This conclusion makes it unnecessary for the | ployment, was struck by a box car shifted in the court to determine the question of fact, whether yard late at night without lights or a brakeor not this paving of "Cottage place' was an man, at a point where there was neither a original paving of the street for which the lot crossing nor path and the employé's presence owners are liable, or whether it was only a re- could not have been anticipated, is insufficient paving of a street which had been previously to authorize a recovery of damages. adopted and paved in former years by the city of York, for which repaving the plaintiffs in this case would not be liable. The dismissal of this bill does not prejudice the rights of the plaintiffs to defend in any action, or proceedings at law, which the city of York may institute to enforce its municipal liens. The lower court dismissed the bill without prejudice to plaintiff's right to make defense in any other action or proceeding which might be instituted by the city of York to enforce the paving claims in question. Plaintiffs appealed. Argued before BROWN, C. J., and MES TREZAT, POTTER, MOSCHZISKER, and FRAZER, JJ. Frank M. Bortner, Jere S. Black, and J. Thurman Atkins, all of York, for appellants. John L. Rouse, City Sol., of York, for appellees. PER CURIAM. The decree of the court below is affirmed, at appellants' costs, on the opinion of the learned chancellor, dismissing their bill. (254 Pa. 494) [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 971; Dec. Dig. 278(18).] Appeal from Court of Common Pleas, Philadelphia County. Action of trespass by Edward B. Stoker, by his father and next friend, Charles B. Stoker, and another, against the Philadelphia & Reading Railway Company. From a judgment for defendant n. o. v. after verdict for plaintiffs for $500, plaintiffs appeal. firmed. Af STOKER et al. v. PHILADELPHIA & R. employed for about one month, as an engine Where the statement of claim in an action for injuries to an employé alleges a violation of acts of Congress and also negligence at common law the fact that there is no evidence of a violation of the acts of Congress does not prevent a recovery on the allegations of negligence at common law supported by the evidence. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 870; Dec. Dig. 264(10).] 2. DISMISSAL AND NONSUIT 3 RY. CO. wiper in the roundhouse. Upon the night (Supreme Court of Pennsylvania. July 1, 1916.) in question he worked outside, with an en1. MASTER AND SERVANT 264(10)—INJU-gine hostler, until nearly daylight, when he RIES TO SERVANT ACTIONS ISSUES AND was sent by the hostler on an errand to the PROOF. roundhouse. On his return plaintiff crossed a number of switch tracks, and as he was about to step upon another track, he was struck by a box car that was being shifted, and was injured. In the statement of claim, defendant was charged with negligence in moving the cars without lights, or a brakeman upon them. It was also averred that the brakes on the cars were not used or WITH-operated by the engineer of the locomotive shifting the train, which it was alleged was in violation of certain acts of Congress, as supplemented by the order of the Interstate Commerce Commission of June 6, 1910. Negligence was also averred on the part of defendant, in not having a sufficient number of men in the crew, managing the cars that were being shifted, and in not promulgating and enforcing sufficient rules to govern the operation of shifting cars. It was finally averred that the negligence of which complaint was made was in violation of the laws of Pennsylvania and of the acts of Congress. [Ed. Note.-For other cases, see Pleading, Upon the trial, there was no evidence tending Cent. Dig. §§ 1370, 1371; Dec. Dig. ~406(8).] to show that the plaintiff was, at the time 4. MASTER AND SERVANT 278(18)-INJU- of the injury, in any way engaged in interRIES TO SERVANT CONTRIBUTORY NEGLIstate commerce, and his counsel abandoned GENCE. Evidence that an employé of a railroad, that claim, and said that they did not insist while crossing the yard in the course of his em- upon any liability under the federal statutes, [Ed. Note.-For other cases, see Dismissal and Nonsuit, Cent. Dig. § 4; Dec. Dig. 3.] 