author: Mr. Justice Sterrett

text:
    Ellis versus Lane.
    1. Where a jury is dispensed with and the cause submitted to the court under the provisions of the Act of April 22d 1874, the facts found by the court, so far as they are material to a just decision of the cause, should be separately and distinctly stated, with at least as much precision and particularity as are required in a special verdict; and after answering the points, if any are submitted, the conclusions of law, applicable to the facts, should be clearly stated.
    2. Defendants contracted to rebuild a mill, “to be furnished with machinery in all respects similar to that in the mill burned.” Plaintiff contended this was intended to mean all the machinery in the mill, whether in use or not. The court found that nearly all the machinery for which plaintiff claimed damages had gone out of use or been laid aside, and that the only machinery in contemplation of the parties was that in actual use when the fire occurred, and that having been placed therein the contract was substantially performed. Held, not to be error.
    October 15th 1877.
    Before Agnew, C. J., Sharswood, Mercer, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas of Jefferson county: Of October and November Term 1877, No. 61.
    Covenant by J. L. Ellis against W. T. and N. B. Lane. Defendants pleaded non est factum, covenants performed, absque hoc, with leave, &c.
    In September 1867, J. E. Gay made a lease to N. B. Lane, of a certain tract of timber land, containing about four thousand acres, in Elk and Jefferson counties, upon which property was a saw-mill. In April 1873, J. L. Ellis bought the property from Gay, with all Gay’s right to the lease with Lane, and on the 25th of July following, the mill was burned. On the 13th of August 1873, a contract was made between Ellis and Lane and his brother to rebuild the mill so burned, on or before the 1st of December 1873 ; said mill to be of the same length, breadth and general dimensions, and to be furnished with machinery in all respects similar to that in the mill so burned, so that the said mill to be so erected shall be in all respects as good as the said mill was at the time it was destroyed, all work done upon the mill to be done in a good, substantial and workmanlike manner, and all machinery to be fit and suitable for its intended purposes and capable of doing as much work as that in the mill destroyed.
    In consideration whereof Ellis agreed to pay over to the Lanes, all and every sum of money which he may receive, or has received, on account of any insurance against loss by fire on the said mill so burned as aforesaid, to be paid as the work progresses; it being understood that the amount of insurance onsaid mill was $5000. And in case the said amount should not be paid by the companies promptly, the said Ellis shall not be compelled to pay the same until received by him; but in case said insurance, or any part thereof, should not, for any reason, be recovered from the underwriters, then and in that case, the .said Lanes shall be at liberty to reimburse themselves to the extent of $5000 out of the logs now at the mill, if there is enough for that purpose, and should the interest of said party of. the first part in said logs and the lumber manufactured therefrom be insufficient to pay such sum, the balance after the said logs are manufactured and sold, shall be paid by said first party to said second party in cash.
    The lumber in Lane’s hands mentioned in the contract for rebuilding, it appeared, had been run to market and sold by Lane, amounting to about one million feet, and Lane had agreed by contract under seal, dated 22d June 1874, that he would pay one-third of the proceeds over to A. W. Miner, to hold until the rights of the parties should be ascertained.
    The plaintiff alleged that at the time the old mill was burned it • had three Upham wheels, one six feet, one four feet, and one three • feet, and a centre-vent wheel; that the six-feet Upham wheel drove .a gang of twenty-four to thirty saws; the centre-vent wheel a circular saw and a bull-wheel; the four-feet Upham wheel a single sash saw and bull-wheel; and the 'three-feet Upham wheel an edger and a shingle machine; and that all the necessary shafting, belting and machinery for a convenient and complete mill, of the character indicated by the power and saws, were in and on the mill. It appeared, however, that the Lanes only used the circular saw, and the other machinery was laid aside in the mill.
    The plaintiff further alleged that the Lanes, when they rebuilt the mill, instead of four water-wheels, had only put in two; that they had put in only one bull-wheel, no shingle machine, no gang of saws and no upright saw, nor flumes or other arrangements in or about the building to put in such machinery. In addition, to these, it was claimed by the plaintiff that the defendants had not put in a sufficient frame, nor roof, nor proper timbers in the frame; that one of the wheels was not sufficient to drive the circular saw, and had to be taken out and supplied by another immediately, in order to do any sawing at all; that the gates would not open, and there were general defects in the whole structure.
    For these alleged defects this suit was brought, the plaintiff contending that under the contract, all the machinery, except that for the gang saws in the old mill at the time it was burned, whether it was in use or not, ivas to be put into the new one; that this was not done, and that the plaintiff was therefore entitled to what it would cost to put it in, a sum nearly, if not fully, equal to what was to have been paid for the whole work. The defendants contended that by the contract they were obliged to do .no more than put in such machinery as was necessary to make as good a circular saw-mill as the old one was when it was burned down. By agreement of the parties, a jury was dispensed with and the cause submitted to the court, under the provisions of the Act of April 22d 1874.
    The court, Jenks, P. J., filed the following opinion, which is given in full, in view of the exceptions taken thereto, and the comments of this court thereon, with reference to the duty of the court when a case is submitted in the manner prescribed by the Act of 1874.
    The court said: — ■
    “ The words ‘ to be furnished with machinery in all respects similar to that in the mill so burned,’ are qualified by the words ‘ so that the said mill to be so erected shall be in all respects as good as the said mill so burned was at the time it was destroyed.’
    “ The first clause describes the machinery, the last the result to be obtained by that machinery, to wit: quality of machinery and manufacturing capacity equal to the old mill at the time it was burned — this to be obtained, by the use of the same kind of machinery. Nearly, if not all of the machinery for want of 'which the plaintiff claims damages, had gone out of use or been laid aside. Its presence in or about the mill at the time it was burned, as a then available element in manufacturing lumber, did not enter into the minds of any one. At the time it was burned, and for some time previous, the machinery necessary to operate successfully a circular sawmill was used. This the parties had in their minds when they made the contract. The mill as it actually was, not what it had been. This view is supported by several considerations not referred to in the contract. The defendants were millwrights ; they could not but know that to build and furnish the mill described, with all the machinery now claimed, would have cost about double the amount of the stipulated price. It is not to be supposed that they understood the contract to be as now alleged by the plaintiff, nor is it probable that the plaintiff himself, when he made the contract, understood it as now asserted. Upon this point the evidence of Mr. Derby is of great weight. He testified as follows: ‘ I have seen the mill built by defendants for plaintiff in place of the one that was burned. I saw' it in the summer of 1874. I went there for the purpose of seeing the mill. I went at the request of Mr. Ellis, the plaintiff in this suit. Mr. Ellis said he was not a judge of the work, and that he wished to have it inspected by competent judges. Therefore he called upon Mr. Olmstead and myself. I examined it for the purpose of giving an opinion as to whether it was a good mill or not, whether properly built. I saw a writing which was said to be the contract for building the mill, and I told Mr. Ellis I thought the work was fairly done.’
    “Is it not strange, with the mill and contract before him, and the witness, at his request, examining to see if it came up to what was required, when told that the work was fairly done, the plaintiff gave no intimation that the machinery stipulated for was not put in ?
    “ The whole question, therefore, seems to be, not whether the thing to be done was done, but was it well done. So much of the claim of plaintiff as is founded upon the construction he now gives to the contract, we do not think well founded. The contract was substantially performed; the greatest part of the work fairly done. The weight of the testimony fully sustains that of Mr. Derby, referred to above.
    “ There has been considerable controversy about the frame, roof, gate casing, &c. Balancing all of the testimony under the contract, we think five hundred dollars would fairly compensate for all of the defects. This deducted from the price agreed to be paid would leave a balance in favor of the defendants of four thousand five hundred dollars; for which amount judgment is directed to be entered in favor of the defendants.”
    The plaintiff excepted to the findings and conclusions of the court, alleging, inter alia, that they erred,
    1. In not stating separately and distinctly the facts found.
    2. In construing the words “ to be furnished with machinery in all respects similar to that in the mill burned,” to mean only such machinery as the defendants were using at and immediately before the fire, thereby excluding more than one-half of all machinery in the mili, and limiting the use of the mill only to circular saw without upright saw, shingle machine, one bull-wheel and three waterwheels, with necessary flumes and attachments.
    3. In finding for the defendants four thousand five hundred dollars, when, by the terms of the contract declared on, they were to receive their pay only when collected of the insurance companies, when the evidence established that no money had been collected of the insurance companies; but that suits were pending for all such money, which were being prosecuted with diligence.
    4. In finding for the defendants four thousand five hundred dollars, when, by the contract, no money was due, either at time suit was brought or at the time of trial.
    The defendant also excepted.
    The court overruled these exceptions, saying: “ In our opinion we indicated with sufficient certainty all that was necessary. We have heard and considered the exceptions on fact of both plaintiff and defendant, and think substantial justice was. done to both parties.”
    The plaintiff then took this writ, the errors assigned being those noted in the foregoing exceptions.

      Jenks & Clark, for plaintiff in error.
    — When a case is submitted under the provisions of the Act of 1874, the court should first separately and distinctly find the facts with sufficient fulness and precision to warrant the entry of a judgment thereon, and then, as in case of a special verdict, find the law applicable to the facts, apply it and enter therefrom the appropriate judgment, which it is claimed was not done in this case.
    The third and fourth assignments of error raise the question as to the defendants’ right to recover in this case against the plaintiff the consideration for building the mill. The only fact found by the court on the subject that was relevant to it is, that the defendants had substantially performed their contract. But even if they had, it does not follow they have right to judgment against Ellis for it. The contract is that Ellis “ shall pay over all and every sum or sums of money which he may receive or has received on account of any insurance against loss by fire,” “and in case said amount should not be paid by the companies promptly, said Ellis shall not be compelled to pay the same until received by him.”
    Now, before the Lanes had a right of action on this clause, it was necessary that they should show he had received some of the money, or had failed to receive it through some default of his. This was not alleged. On the contrary, it was proven Ellis had not received anything, but had brought suit for the amount due and the suit was still pending. Why, then, should judgment be rendered against him, when the express terms of the contract forbid it ?

