author: Mr. Justice Sharswood

text:
    Pierce, Administrator, &c., versus Livingston, Administrator, &c.
    1. Under Act of February 24th 1834, sect. 59 (Legacies charged on Land), the jurisdiction of the Orphans’ Uourt is exclusive.
    2. Testator devised real estate to a son, “ with the exceptions and conditions hereafter mentioned.” He gave.some legacies and directed “ that there remain in the hands of my executors to be paid by my son $1250 over and above the legacies, the interest * * * to be paid to my wife during her life; should my wife need any of the principal for her support she is to have it if any of the $1250 should remain it was to be divided amongst his children. He appointed the son sole executor. The son died, the mother living. Held, that the $1250 was a charge on the real estate, and that an action by the administrator d. b. n. of the testator for its recovery could not be maintained in the Common Pleas.
    3. The design of the Act of 1834 was to vest in the Orphans' Court the large powers of a court of equity.
    4. When a judgment is entered in the court below on a reserved point it should always be accompanied with a written opinion.
    November — 1875.
    Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1875, No 117.
    This was an action brought February 26th 1874, by William Livingston, administrator, d. h. n. c. t. a., of George Sickman, Sr., deceased, against Joseph Peirce, administrator, &c., of George Sickman, Jr., deceased.
    The question in the case arose under the will of George Sickman, Sr., who died in 1852; the will was proved February 7th 1852 ; and on the same day letters testamentary were granted to George Sickman, Jr., the sole executor named in it.
    He bequeathed a number of chattels to his wife and-children, and directed that the remainder of his personal property pass, one-third to his wife, and the remaining two-thirds amongst all his children.
    The will then proceeds:—
    “My real estate I devise as follows : to my son, George Sick-man, his heirs and assigns, I will all my real estate, with the exceptions and on the conditions hereafter mentioned; I will that he pay to my daughter Susannah or her issue $575.” Then follow a number of legacies of the same amounts to other daughters and to his sons of $250 each, with directions that each daughter shall receive $175 in rotation at times named, “until each of my daughters shall have received $575 out of real estate. To my sons I will as follows: one year after my daughters shall each have received $575, Jonathan to receive $250,” followed by directions as to payments to the other sons. The will proceeds :—
    “ I will that there remain in the hands of my executors, to be paid by my son, George Sickman, Jr., the sum of $1250 over and above tbe above legacies, the interest on which is to commence at the time of my decease, at the rate of four per cent, annually, and to be paid to my wife Susannah, half-yearly, during her natural life. Should my wife Susannah need any of the principal of the above $1250 for her support, she is to have it. Should my wife Susannah get married, she is to get none of the principal, only the interest. Should the $1250, or any part thereof, remain at the death of my wife Susannah, I will that it be equally divided amongst my sons and daughters, but that my son George will not be required to pay any part of the above $1250, or interest on the same, until he has first paid off the legacies before mentioned. * * * The $1250 left in my executors’ hands, the interest of which at the rate of four per cent, is to be paid to my wife, should any of it remain at her death, to be distributed as before mentioned; but the payments not to commence until one year after the other legacies are paid, in one year after the death of my wife. * * * The annuity my son George is to pay to my wife to cease at her death. * * * Should any of the $1250 remain at my wife’s death, to be divided as above, to be paid by my son George, one each year, commencing with Samuel, then continue alternately with the boys and girls; and I do hereby constitute and appoint my son, George Sickman, Jr., executor of this my last will and testament.”
    George Sickman, Jr., died about January 1st 1874, the widow still living, having paid his mother the interest on the $1250 until his death. Administration of his estate was granted to Joseph Pierce, the defendant; administration d. b. n. c. t. a. of the estate of George Sickman, Sr., was granted February 6th 1874, to William R. Livingston, the plaintiff. ' This suit was brought to recover from the 'estate of George Sickman, Jr., the $1250 held by him to raise the annuity of the widow.
    A verdict was rendered for the plaintiff for $1250, subject to the question reserved whether the Court of Common Pleas had jurisdiction in the premises.
    On the 27th of March 1875, the court, Stowe, J., without delivering a written opinion, directed judgment on the reserved question to be entered for the plaintiff on the verdict.
    This was assigned for error on the removal of the record by the defendant, by writ of error, to the Supreme Court.

      Robb MeQlurg and Malcom Ray, for plaintiff in error.—
    George Sickman, Jr., retained the $1250 in his hands as executor, and therefore held it virtute officii: Norris’s Appeal, 21 P. F. Smith 106; Siebert’s Appeal, Weekly Notes, October 28th 1875. In such case the Orphans’ Court has exclusive jurisdiction: Jones’s Estate, 3 Casey 336.
    The reporter received no paper-book of defendant in error.

      January 6th 1876.
   Mr. Justice Sharswood

delivered the opinion of the court,

This was an action on the case, by the administrator de bonis non cum-testamento annexo of George Sickman,' Sr., against the administrator of George Sickman, Jr., to recover a sum of $1250, directed by the will of George Sickman, Sr., to be paid by his son and devisee of his real estate, George Sickman, Jr., to his executor in trust, for certain purposes. The plaintiff below claimed to recover this sum of money, as the representative and successor of the executor of George Sickman, Sr., to whom it was to be paid. The only question on the record is upon the reserved point, whether the court below had jurisdiction of the action.

