From an

order refusing to take off a nonsuit, plaintiff appeals. Reversed.

about that household as a member of the Action by John McDonald against the Lefamily by the person taken in are presumed high Valley Railroad Company. to have been gratuitous, with no intention to charge for the same, and where such services have been gratuitously performed no charge can afterwards be made for them. This presumption may be rebutted by clearly proving, to the satisfaction of the jury, by a preponderance of evidence an express or implied promise to pay for the said serv

ices.

[3] Our statute of limitations provides that no action of this character shall be brought after the expiration of three years from the accruing of such cause of action. But this provision does not apply when the person charged with a debt acknowledges its exist ence within three years of the bringing of the

suit.

We will say to you that under the evidence in this case unless you are clearly of the opinion that the deceased within three years of the bringing of this suit promised to pay the plaintiff for her services, or within that time acknowledged the existence of her claim, you cannot find a verdict for the plaintiff for any services performed by her more than three years before the bringing of her suit.

If you should find from the evidence that the work done by the plaintiff for the deceased, was done under circumstances which would imply an obligation on his part to pay her for the services, your verdict should be for the plaintiff and for such sum, in accordance with the law as we have stated it to you, as you may determine would be a fair compensation for those services.

If you should decide after considering all the evidence in this case, in connection with the law as we have stated it to you, that the deceased made no express promise to pay the plaintiff for services rendered or that there was no implied promise or obligation on his part to pay for the services performed by her, your verdict should be for the defend

ants.

Verdict for plaintiff.

Argued before FELL, C. J., and MESTREZAT, POTTER, STEWART, and MOSCHZISKER, JJ.

Thomas F. Farrell and John R. Halsey, both of Wilkes-Barre, for appellant. J. B. Woodward, Wheaton, Darling & Woodward, and P. F. O'Neill, all of Wilkes-Barre, for appellee.

POTTER, J. This is an appeal from the refusal to take off a judgment of nonsuit. The plaintiff was a locomotive fireman, and in the discharge of his duty it became necessary for him to get off his engine after dark for the purpose of changing a switch. He had a light, but, as he stepped down from the engine, the wind blew it out. He expected to alight upon level ground between the two tracks, directly opposite the switch stand, which would have meant a distance of not more than 18 inches. Instead of that his foot dropped into an excavation, which considerably increased the depth, and caused him to fall against the truck of the tender of the engine, permanently injuring his arm. At the close of plaintiff's testimony, the trial judge directed the entry of judgment of compulsory nonsuit. In his opinion refusing to take off the judgment he said: "We must confess that, under the circumstances of this case, we should have sustained plaintiff's contention, were it not for the fact that we interpret the rulings of the Supreme Court in the cases of Philadelphia & Reading R. R. Co. v. Schertle, 97 Pa. 450, and Kerrigan v. Penna. R. R. Co., 194 Pa. 98 [44 Atl. 1069], to govern the case now before us.”

Plaintiff has appealed, and his counsel urge that the facts brought out in the testimony in this case take it out of the scope of the decisions above noted. The defect under consideration, in the cases cited, was in the roadbed itself, between the ties, and between the rails of the track, where a portion of the ballast had been washed out, or dug out, at a place where the brakemen would be rarely required to go in the discharge of their duty. In addition to this, the defect was comparatively slight. In the present case, the negligence charged upon the defendant company was the maintenance beMASTER AND SERVANT (88 286, 289*)-INJU-tween the two main tracks of an excavation RIES TO SERVANT-NEGLIGENCE-CONTRIBUTORY NEGLIGENCE. of a depth which nearly doubled the distance In an action against a railroad company from the step of the engine to the ground, by a fireman for personal injuries, the question of defendant's negligence and plaintiff's contributory negligence held, under the evidence, for the jury.

McDONALD v. LEHIGH VALLEY R. CO. (Supreme Court of Pennsylvania. May 22, 1912.)

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. 88 1001. 1006, 1010-1050. 1089-1132; Dec. Dig. §§ 286, 289.*]

and which was located at a point where the ground was ordinarily smooth and level, and which was used as a footway for trainmen and other employés. This excavation was immediately opposite a switch which the trainmen were required to manipulate. The

Appeal from Court of Common Pleas, Luz- excavation was, perhaps, of a temporary naerne County.

ture; but it seems to have been left without

proper lights or danger signals to give notice | 3. JUDGMENT (§ 630*)-—TORTS of its existence.

