3. EMINENT DOMAIN 19, 56-OPENING OF | agreement with the paper company whereby PRIVATE ROADWAY AS PUBLIC ROADWAY- the latter granted the former the right to PUBLIC USE. An ordinance providing for opening of private roadway as a public highway is a taking for a public use, and was based on apparent necessity where roadway was intended to be used to reach a garbage incinerating plant intended for use of borough and adjoining municipalities and citizens desiring to deliver garbage to the plant, where proposed location of plant was chosen after due investigation on advice of borough engineer, and site was approved by court. 4. EMINENT DOMAIN 66 OPENING OF PRIVATE ROADWAY AS PUBLIC HIGHWAYINJUNCTION-REMEDY AT LAW. construct a sewage disposal plant on the river bank of the paper company's property, together with an intercepting sewer on a part of the land, in consideration of the right to use the sewer by the company; access to the plant being along the roadway above described. In September, 1916, the borough decided to construct on property adjoining the sewage disposal plant a garbage incinerating furnace for its use and the use of adjoining municipalities. Upon this action being taken by the borough authorities, plaintiff closed the road referred to by erecting a fence on the western line of his lands; Equity has no jurisdiction to restrain pas- whereupon an ordinance was introduced in sage of borough ordinance for opening of a pri- the borough council providing for the openvate roadway as a public roadway; there being of the roadway in question as a public ing an adequate remedy at law under General highway, designated as Wayman alley. Borough Act May 14, 1915 (P. L. 393) § 9, Plaintiff followed this action on the part of enabling any person aggrieved by any ordinance the borough by filing the bill in this case, thereunder to apply to court of quarter sessions, alleging the alley to be unnecessary for and making a determination and order of the public use, and averring the purpose to be the benefiting of the paper mills company court thereon conclusive. Appeal from Court of Common Pleas, Al- by giving it access to its plant over plaintiff's legheny County. Bill in equity by James B. Sipe against the Borough of Tarentum, H. Clay White, Burgess, and W. S. Denny, Councilman, of the Borough, to restrain the passage of a borough ordinance providing for the opening of a private road as a public highway. From a decree in equity dismissing the bill, plaintiff appeals. Affirmed. Argued before BROWN, C. J., and FRAZ- property, and praying that the borough authorities be enjoined from adopting the proposed ordinance. The court below dismissed the bill, and plaintiff appealed. [1, 2] The taking of land for a public highway is a taking for public use (Smedley v. Erwin et al., 51 Pa. 445, 450), and where the use is a public one, the question of the wisdom of the act is for the sovereign power of the state, and not for the courts (Philadelphia, Morton & Swarthmore Street Railway Co.'s Petition, 203 Pa. 354, 362, 53 Atl. 191; Penn Mutual Life Ins. Co. v. Philadelphia, 242 Pa. 47, 52, 88 Atl. 904, 49 L. R. A. [N. S.] 1062). [3] Consequently, unless in this case the circumstances make the taking one for private instead of public use, plaintiff is without standing to complain. The court below expressly found no evidence of an agreement between the borough and the paper company concerning the opening of the road as a public highway or the use of the alley except the original agreement for the sale of the land to the borough, which included an 18foot right of way over that part of the alley located on the property of the paper company. FRAZER, J. In 1916 plaintiff, under foreclosure proceedings, became the owner of a tract of land in Tarentum borough lying between the Pennsylvania Railroad and the Allegheny river, bounded on the east by property of the Tarentum Paper Mills Company, and on the west by vacant land of the Philadelphia Warehouse Company. Along the western line of plaintiff's land and on the property of the warehouse company was a private road leading across the tracks of the railroad company at grade, and connected with the streets of the borough. The road The court also found the proposed location turned at an angle eastward across plaintiff's of the garbage incinerating plant was chosen land and connected with a similar road on after due investigation and on the advice of the property of the paper company and con- the borough engineer, that the site was aptinued along the eastern line of plaintiff's proved by the court, and the evidence did land to the river. The road over