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appertaining to the land owned by the plain- [stream by a riparian owner for purposes
tiff would rise no higher under this act than
that adjudged as incident to land along a
nonnavigable stream; that is, the boom com-
pany had the exclusive right to possession of
the land and water. It could have fenced or
inclosed the pond or reservoir and thus pre-
vented plaintiff from placing its pipe, piles,
and timbers over its land. While the boom
company did not acquire title to the water,
it did enjoy a certain use of it, and while it
remained in the dam its use as to adjoining
landowners was exclusive. The boom com-
pany's right is not to be restricted solely to
the right to collect water in a basin and
store it until called upon for corporate uses,
with a joint right in an adjoining owner to
use the land along the dam and the water
in it for such purposes not then actually de-
priving the company of the use of the water,
as, for instance, the erection of a boathouse
along the dam, building wharves in it, boat-
ing on the surface and the right to cut ice,
or the building of water pipes or projections
into the dam. Reading City v. Davis, supra.
To so hold would not only curtail the estate
secured, but it might so weaken the right or
power of eminent domain as to cause it to be
of no practical effect or use. The enabling
act gave rights to the boom company rela-
tively as high as those given to water com-
panies. Finn v. Gas & Water Co., supra.

other than those incident to the proper enjoy-
ment of the riparian land is unlawful. The
upper riparian owner has a right to the use
of the water of the stream #
* for any
legal purpose, provided he returns it to its'
channel without contamination or substan-
tial diminution." R. R. Co. v. Miller, 112
Pa. 34, 3 Atl. 780; Scranton G. & W. Co. v.
Del. L. & W. R. R., 240 Pa. 604, 610, 88 Atl.
24, 47 L. R. A. (N. S.) 710.

[8, 9] The facts in the case before us are vastly different from those presented in Mayor v. Commissioners of Spring Garden, 7 Pa. 348, and the principles of law here asserted are not in conflict with that decision; the authorities cited by appellant on this phase of the case do not reach the point. Nor do the quoted expressions from Citizens' Electric Co. v. Susquehanna Boom Co., 227 Pa. 448, 76 Atl. 203, control the question now under discussion. That case did not attempt to define what rights this appellant had in the property it now owns. If the appellant has suffered any damage, it has an adequate remedy at law. Irving v. Media Borough,

10 Pa. Super. Ct. 132. And if the defendant boom company is misusing its corporate franchise, the matter may be inquired into by the state, but not by a bill in equity under the Act of June 19, 1871 (P. L. 1360; Pa. St. 1920, §§ 5769, 18473) at the instance of a private person. Croyle v. Johnstown Water Co., 259 Pa. 484, 103 Atl. 303; Gring et al. v. Sinking Springs Water Co., 113 Atl. 435 (not yet [officially] reported).

There is no averment in the bill that the large quantities of water for plaintiff's extraordinary use did not diminish the supply necessary for the boom company, or that, after a temporary use, it was returned to the river, and, in view of the positive statement that in time of drought any diminution or diversion was harmful to plaintiff's works, it is apparent it was exceeding any supposed right in itself to take the water.

From a careful review of the authorities we conclude appellant did not present such an undoubted right to do the things it had been and was proposing to do, as was necessary to support its bill.

The decree of the court below is affirmed, at the costs of appellants.

PIPER v. ADAMS EXPRESS CO. (Supreme Court of Pennsylvania. May 9, 1918.)

1. Appeal and error 930(1)-Plaintiff entitled to have testimony viewed in favorable light when verdict in his favor.

In considering whether there is sufficient evidence to sustain a verdict for plaintiff, the court must view the testimony in the light most favorable to plaintiff, and give him the benefit of every influence to be drawn therefrom.

2. Municipal corporations 705 (4)-Necessity of signal by motor vehicle depends on circumstances, notwithstanding statute.

ing every operator of a motor vehicle to give reasonable warning of his approach by horn or bell when necessary to insure the safety of other users of the highways, is merely a statutory enactment of the common-law duty, and whether a signal is necessary is dependent on the circumstances.

Act July 7, 1913 (P. L. 679) § 13, requir

3. Municipal corporations 706 (6)-Turning to the right in passing vehicle not negligence as a matter of law if proper care exercised.

