statement made two days after the accident, | whereby he was injured. The proofs presentexcept as to the breaking of the window. Six ed by him were that on his return to the witnesses for the defendant, four of whom were passengers, testified that the car was standing still when the driver of the cart turned his horses to the east on a cross street, and, as his wagon swung around, the projecting end of the tailboard broke the glass; that no other part of the car was touched by the cart; that no passenger was thrown to the floor or injured in any way. The issue of fact raised was submitted to the jury by a charge that was accurate, full, and entirely just to both parties.

No useful purpose would be served by reviewing in detail the numerous assignments of error. The learned trial judge was clearly right in charging that no presumption of negligence arose from the fact that the plain- | tiff was injured while a passenger. The accident did not result from a defect in the means or appliances of transportation, but from a collision between the side of the car while it was on its track and an object not under the control or management of the defendant, as in Railway Co. v. Gibson, 96 Pa. 83. The request for charge was properly refused because of fatal defects in asking for peremptory instructions in favor of the plain

tiff.

The judgment is affirmed.

(227 Pa. 312)

LAYTON v. UNION TRACTION CO. (Supreme Court of Pennsylvania. Feb. 21, 1910.)

MASTER AND SERVANT (§ 129*) INJURY TO
SERVANT-PROXIMATE CAUSE.

Where a motorman is injured by a horse running into the front of a street car, crashing through the glass, the company is not liable because of a defective air brake, where the evidence fails to show any connection between the working of the brake and the accident.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 262; Dec. Dig. § 129.*] Appeal from Court of Common Pleas, Philadelphia County.

Action by James H. Layton against the Union Traction Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ.

John M. Doyle and Eugene Raymond, for appellant. Thomas Leaming and Russell Duane, for appellee.

PER CURIAM. The plaintiff was employed by the defendant as a motorman. He alleged in his statement of claim that he was sent out with a car known by the defendant to be defective, and that, because of the defective condition of the car, he was unable to control its motion, and it ran into a horse,

car barn on a previous trip he told the electrician who had charge of the repair work that the air brake did not work satisfactorily, and asked to have it fixed. Before starting on the next trip he was told that the car had been fixed and was all right. On this trip the brake worked perfectly until he had run a distance of about 15 blocks, when he observed that it was "just not working exactly right." As he proceeded the defect became somewhat more noticeable. He was able to stop the car, but not so quickly as if the brake had been in perfect condition. After he had gone some 12 blocks further, and while going on a downgrade at ordinary speed, he saw a runaway horse on the track 75 feet directly in front of him and approaching the car. He applied the brake, and as the car stopped the horse crashed through the glass of the vestibule of the car.

It is difficult to trace any causal connection between the defective working of the brake and the accident. The car did not run into the horse. The horse ran into the car. This would have happened if the brake had been perfect and the car had been stopped a few feet farther back. It is argued that, if the car had stopped sooner, the plaintiff would have had time to step from the vestibule to the street, or to have opened the door behind him and gone into the body of the car. The probability of the horse turning to one side of the car was certainly greater than that he would run directly into its front, and the vestibule was a safer place than the street at its side. When the plaintiff first saw the horse, it was on the track 75 feet from him, and the car and the horse were rapidly approaching each other. That in the two or three seconds that intervened before the collision, he could have stopped any car, opened the door behind him, and stepped back to a place of safety is highly improbable. He did not even contemplate doing so. The whole argument is based on fanciful assumptions of what possibly might have happened if the circumstances had been

different.

The judgment is affirmed.

(227 Pa. 308) COLUMBIA AVE. TRUST CO. v. KING. (Supreme Court of Pennsylvania. Feb. 21, 1910.)

1. PRINCIPAL AND SURETY (8 23*)-LIABILITY OF SURETY-CONDITIONAL SIGNATure.

Where a surety on a bond became such on condition that another should become a COsurety, and the obligee in the bond received the instrument with this understanding and subsethe surety who did sign was discharged. quently the proposed co-surety refused to sign,

[Ed. Note.-For other cases, see Principal and Surety, Cent. Dig. § 49; Dec. Dig. § 23.*]

2. PRINCIPAL AND SURETY (§ 162*)-ACTION | time. As I say, it has been seven years ago ON BOND EVIDENCE. when in Mr. Cuming's office we talked this matter over, and I do not remember whether I sent him the bond or took it to him. That is the reason I say I do not remember whether I handed it to him or not. He sent for me, or I went to see him, I do not re[Ed. Note.-For other cases, see Principal member which, and we talked the matter and Surety, Cent. Dig. 443; Dec. Dig. over, but Mr. King said he did not want to 162.*] be held on the bond without the other sig

Appeal from Court of Common Pleas, Phil- nature, and I said I would get it just as soon adelphia County. as I could, that would be in two or three days."

