author: Mr. Justice Trunkey

text:
    Watson versus The Commonwealth.
    1. An alibi is as much a traverse of the crime charged as any other defence, and proof tending to establish it, though not clear, may, with other facts of the case, raise a reasonable doubt of the guilt of the accused.
    2. Where the Commonwealth rests upon positive and undoubted proof of the prisoner's guilt, it should not.be overcome by less than full, clear and satisfactory evidence of the alleged alibi.
    3. Testimony tending to weaken faith in a corrupt witness, is as material to the ends of justice as that which shakes confidence in an inference from circumstances.
    4. It is competent for a jury to convict on the testimony of an accomplice alone, but it is almost the universal opinion that the testimony of the aceomlice should be corroborated as to the person of the prisoner against whom e speaks. Some fact should be proved by testimony independent of the accomplice, which taken by itself, leads to the inference not only that a crime has been committed, but that the prisoner is implicated in it.
    5. Incompetent and impertinent testimony should be rejected as quickly and surely in the trial of a criminal case as in a civil. If'offered testimony be irrelevant, that is sufficient cause for its exclusion, and a pertinent fact should not be proved by incompetent evidence. The rules of evidence should be as severely applied when the trial may result in the defendants’ imprisonment, as when it could only result in fixing him for a debt.
    October 12th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Oyer and Terminer of Allegheny county: Of October and November Term 1879, No. 144.
    Indictment of Alvin and George Watson for burglary.
    The defendants were jointly indicted with Humphrey Campbell and W. H. Franks for a burglary alleged to have been committed at the house of Isaac Irwin, in Allegheny county, on the night of October 16th 1877. The defendants alone were tried, the indictment against Campbell having been nol. prossed and Franks in the penitentiary, and no preliminary hearing had as to him.
    Upon the trial it was proved, beyond all doubt, that a burglary had been committed, as alleged, and that Campbell had been an active participant in it. The Commonwealth’s witnesses identified Campbell as one of the burglars, beyond all doubt, independent of his own testimony. The controversy was as to the presence and participation of the Watsons. A^ to Alvin Watson, Mrs. Irwin testified that she recognised him as one of the men who were in the house, but there was no testimony positively implicating George other than that of Campbell, the accomplice. For the purpose of corroborating Campbell, the Commonwealth offered and the court admitted, under exception, testimony as to the conduct and acts of Campbell in the absence of the defendants, and with which the defendants were in no wise connected other than by Campbell’s testimony. '

      The court also admitted evidence that Franks, the other defendant, who was not on trial, was acquainted with the Irwin premises; had worked there; that he was then in the penitentiary, and that he had shortly before served a term in the same place, and that he was a brother-in-law of George W. Watson.
    The defendants called a number of witnesses to prove the whereabouts of both the defendants on the night in question, and also testimony to show that Alvin, at that time, wore his beard differently so as to entirely change his appearance.
    The defendants were convicted, and after a motion for a new trial was overruled were sentenced, when they took this writ, and made the following assignments of error, which will show the questions raised in the case:
    1. The court erred in admitting evidence of Campbell as to Franks’s whereabouts at the time of trial.
    2. In admitting evidence of Campbell as to Franks’s acquaintance and relationship with the Watsons.
    3. In admitting evidence of Mrs. Margaret Irwin as to previous knowledge of and acquaintance with Franks, and that he had worked at Mr. Irwin’s before that time.
    4. In admitting paper as follows:—
    Commonwealth of Pennsylvania v. W. H. Franks.
    Westmoreland county, August Sessions, 1875, convicted and sentenced to two years imprisonment, &c., on the twenty-third day of October 1875, in Western Penitentiary, Penna.
    Received of John Guffy, High Sheriff of the county of Westmoreland, this twenty-sixth day of October 1875, the body of the above-named prisoner.
    Attest: John Miller, Clerk.
    Edward S. Wright, Warden.
    And testimony of Sheriff Guffy under the following offer: Commonwealth proposes to prove by Sheriff Guffy that he is acquainted with the handwriting of Edward S. Wright, the warden of the Western Penitentiary in Allegheny City ; and furthermore that he took to the prison and delivered to the warden the body of W. II. Franks, one of the alleged robbers in this case. These for the purpose of showing the whereabouts of Franks.
    5. In admitting evidence of Peter Dressier that the W. H. Franks who was convicted in Westmoreland county, was the same man who is charged in this indictment.
    6. In refusing the following: On the part of the defence, it was moved to strike out all the evidence that has been given in this case connecting Franks with this transaction.
    Per Curiam. — For the reason that the testimony alluded to has already been received under objection, and that any error that has been committed is already in such shape as may be the subject of review, the motion to strike out is overruled.
    7. In admitting evidence of Mrs. Campbell and H. O. Campbell, under the following offer:—
    Commonwealth proposes to prove by this witness, to be followed by other evidence, that Humphrey Campbell returned in the morning after the burglary to his own home; that he would not come into the kitchen where his wife had a light, but knocked at the door and asked for a basin of water to be brought out to him, and that then he washed, but not until his wife had glanced at him and saw some black on his face, and that the water left in the basin wás itself discolored and blackened. For the purpose of corroborating Humphrey Campbell.
    8. In admitting evidence of Mrs. Campbell as to preparations made by her husband for the robbery — the defendants not being in any wise connected therewith.
    9. In admitting in evidence the following abstract of a record
    Commonwealth v. Humphrey Campbell and Bartholomew Foley.
    In the Court of Oyer and Terminer of Westmoreland county, Pennsylvania, No. 1, May Session, 1852.
    Indictment, burglary. True bill, May 29th 1852. Tried by a jury and verdict not guilty. Abstract from the record.
    Attest: May 1st 1879.
    J. W. Wilson, Clerk.
    (Seal of the Court of Oyer and Terminer of Westmoreland Co.j
    Defence objected to this evidence as incompetent and irrelevant, and furthermore, if it were entirely competent, the facts cannot be proven by this abstract, but must be proven by a properly certified copy of the entire record.
    10. In admitting evidence of Peter Dressier, under the following offer:—
    Counsel for Commonwealth propose to prove by the witness on the stand, the county detective, that he went to the state of Kansas armed with a requisition from the governor of Pennsylvania upon the governor of Kansas, for the body of George W. Watson, one of the defendants in this case ; that having'received full authority of the governor of Kansas, he proceeded to Watson’s house and made the arrest. Whereupon a writ of habeas corpus was issued at the instance of Watson to test the officer’s right to bring him to Pennsylvania under the warrant; that that question was argued elaborately for more than one day by counsel on each side, and that the judge remanded the prisoner to Mr. Dressier to proceed to Pennsylvania with him. He proceeded on his way a certain distance when another interference was had by telegraph at the instance of George W. Watson; and to prove that Mr. Dressler’s course was greatly marked by interference; that he had Watson chained to his arm ; that he was compelled and did leave the direct line of the railroad and passed across the country with the prisoner where no telegraph could reach him, for the purpose of getting out of Kansas, and in that way he reached Pennsylvania.
    Objected to as irrelevant and incompetent; that if an applica7 tion was made to the courts in Kansas for a writ of. habeas corpus, it is a matter of record there, and can only be proved by the record itself; further, that if the application was made, it shows simply that the defendant, George W. Watson, was availing himself of his legal right to inquire into the validity of his arrest.
    Counsel for Commonwealth withdrew all the offer except the last part about the telegram, and after the habeas corpus was decided and witness was on his way back.
    Per Curiam. — We will receive all the evidence suggested after the right of the prisoner had been passed upon by the court on the first application for the writ of habeas corpus.
    11. The court erred in charging the jury as follows :—
    If, therefore, in' the first place the Commonwealth has satisfied you beyond a reasonable doubt, I mean to say in looking at the evidence, the Commonwealth’s, it has satisfied you beyond a reasonable doubt that the defendants were present at and participating in the burglary in question, it will be your duty to convict, unless the defendants, having set up the defence of alibi, have satisfied you that this, their defence, is well taken. What I want to have you understand is, if you come to the conclusion and are satisfied beyond a reasonable doubt that'the defendants were then and there participants in the burglary, then it will be your duty to convict, unless the defendants have made out their case of alibi or that they were elsewhere, and in that case it will be your duty to acquit.
    12. In charging as follows :
    “ The case, I need not say to you, whilst containing a great deal of direct testimony, has in it a large element of what is known to the law and lawyers as circumstantial evidence, that is, evidence resting upon detached circumstances, isolated pieces of evidence, all of which are put into the case in the estimation of the Commonwealth with the belief and for the intent to prove certain facts. I need not say that very often circumstantial evidence is more to be depended upon than absolute assertion. Because witnesses may falsify, may testify to that which is not true, but certain circumstances, certain physical facts which cannot be gainsaid, and which of course could not lie, often compel conclusions where words uttered would not. Now these elements are in the case, and without expressing any opinion upon them, we leave it to you to say in the light of these circumstances, in the light of this spoken testimony coming from the mouths of witnesses, and upon a careful consideration of all the facts in the case to state whether or not these parties are guilty or innocent.”
    October 25th 1880.
    18. In charging as follows, viz.: “ The defence, outside of the allegation that the Commonwealth has not made out a case, and which it is for you to say, is an alibi.”
    The eighth point of the defendants, which the court affirmed, was as follows:
    8. That the Commonwealth must make out the guilt of each of the defendants, beyond a reasonable doubt; and if, from the evidence in the cause, they have a reasonable doubt as to the identity of the defendants, or either of them, they must acquit as to such defendant.

