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Steffero v. Martin. Evans. He testified that he was one hundred feet east of the intersection of Marshall and Chestnut Streets looking westward, that he saw the automobile driven by the defendant going “at a pretty good clip past him, but that, in order to avoid a horse and buggy that was approaching the intersection of the two streets, he slowed up at the crossing and continued across the west crossing about twenty feet. At this point Felicia Steffero stepped from the pavement to the street. He testified : “A. Yes, sir, sure I saw the child run out; I seen the child go off the sidewalk. Q. Where was the automobile when the child went off the sidewalk? A. When the child went off the sidewalk his automobile was across the crossing. Q. Then it was within ten feet of the child when the child started ? A. No, it was about the length of the house. ... Q. Fourteen or fifteen feet away? A. Something like that, from the crossing. Q. The child suddenly broke out? A. Yes, sir. Q. Did it start to run? A. Not just exactly run.” Adam Dommel testified that the child was struck twenty-one feet west of the west crossing, as he saw her there after she was struck. Usa Kittle testified that after she heard the crash she looked around, and the automobile had stopped close to where the child was lying. Isaac Evans also testified that the automobile stopped close to where it struck the child, it being at the house next to the barber shop. Adam Dommel and Isaac Evans both testified tha after the machine had gone away they measured the distance from where it appeared from the tracks that it commenced skidding to the place where it stopped, and that it was a distance of from forty-five to fifty feet.

It is argued by plaintiff's attorney that it is proper to permit a jury to take into consideration the distance the automobile ran after it struck the child, so that they may arrive at the rate of speed that it was going. In support of this contention he cites the case of Lorah 7. Rinehart, 243 Pa. 231. We can understand that this should be done, as that case decides, where there is no other evidence as to the speed at which the car was going, but where, as here, the plaintiff has proven positively that the car had slowed up prior to the time of the accident, and by at least two witnesses who saw it that it stopped close to where the accident occurred, it would be manifestly improper to have permitted the jury to find that it was going at a high rate of speed, from measurements made after the automobile had gone away. We are satisfied that the testimony showed that the defendant was not operating his automobile at an improper rate of speed, and that the accident was no fault of his.

The case which justified us in entering the non-suit is that of Stahl v. Sollenberger, 246 Pa. 525. In it the facts are as follows: Two boys were walking on a footway for pedestrians over a bridge, and which was along one of the sides of it. The driveway was in the center, and the defendant was operating his automobile on the driveway. For some cause the plaintiff's son, who was a small boy, stepped off of the footway on to the driveway, and was injured. The Court entered a nonsuit, which it refused to strike off. In affirming this action of the Court, Justice Potter says: “A careful examination of the testimony as sub

Steffero v. Martin. mitted to us, fails to disclose any indication of the length of time the boy was in the roadway in front of the car before he was struck. Manifestly he had left the footway provided for pedestrians and was, at the time of the collision, in the place provided for vehicles. But how long he had been there was not shown. Yet this was the important matter in the case. The defendant cannot fairly or reasonably be charged with negligence in failing to stop his automobile and avoid the accident, unless it appeared that the boy entered the roadway at a sufficient distance from the automobile to permit of its being stopped before the collision occurred. If the boy suddenly left the footway at a place where the driver had no reason to expect him to do so, and ran directly in front of the automobile, the result could hardly have been other than disastrous, even though the machine had been moving at a very reasonable rate. The court below felt that the only reasonable inference to be drawn from the testimony in this case is that the boy did leave a place of safety and unexpectedly dashed into danger. We find nothing in the evidence to warrant us in holding that this conclusion was wrong, or that any other inference could be legitimately drawn from the testimony. Cases are not uncommon where it is shown that a child leaves a sidewalk and runs upon the street, a certain distance in front of an approaching car. Under such circumstances there may be disputed questions of fact as to whether the driver should have seen the child, or whether the distance was sufficient to enable him, having his car under proper control, to bring it to a stop in time to avoid the accident. But in the present case, with no evidence that the child appeared upon the roadway in front of the car at any appreciable distance ahead of it, and with no circumstance shown that would tend to suggest to the driver, prior to the happening of the accident, the probability of the boy leaving the footway, or getting into danger upon the driveway, we think the trial court was right in holding that there was not sufficient proof of any negligence causing the accident, on the part of the defendant, to justify the submission of the question to the jury.”