For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

taken upon any such condition by the trust company. The testimony of Williams relied on to prove notice is vague, indefinite, inconsistent, and in some instances contradictory. When put to the test, he would not say that notice of the conditional signing by King was given to Cuming before the delivery of the bond. If given after the delivery, it was too late because in the absence of notice the trust company had a right to reply on the bond according to its terms when delivered and accepted. The rights and liabilities of the parties were fixed as of that date. The bond on its face was an absolute undertaking, and the testimony of Williams is too vague and indefinite to permit a jury to guess or conjecture whether some other kind of liability was intended by the parties. The learned trial judge was clearly right in the disposition of the case, and we are not convinced that any substantial error was committed.

Judgment affirmed.

(227 Pa. 314)

At the trial it appeared that in 1903 the defendant sold to the plaintiff a gas engine for $5,350. The plaintiff paid the whole of the purchase money, and kept and used the machine for two years. The present action was brought for the breach of a warranty in the sale of the engine.

The defendant presented this point: "(4) That the plaintiff in the statement of claim filed in this case having made no claim as an item of damage for the difference in the value of the engine and producer which were to be delivered, and the value of the engine and producer actually delivered, it cannot recover such difference, even if you should find that the engine and producer delivered were not of the value of the engine and producer contracted for. Answer: I decline that point."

Plaintiff's counsel proposed to send a statement out with the jury. "Mr. Carr: I object to the statement being sent out by plaintiff's counsel. I think the jury should make the calculation for themselves. Mr. Scott: Every item is according to the figures except the item of $2,500 for the difference between

FOWLER WASTE MFG. CO. v. OTTO GAS an engine such as we received and the other.

ENGINE WORKS.

(Supreme Court of Pennsylvania. Feb. 21, 1910.)

1. APPEAL AND ERROR (§ 743*)—ASSIGNMENTS OF ERROR-SUFFICIENCY.

An assignment of error not containing a reference to the page of the paper book where the matter complained of may be found will not be considered.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 2999; Dec. Dig. § 743.*] 2. APPEAL AND ERROR (§ 501*)-ASSIGNMENTS OF ERROR-INSTRUCTIONS.

In my speech to the jury I told them very clearly that we had fixed at that. The Court (to Mr. Carr): You can send out your own statement if you desire. Mr. Carr: I have no statement. I will have to insist on my objection. The Court: I will allow the statement to go out. (Exception noted for defendant by direction of the court.) The Court: Gentlemen of the jury, there will be handed to you by counsel for the plaintiff a statement setting forth the figures which constitute the claim which the plaintiff makes. That is not evidence. It is merely the counsel's argument. You may believe that there is something in it or you may believe there is nothing in it. It is merely for the purpose of stating to you what the claim is. You must pass your own judgment on the In an action to recover for breach of warcase and reach your own conclusion in reranty in the sale of an engine, where plaintiff paid for it and used it for more than two years, gard to what your verdict should be, wheththe measure of damages is the difference beer for the plaintiff or for the defendant, and, tween its value as warranted and its real value. if it be for the plaintiff, for how much." [Ed. Note. For other cases, see Sales, Cent. Dig. 1285; Dec. Dig. § 442.*]

Where assignments of error to the instructions show no exceptions taken to the charge. or to the answers to points, they will not be

considered.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 2304; Dec. Dig. § 501.*] 3. SALES (§ 442*)-BREACH OF WARRANTYDAMAGES.

4. TRIAL (8 307*) TAKING STATEMENTS OF COUNSEL AS TO DAMAGES TO JURY ROOM.

In an action for breach of warranty in the sale of an engine, it is error to allow the jury to take a calculation of plaintiff's counsel as to the amount of verdict to which he thought plaintiff was entitled, where there is no evidence to support the calculation, or to show the value of the engine furnished.

[Ed. Note.-For other cases, see Trial, Cent. Dig. 732; Dec. Dig. § 307.*]

Verdict and judgment for plaintiff for $3,745.42. Defendant appealed.

Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ.

John G. Johnson and George Wentworth Carr, for appellant. Henry J. Scott and Albert W. Sanson, for appellee.

POTTER, J. The defendant in this case sold to the plaintiff a gas engine, warrant

Appeal from Court of Common Pleas, Phil- ed to develop under certain conditions a adelphia County.

