breaking of a rail which was caused by its resting upon rotten ties. It was further shown that the ties were of hemlock, and had been allowed to remain in place for 12 or 13 years. This was regarded as clear evidence of negligence on the part of the company.

The plaintiff also complains here of the exclusion of proof of declarations made about half an hour after the accident by Harry Taylor, the division foreman. This evidence was properly excluded. It is clear that such declarations were not a part of the res gestæ. When they were made, the time which had elapsed since the accident was sufficient to convert them into a mere narrative of a past occurrence. We think the trial court was justified in assuming the responsibility in this case of directing a verdict for the defendant.

The assignments of error are all overruled, and the judgment is affirmed.

(206 Pa. 459)

BALDWIN v. URNER.

(Supreme Court of Pennsylvania. July 9, 1903.)

INJURY TO EMPLOYE-NONSUIT.

1. Evidence in an action to recover damages for injuries to a boy 18 years old, while in the employ of defendant, construed, and held that there was no error in entering a compulsory nonsuit.

Appeal from Court of Common Pleas, Montgomery County.

Action by Harry M. Baldwin, by his father and next friend, William H. Baldwin, against W. C. Urner, trading as W. C. Urner & Co. From an order refusing to take off a nonsuit, plaintiff appeals. Affirmed.

The locality of the accident is indicated by the following plan:

machines, and had done so for about one month before February 12, 1901. Some time before his last employment he had served in the same way at the same machines for two months, but had been changed to other work in another part of the mill, and after an interval of two or three months was changed back to the same 10 machines. On the day mentioned plaintiff met with a serious accident, and is probably permanently injured. The circumstances under which it occurred, and those tending to produce it, are correctly stated from the testimony by the learned judge of the court below as follows:

"A freight elevator was located in a corner of the factory building. When the cage of the elevator was lifted to the third floor two doors opened automatically, and rested against upright posts, one on each side of the elevator shaft. When the cage descended the automatic doors closed, and formed part of the room floor. One of the upright posts against which an open door rested was next to the wall of the building, and the space between the elevator shaft and this wall was about 20 inches. The space between the shaft and the other corner wall was about 12 inches. A box containing tags stood in the corner of the room behind the elevator doors. The 12-inch passageway was boarded up, and some boxes standing in the 20-inch space prevented access to the tag box by that passageway. The 20-inch passageway between the elevator and the wall fronted on an aisle 6 feet wide. The yarn boxes which obstructed the passageway between the elevator and the wall did not extend into the aisle, nor did they fill all the space between the elevator and the wall. There was no difficulty in pulling them out into the aisle along the wall, and thereby give a passageway to the tag box. This was what was actually done at the time the plaintiff's limb was caught between the door and the upright post. These boxes stood between the elevator and the wall for 'quite a while.' It is not shown that the defendant placed them or ordered them placed in the passageway to the tag box. The only evidence upon this point indicates that the boxes were put there by the fellow workmen of the plaintiff. On February 12, 1901, the plaintiff walked over the elevator doors, took some tags from the box, and as he turned to go back to his machines the cage raised the doors and caught his leg. The leg was fastened between the opened door and the upright post. It was necessary that the knitters should supply themselves with tags from the box, and they were in the habit of crossing the elevator doors to reach the tag box. It was the only open way so long as the yarn boxes remained in the 20-inch passageway, or so long as the tag box remained in the corner of the building behind the elevator."

The court below, being of opinion there was no sufficient evidence of negligence on part of defendants, directed a nonsuit, which

it afterwards refused to take off, and we have this appeal by plaintiff.

Appellant, in substance, assigns three errors: (1) It is averred that the employers failed in duty towards plaintiff, in that they did not provide a reasonably safe place for him to work. (2) While plaintiff was at work they subjected him to wholly unnecessary danger. (3) Plaintiff being a young person, his employers did not instruct him as to the dangerous character of his employment and as to the means of avoiding, danger.

As to the first complaint, we have most carefully perused the testimony, and can find nothing to sustain it. The immediate cause of the injury was the operation of the freight elevator which was used to raise raw material from the ground to the third floor where the machines were placed, and to lower from that floor the finished product. It was properly constructed and operated, and could not answer its purpose without an exit from below in the floor; automatically, when it approached the floor, the doors which at other times formed part of the floor raised up and closed down again when the elevator descended. Plaintiff in his testimony says: "I got my tags, and was returning, and got about the middle of the doors, when they raised under my feet.

