Reuben Benedict v. Township of Fulton, Cyrus Eckman, Chester E. Wiley and D. I. Glacken, Supervisors.

We are of the opinion that there is no merit in any of the reasons for a new trial, nor do any of them require consideration, excepting the ones which question our refusal to read defendant's points to the jury, and answer them specifically. This was urged so earnestly that we will show that we were justified in our refusal.

At the trial defendant submitted five points. We used almost the exact language of four of them in our general charge, for which reason we considered it unnecessary and refused to again read them and formally and specifically affirm them, though counsel for the defendant requested us to do so.

In Patterson v. Kountz, 63 Pa. 250, Judge Sharswood on this subject says: "It is certainly well settled, by many decisions of this court, that it is not necessary for a judge to answer every point which may be presented to him separately, but that, if they are substantially answered in the charge the judgment will not be reversed on that account. . . . 'It is a mistake to suppose,' said Chief Justice Gibson, in 3 Barr 297, 'that every prayer must have a separate answer. The Judge's recognition of a parcel of disjointed propositions would give the jury little more instruction than the scattered leaves of the sibyl gave to those who consulted her; and it certainly is not error in him to extract the law contained in them, and apply it, in a connected form, to the evidence.' It is supposed, however, that the law in this respect has been changed by the third section of the Act of April 17th, 1856, Pamph. L. 396. It provides 'that whenever the parties, or either of them, shall request the court to charge the jury on particular points of law, drawn up in writing and handed to the court before the close of the argument to the jury, the judge who charges the jury shall reduce the answers to the points to writing and read them to the jury before they retire from the bar to consider the verdict.' . . . It does not say that every point shall be answered separately, but if one sufficient answer is given to the whole, the law is complied with. Nor need the answer be written on a separate piece of paper; if contained in the charge, it is good enough." In Hanratty v. Dougherty, 71 Sup. 248, it is decided that the refusal of points, which should have been affirmed, did not constitute reversible error, when the court had substantially charged the jury as requested in the points. Judge Trexler, in delivering the opinion of the Court, says: "The trial judge was not bound to adopt the language of the points but could choose his own form of expression, and as the subject was fully and correctly covered in the charge, there was no error. As was said in Hufnagle v. Delaware & Hudson Company, 227 Pa. 476, this was all that defendant was entitled to ask." In Warruna v. Dick, 261 Pa. 602, it has been decided that failure to answer a point specifically is not error, if the subject matter is correctly covered in the general charge.

As we have said, we did cover the matter embraced in the points, in our general charge, using almost, if not exactly, the language contained in them, and that is all the defendant was entitled to under the cases we have cited. We are of the opinion that there is no merit in any of the reasons filed for a new trial, and that the defendant is not entitled to judgment n. o. v., and we therefore discharge both rules.

Court of Common Pleas of Lancaster County

Michael J. and Elizabeth Phelan v. The Armstrong Cork Co. Accident at elevator shaft in building being constructed-Negligence— Contributory negligence.

In an action to recover damages for the death of the plaintiff's son from an accident in an elevator shaft which was without doors or safety gates, a compulsory non-suit is properly entered and will not be stricken off where it appeared that he was working on a stairway adjoining the elevator shaft, which shaft and elevator were uncompleted in a building being erected, and had been working close to it more than a week and knew its condition, and was not required to or authorized to use the elevator, but having finished his work on the fifth floor, went voluntarily to the shaft and put his head in the opening to call the operator, and was struck on the head by the weights of the elevator. The testimony failed to show negligence in the defendant but did show contributory negligence in the plaintiff's son. The company was not required to protect the openings in the shaft or the doors of the elevator while it was in process of erection nor to equip it with buttons or signals.

Rule to strike off judgment of non-suit.

No. 51.

Howard J. Lowell, for rule.

Charles G. Baker, contra.

July 2, 1921. Opinion by HASSLER, J.

August Term, 1917,

The plaintiffs seek to recover damages in this case for the death of their son, William F. Phelan, which they allege was caused by the defendant's negligence.

In their statement the plaintiffs allege that the defendant was negligent in maintaining an elevator in a six-story building in an unfinished, unfit and dangerous condition, without doors or safety gates, that the shaft, or passageway, was not properly closed or guarded, that it was without push buttons or bells thereon, and that there was an opening in the elevator shaft on the fifth floor that had no guard or protection or glass over it. They also allege that their son was engaged in working on the fifth floor of this building on September 1, 1916, and had occasion to use the elevator to take material to the ground floor, that he put his head in the opening on the fifth floor to summon the elevator operator, and was struck on the head or neck by the weights of the elevator, which caused his death.

