rial. It is perhaps true that an action of trespass could not be maintained in the latter case, because there would be no breaking of the close by the entry of any person or thing; but there would seem to be no reason on prin. ciple why an action of the case could not be maintained, when the injury is really of the same character and is caused by the same powers intentionally set in motion by the defendants, knowing that they will be projected through the earth and air, and may cause damage to the plaintiff's property. In such case one who thus causes dangerous forces to pass through another's property should be held liable for the damage directly resulting therefrom. And there is no more reason for requiring that negligence be shown in the one case than in the other. The tem says: "The fact that the defendant used in both cases, and the fact that it causes quantities of gunpowder, a violent and dan- stones or other débris to be thrown upon the gerous explosive, to blast out rocks upon his land in one case, and in the other only opown lot, contiguous to another person's, sit-erates by vibrations or concussions through uate in a large city, must be taken as an the earth or air, seems to us to be immateunreasonable, unusual, and unnatural use of his own property, which no care or skill in so doing can excuse him from being responsible to the plaintiff for the damages he actually did to her dwelling house as the natural and proximate result of his blasting. For an act which in many cases is in itself lawful becomes unlawful when by it damage has accrued to the property of another. And it would make no material difference whether that damage, resulting proximately and naturally from the act of blasting by the defendant, was caused by rocks thrown against Mrs. Colton's dwelling house or a concussion of the air around it, which had either damaged or entirely destroyed it. The defendant seems by his contention to claim that he had a right to blast rocks with gunpowder on his own lot in San Francisco, even if he had shaken Mrs. Colton's house to ruins, provid-porary character of the operations in the ed he used care and skill in so doing, and although he ought to have known that by such act, which was intrinsically dangerous, the damage would be a necessary, probable, or natural consequence. But in this he is mistaken." course of which dangerous forces are knowingly and intentionally created by a defendant and projected through the plaintiff's property, and the impossibility or grave difficulty of profitably improving the defendant's property otherwise, may be a good reason why a court of equity should not interfere by an injunction unless the resulting damage is very serious; but it is no good reason why the defendant should not be obliged to pay damages caused to others by his operations, as a part of the cost of improving his own prop The nonsuit was error. The plaintiffs' exception is sustained, and the cause remitted to the superior court for a new trial. In Fitzsimons v. Braun, supra, the facts were that a tunnel was being constructed under parts of the city of Chicago and explosives were used to loosen the rock. Simultaneously with the occurrence of explosions in the tunnel in the vicinity of the plaintiff's building there occurred shaking and vibra-erty. tion of the earth there, and the walls of plaintiff's building were cracked and injured. The court held that the plaintiff could recover. The court (page 539) says: "It would seem absurd that any refinement of reasoning as to nuisance per se or as to injury, consequential or by physical invasion, should be permitted to obstruct the natural justice of a rule which would make one, who chooses for his own convenience or profit to use agencies which in their probable and natural results will injure the property of others, answerable for loss occasioned by such injuries. Nor are authorities wanting which by analogy at least support the doctrine." The reasoning of these cases is more satisfactory to us than that of the Booth Case and those which follow it. We see no valid reason why recovery should be permitted for damage done by stones or dirt thrown upon one's premises by the force of an explosion upon adjoining premises, and not be permitted for damage resulting to the same property from a concussion or vibration sent through the earth or the air by the same explosion. There is really as much a physical invasion of the property in one case as there is in the other. The force does the injury (226 Pa. 319) JOHNS v. PENNSYLVANIA R. CO. (Supreme Court of Pennsylvania. Jan. 3, 1910.) 1. Master and SERVANT (§ 265*)-DEATH OF SERVANT-ACTIONS - BURDEN OF PROOFNEGLIGENCE. In an action for the death of a railroad brakeman, caused by the falling of a bridge, where it appeared that the bridge had been used by the railroad for 40 years, and there was no evidence of defective construction, nor that the bridge had become unsafe, the burden of showing negligence was on plaintiff; the maxim res ipsa loquitur not applying. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 877-889: Dec. Dig. § 265.