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Rule for a new trial discharged; motion in arrest of judgment sustained in part.

Orphans' Court.

O. C. OF LANCASTER COUNTY. Estate of Henry C. Shirk, Deceased.

Guardian and ward-Petitions for rules to pay and open adjudication.

Where in answer to a rule on a guardian to pay over the balance as decreed, a petition to open the adjudication is filed, avering a mistake therein, it can not be considered as a petition, not having been presented to court, and is not responsive as an answer, and the rule should therefore be made absolute.

March Term, 1902, No. 68.
Rule to issue order to pay.
Chas. W. Eaby for rule.
John E. Malone contra.

tutes of 7 and 8 Vict., c. 101; 8 and 9 | be so modified as to strike off the charge Vict., c. 10; 35 and 36 Vict., c. 65; and of bastardy and allow that of fornication 36 and 37 Vict., c. 9, the proceeding to remain. against the putative father of a bastard child is to obtain an order of affiliation or assignment of the child to him for its support. The law of England does not require that the putative father should be convicted of either fornication or adultery. The inquiry is simply to determine whether he is the father of the bastard, and if he is, then to make him support it. After an order for its support has been made, it is a criminal offense to refuse to comply with the order. ... The 37th section of the Penal Code of 1860, which imposes penalties upon fornication and bastardy in the same section, misleads some persons into thinking that the two offenses are one. But that they are separable offenses is shown by the same section in the punishments it metes out. For the fornication a fine is imposed; while, for the bastardy, the defendant shall be sentenced ' in addition to the fine aforesaid' to pay the expenses incurred at the birth of the child, and give security to perform such order for the maintenance of the child as the Court may direct. The 38th section more clearly shows the distinction. as well as the difference, between the two offenses; for, by it, if the child is begotten out of the state, but is born within it, the like sentence shall be passed, except in the imposition of a fine.' The putative father could not be convicted of a fornication or adultery committed outside of this state, but he may be convicted of the bastardy, if the child is born here." In Duncan vs. The Commonwealth, 4 S. & R., 449, the defendant was convicted of adultery and bastardy, but, before judgment, received a pardon from the Governor for the adultery. The Court, however, proceeded to impose sentence on the charge of bastardy, and, on appeal, this action was sustained. See, also, Commonwealth vs. Walker, 2 Dist. Rep., 727; Commonwealth vs. Bostwick, 5 Dist. Rep., 120. We are, therefore, of the opinion that the rule to show cause why a new trial should not be granted should be discharged, but that the conviction should

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January 17, 1910. Opinion by SMITH, P. J.

This proceeding is on a rule to show cause why Reuben S. Keller, guardian of Mary E. Shirk, a daughter of the decedent, should not be ordered to pay to her, who is now of age, the sum of $1,677.72, the amount awarded her by the decree of this Court of October 14, 1909, adjudicating the account of the guardian. The matter came to be heard on petition, answer and replication.

A paper was filed, presumably as an answer to the petition. It is called a "Petition to Open Adjudication", and concludes, "Your petitioner, therefore, prays in answer to said rule that said adjudication so erroneously made requiring him to pay the sum of $1,677.72 to said Mary M. Shirk, be opened up and your petitioner permitted to show the exact amount of moneys in his hands belonging to said Mary M. Shirk."

If this paper, which was filed but not presented to the Court as a petition, was intended as an answer, it does not answer. The records show

that a decree was entered October 14, hurriedly written over the tail of a letter 1909, directing the guardian to pay to y which extended down from above, and his ward $1,677.72, to which no excep--everybody took a drink.

tion was taken and which became absolutely confirmed. If this paper was intended as a petition asking for the opening of the decree, it was not presented and no action has been taken on it. To

a petition, if on it a rule is granted, the one called upon to respond may not be denied the right to answer, and to do so notice and the opportunity must be given.

The rule is made absolute.

And now, January 17, 1910, on consideration of the petition praying for an order on Reuben S. Keller, guardian as aforesaid, and on motion of Charles W. Eaby, Esq., for the petitioner, it is ordered that said guardian pay on or before February 21, 1910, to Mary E. Shirk the sum of $1,677.72, being the amount awarded by the adjudication filed October 14, 1909.

Legal Miscellany.

Circumstantial Evidence.

A witness in a railroad case at Fort the accident happened, said: "Well, Ole Worth, asked to tell in his own way how and I was walking down the track, and I heard a whistle, and I got off the track, and the train went by, and I got back on the track, and I didn't see Ole; but I walked along, and pretty soon I seen Ole's hat, and I walked on, and seen one of Ole's legs, and then I seen one of Ole's arms, and then another leg, and then over one side Ole's head, and I says My God! Something muster happen to Ole!" -Everybody's Magazine.

THE adoption of a child under the statutes of one state is held, in Brown vs. Finley (Ala.), 47 So., 577, 21 L. R. A. (N. Š.), 679, to confer upon him no rights of inheritance in lands in another

state.

Hinc Illae Lacrimae.