      Gordon & Corbett, for defendant in error.
   Mr. Justice Sterrett

delivered the opinion of the court, November 9th 1877.

This was an action of covenant on an article of agreement executed by the parties on the 18th of August 1873, whereby the defendants undertook, for the consideration therein named, to “ construct and erect a saw-mill on the site of the mill burned; said mill to be of the same length, breadth and general dimensions, and to be furnished with machinery in all respects similar to that in the mill so burned, so that the said mill, to be so erected, shall be in all respects as good as the said mill was at the time it was destroyed; * * * and all machinery to be fit and suitable for its intended purposes and capable of doing as much work as that in the mill destroyed,” &c.

We have not been furnished with the declaration, and are therefore not fully informed as to what breaches were assigned. The pleas wrere non est factum, covenants performed, absque hoc, with leave, &c.

By writing filed the parties agreed to dispense with trial by jury and submit the decision of the case to the court. The Act of April 22d 1874, under which the submission was made, provides that the decision of the court shall be in writing, stating separately and distinctly the facts found; the answers to any points submitted in writing by counsel, and the conclusions of law. It is of the utmost importance that these plain and explicit requirements of the law should be strictly complied with. In the first place the facts found by the court, so far as they are material to a just decision of the cause, should be separately and distinctly stated, with at least as much precision and particularity as are required in a special verdict; and, after answering the points, if any are submitted, the' conclusions of law, applicable to the facts, should be clearly stated.

It is claimed, in the first assignment,that “the court erred in not stating separately and distinctly the facts found.” If this were so it would of course be good ground for reversal; but it is not sufficiently clear that the provisions of the act, in this respect, have not been substantially complied with. In overruling the exceptions filed in the court below, the learned judge says that he indicated in his opinion, with sufficient certainty, all that was necessary. While the decision of the court does not strictly conform to the requirements of the act, we are unable to say from the record before us, that any material fact was omitted or improperly stated.

Considering the provisions of the contract, in relation to the kind and description of the mill that was to be erected, and viewing them in the light of the evidence before the court below, we are unable to say that any error was committed in construing the clause quoted in the 2d assignment of error. This clause is qualified to some extent by the words which immediately follow in the same sentence, viz. “ so that the said mill, to be so erected, shall be in all respects as good as the mill so burnedand, as part of the facts in the case, the learned judge found that nearly if not all the machinery, for want of which the plaintiff claimed damages, had gone out of use or been laid aside; that its presence, in or about the mill, at the time it was burned, as a then available element in manufacturing lumber, did not enter into the minds of the contracting parties, and that the contract was made with reference to the mill as it actually was at the time of the fire, not what it had previously been. He further found that the contract had been substantially performed by the defendants, and that the greater part of the -work was fairly done; but, for defects in the frame work, roof, &c., he deducted five hundred dollars from the price agreed upon by the parties. This finding, with the exception of the fact of substantial performance, is not assigned for error, and if it were, we would not be justified in reversing unless it was shown to be manifestly wrong.

As to the third and fourth assignments ; it is true the contract provides for the manner in which the defendants were to be paid, and the source whence the funds were to come; but this provision of the contract was so modified by the agreement of June 22d 1874, as not to preclude them from setting up and maintaining, in this action, their claim for building the mill. By this latter agreement §5000 remained in the hands of A. W. Minor to await the result of this suit; and it was agreed, in case it was determined that the defendants were entitled to the whole or any part of the money, that they were to be paid, and the residue, if any, was to be handed over to Ellis, the plaintiff.

The plaintiff’s points, referred to in the 5th, 6th and 7th assignments, were irrelevant, and there W'as therefore no error in declining to answer them. The 8th assignment is not sustained. We are unable to see that there was any error in finding that the defendants had substantially performed their part of the contract.

On the whole, we are satisfied that substantial justice was done between the parties, and the judgment should therefore be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Mercer

license: Public Domain

text:
    First Baptist Church of Erie versus Caughey et al., Administrators.
    1. A religious society is not bound by the actions of its trustees beyond the express powers granted, but where they incur a liability to pay a debt for the reconstruction of the meeting-house of the society, such action is among their implied powers and the society is bound.
    2. Trustees of a religious society gave their note to pay a debt incurred in rebuilding their meeting-house: Held, that while such authority was not granted to them, yet being incurred for a necessary and legitimate object, there was an implied power to borrow the money, and the society was liable in an action for money had and received. Held, further, that the note was properly admitted in evidence.
    October 16th 1877.
    Before Agnew, C. J., Mercur, Gordon, Paxson, Woodward and Sterrett, JJ. Sharswood, J., absent.
    Error to the Court of Common Pleas of Erie county: Of October and November Term 1877, No. 145.
    Assumpsit by S. S. Caughey and LI. B. Fleming, administrators of Joseph Neeley, deceased, to recover the amount unpaid, with interest, on the following note:—
    “ §900. Erie, Dec. 24th 1867.
    “ On the 1st day February 1869, we promise to pay, to the order of Joseph Neeley, nine hundred dollars; it being for use of First Baptist Church. Value received.
    W. J. F. Liddell,
    Horace L. White,
    James D. Boss,
    Samuel Z. Smith.
    Trustees of the First Baptist Church, Erie, Penna.”

      The remaining facts are sufficiently stated in the opinion of this court.
    The defendants resisted the claim on the ground, first, that under the charter of the church the trustees had no authority to execute such an obligation as the one in suit, nor to borrow money; and, secondly, that the money was for the payment of a note previously given by W. J. E. Liddell, one of the trustees, to one Catharine Smith, for money borrowed from her by him individually, and with which he paid a subscription he had made towards the building-fund of the church.
    On part of the plaintiff it was contended that, whether the trustees had the right to bind the church by such an obligation, or not, yet, if the money obtained from Mr. Neeley by the trustees was actually used in the construction of the church edifice, the church receiving the benefit of the same, there would be an implied obligation to pay, and plaintiff should be entitled to recover under the general indebitatus assumpsit counts in their declaration.
    The court, Galbraith, P. J., in the general charge said:—
    “ This I conceive to be a correct position. The trustees of a corporation may not bind it by such specialty containing such stipulations as these, in the absence of some express authority contained in the charter; but there are implied as well as express powers incident to every corporation; and in this case, if the jury believe from the evidence that the money for which the note was executed by the trustees was used by them, or by other officers of the church, in rebuilding the church building, and so went to the benefit of the society, then the law raises an implied obligation in equity and good conscience, as well as in law, on part of the church to repay it, and the verdict should be for plaintiff. If, on the contrary, the jury believe from the evidence that the money went to pay a debt of W. J. F. Liddell, one of the trustees who signed the note, the fact that the money for which the debt of Liddell was contracted was paid into the church treasury on a subscription made by him individually towards the building-fund, would not relieve the transaction or change its character, and plaintiff could not recover. The jury will decide as they find the weight of evidence upon this fact, and give their verdict accordingly.”
    The verdict was for the plaintiff, and after judgment the defendant took this writ, assigning for error the admission of the note in evidence and the foregoing charge of the court.

      Allen & Rosenzweig for plaintiff in error.
    — The powers of a corporation must be found in its charter or arise by necessary implication: Pittsburgh and Steubenville Railroad Co. v. Allegheny County, 29 P. F. Smith 210. The words “by necessary implieacation,” mean, of course, such powers as are necessary to carry into effect the express powers given by the charter, or such powers as are necessarily connected with the legitimate business of the corporation acting within the scope of its authority. The power of the trustees of a church organization to borrow money, if such power exists, must be found in its charter and cannot arise by implication. The powers exercised by trustees must be expressly granted. Miller v. Church, 4 Phila. 48; Beach v. Fulton Bank, 3 Wend. 573; People v. Utica Insurance Co., 15 Johns. 358. Hence the note being void, it should not have been received in evidence.

      James C. & F. Marshall, for defendants in error.
    — There are implied as well as express powers incident to every corporation, and in this case, if the jury believe from the evidence that the money for which the note was given by the trustees was used by them or other officers of the church in rebuilding the church building, and so went to the benefit of the society, then the law raises an implied obligation on the part of the church to pay it, and the verdict should be for the plaintiffs. The facts were fairly left to the jury. They found that the money for which the suit was brought was used by the church in repairing and erecting the church building.
    A corporation is liable for the contracts of its officers, even when not expressly authorized, when such contracts were entered into publicly and in such maimer as to be with the knowledge of the corporators: Allegheny City v. McClurkan, 2 Harris 81. The note was properly admitted in evidence: Hoskinson et al. v. Eliot et al., 12 P. F. Smith 393.
   Mr. Justice Mercer

delivered the opinion of the court, January 7th 1878.

All tho assignments of error may be answered in the considera-' tion of two questions. The one whether the corporation had the power to incur the alleged liability; the other whether there was sufficient evidence to submit to a jury that the liability was actually incurred.