ACTIONS FOR
DAMAGES-ADMISSIBILITY OF EVIDENCE.
ing of a building by fire communicated from
In an action against a city for the burn-
inflammable rubbish left in the street by a
contractor who was repairing it, there was no
error in excluding from evidence the record of
a suit against the contractor, the plaintiff be-
ing entitled to maintain the two suits, though
only entitled to one satisfaction in case he re-
covered separate judgments.

Cent. Dig. § 1146; Dec. Dig. § 630.*]
[Ed. Note. For other cases, see Judgment,

Appeal from Court of Common Pleas, Philadelphia County.

Action by the Charles Eneu Johnson Com

We agree with the contention of appellant's counsel that the evidence of these facts does distinguish the present case from those upon which the judgment of this court was based in the cases which the trial judge deemed controlling. The defendant company was bound to use reasonable care to see that the approaches to the switch were kept in such condition that the trainmen, who had occasion to approach this switch in the discharge of duty, could do so with safety, provided they used due care for their own protection. Whether or not the contract of the company in exca-pany against the City of Philadelphia. From vating the trench, and in its subsequent care a judgment for plaintiff, defendant appeals. of it, was consistent with this duty, was a Reversed, and venire facias de novo awarded. question of fact, to be determined by the jury. So with regard to the conduct of the plaintiff, and as to whether he was negligent in the manner in which he stepped from his engine in the attempt to alight at the place in question for the purpose of turning the switch. This was for the determination of the jury. With respect to neither of these questions were the inferences to be drawn from the evidence so clear as to enable the court to properly dispose of them as matter of law. The whole case was one for the jury, to be submitted under careful and proper instructions.

Trespass to recover damages for the burning of a building.

At the trial it appeared that plaintiff owned a building on Ritner street, in the city of Philadelphia. Prior to the time of the fire, Ritner street was being repaired by Edwin H. Vare, a city contractor. There was evidence that the contractor had deposited large quantities of inflammable material in filling in the street, and that this had been permitted to lie exposed in the street for several weeks prior to April 21, 1908, when the material caught fire from a lighted cigar or match, and the fire was communicated to

The judgment is reversed, with a pro- plaintiff's building. The plaintiff brought cedendo.

suit both against the contractor and against the city. The court refused to admit in evidence the record of the contractor's suit.

CHARLES ENEU JOHNSON CO. v. CITY Exception.
OF PHILADELPHIA.

(Supreme Court of Pennsylvania. May 22,
1912.)

1. MUNICIPAL CORPORATIONS (§ 762*)—TORTS -DEFECTS IN STREETS.

Where a city requires a street to be kept open for use by the public while repairs are being made by an independent contractor, the duty rests on the city to maintain the street in a reasonably safe condition for every purpose of a public highway.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1605-1611; Dec. Dig. § 762.*1

2. MUNICIPAL CORPORATIONS (§ 762*)-TORTS -NUISANCE IN STREET.

The rule requiring a city to maintain a street which is kept open while repairs are being made in a reasonably safe condition applies, not only to travel upon the street and to injuries to travelers thereon, but also to the burning of a building abutting on the street, caused by inflammable rubbish which the city had permitted to remain there for a long period of time, the city's liability in such case not being on the ground that it caused the rubbish to be placed in the street, but that it failed to remove what amounted to a menace to the property, and to anticipate the communication of a fire to nearby buildings.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1605-1611; Dec. Dig. § 762.*]

Defendant presented the following points: "(4) The uncontradicted evidence shows that whatever inflammable material was placed in the street was placed there by an independent contractor with the city. If you believe this to be the fact, the city was not liable for the consequences of that act, and your verdict should be for the defendant." Answer: "Refused."

"(2) If you find that the fire did originate in the bed of Ritner street, and that such fire was caused by the throwing upon ignitible material there of a lighted cigar or lighted cigarette by a third party, the proximate cause of the injury to the plaintiff was the throwing of the lighted cigar or cigarette, an act for which the defendant is not liable, and your verdict must be for the defendant." Answer: "Refused."

Plaintiff presented this point:

“(8) If you find defendant's inspector inspected the grading of Ritner street in proximity to this property, and that he knew, or ought to have known, that the street was being filled with large quantities of combustible materials, it is evidence of notice to the defendant of the condition of said street, and of the character of materials placed therein." Answer: "That I affirm."