There was great excitement recently in a prominent law office in this city, and this was the cause of it. Two

mortgages, for $20,000 each, were sent to the Recorder's office, one before the other. The first represented money loaned by an outsider on property of little more than sufficient value to safely secure it, while a second mortgage for like amount on the same property was given to relatives of the mortgagor, who agreed that it should be second. The mortgages were sent over to the Recorder's office in proper order, but subsequently it appeared that the first one had been entered as of "2:18" o'clock, while the second one had been entered

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as of 12:55." Finally after great crimination and recrimination and much sweating of blood it was discovered that the first mortgage was really entered at "12:18" instead of 2:18" but the first figure I had been obscured by being

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on the question of defendant's negli

LANCASTER LAW REVIEW. gence, and we certainly would have done

so, if it had not been for the contribu

VOL. XXVII.] MONDAY, FEB. 14, 1910. [No. 15. tory negligence of the plaintiff, which,

Common Meas--Law.

C. P. OF LANCASTER COUNTY. Clark vs. City of Lancaster. Damages-Defective gutter bridge Contributory negligence.

we are of the opinion, the testimony disclosed, for the burden is on the plaintiff, not only to show that the defendant was negligent, but that she was free from any negligence that contributed in any degree to the accident: Lerner vs. Philadelphia, 221 Pa., 224. We entered judgment of non-suit for this reason and are now asked to strike it off.

The testimony of the plaintiff's negliA non-suit is properly entered in an action gence is as follows: The accident ocagainst a municipality for damages for an in-curred on the south side of North Street jury caused by the plaintiff stepping in broad daylight on a loose or misplaced gutter bridge which was only a half block from her residence and she had frequently crossed it and it had been generally loose or out of place for several years, and its defects were apparent. Where the facts are not in dispute and the standard of care required of a plaintiff under the circumstances has been judicially determined the question of contributory negligence is for the court.

August Term, 1908. No. 69.

Rule to strike off non-suit.

B. F. Davis, for rule.

where it is intersected by Christian
Street. The place where it occurred is
about half a square from the plaintiff's
residence. It was caused by stepping on
a loose grate over the gutter, which was
generally out of place, according to the
witnesses, and had been, more or less,
for several years. While she lived with-
in a half a square of it, she crossed it
when she had occasion to go down that
way, but couldn't say how often.
did not think however it was very often.
One of her witnesses says it was fre-

She

Geisenberger & Rosenthal, City Soli- quently. The accident occurred in day

citors, contra.

January 15, 1910. Opinion by HASSLER, J.

The plaintiff was injured by stepping on a loose gutter grate in the city of Lancaster. It was shown that the plate was not so fastened as to be kept in place; that, for a long enough time to show constructive notice to the city, it was frequently loose, some witnesses say because boys raised it up when a ball got under it, others because of wagons striking it or people walking on it. Notice was frequently given to the city by telephone that it was loose, and "offtimes people fixed it." The testimony differed as to how it was fastened. Some of it was to the effect that it was not fastened at all; some of it that it was fastened with one pin which never held it, and some with several pins. This testimony clearly showed a case that should have been submitted to the jury

time, about noon. She says she did not look down at the grate on the crossing but was looking straight ahead of her. Two other witnesses say she was talking to her husband and his companions across the street and was looking at them. It was shown that the grate was partly off its foundation the day before and that it was loose at the time of the accident. Her husband and another witness, the only ones who testified on the subject, say that if one were looking down he could see that the grate was out of place.

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In Sickels vs. Philadelphia, 209 Pa., 113, a woman was injured by stepping on a ridge of ice in the sidewalk in the daytime. It was held that a non-suit was properly entered. In affirming the Court below Justice Brown says, "from her own testimony nothing can be found to relieve her from what must be regarded as her own negligence. Though it was a cloudy day and raining, it was broad daylight when she fell. If she had been exercising ordinary care, by using her eyes and looking where she was going, the ridge could not have escaped her notice, and she would have been bound to avoid it, instead of experimenting with it. Scanning her testimony closely, the only conclusion to be drawn from it is that she was careless under the circumstances to a degree that amounted to negligence. She was not bound to exercise extraordinary care in walking on the street. What the law required of her was to avoid peril in her way by the ordinary and reasonable use of her eyes, and for her failure to so protect herself she cannot call on the City to compensate her for her injuries, even if it, and not an independent contractor, was negligent: Bruch vs. Philadelphia, 181 Pa., 588; Iseminger vs. York Haven Water, etc., Co., 206 Pa., 591."