1. The original charter declares one of the objects of the association tobe “the building of a meeting-house,” and settlement and support of a pastor or minister of the gospel for the worship of Almighty Bod, and the religious instruction of the congregation * * *• together with that of the purchase and tenure of such lands or lots as may be necessary and convenient for the site of a meeting-house, of a burial-ground, and of a parsonage house of convenient size for their minister.” A supplement to the charter gives the corporation power to assess and collect a tax on the pews ; but not to exceed in any one year twenty per centum upon a fixed valuation, for the purpose of defraying the expenses of repairs, insurance and minister’s salary, together with incidental expenses. The charter is silent on the subject of Borrowing money.

Some thirty years after the corporation was formed, the church edifice became unsuitable and inadequate for the enlarged congregation. It therefore resolved to rebuild and enlarge the meetinghouse. This required an expenditure beyond the sum subscribed by voluntary contributions, for that purpose. The meeting-house was rebuilt. Had the corporation power to contract a debt in rebuilding beyond the amount subscribed ? We think it had. The object of its incorporation could not be fulfilled without the meeting-house. No clause in its charter forbid its contracting a debt in the erection of its necessary buildings. Whether it hired laborers • and bought materials on a credit, or whether it borrowed money with which to pay for the labor and materials when procured, the liability incurred was for the same purpose. • As it could not have successfully defended against the wages of a laborer employed in the erection of the house through want of power to employ him, so it cannot defend against the payment of money borrowed and actually expended in the erection of the church. As to the policy of a church erecting a house of worship far beyond its available means, we do not now feel it necessary to indicate an opinion. Certain it is, that the small sum here in controversy, is trifling compared with the large debts resting upon many of the churches in towns and. in cities.

2. The charter declared the business and affairs of the association should be under the direction and management of five trustees, a majority of whom should constitute a quorum. It further declared the trustees should “ have the general care, superintendence, and management of the concerns of the same.”

During the progress of the work, Mr. Liddell, one of the trustees, appears to have been the financial agent and manager, in behalf of the board of trustees. In raising the funds necessary, he borrowed $1200 from Mrs. Smith, and gave his individual note therefor. Subsequently the trustees borrowed $900 of Joseph Neeley, to pay so much of the debt due to Mrs. Smith, and four of them executed and delivered the note for the sum thus borrowed. The court doubted the power of the plaintiff in error to give the note, and the consequent liability of the corporation thereon alone; but substantially charged that there were certain implied powers incident to every corporation, and if they were satisfied, from the evidence, that the money, for which the note was given, was actually used in rebuilding the church, and thus went to the benefit of the society, the law raised an implied obligation on the part of the church to repay it. It was contended on the argument that there was no evidence that the money was- used in rebuilding the church. The answer to this objection is shown in several parts of the record. The note itself contains the written declaration of four of the trustees jointly, when engaged in making the loan, that the §900 were “for use of First Baptist Church.” The settlement which Liddell subsequently made, as appears by the receipt signed by the president of the board of trustees, and one other trustee, declares, “ we hereby assume all liabilities of said church for which said W. J. F. Liddell, as trustee, has become responsible, including note given to Mrs. Catharine Smith, signed by himself individually, for the use of said church, according to settlement made this day.” On the trial of the cause, James Dunlap, president of the board of trustees, was called, by defendants in error, as a witness, and in his testimony in chief said, “ in repairing church had to borrow money ; were advised by counsel that church could not borrow it; must be individual; the money borrowed from Neeley was paid to Mrs. Catharine Smith, to discharge a debt to her for money borrowed by Mr. Liddell for the church.” It is true, on cross-examination, his evidence goes to impair the validity of the receipt to which his name was subscribed, and he further said “ none of the Neeley money was received by the church.” I think the fair interpretation of his testimony is that the money was not actually paid into the hands of the trustees, but was paid directly by Neeley to Mrs. Smith. It was, however, a question for the jury to determine. It is further shown by the evidence that the plaintiff in error made a payment of §800 on the note given to Neeley; the endorsement thereof being in the handwriting of the treasurer, now deceased, of the corporation.

This chain of evidence, both written and verbal, tending to show how the business was conducted and settled, ratified by a partial payment, was certainly sufficient to submit to the jury to find that the money was used in rebuilding the church.

Judgment affirmed.


author: Mr. Justice Sterrett,

text:
    Mallory et ux. versus Griffey.
    1. The owner of lands adjoining a highway may lawfully place "building materials thereon for a temporary use, so long as the use thereof is not negligent nor unreasonable.
    2. Negligence of a plaintiff, contributing to an injury complained of, is a matter of defence, and ordinarily the burthen of proving it is on the defendant, and it was error therefore in the court to instruct the jury “ that if the plaintiffs have not shown affirmatively that their negligence did not contribute in any degree to the injury they could not recover.”
    October 16th 1877.
    Before Agnew, C. J., Mercur, Gordon, Paxson, Woodward and Sterrett, JJ. Sharswood, J., absent.
    Error to the Court of Common Pleas of Erie county: Of October and November Term 1877, No. 62.
    Case by William Mallory and Hannah, his wife, in right of the wife, against Benjamin Griffey, for injuries sustained in being thrown from a buggy, by reason of an alleged obstruction placed upon the highway by defendant.
    At the trial, before Vincent, P. J., it appeared that Mrs. Mallory was driving a horse and buggy along a road which passed the residence of defendant. On this road the latter had placed a lot of building materials preparatory to building a barn. Among these materials was a large stone, at which, it was alleged, the horse of Mrs. Mallory took fright, and shying, threw her from the buggy, seriously injuring her. The horse was a gentle and manageable one, and had been driven at various times by the different female members of Mr. Mallory’s family. The materials were placed on the road on Saturday and were removed on the following Tuesday, and only partly obstructed the road, leaving sufficient space for vehicles to pass.
    The fourth and ninth points of defendant, both of which the court affirmed, were as follows:—
    4. That if there was any negligence on the part of plaintiffs, that contributed to the accident, then the plaintiffs cannot recover.
    9. That if the plaintiffs have not shown affirmatively that their own negligence did not contribute in any degree to the injury, the plaintiffs cannot recover.
    The court, in their general charge, said:—

      “ The defendant has a right to place building material upon the highway, and occupy a reasonable portion thereof, for the purpose of building, leaving ample room for the passage of animals and vehicles; and he had a right to let the material remain there for a. reasonable length of time, nor will he be answerable for consequences to others by reason of so using a portion of the public highway ; he will, in such a case only be answerable for injuries ai’ising from an unreasonble or negligent use of it.
    “ If the defendant placed the stone in the highway on Saturday evening, and moved it away Tuesday following, it would be difficult to see how that length of time could be called unreasonable. If he left ample space between the stone and the timber, as placed by him, for the passage of horses, wagons, &c., he did, as far as that is concerned, all that the law required him to do, and if you so find from the testimony, the plaintiff cannot recover, unless in some other way he was negligent.”
    The verdict was for defendant, and the plaintiffs, after judgment, took this writ, his assignments of error being 3, the answer to defendant’s fourth point; 8, the answer to his ninth point, and 11 and 12, the foregoing parts of the charge.
    Chapman, Benson & Brainerd, for plaintiffs in error.
    — The rule which permits a party to use the highway adjacent to his building to temporarily place thereon his building materials, is necessary in a city or town, but it cannot be applied in the country, where no such necessity exists. It was incumbent upon the defendant to show the negligence of plaintiff; Buel v. N. Y. Central Railroad Co., 31 N. Y. 319; Penna. Railroad Co. v. Weber, 26 P. F. Smith 168; Weiss v. Penna. Railroad Co., 29 Id. 387; Johnson v. West Chester and Philadelphia Railroad Co., 20 P. F. Smith 358.
    It was no defence that the driver by careful driving could have avoided the accident: Lower Macungie Township v. Merkhoffer, 21 P. F. Smith 276.

      S. E. & T. S. Woodruff., for defendant in error.
    — If the defendant used no more than a reasonable portion of the highway he was not liable, and its temporary use in building was allowable from the necessity of the case: Commonwealth v. Passmore, 1 S. & R. 217; Palmer v. Silverthorn, 8 Casey 65; People v. Cunningham, 1 Denio 524.
   Mr. Justice Sterrett,

delivered the opinion of the court, November 5th 1877.

In that portion of the charge covered by the eleventh and twelfth assignments of error, the jury were properly instructed that the defendant might place building material on a portion of the highway, and permit the same to remain there for a reasonable length of time, for the purpose of erecting his barn on the line of the road, without, on that account alone, incurring liability for injuries sustained by persons passing along the road; provided, ample room was left for the free passage of vehicles and animals; but he would be liable for injuries occasioned by an unreasonable or negligent use of the highway.

The instructions given by the learned judge on this subject appear to be sustained by The People v. Cunningham, 1 Denio 524; Commonwealth v. Passmore, 1 S. & R. 217, and Palmer v. Silverthorn, 8 Casey 65. Ln the last case, Mr. Justice Thompson said: “ The necessity of the case was probably the foundation of the rule, and is the foundation of most laws and municipal regulations; but the practice has become a custom of such long standing, that it is regarded as laur. * * * It is a right to be exercised under responsibility for all injury arising from an unreasonable or negligent use of it.” The want of ample room to pass along the road at the point -where the building material was deposited, was not the main ground of complaint relied on by the plaintiffs. It was alleged that Mrs. Mallory’s horse was suddenly frightened by a large stone or boulder, placed on or near the roadway, and became unmanageable ; that she was thrown from the buggy, and thus received the injuries complained of. It was claimed that the stone was an object calculated to frighten an ordinarily quiet and well-trained horse, and that the defendant was chargeable with negligence in leaving it on the highway. 'This presented a question of fact, which was properly submitted to the jury, with the instruction that the plaintiffs could not recover, unless they found “ from the evidence that a stone or roclc, such as was placed in or near the road by the defendant, was, in and of itself, an object calculated to frighten an ordinarily quiet and well-broken horse.” If this had been the only question of fact to be found by the jury, the verdict would have been conclusive ■ of the plaintiffs’ right to recover; but the question of contributory negligence, raised by the defendant’s fourth point, was also submitted. Both of these questions may have been found in favor of the defendant, but we have no means of determining whether they were or not. The verdict, for aught we know, may have been based on the finding of contributory negligence alone; and if so, the plaintiffs were prejudiced by the affirmance of defendants’ ninth point, viz.: “ That if the plaintiffs have not shown affirmatively that their own negligence did not contribute, in any degree, to the injury, they cannot recover.” This instruction cast upon the plaintiffs the onus of disproving negligence, and was clearly wrong. Negligence of a plaintiff contributing to the injury complained of, is matter of defence, and, ordinarily, the burthen of proving it is on the defendant. There may be cases in which it would be incumbent on the plaintiff to prove that he exercised ordinary care, but this is not one of them.