[10] There is another vital objection to plaintiff's bill. Assuming that it had ripa-ing rian rights, it does not follow that it included the use of water in the quantity and for the purpose claimed. "In a long and unbroken line of cases it has been held that the diversion of water from its natural course in a

Act July 7, 1913 (P. L. 679) § 13, requirthe operator of every motor vehicle overtaken by another vehicle to turn to the right, allowing the other vehicle free passage to the left, does not require a vehicle overtaking another to pass to the left in all cases regardless of the circumstances, the width of the highway, etc., and on a wide boulevard where the

(113 A.)

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Conceding the right of a truck driver to use any portion of the highway open to him, his rights were necessarily subject to equal rights on the part of other users of the highway, and in passing from one side to the other was bound to do so with proper regard to the rights and safety of others who might be attempting to pass.

6. Municipal corporations 705 (2)-Drivers bound to use streets with due consideration for each other's rights.

Drivers of vehicles lawfully using the street are each bound to do so with due consideration for the rights of the other.

of a permanent character and would be more or
less troublesome and painful, it was a question
for the jury whether there was any decrease
in earning power though plaintiff was earning
as much after as before the accident.
11. Damages 187-That there has been no
decrease of earnings not conclusive that there
has been no decrease of earning power.

The loss of earning power occasioned by an injury rather than the loss of future earnings is the proper element of damages, and while the fact that there has been no decrease in earnings to the time of the trial is persuasive evidence, it is not conclusive that there has been no loss of earning power.

Appeal from Court of Common Pleas, Philadelphia County.

Action by Ray D. Piper against Adams Express Company. Judgment for plaintiff for $7,500, and defendant appeals. Affirmed.

Argued before BROWN, C. J., and STEWART, MOSCHZISKER, FRAZER, and WALLING, JJ.

Wm. A. Schnader and Thomas De Witt Cuyler, both of Philadelphia, for appellant. Wm. H. Wilson and Francis M. McAdams, both of Philadelphia, for appellee.

FRAZER, J. This appeal by defendant is from a verdict and judgment for plaintiff in an action for personal injuries sustained by 7. Municipal corporations 706 (7)-Contrib-plaintiff in a collision between his automoutory negligence in attempting to pass truck on right side held for jury.

Whether plaintiff automobile driver was justified in attempting to pass a truck on the right side without warning of his approach held for the jury under the evidence.

8. Municipal corporations 706(6) Negligence in turning to right of street as to one attempting to pass on that side held for jury. Whether a truck driver who was driving in about the middle of a broad street was negligent in turning to the right without looking for the approach of plaintiff, who was attempting to pass on that side, held for the jury.

9. Municipal corporations 705(2)—Drivers

bound to use degree of care of ordinarily

careful driver.

The driver of an automobile and a truck which collided were each required to use the degree of care and caution which an ordinarily careful driver would use under like circumstances.

bile and defendant's motor truck.

With two companions, plaintiff was driving southward on Broad street, Philadelphia, at 1:30 a. m. The street is 69 feet wide

from curb to curb, and according to city

rules the east side is used for northbound traffic and the west for southbound. Various witnesses testified that at the time of the ac

cident defendant's truck, also southbound, was being driven at a speed ranging from 8 to 15 miles an hour, while plaintiff's speed

was from 15 to 18 miles an hour.

[1] A conflict of testimony in regard to the details of the accident exists between

the driver of defendant's truck and another

employee who was riding on the truck on the one hand, and the plaintiff and his two companions on the other; the effect of the conflicting statements was to raise a question of fact for the jury, and, as the verdict was for plaintiff, the only question for us 10. Damages 208 (4)-Decrease of earning to consider is whether sufficient evidence was power from personal injuries held questions adduced to sustain such finding; and in for the jury, though earnings not decreased. determining that question we must view the Where a sales manager in charge of sales- testimony in a light most favorable to plainmen located in various states, and whose du- tiff, and give him the benefit of every inferties required considerable traveling and more ence to be drawn therefrom. According to or less physical exertion, sustained three brothe testimony of plaintiff and his witnesses, ken ribs in an automobile collision, causing internal adhesions resulting in pain on exertion and defendant's truck immediately before the acdifficulty in breathing, and also fractures of the cident was traveling near the center line of kneecaps, one of which failed to properly unite, the street, leaving a clear space of about and there was evidence that the injuries were 30 feet on its right, while defendant's witFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

