county bridge. * It is the right of the plaintiff to bring an action at law to recover damages for the use of the bridge during the time for which no compensation has been paid." In this last case we further said: "We can see no difference in principle between the use made of a bridge by a street railway company and that which is appropriated by the telephone company." So far as it concerns the point we now have, and then had, under consideration, there is no difference. The traction company, defendant in this case, and the telegraph company referred to in that case each enjoyed a special use, different in kind and extent from that of the general public. Here the defendant not only used the bridges as ways of passage for their cars, but it permanently occupied certain spaces by its tracks, poles, and wires. It is not asked to pay toll in the popular sense in which that term is generally understood, but it is required to pay a rental for its special use and occupation of the bridges. We conclude that, even though no tolls were collected from the general public, the county had the right to insist upon the payment of a rental by the defendant company, and to include therein a reasonable proportion of the costs incurred for necessary repairs to the bridge structures. * of that bridge necessary for and chargeable * * We are not convinced of any reversible error in this charge. No requests for special instructions on the measure of damages were handed to the trial judge, and he covered the subject as clearly as could be required under the circumstances. It was for the jury, in the exercise of their best judgment, to determine upon all the evidence what would be fair and proper compensation for the railway company to pay for its use of the bridges during the year 1908, and we cannot say that their verdict is not sustained by the evidence. The assignments of error are all overruled, and the judgment is affirmed. (230 Pa. 86) COLL v. WESTINGHOUSE ELECTRIC & MFG. CO. (Supreme Court of Pennsylvania. Jan. 3, 1911.) 1. MASTER AND SERVANT (§ 150*) - INJURIES TO SERVANT-CHANGE IN MACHINERY. Where an employer changes the construction of a machine during the absence of an employé, who resumes work without notice of the change, and is injured while using the machine in a way which could have been attended with no risk had not the machine been changed, the employer is liable for injuries. In a case like this, it is exceedingly difficult to state any exact rule as to the measure of damages. There was evidence showing defendant's system of trackage and the population of the territory it had to draw upon; the cost of the respective bridges to the county, and their value in 1908; the amount paid for the repair of ordinary wear and tear incurred during 1908, and also the general cost of the maintenance of the bridges during that year; the sizes of the bridges and how they were built; details as to the use made of the bridges by the defendant company, and some light on the general public use as compared to the precise use of defendant company. With this evidence in view, the trial judge said to the jury: "It (the county) has declared simply for the use and occupancy of the bridges during the year of 1908; the repairs for ordinary wear and tear have been paid by it and none of them by the company. These repairs are to be considered as an element to increase the rental. The county sues for the use and occupancy of the bridges with the understanding that it has made the necessary repairs, and, of course, that would make the rental value of the bridges larger. We have narrowed down the contention between the parties to this: 'What is a fair compensation to the county of Beaver for the use of these three bridges by this traction company during the year 1908, taking into consideration the fact that the county paid all the repairs for the ordinary wear and tear peals. Affirmed. * * * [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 297, 299-302, 305-307; Dec. Dig. § 150.*] 2. PLEADING (§ 245*)-AMENDMENT. In an action to recover for injuries to an employé, an amendment of the statement of claim more than two years after the accident, which merely sets forth more accurately the negligence charged, is properly allowed. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 653-675; Dec. Dig. § 245.