3. PLEADING 406(8) OBJECTIONS AND WAIVER-INCONSISTENT CAUSES. Under Practice Act May 25, 1887 (P. L. 271), requiring the plaintiff's declaration to consist of a concise statement of plaintiff's de mand, the objection that the statement of claim sets forth inconsistent causes of action is waived when not raised by demurrer. but would rely on the general relationship | 622, 66 Atl. 101; Burkholder v. Beetem, 65 between master and servant. The trial Pa. 496. judge refused points requesting binding in- In Missouri, Kan. & Tex. Ry. Co. v. Wulf, structions for defendant, and submitted the 226 U. S. 570, 33 Sup. Ct. 135, 57 L. Ed. 355, case to the jury, who found a verdict for the Ann. Cas. 1914B, 134, a question involving plaintiff. Upon motion of defendant's coun- a similar principle arose. In that case the sel, judgment was entered for defendant n. original petition alleged a cause of action o. v. on the ground that plaintiffs had de- based on a Kansas statute, which was recitclared on an alleged liability under certain ed. No reference was made to the federal acts of Congress regulating interstate com- statutes. Subsequently, but after the statute merce, but had failed to show that either of limitations had intervened, the petition the car which injured plaintiff was being used in interstate commerce, or that plaintiff himself was so engaged, at the time of the accident. [1, 2] The trial judge held that the averment that the acts and omissions of defendant, which were set forth as the cause of the accident, constituted negligence under the laws of Pennsylvania, was to be treated as surplusage and as without effect. It is clear that the statement set forth primarily a cause of action under the United States statutes, to which it refers. But counsel for appellant contend that the averment of facts, which, if proven, constitute negligence at common law, coupled with .the charge that such negligence was "contrary to laws of the state of Pennsylvania," sufficiently set forth a cause of action, and they aver that there was no reason why they could not abandon their claim under the federal statutes, and still be entitled to recover under the common law as recognized in this state. We think the point is well taken, as an examination of the statement shows that if all reference to interstate commerce, and the acts of Congress, should be stricken therefrom, there would still remain allegations of negligence on the part of defendant which, if properly proven, would constitute a good cause of action at common law. Where plaintiff's declaration or statement contains several counts each setting forth an independent cause of action, the plaintiff may withdraw any of such counts upon the trial and go to the jury on the others (McIntire et al. v. Westmoreland Coal Co., 118 Pa. 108, 11 Atl. 808; Smaltz v. J. B. Hancock & Co., 118 Pa. 550, 12 Atl. 464), or the trial judge may withdraw them from the consideration of the jury (Erie City Iron Works v. Barber et al., 118 Pa. 6, 19, 12 Atl. 411, and cases cited). was amended by adding an averment of liability under the acts of Congress. The amended petition, after reciting the facts, averred (226 U. S. 573, 33 Sup. Ct. 136, 57 L. Ed. 355, Ann. Cas. 1914B, 134): "That by virtue of both the laws of the state of Kansas, where the said Fred S. Wulf was States of America, a right of action is provided killed, and the acts of Congress of the United for injuries resulting in death in the manner and form and in the occupation that deceased was engaged in at the time of his death." The Supreme Court of the United States held that it was not error to permit the petition to be amended, because it was unnecessary to refer specifically to the acts of Congress, the facts averred being sufficient to disclose a cause of action under their provisions, and therefore recovery might have been had for the statutory liability under the original petition without the necessity of an amendment. Mr. Justice Pitney said (226 U. S. 575, 33 Sup. Ct. 137, 57 L. Ed. 355, Ann, Cas. 1914B, 134): "It is true the original petition asserted a right of action under the laws of Kansas, without making reference to the act of Congress. But the court was presumed to be cognizant of the enactment of the Employers' Liability Act [Act April 22, 1908. c. 149, 35 Stat. L. 65 (U. know that with respect to the responsibility of S. Comp. St. 1913, §§ 8657-8665)], and to interstate carriers by railroad to their employés injured in such commerce after its enactment it had the effect of superseding state laws upon the subject. Second Employers' Liability Cases, 223 U. S. 1, 53 [32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. Á. (N. S.) 44]. Therefore the pleader was not required to refer to the federal act, and the reference actually made to the Kansas statute no more vitiated the pleading than a