      M. Swartzwelder, H. H. McCormick and Blakeley & Bigham, for plaintiffs in error.

      John S. Robb, District Attorney, Robert M. Gibson and W. S. Patterson, for the Commonwealth.
   Mr. Justice Trunkey

delivered the opinion off the court,

An alibi is as much a traverse of the crime charged as any other defence, and proof tending to establish it, though not clear, may, with other facts of the case, raise a reasonable doubt of the guilt of the accused. When the evidence is so imperfect as not to satisfy the jury they will not find the fact. Where the Commonwealth rests upon positive and undoubted proof of the prisoner’s guilt, it should not be overcome by less than full, clear and satisfactory evidence of the alleged alibi. But the evidence tending to establish an alibi, though not of itself sufficient to work an acquittal, shall not be excluded from the case, for the burden of proof never shifts, but rests upon the Commonwealth throughout, upon all the evidence given in the cause taken together, to convince the jury, beyond a reasonable doubt, of the prisoner’s guilt: Turner v. Commonwealth, 5 Norris 54. Stress was there put on the fact that the case depended on circumstantial evidence, and that the instruction excluded the evidence of an alibi from the consideration of the jury if it failed to reach sufficient strength alone to work an acquittal. Where the testimony relied on to convict is mainly that of an accomplice, the reason is quite as strong for requiring all the evidence to be considered. Direct testimony from a corrupt source should receive as careful scrutiny as circumstantial evidence. In one case the inquiry is of the credibility of the witness ; in the other, if the circumstances be clearly proved, inquiry is whether the alleged fact is the only reasonable inference. Testimony tending to weaken faith in a corrupt witness is as material to the ends of justice as that which shakes confidence in an inference from circumstances.

The defendants’ eighth point was rightly affirmed. This was followed by an explanation of a reasonable doubt and a substantial repetition of the point. Then, after calling attention of the jury to the evidence of an alibi, the court say: “ If, therefore, in the first place, the Commonwealth has satisfied you beyond a reasonable doubt, I mean to say, in looking at the evidence, the Commonwealth’s, it has satisfied you beyond a reasonable doubt, that the defendants were present at and participated in the burglary in question, it will be your duty to convict, unless the defendants, having set up the defence of alibi, have satisfied you that this, their defence, is well taken. What I want to have you understand is, that if you come to the conclusion, and are satisfied beyond a reasonable doubt, that the defendants were there and participants in the burglary, then it will be your duty to convict, unless the defendants have made out their case of alibi, or that they were elsewhere, and in that case it will be your duty to acquit.” This language has the merit of being easily understood. If the jury failed to find an alibi, all testimony tending to establish it was excluded from their consideration. Immediately preceding its utterance the jury were told that “the defence, outside of the allegation that the Commonwealth has not made out a case, and which it is for you to say, is an alibi.” Nothing could be plainer than that the testimony of the Commonwealth was alone submitted on which the jury were to determine whether the defendants were guilty if they were not satisfied the alibi was proved. Such emphatic restriction eclipsed the defendants’ eighth point, previously affirmed, and was error. >

Complaint is made of the remarks of the court respecting circumstantial evidence; but we are not convinced that they contain error. This case depended chiefly on direct testimony ^ and it can hardly be said that the charge on the circumstantial was inadequate. Nor were the statements untrue, for such evidence is often more to be depended on than the absolute assertion of a witness who is without credit, and it may .compel belief of a fact when the positive assertion of an impeached witness would go for naught. If counsel desired instructions, such as that the hypothesis of guilt should flow naturally from the facts proved, and be consistent with them all; and that circumstantial evidence against the accused must be such as to exclude, to a moral certainty, every hypothesis but that of his guilt of the offence imputed to him, to warrant his conviction, they could have had them by putting proper points. As a general rule a court will not be convicted of error for omitting to charge on a matter not requested. Here the circumstances by themselves were entirely insufficient to establish guilt of the accused, but could be considered with the direct evidence.

Numerous exceptions were taken to the admission of testimony offered for the purpose of corroborating Campbell. It is competent for a jury to convict on the testimony of an accomplice alone. But the source of this testimony is so corrupt that it is deemed unsafe to rely upon, and the court always consider it their duty to advise a jury to acquit, where there is no evidence corroborative of the accomplice. Corroboration need not extend to the whole testimony of the accomplice; but it being shown that he has testified truly in some particulars, the jury may infer that he has in others. It is almost the universal opinion that the testimony of the accomplice should be corroborated as to the person of the prisoner against whom he speaks. Some fact should be proved by testimony, independent of the accomplice, which, taken by itself, leads to the inference not only that a crime has been committed, but that the prisoner is implicated in it. To prove that the accomplice had told the truth in relation to irrelevant and immaterial matters which were known to everybody, would have no tendency to confirm his testimony involving the guift of the party on trial: Commonwealth v. Bosworth, 22 Pick. 397; Reg. v. Addis, 6 C. & P. 388; Reg. v. Dyke, 8 Id. 261; Roscoe’s Crim. Ev. 130.

Campbell was one of the four burglars who committed the crime, which was proved by undoubted and uncontroverfced testimony, the court telling the jury it could not be gainsaid that it was committed, and the narrow issue for them to pass upon was whether the defendants, or either of them, were concerned in the burglary. Two of the four indicted were brought to trial. Campbell says that the defendants and Franks, with himself, did the deed. !That he took from his home a pistol, blacking and flour; that he washed the blacking from his face after his return, and that he had $10 of the stolen money, are facts that would be just as corroborative of his story had he named any other three persons as the fellows of his crime. Such facts pointed to none but himself.

The Commonwealth offered an abstract from the record in a case against Campbell and Foley, in the Oyer and Terminer of Westmoreland county, at May Sessions 1852, for some undisclosed purpose ; whereupon defendants objected, that it was incompetent and irrelevant, and even if the record was competent, that paper was not; but the offer was received. It is not now pretended that the paper was admissible, it was not an exemplification of the record. The district attorney says it was informally introduced to answer an assertion of the defendants’ counsel made to the court in the presence of the jury. If the court tolerated the alleged unprofessional conduct, that did not make the paper competent, nor the record relevant to the issue.

No statute has been cited which provides that a receipt given by a warden of the penitentiary to the sheriff of the proper county for the body of a prisoner, shall be competent evidence on the trial of another prisoner.

In the face of the fact that George W. Watson, after his arrest, made no attempt to escape, and in the absence of proof that he procured any interference with the officer having him in charge, an offer was made and received that Dressier’s course was greatly marked by interference; that he chained Watson to his arm ; that he was compelled to leave the direct line of railroad and pass across the country where no telegraph could reach him, in order to get out of Kansas. Even the officer presumes Watson was ignorant of the fact that he was to be met by a telegram. It is difficult to conceive a reason for reception of that offer. That Watson had procured a hearing on a habeas corpus was his right, and no ground for introducing the subsequent acts of other people who charged the officer with kidnapping.