*] 2. NEGLIGENCE (§ 121*)—RES IPSA Loquitur -NATURE OF DOCTRINE. The maxim res ipsa loquitur is an exception to the general rule that negligence is not to be inferred, but must be affirmatively proved, except in cases of absolute duty, or an obligation practically amounting to that of an insurer. [Ed. Note. For other cases, see Negligence, Cent. Dig. § 218; Dec. Dig. § 121.*] 8. MASTER AND SERVANT (8 270*)-DEATH Or | 42 Atl. 707. There was nothing in the cirSERVANT-ACTIONS-ADMISSIBILITY OF EVI- cumstances that amounted to evidence from DENCE CONDITION OF PLACE FIVE MONTHS which negligence could be inferred, and that AFTER INJURY. In an action for the death of a railroad brakeman caused by the falling of a bridge, evidence as to the condition of the foundation five months later was properly excluded where it appeared that conditions had changed in the meantime. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 917; Dec. Dig. § 270.*] 4. APPEAL AND ERROR (§ 1056*)—HARMLESS ERROR-EVIDENCE. relieved the plaintiff from the burden of proof. An offer was made to prove by a witness that he had made an investigation to ascertain whether the bridge had a substantial foundation, and had found that there was “no permanent foundation upon the location that had been lately occupied by the pier." The accident occurred in March. This It was not reversible error to exclude evi- witness had testified that because of the high dence that there was no permanent foundation water no examination could be made for sevupon the location that had been lately occupied eral weeks after the accident, and the examby the piers supporting the bridge; it not be-ination he made was in August, five months ing sufficient to show that the foundations which had withstood 40 years' use were defective, and that the fall of the bridge resulted from their giving way. [Ed. Note. For other cases, see Appeal and Error. Cent. Dig. 88 4187-4193; Dec. Dig. 1056.*] Appeal from Court of Common Pleas, Allegheny County. Action by Elizabeth C. Johns, by her next friend, James Anthony, against the Pennsylvania Railroad Company. From an order refusing to take off a nonsuit, plaintiff appeals. Affirmed. Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ. later, and that in the meantime there had been a change in the physical conditions by the action of the water, by the rebuilding of the bridge, and the dumping of stones in the bed of the stream. This offer was excluded. It was renewed with the addition that there had been no change in the conditions, as far as the foundations were concerned, between March and August. The second offer was excluded for the reason that the testimony would be inadequate to establish a defect in original construction. The ruling of the court on the offer as first made was clearly right, and we cannot say that the exclusion of the offer as finally made calls for a reversal. The witness had testified to facts which show Horace J. Miller, for appellant. M. W. ed that the result of his examination in AuAcheson, Jr., for appellee. FELL, J. The plaintiff's husband was a brakeman on the defendant's road and was killed in an accident caused by the falling of a bridge on which his train was passing. The bridge was about 80 feet in length, and the iron superstructure rested on abutments at its ends and a pier at the middle of the creek it spanned. The creek was ordinarily quite small, but at the time of the accident the water was unusually high, while the water in the Allegheny river nearby, into which it flowed, was low. This condition caused a very rapid current in the creek, and a strong pressure on one side of the bridge. whole structure, including the abutments and pier, was carried away, and a freight car loaded with cement was carried 75 yards down the stream. The bridge had been used by the defendant for 40 years, and there was no evidence of defective construction, or that the bridge had become unsafe. The gust could not be relied on as proof of the condition existing before the fall of the bridge and, if his testimony had come up to the offer, it would not have advanced the plaintiff's case. It would still have been barren of proof that the foundations which had withstood the floods of 40 years were defective, and that the fall of the bridge resulted from their giving way. The judgment is affirmed. (226 Pa. 332) HOLLIS v. UNITED STATES GLASS CO. In an action to recover for the death of an employé by the explosion of a boiler, the question of defendant's negligence is for the jury, where there is testimony that both the fendant's factory knew that the boiler was ungeneral manager and the superintendent of desafe. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1010-1050; Dec. Dig. § 286.