The testimony here showed that the girl stepped from the sidewalk to the street quickly, about fourteen or fifteen feet in front of the automobile, and there was no testimony to show that, even if going slowly, the defendant could have stopped his car in time to avoid striking her. The plaintiff proved that the defendant had slowed up his automobile before reaching the intersection of the two streets, east of the place of the accident. We are satisfied from all this that the accident was not the fault of the defendant, as there was no proof that he was negligently operating his machine, by doing it too rapidly.

That the defendant failed to blow his horn when approaching the crossing is not negligence. The law requires him to give notice of his approach to a crossing by blowing his horn. If the accident had occurred at the crossing, his failure to have done so would have been an act of negligence and entitled the plaintiff to recover if such failure was the proximate cause of the injury, but this accident did not occur at the crossing. He was not required to blow his horn to indicate that he was coming along the street at any point other than at the crossing.

Steffero v. Martin, We are satisfied that the judgment of non-suit was properly entered, and discharge the rule to show cause why it should not be stricken off.

John B. Brown v. Elizaboth A. Brown.

Divorce-Vacation of decree-Want of jurisdiction-Collusion.

A respondent who entered an appearance in divorce proceedings, though it was subsequently withdrawn, cannot have the decree set aside for lack of jurisdiction on the ground that neither the libellant nor the respondent was a resident of the county in which the suit was brought.

A respondent who entered into an agreement with the libellant not to resist the divorce cannot have the divorce set aside for collusion.

Divorce. Rult to vacate decree.

August Term, 1920, No. 88.

Charles G. Baker and Byron Longbottom Sue Pape, for rule.

E. M. Gilbert, contra.

July 2, 1921. Opinion by HASSLER, J.

A divorce was decreed in this case on November 13, 1920. On March 12, 1921, the respondent filed her petition asking that the decree be vacated and set aside, and the respondent let into a defense, alleging as her reasons why this should be done, first, that the libellant was not a resident of this County at the time he filed his libel on July 16, 1920, nor at any time since then, and, second, that the divorce was obtained by collusion between herself and the libellant.

We are fully satisfied from an examination of the depositions taken on the rule granted on this petition, that the libellant did not live in the County of Lancaster at the time he filed his libel, nor since then. He was employed in the City of Philadelphia for many years, and resided there for seven years with the respondent on North 25th Street, and after they separated, in March, 1920, at 2553 Silver Street, Philadelphia. During all that time he was employed in the City of Philadelphia. He was registered in the City of Philadelphia in September, 1920, having signed the necessary papers alleging that he was a, resident of that City. He voted there in May, 1920, and in November, 1920. It does not appear that he spent any time in Lancaster at all. He was called in cross-examination, and instructed by his attorney not to answer very important questions that would have thrown light on his place of residence. He did not testify that he lived in Lancaster, but did say that he had his home at his sister's residence, No. 317 South Queen Street. From these facts we are satisfied as we have said that he was not a

John B. Brown v. Elizabeth A. Brown. resident of this County when he filed his libel, and has not been since then.

It appears, however, that a subpæna was served on the respondent, that she employed counsel who entered an appearance for her and filed a petition asking for a bill of particulars. This was subsequently withdrawn and libellant proceeded ex parte and obtained the decree complained of. The Act of March 13, 1815, page 286, Section 2, requires the libellant to present his libel in the Court of Common Pleas of the proper county where the injured party resides. This has subsequently been amended so that it may be presented in the Court of Common Pleas of the county where the respondent resides. The respondent does not live in this county.