nesses admitted a distance of from 15 to 20 fic. In absence of express law or ordinance feet between the truck and the curb. Plain- to the contrary, where the machine in adtiff approached from the rear without sig-vance, as in the present case, is traveling on nal, about half way between defendant's the extreme left of the portion of the street truck and the curb. While in the act of allotted to vehicles going in that particular passing, and as the two cars were running direction, and ample space remains on the side by side, separated by a space of from right free from obstruction, a driver who 5 to 10 feet, the truck suddenly, without | takes advantage of the open space and atwarning, turned to the right, and collided with plaintiff's car, coming in contact with it back of the front wheel, turning it over, and inflicting the injuries upon plaintiff for which this action was brought to recover compensation. The street at the time was not obstructed, and, so far as the testimony shows, no other vehicles were in the immediate vicinity.

The contention of defendant in support of its argument for the entry of judgment non obstante veredicto is that, assuming the driver suddenly turned the truck as described by | plaintiff, this act was not negligence on his part in absence of evidence showing he was aware, or should have known, of the presence of plaintiff's car on his right; and further, as plaintiff approached without warning the truck driver owed him no duty of signaling. or otherwise notifying him of his intention to turn into and use a part of the street allotted to southbound traffic. Defendant further argued plaintiff was guilty of contributory negligence in attempting to pass to the right, instead of the left, without signaling his intention to do so.

[2] Section 13 of the Act of July 7, 1913 (P. L. 672, 679), provides that every operator of a motor vehicle shall give reasonable warning of his approach by horn, bell, or other signal "whenever necessary to insure the safety of other users of the highways." This provision is merely a statutory enactment of the duty imposed by the common law upon the driver of every such vehicle. Whether a necessity for signal exists in a particular case must depend upon the cir

cumstances.

[3] The act further provides that"When overtaken by any other vehicle legally traveling at a greater speed, the operator or driver of any motor vehicle, when signaled to do so, shall turn reasonably to the right of the center of the highway, allowing the other vehicle free passage to the left."

tempts to pass on the right cannot be held negligent as matter of law, if in doing so he exercises such care as the circumstances require.

A general rule relating to the use of highways in this state was laid down in Bolton v. Colder, 1 Watts, 360, to the effect that a vehicle desiring to pass another traveling in the same direction may do so on either side if there is convenient room to pass; the court there further said the general rule of the road requiring vehicles moving in opposite directions to pass to the right was made to avoid collision by reason of the confusion that might result from absence of a rule on the subject, and did not apply to vehicles traveling in the same direction. The question was again before the court in Wright v. Mitchell, 252 Pa. 325, 97 Atl. 478. In that case the trial judge charged it was the duty of the vehicle in the rear, in overtaking another, to pass to the left. In reversing judgment for defendant, this court said on page 329 of 252 Pa., on page 480 of 97 Atl.:

"Conceding it to be the duty generally of the driver of one vehicle, overtaking another vehicle, to pass to the left of the one in front, yet be such as to justify him in passing to the right the circumstances of the particular case may of the one which precedes him. Unless there is a statute or municipal regulation to the contrary, one overtaking and passing another may pass on either side, using proper caution, and keeping a safe distance behind when not passing. The leading team may travel anywhere it pleases, using, however, due care. 37 Cyc. 272. It necessarily follows that if the leading team should use the left side of the highway, leaving

insufficient space for the rear team to pass, the latter may pass to the right. If for any other reason, such as the obstruction of the

highway on the left of the leading team by other teams proceeding in the opposite direction,

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a passage to the left of the team in front [is prevented], the rear team may, if there is sufficient space and it can be done by the exercise of proper care, pass to the right of the team in front. The general rule, therefore, that There is nothing in this provision to in- teams traveling in the same direction on a highdicate an intention of the Legislature to re-exceptions, and must be applied with reference way should pass each other to the left has its quire that in all cases, regardless of the cir- to the circumstances of the particular case." cumstances, the width of the highway, the position of the leading vehicle, or the volume of traffic, a vehicle must turn to the left in passing another traveling in the same direction. For example, on a wide boulevard such as Broad street, Philadelphia, or where traffic is congested, such regulation might be unnecessary, or even unreasonable, and a serious hindrance or menace to traf

