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Pittsburgh Legal Journal.

In Memoriam.

vailed upon to undergo the confinement of his chamber.

He received the very tenderest care, and medical skill ESTABLISHED 1853.

contributed all that could be devised, but in vain. Born

near Wellsville, Ohio, in 1846, he studied first at WestE. Y. BRECK, E. Y. BRECK, : : : : Editor.

Editor. minster College, subsequently at Jefferson College, Can

onsburg, and finally graduated at Harvard with disN. S., Vol. XIII. I. 0. S., Vol. xxx.

tinguished honors, winning the historical prize and No. 41.

standing high in the class of 1870 as an accomplished PITTSBURGH, PA., MAY 23, 1883.

classical scholar and linguist. His mind thus prepared, he early turned his attention to the study of the law, and such was his proficiency that his first alma mater, W minster invited him to deliver a course of lectures on constitutional law, which, at the suggestion of Rev. Dr. Jeffries, he published in book form, under the title of *Constitutional History, being a treatment of that sub

ject from a legal stand-point. The work was adopted as Action of the Allegheny County Bar on the Death of

a text-book at that and other institutions, He came to

| Pittsburgh in 1872, and entered the office of R. B. CarnaKenneth McIntosh, Esq.

| ban, Esq. The following year he became associated with
E. Edgar Galbreth, Esq., with whom he continued until

1876. From that time until the date of his death he was The several county courts having adjourned

associated with T. M. McFarland, Esq. In 1878 he marout of respect to the memory of KENNETH MC ried Freddie, a daughter of Mr. Cochran Fleming, of INTOSH, Esq., on being advised of his death, Sewickley. Mr. McIntosh was one of those instrumenwhich sad event took place on the morning of

tal in having the new borough of Osborne created out of May 18, 1883, the members of the Allegheny |

Sewickley, and was elected its first burgess. He stood well

at the Bar for his mental attainments, and while not an County Bar held a meeting in Common Pleas,

ornate pleader, he was very successful in his cases before No. 2, on Saturday, May 19th, to take action juries. His practice, however, was principally that of relative to his death.

counselor, and he was entrusted with the management On motion of W. D. Moore, Esq., Hon. Thos.

of quite a number of large estates. As illustrating the

repute in which he was held by his brother attorneys, it EWING was called to the chair to preside.

I may be stated that they resorted to him as final authority The Vice-Presidents chosen were: Hon. W. on disputed points of history. He was equally at home J. White, Hon. John M. Kirkpatrick, Hon.

in the ancient and modern classics. He was methodical Edwin H. Stowe, Hon. F. H. Collier, Hon. John

in his habits, and the personification of promptness in

keeping his engagements, frequently reproving with H. Bailey, Hon. W. G. Hawkins and Hon. J.

mildness those who willfully failed to observe their promW.Over.

ises. He was a strict member of the Presbyterian Church The Secretaries appointed were: Thos. D.

worshipping while in this city at the Third or at SewickCarnahan, E. Edgar Galbreth, Thos. M. McFar

ley at Dr. Bittinger's Church. His wife and bright little

four-year-old son have the sympathy of all who knew land, Chas. F. McKenna, Sam. M. Taggart and

him. The widow is especially deserving of sympathy W. S. Miller, Esqs.

by reason of the fact that within a few months time the Mr. Moore called the attention of the meeting same disease has carried off a brother as well as a hus

band. The funeral services will take place to-morrow to an article which appeared in the Evening

afternoon from his late residence at Osborne.” Leader of May 18, 1883. He said that he had

Pending the motion R. B. Carnahan, Esq., been spoken to by some of the friends of Mr.

spoke of the untiring industry of the deceased MCINTOSH to prepare a suitable minute for this meeting and had intended so to do, but on con

as a student, both as to law and literature, his sultation with friends of the deceased, it was

great power of concentration of mind and purthought better that the Bar should adopt the

pose to the work before him. Mr. Sol. Schoyer, article mentioned, as it had evidently been writ

| Jr., said he had found in deceased, in all his

professional intercourse with him, a lawyer of ten by a dear friend of the deceased. At the

much ability, and a gentleman of refinement. suggestion of the chairman Mr. Moore read the

Mr. E. Edgar Galbreth spoke of how intimately article, and moved its adoption. The article

deceased and he had been associated nearly all reads as follows:

their professional lives; how pure in conversa"This morning the community, and more especially the members of the Bar, were grieved to learn that KEN

| tion and temperate in babits, and exemplary NETH MCINTOSH, Esq., had departed this life shortly in life deceased had always been. Hon. Judge after last midnight, after a prolonged and painful ill White, A. C. Patterson, H. A. Davis, J. M. ness, at his residence at Osborne, near Sewickley. Until