No one but Campbell identified Franks as one of the burglars. It was as little corroborative of him to prove by Mrs. Irwin that she was acquainted with Franks, who had worked for Irwin, as it would have been for her to say the same thing of Haines, of whom she attempted to speak and was stopped.

Had Franks been on trial, the prosecution could not have started out by showing that he was already a convicted and imprisoned felon. Persuasive as that might be to many minds that he committed this burglary, the law excludes such evidence in courts. If possible, there was a more palpable violation of the law of evidence in the admission of proof that Franks was a brother-in-law of one of the defendants, had committed another crime and was in the penitentiary. There was no necessity for the Commonwealth to account for the absence of Franks — it was enough that the defendants were being tried separately — and that she had convicted and shut him up was no reason for admission of testimony of the fact and that Watson was his relative.

The first ten assignments of error, except the sixth, are well taken. The sixth is not sustained, for many things testified to by Campbell connecting Franks with the transaction were admissible.

It is not to be understood that we deem every one of the errors in admission of testimony of such importance as to require reversal. Although an error was committed, if it worked no harm the cause will not be sent back for trial, in this case we think there was error in some matters of such gravity that it cannot be treated as harmless, and as there must be another trial, it is fitting that all the assignments be considered. Incompetent and impertinent testimony should be rejected as quickly and surely in the trial of a criminal case as in a civil. If offered testimony be irrelevant, that is sufficient cause for its exclusion. A pertinent fact should not be proved by incompetent evidence. The rules of evidence should be as severely applied when the trial may result in the defendant’s imprisonment as when it could only result in fixing him for a debt.

Judgment reversed, and the record, with this opinion, setting forth the causes of reversal, is remanded to the Court of Oyer and Terminer of Allegheny county for further proceedings.


source: Caselaw Access Project

author: Mr. Justice Gordon

license: Public Domain

text:
    Pittsburgh and Lake Erie Railroad Company versus Robinson and Rea.
    1. When a jury assess damages for the taking of lands by a corporation ;y are to value the property without reference to the person of the owner the actual state of his business. . the Uie
    2. It was error to refuse to permit a railroad, company, in an action to recover damages for taking lands of the plaintiffs for the construction of its road, to prove that a siding could be conveniently constructed upon the property of the plaintiffs, and to show how such construction might be made useful to the premises.
    3. That the plaintiffs refused to avail themselves of the advantages which may have been afforded them by the road, is of no moment, for the question is not as to the disposition of the owners of the property, but whether or not the facilities afforded by the improvement have advanced the market value of the property.
    4. Under our Acts of Assembly the owners of mills and manufactories may of right connect their private sidings with the railroads in their vicinity, and the fact that such right exists in them may largely advance the market value of their property and affect the question of damages for taking a part thereof for railroad purposes.
    5. In mitigation of damages a railroad company may show that it is practicable to make switch connections with a railroad which crosses the land of claimant for damages.
    6. While the general advantage resulting as well to the public as to the property, which is the subject of assessment, is not to be considered in estimating the benefits to that property, yet anything and everything connected with the general improvement which tends to increase its value or usefulness to such property may be considered.
    7. Though the knowledge of a witness of the value of lands in the neighborhood may have rested solely upon a few purchases made by the railroad company, and from no other sales or purchases in the real estate market, he has some knowledge upon which to base an opinion and the value of that opinion is for the jury.
    October 12th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas, No. 1, of Allegheny county : Of October and November Term 1880, No. 168.
    In the court below this was an appeal from an award of viewers under the General Railroad Act. The Pittsburgh and Lake Erie Railroad' Company was incorporated under an Act of Assembly, approved the 4th of April 1868. In constructing its road it was found necessary to pass through a large area of private property, among which was that of the plaintiffs, who are the owners of a lot of ground situated in the city of Pittsburgh, and fronting on the Monongahela river, and extending thence to Carson street, and having a breadth of 170 feet, upon which is erected their manufacturing establishment, known as the “ Washington Works.” The railroad company, in constructing their road, found it necessary to make a cut, 30 feet wide and 8 feet deep, through the lot of the plaintiffs below, in order that a proper grade might be maintained. The plaintiffs claimed to have been damaged to the extent of $50,000, by such cut being made through their said lot.
    As the defendants are subject, under the terms of their charter,. to the provisions ■ of the General Railroad Law'of 1849, the plaintiffs presented their petition to the Court of Common Pleas, asking the court to appoint viewers and assess their damages. The court appointed the viewers as prayed for, who found the value of the land taken at $6500. This report was filed April 7th 1879, and duly confirmed. An appeal was taken by Robinson, Rea & Co., from the report of the viewers to the Court of Common Pleas. The case came on for trial March 24th 1880, before Stowe, P. J.
    The defendants offered the testimony of J. R. McCullough as to the practicability of constructing a switch or siding on plaintiffs’ property, for the purpose of showing that the railroad, as constructed through the property, may be utilized in the usual manner by the construction of an ordinary switch or siding such as is made in all manufacturing establishments on that line. To be followed by the testimony of the witness that it is the standing rule of the company that, whenever application is made by manufacturing' establishments for a switch, it has been their custom always to put it in at once, and that they have done so at all other establishments where application has been made.
    Objected to and objection sustained. (2d assignment of error.)
    Defendants also proposed to show by this witness and others, that, prior to the construction of this railroad, it cost so much per ton to transport raw and manufactured material to and from the point of shipment; that by the construction of this road and the building of a switch, such as it is practicable to construct on the property of the plaintiffs, if they desire to avail themselves of the advantages of this road, it would .be a great saving to them in the line of transportation, and in this manner a great- benefit to their property.
    The purpose of the offer was to show the distinct benefit to this property to arise from the construction of the road through the property in order to reduce the claim of damages that has been shown on the other side, none of the witnesses on the other side having stated that they took into consideration the question of benefit to this property, but only the damage; to be followed by the testimony of witnesses as to the value of the whole.
    Also, the following on same point: To1 prove by the witnesses on the stand and other witnesses, that prior to the construction of this railroad, the nearest point of shipment by rail, for use of plaintiffs, was at the Fort Wayne depot, at Penn street, Pittsburgh, or at the Pennsylvania Duquesne depot; that by the construction of this road and the location of its depot at a point a few hundred feet distant from the manufacturing establishment of plaintiffs, the cost of transportation of the raw and manufactured material to and from such point of shipment can be largely reduced, and in this way the road of defendant company be a special benefit to the property of plaintiffs. This for the purpose of reducing plaintiff’s damages. (3d assignment.)
    Defendant also proposed to ask witness, Mr. John Gr. Robinson, the value of the piece of ground taken for right of way over the property of Robinson, Rea & Co., per square foot.
    Objected to as incompetent and irrelevant, for the reason that the witness has no knowledge of the value of land in the neighborhood, other than that derived, as he has stated in his former answer, by paying for property in several instances bought by the Pittsburgh and Lake Erie Railroad.
    By the court. The witness has not shown that he has any knowledge other than by sales referred to in his testimony, and, therefore, we think the evidence offered incompetent and irrelevant. Objection sustained.
    Also: To ask witness whether he has knowledge of the selling price of ten distinct pieces of property, representing distinct owners, in the neighborhood of the property of the plaintiffs, intersected in like manner by the railroad of the defendant company. This offer for the purpose of showing that the witness is competent to fix the value of the land of the plaintiffs.
    Objected to as incompetent and irrelevant, for the reason that the preceding examination of the witness has shown that he has no knowledge of the value of land, save and except having paid for properties purchased by the Pittsburgh and Lake Erie Railroad Company, and as incompetent and irrelevant.
    Objection sustained. (4th assignment.)
    The third point of the defendant, with the answer of the court, was as follows :
    3. That the defendant company is a common carrier; that its railroad is a public highway ; that the plaintiffs have a right in law to construct on their land, adjoining said railroad, a suitable switch for the uses of their business, and connect the same with the tracks of the defendant company, subject to the general rules of said company regulating such connections ; and that the defendant company is bound to receive and deliver to and from such switch or siding, cars and freight for the said plaintiffs to and from such points, on the line of defendant’s railroad, as may be designated by plaintiffs, and on equal terms with all other individuals or transportation companies.
    Ans. “ This point is refused. There is, undoubtedly, much in the point that is correct, as a rule of law, but taking it as a whole, and for the purpose for which it is presented in this case, to wit, as a set-off to the damage done complainant by taking of their property by defendant company, we think the point not well taken.”
    Verdict for plaintiffs for $16,350. A new trial was refused and judgment entered on the verdict, when defendant took this writ and alleged that the court erred as set forth in the above assignments of error.

