in throwing the intending passenger to the street and caused the injuries for which damages are claimed. On this branch of the case the defense was, that the plaintiff attempted to board a moving car, and, if so, there could be no recovery. The evidence on this controlling question is, to some extent, contradictory; but it was clearly for the jury, and it would have been error not to submit it." To the same effect is Faiser v. Phila. & Read. Ry. Co., Adv. Notes, p. V of Advance Reports, June 12, 1914. These and numerous other cases of like tenor conclusively determine the question that, in a case such as the one on trial, the facts must be submitted to the jury. It is also as firmly established that, "where the evidence is conflicting as to the material facts upon which the rights of the parties depend, the case is for the jury." See Myers v. Pittsburgh Railways Co., 242 Pa., 502. The testimony of the various witnesses was with care reviewed in the charge. What each one testified to on the material points of the case was called to the attention of the jury. They were also, after such a review, specifically told that, "if the jury, from all the evidence, find that Mrs. Lynch attempted to board the car while it was moving, or jumped off from the car while it was moving, then she cannot recover in this case." I do not think the defendant has any just cause to complain of the trial. The difficulty was most likely with the proof, for the conductor's story of this accident and its cause was at variance with that of every other witness called, and was most likely not believed by the jury. The reasons for a new trial cannot be sustained, and the rule is, therefore, discharged. Rule discharged. Clifton Evans v. 0. F. Brinkman. Judgment-Sci. fa. to revive-Affidavit of defense. On a scire facias to revive a judgment, no defense can be made, except matters arising subsequent to the judgment. If the objection be to the validity of the former judgment, the proper mode is to apply to have it opened. February Term, 1914, No. 8. C. P. of Lancaster County. Sci. fa. to revive judgment. Rule for judgment for want of a sufficient affidavit of defense. C. G. Bassler, for rule. July 11, 1914. Opinion by LANDIS, P. J. It appears, as an undisputed fact, that a suit was brought by the plaintiff against the defendant before an alderman, and judgment being there obtained, a transcript was entered in this Court, to August Term, 1899, No. 422. On January 10, 1914, a scire facias was issued to revive this judgment, and on January 29, 1914, an affidavit of claim was filed, which alleged that there was due thereon the sum of $250.00, with interest from November 15, 1899. The defendant, thereupon, filed an affidavit of defense, in which he averred that the plaintiff was to use the due bill, which was the foundation of the original suit before the magistrate, in part payment of a piano. While this may be so, and, when offered in the original suit, might have been a good defense, it certainly cannot be presented as against the scire facias to re| vive. In Seymour v. Hubert, 92 Pa., 499, it was said by Mr. Justice Mercur that "it' may be conceded as a general rule that, in case of a scire facias to revive a judgment, no defense can be made, except matters arising subsequent to the judgment. The merits of the original judgment cannot be inquired into so as to admit a defense which might have been set up in the original suit. objection be to the validity of the former judgment, the proper mode is to apply to have it opened." In Lauer v. Ketner, 162 Pa., 265, it was held that, 66 on a sci, fa, to revive a judgment, no defense can be made except one that has arisen since the judgment." See, also, Philadelphia v. Peyton, 25 Sup., 350; Mellon . Sawyer, 31 Sup., 416. There being, then, no legal defense set forth in the defendant's affidavit of de fense, the rule for judgment is now made absolute, and judgment is ordered to be entered in favor of the plaintiff for the sum of $250.00, with interest from November 15, 1899, making the sum of $469.84. Rule made absolute. Tegal Miscellany. Mexico and the Monroe Doctrine. the United States on the American continent. . . . International law gives the Great Powers no more right in their individual capacity than the smallest and weakest of their fellows. But collectively they act on the questions over which they have gained control pretty much as a committee of a club would act in matters left to it by the rules of the club. . . . If it be true that there is a primacy in America, comparable in any way with that which exists in Europe, it must be wielded by the United States, and the United States alone. There is no room for that machinery of conferences, congresses, and diplomatic communications which play so large a The position as to the United States part in the proceedings of the Great and Mexico is of interest to stuents of Powers. The supremacy of a commitinternational law, as the outcome of the tee of states and the supremacy of a development of the Monrce Doctrine single state cannot be exercised in the and the assertion by the United States same manner. What in Europe is done of its primacy or over-lordship in the after long and tedious negotiations an New World. That position was asserted much discussion between the represenand maintained when in the boundary