There appears to be nothing in any of the remaining assignments of error that requires further notice.

Judgment reversed, and a venire facias de novo awarded.


author: Mr. Justice Woodward

text:
    Siggins et al. versus The Commonwealth.
    The Act of April 15th 1834, provides a specific remedy for charging county officers with public moneys through the county auditors, and gives sixty days for an appeal from their decisions. Held, that after the expiration of the time given for an appeal the decision of the auditor is final.
    October 16th 1877.
    Before Agnew, C. J., Mercur, Gordon, Paxson, Woodward and Sterrett, JJ. Sharswood, J., absent.
    Error to the Court of Common Pleas, of Porest county: Of October and November Term 1876, No. 168.
    Debt by the Commonwealth, at the relation of the Big Level Road Commissioners, upon the official bond of James P. Siggins, formerly county treasurer, and his sureties, to recover a certain amount alleged to have been collected by said treasurer as a tax on unseated lands. It appeared that by Act of Assembly of May 1st 1861, Pamph. L. 611, a body of commissioners were created, called the Big Level Road Commissioners, with authority to lay out a road in the counties of McKean, Elk and Forest, the seventh section of which act provided as follows:—

      “ That the said commissioners shall have power to levy and assess a tax upon the unseated assessed property in the townships through which said road shall pass, for the year 1862, and annually thereafter during the continuance of this act, not exceeding ten mills on the dollar in any one year, if they shall deem the same necessary for the purposes herein mentioned, which shall be collected by said commissioners in the same manner as other road taxes in the said townships are now by law collected.”
    This tax was to be collected by the county treasurer as other taxes upon unseated lands. Siggins was treasurer of Forest county from the 1st of January 1869 to 1st of January 1871, and at the close of each year of his term as treasurer, his accounts, including this Pig Level Road fund, were settled by the county auditors. By the auditor’s settlement of January 13th 1870, it appeared that he was charged §3717.66, the amount of the Big Level Road tax assessed for 1868 and 1869 in Jenks and Howe, the only townships in Forest county subject to this special levy.
    Again, on the 30th of January 1871 the auditors settled his accounts for the second and last year of his term, and after charging him with the said balance due at last settlement, they found that his account with the Big Level Road fund' was fully paid and balanced. No appeal was taken from this settlement.
    Thus stood the record when this suit was brought, March 6th 1873, by the road commissioners, upon the official bond of the treasurer and his sureties, to recover an alleged balance in his hands not shown by the auditor’s settlement.
    After this suit was brought, on the 10th of April 1873, the legislature passed an act (Pamph. L. 747) providing:—
    “ That it shall be lawful for the auditors of Forest county, after ten days’ notice to the commissioners of said county, and to said J. P. Siggins, to meet at the commissioners’ office, in said county, and re-audit the accounts of James P. Siggins, late treasurer of said county, and having so made the same, like proceedings shall be had as in other cases ; and such re-audit so made, as aforesaid, shall have the same effect as in other cases against the county, as against the said James P. Siggins and his sureties.”
    Another audit accordingly took place on the 23d of October 1873. The auditors decided they could not re-audit the fund, and no appeal was taken from this decision/ by the road commissioners, who appeared by counsel.
    The defendants contended that no liability of Siggins could be shown except by an auditor’s report, under the Act of Assembly, or by a verdict and judgment on appeal therefrom, and yet here the auditor’s reports negative the idea of liability to plaintiffs, and estop them from maintaining this action.
    The court, Wetmore, J., said to the jury: “ The plaintiffs are not estopped by the auditor’s reports as given in evidence. The proceedings before the auditors on the re-audit do not disclose any fact to submit to the jury, on the question of an audit of the amounts or claim of plaintiff.”
    The verdict was for the plaintiffs for $8000, and defendants took this writ, assigning the foregoing charge for error.

      M. W. Tate and B. J. Reid, for plaintiffs in error.
    — The Act of April 15th 1834, Purd. Dig. 300, has provided a specific and adequate mode of charging county officers with public moneys alleged tó be in their hands. It enacts that the county auditors of each county “shall audit, settle, and adjust the accounts of the commissioners, treasurer, sheriff and coroner of the county, and make report thereof to the Court of Common Pleas of such county, together with a statement of the balance due from or to such commissioners, treasurer, sheriff or coroner.” Full power is given to investigate the facts, and their report, when filed, has the effect of a judgment against the officer. Sixty days are allowed for an appeal by either party.
    This remedy, being specific and statutory, excludes all others, and the report of the auditors, unappealed from, is conclusive upon all parties: Blackmore v. County of Allegheny, 1 P. F. Smith 160; Glatfelter v. Commonwealth, 24 Id. 74; Potter County v. Oswayo Township, 11 Wright 163; Brown v. White Deer Township, 3 Casey 111.
    No paper book or appearance by counsel for defendants in error.
   Mr. Justice Woodward

delivered the opinion of the court, January 7th 1878.

It was no part of the purpose of the Act of'the 1st of May 1861, to enlarge the liabilities of the treasurers of the counties of McKean, Elk, Forest and Clarion, or to vary the mode prescribed by the Act of the 15th of April 1834, for the settlement of their accounts. The object in view when the Act of 1861 was passed, was the construction of a state road from a point to be fixed in Hamlin township, in the county of McKean, to Tylersburg, in the county of Clarion. The third section authorized the commissioners named in the first section to receive a portion of the road taxes equal to three and one-half mills per dollar on the property valuation of the townships through which the state road should pass. A proviso empowered the supervisors of the proper townships in the county of Forest to levy and collect for the benefit of this improvement a tax of three and one-half mills in addition to the whole road tax authorized by then existing law7. Apparently, this was the completed original plan to secure the construction of the projected highway. The seventh section, out of which this controversy has grown, looks as if some afterthought had prompted its interpolation. These are its terms : “ The commissioners shall have power to levy and assess a tax upon the unseated property in the townships through which said road shall pass, for the year one thousand eight hundred and sixty-two, and annually thereafter during the continuance of this act, not exceeding ten mills on the dollar in any one year, if they shall deem the same necessary for the purposes herein mentioned, which shall he collected by said commissioners in the same manner as other road taxes in said townships are now by law collected.” This extraordinary enactment appears to have been acted on, and transcripts of the assessments it authorized were returned to the county commissioners, who certified them to the treasurer for collection.

James P. Siggins, one of the defendants below, was treasurer of the county of Forest during the years 1869 and 1870, and collected the taxes levied by the state road commissioners just as he collected the other road taxes assessed on unseated lands. His accounts for this fund were settled like his other accounts, by the county auditors. In the first settlement, made on the 13th of January 1870, he was charged with $3717.56, collected for the state road commissioners from the taxes of 1868 and 1869, and in the final settlement for the second year of his official term, on the 30th of January 1871, the auditors ascertained and reported that the moneys he had received for this fund had been fully paid. No appeal was taken from the report, but after an acquiescence in the adjustment for more than two years, the state road commissioners brought this suit on the 6th day of March, 1873, to recover a balance alleged to have been collected by the treasurer, and left unaccounted for and unpaid. Pending the suit, the Act of the 10th of April 1873 was passed, authorizing the auditors for the time being to re-audit the accounts of Siggins, as late treasurer, upon ten days notice to him and to the county commissioners. At the re-audit, which was had on the 23d of October 1873, the claim of the state road commissioners was presented, but its investigation was refused on the ground that the Act had been passed at the instance of the county officers to correct some errors in a former settlement of county funds. It appears, indeed, from the testimony of 1). W. Clark, that the re-audit was had on an appeal from a report on the county account.