Stoner and J. H. Baldwin bore testimony to within an hour or so before he breathed his last he retained consciousness. About two hours prior to that

the Christian deportment and the many virtues saddening event he called his family and friends to of the life and character of deceased. his side and bade them a most affectionate adieu. Mr. | The minute as read by Mr. Moore was then MCINTOSH was prostrated with typhoid fever about six weeks ago, but such was his vigor of frame and fortitude adopted, and the courts were requested to place that it was only at the very last moment he was pre- a copy of the same on their records, and the

Supreme Court, Penn'a.

secretaries were directed to prepare a copy of and falling upon a ridge of ice and snow extendthe minutes of the meeting for the family of the ing across the sidewalk from the inside or builddeceased.

ing line of the street to and beyond the curb and out into the street. This ridge, as described by the plaintiff and her witnesses, was from three to four feet high on the inside line, where some bill boards were erected, and sloped down grad

ually all the way across the sidewalk and into THE CITY OF ERIE V. MAGILL.

the street. The plaintiff herself testified that it

was three or four feet high next the bill boards; Plaintiff sustained her injury in the day time by slipping

that it was about eight inches above the side and falling on a ridge of ice and snow extending across the sidewalk from the building line into the street; it

walk at the outer edge, and being asked the was three to four feet high on the inside line, then grad

question: Q.-"How high was the crown of ually sloping down. Held, that as she knew the dan- the ridge above the walk, north and south of gerous character of this obstruction, and could have lit?! Answered.-"About eight inches high, avoided it by going out into the street, it was contributory negligence, and the court below should have di

I think, where I stepped upon it.” She also rected the jury to find for the defendant.

said the ridge was about three feet across from GORDON, STERRETT and TRUNKEY, JJ., dissent.

one side to the other. The accident occurred in

broad daylight, between three and four o'clock Error to the Court of Common Pleas of Erie

in the afternoon. Another of the plaintiff's county.

witnesses testified: “I don't think it (the drift) Opinion by GREEN, J. Filed December 30, / was less than four feet deep near the bill boards, 1882.

and extended out into the street across the walk; But a single question is presented by this case. I don't think it was less than two and a half It is, whether, upon the undisputed evidence, feet in the centre of the street; in the centre of the plaintiff contributed by her own negligence the sidewalk; I think it extended for at least to the injury she sustained. The learned judge four feet into the street, and at an angle of not of the court below charged the jury, that “what- less than forty-five degrees." ever may have been the condition of the street,' It is not necessary to repeat the other testior however dangerous, if the plaintiff knew of mony on this subject, as it is all of the same such danger, and could have avoided it by turn character. It is manifest, therefore, that the ing aside, or by going on the opposite side of the obstruction on the sidewalk was plainly visible, street, but, instead of doing so, chose to run the was conspicuous, both as to its extent and charrisk of passing over the dangerous spot, and so acter, and necessarily obtruded itself upon the encountered the hurt and injury complained of, notice and attention of every passer along the she would be guilty of what is called in the law walk. It was in no sense a slight or partially contributory negligence, and your verdict should concealed defect, such as might have escaped be for the defendant." That this was a correct the notice of one walking on the pavement; statement of the law applicable to the case can-moreover, the plaintiff admits that she had often not be doubted, and is not questioned by the noticed the drift before the accident, in going to learned counsel for the plaintiff. The counsel | her brother's across Tenth street. The evidence for the city asked the court to instruct the jury is equally conclusive, and entirely undisputed, that, under all the evidence, the verdict must as to the character, the dangerous character, of be for the defendant. This the court declined the obstruction. It was not a mere ridge of to do, but left to the jury the question of the snow, but had become icy on the surface and very plaintiff's knowledge of the condition of the slippery. The plaintiff testified: "I stepped street on the day of the accident, and her ability upon a ridge of ice that ran across the sidewalk to avoid it, thus: “The question is for you. and my feet both slipped, and I was thrown What is the fact? Did she know of its condition with great force against a bank of ice behind on that day, and could she have avoided it? If me and injured severely." And again, being so, she can not recover." This action of the asked, “what was the condition of the walk court constitutes the subject of the only assign- where you fell?” She said, “It was icy, the ment of error on the record. After a patient snow having drifted around those bill boards examination of all the testimony in the case, and made a bank, and it had melted and frozen we have reached the conclusion that the defend-together until it became icy.” Another witness ant's seventh point should have been affirmed, for the plaintiff, Mr. Dunning, said: “It was and a verdict for the defendant directed. | hard and compact," and "it was icy." Another