*] Appeal from Court of Common Pleas, Allegheny County. The contention that the burden of disproving negligence was on the defendant cannot be sustained. The maxim res ipsa loquitur is an exception to the general rule that negligence is not to be inferred, but must be af- Action by Margaret A. M. Hollis against firmatively proved except in cases of absolute the United States Glass Company. Judgment duty or an obligation practically amounting for plaintiff, and defendant appeals. Afto that of an insurer. Stearns v. Ontario | firmed. Spinning Co., 184 Pa. 519, 39 Atl. 292, 39 L. R. A. 842, 63 Am. St. Rep. 807; East End See, also, 220 Pa. 49, 69 Atl. 55. Argued before FELL, BROWN, MESTRE ZAT, POTTER, ELKIN, and STEWART, JJ •For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes William M. Hall, for appellant. Rody P.1 Marshall, Thomas M. Marshall, and Robert G. Woodside, for appellee. POTTER, J. The appellant here complains of the refusal by the court below to enter judgment in its favor non obstante veredicto. The testimony on the part of the plaintiff was to the effect that he was driving westwardly on the west-bound track of the defendant company, and found it necessary to turn out to let a car pass him, which was approaching from the rear. He could not turn to the right because of obstructions, and therefore turned to the left upon the other, which was the east-bound track. Before doing so, he says he saw no car approaching upon that track. After the car behind him had passed, he immediately started to go back to the west-bound track, but before he could clear the east-bound track his wagon was struck by a car approaching from the west, and he was injured. The evidence is somewhat confusing, but we cannot say that the testimony of the plaintiff presents an impossible story. Counsel for appellant argue that plaintiff must have driven immediately in front of the car which struck him, when it was so close as to render the accident un PER CURIAM. A former judgment in this case was reversed because of the refusal of the court to withdraw a juror and continue the case, after objectionable remarks prejudicial to the defendant had been made by plaintiff's counsel in his argument to the jury. See 220 Pa. 49, 69 Atl. 55. But it was said in the opinion of this court that the case could not have been withdrawn from the jury, because there was testimony tending to show that both the general manager of the defendant's works and the superintendent of the factory where the accident happened had cause to know, notwithstanding the reports of inspection, that the boiler that exploded was unsafe. The testimony at the second trial was substantially the same in all material respects as that at the first trial. There are circumstances under which one using steam boilers must, of necessity, rely upon the certificate of a competent inspector; but such certificate will not be a protection, if, not-avoidable. Had this been the only reasonwithstanding it, he had knowledge of defects. McNeil Brothers Co. v. Crucible Steel Co., 207 Pa. 493, 56 Atl. 1067. Whether the plaintiff's husband knew or was chargeable with knowledge of the unsafe condition of the boiler was under the testimony also a question for the jury. The judgment is affirmed. (226 Pa. 316) able inference to be drawn from the testimony, the case should not have been left to the jury. But the theory of appellant in this respect is based upon a partial view only of the evidence and it takes into account only the estimate which was made by the plaintiff of the distance which he traveled upon the east-bound track, and which was clearly nothing more than a guess. Plaintiff did say that after turning out to let the car which was behind him pass, he thought he only traveled from 15 to 25 feet on the left-hand track until he was struck; but at the same time he said he traveled far enough upon that track to be overtaken and passed by the car upon the other track which he had just vaIn an action against a street railway com-cated. It is common knowledge that an orpany for injuries to a driver of a wagon struck by a car, evidence tending to show that the driver while turning back from one of the tracks to the other which he had shortly before left to let a car pass, saw no car approaching upon the track which he was turning into and that there was sufficient time for the motorman in charge of the car colliding with the wagon to slow up or stop, and avoid the collision, made a case for the jury. HOCHHEISER v. PITTSBURG RYS. CO. dinary car in itself is longer than the distance he gave as his estimate of the entire distance he traveled upon the left-hand track. and both the wagon and the car were moving while the car upon the right-hand track overtook and passed the wagon; so that an inference that he traveled upon the left-hand track for a distance equal to twice the length of the car, or more, while it was passing him, would not be unreasonable. Add to this the [Ed. Note. For other cases, see Street Railroads, Cent. Dig. §§ 243-246; Dec. Dig. § 117.*] Appeal from Court of Common Pleas, Al-fact, as testified to by both conductors, that legheny County. Action by Louis Hochheiser, by his next friend, Charles Kohut, against the Pittsburg Railways Company. Judgment for plaintiff, and defendant appeals. Affirmed. Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ. James C. Gray, Clarence Burleigh, and William A. Challener, for appellant. Joseph Stadtfeld, for appellee. the two cars met and passed each other be fore the collision, at a point not far from Twelfth street, and ample justification may be found for the inference apparently drawn by the jury that when the plaintiff entered upon the left-hand track he was far enough away, and the time was sufficient to admit of the motorman in charge of the east-bound car slowing up or stopping, in time to avoid the collision. The story of the occurrence, as given by the plaintiff, is at least not an impossible one. His guess as to the distance which he traveled upon the left-hand track, incapable of resisting the impulse of the was clearly not reliable; but his story of the moment, when the defendant fired the fatal manner in which he turned out to permit the shot, even though he intended to kill, he is passage of the car, and his action in cross-but guilty of manslaughter. Answer: If the ing from one track to the other and return-intention to kill exists, and the weapon was ing, and the relative position of the two cars selected and the deed committed, it would when they met and passed each other after the car on the right-hand track passed the wagon, and before the collision, all presented elements proper for the consideration of the jury, and from which they might reasonably have drawn an inference of negligence upon the part of the motorman in charge of the east-bound car. Our examination of all the evidence satisfies us that the trial judge was right in refusing to take the case from the jury, and in refusing to enter judgment non obstante veredicto, in favor of the defendant company. The judgment is affirmed. (226 Pa. 283) COMMONWEALTH v. LEE. (Supreme Court of Pennsylvania. Jan. 3, 1910.) 1. CRIMINAL LAW (§ 782*)—INSTRUCTIONS-INSANITY. In a murder case, it was error to charge that, to acquit on the ground of accused's insanity, the jury should be fully satisfied of his insanity; a preponderance of evidence showing such insanity being sufficient. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 1851; Dec. Dig. § 782.*] 2. HOMICIDE (§ 307*)-INSTRUCTIONS-REDUCING CRIME TO MANSLAUGHTER. It was error to charge that the burden of reducing the crime to manslaughter was on accused, but that it was incumbent on the commonwealth to prove, beyond a reasonable doubt, the facts constituting murder in the first degree, and, if the jury were satisfied beyond a reasonable doubt that malice did not exist, the killing would be manslaughter. [Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 638-641; Dec. Dig. § 307.*] 3. CRIMINAL LAW (§ 1173*)-APPEAL-REVIEW HARMLESS ERROR ERRONEOUS CHARGE NOT APPLICABLE TO EVIDENCE. Where accused presents a point not applicable to the evidence, an answer not responsive to the point is not ground for reversal, unless accused be prejudiced thereby. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 3164-3168; Dec. Dig. § 1173.*] Mitchell, a J., and Potter and Elkin, JJ., dissenting. be murder either of the first or second degree, unless you believe, gentlemen of the jury, that the defendant was insane." "(8) The burden of proof never shifts, but rests on the prosecution throughout, so that if the jury cannot find from the evidence malice beyond a reasonable doubt, such reasonable doubt is sufficient to reduce the grade to voluntary manslaughter. Answer: The burden of reducing the crime from murder to manslaughter, where it is proved that the prisoner committed the deed, lies on him; but it is incumbent upon the commonwealth to satisfy you beyond a reasonable doubt of those facts and circumstances which constitute the crime of murder in the first degree. If you are satisfied beyond a reasonable doubt that malice did not exist, then the killing would be manslaughter." "(10) If the jury believe from the evidence that at the time of the homicide the defendant was insane, he must be acquitted. Answer: This point is affirmed, but you should be fully satisfied of defendant's insanity before you should acquit him of all crime." Verdict of guilty of murder of the first degree. Defendant appealed. Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ. F. W. Culbertson and R. W. Patton, for appellant. L. J. Durbin and J. C. Houser, Dist. Atty., for appellee. STEWART, J. Defendant was charged with the crime of murder. On the trial of the case this instruction was asked for on his behalf, "If the jury believe from the evidence that at the time of the homicide the defendant was insane, he must be acquitted." The point was answered in this way: "This point is affirmed, but you should be fully satisfied of defendant's insanity." In Meyers v. Com., 83 Pa. 131, where a like defense was set up, the instruction was that the defense could avail only as the jury were "satisfied beyond a reasonable doubt" that the prisoner was insane at the time the act was committed. We there held that the instruction was too stringent; that it threw the prisoner upon a degree of proof beyond the legal measure of his defense; that all that is required is proof which is satisfacThe prisoner presented the following tory, such as flows fairly from a preponderpoints: Appeal from Court of Oyer and Terminer, Mifflin County. Frank Lee was convicted of murder, and appeals. Reversed. At the trial the prisoner introduced evidence tending to show that he was insane at the time of the killing. "(6) That if the jury believe from the evidence in the case that the mind of the defendant was so affected by rage and passion arising from the provocation given as to be ance of the evidence, and the judgment was accordingly reversed. In Coyle v. Com., 100 Pa. 573, 45 Am. Rep. 397, the instruction was that the defense of insanity must be established "by clearly preponderating evi For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes the crime from murder to manslaughter, where it is proved that the