tatives of no less than six countries, can controversy between Great Britain and be done in America by the decision of Venezuela in 1895 the right of arbitra- the Cabinet discussing in secret in Washtion, on which the United States insisted, ington." Leaving the Monroe Doctrine was admitted and recognized. The entirely out of view, the note of the nature of the concession was not mis- United States will probably be regarded understood by Great Britain, as appears as justifiable under the generally recogfrom the following paragraph in a lead-nized principles of international law. AN ENGLISH REVIEW. ing article in the Times of November 19, 1896: "From the point of view of the United States, the arrangement is a concession by Great Britain of the most far-reaching kind. It admits a principle. that, in respect of South-American republics, the United States may not only intervene in disputes, but may entirely supersede the original disputants and assume exclusive control of the negotiations." The presentation of the recent note to Mexico is an assumption by the United States in the New World of the predominant position of the Great Powers of the Old World. Professor Lawrence has recently admitted as a matter of theory that "the Great Powers of -Law Times. Legal Majesty. "Now tell us," sternly demanded the young legal luminary whose brow overhung like the back of a snapping-turtle. addressing the cowering witness, "what was the weather, if any, upon the afternoon in question?"—Puck. Posting the Judge. Europe, as they are called, have grad- Judge-"Have you ever seen the prisually obtained such a predominant posi-oner at the bar?"" tion as to render untenable the proposition that there is no distinction between them and other sovereign states, and the position they hold in Europe is held by Witness—“ Never, your honor; but I've seen him when I've strongly suspectel he's been at it." -Boston Transcript. LANCASTER LAW REVIEW VOL. XXXI.] FRIDAY, SEPT. 11, 1914. [No. 45 Supreme Court. Cover, Appellant, vз. Conestoga Traction Co Damages for personal injury to brakeman-Fellow servant-Safety of appliances-Evidence. In an action against a trolley railway company by a brakeman employed by the defendant company to recover damages for personal injuries sustained by being jolted from the bumper of a freight car because of the sudden application of power on an attached car pushing it, a non-suit is properly entered, the accident being caused by the act of a fellow servant, the motorman, in the attached car. Although, in such case, the jolt caused the coupling between the cars to break, without which the plaintiff would not have been in jured, this does not amount to intervening negligence by the defendant and take the case out of the fellow-servant rule, in the absence of proper evidence that the coupling was defective, out of repair, or not of a kind in general use. Appeal No. 315 of January Term, 1913, by Harvey B. Cover, plaintiff, from judgment of C. P. of Lancaster Co. to April Term, 1916, No. 37, entering compulsory non-suit. Action for damages for personal injury to plaintiff while acting as brakeman on a freight trolley-car of defend ant company. For opinion of the Court below, Landis, P. J., discharging rule to strike off the non-suit, see 30 LAW REVIEW, 257. On the trial the Court below disallowed, under objection and exception, the following questions asked of George C. Shimp, a witness for the plaintiff. "MR. MONTGOMERY: Q. Why do they weld them on?" [2] "MR. MONTGOMERY: Q. It has been testified that five tons of stone, approxi mately, were being moved with great force on a slight grade by a motor engine, and that the two half-inch bolts, where the plates or bars were bolted, at the jaw, broke off, and the coupling gave way. In your judgment, as an expert, was that a safe draw-head?" [4] “MR. MONTGOMERY: Q. Was that a reasonably safe appliance or coupling to do that work?" [5] "MR. MONTGOMERY: Q. Are two halfinch bolts, steel or wrought iron, of sufficient strength to hold those plates together, when five tons of stone, more or less, or about five tons of stone, are being driven on a slight grade, with great force?" [6] MR. MONTGOMERY: Q. Do you know what the effect of this construction would be, as described here, with the weights, that is to say, the weight of the two bars, or, rather, the size of the two bars, the size of the bolts and pins and draw-bar, with one bar extending entirely through the car would you know, from your experience, what the efficiency should be in the work that those cars might have to perform?" [7] MR. MONTGOMERY: Q. Can you tell, or have you had experience in what different draw-heads will do, if you know the construction, when in actual use, and you know the conditions of operation?" [10] 66 "MR. MONTGOMERY: Q. Would there, or not, be bound to be play where two iron plates were joined together by bolts. MR. MONTGOMERY: Q. Are you in a similar to those described here, or draw-position, in this case, from the evidence head?" [3] which you have heard describing in de tail the nature of this draw-head, its size, and the weight of the bolts and pins, to tell, from that testimony, what it ought to do?" [II] On appeal, the plaintiff assigned for error [1] the refusal of the Court below to strike off the judgment of non-suit, and [2 to 11] as