reference to any other repealed statute would have done. * The change was in form * * It introduced no new or different cause of action, nor did * rather than in substance. * it set up any different state of facts as the ground of action, and therefore it related back to the beginning of the suit." [3] We do not regard the fact that the In the case at bar, it was not necessary averments in the statement are not separat- to amend, as the statement set forth facts ed into formal counts as making any essen- which constituted a cause of action under the tial difference. By the Practice Act of May laws of Pennsylvania. And when the evi25, 1887 (P. L. 271, § 3), it is provided that: dence failed to show that plaintiff was injur"The plaintiff's declaration shall ed while engaged in interstate commerce, he consist of a concise statement of the plain- was entitled to proceed under the state law, tiff's demand." The statement in the present which is superseded by the federal law only case complies with that requirement. If it in cases where the parties are engaged in is open to criticism for setting forth causes interstate commerce. In the case of Hench of action that are in any way inconsistent, v. Penna. R. R. Co., 246 Pa. 1, 91 Atl. 1056, that objection should have been raised by demurrer. Having pleaded to the statement, defendant must be held to have waived such L. R. A. 1915D, 557, Ann. Cas. 1916D, 230, cited by the court below, and by appellee, no claim was made under the common law or "If the action had been brought at common law or for the violation of a state statute, the question of the character of the commerce in which the decedent was engaged at the time of his injury would have been immaterial; but plaintiff elected to bring her suit under the acts of Congress, as she clearly had the right to do, and thus assumed the burden of making out a case under the federal statutes." was whether the evidence was sufficient to for moving cars. But if it be assumed that go to the jury on the question whether the there was some slight evidence of want of plaintiff's husband was engaged in interstate care upon the part of defendant, sufficient to commerce when killed. The negligence charg-carry that question to the jury, yet the proof ed was failure to provide automatic couplers, of contributory negligence upon the part of as required by the act of Congress of March plaintiff was so clear that the responsibility 2, 1893, 27 U. S. Stat. 531, c. 196 (U. S. Comp. of dealing with it was for the court. PlainSt. 1913, §§ 8605-8612). This would not con- tiff had crossed nine tracks, and was struck stitute negligence under the common law. by a moving car as he attempted to step upon Mr. Justice Elkin said (246 Pa. 4, 91 Atl. 1057, the tenth track. His own testimony shows L. R. A. 1915D, 557, Ann. Cas. 1916D, 230): that he knew the danger, for he says that he stopped, and looked and listened, when he was between the ninth and tenth tracks, and then stepped directly into the path of the oncoming car on the tenth track, or brought himself so near it, as to be struck by it, and thrown back on the ground between the ninth and tenth tracks. It is true that the plaintiff by way of explanation said that, owIn the case at bar, the allegation in the ing to the fog and darkness, the range of his statement is, not that defendant in its busi- vision was limited to five or ten feet, but this ness of a common carrier is limited to inter- was evidently conjecture, as to the distance. state commerce, but it is definitely averred The other witnesses, who were called to testhat defendant is in that business, "among tify for plaintiff, said that the light was others." This expression may fairly be taken sufficient to enable them to see for a considas an intimation that its business includes erable distance, varying from one square, other departments, such as intrastate com- or 20 car lengths, to three squares. But, merce. And when the words are considered giving to plaintiff the benefit of his own in connection with the allegation of facts statement, standing, as he says he did, just which would constitute negligence under the prior to the accident, between the ninth and laws of Pennsylvania, they are consistent tenth tracks, the light must have been quite with the suggestion of a cause of action un-sufficient to show the presence of the car, der the state law. When, at the trial, all when it was within a few feet of him, had claim of right to recover under the federal statutes was withdrawn, there remained in the statement, as