West Chester Ry. Co., vs. McElwee, 67 Pa., 311. Germantown Ry. Co. vs. Walling, 97 Pa., 55. Baker vs. Fehr, 97 Pa., 70. July 1, 1910. Opinion by BROWN, J. The plaintiff was injured by stepping on a loose grate over a gutter on one of the streets in the city of Lancaster. It tilted as she stepped upon it and she was thrown to the ground, sustaining the injur es for which she seeks compensation in this action. There was ample evidence of the defendant's negligence, but a nonsuit was entered on the ground of the contributory negligence of the plaintiff, the court being of the opinion that, if she had looked where she was going, she would have seen the danger before her, which it was her duty to avoid. The learned trial judge, however, was clearly under a misapprehension of what was required of her in making out her case, and this may have led him into the error which must be corrected. In his opinion refusing to take off the non-suit the following appears: "The burden was 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., 294. We entered judgment of non-suit for this reason and we are now asked to strike it off." Nothing said in Lerner vs. Philadelphia conflicts with the rule that the negligence of a plaintiff, contributing to the injury complained of, is a matter of defense, and ordinarily the burden of proving it is on the defendant. Contributory negligence on the part of a plaintiff is no more to be presumed than the negligence of a defendant. The rule that a plaintiff must present a case clear of contributory negligence does not mean that, after proving affirmatively that the defendant's negligence caused the injury, he must prove negatively that he himself was not guilty of negligence that contributed to the result: Bradwell vs. Railway Co., 139 Pa., 404: Baker vs. Westmoreland and Cambria Natural Gas Company, 157 Pa., 593; Fitzpatrick vs. Union Traction Co., 205 Pa., 335; Cool broth vs. Pennsylvania Railroad Co., 209 Pa., 433. If it clearly appeared from the apellant's own testimony, cr from that of the other witnesses-so clearly that the jury could not have found otherwise—that the grate was loose or out of place, and that she ought to have seen its condition, patent to a passerby, she assumed the risk of its tilting, and the judgment of non-suit could not be disturbed. She admitted that she was not looking down on the ground as she was walking along, but was looking straight ahead. This, however, was not sufficient to convict her of contributory negligence, for it must have appeared that, if she had looked, she could not have helped seeing the danger. She lived near the point where she was hurt and at times passed by it, but testified that she had no knowledge that the grate was loose cr that the crossing was dangerous. A witness who was walking with her when she fell testified that there as nothing to show that the grate was dangerous. But the trial judge was of opinion that, from the testimony of plaintiff's husband and that of another witness, it appeared that the grate was loose or out of place at the time of the accident, and that if the plaintiff had looked down at it, she would have seen its condition. It is true the husband testified that the grate was loose or out of place. When asked, however, whether he saw it was loose or off at the time of the accident, he answered that he could not see it from where he was standing, but knew it was loose because, when his wife trod on it, she went through it. Instead of testifying to what he saw of the condition of the grate at the time of the accident, he merely gave his reason for believing that it was then loose. Logan, the other witness, when asked by the court whether he saw that the grate was loose or out of place when the plaintiff stepped upon it, at first evaded answering, but finally admitted that, though standing only ten or twelve feet away from it, he could not say that he saw it was off its foundation. From some portions of the testimony of these two witnesses the jury might have found that, when the appellant stepped upon the The assignments of error are sustained and the judgment is reversed with a procedendo. grate, it was out of place and that she | commodation of the children of the ought to have seen this, but the net re- neighborhood. It asked for the appointsult of their apparently contradictory tes- ment of an inspector to inquire into the timony was by no means so clear that facts and report to the court. An answer from it the court was required to pro- was filed by the school directors, and nounce the plaintiff guilty of contributory after hearing, the court appointed an innegligence. It was, therefore, for the spector [see 27 LAW REVIEW, 91], who jury to reconcile the conflicting state- after due and legal notice had been given ments, and, if they were unable to do so, of the time and place of meeting, as reto say which should prevail: Ely vs. quired by law, visited the district and Railway Company, 158 Pa., 233. inquired into the facts set forth in the complaint, and on March 19, 1910, reported to the court the result of his investigations, accompanied by a statement of the facts and the proofs obtained in the case. The results of his investigation, as contained in his report, are that the school house at the place asked for is not necessary for the accommodation of the children of the district, and that the school directors of Little Britain Township have never refused, neglected or failed, without valid cause for such refusal, neglect or failure on their part, to provide and maintain suitable and adequate accommodations for the school Common Pleas--Law. C. P. OF LANCASTER COUNTY. Inspector of school accommodations- 1893. to perform his duties. Trust Book No. 21, page 347. 