plaintiff's not sustain the averments of the bill that the land was laid out by a predecessor in title, alley was to be opened under private agreeand had been used for more than 20 years by ment or for the benefit of private parties. the paper company and tenants of houses The garbage plant when constructed is inconstructed on plaintiff's land and by others tended for the use, not only of Tarentum having occasion to visit the locality. In borough, but also the contiguous borough of 1915 Tarentum borough entered into an | Brackenridge and adjoining townships and (106 A.) citizens of these municipalities desiring to | business, and that test is applicable to allegadeliver garbage to the furnace for disposal. tions of contributory negligence. In addition to these facts, when we consider 4. MASTER AND SERVANT 289(27) — CONthe road has been used by many citizens of TRIBUTORY NEGLIGENCE-METHOD OF WORK. the municipality as a means of access to the abutting properties, we find ample ground for sustaining the conclusion of the court below that the use for which the land is intended is a public one, based on apparent necessity, and accordingly properly within the power of the borough. An employé cannot be held guilty of contributory negligence as matter of law merely because of the existence of danger in his way of doing the work and because he knows there is a safer day of doing it, if he does work as he and other like employés were doing it and had many times done safely, and as the employer knew they were doing it. Appeal from Court of Common Pleas, Allegheny County. [4] Proceedings in equity to restrain the passage of the ordinance were improper for the reason chapter 7, art. 1, § 9, of the act of May 14, 1915 (P. L. 393), entitled "An act providing a system of government for borTrespass for personal injuries by Frederick oughs, and revising, amending and consoli-Ulm against the McKeesport Tin Plate Comdating the law relating to boroughs" and pany. From a judgment on a verdict for known as the "General Borough Act," pro- plaintiff and a denial of a motion for judgvides that the remedy of "any person ag- ment n. o. v., defendant appeals. Affirmed. grieved in consequence of any ordinance, regulation of act done or purporting to be done in virtue of this act" shall be by application to the court of quarter sessions and makes the determination and order of the court thereon conclusive. Under this section of the act we held in Parkin v. New Kensington Borough (October term, 1918), 262 Pa. 433, 105 Atl. 629, that equity is without juris liction in a proceeding of this character; the remedy being at law. The decree of the court below dismissing the bill is affirmed, at costs of appellant. Where verdict and judgment were for plaintiff, and only assignment of error was to lower court's refusal to enter judgment for defendant n. o. v., the Supreme Court has only to inquire whether or not, upon stating the facts most favorably for plaintiff, the lower court ought to have held that they did not present a case for jury. Argued before BROWN, C. J., and FRAZER, WALLING, SIMPSON, and FOX, JJ. W. S. Dalzell, of Pittsburgh, for appellant. Meredith R. Marshall, of Pittsburgh, for appellee. ment in this case were for the plaintiff, and SIMPSON, J. [1] The verdict and judg the only assignment of error is to the refusal of the court below to enter judgment for the defendant non obstante veredicto. Hence we have only to inquire whether or not, upon stating the facts most favorably for the plaintiff, that court ought to have held that they did not present a case for the jury's consideration. Thus viewed, the record discloses the following facts: [2] Plaintiff was an employé of defendant, charged with the duty, inter alia, of filling the oil cups of a large electric motor in defendant's factory. Covering the motor was a large box, not fastened to the floor or otherwise held in place, the lid of which had to be raised in order that the cups might be filled. When reaching in for that purpose the hand and arm would be in close proximity to certain cogs therein, which were not covered or guarded within the box. When plaintiff and the other oilers were shown how to do the work, the cups were 2. MASTER AND SERVANT 286(22)—Guard-filled whether or not the machinery was in ING OF MACHINERY COMPLIANCE WITH Whether Act May 2, 1905, § 11, requiring the cogwheels of machinery to be properly guarded, was complied with by placing a box over entire machine and nothing further over the cogwheels, in respect to an employé whose duty compelled him to work within the box, held a question for the jury. motion. Neither