      J. H. McCreery, for plaintiff in error.
    By the construction of the siding the value of the property as a manufacturing site would be enhanced sufficiently to compensate for the damage done by taking the right of way. But the court below by holding that the owners of the property could not utilize the railroad unless the company were willing, precluded our showing the advantages to the property by the construction of the road. We contend that this was error, and that under the law the owners of the property could use the road by means of a switch, whether the company was willing or not: Acts of April 16th 1838, Pamph. L. 464; March 28th 1840, Pamph. L. 196; March 13th 1847, Pamph. L. 337; February 19th 1849, Pamph. L. 79. If we could show, as a substantive fact, that, by the difference in cost of transportation, the plaintiffs would save in their business $5000 per year, we would have the right to have it offset as against the loss to them by employment of additional men, and the same rule which allowed the plaintiffs to prove distinct items of damage, as well as a total, if applied to defendant company, certainly should admit our items of proof as suggested in the offer contained in the third assignment of error. It is competent to prove the value of property by the opinion of witnesses, derived from knowledge of actual sales in the neighborhood.

      Hampton & Dalzell, for defendants in error.
    The proposition is, can a railroad company enter upon and appropriate the land of a citizen, and pay for the whole or any part of the damages done by setting up the fact that,-by the construction and use of a siding or any other contrivance on his land benefits will likely result in its future use, and thereby the damages will, in whole or in part, be reduced ? In the language of the court, can the damages actually done be “set-off” by imaginary benefits? In estimating the advantages, such only as are special and peculiar to the property in question are to be considered, and not such as are common to the public. The special and peculiar advantages must be such, in fact, as result directly from the construction of the road, and are at once appreciable and not dependent upon the future conduct of the owner of the land in using the railroad. As no compensation can be recovered for consequential or speculative damages, so no offset can be claimed by the company taking the land for speculative advantages: Hornstein v. Atlantic and Great Western Railroad Co., 1 P. F. Smith 90; Sunbury and Erie Railroad Co. v. Hummell, 3 Casey 99 ; Patten v. Northern Central Railroad Co., 9 Id. 426; Robbins v. Milwaukee and Horicon Railroad Co., 6 Wis. 610. The benefits proposed to be shown were not special to the works of the plaintiffs, but such as the public generally might enjoy from using the road. But the offer was further clearly obnoxious to the objection that the benefits were made to depend solely upon the fact whether the plaintiffs used the road. The idea of reducing the damages upon such a contingency can certainly have no weight. The only proper test of damages is the opinion of witnesses as to the value of the land taken, in view of its location and productiveness, its market value or the general selling price of land in the neighborhood ; evidence of particular sales, under special circumstances, is inadmissible: East Pennsylvania Railroad Co. v. Heister, 4 Wright 53; Pittsburgh, Virginia and Charleston Railroad Co. v. Rose, 24 P. F., Smith 362.
    November 8th 1880.
   Mr. Justice Gordon

delivered the opinion of the court,

Where a jury, as in the case in hand, are called upon to assess damages on account of the taking of lands by a corporation, they are, as is said by Gibson, J., in the case of The Schuylkill Navigation Company v. Thoburn, 7 S. & R. 441, to value the property without reference to the person of the owner, or the actual state of his business; and in doing that the only safe rule is, to inquire what the property, unaffected by the obstruction, would have sold for at the time the injury was committed, and what it would sell for as affected by the injury, arid the difference is the true measure of compensation. In Hornstein v. Atlantic & Great Western Railroad Co., 1 P. F. Smith 87, the doctrine above stated is repeated, and it is said, per curiam: “ In estimating the damages resulting from the road, consequential or speculative damages are to be rejected, and in estimating the advantages such only as are special or peculiar to the property in question are to be considered, and not such as are common to the public.”

Without going further for authority, these cases furnish all the elements necessary for the determination of the present controversy. Considering only the advantages and disadvantages, special and peculiar, resulting to the plaintiffs’ property, by reason of the introduction of the defendants’ road upon it, what was the difference in its value in the real estate market, before and after the building of that road ? The resolution of this question solves the proposed problem. The property in question is used for manufacturing, and, ordinarily, the market values of such properties are advanced by the introduction of railroads; this fact is one upon which the jury must pass, for much depends upon the situation of the property and the accessibility of the road which traverses it. If that road is carried through it on an embankment so high, or in a cut so low that it cannot be reached by a switch, it is useless to the property; on the other hand, if the road is on grade, or nearly so, that by a siding, or switch it may be made useful and convenient for the purposes for which the property is used, the value of that property may be greatly enhanced thereby. How, then, can any -one reasonably contend that either of the above supposed conditions may not be given in evidence? We have no hesitation in saying that the court below was wrong in refusing to permit the defendant to prove that a siding could be conveniently constructed upon the property of the plaintiffs, and to show how such a construction might be made useful to the premises. That the plaintiffs refused to avail themselves of the advantages which may have been afforded them by the road, is, as we have seen, of no moment, for the question is not as to the disposition of the owners of the property, but whether or not the facilities afforded by the improvement have advanced the market values of the property.

As immediately connected with the above stated proposition, we are also of opinion that the plaintiffs’ third point should have been affirmed. It is conceded that, under our Acts of Assembly, the owners of mills and manufactories may of right connect their private sidings with the railroads in their vicinity, and though, as the counsel for the defendants in error says, it does not follow that such owners may ever avail themselves of such right, nevertheless the fact that such a right exists in them may largely advance the market value of their several properties. Certainly privileges which may be used .to facilitate transportation to and from large factories must have some effect upon their values.

Again, the court refused the offer of the defendant to show that it had so built its depot as to be convenient to the plaintiffs’ works. In this we think there was error. Let us put the case from the other side and suppose the depot to be placed at such a distance from the plaintiffs’ land, or at such a place as to render it useless to their works, it follows that unless they have some other means of access, the railroad, as to them and their property, is utterly worthless, and from it no advantage could accrue that would form an offset to the damages suffered. Now who will undertake to say that a landowner could not show a condition of things such as this before a jury summoned to Inquire into and assess the damages he may have suffered ? But if he may show these things the railroad company may show the converse; that it has furnished suitable and convenient depots and other conveniences, and that the lands which are traversed by its road are thereby benefited and improved.

True, a depot is designed for the public benefit, but non constat that the plaintiffs’ lands may not be specially benefited thereby. The very same thing may be said of the whole road, of which the depot is part, and yet it is the whole road, and not merely that part which happens to lie on the private property alleged to be damaged, which gives to it that peculiar or special value which is the subject of set off. It hence follows that while the general advantage, resulting as well to the public as to the property which is the subject of assessment, is not to be considered in estimating the benefits to that property, yet any and everything connected with the general improvement, which tends to increase its value or usefulness to such property, may be considered.

The testimony of John G. Robinson, as to the value of the premises under consideration, ought to have been admitted. Though his knowledge of the value of lands in that neighborhood may have rested solely upon a few purchases made by the railroad company, and from no other sales or purchases in the real estate market, yet he had some knowledge upon which to base an opinion, and the value of that opinion was for the jury.