Verdict and judgment for plaintiff for $30,- | be placed on the street, and, if this were the 781. Defendant appealed.

Argued before FELL, C. J., and BROWN, POTTER, ELKIN, and STEWART, JJ.

Joseph P. McCullen, James J. Breen, Asst. City Sol., and Michael J. Ryan, City Sol., all of Philadelphia, for appellant. Fred. Taylor Pusey and Louis F. J. Hepburn, both of Philadelphia, for appellee.

ELKIN, J. [1] We have concluded that there must be a reversal of the judgment in this case. The case was not tried on a proper theory, and as a result the rights and liabilities of the parties were not carefully defined. The liability or nonliability of an independent contractor is not vital to the question here involved. A municipality is not always relieved from liability for injuries resulting from the work of an independent contractor in repairing its streets. If at the time of the commission of the negligent acts complained of the contractor did not have the exclusive control of the street with the authority to prohibit the use of it by the public, the city may be liable for failure to perform its duty in exercising proper care in the supervision and control of that street as a public highway. If, as we understand the facts in the present case, the city required the street to be kept open for use by the public while the repairs were being made, the duty rested upon it to maintain the street in a reasonably safe condition for every purpose of a public highway. Wyman v. Philadelphia, 175 Pa. 117, 34 Atl. 621; Norbeck v. Phila., 224 Pa. 30, 73 Atl. 179, 16 Ann. Cas. 430.

only ground upon which the right to recover depended, we would be compelled to say that no case had been made out. But it is also

charged that the city had "permitted said in-
flammable rubbish to be and remain in and
upon said public highway in large quantities
in close proximity to plaintiff's establish-

ment, unprotected and unguarded, for a long
space of time prior to said April 21, 1908,
to wit, for several weeks prior thereto," and
by reason of permitting such inflammable
rubbish to be accumulated upon the public
highway a fire broke out and was communi-
cated to the establishment of plaintiff, an
If the city is liable at all
abutting owner.
in this case, it is not upon the ground that it
caused the inflammable rubbish to be placed
in the street, but because it failed to remove
what amounted to a dangerous menace to
the property of plaintiff, that it should have
anticipated the consequences of a fire break-
ing out in the inflammable rubbish, and that
failure to anticipate these dangers and re-
move them constitutes a negligent disregard
of the rights of the complaining abutting
owner. The vital question is, What duty did
the city owe to the abutting property owner
under the facts of this case? This question
was.entirely disregarded at the trial for the
reason, no doubt, that the city defended up-
on the ground that the negligence charged
was that of an independent contractor for
which it was not liable, while the appellee,
on the other hand, tried the case upon the
theory that the duty of the city to an abut-
ting property owner was substantially the
same as to a traveler upon the street. Both
The rights of an abut-
theories are wrong.
ting property owner on one hand, and the
duty of the city, on the other, were not de-
fined, and the case was not submitted to the
jury in such manner as to afford an oppor-
tunity for intelligent consideration and cor-

duty did the city owe the complaining abut-
ting owner? In Nevins v. Peoria, 41 Ill. 502,
89 Am. Dec. 392, it was said: "A city has
no more power over its streets than a private
individual has over his own land, and it
cannot under the plea of public convenience
be permitted to exercise that dominion to the
injury of another's property in a mode that
would render a private individual responsible
in damages without being responsible itself.
The same law that protects property of
one private individual against invasion by
other individuals must protect it from ag-
gression on the part of municipal corpora-
tions."

[2] It is argued for appellant that this rule only applies to travel upon the street and to injuries resulting to travelers thereon. No reason is suggested for thus restricting the rule, and we find no authority for so doing. In many jurisdictions it has been held that a municipality making improve-rect conclusion upon these questions. What ments, or doing work upon its streets, whether by an independent contractor or otherwise, is bound to take notice of the character of the work, and the condition of its streets, as affected by the prosecution and performance of such work, in so far at least as such streets may be rendered unsafe and dangerous by the work being done. Beatrice Reid, 41 Neb. 214, 59 N. W. 770; Smith v. St. Joseph, 42 Mo. App. 392; Birmingham v. McCary, 84 Ala. 469, 4 South. 630; Jefferson v. Chapman, 127 Ill. 438, 20 N. E. 33, 11 Am. St. Rep. 136. If the city is bound to take notice of dangers occasioned by the repairs being made to the street, while it is being used by the public, it is its duty to exercise reasonable care in removing those dangers so as to avoid such injurious consequences as should have been reasonably anticipated. The evidence was not sufficient to sustain the charge that the city had negli

V.