then nor thereafter was plaintiff told not to fill them when the machinery was moving, and the custom was to fill them even though it was. After plaintiff had been at the work some three months he learned that it was safer, if possible, to wait until the machinery stopped; but it was not always possible to do so, and he frequently did the work without 3. MASTER AND SERVANT 233(5) CON- accident though the machinery was in moTRIBUTORY NEGLIGENCE-TEST. The test of negligence in methods, machinery, and appliances is the ordinary usage of the tion. When the motors heated up and smoked, the employés were taught to fill the oil cups at once, in order to save the machinery For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes from injury; while in motion; that that was the custom in the mill; that the foremen in charge knew thereof; and that it had been done many times without an accident happening. How, then, could the court below have charged, as a matter of law, that no reasonably prudent man would have thus filled the cups? and, under such circumstanc- [inghouse, etc., Co., 197 Pa. 257, 47 Atl. 237, es, they were constantly so filled with the 51 L. R. A. 881, 80 Am. St. Rep. 816; Kilknowledge of, and without objection from, bride v. Carbon, etc., Co., 201 Pa. 552, 51 Atl. the foreman in charge of the work. 347, 88 Am. St. Rep. 829. We know no reaOn the day of the accident plaintiff noticed son why the same rule should not be applied that machine No. 11 was smoking, and he in cases of alleged contributory negligence. went to the boss and asked if he could stop The jury have found as a fact that, under the machine in order to fill the cups. His the circumstances appearing at the time this request being refused, he took the can, accident happened, plaintiff and the other oilraised the lid of the box, and started to pourers had been taught to oil the machinery in the oil, exactly as he had been taught to do it. The floor at that place was slippery. The can was large and heavy, and to hold it and pour the oil required the use of both hands. As plaintiff leaned against the box in doing the work, the box or his foot, one or both, slipped, his arm was caught in the cogs, and he received the injury of which he complains. It was admitted at the argument that, under section 11 of the act of May 2, 1905 (P. L. 352), defendant could not claim, as a matter of law, that it was not guilty of negligence, and hence that the only question for our consideration was whether or not plain- "Where one is charged with contributory negtiff was so clearly guilty of contributory negligence in doing work in an obviously dangerous ligence in filling the oil cups while the machinery was in motion that the court below was bound to charge the jury he could not recover. As is usual in such cases, the argument took a wider range than was justified by the narrow question for consideration. It was suggested that the box covering the entire motor might be held as a proper guard to the machinery. Doubtless this would be so as to all persons save those who were required to work on the motor itself; but such workmen were as much within the protection of the act, which required that "all cogs shall be * * and machinery * properly guarded," as were those who had no work to do on the motor; and surely those cogs were not properly guarded, so far as related to the workmen who had to lift the lid of the box and reach in to fill the oil cups. As to him, in that branch of his work they can hardly be said to have been guarded at all, and the trial judge could, perhaps, have so told the jury. Jones v. American Caramel Co., 225 Pa. 644, 650, 74 Atl. 613. But, whether or not this be so, that question was clearly one for the jury to decide (McCoy v. Wolf Co., 235 Pa. 571, 84 Atl. 581), and no error is assigned as to the manner of its submission. [3, 4] Under the facts stated we cannot see how the case could have been taken from the jury. Where there are no statutory requirements on the subject, we have repeatedly held that the unbending test of negligence in methods, machinery, and appliances is the ordinary usage of the business. Leonard v. Herrmann, 195 Pa. 222, 45 Atl. 723; Service v. Shoneman, 196 Pa. 63, 46 Atl. 292, 69 L. R. A. 792, 79 Am. St. Rep. 689; Purdy v. West True, there was danger in so doing, but the existence of danger does not prove negligence. If it did, there would be no safety except to abandon the use of machinery. We said in Fortney v. Breon, 245 Pa. 47, 52-54, 91 Atl. 525, 526: Cramer v. Alumi manner when a safe way was open to him, un- And again: "It may well be that while the plaintiff was