Judgment reversed, and a venire facias de novo awarded.


author: Per Curiam.

text:
    Reichenbach versus McKean.
    1. The sheriff sells only the title of the defendant in an execution, and the real owner, besides trespass against the sheriff, may maintain replevin or trover against his vendee.
    2. In the case of a pawn or pledge there is a special property in the pawnee. It is liable to be sold on an execution against the pawnor but subject to the rights and interests of the pawnee.
    3. The taking of the property out of the possession of the pawnee by a sheriff’s sale does not divest his property, and is in no sense a relinquishment of his lien, and a bona fide purchaser from the sheriff’s vendee takes it subject to said lien.
    October 13th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1880, No. 258.
    Replevin by William McKean against John Reich enbach, to recover or enable plaintiff to retain possession of two mules.
    It appeared that John D. Negley owed McKean $215, and to secure him against loss, put into his possession the mules in question. Subsequently, a creditor of Negley obtained judgment against him, and issued execution and levied upon the mules then running in the fields of McKean. Before they were sold a notice was given by McKean and read to the bidders by the deputy sheriff, stating the circumstances under which the mules were given by Negley to McKean, that they were to secure the payment of the §215; and- that he had a lien on them to that extent. The mules were sold to one Smith, who subsequently sold them to defendant.
    The other material facts will be found in the following portions of the charge of the court below.
    “ After this purchase by Reichenbach, McKean issued his writ of replevin and gave bonds to the sheriff in accordance with the law, that the property should be surrendered or its value, in case it would be discovered that he had not the title to these mules. The mules were then surrendered to Mr. McKean, in whose possession they now are. The question now is : Did the mules belong to McKean or did they belong to the defendant in this action ? For whilst the action is brought by McKean, he in reality having the mules in his possession under this bond, is the defendant in the action practically, Reichenbach selling and received damages from McKean for their taking and detention by him, McKean.
    “ Reichenbach alleges that the mules having been taken from him by McKean, he is prejudiced. 1. To the extent of §140, the value of the mules. 2. He is prejudiced and damaged to the extent of §150 or thereabouts, for hire of horses that he was compelled to assume, in order to carry .on his business as a brewer, wdiilst these mules were in the possession of McKean.
    “ While this case was under discussion, we endeavored to obtain from counsel some authority as to McKean’s right to these mules at law. For it was with us a question whether having possession of the same merely for a security or pledge for a debt, he had in law such a right as would entitle him to hold them against a creditor. Our impression was that he had no such right, that his property in the mules was of such a peculiar and special character that you were bound to assess damages for the defendant. I am now of opinion, upon reflection, and bearing the authorities, that this position is incorrect; and that a party holding goo^s in pledge as a security for a debt and having them in possession, has such a right to these goods as would entitle him to a verdict at your hands, and I therefore instruct you, as a matter of law [that if you find that the goods were delivered to McKean by Negley to be kept by him until this amount of §215 was repaid to him by Negley, that the creditor of Negley stands in no higher or better position than Negley himself; that unless he paid .or offered to pay the debt or claim for which they were pledged, Negley himself could not have taken these mules; that no sheriff’s possessor was in any better position than Negley himself; that is, if you find these to be the facts your verdict ought to be for the plaintiff.”]

      October 25th 1880,
    Yerdict for plaintiff, when defendant took this writ and alleged that the court erred in the above portion jof the charge in brackets.

      Frederick Luty, for plaintiff in error.
    Defendant was a bona fide purchaser for a valuable consideration without knowledge or notice of the sheriff’s sale. Punishment for the neglect of McKean, or the fault of the sheriff, should not be visited upon Reichenbach: Sinclair v. Healy, 4 Wright 417. McKean failed to establish an exclusive right in himself to possess and control the property at the time he issued his writ, and the plea of property imposed upon him the necessity of establishing his title, and, therefore, the court below erred in its instruction to the jury: Reinheimer v. Hemingway, 11 Casey 438. Surrendering the mules to the sheriff, the lien of McKean was released, and he could not maintain the action of replevin against an innocent bona fide purchaser, but must look to the sheriff for his remedy if he was injured: L. S. & M. S. Railway Co. v. Ellsey, 4 Norris 283.

      Carnahan & Miller, for defendant in error.
    The purchaser took no title at the sheriff’s sale, but only acquired the right to have possession of the property by paying off the debt of Negley and interest, for the security of which McKean held possession of the mules on his own premises: Sect. 23, Act June 16th 1836, Pamph. L. 764. WRether the purchaser was ignorant or otherwise of the sheriff’s right to sell, the right of property may be had in an action against the sheriff’s vendee. Replevin lies against such vendee to recover chattels wrongfully taken in execution and sold : Ward et al. v. Taylor, 1 Bart. 238. The evidence showed that the right of possession as well as the actual possession of the mules was in McKean.
   The judgment of the Supreme Court was entered

Per Curiam.

The sheriff sells only the title of the defendant in the execution, and the real owner, besides trespass against the sheriff, may maintain replevin or trover against his vendee. In the case of a pawn or pledge, there is a special property in the pawnee. It is liable to be sold on an execution against the pawnor but subject to all and singular the rights and interests of the pawnee: Act of June 16th 1836, Pamph. L. 1836. The taking of the property out of the possession of the pawnee was a wrongful act which could not divest his property. His parting with the possession was in no sense a relinquishment of his lien. The pawnor’s title was not infected with any fraud or secret trust, so as to give to a bona fide purchaser from him any better right than he had himself, and the sheriff could convey no better title than the pawnor himself could.

Judgment affirmed.


author: Mr. Justice Mercur

text:
    Murdy versus McCutcheon et ux.
    1. A summons issued by a justice of the peace is fatally del does not inform the defendant where he is to appear. , which
    2. A summons issued against two persons and was served on one only. The claim was a joint contract and the declaration thereon was joint. Without an appearance by either defendant judgment was entered against both defendants: Held, that this was error and the judgment should- be set aside.
    3. Jamieson v. Pomeroy, 9 Barr 230, distinguished.
    October 13th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1880, No. 272.
    This was an action of debt brought before a justice of the peace under the Act of July 7th 1879, Pamph. L. 194, by James McCutcheon and his wife, for use of the latter, to recover upon a joint contract.
    The following was the form of the summons issued by the * justice:
    “ County of Allegheny, ss. — The Commonwealth of Pennsylvania to James Morford, or next constable: You are hereby commanded to summon George Murdy and John Murdy to be and appear before the subscriber, James Grubbs, Esq., a Justice of the Peace, in and for said county, on Saturday, the 18th day of October 1879, between the hours of 1 o’clock p. M. and 2 o’clock p. m., to answer Jane McCutcheon and James McCutcheon, her husband, for use of said Jane McCutcheon, -in a plea of debt not exceeding three hundred dollars. Hereof fail not. -Witness the hand and seal of the said Justice of the Peace, in the county aforesaid, the. eleventh day of October a. d. 1879.,
    “James Grubbs, [d. s.]”

      “ Endorsed. Served by leaving a true copy of the within with the first of the within named defendants and making known to him its contents, also a copy of affidavit of plaintiff, on Monday, October 13th 1879.” '
    In default of an appearance judgment was entered generally against both defendants. A certiorari from the Common Pleas was taken, and the following, among other exceptions, filed to the record:
    1. The judgment of the justice is in error, because the summons issued is insufficient, illegal and defective, in that it does not state the place where the defendants below are to meet to answer the action brought against them.
    5. The record discloses a joint but not a several indebtedness against the two defendants, and a judgment against one cannot be sustained, nor a judgment against both, only one having been served.
    November 8th 1880.
    8. The judgment of the justice is erroneous and void in toto, as it is a general judgment for the plaintiff and against both defendants, only one of whom appears to have been served.
    The court, Stowe, P. J., dismissed the exceptions and affirmed the judgment, when the plaintiffs took this writ, and alleged that the court erred in this action.

      George H. Quail, for plaintiffs in error.
    The summons is defective, for it does not inform the defendant where he is to appear: Burn’s Justice 673. When an action is brought against two persons on a joint contract, and service had on but one, if the judgment be entered generally against both, It is erroneous; for being indivisible and incapable of separation, it cannot be affirmed as to one and reversed as to the other: Boaz v. Heister, 6 S. & R. 18; Stewart v. Abrams, 7 Watts 448; Locke et al. v. Daugherty et al., 7 Wright 88; Paine v. Goodshall, 29 Leg. Int. p. 12; Donnelly et al. v. Graham et al., 27 P. F. Smith 274.