*] Appeal from Court of Common Pleas, Allegheny County. Action by F. B. Coll against the Westinghouse Electric & Manufacturing Company. Judgment for plaintiff, and defendant ap Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ. William A. Challener and Clarence Burleigh, for appellant. F. C. McGirr, for appellee. STEWART, J. The plaintiff had been in defendant's employ a month or more before he received his injury. During this period, by occasional use of a certain sawing machine in the shops of the defendant, he had become familiar with its construction and the method of operating it. While absent several days from his work, the defendant changed the construction of the machine, with a view to make it more convenient and easier to operate. No notice of this change was given to the defendant. When he resumed his work, and while using the machine in a way which would be attended with no risk whatever had the machine not been changed, he received his injury. The verdict involves a distinct finding that the plaintiff was without notice or knowledge of the change; that ordinary care and prudence on his part would not have discovered the change; and that no negligence of his contributed to the injury. The learned trial judge held that, the defendant having made the change in the machine, a duty rested upon it to advise the plaintiff of the fact. This is complained of as error on several grounds. First. Because the duty to instruct and warn arises only where the employé is young and inexperienced. This calls for no discussion. Whenever and wherever an employé is by the act of the employer exposed to a new danger in the performance of his work, except as the danger is discoverable by the exercise of ordinary care and prudence on the part of the employé, a duty rests on the employer to give notice of the change made. The law as stated by Labatt in his work on Master and Servant (section 28, P. 64) is as follows: "If new functions are imposed upon an instrumentality by the master himself or his representative, and the servant is thereby exposed to undue risks, the master must answer for any injury resulting from those risks, and cannot excuse himself by showing that the instrumentality was a suitable one for the performance of the work for which it was originally supplied." Second. Because the effect of the change made in this case was to reduce risk of accident to the employés generally who worked upon the machine. Admitting this to be a fact proved, its immateriality is manifest. The complaint is not that the machine was defective, or that it was not by the change made as safe an instrumentality as could be devised for the purpose for the general employés, but that it was rendered unsafe for this particular employé who, without notice of the change, had a right to suppose that he encountered no risks in operating it other than those to which he was exposed when operating the machine before the change was made. If he had notice or knowledge of the change, the injury here received could only be referred to a deliberate purpose on his part to mutilate himself. The fact that the plaintiff was a skilled workman has nothing to do with this aspect of the case. The jury found that, though skilled, the accident happened through no neglect of duty on his part. The law that the trial judge applied to the case is correct both on principle and authority. In the statement of the cause of action the machine was described as a table on which there were two circular saws attached to the same shaft, so that one could not be raised or dropped without the other; and, after averring that a change had been made by cutting the shaft on which the saws were set so that the saws could operate separately, the statement continues that plaintiff, "after using the cross-cut saw to cut the lumber, lowered the said saw below the surface of the table, and supposed as had always been the case before that the ripsaw had also been lowered." More than two years after the accident occurred, plaintiff was permitted against objection to amend the statement as follows: "Instead of alleging that one saw could not be raised or dropped without the other, to amend by saying one saw could not be started or stopped without the other. Also, instead of saying he lowered the said saw below the surface of the table, and supposed as had always been the case before that the ripsaw had also been stopped, to amend by saying he stopped the said saw and supposed, as had always been the case before, that the ripsaw had also been stopped." The allowance of the amendment is complained of on the ground that it changed the cause of action. We cannot so regard it. The amendment charged the same negligence as that set out in the original statement-failure to give notice of the change made in the operation of the machine. It did not assign any different cause of the injury, but was simply a restatement of the fact that the change of the machinery was a cutting of the shaft at a point between the saws which caused them to elevate and depress independently, setting forth more accurately the effect produced thereby in its relation to the accident. There was no error in allowing the amendment. The assignments of error are overruled, and the judgment is affirmed. share of his father's estate, a deed from him to his brother of his undivided interest in the real estate will be set aside where the value thereof was $8,560 and the consideration paid was $83, and the brother had secured the deed by fraudulent representations as to the value of the land, and withheld information of the transaction from his brothers and sisters for a long time. [Ed. Note. For other cases, see Deeds, Cent. Dig. §§ 165-182; Dec. Dig. § 70.