The rights of the state road commissioners must rest whore the settlement of the 30th of January 1871 left them. The Act of 1873 placed them by its terms in no new position, and the refusal at the re-audit to open the account was a re-affirmance of the former adjustment. Well-considered authorities have settled that their sole remedy was an appeal from the report of the auditors. In Brown v. White Deer Township, 3 Casey 111, a supervisor had presented a claim against the township, part of which had accrued before a former settlement of his accounts, and the whole of which the auditors declined to allow. In entering the judgment of this court in the suit he afterwards brought to collect his claim, Knox, J., said: “ From the refusal of the auditors to allow this claim when presented in March 1850, the supervisor should have appealed within the time allowed by law, if he desired to make good his demand for the money in controversy.” The provision of the tenth section of the Act of .1861, that the taxes should be collected “by the said commissioners in the same manner as other road taxes in the said townships -are now by law collected,” meant simply that they should perform the duties of supervisors in furnishing transcripts of their assessments, and in receiving the money which the county treasurer should in the usual and legal way to. collect. It was held in Potter County v. Oswayo Township, 11 Wright 162, that where .township taxes assessed upon unseated lands, and collected by the county treasurer, were not paid over by him, the county was responsible to the township for the default. The unreported case of The County of Lycoming v. Huling, was referred to in the opinion of Judge White in Potter County v. Oswayo Township, which this court adopted. J. H. Huling had been treasurer of the county, and in the settlement of his accounts, a balance in favor of the county had been found due. He paid a portion of it to his successor, and a suit was brought on his official bond to recover what remained unpaid. His defence was that this was made up of road taxes assessed and paid on unseated lands. The Court of Common Pleas held this to be a good defence. In the opinion of this court, reversing the judgment, it was held that while the money received by the treasurer for road taxes remained in the treasury, it was to all intents and purposes a county fund, differing from other county funds only in this, that it must be applied to a special object. The same rule was applied in Grlatfelter v. Commonwealth, 24 P. F. 'Smith 74, where moneys belonging to the military fund created by the Act of the 17th of April 1849, and various supplementary statutes, had passed into the hands of the treasurer of the county of York. After reciting the provisions of the Act of the 21st of April 1858, the present chief justice added: “ Thus, throughout the act, the county treasurer is made the custodian of the military fund, as he is of the other funds of the state and county, while the law is silent as to the settlement of his account. There being no repealing clause, and no substitute, his account is necessarily to be audited and settled under former laws.” A settlement by the county auditors was declared, therefore, to be conclusive on the Commonwealth. Blackmore v. The County of Allegheny, 1 P. F. Smith 160, and the array of precedents there ■ collected, abundantly prove that the decision of the auditors on the accounts of the treasurer is controlling, and cannot be inquired into either by the same tribunal at another time, or by a court of law, except upon appeal. When the accounts of Siggins, as treasurer of the county of Forest, were adjusted in January 1871, by a report from which there was no appeal, the settlement was final ' and binding on all parties and for all time.

Judgment reversed.


text:
    Lake Shore and Michigan Southern Railway Company versus Ellsey.
    1. Replevin cannot be maintained without showing either a general or special property in the plaintiff, together with the right of immediate possession.
    2. A railroad company delivered to E. certain goods which were consigned to him, and received from him the freight therefor. The goods were received in good faith by E., who had ordered them from the consignors. It appeared that they were sent to E., subject to the order of R., who demanded them of the company. The company then brought replevin. Held, that by surrendering the goods to E., the lien of the company was released, and they could not resume possession of the property, and that the action of replevin could not be maintained.
    October 18th 1877.
    Before Agnew, O. J., Mekcur, Gordon, Paxson, Woodward and Sterrett, JJ. Sharswood, J., absent.
    Error to the Court of Common Pleas of Erie county: Of October and November Term 1876, No. 128.
    Replevin by the Lake Shore and Michigan Southern Railway Company, against George W. Elisey, for certain stoves delivered by plaintiff to defendant.
    In 1872, the Treadwell Stove Company of Albany, New York, shipped seven stoves over the road of plaintiff, marked by tags or cards on the stoves, “ G. W. Elisey, Auctioneer, Erie, Pa.” The shipping bill read that they were shipped, “ subject to the order of C. R. Redfield, Erie, Pa.” The stoves remained in the warehouse of plaintiff until the 6th of January, when Elisey gave an order to a drayman for them, and they were delivered to him by the agent of the company. In February, Redfield demanded the stoves, and ordered them to be returned to the stove company. The plaintiff tendered to defendant the freight and other charges he had paid and demanded the stoves, which he refused to deliver. This replevin then issued, and three of the stoves were returned to plaintiff. The defendant testified that he had never heard of Redfield before this transaction, and there was no allegation that he had not acted in good faith. It was alleged also that defendant had agreed to return the stoves on repayment of the freight and charges.
    The court affirmed the following points of plaintiff: — •
    1. If the stoves wore shipped to the order of C. B. Redfield, and by mistake were delivered to the defendant without such order, then, on tender to him of the freight and cartage he had paid, the plaintiff had such a property as entitled them to maintain this suit, and can recover.
    2. If Elisey promised to deliver the stoves on payment of the freight which he had paid, and plaintiff tendered him the freight and cartage before suit, the plaintiff is entitled to recover.
    And refused the following of defendant
    1. To sustain the action, the plaintiff must show a property in the goods, either general or special, and a right to the possession.
    2. If the plaintiff at any time had a lien or special property upon or in the goods, it was defeated by giving up the possession to the defendant, and if the possession is once waived it cannot afterwards be resumed.
    In charging the jury, the court, Yincent, P. J., said:—
    “ The plaintiff cannot recover in this form of action unless it had a right to the possession of the stores replevied at the time of issuing the replevin as against the defendant. The plaintiff was not the actual owner of the stoves when they were delivered to the defendant; it had but a qualified property in them by virtue of its lien for freight, &c., but it had a right'to hold them and was bound to do so until the order of Redfield was presented for their delivery.
    “ But the plaintiff could waive its right to retain the goods under its lien for freight, and if it gave up the possession, either with or without the payment of freight, without fraud on the part of the consignee, it gave up all right to re-possess itself of the property as against such consignee, and the fact that they had no right to so deliver them to the defendant, gives them, in our opinion, no right to recover them or their value in this form of action.”
    The verdict was for the defendant, and after judgment, the plaintiff took this writ assigning, inter alia, this charge of the court for error.

      J. W. Wetmore, for plaintiff in error.
    — By virtue of the delivery of goods to a carrier for transportation there is vested in him a special property, which authorizes him to maintain an action against any person who disturbs his possession: Angelí on Corporations 848. The reason of the special property is not security for the freight, but because .the carrier is responsible for the goods.
    The court below say plaintiff has no right to recover the stoves in this form of action. There is no other but trover, and if the action is upon the ground of wrongful detainer only, replevin is concurrent rvith trover: Hilliard Remedies for Torts 5, citing 4 Mich. 295; Coleman’s Appeal, 25 P. F. Smith 457; 5 U. S. Digest 694, sect. 9.
    The action of replevin may be brought whenever any person claims personal property in the possession of another, whether the property be absolute or qualified, provided he has the right to the possession: Morris on Replevin 87; 1 Dall. 156; Shearick v.
      Huber, 6 Binn. 3; Boyle v. Rankin, 10 Harris 168-170; Herdic v. Young, 5 P. F. Smith 176; Harlow v. Harlow, 3 Harris 507.

      George W. Lathy and L. S. Norton, for defendant
    in error, in support of the ruling of the court, cited Covert v. Reed, 4 Yeates 456; Bean v. Bolton, 3 Phila. 87; Story on Bailment, sect. 588.
   Mr. Justice Sterrett

delivered the opinion of the court, November 12th 1877.

Replevin cannot be maintained without showing either a general or special property in the plaintiff, together with the right of immediate possession. Neither of these was proved in this case, and consequently the plaintiff was not entitled to recover.

On the 13th December 1872, the Treadwell Stove Company shipped, by the plaintiff’s road, from Albany, New York, to Erie, Pennsylvania, a lot of stoves, marked on the cards or tags attached thereto, u Gr. W. Elisey, Erie, Pennsylvania.” The bill of lading which accompanied them, in possession of the company plaintiff, contained the same address, and in addition thereto, on the margin, the words, “ Subject to the order of O. B. Redfield,” who appears to have been the treasurer of the stove company. The defendant claimed that he had ordered the stoves from the consignors, on the usual terms and in the ordinary course of business; and there was nothing to show that he knew they were forwarded to him, subject to any restriction as to delivery. Shortly after their arrival at Erie, he was notified that they were in the plaintiff’s warehouse; and on the 6th of January 1878, he paid the freight and they were delivered, on his order. The transaction on his part, so far as appears from the testimony, wus in perfect good faith. If he had obtained possession of the stoves by trick or artifice, a very different case would have been presented; but nothing of the kind was even alleged. After they were received by him, no inquiry was made, nor anything done by the plaintiff' or the consignors until the 23d of February following, when Redfield wrote to the railway company, demanding the stoves. This led to negotiation with the defendant, who finally refused to surrender them, and thereupon three of them were replevied and delivered to the plaintiff. By virtue of its lion, the railway company had a right to retain possession of the stoves until the freight was paid, and the order of Red-field for their -delivery was given. But, upon the receipt of the freight, it voluntarily delivered them into the possession of the defendant, who at that time, so far as appears, was ignorant of any restriction as to the delivery. By thus surrendering the possession to him, without being induced to do so by any act of bad faith on his part, the lien which previously existed was released; and the railway company had no right afterwards to resume possession of the property: Story on Bailments, sect. 588. Nor did the alleged agreement of the defendant to return the stoves, on re-payment of the freight and charges, give the plaintiff a right of action in the present form. If, under the circumstances, the action had been brought by the consignors, as owners of the property, claiming possession on the ground that the delivery was unauthorized by them, a different question might have been presented, but it does not arise in the present case.

There appears to be no substantial error in the record, and the judgment should be affirmed.