above. C. E. Montgomery, for appellant. The coupling was of defective construction and its use was negligence. Finnerty . Burnham, 205 Pa., 305. Leonard v. Nazareth Cement Co., 49 Pa. Super., 535. McGeebren 7. Hughes, 217 Pa., 121. This was a proper subject for expert testimony, and the Court improperly rejected the evidence. The value of the testimony could have been brought out on cross-examination. Cummins 7. Insurance Co., 192 Pa., 359. Bier . Standard Mfg. Co., 130 Pa., 446. Ardesco Oil Co. v. Gelson, 63 Pa., 146. Del. & Ches. Steam Towboat Co. v. Starrs, 169 Pa., 36. Minequa Springs Imp. Co. v. Coon, 10 W. N. C., 502. W. U. Hensel, for appellee. The plaintiff produced no evidence to support the allegations of his statement as to improper construction, and a nonsuit was properly entered. Morton . Dennis, 5 Dist. Rep., 342. 201. Cunningham v. Smith, Admr., 70 Pa., | Pa., 426. 450. P. & L. Digest (supplement), vol. 4, 1630. Where an offer containing relevant and irrelevant matter is made as a whole. the court may reject all. 2 Pepper & Lewis C. R. A., Col. 2237. Bausbach 7. Reiff, 237 Pa., 494. Williams. Pittsburgh Rys. Co., 50 Pa. Super., 478. Hyatt. Johnson, 91 Pa., 196. King v. Russell, 149 Pa., 361. Holland v. Rindregan, 155 Pa., 156. Baldwin 7. Taylor, 166 Pa., 514. An employer is not bound to furnish. the best or safest appliances, and therefore the fact that an accident could have been prevented does not prove negligence and the jury will not be allowed The testimony of the witness Schimp to find that the furnishing of appliances was properly excluded, as he lacked the such as are commonly used in the busi-necessary knowledge, but would not have ness is negligence. Pain v. Reese, 100 Pa., 301. affected the case if admitted. There was nothing to show a visible Bauman v. Best Mfg. Co., 234 Pa., 416. "Reasonably safe" means such as is in common use. Cunningham v. Fort Pitt Bridge Works, 197 Pa., 625. McGeehan . Hughes, 217 Pa., 121. Ford v. Anderson, 139 Pa., 261. Mixter . Imperial Coal Co., 152 Pa., 395. Clark . Garrison Foundry Co., Pa., 426. 219 Sandt v. North Wales Foundry Co., 214 Pa., 215. Hemshe v. Dobson, 22 Pa., 222. Simpson v. Pittsburgh Locomotive Works, 139 Pa., 245. Augerstein v. Jones, 139 Pa., 183. McAvoy v. Pa. Woolen Co., 140 Pa., 1. Alexander v. Penna. Water Co., 101 Pa., 252. The plaintiff assumed the risks of his employment. Clark . Best Mfg. Co., 243 Pa., 358. He was guilty of contributory negligence in standing on the bumper when he did not have to stand. No evidence of defendant's negligence was produced. Kumke v. Best Kid Co., 244 Pa., 126. The accident was caused by a fellow servant of the plaintiff, and therefore there could be no recovery in any event. July 1, 1914. Opinion by STEWART, J. The plaintiff was a brakeman in the employ of the defendant company. At the time he met his injury, and for five days preceding, his work was braking cars employed in hauling crushed stone from quarries located along a siding out to the main track, whence they were to be carried to their destination. On this particular occasion a loaded car was being hauled from the quarries by one of defendant's motors to which was attached an unloaded car. The design was to remove the loaded car and replace it with the empty car with the empty car so that the latter might receive its freight. This could. only be done by first hauling both cars out of the siding to the main track and there shifting them. It was while this was being done that plaintiff received his injuries. While standing on the bumper of the empty car engaged in uncoupling it from the loaded car so that it could be returned to the quarries, the motorman, after starting to shift, applied extra power to his motor in order to carry the loaded car a distance which would permit the unloaded car to return on the siding to the quarries. This application of additional power produced a sudden violent jar, and at this moment, and in consequence, plaintiff fell between the two cars and was injured. Two theories were advanced with respect to the cause of the accident. That contended for by plaintiff was that his fall was occasioned by the breaking of the iron bolts which were used to clamp together the upper and lower bars through which the coupling-pin was dropped. The explanation advanced by defendant was that plaintiff was thrown between the cars by the sudden jar produced by the application of the higher power. It is not disputed that an operating cause of the accident was the sudden violent jar produced by the act of the motorman. It was that force which broke the bolts of the coupling; the cars were separated in consequence of the breaking of the bolts, and without the separation plaintiff would not have been injured. Observing this natural sequence, the happening of the accident unquestionably can be referred to the act of the motorman, a fellow-employee of plaintiff; and this was unquestionably the proximate cause, except as the case shows some intervening negligence on the part of the defendant without which the accident would not have happened. The effort on the part of the plaintiff was to show intervening negligence in the defendant in that the coupling between the cars was improperly constructed and unsafe by reason of the bolts used in its construction being insufficient in size, weight and strength; |