The several county courts having adjourned out of respect to the memory of KENNETH MCINTOSH, Esq., on being advised of his death, which sad event took place on the morning of May 18, 1883, the members of the Allegheny County Bar held a meeting in Common Pleas, No. 2, on Saturday, May 19th, to take action relative to his death.

On motion of W. D. Moore, Esq., Hon. THOS. EWING was called to the chair to preside.

The Vice-Presidents chosen were: Hon. W. J. White, Hon. John M. Kirkpatrick, Hon. Edwin H. Stowe, Hon. F. H. Collier, Hon. John H. Bailey, Hon. W. G. Hawkins and Hon. J. W. Over.

vailed upon to undergo the confinement of his chamber. He received the very tenderest care, and medical skill contributed all that could be devised, but in vain. Born near Wellsville, Ohio, in 1846, he studied first at Westminster College, subsequently at Jefferson College, Canonsburg, and finally graduated at Harvard with distinguished honors, winning the historical prize and standing high in the class of 1870 as an accomplished 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, Westminster 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 subject from a legal stand-point. The work was adopted as a text-book at that and other institutions. He came to Pittsburgh in 1872, and entered the office of R. B. Carnahan, 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

associated with T. M. McFarland, Esq. In 1878 he mar

ried Freddie, a daughter of Mr. Cochran Fleming, of Sewickley. Mr. MCINTOSH was one of those instrumental in having the new borough of Osborne created out of Sewickley, and was elected its first burgess. He stood well ornate pleader, he was very successful in his cases before juries. His practice, however, was principally that of counselor, and he was entrusted with the management of quite a number of large estates. As illustrating the repute in which he was held by his brother attorneys, it may be stated that they resorted to him as final authority on disputed points of history. He was equally at home in the ancient and modern classics. He was methodical in his habits, and the personification of promptness in keeping his engagements, frequently reproving with mildness those who willfully failed to observe their promises. He was a strict member of the Presbyterian Church,

at the Bar for his mental attainments, and while not an

The Secretaries appointed were: Thos. D. worshipping while in this city at the Third or at SewickCarnahan, E. Edgar Galbreth, Thos. M. McFarley at Dr. Bittinger's Church. His wife and bright little land, Chas. F. McKenna, Sam. M. Taggart and four-year-old son have the sympathy of all who knew W. S. Miller, Esqs.

Mr. Moore called the attention of the meeting to an article which appeared in the Evening Leader of May 18, 1883. He said that he had been spoken to by some of the friends of Mr. MCINTOSH to prepare a suitable minute for this meeting and had intended so to do, but on consultation with friends of the deceased, it was

thought better that the Bar should adopt the article mentioned, as it had evidently been written by a dear friend of the deceased. At the suggestion of the chairman Mr. Moore read the article, and moved its adoption. The article

reads as follows:

him. The widow is especially deserving of sympathy
by reason of the fact that within a few months time the
same disease has carried off a brother as well as a hus-
afternoon from his late residence at Osborne."
band. The funeral services will take place to-morrow

Pending the motion R. B. Carnahan, Esq., spoke of the untiring industry of the deceased as a student, both as to law and literature, his great power of concentration of mind and purpose to the work before him. Mr. Sol. Schoyer, Jr., said he had found in deceased, in all his professional intercourse with him, a lawyer of much ability, and a gentleman of refinement. Mr. E. Edgar Galbreth spoke of how intimately deceased and he had been associated nearly all their professional lives; how pure in conversation and temperate in habits, and exemplary in life deceased had always been. Hon. Judge

"This morning the community, and more especially the members of the Bar, were grieved to learn that KENNETH MCINTOSH, Esq., had departed this life shortly 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 within an hour or so before he breathed his last he retained consciousness. About two hours prior to that saddening event he called his family and friends to his side and bade them a most affectionate adieu. Mr. MCINTOSH was prostrated with typhoid fever about six weeks ago,

Stoner and J. H. Baldwin bore testimony to the Christian deportment and the many virtues of the life and character of deceased.