* The doors slid me up against the post on that side." Here was machinery operating exactly as it was intended to operate, and which was reasonably necessary to the successful carrying on of the factory. The floor was entirely safe, except in that particular spot-that is, on the doors where plaintiff was standing-and even there, except for the very few minutes when the elevator was ascending to that floor. Outside of the doors there was a safe passageway at all times not interfered with by the elevator and doors. Taking into view the nature of the work being carried on, the necessity of an elevator, that plaintiff was employed on the third floor, we think the employers furnished plaintiff with a reasonably safe place to work. There is no factory operated by machinery and hands, in which more or less risk is not run by the employés working in such factory. The risk is only minimized by the very utmost care; it is not abolished. But the employer is not held up to the very highest standard of careonly to reasonable care, in view of the circumstances. The highest standard of care here would have been to get rid of the elevator altogether, and carry the material up and down stairs.

It is argued that the elevator might have been located at an opening in another part of the floor less used by the employés. This is possible, but, if a fact, it does not prove that, in view of its intended purpose, it was not rightly located in that building. Its proper location must be determined by the reasonable judgment of the manufacturer. Un

less the evidence showed a reckless indifference to the safety of employés, his judgment must be taken in preference to that of the jury, who had no special knowledge on the subject. There was no evidence by manufacturers or experts that the location was unreasonably dangerous.

As to the second complaint, that appellant in his work was subject to wholly unnecessary danger, it appears from the evidence that in carrying on his work appellant had to go across the floor from his machines to yarn and tag boxes, and that when injured he was returning from the tag box across the elevator doors to the machine with tags. Undoubtedly, there was more danger in stepping on the doors than on the floor outside. But appellant voluntarily stepped on the doors, because that way was at the time most convenient to him. It is said the passageway at one side was obstructed by boxes; but the evidence is that that place for the boxes was not designated by the employer. They were put there by employés, and could easily have been removed, so as to leave the way open. No rule of law would impute this act of negligence by employés to their employer. He planned his place of work so as to leave an entirely safe passage. He planned the automatic doors so that there would be no dangerous opening at any time, except when the elevator made its trip to the third floor. Everything was done that reasonable prudence would dictate to lessen danger. The unnecessary danger was caused by the voluntary act of appellant in unnecessarily walking on the doors when there was an entirely safe way outside.

As to the third ground of complaint, that appellant, being young, was not properly instructed as to the danger of his employment, it will be noticed appellant was not injured in the use of the knitting machines which he attended; therefore most of the authorities cited have no application. He was injured by the operation of outside independent machinery-an elevator operated by others. Kehler v. Schwenk, 144 Pa. 348, 22 Atl. 910, 13 L. R. A. 374, 27 Am. St. Rep. 633, Rummell v. Dilworth, 111 Pa. 343, 2 Atl. 355, 363, and that line of cases, aid us very little in determining the application of the law to the facts before us. Plaintiff had worked at these same machines for two months, and then, after a short interval, for one month immediately before the accident. As is apparent from his own testimony, although a minor, he was bright and intelligent. He had seen the operation of this elevator-the raising and lowering of the doors-many times. Whatever danger there was, was just as obvious to him as to his employer or superintendent. A mere child would have understood that there was danger in being on those doors when the elevator was ascending. No possible instruction could have made that fact clearer to him than his own observation and experience had made it. It was not a

latent danger, of which he would not know unless informed-was not one which was only to be avoided by some special manipulation of machinery. The danger had only to be known to be avoided, as in O'Keefe v. Thorn (Pa.) 16 Atl. 737, and Kaufhold v. Arnold, 163 Pa. 269, 29 Atl. 883. He knew when the doors were up it was dangerous to jump down the elevator shaft; he knew just as well that it was dangerous to be on the doors when the elevator was coming up. Therefore there was no duty on the part of the employer to give him instructions; certainly not after his long observation had given him as full knowledge as possessed by his employer.

All the assignments of error are overruled, and the judgment is affirmed.

(206 Pa. 570)

BURTON, Sheriff, v. ERIE COUNTY. (Supreme Court of Pennsylvania. July 9, 1903.)