It has been decided, however, in Newbold's Appeal, 2 W. N. 472, that if a respondent, without objection, comes into the Court where the libel has been filed, even though it is not the county where the libellant or respondent resides, the Court will have jurisdiction. In Nagle . Nagle, 3 Grant 155, the libel was filed in a county other than that wherein it should have been filed under the Act of 1815. The respondent entered an appearance, and filed an answer which was subsequently withdrawn. A decree of divorce was entered and a petition filed to vacate it on the ground of want of jurisdiction of the Court. In delivering the opinion, Chief Justice Lewis said: “What is this but the trial of a local suit in the wrong county? Conceding for the argument, but without deciding the point, that the wife ought to have filed her libel for divorce in the county where her husband resides, the right of the husband to a trial in that county was a personal convenience, which he might waive. The objection touches his privileges rather than the jurisdiction of the court, for the latter extends over subject-matter of divorces. In this case the service of the subpæna was accepteed by the husband without objection, and an answer was filed denying the allegations of the libel, and praying that it may be dismissed with costs for that reason. A replication to his answer was also accepted, and issue joined upon it by the husband. In this condition the cause was continued for more than two years. When the Court was about to proceed to the trial, the answer was withdrawn, and a plea to the jurisdiction was filed. The plea is not on the paperbook and it is alleged that it has been lost. We have, therefore, no means of knowing what facts were set forth in it. If it contained nothing but an allegation that the parties resided in Berks County at the time of the injury, and that the libellant has ever since resided in Schuylkill County, it was properly overruled. After delaying her for so long a period of time, and putting her to the trouble of preparing her cause for trial in Schuylkill County, it would have been grossly unjust to turn her out of Court on such an objection."

We are of the opinion from these authorities that even though this Court had no jurisdiction to have entertained the proceedings for a divorce in this case, it was given jurisdiction to decree a divorce by the respondent entering an appearance, and taking part in the proceedings. John B. Brown v. Elizabeth A. Brown. The second reason given is that the divorce was obtained by collusion between the parties. She alleges that the libellant called on her, after her attorneys had asked for a bill of particulars in the case, and told her that he wanted to obtain a divorce and would re-marry her as soon as he had obtained it, that it was known that he had applied for it, and if he withdrew the proceedings he would be made an object of ridicule, and it was on that account that he desired to proceed with it to the end. Upon this representation she instructed her attorneys to withdraw their appearance and take no further action in resisting the divorce.

Section 2 of the Act of 1815, supra, provides that an affidavit to the libel must show that the facts are true and that it is not made out of levity or by collusion between the libellant and respondent. In Liem v. Liem, 5 Kulp 178, Judge Rice decided that an order to set aside a decree in divorce should not be granted on the allegation that libellant had paid the respondent one hundred dollars on condition that she would not oppose the application for divorce nor make defense to it, unless it was shown that such collusion was made before the petition was filed. It was shown that the money was paid a considerable time after the filing of the petition. In Kuhn v. Kuhn, 65 Pittsburgh 398, it was decided that a divorce will not be vacated when there was an appearance by the respondent, a bill of particulars asked for, and the only allegation to set aside is that the testimony was false and perjured.

In Field v. Field, 67 Sup. 355, where two applications were made to vacate a decree in divorce, Judge Williams said: “ The first petition did not set up collusion, and the second clearly alleged it. But the agreement alleged by the petitioner to furnish consideration for his acquiescence in the divorce is contrary to public policy. Kilborn t. Field, 78 Pa. 194, Mathiot's Est., 243 Pa. 375. It is clear that petitioner was not entitled to relief even if a fraud was committed. His prayer was addressed to the conscience of a chancellor and his petition convicts him of being a party to and a sharer in the results of the fraud. He does not come into court with clean hands and is not entitled to relief: Miltimore v. Miltimore, 40 Pa. 151."

While it is true that the prayer of the petition was refused in that case, partly because of the laches of the petitioner in applying to have the decree vacated, the reasoning applies with equal force to the position of the petitioner here. She does not come into Court with clean hards. She entered into an agreement which was contrary to public policy, viz. : to not resist her husband's application to obtain a divorce. We do not think, therefore, that the petitioner has shown any reason why the decree entered in this case should be opened, and vacated, and we therefore discharge the rule to show cause why it should not be done.

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