Action by the Fowler Waste Manufacturing Company against the Otto Gas Engine Works. Judgment for plaintiff, and defendant appeals. Reversed.

specified amount of power. Plaintiff received, used, and paid for the engine, but claimed that it never worked in a satisfactory manner, and that it would not under any circumstances produce the stipulated amount of

power. This action was brought to recover | case, would be the difference between the the damages resulting from the alleged contract price and what was the value of oreach of the warranty. The trial resulted the machine, such as it was." But he did in a verdict for the plaintiff for $3,745.42, not stop with this, and in another part of and from the judgment entered upon this his charge he permitted the jury to take inverdict the defendant has appealed. Nine to consideration as part of the damages the assignments of error have been filed. The alleged loss of productive power in the factofirst specification violates rule 31, as it does ry, owing to the decrease in the power of the not contain a reference to the page of the engine. This could mean nothing less than paper book where the matter complained of loss of profits in the business, and would be may be found in the printed evidence. This too remote and uncertain an element for assignment must therefore be dismissed. proper consideration by the jury, in estimatDowney Bros. v. Penna. R. R. Co., 219 Pa. ing the damages. 32, 67 Atl. 916. The second, third, and fourth assignments are to the charge of the court, and the sixth and seventh complain of answers to points submitted by defendant. The record shows no exception taken at the trial either to the charge or to the answers to the particular points referred to in these assignments. For this reason they cannot be considered. Sibley v. Robertson, 212 Pa. 24, 61 Atl. 426; McConnell v. Penna. R. R. Co., 206 Pa. 370, 55 Atl. 1029. Counsel recognized the force and effect of the rule at the argument, and did not press the assignments in question.

Defendant's fourth point recited that in plaintiff's statement no claim had been made, as an item of damages, for the difference in value between the engine delivered and that which was purchased; and, as defendant maintained that under the evidence this was the only proper measure of damages, it was contended that no recovery could be had. The refusal of the fourth point is made the subject of the fifth assignment of error. It is true that plaintiff's statement of claim does not plainly define the cause of action, and does not make it clear whether the plaintiff intended to rescind the contract, or to claim in affirmance thereof. But, as the fourth point presented by defendant asks for binding instructions in its favor, it was not error to refuse it. If there was a breach of its warranty, the defendant was bound to respond in damages to the plaintiff to the amount of the difference in value between the engine furnished, and that which it contracted to supply. As the trial judge states in his charge, the evidence shows no attempt upon the part of the plaintiff to rescind the contract. Its whole course of action showed a positive affirmance or ratification of the contract. It kept the engine, and used it more than two years, and is therefore only entitled to recover the damages arising from the breach of the warranty. Under such circumstances, the measure of damages is the difference between the value of the article as warranted, and the real value of that which was furnished. Seigworth v. Leffel, 76 Pa. 476; Himes v. Kiehl, 154 Pa. 190, 25 Atl. 632. The learned trial judge evidently had this rule in mind, for he said to the jury: "The most that the plaintiff can recover upon the element of price, If it is entitled to recover damages in this

Counsel for appellant further allege, in the ninth assignment, that the trial judge erred in permitting plaintiff's counsel, against objection, to send out with the jury a statement and calculation prepared by counsel, for the purpose of indicating to the jury the amount of the verdict to which he thought the plaintiff was entitled. The record does not show what the statement contained, except as to one item of $2,500 for the difference between the value of the engine received, and another. We do not find anything in the evidence to support this estimate, or indicate the actual value of the engine and producer which was furnished. The point raised by this assignment seems to fall directly within the ruling in Himes v. Kiehl, 154 Pa. 190, 196, 25 Atl. 632. The cause of action there was similar to the one before us now, and it was there held that the measure of damages was: "The difference between the actual value of the engine as it was at the time of the sale and its value if it had been as warranted." The trial judge in that case permitted a statement to be sent out with the jury which contained the following: "Difference between actual value and guaranteed value-$150." This action by the court was held to be error, and it was pointed out that the matter in dispute was not represented by any fixed sum, but was essentially a matter to be determined under all the evidence, and by the jury alone. So in the present case, the claim being for unliquidated damages, the fixing of the amount was a question peculiarly appropriate for the judgment of the jury, under the evidence. In Quinn v. Transit Co., 224 Pa. 162, 165, 73 Atl. 319, 320, we said: "It is error for counsel to state to the jury the amount of damages claimed in the declaration. The damages are to be ascertained by the jury from the evidence, and are not to be determined by any estimate of counsel not based on the evidence. Any suggestion to the jury of the arbitrary amount in which the damages are laid in the declaration is highly improper. Reese v. Hershey, 163 Pa. 253 [29 Atl. 907, 43 Ain. St. Rep. 795]." It must be manifest that it would be equally injurious for counsel to hand to the jury a written statement, as was done in this case, containing at least one large item which was merely his own estimate of the amount of the damages sustained by his client in that particular,