enough of our own cases to constitute | and suffer injury. The accident ocauthority for those who need it. Thus curred in the daytime and the stone was in Barnes vs. Sowden, 119 Pa., 53, the plainly visible. Held a non-suit was court below instructed the jury that proper. 'persons who walk along the footways. or cross the streets of our City are bound to use their own faculties. The plaintiff was bound to use her eyes. Not that she was to keep her eyes constantly and at every moment upon the pavement, but she was bound to do what people walking along the streets ought to do as they walk the streets in order to use them safely.' It was held that even this instruction was, under the evidence, too favorable for the plaintiff, that the obstruction was such as she was bound to see, and that her negligence was too clear to be left to the jury. So, in the somewhat similar case of King vs. Thompson, 87 Pa., 365, this court held that walking into an opening left for light and ventilation, and extending fifteen or sixteen inches from the wall of the house, was negligence per se, the present Chief Justice saying: Persons using public streets ought also to exercise some little caution.' In Dehnhardt vs. Philadelphia, 15 W. N., 214, the judge below, who tried the case without a jury, said in his findings of law that the condition of the pavement could have been seen by the plaintiff if she had given attention to it. . . The duty of vigilance is as obligatory on the citizen as on the municipality; and this court said, in a per curiam opinion, that the law was correctly declared. In Philadelphia vs. Smith, 23 W. N., 242, the court below charged the jury that the plaintiff could not recover if there was negligence on her part . . in walking without seeing where she was going;' and this part of the charge is quoted with approval by our Brother Sterrett in affirming the judgment. See, also, See, also, Dickson vs. Hollister, 123 Pa., 421, and Buzby vs. Traction Co., 126 Pa., 559.”

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This rule has since been repeated and applied in numerous cases, of which the following are a few of the more recent

ones.

In Shallcross vs. Philadelphia, 187 Pa., 143, the plaintiff stumbled on a stone block in the pavement causing her to fall

In Dougherty vs. Philadelphia, 210 Pa., 591, the plaintiff stepped on a loose cover of an inlet on the city sidewalk before daylight, while it was very dark, and a verdict for the plaintiff was sustained. The Supreme Court in disposing of the case said, "if there had been a clear admission by plaintiff that she was not looking where she was going, or if the circumstances had shown beyond question that such was the fact, it would have been the duty of the court to hold that she was negligent as matter of law and to enter a non-suit or direct a verdict for defendant."

In Byrne vs. Philadelphia, 211 Pa., 598, the plaintiff was injured by striking his foot against the edge of the asphalt

In McIlhenney vs. Philadelphia, 214 Pa., 44, the plaintiff stumbled and fell at the curb which was two or three inches above the pavement. She testified, "I suppose I was looking ahead of me-I don't know how I was looking. As you go along or I go along, I go right on." The Court said, in holding that the non-suit was properly entered, "that she varied the form of her expression somewhat in answer to different questions yet the substance of her testimony was the same and had at least the merit of frankness. It disclosed such an inattentive and heedless disregard of the care which the situation required as to effectually defeat her right of action."

pavement, which was two inches above | but never yet so far as to excuse the the pavement adjoining it. It happened pedestrian using the pavements from the in daytime when he could have seen it duty of exercising ordinary care. When had he looked. He testified he did not one abandons the use of his natural look at the pavement at all. Held he was senses for the time being, and chooses to negligent in not looking where he was walk over a pavement by faith exclugoing, and a non-suit was properly en- sively, and is injured because of some tered. defect in the pavement, he has only himself to blame. It is, of course, the dtuy of municipalities to see that the pavements along its streets are reasonably safe for public use, but they are not insurers of the safety of those using them. It is impracticable, if not impossible, to maintain these pavements in such condition as to make them entirely free at all times from possibility of accident to those using them. Irregularities in grade, unevenness in surface, sharp depressions at crossings, accidental displacement of brick or stone, and many other things which may or may not be defects, but yet sufficient in themselves to cause accident to the unwary, are so common and usual that it is the duty of the pedestrian to be observant of such fact, and not to walk blindly. If through no fault of his, he is prevented from seeing the defect, obstruction or whatever it may be, which it was the duty of the municipality to have corrected, and injury results to him, he is entitled to claim compensation. When the accident occurs in broad daylight, in consequence of an open and exposed defect in the sidewalk, the burden rests upon the party complaining to show conditions outside of himself which prevented him seeing the defect, or which would excuse his failure to observe it. If such conditions exist, there is excuse for walking by faith. When they do not exist, the law charges the party with failure to do what was required of him. And that is this. case."

In Kennedy vs. Philadelphia, 220 Pa., 273, a woman, in the daytime, stumbled and fell over an obvious defect in the side walk which was caused by roots of trees raising it about four inches above the rest of the pavement. She said she was going to take a car and was looking straight ahead of her. A non-suit was entered, and in affirming this action of the court below Justice Potter says, "The only conclusion that we can draw from her testimony, as a whole, is that she was not paying proper attention to the ground in front of her as she walked. *** we think the trial judge discharged a clear duty in ruling as a matter of law, that, under the evidence the plaintiff was negligent in failing to observe and avoid the defect in the pavement, and that she was not entitled to recover in this case." In Lerner vs. Philadelphia, 221 Pa., 294, the plaintiff was injured by stepping into a depression in the sidewalk caused by some bricks being displaced. The accident occurred in daytime. In affirm ing the action of the court below in entering the non-suit, Justice Stewart says, "We have gone very far in holding municipalities liable for injuries received in consequence of defective pavements,

We think the testimony here discloses a case of contributory negligence as strong as any we have cited and much stronger than most of them. It shows that she did not look at the gutter plate on the crossing at all but straight ahead, according to her testimony, and across the street talking to some people there, according to others, when she was about to and did step upon it. Her husband.

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