prisoner com. mitted the deed, lies on him, but it is incumbent on the commonwealth to satisfy you beyond a reasonable doubt of those facts and circumstances which constitute the crime of murder in the first degree. If you are satisfied beyond a reasonable doubt that malice did not exist, then the killing would be manslaughter.". The error here is so manifest that it need not be particularized, much less discussed. The subject of the third, assignment is the answer of the court to defendant's sixth point. The point might well have been refused without more, since we see nothing in the evidence which makes it applicable to the case. That a wrong an sive-was given, is of no consequence, except it be shown that the defendant was prejudiced thereby. The answer was not responsive to the point, but the point was without correspondence to the case. When one withdraws from a fight and goes a half square away to his home, there gets a gun, and, coming back to the scene of the fight, enters his antagonist's house and shoots him, the law is not so indulgent to the infirmity of human nature as to extenuate the offense committed. And that was this case as presented in the evidence. It did not call for instruction as to the law governing cases where the defendant, while engaged in actual combat, or immediately upon sufficient provocation and in the heat of blood, kills his antagonist. It is unnecessary to refer to the other assignments of error; an answer to each is to be found in what we have al dence." This was held to be error on the ground that it was practically saying that the defense was to be established beyond all doubt or uncertainty, and a reversal there followed. In Com. v. Gerade, 145 Pa. 289, 22 Atl. 464, 27 Am. St. Rep. 689, the instruction was that the insanity relied on as a defense "must be clearly proved." This was held to be error, and the judgment was reversed. In this latter case it was said: "As applied to the degree of proof required to rebut the presumption of sanity, and sufficiently prove the existence of insanity, there is no appreciable difference between the expression 'clearly proved' and 'proved by clearly preponderating evidence.' If there is any difference, the former calls for the higher degree of proof. It is almost equiva-swer-in the sense that it was not responlent to saying 'proved beyond a reasonable doubt,' because, if any doubt as to the existence of a particular fact exists, it cannot be said to be 'clearly proved.'" So here the expression "fully satisfied of defendant's insanity" can only be understood as meaning that the evidence must be so convincing as to leave the minds of the jury without doubt as to the existence of the fact alleged; for one cannot be said to be fully satisfied of the existence of a fact except as he is free from doubt on the subject. True, a reasonable doubt of the fact of insanity will not operate to acquit when this defense is set up; but then, on the other hand, the fact that a doubt may remain in the mind does not necessarily convict, for as said in Meyers v. Com., 83 Pa. 131, when the evidence raises a balancing question, and the mind is brought to determine its preponderance, there may be a doubt still existing in the mind, yet the actual weight may be with the prisoner, and this proof should be considered satisfactory. We find nothing in the general charge which corrects in any way the error that is here committed. Repeatedly in the course of the charge the jury were told that, in order to acquit on the ground of insanity, the evidence must satisfy the jury that this was the defendant's mental condition. This, in itself, was correct enough, and it was repeated with a frequency that must have impressed the jury. But as an instruction it was inadequate, since in not a single instance where the instruction occurs was the jury informed that what the law requires in such cases, in order to acquit, is that insanity be made to appear by a preponderance of the evidence; nor did the instruction conflict in the slightest with that given in the answer complained of. If there was error in the answer, as there certainly was, the charge did nothing to correct the mischief. Still more pronounced was the error which is made the subject of the fourth assignment. In answer to a point submitted the court ruled as follows: "The burden of reducing ready said. The judgment is reversed and a venire de novo awarded. MITCHELL, C. J., and POTTER and ELKIN, JJ., dissent. (226 Pa. 292) FIRST NAT. BANK OF PITTSBURG v. COLONIAL HOTEL CO. (Supreme Court of Pennsylvania. Jan. 3, 1910.) 1. CORPORATIONS (§ 426*)—OFFICERS—AGENOY TO INDORSE COMMERCIAL PAPER. in the acts of its treasurer in indorsing comIf the directors of a corporation acquiesce mercial paper while holding himself out to the public as having authority to do so, they thereby constitute him the general agent of the corporation to make such indorsements, and the corporation will be bound, though the indorsee had no knowledge of any previous indorsement. [Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 1702, 1703, 1707-1716; Dec. Dig. § 426.*] 2. CORPORATIONS (§ 432*)-ACTIONS AGAINST CORPORATION-BURDEN OF PROOF-AGENCY OF SIGNER. In an action on a note against a corporation, whose treasurer had signed it, the burden |