The plaintiff sustained her injury by slipping witness, Mr. Moody, said: “At this time it was

icy; I remember it from the fact that it was that that walk was dangerous." Rev. J. H. quite icy at the time," and also “it was very Edwards, another of plaintiff's witnesses, said, slippery indeed." Magill, another of plaintiff's speaking of the drift and slope, “that became witnesses, testified, that "there was a perma- very icy, and very dangerous, very rough on nent drift along this walk from that time in the side towards the bill boards, although some January; certainly for a long time there was a passed there; some went around in the street." very heavy drift of snow and ice." He also Also: “It was impassible, and dangerous for said, in reply to a question. “What was the ladies especially." And again: “At the time surface? A.-It was comparatively smooth and of the accident, and for a long time before, icy; one had that feeling that footing was inse- it was a very dangerous piece of walk there; cure on it; it was an old drift.” Mrs. Magill, driving people into the street, unless they preanother of the plaintiff's witnesses, said: “Then ferred to run the risk of it.” E. Linfoot, another the cold came, freezing the tracks, leaving a of plaintiff's witnesses, testified: “I pass there very irregular, icy surface on top of the drift." on an average about three times or four times a There was more testimony of the same kind, day, and the walk was awful bad; I slipped and none whatever in contradiction. Had there down myself; we had to go out into the street been no other testimony on this subject, we about ten feet from the curb to get around the think there was quite enough to charge the pile of snow that had accumulated there.” Mrs. plaintiff with full knowledge of the extent, the Humphrey, who was present when the accident nature, and also the character of the obstruction, occurred, and assisted the plaintiff to arise, tesas hazardous and dangerous. But there was tified: “Q.- What was the condition of the much more and equally conclusive testimony walk where the accident occurred ? A.–There on that subject also. Mr. Hoffman, a witness was a drift running across it at least three feet for the plaintiff, having said that the ridge was high, that was very glassy and icy, smoothly about two feet on the curb-stone, and that the traveled, and where it began on the south side pitches of the ridge were very steep, was asked, it was not so steep as it was on the north; it was “What called your attention to the condition of a gradual slant on the south, much steeper on the walk at that time?” And answered.-“Be- the north; it was a steep pitch on the north cause mornings when we went to work we al- side; it was while going over the top of that ways had to go on the street; we could not go where she fell;" * * * “there was a descent on the sidewalk." And again: “We went to towards the street, but the drift extended into work in the morning, and had to cross in the the street; it was impossible to pass without middie of the street." Moody, another of plain-going into the street, without going over the tiff's witnesses, said: “It (the ridge) crossed drift; towards the street the snow was tramped the curb-stone at this point, and the walk trav- smooth and glassy; across the gutter it was trod eled by parties coming down Peach street, was smooth; it was like ice;" * * * “it was trodshut off by this ridge, and the whole travel den smoothly into the gutter; it was a gradual thrown into the street where the line of the drift slope, and glassy towards the street east.” crossed the curb-stone." And again: “It was Against this mass of testimony there was not so bad that I would not walk on it, either in one word of contrary proof. It was absolutely going down or coming back, and on that block without question, upon undisputed proof, that I walked in the street." W. E. Magill, after the drift of snow and ice which the plaintiff describing the drift, said: “Therefore it was, attempted to cross was a serious and a palpable to my mind, a risky place; I always felt a little obstruction in her way; that it presented a risky going up or coming down." And again: smooth, slippery, icy surface upon which to "The southeast pitch made it a source of anxiety tread; that it was several feet in width, and when I walked along; I always felt a little elevated above the pavement with inclining anxious about myself as I walked along there, sides, and that it was dangerous to pass over, and the inclination was to drop down on Peach and so regarded by many of those who traveled street instead of taking the risk of going on along that way. If it was right to instruct the Tenth street.” Mrs. Magill said: “I noticed jury that the plaintiff could not recover if she also, from my window, that persons in com- knew of the condition of the walk on the day ing from below Tenth street, would come on of the accident, and could have avoided it, it this drift and go around it even into the street; was certainly the duty of the court to say so, coming down street they often came to the if the undisputed evidence proved those facts. top of this drift, and would stand; either way This has been many times decided: Pennsylthey turned it was slippery; and I have seen vania Railroad Co. v. Ogier, 11 Casey, 60; Catapeople stand there, and I have said to my sons, wissa Railroad Co. v. Armstrong, 2 P. F. Smith, 282; Pittsburgh & Connellsville Railroad Co. v. farther? A.-Only by going almost to the other McClurg, 6 Id., 294; McKee v. Bidwell, 24 Id., side of the street. Q.-Across the roadway? 218; Goshern v. Smith, 11 Norris, 435; Baker v. A.-Yes, sir; this water extended out some dis. Fehr, 1 Outerbridge, 70.