we have found, enough to support a right of action under the state law. [4] Turning to the evidence, however, it is We can see no escape from the conclusion difficult to find therein anything sufficient to that the plaintiff, Edward B. Stoker, was support the charge of negligence against clearly guilty of contributory negligence in defendant. The accident happened at a stepping directly into the path of an onpoint in the railroad yards where there was coming car, or in placing himself so near neither crossing, nor path, and there is to it as to be injured thereby, and that if nothing to indicate that the presence of the trial judge had considered that question, plaintiff upon the switch tracks at that point he would have been in duty bound to so rule, was to have been anticipated by the other as matter of law. The entry of judgment employés, who were in charge of the switch- for defendant, non obstante veredicto, was ing operations. They had a right to presume therefore justified. that employés in the yard, familiar with the use of the tracks, would be on the lookout he been paying proper attention to his surroundings, when he stepped forward and brought himself into direct contact with the car, to his serious injury. The assignment of error is overruled, and the judgment is affirmed. (6 Boyce, 225) APPENZELLAR v. CONRAD, Judge, et al. (Supreme Court of Delaware. July 11, 1916.) Original petition by Paul Appenzellar for a. writ of prohibition against Henry C. Conrad, Associate Judge, resident in Sussex county, and others. On rule to show cause why the writ should not issue. Rule discharged, and peti tion dismissed. On the thirty-first day of March, 1911, the Governor of the state of Delaware approved an act which had theretofore been passed by the General Assembly of the state of Delaware, entitled "An act to amend an act entitled, 'An act providing a general corporation law' (being chapter 273, volume 21, Laws of Delaware, as amended) by authorizing the organization of boulevard corporations," which said last mentioned act is chapter 189, volume 26, Laws of Delaware (article 10, chapter 65, Rev. Code 1915). On the sixteenth day of October, 1911, Thom. as Coleman du Pont, Lewis L. Dunham, Frank M. Williams, Sidney H. Henry, and Paul E. Wilson, under authority of said last mentioned act, filed in the office of the Secretary of State of the state of Delaware articles of association, whereby was created a corporation by the name of "Coleman du Pont Road, Incorporated," which, by its said articles of association, disclosed its object and purpose. The corporation organized the same day, and adopted a resolution, for which see Clendaniel v. Conrad et al., 3 Boyce, 555, 83 Atl. 1036, Ann. Cas. 1915B, 968, and proceeded to make surveys, etc., as stated in that case, passing through lands now of the said Paul Appenzellar. On the eighteenth day of March, 1916, the said corporation, having previously given the notice prescribed by said act, presented a petition to the said Associate Judge for the purpose of condemning the right of way for its said boulevard through the lands of the said Appenzellar, wherein the said corporation, inter alia, did aver as shown in the Clendaniel Case, and in which said petition the said corporation did likewise aver that it "intends in good faith to complete all of the said several public utilities, for which it is necessary to take said land, as aforesaid, and to operate the same, or cause the same to be completed and operated." At the time of filing said petition, and subsequent to the filing thereof, the said Appenzellar, through his counsel, challenged the jurisdiction of the said Associate Judge to entertain said petition or take any action thereon, upon the ground that the statute by which said proceeding is authorized, to wit, article 10, chapter 65, Rev. Code 1915, is unconstitutional and void and therefore conferred no jurisdiction upon said Associate Judge in the premises. This objection of the said counsel for said Appenzellar was overruled by the said Associate Judge and the motion of the said Appenzellar's counsel to dismiss the said petition was denied and the said Associate Judge adjourned further action on said petition until the eighth day of April, 1916, for further proceedings thereon according to law. Subsequently, on the fifth day of April, 1916, the said Appenzellar, through his counsel, filed a petition in this court, duly verified, in substance as follows: * First. That the said Paul Appenzellar is and since, etc., has been seised in