The minute as read by Mr. Moore was then

but such was his vigor of frame and fortitude adopted, and the courts were requested to place a copy of the same on their records, and the

that it was only at the very last moment he was pre

secretaries were directed to prepare a copy of the minutes of the meeting for the family of the deceased.

Supreme Court, Penn’a.

THE CITY OF ERIE v. MAGILL.

Plaintiff sustained her injury in the day time by slipping and falling on a ridge of ice and snow extending across the sidewalk from the building line into the street; it was three to four feet high on the inside line, then gradually sloping down. Held, that as she knew the dangerous character of this obstruction, and could have avoided it by going out into the street, it was contribu

tory negligence, and the court below should have directed the jury to find for the defendant. GORDON, STERRETT and TRUNKEY, JJ., dissent.

Error to the Court of Common Pleas of Erie county.

and falling upon a ridge of ice and snow extending across the sidewalk from the inside or building 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 gradually all the way across the sidewalk and into the street. The plaintiff herself testified that it was three or four feet high next the bill boards; that it was about eight inches above the sidewalk at the outer edge, and being asked the question: Q.-"How high was the crown of the ridge above the walk, north and south of it?" Answered.-"About eight inches high, I think, where I stepped upon it." She also said the ridge was about three feet across from one side to the other. The accident occurred in broad daylight, between three and four o'clock in the afternoon. Another of the plaintiff's 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.

But a single question is presented by this case. It is, whether, upon the undisputed evidence, the plaintiff contributed by her own negligence to the injury she sustained. The learned judge of the court below charged the jury, that "whatever may have been the condition of the street, or however dangerous, if the plaintiff knew of such danger, and could have avoided it by turning aside, or by going on the opposite side of the street, but, instead of doing so, chose to run the risk of passing over the dangerous spot, and so encountered the hurt and injury complained of, she would be guilty of what is called in the law contributory negligence, and your verdict should be for the defendant." That this was a correct statement of the law applicable to the case cannot be doubted, and is not questioned by the learned counsel for the plaintiff. The counsel for the city asked the court to instruct the jury that, under all the evidence, the verdict must be for the defendant. This the court declined to do, but left to the jury the question of the plaintiff's knowledge of the condition of the street on the day of the accident, and her ability to avoid it, thus: "The question is for you. What is the fact? Did she know of its condition on that day, and could she have avoided it? If so, she cannot recover." This action of the court constitutes the subject of the only assignment of error on the record. After a patient examination of all the testimony in the case, we have reached the conclusion that the defendant's seventh point should have been affirmed, and a verdict for the defendant directed.

The plaintiff sustained her injury by slipping

and extended out into the street across the walk; I don't think it was less than two and a half feet in the centre of the street; in the centre of the sidewalk; I think it extended for at least four feet into the street, and at an angle of not less than forty-five degrees."

It is not necessary to repeat the other testimony on this subject, as it is all of the same character. It is manifest, therefore, that the obstruction on the sidewalk was plainly visible, was conspicuous, both as to its extent and character, and necessarily obtruded itself upon the notice and attention of every passer along the walk. It was in no sense a slight or partially concealed defect, such as might have escaped the notice of one walking on the pavement; moreover, the plaintiff admits that she had often noticed the drift before the accident, in going to her brother's across Tenth street. The evidence is equally conclusive, and entirely undisputed, as to the character, the dangerous character, of the obstruction. It was not a mere ridge of snow, but had become icy on the surface and very slippery. The plaintiff testified: "I stepped upon a ridge of ice that ran across the sidewalk and my feet both slipped, and I was thrown with great force against a bank of ice behind me and injured severely." And again, being asked, "what was the condition of the walk where you fell?" She said, "It was icy, the snow having drifted around those bill boards and made a bank, and it had melted and frozen together until it became icy." Another witness for the plaintiff, Mr. Dunning, said: "It was hard and compact,” and “it was icy." Another witness, Mr. Moody, said: "At this time it was