tance into the street." In view of this condition We do not know how the conclusion could be of the testimony, we think the case should have resisted that the plaintiff had knowledge of the been taken from the jury and the defendant's dangerous character of the drift, from the testi- seventh point affirmed. In other courts similar mony already referred to. The drift was before rulings have been made upon a similar state of her eyes, with all the indications of its danger- facts, though of much less strength than these ous character plainly visible. She could not developed in this case. Thus, in the case of but be conscious of them. Had she been riding Wilson and Wife v. City of Charlestown, 8 Allen, along the street in a carriage she might not have | 137, it was held, that a person who voluntarily noticed it, but she was a foot passenger along attempts to pass over a sidewalk which he this very walk, and the drift was in her path. knows to be very dangerous by reason of ice She was compelled to cross it or go around it. upon it, when he might easily avoid it, cannot She attempted to cross it, and it is contrary to maintain an action against the town, which is all human experience to suppose that she did bound to keep the way in repair, to recover for so without noticing the surface upon which she injury sustained by falling upon the ice. On was treading. She does not pretend to say that page 138 the court say: “It is settled that if a she did not notice it. On the contrary, she person knows a way to be dangerous when he gives a minute description of it, and specially enters upon it, he cannot, in the exercise of points out the elements of danger that were ap- ordinary prudence, proceed and take his chance, parent. She does not say that she acquired this and if he shall sustain damage, look to the town knowledge after the event. On the contrary, for indemnity." she expressly testifies, that she knew of the drift. In the case of City of Centralia v. Krouse, 64 before; had often noticed it, and thought it was Ill., 19, the court, in their opinion, say: “Havdangerous. She testified as follows: Q.—You ing undertaken to go where he knew it was speak of there having been a drift upon that positively dangerous, it must be held that he sidewalk for some time before? A.–Yes, sir. did so at bis own peril. It was in daylight, and Q.-How do you know that was so? A.-In he could see that the walk was full of dangerous going across Tenth street to my brothers, I often holes, and was all covered with snow and ice, noticed the snow lying there. Q.-Had you and it was culpable negligence in him to underbefore this injury ? A.-Yes, sir; I had noticed take to pass over it. It was probably dangerous the bank there. Q.—You are certain about that? for any one, and it was highly imprudent in A.-Yes, sir. Q.-What had called your atten- one so far advanced in life to undertake to pass tion to the bank of snow there; had it seemed over the walk in its then condition, and covered to you dangerous ? A.-Yes, sir. Q.--You had as it was with snow and ice. * * * It is not spoken about its condition and about its being denied that he could have gone to the point dangerous ? A.-I don't recollect; I remember where he desired to go by a safe route, by going I had thought of it. Q.-You had thought of only a short distance further. It was his plain it? A.-Yes, sir.

duty to have taken the safer course. This he We cannot regard this testimony as inconsid declined to do, but chose to go where he himself erate or unintended. In its substance it corre knew it was dangerous, and the injury that responds with all the other testimony in the case, sulted must therefore be attributed to his want and there is nothing in its delivery indicating of proper care and caution." that the witness was taken unawares. It ap- In Durkin v. Troy, 61 Barb., 437, the court pears to us to be the frank and candid statement say: “Now the foundation of this plaintiff's of a truthful witness, and made with delibera- cause of action, if he had one, is that this piece tion. We are of opinion that all the testimony, of ice was a dangerous obstruction to the passage including that of the plaintiff, clearly proves of those using the sidewalk for that purpose, that the drift of snow and ice which she at which the city was bound to remove, and the tempted to cross was of a dangerous character, danger consisted in the liability of those who and that this was known to her at the time of the stepped upon it to slip and fall. The obstruction injury. That she could have avoided it by | was, therefore, one to be avoided by those using going around it was conclusively proved by her- the sidewalk and seeing or being able to see self and her witnesses, and was disputed by the ice; and if it could readily be avoided, the none. She was asked: “Q.-Could you have failure to avoid it, by one using the sidewalk, avoided that walk by going towards the street and plainly seeing the obstruction, must be ac