*] Appeal from Court of Common Pleas, Allegheny County. Bill by Howard Sarver against Allen Sarver. Decree for complainant, and defendant appeals. Affirmed. Davis, J., in the court below, filed the following opinion: "This bill is filed by plaintiff against defendant to compel the reconveyance of certain real estate, alleging that such conveyance was procured by fraudulent representations to plaintiff at the time of the conveyar.ce. "From the pleadings and testimony the following facts are found: "(1) That the plaintiff and defendant are brothers, and in the year 1906 they each became seised by right of inheritance in and to the undivided one-sixth part of two certain pieces or parcels of land, one containing 30 acres, situate in the First ward of the borough of North Braddock, the other situate in the Second ward of the borough of Braddock and fronting 20 feet on Braddock avenue, and extending back a distance of 120 feet. "(2) That the plaintiff on June 11, 1909, conveyed his one-sixth interest in and to the above-described pieces of real estate to the defendant for the actual cash consideration of $83. That the defendant intended to take an unrestricted fee-simple title in and to the said real estate, and that the value of said one-sixth interest of plaintiff at the time of the conveyance was $8,560. That plaintiff made tender of said $83 and demanded a reconveyance. "(3) That the plaintiff at the time of the conveyance was wholly ignorant of his rights in the premises or of the actual value of the property in question, and that no information was given to him on which he could be reasonably expected to have any sufficient knowledge of the actual value. "(4) That he had been absent from home about 18 years, and his whereabouts unknown the most of this time to his family, except the defendant. That plaintiff was what might properly be called a 'ne'er-dowell' and drifted from place to place. "(5) That on the death of his father in 1906, when plaintiff came into his said inheritance, the defendant agreed with the other heirs to advertise for the plaintiff, and, if any knowledge came, it should be imparted to the other heirs. That such advertisements were made. That defendant stated to some two or three of the other parties in interest that his brother was ignorant of his rights, and if he could be found his interest could be bought for a 'trifle' or 'a song.' "(6) That the defendant then undertook secretly to find the plaintiff, and wrote a number of letters to points where he thought he might possibly be found, finally locating him at Winchester, Va. That defendant then wrote plaintiff, stating merely that there was some money coming to him from the estate of his parents, and on request sent plaintiff $8 to come to the residence of defendant at Braddock. The plaintiff arrived on the morning of July 11, 1909; and without any delay, without notice to the other heirs, without, according to defendant's own testimony, giving the plaintiff any sufficient knowledge of his rights, an agreement was made and carried into effect the same day, and $250 paid for plaintiff's entire interest in his personal and real estate, and the plaintiff, to say the least, was permitted to depart from whence he came. "(7) The following, in addition to the foregoing facts, is found: That as an inducement for the making of the recited agreement for the conveyance of plaintiff's entire estate defendant represented to plaintiff in making his offer of $150 for the real estate that it was not worth much more, that it needed repairs and the taxes were heavy, and it took all the rent to pay the taxes. "(8) That at the time of the execution of the deed, in pursuance of this agreement, and at the office of the attorney who prepared the papers, no sufficient knowledge was given to plaintiff of the values of the property he was conveying; this especially appearing when the attorney himself says, 'It was clear in my mind that he did not understand the effect.' "(9) That defendant's intention was to establish a confidential relation with his brother, and in his dealings with the plaintiff placed himself on high moral ground that would naturally lead plaintiff to repose trust and confidence in his, the defendant's, fairness and desire to do right. "Conclusions of Law. "(1) That the defendant's acts and course of dealing invited trust and confidence, and placed him in a position of confidential relationship with the plaintiff that required him to act in good faith and inform plaintiff fully in reference to all his estate, both real and personal. "(2) That the conveyance of the property in question was obtained by defendant from plaintiff in a fraudulent manner, and in 'utter disregard of the rights of plaintiff. "(3) That defendant has no right to hold further title to the said real estate. "(4) That the plaintiff has the right to have the real estate described in the bill reconveyed to him forthwith free from incumbrances suffered or done by the defendant. "Discussion. "The plaintiff in this case seems to contend that the inadequacy of the consideration is so strong, gross, and manifest that it raises a presumption of fraud, and