his demesne as of fee of that certain tract or parcel of land situated, etc. "Second. That Thomas Coleman du Pont, Lewis L. Dunham, Frank M. Williams, Sidney H. Henry and Paul E. Wilson claim and pretend to be a boulevard corporation of the state of Delaware, by the name of Coleman du Pont Road, Incorporated, by virtue of a paper writing filed in the office of the Secretary of State of the state of Delaware, on, etc., purporting to tended survey is, etc. such corporation as aforesaid, intend to acquire "Fourth. That the said, etc., assuming to be dred (200) feet throughout its length from a a strip of land extending at a width of two hunpoint at or near, etc., and across the aforesaid tract or parcel of land of the said Paul Appenzellar. poration as aforesaid, claim to be vested under such corporation as aforesaid, in execution of "That at the time of the presentation of said petition, the said Paul Appenzellar, by and through his counsel, moved the said Honorable Henry C. Conrad, Associate Judge as aforesaid, to dismiss the said petition and to refuse to assume jurisdiction to appoint freeholders as prayed for therein, but that the said Associate Judge refused said motion and assumed jurisdiction of the premises, under and by virtue of a pretended act of the General Assembly of the state of Delaware, hereinafter referred to, and adjourned the cause to, etc., on which day he proposes to appoint freeholders as prayed for. A copy of the said petition and of the motion to dismiss the same and of the order of the said Associate Judge refusing said motion are hereto attached marked, etc. "Sixth. That the filing of the paper writing, purporting to be articles of association of etc., as aforesaid, and the depositing of the pretended survey of a section or portion of the route of the pretended boulevard as aforesaid, and the presenting of the petition for condemnation as aforesaid, were done by the said, etc., under color of a pretended act of the General Assembly of the state of Delaware entitled 'An act to amend an act entitled "An act providing a gen; eral corporation law" (being chapter 273, volume 21, Laws of Delaware, as amended) by authoriz ing the organization of boulevard corporations,' which the said, etc., allege was passed by the General Assembly of the state of Delaware, at its biennial session held in the year, etc., and allege was approved by the Governor of said state on, etc., and were without any other warrant or authority. "That the Honorable Henry C. Conrad, Associate Judge as aforesaid, has assumed jurisdiction in the matter of the petition for condemnation aforesaid by virtue of the provisions of the said pretended act of the General Assembly of the state of Delaware and under no other "Fifteenth. Undertook to authorize the exercise of the power of eminent domain for uses which were not public. "Sixteenth. "Seventeenth. warrant or authority whatever. The said pre- | consent of the owners thereof for private purtended act of the General Assembly of the state poses. of Delaware, chapter 189, volume 26, Laws of Delaware, is made a part of this petition. "Seventh. That the said, etc., allege that they, acting as such corporation as aforesaid, intend Undertook to authorize to use in the construction of a road for vehicu- the taking of private property by eminent dolar travel, and its accessories, to be deeded to main against the will of the owners thereof, the state of Delaware, as in said pretended act without requiring the same to be devoted to any is provided, a small portion of the aforesaid public use. two hundred (200) feet wide strip of land, exUndertook to authortending from a point at or near, etc., and ex-ize the taking of land by eminent domain to be tending through and across said tract or parcel held for an indefinite period without devoting of land of Paul Appenzellar as aforesaid, which the same to any public use. small portion is to extend throughout the length of said strip of land at a width of forty feet. "That, protesting that the said small portion of the strip of land is not for, and is not intended to be devoted to, any public use, the said Paul Appenzellar alleges that the said, etc., are seeking to acquire the whole of the residue of said strip of land and to condemn various portions thereof, without having formulated any plan to devote the same to any public use, and without having determined to construct thereon any public utility, but on the contrary are seeking to acquire the aforesaid residue with only a general intention to construct thereon one