intent upon doing his work in the customary manner prevailing in his employer's shop, and therefore in a way which he had reason to believe his superiors approved and considered reasonably safe, his hand unexpectedly and accidentally slipped because of the unusual force he was obliged to apply to the cap, and that this Fegley v. Lycoming Rubber Co., 231 Pa. 446, happened without carelessness on his part. 448 [80 Atl. 870]; Cramer v. Aluminum Co., 239 Pa. 120, 126, 127 [86 Atl. 654]; Lanahan v. Arasapha Mfg. Co., 240 Pa. 292, 297 [87 Atl. 286]." What is thus quoted disposes of defendant's contention in the present case, and hence the judgment is affirmed. (79 N. H. 188) (106 A.) mistake, that it was used in a peculiar or restricted sense, or that it is repugnant to the Belknap. | intention of the parties. It must therefore be given such force and meaning as would ordinarily attach to it. It cannot be rejected. HILL v. PRIOR. Bill in equity for specific performance of a clause in a lease of real estate by the defendant's ancestor in title to the plaintiff, dated January 30, 1903, for the term of 15 years from date. The clause referred to contains the following provision: "The lessor agrees to give the lessee the first right to a further lease for a term not exceeding ten years after the expiration of this lease." The question was transferred from the March term of superior court, without a ruling, whether a decree for the plaintiff could be granted. Young & Cheney, of Laconia, for plaintiff. Owen & Veazey, of Laconia, and Streeter, Demond, Woodworth & Sulloway, of Concord, for defendant. WALKER, J. The plaintiff's right to a renewal of the lease depends upon the construction given to the contract, by which the lessor agreed to give her "the first right to a further lease" at the expiration of the first lease. The plaintiff claims that under the contract she became entitled to demand and to receive from the lessor a second lease, when the first term ended, upon the ground that the right thus acquired is an absolute one imposing upon the lessor the duty of compliance, and that in the event of noncompliance a case is presented for the intervention of equity by specific performance. Upon this theory no significance is given to the word "first"; in fact, it is treated as immaterial or as surplusage so far as the understanding of the parties is concerned. But the lease contains no evidence that it was inserted by In the ordinary use of language the phrase "the first right to a further lease" 15 years hence would mean that the lessor would give the lessee the first opportunity of taking a further lease, if the lessor should at that time desire to lease the property; in other words, that he would not lease it to another party until he had given the lessee the first chance to take the lease. "First" is used in the sense of giving the lessee the preference over others who might wish to become tenants of the property, but it does not indicate an absolute purpose on the part of the lessor to lease the property to any one. He did not intend to incumber the land with a covenant not to sell it, or not to resume the occupation of it, at the expiration of the existing lease. For similar cases see Buckmaster v. Thompson, 36 N. Y. 558; Walsh v. Brewing Co., 83 Misc. Rep. 488, 146 N. Y. Supp. 160; Holloway v. Schmidt, 33 Misc. Rep. 747, 67 N. Y. Supp. 169; Schroeder v. Gemeinder, 10 Nev. 355; Crawford v. Morris, 5 Grat. 90. As it is not claimed that the defendant de sires to again lease the land, a decree for specific performance cannot be granted. In an action for injuries on a crossing at night, whether plaintiff was guilty of contributory negligence in stepping in front of defendant's engine, which was completely obscured by steam and moving slowly without ringing the bell, held for the jury. Exceptions from Superior Court, Coos County; Sawyer, Judge. Case for personal injuries by Theresa McGinley against the Maine Central Railway Company. Verdict for plaintiff. Transferred on defendant's exception to the denial of its motion for a directed verdict. Exception overruled. Case for personal injuries. Tried by jury. Verdict for the plaintiffs. Transferred from the April term, 1918, of the superior court on For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the defendant's exception to the denial of would have done something more than listen its motion for a directed verdict. for the bell if the engine was enveloped in Bernard Jacobs, of Lancaster, for plaintiff. Drew, Shurtleff, Morris & Oakes, of Lancaster, for defendant. steam before he stepped onto the crossing notwithstanding the noise the engine was making was like that made by an ordinary engine when it is not in motion. tract the attention of a person unless it is (79 N. H. 203) KINGSBURY v. BOSTON & M. R. R. (Supreme Court of New Hampshire. April 1, 1919.) Sullivan. 