that that walk was dangerous." Rev. J. H. Edwards, another of plaintiff's witnesses, said, speaking of the drift and slope, "that became very icy, and very dangerous, very rough on the side towards the bill boards, although some passed there; some went around in the street." Also: "It was impassible, and dangerous for ladies especially." And again: "At the time of the accident, and for a long time before, it was a very dangerous piece of walk there; driving people into the street, unless they preferred to run the risk of it." E. Linfoot, another of plaintiff's witnesses, testified: "I pass there on an average about three times or four times a day, and the walk was awful bad; I slipped down myself; we had to go out into the street about ten feet from the curb to get around the pile of snow that had accumulated there." Mrs. Humphrey, who was present when the accident occurred, and assisted the plaintiff to arise, testified: "Q.-What was the condition of the walk where the accident occurred? A.-There was a drift running across it at least three feet high, that was very glassy and icy, smoothly traveled, and where it began on the south side it was not so steep as it was on the north; it was a gradual slant on the south, much steeper on the north; it was a steep pitch on the north side; it was while going over the top of that where she fell;" *** there was a descent towards the street, but the drift extended into the street; it was impossible to pass without going into the street, without going over the drift; towards the street the snow was tramped

icy; I remember it from the fact that it was quite icy at the time," and also "it was very slippery indeed." Magill, another of plaintiff's witnesses, testified, that "there was a permanent drift along this walk from that time in January; certainly for a long time there was a very heavy drift of snow and ice." He also said, in reply to a question. "What was the surface? A.-It was comparatively smooth and icy; one had that feeling that footing was insecure on it; it was an old drift." Mrs. Magill, another of the plaintiff's witnesses, said: "Then the cold came, freezing the tracks, leaving a ❘ very irregular, icy surface on top of the drift." There was more testimony of the same kind, and none whatever in contradiction. Had there been no other testimony on this subject, we think there was quite enough to charge the plaintiff with full knowledge of the extent, the nature, and also the character of the obstruction, as hazardous and dangerous. But there was much more and equally conclusive testimony | on that subject also. Mr. Hoffman, a witness for the plaintiff, having said that the ridge was about two feet on the curb-stone, and that the pitches of the ridge were very steep, was asked, "What called your attention to the condition of the walk at that time?" And answered.-" Because mornings when we went to work we always had to go on the street; we could not go on the sidewalk." And again: "We went to work in the morning, and had to cross in the middle of the street." Moody, another of plaintiff's witnesses, said: "It (the ridge) crossed 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 shut off by this ridge, and the whole travel thrown into the street where the line of the drift crossed the curb-stone." And again: "It was so bad that I would not walk on it, either in going down or coming back, and on that block I walked in the street." W. E. Magill, after describing the drift, said: "Therefore it was, to my mind, a risky place; I always felt a little risky going up or coming down." And again: "The southeast pitch made it a source of anxiety when I walked along; I always felt a little anxious about myself as I walked along there, and the inclination was to drop down on Peach street instead of taking the risk of going on Tenth street." Mrs. Magill said: "I noticed also, from my window, that persons in coming from below Tenth street, would come on this drift and go around it even into the street; coming down street they often came to the top of this drift, and would stand; either way they turned it was slippery; and I have seen people stand there, and I have said to my sons,

smooth; it was like ice;" ***"it was trod-
den smoothly into the gutter; it was a gradual
slope, and glassy towards the street east."
Against this mass of testimony there was not
one word of contrary proof. It was absolutely
without question, upon undisputed proof, that
the drift of snow and ice which the plaintiff
attempted to cross was a serious and a palpable
obstruction in her way; that it presented a
smooth, slippery, icy surface upon which to
tread; that it was several feet in width, and
elevated above the pavement with inclining
sides, and that it was dangerous to pass over,
and so regarded by many of those who traveled
along that way. If it was right to instruct the
jury that the plaintiff could not recover if she
knew of the condition of the walk on the day
of the accident, and could have avoided it, it
was certainly the duty of the court to say so,
if the undisputed evidence proved those facts.
This has been many times decided: Pennsyl-
vania Railroad Co. v. Ogier, 11 Casey, 60; Cata-
|wissa Railroad Co. v. Armstrong, 2 P. F. Smith,

282; Pittsburgh & Connellsville Railroad Co. v. McClurg, 6 Id., 294; McKee v. Bidwell, 24 Id., 218; Goshern v. Smith, 11 Norris, 435; Baker v. Fehr, 1 Outerbridge, 70.