      R. E. Stewart, for defendants in error.
    The judgment may be affirmed as to the defendant served, and reversed as to the other: Jamieson v. Pomeroy, 9 Barr 230.
   Mr. Justice Mercur

delivered the opinion of the Court,

All civil jurisdiction of justices of the peace in this Commonwealth is-given by Acts of Assembly. It is limited to the amount therein specified and restricted to certain forms of action. Care should be taken that they have jurisdiction of the subject-matter of which they take cognisance, and of the person of each on whose rights they profess to pass. Holding a court of limited jurisdiction, their record should show every fact necessary to give jurisdiction whenever it is exercised: Alberti v. Dawson, 1 Binn. 106; Camp v. Wood, 10 Watts 118.

All compulsory appearance before a justice of the peace must be by writ containing information sufficiently clear and explicit to give notice when and where the defendant is commanded to appear. In this case the summons states the day, hour and the name of the justice, but wholly omits to state where his office is or that he has .any. It shows the writ was issued by a justice of the peace of the county of Allegheny; but in what township, borough or ward he resides or his office can be found it gives no information.

The summons issued against two persons. It was served on one only. Without any appearance by either defendant, judgment was entered against both defendants for $298.50 and costs.

Law and justice unite in declaring a person shall have an opportunity of being heard, unless he has waived it, before judgment shall be pronounced against him. Notice to appear without stating where, was practically no notice. He was not required to search in every nook of the county to find the justice. The law imposes no such duty on a person served with process as defective as this. "Without any appearance by the one defendant thus served, judgment against him alone could not be sustained. A. justice of the peace is a judicial officer. He holds a court. That is, a place where justice is judicially administered. To that place the defendant should have been summoned to appear : King v. King et al., 1 P. & W. 15.

It is true, it was held in Jamieson v. Pomeroy, 9 Barr 230, that the judgment might be affirmed against the defendants served and reversed as to the one not served. There the two served appeared, made defence and had a trial, but judgment was entered generally against all the defendants. That is not this case. Here there was no appearance by either defendant. No hearing of either, no trial. Judgment was entered against both of the defendants, as the record declares, “ by default.” It is conceded that the judgment is bad against the one not served. The claim was on a joint contract. The declaration was joint. The judgment is joint. It is incapable of separation : Boaz et al. v. Heister, 6 S. & R. 18 ; Donnelly v. Graham, 27 P. F. Smith 274.

The learned judge erred in not sustaining the first, fifth and eighth exceptions. We deem it unnecessary to consider the other exceptions. The assigments are sustained.

Judgment reversed, and judgment of the justice also reversed and set aside.


author: Mr. Justice Paxson

text:
    Dewhurst versus City of Allegheny.
    1. An entire Act of Assembly is not necessarily unconstitutional because the title fails to give notice of some particular matter contained, therein. The rule has been to sustain that portion of which the title gives notice.
    2. One who promotes an improvement made under a special Act of Assembly by a municipality — petitions for the same and is active in setting the machinery in operation by which the work is done — is estopped from denying the constitutionality of the act.
    3. The Act of May 10th 1871, providing for the improvement of Troy Hill Road in the city of Allegheny, is constitutional so far as citizens of said city are concerned, although that portion of said act which related to Reserve township had previously been declared unconstitutional by this court.
    5. The lien filed for the assessments for said improvement is valid although not filed until more than six months after the completion of the work, the time prescribed by said act within which they must be filed.
    6. The report of the viewers appointed to assess the benefits is conclusive under said act, when approved by the city councils, and cannot be traversed in a trial of an action to recover the assessments.

      October 14th 1880.
    Before Sharswood, C. J., Mergur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ. absent.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1880, No. 7.
    Scire facias sur municipal lien by the city of Allegheny against Richard Dewhurst for grading and paving Troy Road from Yinial street to Gardner street, in said city.
    Troy Hill Road was improved under the Act of May 10th 1871, and a supplement thereto of April 1st 1872. In accordance with said acts, on the 27th of November 1872, the councils of the city of Allegheny passed an ordinance providing for the grading and improvement of said road. Some time thereafter the contract was let, and the improvement was finished in November 1875. The above acts provided for an assessment on all property benefited by said improvement in the city of Allegheny and Reserve township. That portion of the act authorizing the assessments in Reserve township was declared unconstitutional by this court in Beckert v. City of Allegheny, 4 Norris 191. Dewhurst was an active promoter of the improvement, and signed, petitions for it and remonstrances against a change of grade. The Acts of Assembly provided for the appointment of viewers, who should say what property was benefited and make report to councils, which report, when confirmed by councils, should be conclusive. No objection was made by any person to the report of the viewers, and it was confirmed. Dewhurst failed to pay his assessment, and the city filed its lien against him on May 2d 1879.
    At the trial, before White, A. L. J., the defendant made the following offer:
    “ To prove by witness on the stand that the district or property assessed is largely composed of large plats of ground used for gardening, pasturage, &c., and not divided into building lots, or assessable as such, and that the assessments are not uniform, as required by the general laws of Allegheny city in such cases, and not in proportion to the benefits conferred, and in this case the assessment is in excess of the benefits conferred upon defendant’s lot, and, if compelled to pay this assessment, the same would be unjust and unequal, arid not uniform, as required by said general law, a large portion • of defendant’s lots being located upon other streets, for the improvement of which it has been and was liable to be assessed, and has been paid for by defendant; and further, that the improvement for which this assessment has been made is general in its nature and character, while the assessment for the payment thereof is local.”
    Objected to as immaterial and irrelevant generally, and specially because the viewers’ report having been made and confirmed, the same is conclusive upon defendant.

      Per Curiam. — “ This improvement was made under a special Act of Assembly, providing for assessments according to benefits, and it expressly provides that when the report of viewers is approved by councils, it shall be final and conclusive, without exception or appeal. All the matters (except perhaps, the last), mentioned in the offer, were proper subjects to be considered by the viewers, and it must be presumed they passed upon them. We cannot grant an appeal or try the same question by a jury in the face of this act. The last portion of the offer, that the improvement was general in its character, is evident from the character of the Acts of 1871 and 1872, and for that reason those special acts were passed. But we do not think it is ‘ general’ in the sense of the decision in Valentine’s Appeal, 4 Norris 163.”
    Objections overruled.
    The first and second points of the plaintiff which the court affirmed, were as follows :
    1. That if the jury believe t|je evidence, that the defendant knew the location, of the water pipes where they crossed the Troy Hill road, and petitioned for a grade of seven feet to the one hundred which would cut said pipes; while the other proposed grade of eight feet to the one hundred would have cleared said pipes, he cannot complain of the water department, in not lowering the same, if the officers of the department acted in good faith in not lowering them, intending to do so at as early a date as the same could be effected with safety to the water supply of the city.
    2. That if they believe from the evidence, and it is uncontradicted, that the defendant favored the improvement; that he petitioned for the improvement of the street under the special acts, that he remonstrated against an eight foot grade, and asked for a seven foot grade, and stated in said remonstrance that he would be expected to pay his quota towards the cost thereof; that said seven foot grade largely increased the cost, making necessary, according to Mr. Davis, about two-thirds more walls than otherwise required; that he was on the street frequently during its progress and never objected to the city officers having charge of the work, or contractors ; that he talked to Mr. Megraw, the contractor for the walls, whilst the Prospect and Return street walls were being built, and expressed his satisfaction with the improvement, then he is estopped from claiming here that the act is unconstitutional.
    The defendant’s points with the answers of the court were as follows :
    1. That the Act of.Assembly, approved May 10th 1871, entitled “ An Act relative to grading, paving curbing, and otherwise improving Troy Hill road, in the city óf Allegheny, and supplement thereto, approved April 1st 1872,” are unconstitutional and the assessments thereunder null and void.
    Ans. “ Refused.”