[4-9] With these cases before us we cannot say, as matter of law, that plaintiff was guilty of contributory negligence in attempting, in view of the open space, to pass to the right of defendant's car; and for the same reason it cannot be said, as matter of law, under the particular circumstances of this case, that the driver of defendant's truck ow

(113 A.)

ed no duty to the driver of the car attempt- [ ferred to are of a permanent character, and ing so to pass him from the rear. While will be more or less troublesome and painful. the measure of the latter's duty must neces- Plaintiff himself testified the injury to his sarily depend upon the conditions of traffic chest interfered with his breathing, and that and other circumstances, no excuse was of- to his leg interfered with rapid locomotion, fered for what, on its face, seemed to be a and prevented him from ascending and decareless act. Conceding his right to use any scending stairs without pain, and that one portion of the highway open to him, and leg was smaller than the other. Notwithstandwhich circumstances, or his desires, may ing this evidence, defendant contends that, as prompt him to use, his rights were neces- plaintiff's earnings in the employment he folsarily subject to equal rights on the part of lowed before and since his injury have not other users of the highway, and in passing decreased, the court committed error in perfrom one side to the other he was bound to mitting the jury to allow damages for loss of do so with proper regard to the rights and future earnings, this contention being based safety of others. Whether defendant's driv- on the theory that loss of earning power is er performed his duty in this respect was represented by the difference between the necessarily for the jury. Both vehicles were earnings the injured person received previlawfully using the street, and each was ous to his injuries and what he subsequently bound to do so with due consideration for received in the same employment. This is the rights of the other. Baker v. Fehr, 97 not the correct rule. The true basis of such Pa. 70. Whether, in view of the width of claim is not for loss of earnings, but loss the space between defendant's truck and the of earning power, occasioned by the injury, right curb, plaintiff was justified in attempt- and the difference between earnings before ing to pass on that side, without warning of and after the injury is merely an item of his approach, and whether defendant's driv- evidence to be considered by the jury in coner, in view of the condition of the street and nection with other evidence in determining the traffic at the time, was negligent in not the extent, if any, the earning power has seeing plaintiff's car, which at the moment been reduced. McLaughlin v. Corry City, 77 was running abreast with his own, or in Pa. 109, 18 Am. Rep. 432; Bockelcamp v. making a sudden turn without anticipating Lackawanna, etc., R. R. Co., 232 Pa. 66, 81 the possibility of colliding with a vehicle Atl. 93. The fact that an injured person that might be approaching in the open space remains in the same position he occupied befrom the rear, are questions that cannot fore his injury was received, at the same be determined by the court as matter of salary, would be persuasive evidence tending law. Each was required to use the degree to show his earning capacity had not been of care and caution an ordinarily careful seriously impaired. The jury, however, may driver would use under like circumstances, consider evidence showing his physical conand whether each performed his duty to dition and the character of the work he perthe other in this respect was properly sub- formed both before and after the accident, mitted to the jury. and award damages for loss of his earning [10, 11] The remaining question is wheth-power, if such evidence justifies the coneluer the court was in error in permitting the jury to compensate plaintiff for loss of future earning power. Plaintiff was sales manager for a company engaged in selling books, and in connection with his duties had charge of from 40 to 60 salesmen, located in various states, and over whom he was required to keep personal supervision by visiting them at different times, which duties necessitated considerable traveling. His average earnings in this occupation were approximately $12,000, yearly. This compensation was in the way of commissions, and was received after the accident in about the same amount

as before.

sion that such power had in fact been reduc-
ed as a result of the injury. Bockelcamp v.

Lackawanna, etc., R. R. Co., supra; Yeager
V. Anthracite Brewing Co., 259 Pa. 123, 102

Atl. 418.

