose neglect was that of the employer. No one testified that it was unsafe, and there was nothing to indicate to the plaintiff that it was so, whereby he was obliged to seek another way, although there was much testimony on that question and the defendant had the benefit of it in its submission to the jury.

Nor can the question of plaintiff's contributory negligence be treated as one of law, unless the facts and inferences to be drawn from them are free from doubt. We think all the evidence bearing upon the question of plaintiff's prudence or imprudence in using the planks was properly submitted to the jury.

The defendant contends that in any event it is entitled to a new trial, owing to the overwhelming weight of the evidence in its favor. It is true that a number of employees testified that the planks as laid were intended as a place to travel over, although those in direct charge of the work were not called; but the case does not depend entirely on the question of intent but rather 011 the manner of their use, and the conditions existing at the time, by which a reasonably prudent person would be deceived or misled into the belief that they were intended as a place to travel. Considerable testimony was given on the part of the defendant to the effect that the regularly used passage way through the stock-house had been fully restored and was entirely safe at or near the pit, and that there was no reason for the use of the planks, by the plaintiff. That question was likewise submitted to the jury, and we are not disposed to substitute our conclusions of fact for those of the jury.

Therefore the motions for judgment n. 0. v. and for a new trial are overruled, and judgment is now entered on the verdict.

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Stuchul et ux. v Hodgson et al.

Landlord and Tenant -Injunction-Holding Over-Refusal of Tenant to

Sign New Lease-Act of 1863.

An injunction to restrain a landlord from evicting plaintiff, a tenant, from defendant's house was refused, where it was admitted tenant had held over after the expiration of the lease and there was a dispute whether there was an agreement that plaintiff should remain, plaintiff having refused to sign a new lease at an advanced rent. Defendant was entitled to proceed under the provisions of the Act of 1863.

In Equity. No. 108 January Term, 1920. C. P. Allegheny County.
G. Malcolm McDonald, for plaintiffs.
Emerson G. Hess and L. H. Campbell, for defendants.

Evans, J., October 28, 1919.—The plaintiffs filed their bill alleging that they are tenants of the defendant, Anna J. Hodgson, that she instituted proceedings before Frank J. Riddle, Justice of the Peace, to obtain possession of the premises, that judgment was rendered in her favor against the plaintiffs by the said Justice of the Peace, that Mike Nair was a constable in the borough of Turtle Creek and that he had notified the plaintiffs that unless they moved within ten days they would be dispossessed. Alleging that they have a lease on the premises until April 1, 1920, they pray the Court for a preliminary injunction, to be made perpetual on final hearing, restraining the defendants from interfering with their possession of the premises.

The plaintiffs were tenants of Mrs. Hodgson under a written lease, both copies of which had been lost. The plaintiffs allege that the lease expired on the 31st of March, 1919; the defendants claim it expired on the 30th of April, 1919.

About the first of January, 1919, Mrs. Hodgson came to the premises occupied by the plaintiffs and stated that an inquiry had been made by another party for the renting of the premises and asked if the plaintiffs were going to stay on. Mr. Stuchul made the reply that they expected to stay on. On cross-examination, Stuchul testified as follows:

"Q. You say that in January you had a talk with Mrs. Hodgson?
A. Yes.
Q. And did you agree at that time to take the place for another year?
A. We did; we told her we was going to stay on as far as we knew

then." And that is the testimony of Mrs. Hodgson. Mrs. Hodgson testified that in March she saw the plaintiff Stuchul and told him that if he was going to stay on the rent would be $80.00 a month instead of $75.00, the rent of the preceding year, and that he told her he would let her know if he was going to remain. About the middle of April he notified her that he would not take the place for another year, and she put up the To Let signs; but, as the place was not rented at the first of May, she permitted him to remain until she could get it rented; that about the middle of May he notified her that he was going to keep the place, and she prepared a lease and gave it to him the latter part of May, which he refused to sign; that she permitted him to remain until she had the place rented, and then gave him a thirty days' notice to quit.

He denies that he told her he would not keep the premises for another year, but admits that she put up the To Let signs; that subsequently the To Let signs were taken down; that she gave him a lease to sign, and that he refused to sign it.

Now this is the dispute arising in this case, and it is the ordinary dispute between landlord and tenant where the tenant claims that the landlord has no right to remove him. The question at issue is neither a com

Stuchul et ux. v Hodgson et al.

plicated question of law or of fact, such as would give a Court of Equity jurisdiction to restrain a landlord from ousting a tenant under the summary proceedings of the Act of 1863.

We might use the language of Chief Justice Mitchell, in the case of Denny v. Fronheiser, 207 Pa., 179:

"It is urged by appellant that the questions presented are complicated ones of law and fact and not such as were contemplated in the Act of 1772, but the examination of the case as already set forth shows only a single disputed issue, and that one of recollection or veracity between witnesses, on which depends the termination or continuance of the lease in question.”