COUNTIES-BOARD

OF PRISONERS-LIABILITY TO SHERIFF-VIOLATION OF ORDINANCES. 1. The county of Erie is bound to pay the sheriff for the board of prisoners committed to the county jail by the mayor and aldermen of the city of Erie for violation of city ordinances.

2. Act May 23, 1889 (P. L. 277), authorizing enforcement of city ordinances, imposition of penalties for their violation, and commitment to the county jail, gives the mayor and aldermen of a city power to commit to such jail persons guilty of violating the ordinances.

Appeal from Court of Common Pleas, Erie County; Walling, Judge.

Action by S. S. Burton, sheriff, against Erie County. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued before MITCHELL, DEAN, FELL, MESTREZAT, and POTTER, JJ.

A. E. Sisson and George E. Gibson, for appellant. E. L. Whittelsey, for appellee.

DEAN, J. The plaintiff claimed from the county of Erie $1,593.38 for boarding prisoners in the county jail. The county auditors passed and allowed his claim, resulting in this balance at their settlement of the sheriff's accounts for the year 1901. There is no dispute as to the amount of the claim. The county, however, denied that it was answerable to the officer for the bill. On filing of the audit it appealed to the court of common pleas, where an issue was framed between the parties to determine whether the county was answerable. At the trial of the issue the county denied that it was in law bound to pay the sheriff for the board of prisoners committed to jail by the mayor and aldermen of the city of Erie in default of payment of fines for violation of city ordinances. The court below was of opinion that the county was legally bound to pay, and instructed the jury to render a verdict for the balance claimed, as heretofore noted. It is

proper to say here that the entire balance is made up of fines and commitment fees for violation of city ordinances. After judgment on the verdict, the county brings this appeal to this court under the act of 1901 (P. L. 185).

The only question involved at the trial in the court below was: "Is the county of Erie liable for the boarding of prisoners committed by the mayor and aldermen of the city of Erie for the nonpayment of fines imposed for the violation of city ordinances?" And that is the only question here, for while there are six assignments of error they are all disposed of by the answer to that one question. The duty of the sheriff to keep the jail and board the prisoners committed thereto has been fixed by statute since before the Revolution, as well as compensation therefor, which last was to be paid by the county. The act of February 24, 1770 (1 Smith's Laws, p. 309), enacts "that all persons committed for any criminal offense whatsoever shall, during their imprisonment, have and receive three pence per diem each"; and it further directed that the commissioners for each county should pay the same to the sheriff for the diet and support of such While criminals out of the county funds. several acts have since been passed for fixing the per diem allowance of the sheriff for each prisoner in jail, and special acts for the appointment in some counties of jailers or wardens of the jail, to have direct personal supervision of the prisoners when in the jail, the official responsibility of the sheriff for the board and safe-keeping of the prisoners has not been interfered with. The sheriff, then, in Erie county, was bound to receive on proper commitment all prisoners delivered to him. He was then bound by law to safely keep and board them until they were lawfully discharged either by expiration of term or by order of the proper court. Who shall pay, not for prisoners committed for any particular offense or crime, but for prisoners kept in prison and boarded by the sheriff? His conduct is not voluntary. He is bound to receive and board them. While the act uses the words, "committed for any criminal offense whatsoever," it is manifest these words were used to designate prisoners committed for any offense punishable by fine and imprisonment, to distinguish them from persons imprisoned on capias for debt, which class, up to the act of 1842 (P. L. 339), abolishing imprisonment for debt, probably numbered as many as the other. For these a different provision was made. If the commitment be in form, and made out by a properly authorized officer, whether a judge of a court of record, coroner, mayor, alderman, or justice of the peace, the sheriff must obey it. He is not clothed with the functions of a court of errors and appeals. He cannot sit at the jail door and determine, as on a certiorari, that the proceedings were irregular, or, as on an appeal, that the com

mitment was unjust to the prisoner. His single duty is to receive and safely keep.