66 children of the district as the law requires." To this report the petitioners have filed the exceptions we are about to dispose of. These proceedings are under the Act of 6 June, 1893, P. L., 330, the first section of which provides, "That whenever the school directors or controllers of any city, borough, township or independent school district shall wilfully neglect or refuse to provide suitable houses, rooms or buildings in and for any school district within their jurisdiction, and under their supervision and control, with ample room and seating capacity for the reasonable and convenient accommodation of all the school children residing within the district who may be in attendance, or who desire to attend the school or schools therein, then ten or more taxable citizens, residents of the said district, may set forth in writing the facts in the case July 9, 1910. Opinion by HASSLER, J. On August 14, 1909, a number of citizens and taxpayers of Little Britain. . . and petition the court of common Township presented their petition to this court, setting forth that the school board of that township had wilfully neglected and refused to provide a school at or near the village of Oak Hill, and that such school was necessary for the ac pleas of the county in which said school district is situated, or in vacation any judge of the said court, for the appointment of a competent inspector, and the court or judge thereof may appoint such inspector," etc. The second section pro vides that "If, after hearing . . . and that the directors have not wilfully negafter having fully and d ligently inquired, lected to erect a school house, and that into all the facts and circumstances the aforesaid inspector finds that the directors or controllers have refused, neglected or failed, without valid cause for such refusal, neglect or failure on their part to provide and maintain suitable and adequate accommodations for the school children of the district as the law requires, he shall so report to the court, and the court in such case is hereby authorized and empowered to grant a rule upon the directors . . . to show cause why the court . . . should not remove them from office and appoint others in their stead." such school house is not necessary for the accommodation of the children of the district that we cannot sustain exceptions that go to the correctness of his conclusion, but we may do so if he has failed to comply with all the requirements of the act of assembly, such as visiting the district, inquiring into all the facts and circumstances, hearing proofs and allegations, etc., for without doing so he could not legally have made a report. In such case we could refuse to accept his report, as he had not performed his duty, and we could then remove him and appoint another in his place, but when, as here, the exceptions are only to the cor It is contended on the part of the petitioners that this court does not have juris-rectness of the inspector's conclusion, we diction to entertain exceptions to the inspector's report. No case has been cited, nor have we been able to find one where this is expressly ruled, though in a case decided in Montgomery County, to which we shall refer later, exceptions to such report were dismissed without the question being raised. In Ross's Appeal, 179 Pa., 24, Kittanning Township School District, 179 Pa., 60, Swisher, et al, Appeal, 188 Pa., 122, and Slippery Rock Township School District, 222 Pa., 538, it is decided that the court is not bound by the inspector's findings of fact in disposing of the rule to show cause why the school directors should not be removed. That, however, is not the question involved here. The fact that the rule must be granted before they can be removed, when the inspector reports that directors are wi'fully negligent of their duties, implies that they shall have a hearing before the court, after such report has been made, before they can be removed. At such hearing it is proper that, and we can see abundant reason why the court should consider all the testimony that will throw any light on the question whether they have wilfully neglected to build a school house that was necessary for the accommodation of the children of the district, and it should not be bound in deciding that question by the inspector's inferences from part of such testimony. We are inclined to We are inclined to think that where the inspector reports do not see how our sustaining them would benefit the exceptants. We could not refer the report back to him to be corrected in accordance with our views, if they do not agree with his conclusions, as then it would not be a result of his personal inspection and investigation, etc., and it is only upon such report that we can enforce the penalty prescribed in the act against the directors. If under such circumstances we should grant a rule on the directors to show cause why they should not be removed, we would likely be met with the answer that we have no jurisdiction to remove them as the inspector reported that they had not neglected their duty and that a school house was not necessary, and that he subsequently amended his report by order of the court, so that the latter report was not the result of his investigation but of the court's. Such an answer would be conclusive. Nor would it be right for us to remove an inspector because his views did not coincide with ours and who in no way neglected to perform his duties. He was better able to arrive at a correct conclusion than we, for the reason that he visited the district, investigated all the facts and circumstances, heard the testimony of the witnesses for and against the petition, saw them and observed their manner while testifying, so that he was better able than we, to give proper weight to the testimony of each when it was conflicting. On this subject, in the only case we have been able to find where exceptions were filed when an inspector's report was adverse to the petition, it is said by Judge Weand,. "A conclusion of this character after a painstaking examination of witnesses, a visit to the locality, and an opportunity to see and hear the witnesses, should have great weight with the court, and ought not to be set aside unless the testimony will not support his conclusions. As we must approve the inspector's findings and conclusions we are without authority to interfere." This is In re Huey, 23 Mont., 186. But even though we have a right to sustain exceptions to the correctness of the inspector's conclusion we do not think. there is any merit in those filed in this case. We have carefully examined all the testimony and think that the conclusions of the inspector are fully justified by it. The testimony is conflicting, but he saw and heard the witnesses, and his opinion as to the weight to be given to that of the different ones should and does control us. He visited the locality, ascertained the location of the residences of the taxpayers and the place where the school is asked for. He also ascertained the facts and circumstances which were material, and