      2. It appearing from the lien as filed that the work of improving this road was completed on November 25th 1875, and this lien not having been filed until May 2d 1879, there can be no recovery in this case, and the verdict must be for the defendant.
    Ans. “ Refused.”
    3. It appearing that the report of the board of viewers was approved or confirmed by the councils, November 29th 1875, and that no copy thereof together with a map of the improvement was filed (as required by the Act of Assembly) in the prothonofcary’s office of Allegheny county until after the scire facias was issued (or until September 30th 1879), there can be no recovery in this case.
    Ans. “Refused.”
    4. If the jury believe from the testimony that the walls on the upper or north side of the street or road — the fences thereon — and the steps at the head of Kilkenbeck street, or any portion of said walls, fences or steps were not a necessary part of the improvement of Troy Hill road, the assessment in this case must be reduced a proportionate amount.
    Ans. “ Affirmed, with this qualification, that if the city engineers and other officers of the city having charge and superintendence of the work acted in good faith, believing that the said walls were necessary for the protection of Troy Hill road, and that the fences and steps were necessary for the convenience and protection of persons travelling on that road, and the same -were erected as necessary in their opinion to the proper improvement of the road, that would be sufficient, and the exercise of their sound discretion in the matter cannot be inquired'into now.”
    5. If the jury believe from the testimony that the Troy Hill road, between the termini named in the Act of Assembly, has not been improved to the width of forty feet, there can be no recovery in this case, and the verdict must be for the defendant.
    Ans. “ Affirmed, except as to the place where the water pipes cross the road.”
    6. If the jury believe from the testimony that a.portion of Troy Hill road, between the termini named in the Act of Assembly,-has been improved to the width of only twenty feet or thereabouts, there can be no recovery in this case, and the verdict must be for. the defendant.
    Ans. “Affirmed, except as to the place where the water pipes cross the road.”
    Verdict for plaintiff for $1815.45, when defendant took this writ and alleged that the court erred in the rejection of the above offer of evidence and in the answers to the foregoing points.

      Kennedy & Doty, for plaintiff in error.
    It is not contended, that because one portion of an Act of Assembly is unconstitutional it necessarily follows that the whole act is void. But when as in this case the unconstitutionality arises from a failure to express, in its title, the purposes of the enactment, and the unconstitutional provisions are so connected with the others that it cannot De presumed the legislature would have passed one without all, then the whole statute must fail: Beckert v. City of Allegheny, 4 Norris 191; Cooley’s Const. Lim., p. 177 et seq., notes and cases there cited; Sedgwick on the Construction of Statutory and Constitutional Law, p. 414 et seq., notes and cases there cited. Slauson v. City of Racine, 13 Wis. 398; State ex. rel. v. Dousman, 28 Id. 541: State v. Perry County, 5 Ohio N. S. 497 ; Quinlon v. Rogers, 12 Mich. 168; Campau v. Detroit, 14 Id. 276; Reed v. Omnibus Railroad Co., 33 Cal. 212.
    October 25th 1880.

      W. B. Rodgers for defendant in error.
    There does not appear to be any Pennsylvania case in which the whole of a statute was held unconstitutional, because the title did not give notice of the subject-matter of the entire statute. The rule has been to sustain the portion of which the title gave notice: Wynkoop v. Cooch, 8 Norris 450; Lea v. Baum, 2 Id. 237 ; Allegheny County Home’s Appeal, 27 P. F. Smith 78; Dorsey’s Appeal, 22 Id. 194; Mauch Chunk v. McGee, 3 W. N. C. 32.
    If, when the unconstitutional portion is stricken out, that which remains is complete in itself, or capable of being executed in accordance with the apparent legislative intent, wholly independent of that which it rejected, it must be sustained: Cooley on Const. Lim., p. 178.
    A statute, which is entitled as relating to “streets,” cannot embrace a power to lay out parks, but such power being severable from the body of the act, will not vitiate the entire law : Township of Union v. Roeder, 39 N. J. L. 509.
    Dewhurst having petitioned for and promoted the improvement is estopped: Bidwell v. City of Pittsburgh, 4 Norris 416.
   Mr. Justice Paxson

delivered the opinion of the court,

The defendant below objects to paying the assessment upon his property for the grading and paving of Troy Hill Road, in the city of Allegheny, for various reasons, the first of which is, that the Act of Assembly of May 10th 1871, authorizing the same, and the supplement thereto approved April 1st 1872, are unconstitutional, and the assessments thereunder null and void. In Beckert v. The City of Allegheny, 4 Norris 191, so much of said act was doclaréd to be unconstitutional as provided for the assessment of a part of the cost of the work iipon property in Reserve township, which said township is located wholly in Allegheny county and outside the city limits. The title of said act was “ an act relative to grading, paving, curbing and otherwise improving Troy Hill Road in the city of Allegheny,” and this was held not to be notice to property owners in Reserve township that their property was to be assessed for the cost of the improvement. There was nothing in that .case, however, to throw the slightest doubt upon the constitutionality of any part of the act except in so far as it related to Reserve township. It is no injury to the defendant that property owners in the township have escaped. Their burdens have not been thrown upon his property, but have been very properly assumed by the city of Allegheny. His benefits are the same whether Reserve township pays or not; his burden is only increased by his share of general taxation and of this he has no cause to complain: Bidwell v. City of Pittsburgh, 4 Norris 491. An entire act is not necessarily unconstitutional because the title fails to give notice of some particular matter contained therein. The rule has been to sustain the portion of which the title gives notice: Dorsey’s Appeal, 22 P. F. Smith 192 ; Allegheny County Home’s Appeal, 27 Id. 77; Lea v. Bumm, 2 Norris 237; Wynkoop v. Cooch, 8 Id. 450. Even if there were anything in this objection, the defendant is not in a position to raise it. He petitioned for this road and was active in setting the machinery in operation by which the work was done. His case comes squarely within the rulings in Bidwell v. City of Pittsburgh, supra.

2. It was further objected that the lien was not filed in time. It was evidently filed under section 10 of the supplement which provides that “ said assessments, with the interest accruing thereon, and fees for collection, shall be liens upon the property assessed from the commencement of the work until fully paid; they shall have precedence to all other liens and shall not be divested by any judicial sale.” It may be that as against purchasers or subsequent lien creditors, the city would be required to file the lien as provided by section 9 of the supplement, but as against the defendant the lien continues by virtue of the 10th section.

3. The further objection that no copy of the report of the board of viewers, together with a map or plan of the improvements, was filed in the office of the prothonotary, as required by the act, is without merit. It was not shown that the defendant had been injured by such omission. The report is not made a matter of record. Beside, this provision of the act is directory merely : Magee v. The Commonwealth, 10 Wright 358; Pittsburgh v. Coursin, 24 P. F. Smith 400.

4. No valid objection can be made to the cost of the walls on the north side of the street. The road was constructed along the side of a steep hill, and stone walls appear to have been necessary to protect it. No objection was made to the walls on the south side. They were necessary to hold up the road and prevent its being washed down into the ravine. The walls on the north side were equally important to hold up the hill and to prevent its being washed down upon the road.

5. Equally untenable is the objection that a small portion of the road was improved only of the width of twenty feet. This occurred where the water main crossed the street. The grade, as established, uncovered the main pipe which supplies the city with water. To sink the pipe would require it to be cut, and it was thought unsafe at that particular time to interfere with the water supply. This is a very small matter of a temporary character, and there is nothing to indicate that the city did not act in good [faith, as well as with good-judgment. Besides, the record shows that the defendants, with others, presented their remonstrance to. councils against a change of grade, one of the objects of the proposed change being to avoid this very difficulty about the water main. One of the reasons he gives against a change of grade is, “ that a change of grade would be benefiting but a few to the damage of the many, and also in a great measure detracting from. the glory of the enterprising and public-spirited councils of 1872 and 1873, to whom this road will be a lasting monument, it being in fact the greatest enterprise yet undertaken for the benefit of the great public of our enterprising city.” The grade was not changed.

6. It was not error to reject the evidence embraced in offer “ A.” See ninth assignment. It is sufficient to say in regard to the first part of the offer, which relates to the assessments, that the fourth section of the supplement provides that “ The viewers’ report, when approved by councils, shall be final and conclusive without exception or appeal.” It does not appear that any objection to the confirmation of the report was made to councils. Having failed to bring his complaint before the only tribunal provided by law to hear it, the defendant cannot with justice object that a jury, in a common-law proceeding, were not permitted to revise the assessments. The first portion of the offer being inadmissible, the residue falls with it: Wharton v. Douglass, 26 P. F. Smith 273.

This record is free from error.

Judgment affirmed.