that this transaction should be set aside for that reason alone. The consideration is so grossly inadequate, namely, one per cent. of the actual value, that it casts of itself a very grave suspicion on the whole transaction. It is the law, however, in Pennsylvania, that inadequacy of price alone is not sufficient to set aside an executed conveyance. Davidson v. Little, 22 Pa. 245, 60 Am. Dec. 81; Phillips' Estate (No. 2), 205 Pa. 511, 55 Atl. 212. A person may, with full knowledge of what he is doing and acting on equal terms with the person whom he seeks to favor, give his property away for a nominal consideration, or no consideration; and, if he should rue his act, he has no remedy, for he has knowingly and willingly placed himself in that position and must abide by the consequences. That is not the case we have at bar, as will appear from the findings of fact. "The plaintiff was a good deal of a nomad, of little education, apparently somewhat given to the use of intoxicants-as indicated in some parts of his testimony; in impecunious circumstances as shown by the sending by defendant of the $8 in order that he might come on to procure some money from his father's estate, in total ignorance of his property rights and the value thereof; and, in addition to this, his brother, the defendant, had a full knowledge of his property, his character, and circumstances, and had made declarations that his brother was ignorant of his rights in the property, and, if he could be found, his interest could be bought for a trifle or a song. He had also given his consent that advertisements should be made to locate him, and then took steps secretly to locate him. He had assumed a high moral stand in his letters that would lead plaintiff to repose trust and confidence in him. He proceeded with haste to close the matter, obtaining the real estate for a less sum than he had offered. He withheld-according to his own testimony -the actual value of the property. He falsely represented its value as now found as a fact. He caused or permitted plaintiff to depart within a few hours after his arrival, and withheld all information from his brothers and sisters until he had-as he thought-gotten absolute possession and control of plaintiff's property. "When these facts and circumstances are all considered, in connection with the ab solutely striking gross inadequacy of price, amounting almost to a total failure of consideration, it can lead to but one conclusion-that the plaintiff and defendant dealt on such unequal terms, and the whole action of the defendant in the premises is so tainted with fraud that immediate reparation should be made and a reconveyance of the real estate should be ordered. "Let a decree be drawn accordingly." Argued before FELL, C. J., MESTREZAT, POTTER, ELKIN, and STEWART, JJ. Horace J. Thomas, for appellant. Francis S. Bennett and John K. Benn, for appellee. PER CURIAM. The decree of the court is affirmed on the opinion of the learned judge of the common pleas. (230 Pa. 41) VADAS v. PITTSBURG, M. & Y. R. CO. (Supreme Court of Pennsylvania. Jan. 3, 1911.) 1. RAILROADS (§ 259*)-LEASE OF LAND-LIABILITY OF LESSOR-NEGLIGENCE OF LESSOR. Where a railroad company has leased its road and property of every kind to another railroad company under Act April 23, 1861 (P. L. 410), and Act Feb. 17, 1870 (P. L. 31), it is not liable for negligent operation of trains by its lessee. [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 802-816; Dec. Dig. § 259.*] 2. RAILROADS (§ 259*) -LEASE-LIABILITY FOR NEGLIGENCE. Where a railroad acquires consent by a city to build and operate its road within its limits, the right passes under a lease of the railroad to another railroad company so as to make the lessee liable for negligent operation of trains within the city. [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 802-816; Dec. Dig. § 259.*] Appeal from Court of Common Pleas, Allegheny County. Action by Steve Vadas against the Pitts burg, McKeesport & Youghiogheny Railroad Company. Judgment for defendant notwithstanding the verdict, and plaintiff appeals. Affirmed. Argued before FELL, C. J., and MESTREZAT, POTTER, ELKIN, and STEWART, JJ. L. S. Levin and Rody P. Marshall, for appellant. George E. Shaw, for appellee. FELL, C. J. The question presented by this appeal is whether a railroad company that has leased its completed road and property of every kind to another railroad company is liable for the negligent operation of trains by its lessee. The defendant, the Pittsburg, McKeesport & Youghiogheny Railroad Company, having constructed its road in 1884, leased its main and branch lines and "the plant, equipment, rights, privileges, and property of every kind and nature appurtenant to said main line and branches" to the Pitts burg & Lake Erie Railroad Company forter E. Sulzer against Louisa Born and oth999 years. The lessee at once entered into ers. Judgment for defendants notwithstandpossession under the lease, and has since op- ing the verdict, and plaintiffs appeal. Aferated the road. The injury complained of was