Following the ruling of the Court in the case above cited, we must refuse the injunction.

And now, October 28, 1919, the above case came on to be heard on a motion for preliminary injunction and upon consideration thereof the injunction heretofore granted is dissolved, exception and bill sealed.

In re Commissions for Office.

-UndeterminedDuty of Governor--Act of

Sheriff-Contested Election

April 23, 1889, P. L. 60.

Where a candidate for Sheriff has been duly certified and returned as having been elected by the computing board of the county, but a contest over the election was still pending and undetermined, the Governor should issue a commission to the candidate as duly certified elected. The Act of April 26, 1889, P. L. 60, was intended to prevent an interregnum in any office pending a contested election, it being against public interest that there should be a vacancy therein.

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OFFICE OF THE ATTORNEY GENERAL,
Harrisburg, Pa.

December 31, 1919.
Honorable Cyrus E. Woods,
Secretary of the Commonwealth,

Harrisburg, Pa. Sir:

This department is in receipt of your com unication of the 29th ultimo asking to be advised whether the Governor should issue a mission to James A. Snodgrass as Sheriff of Crawford County, pending the decision of the Court In re the contested election of the said James A. Snodgrass to said office.

From the information before this department in this matter it appears that at the election held on November 4, 1919, James A. Snodgrass received 5,160 votes for the office of Sheriff on the Republican ticket; that H. B. Cutshall received 4,896 votes on the Democratic ticket for said office, and H. Cutshall received 380 votes for said office on the Prohibition ticket.

On November 7th the said H. B. Cutshall filed a petition in the Court of Common Pleas of Crawford County averring, inter alia, that H. B. Cutshall and H. Cutshall are one and the same individual, and praying the Court "to compute the votes so cast on the Democratic and Prohibition tickets for 'Cutshall as cast for 'H. B. Cutshall,'” and to certify that the said H. B. Cutshall received a majority of all the votes cast for the office of Sheriff of Crawford County.

In an opinion filed by Judge Prather on December 1, 1919, the foregoing petition was quashed on the ground that the Court of Common Pleas did not have jurisdiction to hear and grant the prayer of the petitioner, and that the question involved in this contest properly belonged to a contested

In re Commissions for Office.

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election in the Court of Quarter Sessions. It further appears that the Court of Common Pleas of said County of Crawford with his assistants, sitting as a computing board, certified and returned that James A. Snodgrass was duly elected to the said office of Sheriff of Crawford County. On the fourth day of December, 1919, a petition was filed in the Court of Quarter Sessions of said County, on behalf of the said H. B. Cutshall, contesting the election of the said James A. Snodgrass as Sheriff, and averring, inter alia, that

"On the face of the returns it appearing that James A. Snodgrass, Republican, received a plurality of the votes cast at said general election for the office of Sheriff of Crawford County, the Court of Common Pleas of said County with his assistants sitting as a computing board certified and returned that James A. Snodgrass was duly elected to the said office of Sheriff of Crawford County.

"That the Court of Common Pleas erred in counting and certifying the votes cast for H. B. Cutshall, Democrat, and H. Cutshall, Prohibition, separately, but should have cumulated the same, and by so doing H. B. Cutshall would have been duly and regularly elected to the office of Sheriff of the County of Crawford, and by counting said votes separately for H. B. Cutshall, Democrat, and H. Cutshall, Prohibition, as two separate and distinct persons H. B. Cutshall was defeated and denied the right to the office of Sheriff of Crawford County, to which he is of right justly entitled."

The Court fixed Tuesday, December 23, 1919, as the time for hearing said petition. So far as this department is advised, there has been no determination as yet of the case, but the same remains pending.

It also appears that Mr. Snodgrass has filed his bond and recognizance as Sheriff, duly approved by the Judge of the County and the Governor, in the office of the Secretary of the Commonwealth.

The Act of April 26, 1889, P. L. 60, provides for the issuing of commissions in cases of contested elections. It is thereby made the duty of the Governor in the case of any officer receiving a commission from the Governor

To issue a commission to such person, notwithstanding that the election of such person to any or either of said offices may be contested, in the manner now provided by law: Provided, That whenever it shall appear by the decision of the proper tribunal having jurisdiction of said contested election, that the person to whom said commission shall have issued, has not been legally elected to the office for which he has been commissioned, then a commission shall issue to the person who shall appear legally elected to said office; the issuing of which commission shall aullify and make void the commission already issued, and all power and authority under said commission first issued, shall thereupon cease and determine.”

The manifest purpose of this Act was to prevent an interregnum in any office pending a contested election, it being against public interest that there should be a vacancy therein.

Under the facts in this case and pursuant to the above Act of Assembly, you are, therefore, advised that a commission should issue to the said James A. Snodgrass as Sheriff of Crawford County.

**

Very truly yours,
WILLIAM I. SCHAFFER,

Attorney General.

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