It may be assumed that, if no provision for payment of the boarding of prisoners had been made, the sheriff would have been bound to board them at his own expense. The presumption would be that he accepted his office cum onere. But the statutes from that of 1770 down to that of 1856 and the special act of 1866 (P. L. 211)-this last relating to Erie and five other counties-do make provision for the boarding of prisoners, and that the court of quarter sessions shall fix the rate. No distinction is made as to the locality or nature of the offense. Those in custody are simply termed "prisoners." Nowhere in the statutes can we find any authority in the county auditors or in the courts to make any distinction between prisoners committed for a violation of the general laws of the commonwealth and those committed for violations of borough or city ordinances. In fact, there is no distinction in substance. The one, although operative within certain municipal territorial limits, is as much against the "peace and dignity" of the commonwealth as any offense committed outside those limits. A borough or city has a concentrated and dense population, whose health, comfort, and safety demand special laws operative within municipal boundaries. Trespasses on each other's rights and acts detrimental to the rights of all are more easily committed there than in sparsely settled regions. Therefore the commonwealth delegated to these subordinate divisions of her territory the power to make laws for their government not inconsistent with the Constitution and laws of the commonwealth. Although the authority is a delegated one, it is just as high as the Constitution or General Assembly, for in them it has its source. When this authority is exercised within the limits of the Constitution and laws, it is promotive not only of the well-being of the municipality, but of the interests of all the people of the commonwealth. No one would think that a township supervisor, although his jurisdiction extends only to the boundaries of his township, could neglect his duty without injury to the general public. So all the people of the state to a greater or less degree are interested in the good government of the city of Erie by ordinances which promote travel on its streets, peace in its public assemblies, and health within its borders. There are no subdivisions of the state in which the entire people of the state have not an interest. And so we think violators of the municipal laws of the city are as much the prisoners of the commonwealth and county as those who commit offenses outside of it.

Had the mayor and aldermen of the city power to commit to the county jail persons guilty of violating city ordinances? We think the act of May 23, 1889 (P. L. 277) confers this power. The act authorizes the enactment of ordinances, the imposition of fines

and penalties for their violation, and commitment to the county jail. It is suggested by counsel for appellant that the Legislature was without authority to thus appropriate the county jail to the use of a city. The county being only a subdivision of the commonwealth, created for convenience in government, the Legislature had full authority over the public property within it, unless that authority is restricted or withheld by the Constitution. There is no constitutional inhibition that we are aware of. Therefore there was no legislative transgression of authority in directing commitment to the county jail. The scope of legislative power over counties is so fully discussed in Phila. v. Fox, 64 Pa. 169, by Justice Sharswood, that any repetition here is unnecessary.

As to the suggestion that the use of the county jail by the city ought to be the subject of contract between the county and city, we do not care to discuss that question, because it has no bearing on this issue. The Legislature had the power to direct the use of the jail by the city, and exercised that power. We cannot determine whether in so doing it acted wisely. Perhaps such an appeal to the Legislature would be favorably considered. We decide only that the sheriff was bound to receive and board prisoners committed to the jail by the mayor and aldermen of the city of Erie for violation of city ordinances, and that the county is bound to pay the sheriff for the board of the prisoners so committed.

All the assignments of error are overruled, and the judgment is affirmed.

(206 Pa. 582)

CITY OF BRADFORD v. NEW YORK & P. TELEPHONE & TELEGRAPH CO. et al. (Supreme Court of Pennsylvania. July 9, 1903.)

MUNICIPAL CORPORATIONS-REMOVAL OF TELEGRAPH POLES-LACHES.

1. A city filed a bill to compel a telegraph and telephone company to remove its poles and wires from the streets which it had occupied for more than 21 years without objection, after an expenditure of about $100,000. Many resolutions of the city council had given permission for the erection and use of the poles and crossarms on the streets. In consideration of the privileges, the city had obtained a right to the use of the poles for the carrying of the firealarm system, and had also levied licenses and pole taxes, and had used telephones furnished by the company down to the date of the hearing, and had regulated by ordinance the manner in which the poles should be erected under the direction of the street committee of council or the city engineer. Held, that the bill was properly dismissed for laches.

Appeal from Court of Common Pleas, McKean County; Morrison, Judge.

Bill by the city of Bradford against the New York & Pennsylvania Telephone & Telegraph Company and another. From a decree dismissing the bill, plaintiff appeals. Affirmed.