The testimony on the part of the plaintiff at the trial showed that the defendants were engaged in the erection of a large six-story building at their plant in this city; that the building was not completed on September 1, 1916, the day of the accident; that William F. Phelan, the son of the plaintiffs, who was employed by A. B. Rote & Co., was engaged in doing some iron work on a stairway which adjoined the elevator shaft. He was on the fifth floor and had completed the work in which he was engaged. He went to the elevator shaft, put his head in the opening to call the operator, as is alleged in the statement, and was injured, as is therein described. It was also shown that neither the elevator nor the shaft had been completed. The testimony further showed that plaintiffs' son was not required to, nor authorized to use

VOL. XXXVII, No. 96

Michael J. and Elizabeth Phelan v. The Armstrong Cork Co.

the elevator, that he had been working close to it for some time, more than a week, and that he knew its unfinished condition and just how the weights descended when the elevator ascended. We were of the opinion that this testimony failed to show that the defendant was negligent in the maintenance or operation of the elevator, and that it did show that the plaintiffs' son was guilty of contributory negligence. We therefore entered the non-suit, which we now are asked to strike off.

The defendant company was not required to protect the openings in the shaft, or the doors of the elevator, while it was in process of erection, nor equip it with buttons or signals, the absence of which is alleged to be negligence by the plaintiff. It owed no duty to any one to do these things. There was no invitation to the public nor to any individual to use the elevator, so far as the testimony showed. If any one did use it, they did so at their own risk.

In McGinnis v. Kerr, 204 Pa. 615, Justice Mitchell says: "There was no evidence of negligence on the part of the defendants. They were not the owners of the building or the elevator, nor was the latter one of the tools for defendants' employees to use, or a place for them to work in. The latter used the stairs or the elevator in going from floor to floor at their own volition, apparently as defendants themselves and everybody else about the building did. If there was danger in the use of the elevator it was as open to the notice of the deceased as to defendants, and he being of full age and a mechanic in a trade requiring intelligence was in no need of instruction as to obvious risks. But beyond this there was no evidence to show how or why the deceased got into the position of danger. Three men working on the building, but not employees of defendants, after starting the elevator found that it stopped, and looking up the shaft saw deceased's head pinned under the balance weight on an upper floor. That is all that is known of the accident. Why the deceased put his head in the place of danger can only be conjectured, and so far as the accident itself speaks, it points to deceased's own negligence." In Wise v. Philadelphia, 239 Pa. 392, it is said: "The plaintiff's husband who was employed by a contractor was killed while engaged in repairing an air-cushion in an elevator shaft in a building owned by and in the charge of the city. While working in shaft No. 7 he allowed a part of his body to extend into shaft No. 8, where it was struck by a descending car. He had worked in shaft No. 7 several days, during all of which time the car in shaft No. 8 was in use. He knew it was in use at the time he was struck by it, because a few minutes before he had, at the request of the operator, adjusted the door of the car to make it work easier and had told the operator it was right and to go on and run the car. It was not shown that there was negligence in operating the car and it clearly appeared that the injury was caused by the want of care by the deceased in exposing himself to a manifest danger." In Beier v. Aberdeen Hotel Co., 136 Northwestern 757, it was decided that although plaintiff's foreman directed him to look at something in the elevator shaft, he was guilty of contributory negligence in putting his head into the shaft when he knew the elevator was being operated, and he must have

Michael J. and Elizabeth Phelan v. The Armstrong Cork Co. appreciated that there was risk connected with an attempt to stick his head into the shaft without first looking to see where the elevator was, and without having any assurance that the elevator operator was looking out for him or knew of his situation, and where he knew as much about the movements of the elevator as the foreman. In Schulte v. Pacific Paper Company, 135 Pac. 527, where an elevator bell was out of order and did not ring when plaintiff pushed the button, and he leaned over the side of the railing or gate to ascertain its location, and while doing so the elevator descended upon him and struck him upon the back of the head, causing severe injuries, it was held that he was guilty of contributory negligence and could not recover.

These cases clearly show that the plaintiffs here are not entitled to recover under the facts proven. These facts show that the defendant was not guilty of negligence, but that the plaintiffs' decedent was guilty of contributory negligence. We, therefore, discharge the rule to show cause why the non-suit should not be stricken off.