The sum of money, or legacy, in question is not only charged upon the real estate devised to George' Sickman, Jr., but it is exclusively charged upon it. It is the only fund of the testator out of which it could be paid. He first, after a few small personal legacies, bequeathed all the balance of his personal property, one-third to his wife, and the remaining two-thirds to be equally divided amongst his children.. . He then devised all his real estate to his son, George Sickman, Jr., upon the express condition that he should pay certain sums to his children, in a certain order, and at prescribed times. He then provides: “ I will that there remain in the hands of my executors, to be paid by my son, George Sickman, Jr., the sum of $1250 over and above the above legacies, the interest on which is to commence at the time of my decease, at the rate of four per cent, annually, and to be paid to my wife Susannah, yearly, during her natural life.”

By the 59th section of the Act of February 24th 1884, Pamph. L. 84, it is provided, that “ when a legacy is or shall be hereafter charged upon, or payable out of, real estate, it shall be lawful for the legatee to apply, by bill or petition, to the Orphans’ Court having jurisdiction of the accounts of the executor of the will by which such legacy was bequeathed ; whereupon such court having caused due notice to be given to such executor, and to the devisee, or heir, as the case may be, of the real estate charged with such legacy, and to such other persons interested in the estate as justice may require, may proceed, according to equity, to make such decree or order touching the payment of the legacy out of such real estate as may be requisite and just.”

It is very well settled that the jurisdiction of the Orphans’ Court under this section of the act is exclusive: Craven v. Bleakney, 9 Watts 19; Downer v. Downer, Ibid. 60; Strickler v. Sheaffer, 5 Barr 240; Harner v. Hasbrouck, 5 Wright 183; Burt v. Herron’s Executors, 16 P. F. Smith 400. It may be that when there is a primary fund of personal property for the payment of the legacy, and the charge on the real estate is secondary and ancillary, an action under the 50th section of the Act of February 24th 1884, Pamph. L. 82, against the executor, may be maintained for the recovery of such legacy out of the personal assets of the testator: Breden v. Gilliland, 17 P. F. Smith 34. But in the case before us the legacy or sum of money directed to be paid was charged exclusively on the real estate. A judgment against the administrator of George Sickman, Jr., must have been levied of the real estate devised. That was the only part of the property of George Sickman, Sr., that could have been made available. It is clear that if this action is sustained, the jurisdiction of the Orphans’ Court will be taken away by indirection. Thus the beneficial design of the statute, which was to vest in the Orphans’ Court the large powers of a court of equity in all such cases, would be entirely disappointed.

We must repeat, what has been said more than once already, that where there is a judgment in the court below upon a reserved point, it ought always to be accompanied with a written opinion.

Judgment reversed. And now, judgment for the defendant below upon the reserved point.


source: Caselaw Access Project

author: Mr. Justice Gordon

license: Public Domain

text:
    Wray versus Evans.
    1. Persons not personally interfering with the progress of a work or directing its progress, but contracting with third persons to do it, are not responsible for a wrongful act or for negligence in the performance of the contract, if the act agreed to be done be lawful.
    2. The immediate employer of the agent or servant who causes the injury is alone responsible for it; to him only the rule respondeat superior applies.
    3. There cannot be two superiors severally responsible for the same wrongful act.
    4. VVray contracted with a gas company to dig trenches in streets, lay gas-pipes &c., to the satisfaction of the company’s engineer, who was to have the right to suspend the work; Wray 'to bear all losses, &c., which should happen to any person. Wray sub-let to Davis to perform all the work for which Wray had contracted, to the satisfaction of the company’s engineer, to be suspended as the engineer might direct; Davis to bear all losses by reason of carrying out the work through negligence, &c.; if he neglected to perform the work to the satisfaction of the engineer, Wray on two days’ notice might declare the contract void. A trench was made under the contracts by Davis, who employed the hands and supervised them ; defendant had no control.over them. Plaintiff fell into the trench and was injured. Held, that Wray was not liable to the plaintiff for the injury.
    5. Painter v. Pittsburg, 10 Wright 213, followed.
    November — 1875.
    Before Agnew, C. J., Sharswood, Williams, Mercue, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas, No. 2, of Allegheny county : Of October and November Term 1875, No. 148.

      This was an action on the case, commenced February 6th 1874, by William W. Evans against James T. Wray, for an injury received by the plaintiff from falling into a trench in one of the streets of Pittsburg, made for the purpose of laying gas pipes, under a contract by the defendant with the Pittsburg Gas Company.
    On the 12th of May 1873, the defendant entered into a contract with the Pittsburg Gas Company to excavate a trench in Gas street and Second avenue, &e., so that 20-inch pipe might be laid in it, &e., and place in it the pipes, &c., and afterwards fill the earth around the pipes, &c.; the work to be done to the “ perfect satisfaction” of the company’s engineer; “ to be proceeded in or suspended on any portion when required by the engineer,” and to be completed by the following 15th day of September. It was further agreed: “ That all losses, accidents and damages of whatever kind and from whatever cause, which shall at any time happen to the work or to any person or persons whomsoever, shall be wholly borne and made good by the party of the first part. And should the party of the first part at any time during the pro-, gress of the work, refuse or neglect to supply a sufficiency of materials and workmen, the said party of the second part shall have power to provide materials and workmen, after three days’ notice in writing being given to finish the said work, and the expenses shall be deducted from the amount of contract.”
    On the 23d of May 1873, Michael Davis entered into a contract with the defendant, by which Davis agreed to do the work which the defendant had contracted to do for the gas company by the contract above mentioned; the contract was in substantially the same terms as the former one. Davis stipulated that he would do the work to the perfect satisfaction of the company’s engineer,' the work to be proceeded with or suspended on any portion of the route as the engineer might direct, and to be completed before the 15th of September then next. Davis to receive monthly 80 per cent, of the amount due at the end of each month, “ until the satisfactory completion of the whole work, when the balance shall be paid to him.”
    It was further agreed that “ Davis shall bear all losses, damages, fines and recoveries that may happen or be had by reason of the carrying on the said work arising through mistake or negligence or otherwise. * * * .Should the said Davis at any time neglect or refuse to carry on or perform the said work to the satisfaction of the engineer of the Pittsburg Gas Company ; * * * the said Wray shall have the option, at two days’ notice to said La vis, either to declare this agreement on the part of him, the said Wray, no longer binding, but forfeited and made void, or to supply and make good the omissions or non-performances of said Davis, and to deduct the cost thereof from the contract price; * * * that unless the said Davis fully completes and satisfactorily performs the whole of the aforesaid work, on or before the 15th day of September next ensuing, that he will pay the said Wray $25 per day for each day thereafter that the said work is incomplete,” &c.
    The case was tried, February 11th 1875, before White, J.
    The plaintiff testified that on the night of October 9th 1873, he fell into the trench as he was passing down Second avenue and broke his leg; that it was not guarded, and there was no light; the hole into which he fell was where the people walked.
    There was other evidence corroborating the plaintiff as to his fall, the condition of the trench, &c.
    John Davis testified that Michael Davis was superintending the job; that defendant frequently paid witness on orders from Michael Davis; Davis gave men orders on witness for groceries.
    J. H. McElroy, the engineer of the gas company, testified that he was at the work frequently; Davis was so slow witness had frequently to go there ; he finally dismissed Davis.
    Defendant gave evidence that there were lights and barricades at the trench on the night of, the 9th of October 1873; also that Davis employed and paid the workmen.
    The defendant testified that the work was commenced by Davis in June or July; witness paid none of the men and had no control over them; the work was done under Davis and under the superintendence of the engineer of the gas works ; witness had nothing to do with the work except to pay Davis; he told Davis he must obey the instructions of the engineer; witness had no control of the work after Davis got the contract; witness never gave any orders.
    Plaintiff, in rebuttal, gave evidence that there'were no lights nor barricades at the trench on the night of the accident.
    The following are points of defendant, all which were refused:—
    4. If the jury believe from the evidence that at the time of the accident the work was being done by Michael Davis, under the direction of the engineer of the gas works, their verdict should be for the defendant.
    5. If the jury believe from the evidence that the negligence, if any, in not putting up barricades and lights at the ditch on the night of the accident, was caused entirely by Michael Davis and the men in his employment, their verdict should be for the defendant.
    6. If the jury believe from the evidence that the defendant had assigned or sub-let this contract to Michael Davis, and that at the time of the accident and before it, the defendant had no control over Davis or his men, the verdict should be for the defendant.
    The verdict was for the plaintiff for $2735.
    The defendant moved for a new ;trial; the court refused the motion, on condition that the plaintiff would release all damages above $2000; the plaintiff having so released, judgment was entered on the verdict for the plaintiff for $2000.
    The defendant took a writ of error.
    He assigned the refusal of his points for error.

      tS. M. Raymond and O. B. M. Smith, for plaintiff in error.
    The power retained in the defendant’s contract with Davis to 'declare it void in case he failed to comply with the stipulations in defendant’s contract with the company, did not impose a liability on defendant which would not exist without it: Reedie v. London & N. W. Railway Co., 4 Welsby, H. & G. 244; Quarman v. Burnett, 6 M. & W. 499. The defendant having no control over Davis or his men and not standing in the relation of principal, master or employer to him or them, was not responsible for their negligence: Painter v. Pittsburg, 10 Wright 213; Sadler v. Henloch, 4 E. & B. 570; Rapson v. Cubitt, 9 M. & W. 710; Allen v. Hayward, 7 Ad. & E. (N. S.) 960; Overton v. Freeman, 11 C. B. 867; Peachey v. Rowland, 13 Id. 182; Blake v. Ferris, 1 Selden 48; Hillyard v. Richardson, 3 Gray 349; De Forrest v. Wright, 2 Mich. 368; Linton v. Smith, 8 Gray 147. Whether the relation be that of master and servant is determined mainly by ascertaining from the contract of employment whether the employer retain the power of controlling the work: Forsyth v. Hooper, 11 Allen 419; Wood v. Cobb, 13 Id. 58; Coomes v. Houghton, 102 Mass. 211; Cuff v. Newark & N. J. Railroad Co., 35 N. J. 18; Wright v. Holbrook, 52 N. H. 120; Bissel v. Torrey, 65 Barb. 188; Hunt v. Penna. Railroad Co., 1 P. F. Smith 475; Allen v. Williard, 7 Id. 374; Woodward v. Webb, 15 Id. 254; Shearman & Redf. on Negligence, sect. 70-85.
    The reporter received no paper-book from the defendant in error.
    January 6th 1876.
   Mr. Justice Gordon

delivered the opinion of the court,

In the case of Painter v. The Mayor, &c., of the City of Pitts-burg, 10 Wright 213 (Strong, J., delivering the opinion of the court), it was held that it is the settled law, both in England and in this country, as ascertained by the decided preponderance of authorities,, that persons not personally interfering with or -directing the progress of a work, but contracting with third parties to do it, are not responsible for a wrongful act done, or for negligence in the performance of the contract, if the act agreed to be done be lawful.

Hence, it was held, that the city was not responsible for an injury occasioned by the negligence of those who contracted with it to do certain work, or of their agents or servants, and that the reniedy for such injury was against the contractors alonei ' The conclusions drawn from all the more recent authorities, • including the above, may be formulated thus: the immediate employer of the agent or servant, who causes the injury, is alone responsible for such injury; to him alone the rule of respondeat superior applies, and there cannot be two superiors severally responsible.

Let us now recur to the facts of this case. By agreement between the Pittsburg Gas Co. and James T. Wray, the latter undertook to dig a trench, in which to lay the gas pipes of said company, in Gas street and Second avenue, from the works of said company to the gas holder, in the Fourteenth ward of the city of Pittsburg. This work was to be done under the supervision of the company’s engineer. It was also part of the contract, that should Wray, at any time, neglect or refuse to supply a sufficiency of material or workmen to execute the work properly, the company might furnish the same, after giving three days’ notice, and charge the same over to Wray.

By a sub-contract, similar in its terms, except that if the work was not done to the satisfaction of the gas company’s engineer, t.he contract was to be forfeited on two days’ notice, Wray passed the job to Michael Davis. Each of the contracts contained a covenant that the contractor should be responsible for all losses, damages, fines and recoveries that might happen or be had by reason of the carrying on of said work arising through negligence, mistake or otherwise.

In execution of his contract with Wray, Davis proceeded to dig the trench along Second avenue, into which, on the night of October 9th 1873, the plaintiff fell and broke his leg. The evidence shows that Davis employed and supervised the hands who did this work, and that Wray had no control whatever over them. From the above statement, it is patent that Davis having contracted in good faith with Wray, to do the work, he was neither the servant nor agent of Wray, and hence not subject to his authority.

It follows that the doctrine of respondeat superior has no applicability to the defendant in this case. As long as Davis continued to progress with the work, in a manner satisfactory to the engineer of the gas company, Wray had no more power over the work than an entire stranger. Had he volunteered advice as to the care necessary to preserve the public from danger, it would have been to no purpose, as he had no power to enforce it. The matter was out of his hands; he could not assume the control of the work until the sub-contract should be forfeited by hon-performance.

Thus, not only authority, but reason forbids that the defendant should be made responsible for the negligence of one over whom he had no power, and who was not subject to his direction.

Again, beyond controversy, Davis was, in this case, liable for the negligence of his employees in the prosecution of the work; hence, to charge this negligence over to Wray is to make tw.o superiors severally liable for the same injury or misfeasance. This, however, violates the rule already referred to, which negatives such a proposition.

We conclude, therefore, that the court erred in refusing to affirm the plaintiff’s sixth point, and for this reason the judgment is reversed and a venire facias de novo is awarded.


text:
    Bigley et al. versus Williams.
    1. In an action against the owners of a steamer for injury to barges from collision, the plaintiff having shown the collision and injury, may, in chief, give evidence that defendant’s pilot was incompetent.
    2. Anything evidencing negligence in those navigating the steamer or incompetency in the discharge of their duties which would tend, though remotely, to produce the accident, would be relevant.
    3. The barges were floating down the river, guided by oars only; the steamer was ascending and under the control of the pilot; the steamer was bound to keep clear of the barges.
    4. The plaintiff would have made a primit facie case, by showing the collision, injury, and — the accident occurring'at night — the exhibition of suph lights as were necessary to warn the steamer.
    5. The plaintiff was not bound to rest his case upon the presumption of carelessness arising from the circumstances, but might prove in chief positive negligence.
    6. The plaintiff was bound, under the Act of Congress and common prudence, to show a light when it would avail the steamer to avoid a collision; that this was neglected during the remainder of the night when the steamer was not in sight, was of no importance to the,defendants.
    7. Evidence that the pilot, “ after the accident, admitted the collision was caused by his neglect, and within twenty-four hours afterwards committed suicide by poison,” was inadmissible.
    8. Declarations of the pilot, unless made before or at the time of the collision and so connected with it as to make them part of the res gestee, were inadmissible.
    9. The narrative of an agent of a past occurrence, is not evidence against his principal.
    1Ó. The nearness to the accident of the subsequent declarations of an agent does not qualify them as evidence, unless they are so immediately connected as to form parts of its history.
    11. Fawcett v. Bigley, 9 P. F. Smith 411, followed.
    November — 1875.
    Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: No. 90, to October and November Term 1875.
    This was an action on the case, brought to January Term 1873, of the court below, by D. B. Williams, against John Bigley and others, owners of the steamboat “ R. J. Grace.”
    The plaintiff was the owner of three barges laden with coal, lashed together and floating down the Ohio river on the night of October 30th 1872 ; the steamer “ R. J. Grace ” was ascending the river with a tow of several loaded flats; at a point about fourteen miles below Pittsburg a collision occurred between the two crafts by which one of the plaintiff’s barges was sunk and lost. The plaintiff, alleging that this loss was occasioned by the negligence of the servants of defendants in. managing their steamboat, brought this action to recover compensation for their loss.
    The case was tried September 15th 1874, before White J.
    The plaintiff testified that the accident occurred about 7§-o’clock in the evening ; about dark he had lighted the lamps and set them down until he was directed by the pilot to hold them up, when the “ Grace ” came in sight; they were then a mile and a half or two miles apart; plaintiff had signal lights; one was a big fire in a shanty which was built on the coal; he did not have what was called a steamboat fixed light; the shanty fire would be a fixed light equal to a steamboat furnace. The plaintiff testified as to the manner in which the lantern was exposed. He also testified that it was not customary to keep signal lights out all the time; they are exhibited only in case of danger; they are exhibited only when a steamboat is seen; he did not know that it was customary to keep fixed signal lights on floating crafts at night; did not know that the Acts of Congress required it.
    Captain J. McDonald testified that he was a steamboat pilot and had known William Marshall, who was the pilot of the “ Grace” at the time of the accident.
    Plaintiff then proposed to prove by the witness that he was well acquainted with William Marshall, the pilot at the wheel of the “ Grace” at the time of the collision, and that said Marshall had before his death for some time been in the employ of witness, and boating and piloting with him, and that for the last three or four years’ he, said Marshal, by reason of age, physical debility and impaired eye-sight, had become incompetent to steer, pilot or control a tow-boat or tow. This, for the purpose of showing that defendants had not on duty at the time of the collision a competent ofiicer as pilot, and that this was a cause of the accident or contributed to it.
    The defendants objected to the offer as incompetent and irrelevant ; the offer was admitted and a bill of exceptions sealed for the defendants.
    The witness testified in accordance with the offer.
    Under a similar offer, objection and exception, O. Bobo, a pilot, testified in the same way as the previous witness as to the incompetency of Marshall as a pilot.
    It was proposed to prove by plaintiff and other witnesses, that William Marshall, the pilot in charge of the “ R. J. Grace ” at the timé of the collision, after the accident, admitted that the collision was caused by his neglect, and went within twenty-four hours afterwards, as soon as he got' his boat into port, and committed suicide by poison. This, for the purpose of showing negligence on part of defendants’ agent, the pilot at the wheel of the “ Grace ” at the time of the collision.
    This was objected to by defendants’ counsel as incompetent and irrelevant.
    The court said: “ The offer is a little obscure, but, as I understand it, it is to prove the admissions of the pilot at the time of the accident or immediately after it. Such admissions or declarations will be received. The fact that he committed suicide afterwards, within twenty-four hours from the time of the accident, may be proven in connection with his admissions above referred to. Objections overruled, and a bill of exceptions sealed for defendants.”
    Williams then testified : “ I went on board the ‘ R. J. Grace’ that night, when she was landing the two barges that had got adrift from the third one. She was towing them at the time I went on her. It may have been half án hour after the collision. The first word spoken to me by Billy was, ‘ Danny, those boats don’t belong to you.’ I told him they did. ‘ Well,’ said he, ‘ I did not see you in time. I thought it was-’ and then he stopped. Some person touched him. He first said that he had not seen them in time, and then, just right after he says, ‘ I thought it was -’ and then he stopped.. There was nothing came up between us after that. I did not see him afterwards. They left us and came with the balance of their tow to Pittsburg. Marshall poisoned himself the next night.”
    The plaintiff proposed to prove by N. W. Aultman, and other competent Ohio river pilots, that it is not the rule or custom, in navigating that river with floating boats, to keep up all night a stationary signal-light, but that the lights are exhibited only when steamboats or other vessels are approaching.
    This was objected to by defendants : — •
    1. As incompetent and irrelevant.
    2. That it is the duty of craft, such as the plaintiff’s, when floating on the current at night, to keep one or more fixed and steady lights in one or more conspicuous parts of the boat.
    The offer was admitted, and a bill of exceptions sealed for the defendants.
    The witness testified : “I ama pilot. Have been at the business about nineteen years. About nine years steamboating, and the balance flat-boating. I floated on boats about fourteen or fifteen years, I suppose. I never knew a permanent signal to be carried on flat-boats. We used at first when I went on to have a tin lantern and candle. After that we got glass lanterns with oil. We kept them burning all night. We kept them some place where it would be handy to get when steamboats were approaching. When we were not meeting a steamboat we kept them in some place out of sight. * * *. When the light was shown I made it a rule for the party holding it to hide it from me so that it would not blind me. I had him stand between it and me. I never knew of any stationary lights on floating-boats.”
    Other witnesses testified as ■ to the mode of exhibiting signal-lights on-the float on the night of'the accident; that at the time plaintiff exhibited the lantern on the float, the steamboat was distant about a quarter of a mile- •
    The defendants gave evidence that Marshall was an experienced pilot, had been engaged in the business for many years and had a high reputation in his business. '
    They gave evidence also that no lights were exhibited from the plaintiff’s float until about three minutes before the accident, and when it was too late for the “ Grace” with her tow to avoid the collision.
    R. Logson, the mate of the “ Grace,”, testified that at the time of the collision he was in the pilot-house fixing a bell-rope which had parted ; he had got half a hitch in the wire when the pilot blew the whistle; he put another hitch in, reached the bell-rope to the pilot and told him he had better stop her; the work witness was then engaged in was his proper work.
    On cross-examination, he said he was the officer on watch; when the pilot told him the bell-rope was broken, he went into the pilothouse ; he went downstairs to get a new piece of rope, and tied the new piece in; there was no time lost in ringing the bell of which the rope was broken.
    The 47 th sect, of the Act of Congress of 28th February 1871 (United States Statutes at Large, vol. 16, page 454), enacts as follows:—
    “ And upon each and every coal-boat, trading-boat, produce-boat, canal-boat, oyster-boat, fishing-boat, raft or other water-craft, navigating any bay, harbor or river, by hand-power, horse-power, sail, or by the current of the river, or which shall be anchored or moored in or near the channel, or fairway, of any bay, harbor or river, there shall be carried from sunset to sunrise one or more good white lights, which shall be placed in such manner as shall be prescribed by the board of supervising inspectors.”
    The court charged:—
    * * * “ The plaintiff seeks to recover the value of his barge and coal sunk, and damages for injury to the other two barges. He asserts that the collision was caused wholly by the negligence of those in charge of the tow-boat. The defendants, the owners of the tow-boat, reply that the collision was caused in whole, or .in part at least, by the negligence of the.plaintiff and his men in charge of the barges. - If the allegation of the plaintiff is true, he is entitled to recover; if the allegation of the defendants is true, he is not. The plaintiff alleges that he had proper and sufficient lights on his barges, placed there long enough before the collision, and kept burning, to give the defendants due warning and enable them to turn .out or go around the barges. These allegations the plaintiff is bound to establish by satisfactory evidence. On the other hand, the defendants deny that the plaintiff had proper and sufficient lights, and in consequence of his -.neglect in this respect the accident happened. This is the main question in the case. As the counsel have very fully discussed the evidence on this point I shall not review it at length, but content myself with stating the principles of law involved in the case and answering the points presented.
    “ Floating craft, like coal barges, which are very difficult of management, and propelled mainly by the current, are entitled, as a general rule-, to the channel; and it is the duty of a steamer to keep out of their way and avoid a collision. But it is the duty of those floating the barges to use care and caution, and in the night-time to have proper signal lights, “ one or more good white lights,” as required by the Act of Congress, so placed as to give due notice to an approaching steamer. The lights should be of a character to be seen distinctly, to give the approaching steamer fair notice of the location and size of the floating craft, and should be elevated in time to enable the steamer, without haste or confusion, but deliberately, to choose its course, in order to avoid collision.
    “ Even if the defendants were guilty of negligence, that alone is not sufficient to enable the plaintiff to recover. He must have done all that was required of him, and' not have been guilty of any negligence, or neglect of duty, which contributed to the disaster. [Even if defendants’ pilot was utterly unfit (although the testimony will probably satisfy you that he was competent), yet that would not justify your verdict for the plaintiff if he had also been guilty of some negligence in the matter; for instance, in not having proper lights or putting them up in proper time.] And the question is not, was it possible for the pilot, after he saw the lights, to avoid a collision? Even if you believe that the mate might have avoided the collision if he had seen the light a few moments sooner, that of itself is not sufficient to enable the plaintiff to recover. His skirts must be clear of all negligence on his part. It was his duty to put up such lights and in such manner and time — not merely to make it possible for the steamer to avoid a collision — but to give the officers .of the steamer ample time to determine their course and act deliberately in all they did. It was not sufficient, to bring out his lights when he saw and apprehended danger — only some three minutes before the collision. They should have been out before that — before any danger was seen or apprehended.”
    The plaintiff’s third point and answer were:—
    3. If the jury believe defendants’ mate, to wit, that the bell-rope broke, then that fact alone is evidence of negligence on the part of the defendants in not having sufficient machinery.
    Answer. “ This point is .too broad, and is therefore refused. But if the breaking of the bell-rope was the cause of the accident, either directly or indirectly, it would be negligence.”
    The following were defendants’ points : — •
    1. It was the duty of the plaintiff to carry on his floating boats at night one or more fixed and steady lights, and his failure to do so was negligence.
    2. The plaintiff was guilty of such negligence in not carrying proper lights on his floating boats, and he is not entitled to recover.
    If the court refuse the second point, then the court is requested to charge the jury:—
    3. As the plaintiff’s boats at the time of the collision were not carrying any fixed and proper signal-lights, the presumption is that his boats were the wrongdoer, and responsible for the collision.
    4. Even if the jury find that there was negligence in navigating and handling the defendants’ tow-boat which led to the collision, yet if the jury also find that the plaintiff was also guilty of negligence in not having proper signal lights on his floating boats, and that such negligence of the plaintiff contributed to the collision, the plaintiff cannot recover, and the verdict should be for the defendants.
    The answer to defendants’ points was:—
    “ The 1st, 2d and 3d points seem to be based on the theory that it was the duty of the plaintiff to have fixed and constant lights burning from sunset to sunrise under the Act of Congress. But we have no evidence that the proper authorities mentioned in the act have established any rules on the subject of floating crafts like these coal barges. Under this act it was the duty of the plaintiff to carry ‘one or more good white lights,’ but the supervising inspectors have adopted no rules prescribing the place or manner in which they shall be placed, and until such regulations be made, it is sufficient if the plaintiff placed his lights in such manner as had been the usual and ordinary custom for many years. It does not matter what negligence the plaintiff may have been guilty of at other times and places.
    “ The question is, was he guilty'of any negligence at the time and place of this accident? It is in evidence that floating coal barges on the Ohio have never adopted fixed lights, and that no rules have been adopted requiring or regulating them. I therefore charge you that if the plaintiff had on his barges such lights as I have described in the general charge, they were sufficient. For these reasons the first three points are refused. I will add, that the cooking fire in the shanty was not such a light as is required by the Act of Congress. It was his duty to provide lights especially for the purpose.”
    The verdict was for the'plaintiff for $2106.24.'
    The defendants moved for a new trial. On the 25th of February 1875 the court ordered that the motion for a new trial be granted, unless the plaintiff filed a stipulation reducing the verdict to $1500. The plaintiff filed the stipulation, and March 1st 1875 judgment was entered on the verdict for the plaintiff for $1500.
    The defendants took a writ of error, which was filed in the court below March 9th 1875. On the 2d of April 1875, the plaintiff obtained a rule on the defendants, to show cause why plaintiff should not have leave to withdraw his stipulation, &c., and the judgment be corrected by entering judgment for the plaintiff on the verdict. On the 28th of June the plaintiff had leave to withdraw his stipulation, the order of February 25th was revoked, the new trial refused and judgment was entered on the verdict for the amount found by it.
    In making this order, Judge White delivered the following opinion:—
    “ When the order of court was made, reducing the verdict from $2106.24 to $1500, it was the understanding of the court, that, if the plaintiff filed a stipulation accepting that sum, it would be satisfactory to defendants, and end the case. But after the stipulation was filed and judgment entered for the $1500, the defendants sued out their writ of error. If we had supposed the defendants would not accept that order of the court as a finality, or intended to take a writ of error, we should not have interfered with the verdict, and should have refused absolutely to grant a new trial. If the plaintiff must follow the case to the Supreme Court and be subject to further delay and further litigation bn the legal questions, he ought to have the chance of getting the whole amount of the verdict. The question of damage was fairly submitted to the jury, and the amount they gave was not beyond the plaintiff’s evidence.
    “ Whether we have the power, in the present state of the case, to interfere with the record may be doubtful. But we think we have. The record is not yet made up, nor has it been certified, but it is still in our custody and we think under our control, in all matters not affecting the writ of error. It is therefore now ordered, to wit, June 28th 1875, that the plaintiff have leave to withdraw his stipulation consenting to take $1500; that the order of court of February 25th 1875, be hereby revoked; that the new trial be refused, and that judgment be entered on the verdict for the amount thereof.” * * *
    The defendants assigned for error:—
    1, 2. Admitting the testimony of McDonald and Bobo.
    3. The part of the charge in brackets.

      4. Admitting the part of the testimony of the plaintiff which was objected to.
    5. Admitting the testimony of N. W. Aultman.
    6. 7, 8. The answer to the defendants’ points.
    9. The answer to the plaintiff’s third point.
    10. Making the order of June 28th 1875.

      M. W. Aekeson, for plaintiffs in error.
    The general character of Marshall, the pilot, was not involved; evidence on that subject should not have been received: 1 Greenl. Ev., sect. 54; Mertz v. Detweiler, 8 W. & S. 376. The declarations of the pilot were not evidence: Fawcett v. Bigley, 9 P. F. Smith 411. It was the duty of the float to have had signal-lights: Delaware v. Steamer Osprey, 2 Wall., Jr., 168; Nelson v. Leland, 22 How. 48; Act of Congress, February 28th 1871, supra. The court could not declare that the breaking of the bell-rope was negligence; it was for the jury: Railway v. Hassard, 25 P. F. Smith 367. The defendants should not have been held liable for an accident to which the most prudent are subject: Shearman & Redfield on Negligence, sect. 6; Meier v. Penna. Railroad Co., 14 P. F. Smith 225; Brown v. Clegg, 13 Id. 51; Story on Bailments, sect. 496. The writ of error issued before the revocation of the order, February 25th 1875, ousted the jurisdiction of the court below: Stephens v. Cowen, 6 Watts 511; Ullery v. Clark, 6 Harris 148; Mathers v. Patterson, 9 Casey 485; King v. Brooks, 22 P. F. Smith 363.

      W. Owens, Jr., and J. Barton, for defendant in error.
    The evidence in the first and second errors was not to show the reputation of the pilot, but to show that he was in fact incapacitated; it was the duty of the defendants to adopt measures to avoid collision: Pearce v. Page, 24 Howard 228. The general usage of a river in regard to navigating ascending and descending boats should be followed: Haldeman v. Beckwith, 4 McLean 286; Barrett v. Williamson, Id. 589; The Major Barbour v. The Paul Jones, 13 Id. 101. Omitting to keep a sufficient lookout, as matter of law, is gross negligence: The Northern Indiana, 3 Bl. C. C. 92; The James Adger, Id. 515; Buzzard v. Petrel, 6 McLean 491.
    June 9th 1876.
   Mr. Justice Gordon

delivered the opinion of the court,

This was an action on the case, brought by the plaintiff against the defendants, for damages resulting from the sinking of one of Shis barges, laden with coal, by a collision with their steamer, R. J. Grace, whilst navigating the Ohio river. It was alleged that this loss happened through the negligence of the defendants’ •employees who had charge of their boat. This was the issue; it was one of fact, and any evidence which tended to establish negligence, on part of those navigating the steamer, or their incompetency in the discharge of the duties which devolved upon them, and which would tend, though remotely, to produce the catastrophe complained of, was relevant and pertinent to the issue trying. The plaintiff’s barges were floating down the river, propelled by the current, and directed only by oars. The steamboat was ascending, driven by steam, and fully under the control of its pilot; hence, it was bound, by every law of navigation, to keep clear of the barges. Obviously, then, a collision happening, under such circumstances, the boat would be prima, facie in fault. It follows, that the plaintiff might have rested upon showing the collision and loss, with the additional evidence, made necessary by the fact that the accident happened at night, that the precaution required by the Act of Congress, as well as by common prudence, to wit, the exhibition of such light or lights as were necessary to warn the steamer of the position of the barges, had been complied with. If, however, the plaintiff chose to go a step further and show that the boat was improperly manned, he might without error do so. It was at best but anticipating the defence by introducing, out of order, his rebutting evidence. It was certainly competent for the defendants to attempt to show, as they did, that the pilot was careful and skilful, for, thereby, the probabilities of negligence would be greatly reduced, but in such case it would not be controverted that the plaintiff might rebut by proving the incompetency of that officer. Independently of this, the plaintiff was not bound to rest his case upon the presumption of carelessness arising from circumstances, but might prove positive negligence, and we certainly think that proof of want of skill, in so important an officer as the pilot, wa.s at least one step in that direction. We, therefore, refuse to sustain the first and second assignments of error. The sixth, seventh and eighth relate to one point, to wit, the contributory negligence of the plaintiff in not carrying upon his barges, during the night, one or more fixed lights. This question was properly submitted to the jury. The learned judge who tried the case says: “ His (the plaintiff’s) skirts must be clear of all negligence on his part. It was his duty to put up such lights, and in such manner and time— not merely to make it possible for the steamer to avoid a collision— but, to give the officers ample time to determine their course, and act deliberately in all they did. It was not sufficient to bring out his lights when he saw and apprehended danger — only some three minutes before the collision. They should have been out before that; before any danger was seen or apprehended.” We cannot see how the defendants could require a direction more favorable. The duty of the plaintiff was to show a light when it would avail the pilot and créw of the steamboat to avoid a collision with the barges, and that that duty was neglected during the remainder of the night, when the steamer was not in sight, was of no importance whatever to the defendants.

The fourth assignment must be sustained. The fact of the suicide of the pilot, within twenty-four hours, or at any other time, aftei’ the accident, was so clearly not evidence that argument upon this point is not necessary. The only usé that could be made of such testimony would be to damage the defendants’ case by raising a presumption of negligence in the pilot, from his own appalling and atrocious act, for which the defendants were not in the slightest degree responsible. This matter should not have appeared in the case. So, the declarations of Marshall, unless made before or at the time of the collision and “so connected with it as to make then part of the res gestee," ought not to have been admitted. As was said by Mr. Justice Agnew in Fawcett v. Bigley, 9 P. F. Smith 411: “The narrative of an agent of a past occurrence cannot be received as proof, against the principal, of the existence of such occurrence.” The offer, in the case cited, was to prove the declarations of the defendant’s agent within one hour after the accident, but it was rejected, and, as we have seen, that rejection was sustained by this court. We find, therefore, that the nearness of the subsequent declarations of an agent to the accident, does not qualify them as evidence unless such declarations are so immediately connected with it as necessarily to form part of its history. The ninth assignment is not sustained. The court well answer the point in saying, that the breaking of the bell-rope would not be evidence of negligence unless it, in some degree, contributed to the accident.

The reversal of the judgment makes an examination of the tenth specification unnecessary.

Judgment is reversed, and a venire facias de novo awarded.


author: Per Curiam.

text:
    Vandergrift’s Appeal.
    1. A legacy was charged on land devised; the devisee entered into possession ; the legatee contested the will; the devisee tendered her the legacy with interest to the time of tender, which she refused. Held, that she was not entitled to interest after the tender.
    2. Her contest of the will was a refusal of the legacy and she was not entitled to interest until demand.
    3. There being no demand for the legacy until petition in the Orphans’ Court for a decree of payment, interest stopped until filing the petition.
    November — 1875.
    Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Appeal from the Orphans’ Court of Allegheny county: Of October and November Term 1875, No. 254.
    The question in this case arose under the will of George Light-hill, deceased, dated June 28th 1867, and pro.ved July 15th in the same year. He devised a farm and some other real estate to his son, John Lighthill, in fee. The will contains also this clause:—
    “ I further devise her (his daughter, Margaret Vandergrift,) the sum of $2000 out of the bequests made lo him, my son, John Lighthill, to be paid over to his said sister, Margaret Vandergrift, and her heirs.”
    He appointed John Morrison his executor.
    On the 13th of February 1875, James Vandergrift, administrator, &c., of Margaret Vandergrift, deceased, James L. Vandergrift, and others, her heirs-at-law, petitioned the Orphans’ Court, setting out the will of George Lighthill, his death and the probate of the will; the devise to his son and the bequest to his daughter Margaret; that John entered into possession of the real estate devised to him ; the death of Margaret the 19th of June 1871; that the legacy of $2000 had not been paid to Margaret in her lifetime, nor to her representatives since her death, although legal demand was made for it, but the same was still due, with its interest. The prayer was for a citation to the devisee and the executor, and that a decree be made for “ the payment of said legacy of $2000, so bequeathed to said Margaret Vandergrift, and so charged upon the said real estate devised to John Lighthill.”
    The respondent, John Lighthill, answered, amongst other things, denying the right of the petitioners to interest; that upon the 8th of February 1870, the whole of the sum of $2000 and interest thereon was tendered to Margaret Vandergrift and her husband, and by them peremptorily refused ; that Margaret Vandergrift and her husband had by their own acts prevented the settlement of George Lighthill’s estate, by aiding in contesting his will, thereby casting a cloud upon the title and preventing a beneficial sale of the property.
    These facts appeared on the hearing before the Orphans’ Court.
    The Orphans’ Court (Hawkins, J.,) decreed, April 17th 1875, that James Vandergrift, administrator, &c., of Margaret Vandergrift, deceased, recover from John Lighthill the sum of $2000, with interest from the 28th day of June 1868 until the 8th day of February 1870, &c.
    The petitioners appealed to the Supreme Court, and assigned for error the refusal of the court to allow interest on the legacy after February 8th 1870.

      J. Barton, for appellant.
    To make the tender available it should have been paid into court: Sheredine v. Gaul, 2 Dallas 190; Cornell v. Green, 10 S. & R. 14; Seibert v. Kline, 1 Barr 38; Harvey v. Hackley, 6 Watts 264.

      T. M. Marshall, for appellees.
    The party by whose default, payment is delayed shall lose the interest during the delay. A tender need not be kept up where the agreement is executory, and acts of the parties are to be concurrent: Thompson v. McKinley, 11 Wright 355; Magaw v. Lothrop, 4 W. & S. 321; Henry v. Raiman, 1 Casey 361; Williams v. Bently, 3 Id. 294.
    November 8th 1875,
   Judgment was entered in the Supreme Court,

Per Curiam.

The petition in this case was for a legacy to be paid by John Lighthill, a devisee under George Lighthill’s will and charged upon his devise. The petitioner having contested the will of George Lighthill necessarily attacked the very deyise upon which her legacy rested. It is evident John Lighthill was thereby prevented from safely paying the legacy until Mrs. Yandergrift’s litigation came to an end. He, however, tendered payment, thereby evincing his willingness and readiness to pay the legacy, if she would accept it. But her contest against the will was a refusal of the legacy. Her own act therefore prevented the running of interest, until she made a demand for the legacy, and thereby evinced her willingness to accept it. The petition for payment is the only demand in evidence, and hence the court was clearly right in refusing interest from the time of the tender until the time of fling the petition.

Decree affirmed with costs and the appeal dismissed.