sixth assignment error in Pennsylvania

1941As said in Weibel v. Ferguson, 342 Pa. 113 , at page 119, 19 A. 2d 357 , a't page 360, in words applicable to tbe facts of the present case: “Defendant was conscious of the weather conditions, the curve in the road and the wet or slippery surface; there is no evidence of any emergency not created by his [her] own conduct which would diminish the degree of care ordinarily exercisable by him [her].” The refusal of defendant’s motion for judgment n.o.v. was proper, and the sixth assignment of error relating thereto is overruled.

1941As said in Weibel v. Ferguson, 342 Pa. 113 , at page 119, 19 A. 2d 357 , a't page 360, in words applicable to tbe facts of the present case: “Defendant was conscious of the weather conditions, the curve in the road and the wet or slippery surface; there is no evidence of any emergency not created by his [her] own conduct which would diminish the degree of care ordinarily exercisable by him [her].” The refusal of defendant’s motion for judgment n.o.v. was proper, and the sixth assignment of error relating thereto is overruled.

1937After the court had affirmed this point, the District Attorney said: “I disagree with that last point,” and the court said: “Members of the jury, in this point the defendant uses the phrase, ‘He did not know the consequences of his crime.’ I take it that by that it is meant that he was unable to conceive the intent to kill; and, so construed, the point corresponds with the law, as Ave understand the laAV.” Defendant’s counsel then said: “As a matter of clarity, that point is in Commonwealth v. Nazarko [ 224 Pa. 204 , 73 A. 210 ].” The court then said: “I think the point should be affirmed in t

1937After the court had affirmed this point, the District Attorney said: “I disagree with that last point,” and the court said: “Members of the jury, in this point the defendant uses the phrase, ‘He did not know the consequences of his crime.’ I take it that by that it is meant that he was unable to conceive the intent to kill; and, so construed, the point corresponds with the law, as Ave understand the laAV.” Defendant’s counsel then said: “As a matter of clarity, that point is in Commonwealth v. Nazarko [ 224 Pa. 204 , 73 A. 210 ].” The court then said: “I think the point should be affirmed in t

1934Appellant relies upon the case of Finley v. Glenn, 303 Pa. 131 , 154 A. 299 , in support of his position.

1934Appellant relies upon the case of Finley v. Glenn, 303 Pa. 131 , 154 A. 299 , in support of his position.

1930While, since the Act of May 24, 1923, P. L. 439, amending the Act of May 11, 1911, P. L. 279, a mere inadequacy of charge may be assigned as error under a general exception, ordinarily this court will not reverse on complaint based thereon, unless it also appears that the statements made are misleading, constituting, in effect, errors of law, which latter fault cannot be overlooked or accounted harmless: McCaffrey v. Schwartz, supra, p. 568 . *41 For the reason stated, the sixth assignment of error is sustained, and the judgment is reversed with a venire facias de novo.

1930Rubber Co., 96 Pa. Superior Ct. 463 . *467 The sixth assignment of error is the only one which raises the question involved.

1912It was declared very explicitly, in the recent case of Kucker v. Sunlight Oil & Gasoline Co., 230 Pa. 528 , that, where an act is plainly in conflict with the organic law of the state, “old age cannot give it life and when the issue of its constitutionality is properly raised it must be declared void.” But it was said, in the same connection, that a court should hesitate to declare a statute unconstitutional, and where it has been on the statute books for many years the hesitation should be all the greater.

1910The question raised by the sixth assignment of error, so far as it relates to the value of the plaintiff’s clothing contained in the trunk for use by her, as distinguished from what it could be sold for in the market, is answered by the decision in Fairfax v. New York Central & Hudson River Railroad Co., 73 N. Y. 167 , where the court said: “The court did not err in charging the jury that the plaintiff was entitled to recover the full value of the clothing for use to him, in New York, and not merely what it could be sold for in money.

1909We are the tail end and we have to take it all.” If this flow of water, not only in the gutter but over the whole surface of the street, was due exclusively to the filling up of the adjacent lots by the property owners — if that is what the witness meant — the principle thus stated in the syllabus of Strauss v. Allentown, 215 Pa. 96 , would seem to be applicable: “A city is not liable to a property owner for the increased flow of surface water over or onto his property, arising merely from the changes in the character of the surface produced by the opening of streets, building of houses, etc.,

1904In the case of Philadelphia v. Gowen, 202 Pa. 453 , wherein the question was whether or not the property was rural, it was held that the records of the board of revision of taxes, which showed that in the year the work was done the property was assessed as urban at the full city rate, were not admissible in evidence for the plaintiff for the purpose of proving that the property was urban.

1896Inasmuch, however, as the question of the constitutionality of the act goes to the root of the controversy in this case, it will be well for us to consider and pass upon this assignment of error, although in general, as was held in Wright v. Wood, 23 Pa. 120 , that “a point not made below is not the subject of an assignment of error ” will be adhered to by this court in considering questions raised upon appeal, yet under the exceptional circumstances of the case we depart from the general usage, because of the fundamental character of the objection.

1896The general rule, equally applicable to spark arresters, pilots, fenders and other devices intended to promote the safety of persons and property, whether used on steam or street railways, is briefly stated in Henderson v. Railway Company, 144 Pa. 461 , as follows: “ It is the duty of railway companies to adopt the best precautions against danger in general use and which experience has shown to be superior and effectual, and to avail themselves of every such known safeguard or generally approved invention, to lessen the danger.” In 3 Wood on Railroads, 1578, the author says: “This rule does no