The bill alleged the incorporation of the plaintiff as a city of the third class, and the incorporation of the defendant the Pennsylvania & New York Telephone & Telegraph Company under the general corporation act of April 29, 1874, its supplements and amendments, with particular reference to the act of May 1, 1876 (P. L. 90), as amended by the act of June 25, 1885 (P. L. 164). It alleged the incorporation of the defendant the New York & Pennsylvania Telegraph & Telephone Company under the laws of the state of New York. It further alleged that, by the acts of assembly under which the defendant the Pennsylvania & New York Telegraph & Telephone Company is incorporated, defendant is authorized to use and occupy the streets of the city for the purpose of constructing and maintaining telephone lines only after consent obtained from the city by ordinance; that the defendant the New York & Pennsylvania Telephone & Telegraph Company is without authority under any circumstances to erect or maintain poles or wires on the streets of the plaintiff city. It further averred that the defendant companies have erected and are maintaining a large number of poles in the city, and have strung and placed thereon a large number of wires and cables, without warrant of law or permission from the city of Bradford, and are using the same for the purpose of carrying on a telephone business and operating a telephone exchange in said city, and are continually placing new obstructions in the plaintiff city by erecting new poles and stringing new wires; that the poles so erected are owned by the Pennsylvania corporation, the Pennsylvania & New York Telephone & Telegraph Company, and leased by them to the New York corporation, the New York & Pennsylvania Telegraph & Telephone Company; and that the plaintiff city required the defendants to remove their poles and wires from the streets of said city, but the defendants have refused so to do. The bill asked that the defendants be restrained from erecting any new poles or stringing any new wires upon the streets of the plaintiff city, and that they be required to remove the poles, wires, and cables in place or erected by them.

The answer admitted the incorporation of the plaintiff city, and the incorporation of the defendants as alleged in the bill, but denied that the Pennsylvania corporation comes within the provisions of the act of May 1, 1876. The defendants admitted having a large number of poles and wires on the streets of said city, as alleged in the bill, but denied that they were erected without consent of the city, and averred that the defendants are the owners of certain franchises and rights to erect and maintain poles and wires upon the streets of the plaintiff city, pursuant to the contract between the city and the Bradford Telephone Exchange, made in 1879, to whose right the defendants have succeeded. The answer averred that in pur

suance of said contract the Bradford Telephone Exchange erected a large number of poles, and strung wires upon the streets, which are now a part of the system of the defendant companies, and that the plaintiff city is now, and has been since the inception of said system, using the poles thereof for the carrying of the wires of its fire alarm system. It averred that all poles erected and all wires strung by defendant companies were erected and strung by the proper permission of the proper authorities of the plaintiff city. It averred that the plaintiff city had recognized the defendant companies by imposing upon them and collecting from them certain licenses from time to time. It further averred that the defendants and their predecessors in title have exercised the rights and privileges which they are now claiming for a period of 21 years previous to the filing of the bill in this case. It further averred that the defendant companies are engaged in interstate commerce, and are therefore entitled to the privileges and immunities granted by the Constitution and laws of the United States, and further denied that the plaintiff city is entitled to the relief prayed for. Argued before DEAN, FELL, BROWN, MESTREZAT, and POTTER, JJ.

W. E. Burdick and F. P. Schoonmaker, for appellant. George A. Berry, John G. Johnson, D. H. Jack, and Robert L. Edgett, for appellees.

BROWN, J. Under nine different heads, the court below passed upon twelve distinct questions regarded by it as involved in the decision of this case, and counsel for appellant and appellees discuss them in most elaborate printed arguments; but, as it is clear to us that the long acquiescence of the city of Bradford in what was done by the appellees and their predecessors, and its laches in filing this bill, are conclusive against its right to do so, no other question need or will be considered here.

In the court's eighth conclusion of law there is a summary of material facts, which were fairly found from the testimony. They are that the borough of Bradford and the city of Bradford, its corporate successor, had permitted the defendants and their predecessors in ownership for more than 21 years to occupy the streets and highways of the said borough and city with poles and wires; that, without protest or objection, the borough and city stood silently by while the defendants were, during this period, making. in good faith, an expenditure of from $75,000 to $100,000; that by numerous resolutions passed by both branches of council, and many of them duly approved by the mayor, consent had been given to the erection and use of the poles, cross-arms, etc., on the streets and highways of the city; that for the privileges extended by it to the defendants it had received a valuable consideration in the use of the poles for the carrying of the wires of its