counted negligence. If there was danger in contract, but it is evidence that the defendant thought walking over this piece of ice, and the plaintiff

he was wrong, and that he made a valid contract to

pay it back.” voluntarily and unnecessarily undertook to walk

Held, that this instruction was erroneous as tending to over it, and fell and broke his leg, I do not see mislead the jury. how he can meet the allegation that his own After the court has concluded charging the jury, and negligence contributed to the result, or avoid they have retired, it is entirely proper for the court to the conclusion that he must therefore fail to

recall them to give them any instruction which was

inadvertently omitted. recover damages of the city. Volenti non fit injuria." * * * “If the ice presented a danger

Error to the Court of Common Pleas, No. 1, ous obstruction, which the defendant was bound of Philadelphia county. to do away with, by removal or some other Case, by George M. Highley against William means, so that it was negligence on its part to J. Cox, to recover damages for alleged false and leave it on the sidewalk, it must follow that it fraudulent representations made by defendant was negligence on the part of the plaintiff vol- to plaintiff, whereby the latter was induced to untarily and unnecessarily to venture upon this purchase a lease. The action was begun by a dangerous obstruction, however carefully he capias. Plea, not guilty. might attempt to carry himself upon it. The On the trial the facts appeared from the eviduty of the passenger in such cases is to avoid the dence to be as follows: In October, 1879, the obstruction and not to encounter its dangers." plaintiff purchased of the defendant, through a

In Butterfield v. Forrester, 11 East, 60, Lord broker named Riggs, the balance of a lease of a ELLENBOROUGH, C. J., said: "A party is not livery stable for $234. On going to the stable to to cast himself upon an obstruction which has look at it before the sale the plaintiff had found been made by the fault of another, and avail | there one Ranalls, who had been in the employ himself of it, if he do not himself use common of defendant. According to his own testimony, and ordinary caution to be in the right." These they had no conversation, but the defendant principles are quite familiar, and could be sus- testified that the plaintiff told him when they tained, if necessary, by an extensive citation of were negotiating about the purchase that Ranauthorities, but that is not requisite.

alls said the stable belonged to him. The sale Judgment reversed. having been consummated, the plaintiff went GORDON, STERRETT and TRUNKEY, JJ., dis to the stable to take possession and ejected Ransent.

alls who still asserted his ownership. Plaintiff For plaintiff in error, Theo. A. Lamb, City then gave up possession to him. Solicitor.

It appeared from the testimony of Ranalls Contra, Messrs. J. W. Wetmore, L. S. Norton

and the defendant, that in the early part of and M. E. Dunlap.

September, 1879, the latter had sold the same

lease to the former for $300, on condition that a COX v. HIGHLEY.

third party would go his security. The terms of sale not having been complied with, Cox

negotiated the second sale to the plaintiff. The To support an action of deceit for false and fraudulent representations by a vendor it is necessary to show

plaintiff testified, under objection by defendant, that the representations were untrue, were known by “I saw Cox at the stable next day ; said I found the defendant to be untrue, were calculated to induce out that he had sold to some one else, and asked the plaintiff to act, and that he believing it, was in

him if he had not got in a hole. He said he duced to act accordingly. The representations must be both false and fraudulent.

saw it now. He said he would give the money A., representing himself to be the owner, sold a lease of back, and to meet him at Rigg's office. The a stable to B., who paid the consideration therefor. A. testimony as to the promise to refund was corhad made a prior sale of the same lease to a third party | roborated by that of several other witnesses. who was actually in possession of the premises at the time. It apeared, however, that this prior sale was

likewise admitted under objection. Exception. only conditional upon the vendee's giving security (First assignment of error.) which he failed to do. B., having given up possession, The defendant requested the court, inter alia, brought an action of deceit against A. On the trial he

to charge as follows: testified (under objection) that the defendant had after

3. If plaintiff knew of the claim of ownership wards promised to refund to him the consideration money paid.

made by Ranalls to the stable before he purHeld (reversing the judgment of the court below), that chased from defendant, then, under the pleadthe evidence was inadmissible.

ings in the case, the plaintiff cannot recover. In the above case, the court charged, inter alia, that "if

Answer.-This point is affirmed, if you find that the plaintiff gave up possession on the promise of defendant to pay the money back, that is a considera

he knowingly bought it. (Fourth assignment tion, Plaintiff cannot recover in this form for that of error.)

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