Justices Gordon and Trunkey dissented.


text:
    Scott Township versus Montgomery.
    1. Townships, like other municipalities, must keep their public roads in a safe condition.
    2. If a public road through a township is so dangerous -by reason of its proximity to a precipice that common prudence requires extra precaution, in order to secure safety to travellers, the township is bound to use such precaution and the omission to do so is negligence.
    3. Although a township is not a corporation proper, such as a city or borough, nor invested with power to tax itself for road purposes beyond one per cent, on the county valuation, it is, nevertheless, bound to erect walls or barriers along the sides of its roads where they are unsafe.
    4. In an action to recover damages from a township for injuries received by reason of the unsafe condition of one of its roads, the court instructed the jury “ that if in view of all the evidence they find for the plaintiff, they should allow in estimating the damages not only for the direct expenses incurred by the plaintiff by reason of the injury, but also for the privation and inconvenience he is subjected to, and for the pain and suffering he has already endured bodily and mentally, and which he is likely to experience, as well as the pecuniary loss he has sustained and is likely to sustain during the remainder of his life, from his disabled condition Held, that the measure of damages was correctly stated. Ohio Canal Co. v. Graham, 13 P. F. Smith 290, followed.
    October 15th 1880.
    Before Sharswood, C. J., Mercur,, Gordon, Paxson, Trunket and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1880, No. 152.
    Case by John M. Montgomery against the township of Scott, to recover damages for injuries sustained by plaintiff through the alleged negligence of defendant.
    It appeared at the trial that on June 80th 1877, the plaintiff was driving in a buggy along a public road in the township of Scott, Allegheny county. He was accompanied by his driver, and was driving as usual to the railroad station, when from some unknown cause his horse suddenly shied, and ran off the road and down the hillside, dragging with him the buggy and its occupants, and permanently injuring the plaintiff. The road at the place where the accident occurred runs along a ridge. On one side there is a fence enclosing a cultivated field, but; on the other side, down which the horse ran, is a precipitous decline of about forty feet, upon which side there was no fence or barrier. The road was opened in 1836, and at the time of the accident was otherwise in good condition.
    It also appeared that there are between thirty and forty miles of public roads in Scott township, which is a purely agricultural township; and that fully one-fourth of all these roads are laid out along the sides of hill cuts and declivities, where, if they were required by law, barricades would have to be constructed to prevent possibility of accidents by driving or running off the roads. That the part of Allegheny county, south of the Ohio and Monongahela rivers, including Scott township, is broken, uneven and very hilly, and necessitates the laying out of the roads, as aforesaid, along hillsides and declivities; that Chartier creek and other watercourses run through it, leaving broken, deep ravines, through which the roads have to be made to secure proper grades; and that barriers or barricades have never been constructed along the roads when they were opened and constructed.
    The plaintiff submitted, inter alia, the following points:
    1. If the jury find that that part of the public road where the accident occurred was so dangerous by reason of its proximity to a precipice, that common prudence required extra precaution in order to secure safety to travellers, the township was bound to use such precaution, and the omission to do so was negligence.
    Ans. “Affirmed as a general proposition.”
    7. If the jury, in view of all the evidence, find for the plaintiff, they should allow in estimating the damages, not only for the direct expenses incurred by the plaintiff by reason of the injury, but also for the privation and inconvenience he is subjected to, and for the pain and suffering he has already endured, bodily and mentally, and which he is likely to experience, as well as the pecuniary loss he has sustained, and is likely to sustain during the remainder of his life, from his disabled condition.
    Affirmed.
    The first point of defendant, with the answer of the court, Collier, A. L. J., was as follows:
    1. That Scott township not being a corporation proper, such as a city or borough, nor invested with power to tax itself for road purposes, beyond one per centum on the county valuation, is not bound to erect walls or barriers along the sides of its roads.
    Ans. “ Refused and reserved.”
    Verdict for plaintiff for $7000, subject to the decision of the court on the point reserved.
    The court subsequently entered judgment for the plaintiff on the reserved point, when defendant took this writ and alleged that the court erred in their answers to the above points, and in entering judgment for plaintiff on the reserved question.

      Miller & McBride, Malcolm Hay and W. D. Porter, for plaintiff in error.
    Whatever duties are incumbent upon townships in the matter of opening and repairing the public roads, are prescribed by the Act of June 13th 1836, Pamph. L. 555. There is no obligation thereunder to guard or barricade public roads. The statute does not require it as an element of original construction, and it is not required as repairs. In cases in which townships have been held liable, the facts show that the road bed itself was out of repair and not clear of impediments as the statute required. A very different measure of duty is imposed upon townships from that which is imposed upon cities and boroughs; the one being only a
      quasi corporation with very limited powers and duties, and the others being corporations of vastly larger though differing powers, and having jurisdiction and control over their streets, enabling them to construct and supervise them much more efficiently and completely, and containing population and possessing means which impose larger responsibilities: Dillon on Mun. Corp., sects. 761, 762, 763, 786; Graffins v. Commonwealth, 3 P. & W. 504; Act of April 3d 1851, sect. 2, Pamph. L. 321; entitled “ An Act regulating boroughs.” This measure of duty is also recognised in Pittston v. Hart, 8 Norris 389 ; Perry Township v. John, 29 P. F. Smith 412. But apart from the question of liability in actions of negligence for mental suffering as distinguished from bodily suffering, the court below in its answer to the seventh point instructed the jury that they should allow in estimating the damages, * * * not only for the mental pain and suffering which the plaintiff had already endured, but also for that which he was likely to experience during the remainder of his life. This was giving the jury no rule of damages whatever, but leaving the whole matter of damages, without evidence, or possibility of evidence, on this subject to guide them, to their imagination.

      Weir & Gibson, for defendant in error.
    The laws which authorize and require the construction of streets and bridges in cities and boroughs impose like duties upon the city and borough authorities. The plain and obvious meaning and intent of these provisions are, that townships shall open the roads and build the bridges described in the act, and shall maintain and keep them in such condition and repair as may be necessary for the convenience and safety of the travelling public. Cities and boroughs are required to keep their streets and bridges in like manner. It makes no difference from what cause the unsafety arose, whether from the want of repairs to the bed of the road or street, or whether from the want of protection in case of close proximity to dangerous precipices:
    The great question is, were they unsafe for travel at the time and place of the accident from any cause whatever ? If they were, and the city, borough or township in charge of them had the taxable ability t.o make them safe, it was their duty to do so. If the omission or failure to perform this duty caused injury to life, person or property, without fault on the part of the injured, this court and the courts of many of the other states of the Union have uniformly held such omission of duty to be negligence: Lower Macungie Township v. Merkhoffer, 21 P. F. Smith 276; Hay v. City of Philadelphia, 31 Id. 44; Rapho v. Moore, 18 Id. 404; Newton Township v. Davis, 27 Id. 317; Perry Township v. John, 29 Id. 412 ; Dean v. New Milford Township, 5 W. & S. 345 ; Erie City v. Schwingle, 10 Harris 384; Humphreys v. Armstrong County, 6 P. F. Smith 204; Dean v. City of Scranton, 2 W. N. C. 467; Forks Township v. King, 3 Norris 230; Mahanoy Township v. Scholly, Id. 134; Borough of Pittston v. Hart, 8 Norris 389; Hyatt v. Rondout, 44 Barb. 386 ; Nicholas v. Brunswick, 3 Cliff. 81; Briton v. Cummington, 107 Mass. 347.
    October 25th 1880,
    The complaint that damages were allowed for mental pain and suffering, whereas they should have been limited to bodily pain and Buffering, is not well founded. The instruction is in strict accordance with the measure of damages laid down by this court in a number of similar cases: Pennsylvania and Ohio Canal Co. v. Graham, 13 P. F. Smith 290; McLaughlin v. City of Corry, 27 Id. 109. (See Union Township v. Gibboney, 13 Norris 534. — Rep.)
   The judgment of the Supreme Court was entered

Per Curiam.

We think this case iyas rightly tried and submitted to the jury. Under the numerous decisions of this court on the liability of municipalities for injuries resulting from negligence in not having dangerous places on roads properly guarded, the learned judge could not have answered the points presented to him otherwise than he did. Many of these cases were cases of townships. We see nothing in the point made and reserved as to the taxable ability of the defendant. Judgment was rightly entered upon it for the plaintiff. The measure of damages was correctly stated: Pennsylvania and Ohio Canal Co. v. Graham, 13 P. F. Smith 290.

Judgment affirmed.