caused by a collision between its trains and a wagon in which the plaintiff was rid ing. Act April 23, 1861 (P. L. 410), and Act Feb. 17, 1870 (P. L. 31), authorize railroad corporations organized under the laws of the state to lease to other railroad corporations their property of every description and give to the lessee the right to use and operate the leased property. The law governing the relation of lessor and lessee of transportation companies and the liability of the former for the negligence of the latter, when the lease has been authorized, was fully considered in the recent case of Pinkerton v. Pennsylvania Traction Co., 193 Pa. 229, 44 Atl. 284, where statutory authority for the lease by motor-power companies of the property and franchises of passenger railway companies was conferred by the act of March 22, 1887 (P. L. 8). In this case it was said by Mitchell, C. J., in reviewing the authorities on the subject: "The settled principles of law and the decided weight of authority are in favor of the rule that, when a lease is duly authorized by law, there is no further liability on the part of the lessor for negligence of the lessee in the operation of the road." The contention that inasmuch as the lessee had not obtained municipal consent to operate a railroad within the limits of the city where the accident happened its operation was unlawful and the lessor was liable is without force. The lessor in 1881 and 1883 was authorized by ordinance to build and operate its road within the city and its rights thus acquired passed to its lessee. Conshohocken Borough v. Conshohocken Ry. Co., 206 Pa. 80, 55 Atl. 855. The judgment is affirmed. firmed. At the trial the jury returned a verdict for the plaintiffs. Subsequently on motion the court entered judgment for defendants non obstante veredicto, Shafer, J., filing the following opinion: "The trial was on a precept from the orphans' court directing the trial of the question whether a certain paper dated November 7, 1908, and admitted to probate by the register as the last will of Christian Breining, deceased, was procured by undue influence, fraud, or duress, upon which a verdict was rendered against the will. The motion for a new trial, filed by the defendants, we understand to be withdrawn, but it is claimed by them that the evidence for the plaintiffs was not sufficient to authorize a verdict against the will, and they have therefore moved for judgment non obstante veredicto. "The evidence shows that Christian Breining had been for many years in business as a butcher in the Allegheny market, with a shop at his house on Chestnut street in the city of Allegheny, and that he had acquired property, real and personal, which amounted to something like $140,000 at the time of his death. He had reared a family of three sons and five or more daughters, all of the daughters but one being married and all living away from his house except one, some of them being in other states. His wife, who took a large part in the conduct of the business, died several years before him, and his eldest daughter, Mrs. Sulzer, died about a year before his death, leaving her husband and one son about 25 years of age, who is one of the contestants of the will. None of his sons were married, and all of them lived at home and worked with him, until after his wife died, when the family living at his house consisted of his daughter, Mrs. Landis, and her husband, his unmarried daughter Sophia and his three sons. His two sons, Christian and Edward, were much addicted to drink, and the sisters living at home drove Chris away from the house for that reason some years before the father's death; the old man appearing to take no part one way or the other in the matter. Edward, a considerable time afterwards, left the house under similar circumstances, so that at the death of the testator the family consisted of Mrs. Landis and her husband, his daughter Sophia, and his son Henry, who carried on the business for some three years before his father's death, the old man having retired from business. The testator was about 76 years of age at the time of Appeal from Court of Common Pleas, Al- his death, and appears to have been in the legheny County. full possession of his faculties, although he Action by Christian F. Breining and Wal-was gradually declining in health after the (230 Pa. 24) BREINING et al. v. BORN et al. (Supreme Court of Pennsylvania. Jan. 3, 1911.) WILLS ($ 324*)-UNDUE INFLUENCE - EVI DENCE-QUESTION FOR JURY. Where there is no evidence of any direct influence on the testator by any one or any solicitation as to his will, and the only evidence tending to show undue influence is that some of the beneficiaries residing with testator drove one of his sons from the house on account of drunkenness, and talked against the father of another of the contestants because he had treated with disrespect his wife, who was testator's daughter, the issue of devisavit should not have been submitted to the jury. [Ed. Note. For other cases, see Wills, Cent. Dig. §§ 225, 767-770; Dec. Dig. § 324.*] |