Upon this question we quote with approval the following language taken from an opinion of the Supreme Court of New Hampshire, in Gilman v. Laconia, 55 N. H. 130, 20 Am. Rep. 175: "Indeed, for all purposes of construction and repair, towns stand in a

spect from that of an owner of the fee. I should have anticipated the danger to the Their control of the premises is so far ab- property of appellee as a consequence of a solute and exclusive. This, as it seems to fire breaking out in the rubbish deposited me, obviously imposes upon them a duty so close to its property. While the city had towards the owner of adjoining land, which, certain duties to perform, appellee company so far as regards the consequences of their also had duties which could not be disregardacts and omissions in building and repair-ed. It was its duty to make all reasonable ing, is not to be distinguished from the duty efforts to protect its own property, to guard of an ordinary adjoining proprietor of land against fire, and the greater the danger, the with respect to the premises of his neigh-more imperative the duty; and, if it failed to bor. The purposes for which the land is taken is to build and maintain upon it a road for the use and accommodation of the public. To build and maintain such a road in a suitable and proper manner must, of course, always be held a reasonable use of the land,

because this is the use to which it has been
condemned. *
* But when it comes to
a matter of an unsuitable and improper con-
struction, or of a wanton or negligent disre-
gard of the rights of the landowner in main-
taining the highway, I see no reason why the
maxim, Sic utere tuo ut alienum non lædas,
should not apply. To hold otherwise would,
as it seems to me, be not only gross injustice,
but a palpable violation of legal principles
that are quite fundamental and elementary."
These cases are authority for the rule that
the duty of a city in exercising control and
supervision over its streets to an abutting
property owner is analogous to the duty
which an individual landowner owes to the
premises of his neighbor. This view also
finds support in other jurisdictions where
the question has been raised and we find
nothing in our own cases to the contrary.
This rule seems to be sound, and we see no
reason why it should not be followed. Un-
der this rule, the city in the case at bar
would only be liable for damages to an abut-
ting owner if the facts warranted the infer-
ence that it had permitted large quantities
of inflammable materials to be placed in the
street in such close proximity to the prop-
erty of appellee as to amount to a willful,
or wanton, or negligent disregard of the
rights of such abutting owner. The city
would not be liable to the adjoining property
owner for injuries caused by the ordinary
use of the street, or for damages indirectly
resulting from the ordinary and usual ac-
cumulation of waste materials upon the
street. To permit a recovery in this case,
it must be shown that the accumulation of
inflammable materials was unusual, extraor-
dinary, and dangerous, and that the city

perform its duties, it would be guilty of contributory negligence and there could be no recovery. All of these legal positions depend upon the facts, which, if sufficient, must go to the jury. We have indicated at some length the legal principles which should gov ern at the trial because we find no precedent in our cases for the precise question involv ed in this controversy.

[3] The learned court below was clearly right in refusing to admit in evidence the record of the suit against the contractor. When the record was offered no judgment had been entered, and the suit was still pending. But, aside from this, that was an independent action, and it in no way af· fected the case at bar. The plaintiff was clearly within its legal rights in instituting two suits on the theory that one party or the other, or perhaps both, had committed the negligent acts about which complaint is

made.

In such cases it sometimes happens that two separate judgments may be recov ered, but there can be only one satisfaction. Seither v. Traction Co., 125 Pa. 397, 17 Atl. 338, 4 L. R. A. 54, 11 Am. St. Rep. 905; Thorp v. Boudwin, 228 Pa. 165, 77 Atl. 421. The fact that the plaintiff failed in its suit against the contractor will not defeat this action, if the charges of negligence against the city are sustained by sufficient evidence.

One of the assignments of error raises the question of proximate cause. We cannot agree that the city is relieved from all liability unless it be shown that some of its officers, or employés, started the fire, because this is not the negligence charged. We do agree that the question of proximate cause as it relates to the charges of negligence in this case was not defined, or explained to the jury, so as to adequately instruct them upon the legal rights and duties of the parties.

Judgment reversed, and a venire facias de novo awarded.

THOMPSON-STARRETT CO. v. E. B. EL- ration may suspend for a time the right to

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes