text:
    ERIE COUNTY.
    July Term, 1882,
    No. 256.
    December 6, 1882.
    Erie and Pittsburgh Railroad Company’s Appeal.
    1. Testimony by the grantor of lands to a railroad company of a contemporaneous agreement with the agent of the company to reconvey a portion of the lands which was reserved, corroborated by evidence of the subsequent occupation by the company of the land reserved by the special permit of the grantor, and by a subsequent deed to the grantor by the agent of the company in his individual capacity for this land, is sufficient upon which to support a decree for a reconveyance against the company.
    2. Where a bill in equity set forth an “ express agreement officially in writing ” by the agent of a railroad company to redeed to the grantor certain lands, and the answer denied that the agent “ entered into an express agreement officially in writing to redeed to the plaintiff ” the lands; Held that the denial was not so distinct and positive as to afford grounds for the application of the rule in equity that a denial in the answer must be met and overcome by more than one witness.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkev, Sterrett, and Green, JJ.
    Appeal of the Erie and Pittsburgh Railroad Company from a decree of the Court of Common Pleas of Erie County overruling exceptions to and confirming the report of a master.
    Bill in equity filed by William Gibson against the Erie and Pittsburgh Railroad Company to compel the execution of a good and valid deed for certain land.
    The bill set forth, inter alia, that on January 2, 1860, and prior thereto, the complainant was the owner of a certain piece or parcel of land situated in the borough of Jamestown, Mercer county ; that the Erie and Pittsburgh Railroad Company were about to locate their road through said lands; tliat John A. Tracy and John H. Walker, the former president and the latter director and attorney for the company, called upon the complainant and agreed to pay him $600 for the right of way through his lands, and, in pursuance of the negotiation, the complainant made and executed a deed to Tracy in trust for the defendant, reserving for himself lots designated as lots Nos. 1 and 2; that when the engineer came to locate the road, Tracy and Walker returned to complainant and negotiated with him to take back the earlier deed and give a new deed “embracing more land, for a depot building, covering land reserved by complainant, with the express agreement, officially in writing, to redeed to the _ complainant all the lands not covered by the depot building of lot No. 2 reserved in the former deed, and bound the said company to make the reconveyance as aforesaid; ” that in pursuance of this agreement the complainant executed a deed, January 13, 1860, to Tracy, as trustee for the company, of lands including lots Nos. 1 and 2 ; that in conformity with the agreement, Walker and Tracy assured the complainant that they would send him a deed duly and properly executed by the railroad company for the land in lot No. 2 not covered by the depot; that, subsequently, he received a deed for the said land, dated April 13, 1863, and, trusting to the judgment and learning of Walker and Tracy, he believed it to be in due' form of law until within two years last past, when he discovered that the deed was defective in form ; that it was executed by John A. Tracy and wife, in his personal capacity, when it should have been made by the railroad company in due form of law ; and that when the error was discovered and communicated to Walker, he directed the complainant to call upon the company for a new deed for the land claimed. The bill prayed that the railroad company should be ordered to execute and deliver to the complainant a good and valid deed for the land in question.
    The answer of the defendant admitted that the land had originally belonged to the complainant, and had been negotiated for on behalf of the company by Tracy and Walker, but denied the alleged consideration, and set forth “that it maybe true that the engineer may have required more land and in some, different shape for depot building, but of this the defendants are not advised; but it is not true that the said John A. Tracy and John H. Walker entered into an express agreement, officially, in writing, I to redeed to the plaintiff all the lands not covered by the depot building of lot No. 2, and bound the said company to make reconveyance, but, on the contrary, the deed made by the plaintiff contains no restrictions or reservations, and is an absolute and entire conveyance;” that said defendants are not advised of any agreement made by Walker or Tracy, as there is no such agreement or stipulation in -writing among the records of said defendants, nor, as they are informed and believe, was there any so made, to send plaintiff a deed duly and properly executed by said railroad ; that Tracy and wife did make and execute a deed as set forth, but said defendants are not affected by said conveyance, as they had no authority to make a conveyance of the property of said Erie & Pittsburgh RR. Co.
    The Court appointed A. J. Poster, as master to report the facts and a decree. The master reported, inter alia, as follows:
    Dr. Gibson testified that Messrs. Walker and Tracy proposed that he, Gibson, should execute another deed of conveyance covering the land described in the deed of conveyance, dated January 2, 1860, and to embrace more land on each side of the track south of the J. & P. road, and also to deed to the company defendant the entire depot lot, including the pieces reserved, and they would give him their obligation in writing as the officers of the company, to redeed back to him the grounds reserved, except so much as might be covered by the depot building, which he, Dr. Gibson, agreed to ; that they executed their obligation to him in writing as officers of the company defendant, to redeed back to him all of the lot No. 2, reserved, not covered by the depot building, and he, Dr. Gibson, made and executed the deed of conveyance to the company defendant; that the obligation executed by Messrs. Walker and Tracy and deed were executed at one and the same time, and was one entire transaction, and one was the consideration for the other as to the grounds reserved, or so much thereof as would not be covered by the depot building.
    By his special permit, the Erie & Pittsburgh Railroad Company occupied the ground that he supposed had been properly redeeded back to him, with some small buildings and structures, until a short time before bringing this suit, when the Pennsylvania company, lessees of the Erie & Pittsburgh railroad, took forcible possession of the grounds.
    The master further reported.
    “It would be very difficult for a chancellor to come to any other conclusion, from all the testimony in the case, than that the deed made and executed by John A. Tracy and wife to Dr. Gibson, Exhibit ‘C,’ was executed in pursuance of some previous arrangement or contract with Dr. Gibson. Why should Mr. Tracy go through the solemnity and trouble of making and executing the deed to Dr. Gibson if there had been no previous understanding or contract with Dr. Gibson, and he, Dr. Gibson, had no claim ? Mr. Tracy personally had no interest in the land whatever. Mr. Tracy’s declarations, as testified to by Mr. Scott, that he did it to get rid of Dr. Gibson’s importunities, if evidence at all, are too trifling to be considered by a chancellor.
    “And the fact that the company defendant occupied the land in dispute several years by the special permit of Dr. Gibson, is some corroboration of Dr. Gibson’s version of the transaction ; it shows that the company defendant then considered the land Dr. Gibson’s. It is also in evidence that the Pennsylvania company, lessees of the Erie & Pittsburgh railroad, opened negotiations -with Dr. Gibson for the purchase of the land in dispute. See Exhibit £E,’ filed with plaintiff’s testimony. And it does not appear that this was done with a view of compromising a dispute, as contended for by the counsel for defendant in his argument, because at that time there was no dispute as to the ownership of this land now in dispute, and not until several years after.
    “With this view of this case, the master finds . . . that the prayer of the complainant in the bill of complaint should be granted as prayed for.”
    He reported a decree accordingly.
    The defendant filed, inter alia, the following exceptions :
    £ 1 Second.' The evidence of a grantor alone and unsupported would not be sufficient to alter and vary, to enlarge or diminish, or attach conditions to the deed of conveyance, and the testimony of Dr. Gibson as to the contract by which his deed of January 13, 1860, was to be altered and diminished by a reconveyance of a part of the land described in said deed, is unsupported by the testimony of a single witness, and said deed ought not to be affected by the testimony of the grantor, Dr. Gibson, alone.
    “ Third. When a deed of conveyance contains no reservations or conditions for a reconveyance, the grantor setting up a contract of even date with said deed to re-convey, there should be more evidence of such a contract than the mere testimony of the grantor himself, and in this case there is no evidence except that of the plaintiff, Dr. Gibson, himself.
    “ Fourth. The fact that John A. Tracy and wife some years after made a deed to Dr. Gibson is no evidence of a prior existing contract between the plaintiff, Dr. Gibson, and the defendant, the Erie & Pittsburgh railroad.
    “ Fifth. The master erred as to his conclusions of the law in the case.”
    The Court October 14, 1881, filed the following opinion :
    “The finding of the master in this case is based almost wholly upon the testimony of the complainant, which, however, finds some substantial corroboration in the fact proven of his having exercised ownership over the land in controversy for a number of years, as well as in the further significant circumstance that John A. Tracy, while president of the corporation defendant, executed a deed conveying in quit-claim the land now claimed to the complainant. This conveyance being executed by Tracy and wife as individuals would, of course, be worthless so far as vesting the title of the Erie & Pittsburgh Railroad Company in complainant is concerned; but as the act of Mr. Tracy while holding the office of President, and as an apparent attempt on his part to carry out the alleged contract before made between him and Mr. Walker, representing the railroad, with Dr. Gibson at the time of the execution of the deed by the latter, it becomes an item of evidence to be taken into consideration in connection with the testimony of the compainant and the fact of possession being held by him. The rule is that the acts and declarations of officers and agents made after the transaction do not bind the principal, but it seems to me that it would be too close and rigid an application of this rule had the master excluded this deed under the facts as proven before him. It is not a mere declaration of Mr. Tracy, but it is a poignant fact going to show how the matter was understood by himself and Mr. Walker, who was a director, and, as it is alleged, the attorney of the company at the time, and they two being the officers who secured the deed from complainant at the time the alleged agreement was made. There is much of testimony taken which is irrelevant, and which the master says was not considered by him. The various conversations with Messrs. Walker and Tracy, and the declarations alleged to have been made by them, must be excluded, of course, as not having been made in the course of the transaction, but afterwards.
    But leaving out of view the fact referred to, namely, the execution of the deed by John A. Tracy and wife, under the direction and at the instance of Mr. Walker, and excluding all'the evidence to which objection is made, how will the case stand %

    The complainant is a competent wetness. His reputation for truth was not attempted to be impeached, and, as before stated, he is corroborated, to some extent at least, by the fact of his exercising ownership over the property in question during several years after the deeds to the company were executed. Taking his testimony to be true, and it is not contradicted, then the equity is with him and a reconveyance ought to be ordered in compliance with the original contract.
    It is said that it ought not to be that the title to land should be affected by the unsupported evidence of the grantor in the face of his own deed, and that a wide door is thus opened for the disturbance of the rights of property. This may be, but it has been long held in Pennsylvania that the rule of evidence that ‘ parol contemporaneous evidence is inadmissible to vary or alter the terms of a valid written instrument’ does not prevail here, and as said by Judge Paxson in delivering the opinion of the Supreme Court in Lippincott v. Whitman, 2 Norris, 244, ‘It may be that parol evidence in such cases is of a dangerous character. We may concede it to be so. But the rule in this State is too well settled to be disturbed; on the other hand, it is in the experience of every lawyer that if we were to adopt as an inflexible rule the precept that when a man once puts his hand to a written instrument the terms thereof cannot, under any circumstances, be modified or contradicted, it would lead to consequences of a most serious character. Instead of being a shield against fraud, it would be its efficient and sure protection. Neither view of the case is entirely free from difficulty. The rule adopted in this State seems to be the lesser of the two evils, and because it is so, and because it has become established by a line of authority, we prefer to adhere to it.’
    The conclusion of the master would appear, therefore, to be in accordance with law and the evidence, and the exceptions are overruled and it is ordered that a decree be entered as reported by the master and that the respondents pay the costs.”
    The defendant then appealed, assigning as errors the refusal to sustain its exceptions to the master’s report.

      J. Ross Thompson for appellant.
    The evidence of the grantor was not sufficient to justify the master in his conclusion. There was no evidence in writing produced, and no witness to corroborate the evidence of the grantor. If deeds of conveyance are to be contradicted, altered, or varied on such evidence as this, then indeed are titles and tenures of land in Pennsylvania uncertain. This would be going much farther than is laid down in the case of Lippincott ». Whitman, 2 Norris, 244, and a long line of cases decided in Pennsylvania.

      Benson & Brainerd for appellees'.
    The evidence of the -grantor was confirmed by the engineer’s plot, the Tracy deed, the occupancy of the land by Dr. Gibson, and the license to the company, all potent facts as evidence of the contract. The contract was a defeasance and not necessarily part of the deed. ‘It isa general rule that the defeasance -shall be a part of the same transaction with the conveyance, though the defeasance may be dated after the deed: 12 Mass., 456. The cases are very numerous in our reports where deeds absolute upon their face are recorded and the defeasance accompanying them not recorded: Lippincott v. Whitman, 2 Norris, 244.
    December 30, 1882.
   — Per Curiam :

There was more evidence than the testimony of the grantor, the complainant to the cotemporaneous agreement to reconvey. Nor is the denial in the answer of the actual agreement in writing as distinct and positive as to afford ground for the application of the rule in equity, that a denial in the answer must be met and overcome by more than "one witness. The answer is that it is not true that "Tracy and Walker entered into an express agreement, officially, in writing to redeed the land in question. Upon the iacts reported by the master, we think the decree was righ t.

Decree affirmed and appeal dismissed at the costs of the appellants.


source: Caselaw Access Project

author: — Per Curiam :

license: Public Domain

text:
    January Term, 1883,
    No. 68.
    December 6, 1882.
    The Pennsylvania Company v. Allen.
    1. The Court has a right to express its opinion upon the facts, provided they are still submitted to the jury.
    2. Where, therefore, the Court submitted the facts to the jury, but said “they would probably be considered by a jury as being careless,” it was held not to be error.
    3. The fact that the plaintiff, at the time she suffered the injuries for which suit was brought, was -picking up coals in a street not fully opened and occupied for public travel, but which had been actually improved and used to some extent, will not prevent her recovery against a railroad company for negligence.
    Before Sharswood, C. J., Mercur, Gordon. Paxson, Trunkey, Sterrett, and Green, J J.

      Error to the Court of Common Pleas of Erie County.

    Case by Ruth Ann Allen against the Pennsylvania Company to recover damages for personal injuries alleged to have' been caused by the negligence of the employés of the defendant.
    Upon the trial before Galbraith, P. J., the plaintiff testified, in substance, inter alia, as follows :
    On the morning of the 25th of April, 1877,1 went down to the water-works, picking up a little cinders. I wasn’t there very long when some one hallooed to me. The cinder pile is on Chestnut street on the south side of the railroad track. To the best of my knowledge, I was six or seven feet from the railroad track when I was on that pile of cinders. I looked in every shape, back and forward, and there was no cars coming. I got on my knees, and was picking up the cinders, and it was a very cold morning, and some one hallooed at me, and at that I got up and the cinder pile slipped under me. I got frightened. I didn’t know anything until the cars ran over me. My leg had to be amputated. I did not hear any signals of the approach of the train. There was no whistle blew, and they rung no bell. I can give my oath to that. I didn’t hear it; if I did, I would have got out of the road.
    Upon cross-examination, she said:
    I was on my knees, and I got up immediately, and I got frightened, and I fell off from the cinder pile ; I fell right clown.

      Joseph Maginnis testified for the plaintiff, inter alia, in substance, as follows:
    I was at the ice-house about two squares west of the water-works. This train passed me, going east. It consisted of loaded coal cars. The train was backing. According to my judgment, I think it was making over ten miles an hour. I didn’t see any signals nor hear any.
    Upon cross-examination he said:
    Tnere was a street opened down through there. I suppose it was simply opened down to the water-works to get in with their teams, but they went to the north side of the water-works and hauled their coal over. They were hauling their coal to the water-works across the track. There is no street opened along there. There is a road to the ice-house. There is no street along the bluff of the lake. Along in front of Chestnut street there is the water-works docks.
    Upon re-direct examination he said :
    Chestnut street is Used as a thoroughfare for people going down to go out on tlie bay with boats. I have seen that place with fifty people on it at a time.

      John Lanigan, for the plaintiff, testified in substance, inter alia:

    I saw the train coming. I didn’t see any signals given at that crossing. I heard the whistle blowing at the culvert above the ice-house. I couldn’t swear whether at the ice-house or a little above it. The curve where they blow the whistle is about two blocks above the waterworks. They blew the whistle generally when they came to the curve. After that there was no signal given. If there had been any other signal given I should have heard it. They were running, I think, twelve or thirteen miles an hour, to the best of my knowledge. They were backing down. I think Chestnut street is a thoroughfare for people crossing the track there to go to and from the bay, where teams are going to haul coal and wood, &e. There is a good many people crossing that track.
    There was other corroborating testimony for the plaintiff.
    Counsel for the plaintiff offered in evidence the charter of the city of Erie, showing that all of the streets were public highways, and an ordinance of the city forbidding trains to be run within its limits at a greater rate of speed than six miles an hour.
    It was admitted that there was no flagman at the place where the track crossed Chestnut street.

      W. W. Reed, for the defendant, testified in substance, inter alia :

    I was water commissioner for twelve years, from the commencement of the works to May, 1879. Chestnut street was graded by the water commissioners from Second street — not quite up as far as Second street. When the works were commenced Chestnut street 'was not opened from Second north. The water commissioners, during'the time of building the wmrks, graded the whole down, to enable them to haul machinery and coal down. It was graded down nearly opposite to the south side of the engine-house, and from there north there was a hill some eight or ten feet high in the street. The water commissioners paid for it. There was no public crossing there while I was commissioner up to 1879.
    The engineer of the train testified that it was going at the rate of about eight or ten miles an hour, that "the whistle was blown at the ice-house, that no other signal was given, that they were backing down, and that he had no orders to make a signal at the Chestnut street crossing.

      The defendant submitted, inter alia, the following points:
    2. Even though a street be ordained by the proper authorities, it is not a street until opened and occupied for public travel, and the public generally would have no right to use the same until so opened.

      Answer. — This is refused. The street in question is an original street of the town, now city, of Erie, and the evidence shows that it had been improved and used in connection with the city water-works, and that it was open at least in part and traveled by persons and teams at the point in question.
    3. From all the evidence in this case, the plaintiff is not entitled to recover.

      Answer. — This is a request to take the case from the jury ; but, as already stated in the general charge, under the view we take of the evidence, the jury must pass upon the questions of fact involved, and say under all the evidence and with the law governing such cases, whether the plaintiff is entitled to recover.
    The Court charged, inter alia, as follows :
    “Now, in the first place, was there negligence on the part of the railroad company % We have already instructed you that this was a public street; the railroad company had a right to cross it, but they were bound to exercise due care and prudence in crossing the street, in order that no injury might occur, and the jury may find that to cross a public street, even although not traveled to a great extent, that to cross that street with cars reversed, with the train reversed and the engine in the rear, without precautions taken by ringing the bell, or some person stationed on the rear car in order to give notice to persons, might be negligence. Do they find that to be so, especially if the train was coming, as testified to here, from eight to thirteen miles an hour % One of the witnesses for the defendant said eight to ten, and ten to thirteen was the evidence on part of the plaintiff. [Now, in a town or city, or wherever there are persons to cross the track, a train coming along with the signal not having been given short of a quarter of a mile distant, and no person on the rear car to notify persons who may be on the track, would probably be considered by a jury as being careless.] It is said, and that would appear to be the evidence, that the whistle was sounded where this train came in sight, a quarter of a mile away, but not after that, and it does not appear that any bell was rung; the jury might find that there was carelessness in the management of the train ; but if you find that there was also carelessness on the part of Mrs. Allen — a woman of her age — in going so close to the track upon this uncertain foundation upon which she was' — the pile of cinders — and that in consequence of her carelessness and negligence in taking the helpless position she did, and her heedlessness in paying no attention to any signal that was given by the railroad, she suddenly starting up and meeting with this injury, and that her carelessness contributed to this injury, she would not be entitled to recover in a legal point of view. This is entirely for you, and you are to take this case without any prejudice against the defendants on account of their being a corporation. The counsel who has so ably argued the case on the part of the plaintiff does not appeal to any such feeling as that, and has very properly avoided any great appeal to your sympathies. You will leave out of view any prejudice, either for this plaintiff or against this corporation. All parties stand equally before the law, and you will decide the case upon the evidence as it appears to you.
    In the first place, was there negligence on the part of the railroad company in the management of this train ? If you find that there was not, that is the end of the case. If you find that there was negligence in the management of the train, then you will take up the next question : Was there any negligence on the part of the plaintiff' — • any contributory negligence on her part by which this accident occurred, or was there, from the absence of prudence on her part, the occurrence of this accident? In that case, no matter if you find there was negligence on the part of the defendant, she cannot recover.
    If you find that the accident resulted to her, she exercising ordinary prudence and care, and resulted from the negligence of the railroad company’s employés, without any fault of hers, she is entitled to recover; and if you find for the plaintiff, you will allow her what her loss would be — taking her age into consideration and her ability to earn. She said she earned her living by washing; of course her earnings would be small, and the years she has to live would probably not be very many, she being an old woman ; and you will take that all into consideration and allow her for that whatever you think would compensate her in damages for the loss of her earning power if you find for the plaintiff, and then add such sum as you think will compensate her for the pain and suffering she has endured from this injury, or what she is still likely to undergo from the hurt.”

      October 5, 1882.' Verdict for the plaintiff for $700, on which judgment was subsequently entered.
    The defendant then took out a writ of error, assigning as errors the answers to its points, as above, and that part of the charge within brackets.

      J. Boss Thompson for plaintiff in error.
    The conclusions to be drawn from the evidence are for the jury. It is not for the court to intimate the probable effect of the evidence. Here the Court states certain facts, and says that they “would probably be considered by a jury as being careless.” This is error.
    The second point should have been affirmed. A street may be a street on paper or on a map, and yet not a street dedicated to public use. It makes no matter whether it was one of the original streets of the town as laid out. It was never opened for public travel. The city had never expended one dollar in opening it — never had enacted an ordinance to that effect.

      Benson & Brainerd and Clark Olds, for defendant in error.
    It is a well-settled principle of law that where a person is legitimately upon a railroad track or highway and becomes suddenly frightened through the unexpected or irregular course of a train, which is negligently driven, and unwisely runs into instead of out of danger, he is not liable for the consequence, for it was the defendant’s negligence that put the plaintiff in the perilous position. Pa. H.E.. r>. Werner, 8 Norris, 59.
    The testimony of the engineer in charge of the train ‘ ‘ that they had no orders to make a signal at this crossing, and did not make any,” is sufficient to fasten negligence upon the company.
    The fact that the Court used the words “would probably be considered by a jury as being careless” in commenting upon one of the minor facts of the case would not be sufficient grounds for reversal. It was not a binding instruction upon the jury, and they were not, and could not have been, misled by it: Phelin v. Kenderdine, 8 Harris, 854; Greeley n. Thomas, 6 P. F. Smith, 35.
    December 30th, 1882.
   — Per Curiam :

The right of the Court to express its opinion upon the facts, provided they are still submitted to the jury, is no longer an open question. There was evidence that the street had been actually improved and used, to what extent was immaterial. There was no error, therefore, in refusing to take the case from the jury.

Judgment affirmed.


author: — Per Curiam:

text:
    January Term, 1883,
    No. 62.
    December 7, 1882.
    Pennsylvania R. R. Co. v. Fuller.
    1. The power of a Court in refusing a rule for a new trial, to put a plaintiff under the terms of remitting a part of the damages, is within its legitimate discretion and is not subject to review.
    2. The order in which evidence shall'be admitted is within the sound discretion of the Court below.
    S. In an action for damages against a common carrier for personal injuries caused by the alleged negligence of an employé of defendant, the plaintiff gave evidence of the accident, the injuries sustained, and their extent, and of his earning capacity. Held: That the Court committed no error in stating that he had made out a prima facie case.
    Before Siiarswood, C. J.; Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.”
    Error to the Court of Common Pleas of Erie Qounty.

    Case by Rulof Puller, Jr., against the Pennsylvania Railroad Company, to recover damages for a personal injury resulting from the alleged negligence of the company defendant.
    On the trial in the Court below, before Galbraith, P. J., the plaintiff gave evidence of the following facts :
    On the 15th of January, 1880, the plaintiff, Rulof Puller, Jr., purchased a ticket at Erie for Union City, and took his seat in a caboose car, which was arranged with seats for passengers, and was attached to the end of a local freight train. At Jackson’s station a gondola or platform car was attached to the rear end of the caboose car. After this attachment was made, the train was run on to a side track, but before the gondola had passed the switch, a brakeman, acting as switchman, and standing with his back toward the rear of the train, turned the switch, and the caboose car was turned over. Fuller was thrown violently against the side of the car and received serious injuries in the back. A number of witnessed testified that Puller was a strong and vigorous man, and capable of earning from three to five dollars a day. In his deposition, he stated that he was thirty-seven years of age, and for several years previously had earned from $1,200 to $1,500 annually. Dr. Greenlee testified that the injury sustained was a serious one, affecting the spinal column; that Fuller, in his opinion, would not recover from it so that he would be able to stand. Another witness was called to prove the plaintiff’s condition.
    The Court, to plaintiff's counsel: “You have made a prima facie case; you have proved the accident and the condition of the plaintiff, what his earning power was, and the extent of his injury, &c. It is not for you to anticipate their defense. Í understand the line of defense to be that this plaintiff will probably eventually get well.”

      Defendants counsel: “My line of defense will be that the injuries are not so excessive as claimed, and nothing like it. I propose to show, by medical experts, the extent and character of the injuries, and the possibility and likelihood of recovery. It is for them to show their branch of the case and we meet it.”
    The Court : It is not necessary for the plaintiff to anticipate the defense by going into the minutiae of the injury, to make out a prima facie case. If you bring medical men to swear as to the complications and possible result of the matter, we will allow the plaintiff to rebut that. We shall allow them, after you show what you intimate you will, to rebut. They have made their prima facie case. Now, you meet that, and we will allow them to rebut that. They show the accident, and the injury, and the earning capacity, and the condition and health of the plaintiff, prima facie. Then you come in with your defense, which they are not bound to know anything about, and undertake to show that the injuries are temporary in their effects, and it is for them then to show that they are not temporary. From the defense you have intimated, they are not bound to know that in advance, and not obliged to meet a case that is not presented, until it is presented. When you present your case in which you undertake to show the injuries are likely to be not permanent, we will allow them to rebut that by showing the contrary. They are not bound to know the defense until they hear it.”
    The plaintiff then rested.

      Counsel for defendant: “ The plaintiff has medical experts here. Will your Honor permit him to call them after we call ours?”

      The Court. Certainly. . . There is no question about it.
    (Second assignment of error.)
    The defendant then called a large number of medical experts,-to show that the paralysis of the plaintiff was local, that liis injuries were less in extent than had been testified to, and that his physical condition was improving.
    After defendants had closed their testimony, a witness was called, and asked by plaintiff’s counsel as follows:

      ilQ. How near do you live to Mr. Puller now?

      A. About thirty feet.

      Q. What has been his condition during the time he has lived near you ? ”
    Objected to as not rebutting testimony, and that plaintiff cannot reopen that branch of the case.
    The Court. We ruled on this that it was not necessary to take time to go on and prepare for what might not come; that if the defendants controverted this matter, if they introduced evidence to show that he was not seriously hurt, that there was any pretense about it, anything different from what was alleged by them, we would allow them to go on and rebut.
    Objected to.
    The Court. It is not worth while for the plaintiff to spend time in making out a case that may not arise, and we allow them, after you have made your defense, to meet that defense.
    The defendant’s counsel objected to the testimony offered, on the ground that the plaintiff, having made out a case and proved by their witnesses the accident and injury, called medical testimony to prove the extent of the injury and then rested, should not now be allowed to introduce testimony which should have been evidence-in-chief.
    The Court. The plaintiff, having established his prima facie case, the counsel for the defendants, conceding that the accident, by which the plaintiff sustained the injury complained of, was the result of carelessness on the part of the employer, and the plaintiff, calling other witnesses to establish, by cumulative evidence, the nature of the injury still further than he had already done, and their extent,, was stopped by the Court with the intimation that it would not be necessary to occupy further time, unless the defendants should, by their evidence, attempt to show that the injuries were simulated or affected, in which case rebutting proof would be allowed to meet that phase of the case. Such evidence having been offered, and the cross-examination showing an intent to use such argument to the jury, the plaintiff is now permitted to rebut by medical and other testimony, proving' the contrary of the proof, by the defendant.
    (Third assignment of error.)
    April 18, 1882. Verdict for the plaintiff for $25,000, the full amount claimed in the Narr. September 26, 1882, the Court, after argument on motion for a new trial, ordered that a new trial should be allowed, unless the plaintiff should, within thirty days, remit of record $8,000 of the sum recovered, leaving the amount $17,000.
    On September 28, 1882, the plaintiff released of record $8,000 of the verdict rendered, and judgment was entered for $17,000.
    The defendant thereupon took this writ, assigning for error, inter alia, the action of the Court in directing a verdict of $17,000 and the rulings of the Court in the course of the trial, as given above.

      J. Ross Thompson for plaintiff in error.
    The Court erred in directing a remittitur of the excess of damages and directing a verdict of $17,000 to be entered in this case. This is practically a denial of .trial by an impartial jury. It is a substitution of the opinion of the Court for the verdict of a jury. A remittitur may be allowed in a verdict where the measure of damages is a rule of law, but in a tort where the measure of damages is not fixed by definite rule, and is a subject of opinion, such a remittitur substitutes the opinion of the Court for the verdict of the jury. When a jury, from ignorance or prejudice, renders a verdict excessive in amount, the Court should grant a new trial, and not attempt to modify the verdict.
    After the defendant has closed his testimony, the plaintiff will not be permitted to give additional evidence on a subject on which he had previously examined witnesses, if nothing new has been proved by the defendant: Grilpins v. Consequa, 1 P. C. C., 88.
    While, as a general rale, this Court will not reverse on account of evidence out of order, in cases where injustice or prejudice may be the result of irregular order, this Court will reverse. Had the defendants introduced new matter by their evidence, it would have been proper to admit the evidence in rebuttal. The witnesses were all in court. The testimony could have been offered in chief. But it would seem as if the plaintiff said: “We will give you so much testimony in chief, which, if met by the other side, we will call in our relay forces and introduce more evidence, which you can have no chance to meet,” claiming it as rebuttal.

      J. W. Sprout and Davenport & Griffith for defendant in error.
    The Court below was not in error in stating that we had made out a prima facie case. All that we had to do was to prove the fact of the injury and its nature and extent. The onus is then cast upon the other side to disprove negligence: Phila. & Reading R. Co. v. Anderson, 13 Nor., 357; Sullivan v. The Railroad Co., 6 Casey, 234.
    The power of the Court to control the order in which testimony shall be admitted is settled by numerous decisions : Wilson v. Jamison, 7 Barr, 126 ; Finlay v. Stewart, 6 Smith, 192 ; Quinn v. Crowell, 4 Whart., 334; Salmon v. Ranee, 3 S. & R., 311; Wolverton v. Commonwealth, 7 S. & R., 273 ; Moore v. Small, 9 Barr, 195.
    December 30, 1882.
   — Per Curiam:

The power of a Court in refusing a' rule for a new trial to put a plaintiff under the terms of remitting a part of the damages ought not to be questioned. It is a matter in the discretion of the Court below which we cannot review. The Court committed no error in saying to the plaintiff’s counsel that he had made out a prima facie case, for such was undoubtedly the case. The order of evidence is in the sound discretion of the Court below. No injustice was done in this case. We discover no error in any of the rulings complained of. The injury inflicted upon the plaintiff by the negligence of the defendants, which was not controverted, was, according to the evidence, a very serious one, but with the amount of the verdict we have nothing to do.

Judgment affirmed.


author: Green, J.

text:
    FAYETTE COUNTY.
    July Term, 1882,
    No. 115.
    December 30, 1882.
    Layton v. Brightfield.
    1. In 1868, G entered into an agreement for the purchase of lands, and he paid the purchase money in instalments. There was evidence that, at the time of the purchase, he said to the vendor that he wanted it for his brother J, and that at the time of the payment he said it was J’s money. The deed was made to G, but subsequently he took it back to the vendor, who destroyed it and made another to J. J entered into possession in 1869, and he testified that he retained possession for three years; that he then leased the property; that his last tenant was B; that B went in in April, 1877, but that he made him a written lease August 16, 1878, to hold possession. B, for a consideration, surrendered to the defendant whose vendor obtained the title of G at a sheriff’s sale in 1878. There was evidence that he said he was holding under G. G took part in the renting, and the lease was left in his hands. In an action of ejectment by the sheriff’s vendee of the interest of J, the Court instructed the jury that the single question was whether B was really the tenant of J at the time he delivered up the possession, and that if they found that he was not the tenant of J at the time he delivered possession to the defendant, their verdict should be for the defendant. Held, that this was error.
    2. The question of whether or not the transaction was merely a contrivance to defraud the creditors of G, and whether or not the purchase money of the land was really paid by J, and he, therefore, the equitable owner, ought to have been left to the jury.
    3. Semble that the declarations of G, that the first payment was with the money of J, were evidence as part of the res gestae.

    4. Semble that the sheriff’s sale of the title of G upon a judgment against him, under which the defendant claims, conferred no greater immunity against the effect of G’s acts and declarations than was enjoyed by G himself.
    5. The finding of the jury was for the defendant, but since that finding under the charge as to the tenancy was limited to the relation of the parties only at the time the possession was delivered to the defendant, the character of B’s previous possession was not determined, and it was not determined whether there was a bare entry or a continuing occupancy by J. It, therefore, does not appear whether or not J’s resulting trust, if it existed, was barred by the statute of limitations.
    Before Sharswood, C. J. ; and Mercur, Gordon, Pan-son, Trunkey, Sterrett, and Green, JJ.
    Error to Court of Common Pleas of Fayette County.

    Ejectment commenced October 80, 1879, by Susannali Layton against Charles Brightfield.
    Upon the trial in the Court below, Willson, J., the following facts appeared:

      On November 23, 1868, San-1 Snyder entered Into an agreement with. Gabriel Murtland for the sale of forty-five acres of land in Tyrone township, Fayette county, the consideration being $1,800, to be paid in six instalments, possession to be given on April 1, 1869, and the deed to be made on or before April 1, 1874.

      Saul Snyder, for the plaintiff, testified, inter alia:

    “I held possession of the forty-five acres for two years until 1869, and gave the possession to James Murtland. Gabriel Murtland bought it from me. He told me he was buying for his brother James. I made the article of agreement with Gabriel. James Murtland came on the place when I moved away. I made a deed to Gabriel; they wasn’t satisfied with the deed, and they came back to me and told me that the land belonged to James, and they wanted the deed made to him. I can’t tell you the date of that. I had given the deed to Gabriel; he brought that back and said that I was first to destroy that one, and make one satisfactory. It was destroyed, and then I made one to James ; can’t tell how long Gabriel had it; can’t tell how long after making the article that I made the deed; it was after the payments was run out. Gabriel had paid the money as near as I know, and then I made him the deed. I made the deed to James, when they brought the Gabriel deed back to me. Gabriel paid me the first payment; it was in the neighborhood of a thousand dollars. He said that it was James’ money though at the time he paid it. Gabriel paid me most of the money; but James was along several times after-wards. When Gabriel Murtland came to me to buy this, he said he wanted it for his brother James.”
    Deed from Saul Snyder to James Murtland, dated July 16,1875, acknowledged same day, and recorded June 29, 1878, was then admitted in evidence without objection.
    The record of a judgment in favor of Susannah Layton, the plaintiff, against James Murtland was offered and admitted in evidence, said judgment being dated August 23, 1878, for $247 35, and under which the said property was sold as James Murtland’s on May 31, 1879, the plaintiff being the purchaser.

      James Murtland, for the plaintiff, testified, inter alia:

    “I got possession of this land February, 1869, from Saul Snyder. I lived on it myself three years, and then rented it into tenants’ hands from that on till after they sold it from me by Coldren ; my last tenant was John Bryan. I had a written article with him.”
    On cross-examination, he said: I had it in possession, me and my tenants, until it was sold at sheriff’s sale as Gabriel Murtland’s property. They bought Bryan out, and he went out then and gave it up.”

      H. H. Lindsey, for the plaintiff, testified, inter alia:

    “I drew the lease, dated August 16, 1878, from James Murtland to John Bryan, the day of the sale of Gabriel Murtland’s interest.”
    James Murtland re-called: I signed lease to Bryan on August 16, 1878.
    On cross-examination he said: “Bryan did notgo in there when I went out. Bryan went in on the 1st of April, 1878. Between the time I went out and he went in, there was George Anderson. Bryan and I had a lease when he went in first on the first year, and when the first year expired, he just stayed on on the old lease. Well, it must have been April, 1877, that he went in. I made this lease on the 16th of August to hold possession of the property. They claimed it as Gabriel Murtland’s title instead of mine. It was made about the time the property was sold as Gabriel Murtland’s. The purpose of this lease was to hold my title good. 1 claimed that I had the title. Bryan didn’t go in under Gabriel Murtland. Oh, well, he and I and Gabriel all consulted together. We were all together when we consulted, but he went in on it as my property. I can’t tell where the article is ; it was in the hands of my brother Gabriel; it was left in his hands as security. Gabriel took part in renting, but it was rented as my property. Bryan never had an article with Gabriel Murtland. Bryan paid part of his rent to me; he did not pay any to Gabriel, because I know that I received all the rent that he paid. He never paid all the rent; he was a dilatory man. I had no deed at the time Bryan went in there under me. Mr. Snyder made the deed to me just before this article was made.”
    Re-direct examination: Gabriel never claimed any of this land. Gabriel never did claim any land from Bryan.

      James Hazlewood, for the plaintiff, testified, inter alia:

    “I went to see Bryan at Mr. Coldren’s request. I think Bryan said it would cost him about $15 to get a place, and I think that is what we gave him. He just delivered up, and Charles Brightfield went in then.”
    On cross-examination : Bryan told me he was holding under Gabriel Murtland.
    Saul Snyder was re-called by the defendant, and testified substantially the same as above.
    The defendant then offered in evidence the record of a judgment in favor of Thomas Mo wry against Gabriel Murtland for $500, upon a judgment note dated June 29, 1875, and under which, the property was sold in October, 1878, to William H. Coldren for $110.
    Defendant also offered deed dated September 23, 1878, from W. H. Coldren and wife to Charles Brightfield, the defendant.
    Wesley; Cotton, for the defendant, testified, inter alia:

    “James Murtland told me that Gabriel Murtland owned this property in dispute either in April or May, 1877.”
    Cross-examined: “ When he wanted me to sell the place, says I, Who is the title in % Said he, Gabriel Murtland ; that is, the deed was in Gabriel Murtland. He said that Gabriel had bought it, and the title would come through him.”

      R. H. Lindsey testified in rebuttal that he read a notice at the sheriff’s sale that the property belonged to James Murtland and not to Gabriel Murtland.
    The Court below charged the jury, inter alia, as follows :
    “In addition to all this, on the part of the defendant, it is also claimed that the evidence that has been offered in the case in regard to the purchase by Gabriel Murtland from Snyder and the execution of the deed to Murtland, and then the subsequent destruction of that deed, and the execution of another deed to James Murtland, and the subsequent execution of a lease from James Murtland to John Bryan — this and other matters, it is claimed, go to show that the whole transaction was merely an arrangement between James and Gabriel, whereby the property was to be put into the possession of James Murtland for the purpose of keeping it from being sold in order to pay the judgment of Mowry, that the whole thing was a mere contrivance on their part, and was not an honest transaction, but was a fraudulent one, and it is claimed that the jury may find, from the evidence in the case in regard to the transaction, that Gabriel Murtland was the person who was really the owner of the property in dispute, and that he was the one who was really in possession, and that John Bryan was his tenant, and that when John Bryan delivered up the possession to Bright-field, that Brightfield had a right to receive it, because whatever rights Gabriel Murtland had in the land, it is claimed, passed to Brightfield by reason of the sheriff’s sale, and the subsequent conveyance by Mr. Coldren to the defendant. Under the view that we take of the evidence in this case, [there is but a single question for you to determine, and that is, whether John Bryan really was the tenant of James Murtland at the time that he delivered possession of the disputed premises to Charles Brightfield. If he was, then we instruct you that the plaintiff is entitled to recover, and Brightfield must go out and restore the premises to Mrs. Layton, who is entitled to stand in the position in which Murtland stood to Bryan, if'Bryan was his tenant. If, on the other hand, you find that John Bryan was not the tenant of James Murtland at the time he delivered possession of the premises to Charles Brightfield, then we instruct you that the plaintiff is not entitled to recover, and your verdict should be for the defendants. It is altogether a question of fact, which you are to determine from the evidence that you have heard. You have heard the comments of counsel on the one side and the other, and we leave it altogether to you, without any disposition or intention' to go o.ver the evidence again, because it has been fully commented on by counsel on both sides. But that is the-question we submit to you to determine, if you find that John Bryan was the tenant of James Murtland at the time that he delivered the possession of that land to Charles Brightfield, the defendant, then your verdict ought to be in favor of Mrs. Layton. But if, on the other hand, he was not the tenant of James Murtland, then the defendant is entitled to your verdict. So far as the other questions raised in the case by counsel for the plaintiff, who have presented a number of points, are concerned, we will say briefly that those points are refused ; because we are of the opinion, and so instruct you, that if Bryan was not the tenant of James Murtland at the time referred to, then the plaintiff has not made out such a case as would entitle her to recover, independent of that tenancy. Her right to recover depends entirely upon her establishing the fact that John Bryan was the tenant of James Murtland, and the evidence does not entitle her to recover otherwise. The jury will understand that when we speak of him being there as a tenant, we mean as real tenant — not there by an arrangement to act as tenant, but that he was really so, and in good faith.]”
    Plaintiff’s counsel excepted to the answers to certain points which he presented, and to that portion of the charge inclosed between brackets.
    February 9, 1881. Verdict for the defendant, upon which judgment was afterwards entered.
    Plaintiff thereupon took out a writ of error, assigning for error, inter alia, the refusal of the Court to affirm the point that if the article of agreement of November 23, 1868, between Gabriel Murtland and Saul Snyder was made by Gabriel for and on behalf of his brother James, and if Gabriel’s intention was to buy the land embraced in, the article for James and not for himself, and if the money paid under that article for the said land was James Murtland’s money,the title of Saul Snyder vested in James Murtland upon such payment, and is now vested in the plaintiff by the sheriff’s deed to her; and also that portion of the charge within brackets.

      Edward Campbell and D. Downer for plaintiff in error.
    The titles come back from Saul Snyder, and beyond him it is not necessary to go : Patton v. Goldsborough, 9 S. & R., 47; Riddle v. Murphy, 7 S. & R., 230 ; Turner v. Reynolds, 11 Harris, 199; 10 Johns, 292; Watson v. Gil day, 11 S. & R., 337; Lineweaver v. Crawford, 2 Casey, 417; Riland v. Eckert, 11 Harris, 215; McBarron •». Gilbert, 6 Wr., 268; Glass v. Gilbert, 8 P. F. Sm., 266 ; Adams on Eject., 33, (N. 1;) Jackson v. Harder, 4 Johns, 202.
    Gabriel Murtland’s title was that of trustee for James Murtland: Watson v. Gilday, 11 S. & R., 337; 1 W. & S, 9.
    Plaintiff’s continuous possession of more than ten years was alone sufficient to entitle him to recover: Hoey v. Furman, 1 Barr, 295; Powell v. Smith, 2 Watts, 126; Lehman v. Kellerman, 15 P. F. Sm., 489 ; Watson ■». Gil-day, 11 S. & R., 337.

      W. II. Coldren for defendant in error.
    The rights were fixed at the date of the entry of the judgment, and not at the time of the sheriff’s sale. The transaction was fraudulent.
   December 30, 1882.

— The opinion of the Court was delivered by

Green, J.

: The learned judge of the Court below,omits to state any reason for holding that the plaintiff had not made out any case which would entitle her to recover, except on the question whether John Bryan was the tenant of James Murtland at the time he delivered possession of the premises to the defendant. The learned counsel for the plaintiff in error says that the error of the Court in thus holding is so apparent that it is not necessary to prove it by argument, and the counsel for the defendant says that the Court in the charge has stated the case so clearly that it is unnecessary to support it by any reasoning. It may be that there were sufficient grounds for the action of the Court in refusing the plaintiff’s points and limiting the inquiry of the jury to the single question of the tenancy, but it would have been much more satisfactory if they had appeared somewhere in the case, so that we could have known and considered them with an intelligent understanding. On the surface the case appears to develop very simple questions. The plaintiff claimed, and gave some evidence to prove, that James Murtland was the owner of the equitable title in the land by reason of a resulting trust, and established that she had acquired James Murtland’s title by means of a sheriff’s sale upon judgment and execution against Mm. It was undisputed that the legal title became vested in Gabriel Murtland, a brother of James, by deed from Snyder, the former owner. It was alleged by the plaintiff that the purchase money of the land was really paid by James Murtland, and that he was, therefore, the equitable owner. In support of this allegation, it was testified by Snyder, the grantor, that when Gabriel bought the land, he said he was buying it for his brother James, and. that when he made the first payment of about a thousand dollars, he said it was James’ money. He also testified that James Murtland settled on the land — moved there February, 1869, and he had no knowledge that Gabriel ever lived on it. James Murtland testified that he took possession in February, 1869, lived on it three years, and then rented it to tenants who occupied it under him to the time of the sheriff’s sale of the land as the property of Gabriel, about September, 1878. He also testified that he paid a part of the purchase money — three hundred dollars — in 1874, which was before any deed was made for the premises. The declaration of Gabriel Murtland that the first payment of a thousand dollars was with the money of James, would certainly be evidence against him if he were a party to this action. We think it was evidence, in any view of the case, as a part of the res gestee. A judgment creditor is not a purchaser, and has no equity as such. He stands on the footing of his debtor, and is not entitled to the protection of a purchaser of the legal title against an equitable owner or his creditors, or to take any advantage which his debtor had not: Cover v. Black, 1 Barr, 493 ; Reed’s Appeal, 1 Harr., 476 ; Shryock v. Waggoner, 4 Cas., 430. Hence it may be that the sheriff’s sale of the title of Gabriel Murtland upon a judgment against him, under which the defendant claims, ■ conferred no greater immunity against the effect of Gabriel Murtland’s acts and declarations than was enjoyed by Gabriel himself. We do not decide the question, as it is not before us, and may arise on another trial. The declaration as to the ownership of the money was admitted without objection, and was a competent fact, not conclusive at all, but entitled to be considered in connection with other facts tending in the same direction. For instance, it was proved that Snyder, when he received the last of the purchase money, made a deed to Gabriel for the land, but that both Gabriel and James complained that it was not right, and wanted a deed made to James, which was subsequently done, and the first deed destroyed. Of course, the mere destruction of the first deed would not revest the title in Snyder, and the only value of the fact is as it affects the question of the original meaning of the transaction and the good faith of the parties. It may. have been merely a contrivance to defraud the creditors of Gabriel, and if so, it would have been of no avail against them. But, on the other hand, it may have been an act done in good faith, because the money of James was used in paying the purchase money, and therefore the parties desired the title to be in him. Of all these matters the jury were the judges under proper instructions from the Court. It may be that James did not pay any of the purchase money, or it may be that he paid a pari, but not the whole. In the latter event, he would acquire an equitable title to the extent of his payments, and this title would be subject to the lien of judgments against him. It is certainly strange that James, being a witness on the stand, did not testify to the ownership of the first money paid, or of any of the money except the last $800. It is also the fact that Gabriel was not examined at all. Whether he was alive, or dead, or inaccessible does not appear. These omissions in the testimony would constitute a fair subject for the consideration of the jury in determining the questions of the ownership of the money which was paid for the land, and of the good or bad faith of the parties in the whole transaction. But these questions, as it seems to us, should have been submitted to the jury and decided by them. There is another question that might have arisen, and may have been potential with the court, though we find no trace of it on the record. It is this: Granting that James Murtland was the equitable owner by force of a resulting trust, was he not barred by the statute of limitations ? It was proved without contradicti m that he did personally occupy the land for three years. This would extend to February, 1872. This action was brought in October, 1879. It was claimed that he occupied it by tenants to the time of the first sheriff’s sale, and that at that time John Bryan was his tenant. The Court left to the jury the question whether John Bryan, who did voluntarily deliver the possession to Brightfield, the defendant, was James Murtland’s tenant when he did so, or not, and the jury found he was not. But that finding under the charge was limited to the relation of the parties only at the time the possession was delivered to the defendant. The character of Bryan’s previous possession was not determined. It may be that it was intended to decide that Bryan was always Gabriel’s tenant and not James’, but we are not at liberty to infer that, since the question was not so submitted. The lease to Bryan was only made in 1878, on August 16, and the evidence as to that lease is of such a character that the jury might well have inferred it was not made in good faith. Bryan had first entered, as it seems, as a tenant on April 1, 1877, and James Murtland swears he then entered as his tenant, and paid him the rent. We do not discover any contradiction of the testimony that the previous tenancies from 1872 to 1877 were under James Murtland. Now, if the latter was in the actual occupancy of the land by himself or his tenants, the statute of limitations would not run against his resulting trust during the continuance of the occupancy. It was held in Williard v. Williard, 6 P. F. S., 119, that the verbal acknowledgment or confession of the trustee, made either before or after the origination of the trust, to the effect that he held by way of resulting trust, was competent evidence to prove the fact, and further, that if the cestui que trust was already in possession, the statute of limitations would not begin to run, and if the statute had begun to run, actual possession and occupancy would stop it. See also Clark v. Trindle, 2 P. F. S., 492. In Douglass v. Lucas, 13 P. F. S., 9, it was held chat a bare entry by the cestui que trust, without following possession, will not prevent the bar of the statute. It can not be said to have been determined in the present controversy whether there was a bare entry or a continuing occupancy by James Murtland, since that subject was not committed to the jury. We make no decision upon any of the facts in dispute. The case does not appear to us’to have been fully developed. We think there was evidence enough to have carried it to the jury under the plaintiff’s second point, and that the question of fraud in the transaction should also have . been submitted to the jury. The judgment is reversed on the second and sixth assignments.

Judgment reversed, and a venire de novo awarded.


text:
    FOREST COUNTY.
    January Term, 1882,
    No. 409.
    December 5, 1882.
    Buffalo, Pittsburgh & Western Railroad Company v. O’Hara et ux.

    1. A common carrier cannot protect himself by special contract from liability for negligence.
    2. Against his extraordinary liability as a common carrier he may protect himself by such a contract, but not from his liability as a simple bailee.
    3. That a free pass, given by an officer of a railroad company, is illegal under the Constitution, and the act of June 15, 1874, P. L. 289, doe's not make the person using it a trespasser, or prevent him from recovering for injuries caused by the negligence of the company.
    4. He may recover for such injuries notwithstanding a condition in the pass that the person accepting it “ assumes all risk of accident to his person or property without claims for damages on this corporation.”
    5. Dubitatur whether a proviso in a pass against accidents can be held applicable at all to cases where the injury has resulted from negligence.
    6. The fact that the plaintiff accepted and rode upon a free pass of the description given to employes engaged in and about defendant’s railway, and was not such an employé, will not estop her from recovery.
    7. If the free pass was unlawful, the conductor should have demanded the regular fare, and his not doing so did not make the plaintiff a trespasser, or destroy her rights as a passenger.
    Before Sharswood, C. J.; Merctir, Gordon, Pans on, Trunkey, Sterrett, and Green, JJ.
    Error to the Court of Common Pleas of Forest County.

    Case by Hugh O’Hara and Ellen O’Hara, his wife, in right of said wife, against the Buffalo, Pittsburgh and Western Railroad Company, to recover damages for personal injuries suffered by Ellen O’Hara through the alleged negligence of the company defendant.
    The following facts appeared at the trial, March 2, 1882, before Brown, P. J.:
    On February 22, 1881, Mrs. Ellen O’Hara went from her home, in Trunkeyville, to Oil City, on one of the defendant’s passenger trains. Her husband, who was a trackman on a section of the road, had obtained for her ■ an employé’s pass through the section foreman. The pass was in the following form:
    “Pittsburgh, Titusville & Buffalo Railway. Trip Pass.
    Pass Mrs. Hugh O’Hara, on account of---, from Oil City to Trunkeyville, when countersigned by J. F. Hilliard.
    Conditioned that the person accepting this free pass assumes all risk of accident to his person or property, without claims for damages on this corporation. Good only for the person named.
    T. H. Wilson, Superintendent.”
    It was countersigned by T. F. Hilliard.
    This pass was honored by the conductor of the train on which she went to Oil City. On the afternoon of the same day, she took the regular passenger train.at Oil City to return to Trunkeyville. At President station, thirteen miles above Oil City, the regular train, on which Mrs. O’Hara was riding, was run into by a special train, the engine of which plunged into the rear coach, where Mrs. O’Hara was seated, and by the escaping steam and the shock of the concussion, she, among other passengers, was injured. The evidence showed that the special train had been chartered to take a funeral party from Oil City to Tionesta, and that it left Oil City after the express, or regular train, which was five minutes slow. A rule of the company provided that every following train should keep at least five minutes behind the time of the leading train. A passenger testified that at curves in the river he saw, a number of times, the express train ahead. An engineer of a standing train testified that he threw up his arms to warn the special train to go slow, and that his signal was disregarded.
    The plaintiff presented the following points :
    1. “If the jury believe from the evidence that the plaintiff, Mrs. O’Hara, was injured while riding as a passenger on defendants’ road, by reason of a collision caused by the negligence of the defendant company or its servants, she is entitled to recover damages sufficient to compensate her for the privation and inconvenience she has been subjected to, and for the pain and suffering, bodily and mental, she has already experienced, and is likely yet to experience during the remainder of her life.” Affirmed.
    (First assignment of error.)
    2. “The release of damages contained in the pass given in evidence will not relieve the defendant company from liability for damages occasioned by the negligence of the company or its agents.” Affirmed.
    (Second assignment of error.)
    The defendant presented, inter alia, the following points
    1. “It being the uncontroverted evidence that Mrs. O’Hara was not an employé of the defendant, and that she was traveling upon defendant’s railroad upon a free pass, for which she had given no consideration, such pass having been issued in violation of law, of which the said plaintiff was presumed to have notice, gave her no right to a. passage upon the train, and in the eye of the law she was a trespasser thereon, and no recovery can be had in this action.” Refused.
    (Third assignment of error.)
    4. “That if Mrs. O’Hara accepted and rode upon a free pass of the description given to employés engaged on and about defendant’s railway, and upon such pass was printed the condition that the person using the same assumed all risk of accident and damage to person or property, the plaintiff cannot recover.” Refused.
    (Sixth assignment of error.)
    The Court charged, inter alia, as follows: ‘ ‘ The defendant claims that the plaintiff cannot maintain this suit because she was not an employé of the defendant, and was traveling on a free pass, issued in violation of law. ... We say to you that this is not a defense. Even if. we adopt the presumption that Mrs. O’Hara was bound to know the law, she held a free pass signed by the superintendent of the road, countersigned by the foreman of the track section. The conductor of the train, whose peculiar duty is to determine the right of a passenger on his train, recognized her right to a seat under the pass, and having done so, it is not for the defendant to urge that the pass was issued in violation of law. Defendant also claims that as Mrs. O’Hara accepted a pass of the kind given to employés, she occupied the position of an employé so far as the cause of action is concerned, and cannot recover for the injury occasioned by the fault of another employé of the road, in the absence of evidence showing the neglect of the superintending officer or officers of the defendant. As to this, we say to you that Mrs. O’Hara is not, so far as the evidence shows, in the position of an employé of the defendant, and her right to recover is not to be determined by the same rules as that of an employé. W e think, and so instruct you, that Mrs. O’Hara, for anything that appears in the evidence, is to be regarded as a passenger, with the right to recover damages for injuries occasioned by the neglect of the defendant, or its agents or employés, acting within the lines of their general employment, and that, whether the conductor of a special train was or was not managing his train in defiance of the rules of the road, the defendant is liable for the injury resulting from his negligence ; and we further say to you that the conditions on which the pass in this instance was given and accepted do not exempt the defendant from liability for injuries sustained by the plaintiff in consequence of the neglect or carelessness of the conductor of the special train.”
    March 2, 1882. Verdict for plaintiff for $700, upon which judgment was afterward entered.
    The defendants thereupon took this writ, assigning for error the answers to the plaintiff’s and defendant’s respective points and the portion of the charge quoted above.

      T. F. Richey, and Hancock & Glenn, for plaintiffs in error.
    Mrs. O’ Hara not being an employé and riding upon a pass illegally issued to her, such pass gave her no right upon the train, and she was in the position of a trespasser thereon and could not recover: Constitution of Pennsylvania, P. L., 1874, 25. Act of 1874, P. L., 289. Oreen’s Brices Ultra Vires, 362. Allegheny Valley railroad v. McLain, 10 Nor., 442. Huff v. Allegheny Valley railroad., Ibid., 458.
    The plaintiff traveling as and exercising and claiming the rights of an employé on the train is estopped from afterwards claiming that she was a regular passenger: Hannels v. Fitch, 8 Barr, 495.- French ■». Mehan, 6 Smith, 286. Pringle v. Pringle, 9 Ibid., 281. Rankin v. Simpson, 19 Pa. St. 471. The pass and the conditions together amounted simply to permission on the part of agents without authority to ride on the cars at her own risk.
    The New York and New Jersey authorities go much further than we ask here. They decide broadly that a gratuitous passenger can limit his liability to any extent: Perkins ¶. New York Central R. R. Co., 24 N. Y., 196. Wells v. New York Central R. R. Co., 24 Ibid., 181. Kinney v. Central R. R. Co., 3 Yroom, (N. J.,) 407. Same v. same, Ibid., 413.
    It is true that in Penn’a R. R. Co. v. Henderson, 51 Penn. St., 315, this Court seems to hold a contrary opinion, but it will be remembered that in the case last mentioned it was held that the plaintiff below was not a gratuitous passenger, but was compelled to go on the train to take care of his cattle, and paid his own fare as a drover in paying the freight charged for his cattle, and that the case finally turned upon this point, although the Court indicated an opinion that even in the case of a free passenger there could be no limit to the liability of a transportation company.

      B. J. & A. B. Reid and E. L. Davis, for defendants in error.
    Mrs. O’Hara was not a trespasser. She bore the written permit of the highest executive officer of the road; and if the conductor, in obedience to the Constitution and statute, had chosen not to recognize it, he could not have ejected her from the train without demanding fare and giving her an opportunity to pay it: Duff v. Allegheny Yalley R. R. Co., 10 Nor. 461.
    The, release of damages printed on the pass does not operate to exempt the plaintiff in error from liability. “Common carriers cannot so limit their liability by special notice as to relieve themselves from the consequences of their own or their servants’ negligence.” American Express Co. v. The Second National Bank of Titusville, 19 Smith, 395. Empire Transportation Co. v. Wamsutta O. M. Co., 13 Id., 14. Pa. R. R. Co. v. Henderson, 1 Id., 325. Pa. R. R. Co. v. Butler, 7 Id., 335.
    The last two cases show that the rule applies to personal injuries as well as to loss of property : 2 Redfield on Railways, 227.
    December 30, 1882.
   — Per Curiam :

A common carrier cannot protect himself by special contract from liability for negligence. Against his extraordinary liability as a common carrier he may protect himself by such a contract, but not from his liability as a simple bailee. Such is the well-settled law of this Commonwealth. It may well be doubted whether the proviso in this pass, being against accidents, can be held applicable at all to cases where the injury has resulted from negligence. If the free pass in this case was unlawful, the conductor should have demanded the regular fare, and his not doing so did not make O’Hara or his wife trespassers, or destroy their rights as passengers.

Judgment affirmed in each case.


author: Trunkey, J.:

text:
    FRANKLIN COUNTY.
    May Term, 1882,
    No. 70.
    June 1, 1882.
    Appeal of William M. Leidy et al.