Judgment affirmed.


author: Per Curiam.

text:
    Ashby et al. versus City of Erie.
    -^e wa*er commissioners of the city of Erie, by virtue of the Act April 4th are a board wholly independent of the city authorities, and the city is liable for an accident arising from the negligence of said commissioners.
    October 18th 1877.
    Before Agnew, C. J., Mercur, Gordon, Paxson, Woodward and Sterrett, JJ. Siiarswood, J., absent.
    Error to the Court of Common Pleas of Erie county: Of October and November Term 1877, No. 263.
    Case by John E. Ashby and Harry Vincent, against the city of Erie, for damages on account of the alleged negligence of the city.
    This suit was brought to recover damages sustained by plaintiffs, for the flooding of the basement of their store in consequence of the bursting of a street water-main, whereby a large lot of paper and other materials were destroyed. The plaintiffs claimed that the accident arose from the negligence of the water commissioners of said city, who had improperly constructed said main, and used inferior material therein.
    It appeared that the waterworks in said city were built and managed by commissioners appointed by the judges of the Court of Common Pleas, by virtue of an Act of Assembly, approved April ,4th 1867, Pamph. L. 768, the second section of which makes the following provision:—
    “ It-shall be the duty of said commissioners to take the full charge and control of the erection and completion of waterworks in said city, and to make all contracts for the erection and completion thereof, and to provide for the repair and maintenance of the same, to acquire, by purchase, or otherwise, such and so much real estate as may be necessary for the efficient use of said waterworks, whenever the same may be needed, to furnish a full supply of pure and wholesome water, to be taken from the bay, or harbor, or from Lake Erie, to collect the water-rents, and appoint all necessary officers and agents, and take from them, respectively, such security, for the faithful performance of duty, as said commissioners shall deem proper, and to fix, from time to time, the amount of salaries and wages to be paid such officers and agents. They shall also have power to make all such by-laws, rules and regulations for the economical and efficient management and protection of the works and their appurtenances as they may deem expedient and necessary, and from time to time make and establish such rates, terms and conditions upon which water from said works shall be furnished to applicants therefor, as said commissioners shall deem just and proper; but such rates, terms and conditions shall be subject to approval by the city councils before they go into operation ; and all such by-laws, rules and regulations, when made by said commissioners, shall have the force and effect of ordinances in said city, and the penalties imposed thereby shall be collected in the same manner that penalties imposed by city ordinances are now by law collected ; and said commissioners shall prepare full and careful plans and specifications of all the work and material necessary for the erection and completion of said works, and shall, by due public notice, invite proposals for performing and furnishing the same, and shall, in all cases, let the contracts therefor to the lowest responsible and capable bidder, and shall take adequate security for the due performance of the several contracts; and said works shall be put under contract, and prosecuted to completion with all convenient and reasonable despatch.”
    At the trial, the counsel for the city moved for a nonsuit on the ground that, the city of Erie cannot be held responsible for the neglect of a duty specially enjoined by law upon public officers, who neither derive their appointments or authority from the corporation, and are not subject to its control; who can neither be directed by the corporation in the discharge of their duty or dismissed for its neglect.
    The court entered the nonsuit, and subsequently refused to take it off, which were the errors assigned by plaintiffs who took this writ.

      J. Ross Thompson, for the plaintiffs in error.
    — The duties of the water commissioners relate to the exercise of the corporate powers of the city, and are for the peculiar benefit of the corporation in its local and special interest: in its local interest in supplying the city with water, and in its special interest, in receiving money as a revenue for the city. If, therefore, the water commissioners hold their office for the benefit of the city alone, and so act, they are the agents of the city, no matter how they may be appointed.
    For whom are the water commissioners acting ? Not for the Commonwealth; not as such public officers ; not for the public; although the public may be somewhat interested in having water; the grant is a special private franchise, made for the private emolununt and advantage of the city as well as for public good.

      The state, in its governing character, has no interest in it. It owns no part of the work. The whole investment under the law, and the revenue and profits to be received therefrom, are the private property of the city, as much as the lands and houses belonging to it situate within its corporate limits.
    The city, therefore, owning the waterworks as a private corporation, would be liable for the damages arising from the defective construction of the works, or negligence in maintaining the same.

      Davenport & Griffith and Theo. A. Lamb, for the city.
    — Where the corporation has no choice in the selection of an officer, but is bound to appoint a particular person, or accept the services of an independent officer, who derives his authority and duties from another source than itself, or -whose duties are specifically imposed by statute, it is not liable for his acts: Alcorn v. Philadelphia, 8 Wright 348; Winpenny v. Philadelphia, 7 Phila. 111; Ham v. The Mayor, &c., of New York, Albany Law Journal, vol. 16, No. 13; Martin v. The Mayor, &c., of Brooklyn, 1 Hill 545; Lorillard v. The Town of Monroe, 1 Kernan 392; Dillon on Mun. Cor., sects. 772 to 776, inclusive; Steam Navigation Co. v. British Navigation Co., 3 Exch. 329; Story on Agency, sect. 456 a, page 588; Sproul v. Hemingway, 14 Pick. 1; Maxamilian v. The Mayor, 62 N. Y. 160; The Mayor v. Furze, 3 Hill 618.
   The judgment of the Supreme Court was entered November 7th 1877,

Per Curiam.

— The water commissioners, under the act creating commissioners of waterworks in the city of Erie, are a board wholly independent of the city authorities. Whether it is wise to separate so widely a function so intimately connected with the welfare of the city, from the control of the councils, is a question for the legislature, not for us. We cannot see how the city, under the law in question, can be held liable for the negligence of the water commissioners, who are appointed by the court, and neither account to nor owe obedience to the city authorities.

Judgment affirmed.


author: Chief Justice Agnew

text:
    Right Rev. T. Mullen versus Commissioners of Erie County.
    The land upon which a church is being erected is not exempt from taxation under the provisions of the Act of May 14th 1874, which exempts “ churches, meeting-houses or other places of stated worship.”
    October 18th 1877.
    Before Agnew, C. J., Mercur, Gordon, Paxson, Woodward and Sterrett, JJ. Sharswood, J., absent.

      Error to the Court of Common Pleas of Erie county: Of October and November Term 1877, No. 251.
    This proceeding was an appeal by Rt. Rev. T. Mullen, for St. Peter’s Cathedral, from the decision of the Commissioners of Erie county, in which the facts were submitted for the opinion of this court in the following case stated:—
    “ It is agreed that a cathedral is now being constructed by the Catholics of the Diocese of Erie, on their city lots in Erie, on the corner of Sassafras and Tenth streets, to bo known as St. Peter’s Cathedral; that said building is not yet completed, and that work on same has been carried on during the last three years from time to time during each of said years; that under and by virtue of the Act of May 14th 1874, said commissioners have caused said referred-to three lots and the unfinished cathedral thereon to be assessed as other property in the city of Erie, and have refused to exempt said property from taxation because religious services are not held on said premises — said cathedral not being completed, and, because it is claimed by them said property is not such property as should be exempt from taxation; that no religious services have been held on said premises, except the ordinary services when the corner-stone of said cathedral was laid.
    “From the decision of said commissioners this appeal has been taken, and from the decision of the Court of Common Pleas of Erie county both parties reserve the right to a writ of error or to appeal.”
    The Act of May 14th 1874, Pamph. L. 158, provides, that all churches, meeting-houses or other regular places of stated worship, with the grounds thereto annexed, necessary for the occupation and enjoyment of the same * * * be and the same are hereby exempted from all and every county, city, borough, bounty, road, school and poor tax ; Provided, that all property, real or personal, other than that which is in actual use and occupation for the purpose aforesaid, and from which any income or revenue is derived, shall be subject to taxation, except where exempted by law for state purposes, and nothing herein contained shall exempt same therefrom.
    The court, Galbraith, P. J., entered judgment for the defendants, and in an opinion said :—
    “ The plain meaning and intention of the act is that buildings to be exempted as churches or meeting-houses must be such only as are in the language of the law ‘ regular places of stated worship.’ A mere foundation or partly-erected walls might, by a forced construction, be called an unfinished church or meetinghouse, but it cannot by any construction be made a ‘ regular place of stated worship.’
    “ It is urged that the language of the proviso in the concluding part of the section shows that it was the intention to exempt all churches, finished or otherwise, occupying property from which no income or revenue is derived — in other words, that if no income or revenue is derived from the property in question, then it need not appear to be ‘ in actual use and occupationbut while this leaves that part of the section somewhat vague.as to what precisely was meant, yet it does not mitigate the rigid requirement of the main, leading, descriptive clause, which evidently intends that only such churches or meeting-houses as are in actual use as regular places of stated worship are to be exempted from taxation.-
    “ It follows from this that the setting apart of land for a church building, the ground being owned by a church organization, or as in this case vested in a bishop, and the commencement of the erection of a church edifice, is not sufficient under the provisions of the act in question to secure exemption. Before that privilege attaches, the building must be completed and in actual use as a ‘ regular place of stated worship.’ ”
    The entry of judgment for defendants was the error assigned by plaintiff, who took this writ.

      Davenport & Griffith for plaintiff in error.
    — The design of the Act of 1874 was clearly to exempt from taxation public property used for public purposes, places of religious worship and of burial, not held for profit, and institutions of public charity. This act is a virtual re-enactment of the Act of April 16th 1838, Pamph. L.' 525. Sect. 1, art. 9, of the constitution, expressly provides that “public property used for public purposes” shall be exempt from taxation. Within this class are embraced courthouses, jails and school-houses, which sometimes take years to erect. Can it be claimed that the land on which they are being erected, can be taxed until the buildings are occupied or in actual use ?
    “ When particular terms are used to describe the objects of taxation, they should be construed according to their popular acceptation, not by any refined or strained analogies, and especially when that acceptation corresponds with the use of those terms, in recent legislative enactments:” Deitz v. Beard, 2 Watts 172.
    In a broad and comprehensive manner, the act clearly states that all buildings known as places of worship shall be exempt from taxation. And the same reason which exempts an unfinished courthouse from taxation should apply to and exempt an unfinished church.