farther? A.-Only by going almost to the other side of the street. Q.-Across the roadway? A. Yes, sir; this water extended out some distance into the street." In view of this condition of the testimony, we think the case should have been taken from the jury and the defendant's seventh point affirmed. In other courts similar rulings have been made upon a similar state of facts, though of much less strength than these developed in this case. Thus, in the case of Wilson and Wife v. City of Charlestown, 8 Allen, 137, it was held, that a person who voluntarily attempts to pass over a sidewalk which he knows to be very dangerous by reason of ice upon it, when he might easily avoid it, cannot maintain an action against the town, which is bound to keep the way in repair, to recover for injury sustained by falling upon the ice. On page 138 the court say: "It is settled that if a person knows a way to be dangerous when he enters upon it, he cannot, in the exercise of

We do not know how the conclusion could be resisted that the plaintiff had knowledge of the dangerous character of the drift, from the testimony already referred to. The drift was before her eyes, with all the indications of its dangerous character plainly visible. She could not but be conscious of them. Had she been riding along the street in a carriage she might not have noticed it, but she was a foot passenger along this very walk, and the drift was in her path. She was compelled to cross it or go around it. She attempted to cross it, and it is contrary to all human experience to suppose that she did so without noticing the surface upon which she was treading. She does not pretend to say that she did not notice it. On the contrary, she gives a minute description of it, and specially 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 knowledge after the event. On the contrary, she expressly testifies, that she knew of the drift before; had often noticed it, and thought it was dangerous. She testified as follows: Q.-You speak of there having been a drift upon that sidewalk for some time before? A.-Yes, sir. Q. How do you know that was so? A.-In going across Tenth street to my brothers, I often noticed the snow lying there. Q.-Had you before this injury? A.-Yes, sir; I had noticed the bank there. Q.-You are certain about that? A. Yes, sir. Q.-What had called your attention to the bank of snow there; had it seemed to you dangerous? A.-Yes, sir. Q.-You had spoken about its condition and about its being dangerous? A.-I don't recollect; I remember I had thought of it. Q.-You had thought of it? A. Yes, sir.

It ap

We cannot regard this testimony as inconsiderate or unintended. In its substance it corresponds with all the other testimony in the case, and there is nothing in its delivery indicating that the witness was taken unawares. pears to us to be the frank and candid statement of a truthful witness, and made with deliberation. We are of opinion that all the testimony, including that of the plaintiff, clearly proves that the drift of snow and ice which she attempted to cross was of a dangerous character, and that this was known to her at the time of the injury. That she could have avoided it by going around it was conclusively proved by herself and her witnesses, and was disputed by none. She was asked: "Q.-Could you have avoided that walk by going towards the street

and if he shall sustain damage, look to the town for indemnity.”

In the case of City of Centralia v. Krouse, 64 Ill., 19, the court, in their opinion, say: "Having undertaken to go where he knew it was positively dangerous, it must be held that he did so at his own peril. It was in daylight, and he could see that the walk was full of dangerous holes, and was all covered with snow and ice, and it was culpable negligence in him to undertake to pass over it. It was probably dangerous for any one, and it was highly imprudent in one so far advanced in life to undertake to pass over the walk in its then condition, and covered as it was with snow and ice. *** It is not denied that he could have gone to the point where he desired to go by a safe route, by going only a short distance further. It was his plain duty to have taken the safer course. This he declined to do, but chose to go where he himself knew it was dangerous, and the injury that resulted must therefore be attributed to his want of proper care and caution."

In Durkin v. Troy, 61 Barb., 437, the court say: "Now the foundation of this plaintiff's cause of action, if he had one, is that this piece of ice was a dangerous obstruction to the passage of those using the sidewalk for that purpose, which the city was bound to remove, and the danger consisted in the liability of those who stepped upon it to slip and fall. The obstruction was, therefore, one to be avoided by those using the sidewalk and seeing or being able to see the ice; and if it could readily be avoided, the failure to avoid it, by one using the sidewalk, and plainly seeing the obstruction, must be ac