1. RAILROADS 346(1)-INJURIES AT CROSSING NEGLIGENCE-BURDEN OF PROOF. It is clear it cannot be said that one YOUNG, J. The plaintiff was struck on a who was unfamiliar with a Mallett compound level crossing by the cowcatcher on one of the engine might not have done what the plaintiff defendant's engines. The evening was dark, did, even if it is conceded that the steam but the headlight was lighted, and there was was not so thick as to completely obscure the an electric light at or near the crossing. headlight, for it is common knowledge that The engine was a Mallett compound, and was headlights are intended to light the track moving about three or four miles an hour. for a considerable distance in front of the The headlight is placed nearer the ground, engine, or to enable the engineer to see an and further forward on such an engine than obstruction in time to avoid an accident-not on the ordinary engine; the cowcatcher pro- to light the ground immediately in front of jects ten feet or more in front of the front the engine. In fact on a lighted street the beam, or very much farther than the cow-ordinary headlight is not calculated to atcatcher on the ordinary engine. The noise such an engine makes when it is moving as slowly as it was on the night of the accident is similar to that made by the blower when used to get up steam on an engine which is standing still. The street along which the plaintiff was traveling crossed the railroad at an acute angle, and for the last hundred feet before reaching the crossing the plaintiff was traveling in the same direction and about as fast as the engine and in a line nearly parallel to and but a short distance from the defendant's tracks. She heard the noise the engine was making when she was a considerable distance from the crossing, and when she was within a short distance of it saw what she thought was the engine, but it was so completely enveloped in steam that she could not see that it was in motion, and concluded from the noise it was making and the fact the bell was not being rung that it was standing still, and stepped onto the crossing, and did not discover her mistake until it was too late to avoid the accident. In other words, the evidence warrants a In action for injuries at crossing, plaintiff's finding that the plaintiff looked when she was testimony that bell did not ring when southbut a short distance from the crossing, and bound train followed north-bound train, which saw what she supposed was an engine stand- had rung the bell, over the crossing, held merely ing on the track. It is true that it was so ena scintilla of evidence, insufficient to support veloped in steam that she could not see wheth-finding as against positive evidence to contrary. er it was moving or standing still, but the 3. RAILROADS 348(3)-INJURIES AT CROSSnoise it was making was like that made by -SUFFICIENCY OF EVIthe ordinary engine when it is standing still and the bell was not being rung as it usually is when an engine is approaching a highway crossing; and she concluded that it was safe for her to cross the railroad track in front of the engine. The question therefore raised by the defendant's exception is whether it can be said that the ordinary man with the plaintiff's knowledge and means of knowledge of the situation and its danger would not have stepped onto the crossing when and as she did. That is whether it can be said that the ordinary man in the plaintiff's situation In action for injuries at a crossing burden was on plaintiff to show by preponderance of evidence that railroad's warning bell did not ring when south-bound train, following northbound train for which bell had rung, passed the crossing, and that its failure to ring was due to railroad's negligence. 2. RAILROADS 348(3)—INJURIES AT CROSSING-NEGLIGENCE-SCINTILLA OF EVIDENCE. ING - NEGLIGENCE DENCE. - Mere fact that railroad's warning bell at a crossing did not ring before passage of a train held not to authorize inference that failure was immediately before with the passage of another due to railroad's negligence, it having rung train, and also ringing immediately after the accident. 4. RAILROADS 350(5) — SUBMISSION OF IsSUE WITHOUT PROPER EVIDENCE-POSSIBIL ITY OF RETURN OF VERDICT THEREON. In action for injuries at railroad crossing, improper submission to jury of issue whether road was liable on account of its negligence in |