      ■ 1. Where a grandmother was living with her grandson, and the evidence shows that, instead of the existence of a mere family relation, the payment of board was contemplated, a reasonable amount will be allowed out of her estate for the payment of such board. ,
    2. Between parent and child living in the same family, such claim must be supported by evidence of an express contract. It is the same when one stands in loco parentis. In other cases the ordinary rule prevails, unless and until it be shown that in fact the parties were not acting on the footing of a contract.
    Before Sharswood, C. J., Merctjr, Gordon,.Paxson, Trunkey, Sterrett, and Green, JJ-.
    Appeal of William M. Leidy, John A. Leidy, Eliza A. Clarkston, Rebecca J. Donalds, and Matilda Donalds from the decree of the Orphans’ Court of Franklin County, overruling the exceptions to the report of an auditor appointed to make distribution of the balance in the hands of Frederick Dice, executor of the estate of Anna Mary Ashway, deceased.
    Mrs. Anna Mary Ashway died in Franklin county in January, 1879, leaving an estate valued at nearly $3,000. For the last ten years of her life she had made her home with her grand-son, Frederick Dice. During this time, she was a member of his family, assisting in such light household tasks as were possible at her age. She died in his house, and was buried therefrom.
    On May 20, 1869, a month or two after Mrs. Ashway went to live with her grandson, she executed a will, in which, among other provisions, she bequeathed all the furniture then in her possession to her grand-son, Frederick Dice, and also made him sole executor thereof.

      On December 8, 1880, he filed his account, in which he charged himself with $2,971 87, and claimed credit for $1,100 55. Among the credits claimed was the following: For boarding and support of decedent from January, 1873, to date of death, January, 1879, at $2 50 per week, $780.
    Exceptions were filed to the allowance of this credit by the appellants, and the account was referred to W. J. Zacharias, as auditor, before whom the testimony of two witnesses was offered in support of the allowance.

      Mrs. Eliza Sellers testified as follows : “I had a conversation with my grandmother at my home about her (grandmother) living with Frederick Dice. I do not remember when exactly, but I think it was in the month of May, 1873. I do not remember of any one being present. She told me she liked it very much at Frederick’s ; that she would stay there as long as she lived, if he would keep her that long. That was the year my mother lay sick at my house, and I wanted grandmother to stay at my house, but she would not stay. During this conversation in regard to her staying with me, she spoke of her home at Frederick’s ; she said that she could not earn her boarding, and that Frederick was to be well paid for keeping her; she mentioned no amount.”

      Mrs. Elimina Snyder testified: “I had a conversation with my grandmother in regard to her staying at Frederick Dice’s. This conversation was in 1871 at my home ; she was there on a visit. She said she was not well, and wanted to go home to Frederick’s ; that she was giving him one hundred dollars per year for keeping her, and she wanted to be there. She told me that several times during her stay, which was for a few days. She said if she got older he was to have more, as when she got older she would be more trouble.”
    On cross-examination she said: <£I think she said that he was to have $100 per year for keeping her. My grandmother always spoke in German. She sometimes said he was to have it, and sometimes said she would give him $100 per year ; but she never said she had given it to him. That is all she said on the subject.”

      Q. Did you not understand from the conversation which you had with your grandmother, and the words used by her, merely that she intended to pay Fred, and not that she had any bargain with him ?

      A. ‘ ‘ She said that he was to have it, and did not say that she had any bargain with him, or anything else. I don’t know what she meant by ‘he was to have it,’ ■whether she meant that she intended to pay to him, or that she had a bargain with him to do it. She did not say that she had promised to pay Fred, bnt just said that was what she was to pay him. She sometimes said that was what she would pay, and sometimes said that he was to have it.”
    On July 26, 1881, the auditor filed his report sustaining the exceptions, disallowing the accountant the credit claimed for $780, and reporting a distribution accordingly. To this report exceptions were filed by the accountant, and sustained by the Court in the following opinion filed September 27, 1881, by Rowe, P. J. :
    “I think the auditor erred in not allowing the claim of Frederick Dice for support and maintenance of the decedent, and that the exceptions filed to his report must be sustained.”
    “ Frederick Dice was the grand-son of Anna Mary Ash-way, and the executor of her last will. In his account he claimed credit for $780 for boarding, etc., of decedent from January 1, 1873, to January 25, 1879, the date of her death, being $2 50 per week. The auditor disallowed the claim on the ground that, in the absence of an express contract, the boarding, etc., must be attributed to the family relationship.”
    “Between parent and child living in the same family, a claim such as this must be supported by evidence of an express contract. It is the same when one stands in loco parentis. In other cases, the ordinary rule prevails, unless and until it be shown that in fact the parties were not acting on the footing of a contract. This may be shown by the circumstances, and the nearer the relationship, the less expectation of payment.”
    “In the case in hand, the facts point clearly to a contract relation.”
    “It seems that about April or May, 1869, Anna Mary Ashway went to live with her grandson, Frederick Dice. He had a family of his own. She bad children living in the county and with comfortable homes. She was then about eighty-tliree years of age, and could not earn her boarding any more, and had an estate which, at her death, amounted to $3,000.”
    “About the time she went to Frederick’s, namely, 20th May, 1869, she made a will, which was duly probated after her decease, wherein she gave her property to her children, except a portion of her furniture, which she gave to her said grandson, Frederick Dice. She lived in his family, and was provided for by him. and was well and kindly treated from the time she went there until she died. The services were worth $2 50 per week, making, for the six years immediately preceding her death, $780.”
    “In 1871, being on a visit to Elemina Snyder, a granddaughter, and a sister of Frederick Dice, she said she was not well and wanted to go home to Frederick’s ; that she was giving him one hundred dollars per year for keeping her, and she wanted to be there. She said if she got older he was to have more, as she would become more troublesome. Again, in May, 1873, to Eliza Sellers, her granddaughter, she said she liked it very much at Frederick’s ; that she would stay there as long as she lived, if he would keep her that long ; that she could not earn her boarding any more ; and that Frederick was to be well paid for keeping her, and, on this occasion, she declined to stay with Mrs. Snyder.”
    “ Now, in view of all this, it seems clear to me that the intention and understanding of the parties was that she was to pay for her living.”
    “The accountant is therefore to be allowed the credit he claimed for her support.”
    “The exceptions are sustained and the report recommitted to the auditor, that distribution may be made according to the principles of this opinion.”
    The amended report, of the auditor, under the above opinion, was filed November 28, 1881, and exceptions were filed thereto. On December 20, 1881, the Court overruled the exceptions, and confirmed the amended report.
    From this decree, William M. Leidy et al., distributees under the will, appealed, assigning that the Court below erred in setting aside the original report of the auditor, disallowing the credit of $780, and in confirming the amended report as directed in the opinion of the Court.

      John Q. Shumaker and J. B. Baby for the appellants.
    Between parent and child, services are presumed to be rendered from motives of natural affection, and there can be no recovery in the absence of an express contract to pay for them: Walker’s Est., 3 Rawle, 249; Houck ®. Houck, 11 W. N. C., 262. The rule is the same as to other members of the same family living together and closely related, as brother and sister, grandparent and grandchild: D.uffey v. Duffey, 8 Wr., 399 ; Butler®. Slam, 14 Wr., 456; Lantz ®. Frey, 2 Harris, 201; Defrance ®. Austin, 9 Barr, 309; Candor’s Appeal, 5 W. & S., 513; Davies ®. Davies, 9 Carr. & Payne, 87; Updike ®. Titus, 2 Beasly, 153 ; Williams ®. Hutchinson, 3 Comstock, 317; Hall®. Finch, 29 Wis., 278; Hartman’s Appeal, 3.Or., 271; Bash ®. Bash, 9 Barr., 260 ; Cummings ®. Cummings, 8 Watts, 366 ; Robinson ®. Cushman, 2 Den., 149 ; Bowen®. Bowen, 2Bradf., 336 ; Abercrombie’s Est., 1 W. N. C., 234; Kneass’ Est., 6 Phila., 353; Lynn ®. Lynn, 5 Casey, 369 ; Hertzog ®. Hertzog, 5 Casey, 465 ; Gordner ®. Heffley, 13 Wr., 164; Neall ®. Gilmore, 29 P. F. Sm., 427.

      Kennedy & Stewart for appellee.
    Relationship alone does not overcome the presumption which the law raises, that a promise to pay is intended when personal services are rendered, except in the case of parent and child. In all other cases there ■ must be evidence beyond the relationship that the creation of no debt was intended: Horton’s Appeal, 13 Norris, 62 ; Neal ®. Gilmore, 29 P. F. Sm., 422.
    The evidence shows that compensation was to be made for the services rendered : Smith ®. Milligan, 7 Wr., 107.
    October 2, 1882.
   — 'The opinion of the Court was delivered by

Trunkey, J.:

Mrs. Ashway and Frederick Dice were not members of the same family, occupying the same house, till she went to live with him, in 1869. Instead of the evidence showing a mere family relation, it shows that they contemplated payment for her board, and dealt as debtor and creditor. Much of what was said in Miller’s appeal, just decided, applies to this case. The decree is affirmed for the reasons given by the learned Judge of the Orphan’s Court.

Decree affirmed and appeal dismissed at costs of appellants.