      D. B. McCreary and Frank Gunnison, for defendants in error.—
    Both the constitutional provisions and the legislative enactments were intended to diminish, not increase -the subjects of exemption from taxation. “Actual places of religious worship,” or “regular places of stated worship,” mean places now used for religious worship, where regular church services are held, and to insist that the beginning of work on a church, with the intention of making it a place of stated worship in the future, constitutes it an actual place of religious worship, would open the door for flagrant abuse. Laws exempting property from taxation should be strictly construed, and no surrender of the general power of taxation can be implied: Hammett v. Phila., 15 P. F. Smith 146.
   Chief Justice Agnew

delivered the opinion of the court, November 7th 1877.

If anything bo plain in the constitution, and the law passed to carry out the second clause of the first section of the eighth article relating to exemptions of churches from taxation, it is that a place of actual religious worship only can be exempted. A marked feature of this clause, which controls its interpretation, is, that no such words were used as churches, meeting-houses, or others, to designate the buildings themselves; but to prevent all doubt, the convention used the words “ actual places of religious worship.” In so doing, that body confined the scope of legislative power to the very use itself; thus taking away all excuse for loose interpretation as to the character of the building. It must be a place of religious worship. What more definite, to describe the use made of the place — a place, be it church, chapel, meeting-house, or cathedral ? The word place expresses simply locality, not hind, and hence qualifying words were necessary to denote the kind of place; therefore the convention said, “ of religious worship.” And not content with a single qualifying expression, it prefixed the word actual— “an actual place of religious worship.” Without religious worship held in it, tire place has no character. The convention did not mean to exempt a place merely; for this would be unmeaning, without something to characterize the place. But when that body said, “ an actual place of religious worship,” it expressed a general thought, which would embrace all kinds of buildings by simply defining the use, which was to be the ground of exemption. The debates in the convention clearly indicate this meaning, and hence it was said this language would not include buildings put up for church purposes, as for Sunday schools, lectures, and parsonages.

When we reach the Act of 14th May 1874, passed to carry out the exemption clause in the constitution, we discover, from its title and its text, the legislature intended to hold to the definition in the constitution. Thus the title says, “places of religious worship;” and the text says, “ all churches, meeting-houses, or other regular places of stated worship.” They must bo places of stated worship. The word stated means fixed, established, occurring at regular times, as, stated hours of business. So, statedly means at certain times, not occasionally. But the legislature was not content with the word “stated,” and the word “regular” was prefixed, and the sentence became, “regular places of stated worship.” It would be hard to find language that more clearly defines the use, which is the ground of the exemption.

It is thus clear, from both the constitution and the law, it is the use, not the building, which defines the exemption. But the use which is made of a place is a present fact, not something ideal or in contemplation merely. If religious or public worship have not been held in the place, indeed, statedly held in it, the place itself has not a character. At some day, distant or near, it may be intended to be used for stated public worship, but the fact that it is not now used strips it of its only title to exemption. This cathedral, a misnomer, indeed, for it is only an unfinished structure, intended to become a cathedral, has been in the course of construction several years, and when it will be finished and used for religious worship we know not. The great cathedral on Eighteenth street, in the city of Philadelphia, was many yeai’s in progress before it was finished — probably twenty. A'building intended for a church may never be finished, or its use may be changed. On what principle, under the new constitution, should the property be exempted from taxation before it can be used, when it is the use only which gives it a title to exemption ?

An argument is founded on the instances of unfinished courthouses, jails, school-houses, &c. It is inapplicable, however, for these buildings belong to a different branch of the exemption clause. It reads, “ exempt from taxation public property used for public purposes, actual places of l’eligious worship, places of burial,” &c. The first and second branches are wholly dissimilar. In the former the words “public property” have a wider meaning, and possibly might cover an unfinished building upon it, not yet in use. It might be argued that the property is used for a public purpose when a commencement to build is made upon it. But this cannot be attributed to the expressions “ actual place of religious worship,” or “a regular place of stated worship,” as we have seen it is the use which defines the place or locality used, in order to give' ground for the exemption.

It is therefore clear that this unfinished structure, misnamed a cathedral, is not an actual place of religious worship as defined in the constitution, nor a regular place of stated worship, as described in the law, and is, therefore, not entitled to exemption from payment of taxes.

The judgment should be affirmed.

Mercur, J., dissents.


author: Mr. Justice Paxson

text:
    Hoag & Alger versus Lake Shore and Michigan Southern Railroad Co.
    1. Where it is alleged that an injury arose from negligence the question of the proximate cause is to be decided by the jury upon all the facts of the case, but where the facts are undisputed, and the intervening agency is manifest, it is not error for the court to withhold the evidence from the jury.
    2. In determining what is proximate cause, the true rule is, that the injury must he the natural and probable consequence of the negligence, such a consequence as under the surrounding circumstances of the case might and ought to have been foreseen by the wrongdoer as likely to flow from his act.
    3. Pennsylvania Railroad Co. v. Kerr, 12 P. F. Smith 353, followed. Pennsylvania Railroad Co. v. Hope, 30 P. F. Smith 373, and Raydure v. Knight, 2 W. N. C. 713, distinguished.
    October 18th 1877.
    Before Agnew, C. J., Mercur, Gordon, Paxson, Woodward and Sterrett, JJ. Sharswood, J., absent.
    Error to the Court of Common Pleas of Venango county: Of October and November Term 1877, No. 174.
    Case brought by H. W. Hoag and George O. Alger, doing business as Hoag & Alger, for use of E. S. Hoag, against the Lake Shore and Michigan Southern Railroad Company, to recover damages for the alleged negligence of defendant.
    Plaintiffs owned an oil lease in Oil City, near the track of defendant. The railroad of defendant runs along the right hank of Oil creek, at the base of a high and precipitous hill. On the 5th of April 187 3, during a rain storm, a slide of earth and rocks came down the side of the hill and lodged on defendant’s track. A short time after this slide fell, a train, consisting of seventeen cars of crude petroleum, ran into the slide. The train was thrown from the track and the oil cars bursting, the petroleum was ignited by the fire from the engine. The oil thus ignited, ran into the creek, and was carried down the stream some three or four hundred feet, and set fire to the buildings of the plaintiffs, which were totally destroyed. The creek at the time was quite high, and reached the buildings of plaintiffs, so that the burning oil, as it was carried down the stream, came directly in contact with them. From the point where the slide fell, the track of the railroad is in view for several hundred feet, hut it was in evidence, that owing to the wet condition of the track, the engine could not have been stopped within that distance.
    The third point of plaintiffs, which the court, Trunkey, P. J., refused, was as follows: “ That if the jury believe from the evidence that the accident complained of was the result of negligence on the part of the defendant, and that by reason of such negligence the oil, ignited by the engine attached to the train, ran immediately down to Oil creek, where it was carried by the curreht, in the space of a few minutes, to the property of the plaintiffs, where it set fire to and destroyed said property, the plaintiffs are entitled to recover, provided they did not, in any manner, contribute to said accident.”

      In their general charge the court said:—
    “ The immediate, and not the remote cause, is to be considered. This maxim is not to be controlled by time or distance, but by the succession of events. Whether the fire communicated to the plaintiffs’ property within a few minutes, or after the lapse of hours, from the negligent act, may be immaterial. Whether the property was near the alleged cause, or at a considerable distance, may not affect the question of liability. The question is, did the cause alleged produce its effects without another cause intervening, or was it to operate only through, or by means of this intervening cause ? A warehouse, very near the track of the company’s road, ■) was set on fire by reason of negligence of the company. From the burning warehouse, only thirty-nine feet distant, stood a hotel, which took fire and was destroyed. It was held that the company was only liable for the injury done to the warehouse, but not for • the hotel, because of the intervening agency of the warehouse “ between it and the act done by the company: Pennsylvania Railroad Co. v. Kerr, 12 P. F. Smith 853. In that case O. J. Thompson said: ‘ The sparks from the locomotive did not ignite the hotel. They fired the warehouse and the warehouse fired the hotel. They were the remote cause, the cause of the cause of the hotel being burned. * * * To hold that the act of negligence which destroyed the warehouse destroyed the hotel, is to disregard sequences entirely, and wmuld hold good if a row of buildings a mile long, had been destroyed.’ He approvingly cites Ryan v. N. Y. Central Railroad Co., 35 N. Y. 210, where by the carelessness of defendants’ servants its own wood-shed was burned, the heat and sparks of which set fire to plaintiff’s house, situate one hundred and thirty feet from the shed, and was entirely consumed, and it was decided that the railroad company was not answerable to the plaintiff for the loss of his house, being burned by fire communicated by the burning shed. In Oil Creek & A. Railroad v. Keighron, 24 P. F. Smith 316, it was held that ‘ if the cars were attached to the engine when the fire broke out, and quickly ignited, and burned with the engine, the whole being a connected train upon the track, and the burning mass directly, without any intervening agency, set fire to and destroyed the plaintiff’s house, the cause was not too remote. In affirming this, the court referred to the cases 12 P. F. Smith 353, and 35 N. Y. 210, where the destruction between remote and proximate cause will be found fully discussed.
    [“ Applying the principles in these three cases to the fact in evidence, or as assumed in the plaintiff’s third point, we are compelled to answer that they are not entitled to recover. The plaintiff’s property was several hundred feet away from where the accident occurred and where the oil was set on fire. The property was set on fire directly by the heat or sparks of the oil burning on the track. The oil ran down to Oil creek, was carried by the current down the creek, and set fire to the plaintiff’s property. The intervening agency was the current of water in Oil creek. Without that agency the plaintiffs would not have been injured.] To hold the defendant answerable for this loss, would be on the same principle that the defendant would be answerable for all losses occasioned to other persons by reason of the burning oil floating down the current. If that burning oil, thus carried, directly fired bridges, wharves, warehouses and other property, over ahd along the stream for a great distance, every owner could recover his loss from the defendant if it is liable to the plaintiffs. If the current of water is not an intervening agency, the cause is proximate; if it is, the cause is remote. The result depends not on time or distance, but on the presence or absence of an intervening agency. Whether the fire be carried by running water, over which the defendant has no control, or through its own wood-shed, or through the warehouse of another, can make no difference unless it be held that water is not an intervening agency in carrying and communicating the fire.”
    The court then directed a verdict for defendants.
    The plaintiffs took this writ, assigning for error the refusal of the foregoing point, and that portion of the charge in brackets.