it would be presumptuous on our part to say, from reading the testimony alone, that his conclusions are not correct. Quarter Sessions. Q. S. OF LANCASTER COUNTY. Forgery-Health officer. An indictment for forging the name of the state's chief health officer to a letter recommending a disinfectant preparation, with intent to defraud, will not be quashed on the alleged ground that it does not show that the alleged forgery was to the prejudice of the rights of anybody as it may be particularly prejudicial to his rights. January Sessions, 1910. No. 18. Demurrer. John E. Malone, for demurrer. W. U. Hensel and J. W. Johnson, district attorney, contra. July 9, 1910. Opinion by HASSler, J. The objections contained in the motion to quash this indictment are to the effect that the indictment does not charge an indictable offense, as it does not show that the letter, alleged to have been forged, was to the prejudice of the rights of anybody. The first count in the indictment charges the defendant with forging a letter, etc., "Said letter purported to be signed by Samuel G. Dixon, commissioner of health of the state of Pennsylvania, and represented that a certain. disinfectant or preparation which he, the said W. D. Moore, was then and there selling, was recommended by Samuel G. Dixon, with intent to defraud." The second count charges the forging of the same, with intent to defraud certain individuals, whose names are mentioned. We dismiss all the exceptions and confirm the inspector's report absolutely, and direct that W. F. McComsey, J. E. Alexander, George Peterman, Howard Colman, J. L. Kurtz, Adam Overly, E. H. Townsend, G. W. Cameron, Cline T. Watson, C. G. Watson, S. J. Dempsay, John J. Pennell, Hannah E. Priest, Edward G. Priest, J. F. McLaughlin, Wm. Scotten, Ellis Brown, Howard Walton, Harry McClenaghan, J. E. Christie, Eber Section 169 of the Criminal Code reE. Hilton, Chas. S. Whitson, Wm. Phil- lating to forgery provides, "If any perlips, M. and S. Townsend, Clifford Cook, son shall fraudulently make, sign, alter, Rose E. Jamison, Geo. Jenkins, Mary J. or publish . . . any written instrument Scott, J. White Swift, Adam P. Overly,. . . to the prejudice of another's right P. W. McLaughlin, Harry Wright, Silas Brown, the petitioners, pay the costs of this proceeding. with intent to defraud any person... he shall be guilty of a misdemeanor." In McClure vs. Com., 86 Pa., 353, and Com. vs. Compton, II D. R., 119, it is decided that under this act there need be 66 stable of Martic Township. Attached to the return is a notice, signed by one, C. F. Quade, setting forth that the liquor laws of the state are being violated by the defendant and others in Martic Township, and the names of sundry witnesses are appended to the constable's return. no attempt to defraud any particular per- | based upon a return made by the conson, but if there is an intent to defraud any one by such an instrument the of fence is committed. The former of these cases decides that the forging of a college diploma is prejudicial to another's right, and the latter that the forgery of a marriage certificate is also. Forging the name of the state's chief health officer to a letter recommending a disinfectant or preparation, when we regard the duties the law imposes on him, may be particularly prejudicial to his rights. When, as alleged here, it is done for the purpose to defraud, it constitutes the offence of forgery as prescribed in the statute. We therefore overrule the motion to quash the indictment. Q. S. OF LANCASTER COUNTY. Commonweal h vs. Fowl. Indictment-Sufficiency of-Liquor lar -Leave of court to present indictment. An indictment for selling liquor without a license founded on a constable's return which was founded on a notice attached thereto will not be quashed because the notice does not set forth the manner in which the laws were violated, nor the names of the persons to whom the liquor was sold, nor the fact that they were unknown. The objections raised by the counsel for the defendant are: First, that the manner in which these laws were violated is not set forth in the notice; second, that the names of the persons to whom the liquor was sold were not contained therein, nor the fact that they were unknown; and third, that the bill was presented to the grand jury without leave of court being first obtained. After carefully considering all of these objections, I am of opinion that the indictment ought not to be quashed. Section 12 of the Act of May 13. 1887, P. L., 108, provides that "it shall be the visit, at least once in each month, all duty of each constable in the county to places within their respective jurisdic tions, where any . . . liquors are sold or kept, to ascertain if any of the provisions of this or any act of assembly relating to the sale or furnishing of such liquors have been or are being violated, and whenever any of the officers above mentioned shall learn of any such violations, it shall be his duty to forthwith make written returns of the same to the Court of Quarter Sessions, with the names of the witnesses, and to do whatever shall be in his power to bring the offender to justice," etc. Therefore, whether the constable ascertains that the act of assembly is being violated by his visits of John E. Malone, John A. Nauman and him, it is his duty to make a return of inspect on or by information conveyed to the offending party; and it seems to me J. W. Johnson, district attorney, that the notice in this case gave him the sufficient information, even if he had no other upon which to base the return July 9, 1910. Opinion by LANDIS, which he did make. As he appen 'ed the P. J. While it is improper in the absence of pressing necess ty to send an indictment before the grand jury without a preliminary hearing and without leave of court, the court may give its sanction by refusing, on motion, to quash the indictment on this account. January Sessions, 1910. No. 25. J. R. Kinzer, for motion. contra. The indictment in this case charges the defendant with having sold l'quor without a license "to divers persons whose names are to the grand inquest as yet unknown," and it is admitted that it is names of the witnesses to the return, that portion of the section was fully complie 1 with. While the Act of March 31, 1856, P. L., 200, declares that he shall be guilty of a misdemeanor in case he makes no return after such signed notice in |