or more public utilities at some indefinite future period, or to dispose of the said residue through sale of one or more of the alleged franchises of the alleged corporation in case the said Thomas Coleman du Pont and his associates shall in the future become convinced that such construction or such sale will be remunerative to them, otherwise to hold the same without any public utility thereon. "Eighth. That the said, etc., assuming to act as such corporation as aforesaid intend to hold for an indefinite period without devoting the same to any public use, the aforesaid residue of the strip of land aforesaid, which residue extends at a width of one hundred and sixty (160) feet from a point at, etc., and includes the portion of the tract or parcel of land of the said Paul Appenzellar which is sought to be condemned as herein before set forth. "Ninth. That the portion of the tract or parcel of land of the said Paul Appenzellar sought to be condemned as aforesaid, is not required by the said, etc., or by the pretended corporation called Coleman du Pont Road, Incorporated, for any public use. "Tenth. That all the acts of the said, etc., hereinbefore set forth, and the action of the said Henry C. Conrad, Associate Judge as aforesaid, were without warrant or authority of law. "Eleventh. That the said pretended act of the General Assembly of the state of Delaware is in conflict with and in contravention of the Constitution of the United States. "Twelfth. That the said pretended act is in conflict with and in violation of the provisions of section 1 of article 14 of the amendments of the Constitution of the United States of America, which declares: 'Nor shall any State deprive any person of life, liberty or property, without due process of law.' "Thirteenth. That the said pretended act is in conflict with and in contravention of the Constitution of the state of Delaware. "Fourteenth. That the said pretended act undertook to authorize the taking of private property by eminent domain without the "Eighteenth. Your petitioner further represents and states that he has been put to great expense by reason of the acts, without right, of the said, etc., and may be put to still further expense by the proposed action of the Honorable Henry C. Conrad, Associate Judge as aforesaid, in assuming jurisdiction of the petition in the condemnation proceedings aforesaid, and be involved in tedious and unnecessary litigation. "Wherefore, your petitioner prays that a writ of prohibition may issue out of and under the seal of this honorable court, prohibiting and enjoining the said honorable Henry C. Conrad, Associate Judge of the state of Delaware, from proceeding further to hear and entertain the petition for the appointment of five freeholders to view the tract or parcel of land aforesaid, and to assess damages as aforesaid, and prohibiting and enjoining the said, etc., from further proceeding before the said Honorable Henry C. Conrad, Associate Judge as aforesaid, in the premises, and for such other relief as to your honors shall seem meet and the circumstances of the case require. * * Upon the petition, this court by order of the Chancellor, issued a rule upon the above named defendants to show cause why the writ of prohibition prayed for should not issue, and made such rule returnable June 20, 1916, it being the regular term. The Associate Judge filed his answer or return, which is in effect but a certification from him to this court of a true copy of the record of the said proceeding before him. The other defendants also filed their return or answer, under oath, wherein they do aver their intention, and the intention of Coleman du Pont Road, Incorporated, to devote the whole of said boulevard, two hundred feet in width, to the public use, and do set forth a plan for the development of the whole of said boulevard, adopted by said corporation, and state the manner in which the said corporation intends to devote said boulevard to the public use. Argued before CURTIS, Ch., PENNEWILL, C. J., and BOYCE, RICE, and HEISEL, JJ. Marvel, Marvel & Wolcott, of Wilmington, for petitioner. Robert H. Richards, of Wilmington, and Charles W. Cullen, of Georgetown, for respondents. Rule to show cause why a writ of prohibition should not issue, No. 6, June term, 1916. PER CURIAM. Upon the authority of the case of Clendaniel v. Conrad et al., 3 Boyce, 549, 83 Atl. 1036, Ann. Cas. 1915B, 968, the writ of prohibition prayed for is denied, the rule discharged, the petition dismissed, and the petitioner below ordered to pay costs. |