      Charles W. Mackey, for plaintiffs in error.
    — It was for the jury to say, from the evidence, whether, from the time the obstruction was struck by the defendants’ engine, to the time the plaintiffs’ property was set on fire, there was a continuous succession of events, and that those events were so linked together that they became a complete and united whole ; or whether there wore intervening agencies — agencies that could not have been foreseen, and which should not have been anticipated, and that through the interposition of these, the succession was so completely ruptured that the destruction of the property could not be said to be the natural and reasonable result of the original negligence of the defendant: Pennsylvania Railroad Company v. Hope, 30 P. F. Smith 373, and Raydure, Watson & Co. v. Knight, 2 W. N. C. 713.

      McCalmont Osborn, for defendant in error.
    — The injury in this case is much more remote than in the case of the Pennsylvania Railroad Co. v. Kerr, 12 P. F. Smith 353. In that case the hotel stood only thirty-nine feet from the warehouse that took fire from the sparks of the locomotive; while in this case the property was burned two hundred and fifty to three hundred feet from the place where the oil took fire. If the defendant is liable for the loss of the plaintiff’s property, they would also have been liable had the burning oil set the bridge on fire or burned the boats in the river a mile below.
    The case of the Pennsylvania Railroad v. Hope, 30 P. F. Smith 373, does not rule this case. In that case it was one continuous fire. There was no intermediate agent in it, any more than there would b.e if a building was fired at the roof and from thence Communicating with the balance of the building, and burning it all. While in this case, without the waters of Oil creek being swelled to an unusual height, the fire from the burning oil could not have been communicated to or reached the plaintiff’s property. Had the waters of the creek been at an ordinary height the burning oil would have run into the road or into the creek, or both, and been consumed without injuring plaintiff’s property.
   Mr. Justice Paxson

delivered the opinion of the court, November 19th 1877.

X This was an action on the case to recover compensation for certain property destroyed by, fire, caused, as was alleged, by the negligence of the defendants. The facts, so far as they are essential to elucidate the point in controversy, are as follows : The plaintiffs were the occupiers of a piece of land situated within the limits of Oil City, on the western bank of Oil creek. The railroad of defendants is constructed along said creek, over the land of the plaintiffs and at the base of a high hill.' On the afternoon of April 5th 1873, during a rain storm, there was a small slide of earth and rock from the hill-side down to and upon the railroad. About ten minutes prior to the accident, one of the defendants’ engines had passed over the road in safety. At that time no slide had occurred. This engine was followed in a few minutes by another engine drawing a train of cars loaded with crude oil in bulk. The latter engine ran into the slide, was thrown off the track, ran on about one hundred to one hundred and fifty feet, when the tender, which was in front of the engine, was overturned into Oil creek; the engine itself was partly overturned; two or three oil cars became piled up on the track and burst. The oil took fire, was carried down the creek, then swollen by the rain, for several hundred feet, set fire to the property of the plaintiffs and partly consumed it. The question of negligence in defendants’ engineer in not seeing the obstruction and stopping his train before reaching it is not raised upon this record, and need not be discussed. The only question for our consideration is, whether the negligence of the defendants’ servants was the proximate^ cause of the injury to the plaintiffs’ property. The answer toTfoiTplaintiffs’ third point, embraced in the second specification of error, raises this question distinctly. The court was asked to say: “ That if the jury believe from the evidence, that the accident complained of was the result of negligence on the part of the defendant, and that by reason of such negligence, the oil, ignited by the engine attached to the train, ran immediately down to Oil creek, where it was carried by the current in the space of a few minutes to the property of the plaintiffs, when it set fire to and destroyed said property, the plaintiffs are entitled to recover, provided they did not in any manner i contribute to said accident.” The court answered this point in the negative, and then instructed the jury that as a matter of law, upon the facts in the case, the plaintiffs were not entitled to recover, which instruction is assigned here for error.

It was strongly urged that the court erred in withdrawing the case from the jury, and the recent cases of Pennsylvania Railroad Co. v. Hope, 30 P. F. Smith 373, and Raydure v. Knight, 2 W. N. C. 713, were cited as supporting this view. In the case first cited it was said by the chief justice, in delivering the opinion of the court, “ We agree with the court below that the question of proximity was one of fact peculiarly for the jury. How near or remote each fact is to its next succeeding fact in the concatenation of circumstances from the prime cause to the end of the succession of facts which is immediately linked to the injury, necessarily must be determined by the jury. These facts or circumstances constitute the case, and depend upon the evidence. The jury must determine, therefore, whether the facts constitute a succession of events, so linked together that they become a natural whole, or whether the chain of events is so broken that they become independent, and the final result cannot be said to be the natural and probable consequence of the primary cause, the negligence of the defendants.” The case of Raydure v. Knight, was meagrely presented; the charge of the court was not sent up, and a majority of the court were of opinion that no sufficient cause for reversing the judgment had been shown. I am unable to see any special bearing this case has upor^ the question before us. The doctrine laid down in the Railroad Co. v. Hope, and to be gathered incidentally perhaps from Raydure v. Knight is, that the question of proximate cause is to be decided by the jury upon all the facts in the case; that they are to ascertain the relation of one fact to another, and how far there is a continuation of the causation by which the result is linked to the cause by an unbroken chain of events, each one of which is the natura1 foreseen, and necessary result of such cause. But it has never bee held that when the facts of a case have been ascertained, the court may not apply the law to the facts. This is done daily upon special verdicts and reserved points. Thus in the Railroad Co. v. Kerr, 12 P. F. Smith 353, a case bearing a striking analogy to this, the court submitted the question of negligence to the jury, but reserved the question of proximate cause upon the undisputed facts of the case. Of course this could not have been done if the facts were in dispute. A reserved point must be based upon facts admitted in the cause or found by the jury. In questions of negligence it has been repeatedly held that certain facts when established amount to negligence per se: Railroad Co. v. Stinger, 28 P. F. Smith 219; McCully v. Clarke, 4 Wright 399; Pennsylvania Railroad Co. v. Barnett, 9 P. F. Smith 259; while in Raydure v. Knight, supra, the court below, in answer to the defendants’ second point, instructed the jury that if certain facts were believed by them, the negligence complained of was the proximate cause of the injury to plaintiff’s property. This ruling was affirmed by this court. I do not understand the decision in the Railroad Co. v. Hope, to be in conflict with this view. It remains to apply this principle to the case before us. There is not a particle of conflict in the evidence, so far as it affects the question of proximate cause. This was doubtless the reason why the plaintiffs assumed the facts in their third point. They would not have been justified in doing so had not the facts been admitted, nor is it likely the learned judge would have answered it. We may, therefore, regard the plaintiff’s third point as a prayer for instructions upon the undisputed facts of the case. Can it be doubted that the court had (the right to give a binding instruction ? We think not.

-But one question remains.''' Was the negligence of the defend/?ants’ servants, in not seeing the land-slide, and stopping the train before reaching it, the proximate cause of the destruction of the plaintiff’s property ? We need not enter into an extended discussion of the delicate questions suggested by this inquiry. That has been done so fully in two of the cases cited as to render it unnecessary. A man’s responsibility for his negligence and that of his servants must end somewhere. There is a possibility of carrying an admittedly correct principle too far. It may be extended so as to reach the reductio ad absurdum, so far as it applies to the practical business of life. We think this difficulty may be avoided by adhering to the principle substantially recognised in The Railroad Company v. Kerr, and The Railroad Company v. Hope, supra, that in determining what is proximate cause, the true rule is, that the injury must be the natural and probable consequence of the negligence— ] such a consequence as, under the surrounding circumstances of the ! case, might and ought to have been foreseen by the wrongdoer as \ likely to flow from his act. This is nof aTimitation of the maxim causa próxima non remota speetatur ; it only affects its application. There may be cases to which such a rule would not apply, but this 1 certainly is not one. It would be unreasonable to hold that the ! engineer of the train could have anticipated the burning of the i plaintiff’s property as a consequence likely to flow from his negli1 gence in not looking out and seeing the land-slide. The obstruction itself was unexpected. An engine had passed along’within ten minutes, with a clear track. But the obstruction was there, and the tender struck it. The probable consequences of the col- . lision, such as the engineer would have a right to expect, would be the throwing of the engine and a portion of the train off the track. | Was he to anticipate the bursting of the oil-tanks; the oil taking fire; the burning oil running into and being carried down the stream; and the sudden rising of the waters of the stream, by means of which, in part at least, the burning oil set fire to the plaintiff’s building? This would be a severe rule to apply, and1' might have made the defendants responsible for the destruction of property for miles down Oil creek. The water was an intervening agent, that carried the fire, just as the air carried the sparks in the case of the Railroad Company v. Kerr. It is manifest that the negligence was the remote and not the proximate cause of the injury to the plaintiff’s building. The learned judge ruled the case upon sound principles, and his judgment is affirmed.