Court of Common Pleas of Lancaster County-In Equity

Hallman v. Sterner.

Collision with truck standing on highway-Negligence and contributory negligence-Demurrer-Practice Act of May 14, 1915, and Automobile Act of June 30, 1919.

Where, in an action for damages, the statement avers that the defendant's truck was left standing on a highway in the dark without lights, and the plaintiff while using the highway in a lawful manner and without his fault collided with it, injuring his automobile, a question of law raised by affidavit that the alleged negligence of the defendant was not the proximate cause of the injury and the facts alleged showed contributory negligence, cannot be sustained. The plaintiff would be entitled to recover on proof of the facts alleged independent of the Automobile Act, and the question of contributory negligence should be raised on the trial of the case.

Question of law raised by affidavit. January Term, 1921, No. 82.
Chas. W. Eaby, for plaintiff.

John A. Coyle and C. E. Ehrehart, for defendant.

June 25, 1921. Opinion by LANDIS, P. J.

In this case the plaintiff filed his Statement, and in answer thereto the defendant filed an Affidavit of Defense, beginning with the following words: "P. R. Sterner, being duly affirmed according to law, deposes and says that he is the above defendant; that without answering the averments of fact in the plaintiff's Statement of Claim and reserving the right to answer same in case this Demurrer be overruled, as provided for by the Act of May 14, 1915, P. L. 483, Sections 4 and 20, he is advised and truly believes he has a just and legal defense to all of the plaintiff's claim in the above case. . . ." Section 4 of the Practice Act expressly declares that "Demurrers are abolished. Questions of law heretofore raised by demurrer shall be raised in the affidavit of defense, as provided in Section Twenty." It, therefore, follows that, if this is a

Hallman v. Sterner.

demurrer, it cannot be considered; but if it intended to raise the question of the plaintiff's right of recovery under the 20th Section of the Act, then the Court must pass upon it from this point of view.

The Section referred to reads in part as follows: "The defendant in the Affidavit of Defense may raise any question of law, without answering the averments of fact in the Statement of Claim, and any question of law so raised may be set down for hearing and disposed of by the Court. If in the opinion of the Court the decision of such question of law disposes of the whole or any part of the claim, the Court may enter judgment for the defendant, or make such other order as may be just." Under the provisions, it seems to us that it is a mere waste of time to discuss whether the defendant was guilty of negligence or whether the plaintiff was chargeable with contributory negligence. The Statement alleges that "on November 16, 1920, about 5: 50 P. M., at which time it was exceedingly dark and raining, the plaintiff, in his Ford Sedan, was driving carefully and lawfully on the Lincoln Highway, where he had a right to be, westward on the north side of said Lincoln Highway, which is commonly known as Pott's Hill, in Lancaster Township"; that the defendant, who is the owner of a large truck, either himself or by his agents or employees, carelessly, negligently and unlawfully left the said truck standing on the highway facing west, without any light, warning or guard; that the plaintiff, whileproceeding westward, without negligence, ran into and hit the said truck so abandoned and left standing, and that, as a consequence, his Ford Sedan was injured. It seems to us that, if the plaintiff can establish these facts, he is entitled to recover. Without regard to the Automobile Act, if any person negligently leaves an obstruction in the public highway, and one who is lawfully using the highway is injured by it without his fault, he can recover the damages which he sustains.

We cannot understand the proposition that "the alleged negligence of the defendant was not the approximate cause of the plaintiff's alleged injury." If the truck was left standing in the highway in the dark and without lights, and the plaintiff was using the highway in a lawful manner, as he says he was, and without his fault he collided with the truck, we see no reason why he should not recover the damages which he sustained. Certainly, the collision under such circumstances was the direct cause of the injury.

Nor in our judgment does the question of contributory negligence at this time arise. It is true that if, upon a trial, the plaintiff's case shows contributory negligence on his part, it will be our duty to enter a judgment of non-suit. But we fail to find any facts, and certainly none have been pointed out by the learned counsel for the defendant, which show on the face of the Statement contributory negligence. If contributory negligence is proven on the part of the defendant at the trial, the jury will pass upon the question and decide it.

We are, therefore, obliged to determine the question of law raised against the defendant, and we now order him to file a supplemental affidavit of defense within fifteen days of the filing of this opinion. Question of law overruled.