The question was fully considered in the case last cited where it was said on page 128 of 259 Pa., on pages 419, 420 of 102

Atl.:

"The learned counsel for the appellant seemed to think, in view of the fact that the plaintiff's weekly wage was the same after as before the accident, the earning capacity of the plaininjury, and, hence, he was not entitled to recovtiff had not been diminished by reason of the er damages in this case. That is not the standPlaintiff sustained three broken ribs, ard by which the plaintiff's future earning cawhich caused internal adhesions, resulting pacity should be tested; it is whether the powin pain on exertion and difficulty in breath- er or capacity to earn has been diminished as ing; also fractures of the kneecaps, one of a result of the injury. Leonhardt v. Green, 251 which failed to properly unite, and was not Pa. 579. The earnings of the plaintiff, subseas strong as previous to the accident. While quent to the injury, are, as compared with his he has entirely recovered from other inju- conclusive, as to whether his earning power earnings prior to the injury, evidence, but not ries sustained, yet, according to the testi- has been diminished by reason of the injury mony of his physicians, the injuries just re- | resulting from the accident. McLaughlin v.

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Corry, 77 Pa. 109. There was evidence in the case that the plaintiff's strength was much impaired, and that he was permanently unable to do as much or as heavy work as before the accident. He may, therefore, as could have been found by the jury from this evidence, be compelled in the future to accept less remunerative employment than if he had not been injured. The fact that he was receiving at the time of the trial the same wage he had received previous to his injury was no assurance that in the future he would receive the same wage for similar employment, or that his injured condition would not compel him to accept a much smaller remuneration for labor which he could perform."

The cases relied upon by appellant do not lay down a rule different from that announced in the cases above cited. In Wallace v. Penna. R. R. Co., 195 Pa. 127, 45 Atl. 685, 52 L. R. A. 33, there was merely evidence of loss of revenue from plaintiff's business as a boarding house keeper, and the jury was allowed to infer a diminution of plaintiff's earning power from this fact, neither the cause of the falling off of business nor its effect upon the profits being shown. This court said on page 130 of 195 Pa., on page 685 of 45 Atl. (52 L. R. A. 33):

"We are of the opinion that it was competent to show the profits of the plaintiff's business as a measure of her earning power, but we are constrained to hold that there was not sufficient evidence on this subject to warrant its submission to the jury."

In Bockelcamp v. Lackawanna, etc., R. R. Co., supra, the judgment of the lower court was reversed because of improper statements in the charge concerning the measure of damages. There is nothing, however, in the opinion to show the court considered the fact that the earnings were the same after as before the accident was conclusive of the, right of plaintiff to recover for loss of earning power. The decision is, in fact, directly to the contrary, as appears from the syllabus and from the opinion on page 71 of 232 Pa., on page 95 of 81 Atl. In Helmstetter v. Pittsburgh Rys. Co., 243 Pa. 422, the court said on pages 425, 426, 90 Atl. on pages 203, 204:

"Loss of earning power is only one of the elements of damage in cases of personal injury, but it is an element which must be fairly proved before an allowance can be made therefor."

That case turned upon the question whether the earnings of plaintiff in an occupation last followed, 13 years previous to the accident, could be considered in determining loss of earning power, the purpose being to show the earnings in that service were greater than those in the occupation plaintiff followed at the time of the accident, and in which he continued to receive the same salary following his injury. This court held the admission of such evidence to be error, for the reason it was too remote, and it was not shown what compensation plaintiff could have earned at the time of the accident had he been following his earlier vocation, or that such earnngs could exceed those he was earning in his present employment. The conclusion that the evidence of loss of earning power was insufficient to warrant submission of the case to the jury must be considered in view of the particular facts of the case and the question before the appellate court, and by so doing we find no apparent intention to change, in any way, the rule that decrease of earnings is not the only competent evidence of loss of earning capacity. Frysinger v. Phila. Rapid Transit Co., 249 Pa. 555, 95 Atl. 257, also turned on the question of remoteness of the evidence to show decrease of earning pow、 er in a particular occupation followed by plaintiff for a period of two or three years before the accident, there being no evidence of an intention on plaintiff's part to resume her former employment, she being a married woman. We there held the trial judge left too much to conjecture in admitting such testimony, though the court recognized the right of plaintiff to show decrease of earning capacity in an available occupation.

In view of the business of appellant requiring considerable traveling and, consequently, more or less physical exertion, and the testimony as to the nature of his injuries and their probable effect on his ability to perform the duties of his occupation in the future, there was evidence in this case from which the jury had the right to find a decrease in earning power, notwithstanding the fact that plaintiff was at the time of the trial enjoying the same income he received previous to the accident.

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

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