author: Mr. Justice Woodward

text:
    In re Vacation of Osage Street.
    Where a street has been laid out and dedicated to public use, in an incorporated borough, Courts of Quarter Sessions have no jjower to vacate said street, as such power is vested in the municipal authorities alone.
    April 1st 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, TRUNKEY and Sterrett, JJ.
    Certiorari to the Court of Quarter Sessions of Northampton county: Of January Term 1879, No. 210.
    On June 3d'1878, certain inhabitants of the borough of South Bethlehem petitioned the court to vacate a certain road. Viewers were appointed, who reported that the road should be vacated. It was agreed that the road vacated was a street dedicated to public use, and an adopted street of the borough of South Bethlehem, and known as Osage street. To the report of the viewers the following exceptions were filed:
    1. This court has no jurisdiction to vacate streets in. an incorporated borough, and this proposed vacation appears on its face to be the vacation of a street in South Bethlehem, an incorporated borough.
    2. This court has no jurisdiction to vacate any street in a borough that is dedicated to public use, and this street called Osage street appears by the records of this county to be a street of South Bethlehem, an incorporated borough, and to be dedicated to public use by Charles Hacker, as well as by the deeds on record showing sales of lots bounding on this street.

      On February 19th 1879, the court overruled the exceptions and confirmed the report; which action was assigned for error by the exceptant, who took this writ.

      W. E. Hosier, for appellant.
    The Court of Quarter Sessions had no authority to vacate the street: Act June 13th 1836, Pamph. L. 558, sect. 22; Allentown Road, 5 Whart. 442. The petitioners contended that the Act of April 21st 1846, Pamph. L. 416, repealed the Act of June 13th 1836. But even if the Act of 1846 did repeal, by implication, the Act of 1836, it could not repeal the Act of May 3d 1855, Pamph. L. 422, which was enacted fourteen years later, and which continues to exclude streets in boroughs from the power of the Quarter Sessions. It is manifest in these acts that the legislative intent was to leave the regulation of streets in boroughs with the municipal authorities, who are responsible for their condition.

      W. W. Schuyler, contra.

    By the authority conferred by the Act of 1846, the Quarter Sessions has the power to vacate all roads. Streets were included in these terms: Sharett’s Appeal, 8 Barr 92. If said courts have no power to vacate streets in cities and boroughs, there is no power anywhere to do so, for no such power is conferred upon boroughs. The Act of 1855 does not apply. That act was passed to meet a special case: Road in Greenwich Township, 1 Jones 186.
    May 5th 1879.
   Mr. Justice Woodward

delivered the opinion of the court,

For the purposes of this litigation, the two material facts out of which the controverted legal point arose, were agreed upon by counsel in the court below. Osage street was dedicated to the use-of the public by Charles Hacker, by deed executed on the 21st of November 1864, and duly recorded, and was adopted as one of the streets of South Bethlehem, by a resolution of the town council, on the 20th of September 1875. On the 3d of June 1878, a petition to vacate the street was presented to the Court of Quarter Sessions. Viewers were appointed, who reported in favor of the vacation prayed for, and on the 19th of February 1879 their report was confirmed. The complainants sued out this writ, and have brought up the proceedings for review, upon the allegation that they were not within the jurisdiction of the court.

By the 18th, 19th, 20th and 21st sections of the Act of the 13th of June 1836, authority was given to the Courts of Quarter Sessions of the Commonwealth, within their respective counties, “ to change or vacate the whole or any part of any private or public road laid out by authority of law;” to vacate roads laid out and confirmed, but not opened, on the petition of. a majority of the original petitioners; to change or supply by a new road the route of any state road laid out by direction of any Act of Assembly, and vacate any part of the state road thus supplied; and to vacate any part of any state road supplied by a substantial and permanent turnpike. The 22d section embodied a proviso that nothing contained in the act should give authority to any court to vacate any lane, street or highway within any city, borough, town-plot or any town or village laid out by the late proprietaries, or by any other person, and dedicated to the public use. The Act of the 21st of April 1846 extended the powers of the courts, in the vacation of public and private roads, to all roads, whether laid out by authority of law or existing by pre-emption or lapse of time; “ and generally to all roads, except private roads resting upon express grant,” the evidence of which being still in existence. The Act of the 3d of May 1855 increased the powers of the courts still further by authorizing them to change or vacate the whole or any part of any public or private road laid out by authority of law, and opened in part, subject to the proviso that it should not apply to state roads authorized by a special law, or to,, any street, lane or road within any incorporated city or borough.

Under this legislation, and notwithstanding the act regulating boroughs, passed the 3d of April 1851, it was insisted upon at the argument on behalf of the petitioners, that the Courts of Quarter Sessions may proceed, in the forms prescribed by the Act of 1836, to vacate any street in any city, town or borough in regard to which special statutory provision has not been made. It was said that the Act of 1855 was passed to meet the decision of this court in the Road in Greenwich Township, 1 Jones 186, where it was held that the Quarter Sessions could not vacate a road partly opened, and that the proviso excepting streets in cities and boroughs from its operation extended only to cases for which it was intended to provide. This is undoubtedly true, but the fact that the proviso was inserted indicates that the 22d section of the Act of 1836 was in the legislative view, and that the legislature of 1855 did not regard that section as having been repealed or supplied by a former legislature. The Act of 1846 was “ a supplement to the act entitled ‘an act relating to roads, highways and bridges.’ ” It extended the powers of the courts “ to vacate public and private roads” to “all roads” — to those “existing by pre-emption,” as well as to those specified in the Act of 1836 as roads “laid out by authority of law” — “and generally to all roads, except private roads resting on express grant.” But jurisdiction over the highways of cities and boroughs, and over dedicated streets in town-plots, towns and villages had been expressly withheld by the Act of 1836. The subjects of that act, by the introduction of the 22d section, were confined to country roads. Is it possible that the Act of 1846 was designed to act upon a new class of subjects, to repeal the 22d section of the Act of 1836 by implication, and, without reference or specification, to add to the jurisdiction over country roads jurisdiction over city and borough streets ? This would be a very comprehensive implication to be drawn from the language of a statute, the natural and apparent purpose of which was merely to enlarge the members of a class to which a former statute had been applied. The word “road,” in a proper connection, may be fitly used to designate a city or borough street: Moyamensing Road, 4 S. & R. 106; Sharett’s Road, 8 Barr 89. Regarding the Acts of 1836 and 1855 as in pari materia with the Act of 1846, it seems incredible that the word could have been used in a sense or for a purpose ■that would embrace a class of subjects of such vast importance as the highways of the municipalities of the Commonwealth. The adjustment of a city or borough plan requires scientific knowledge, a pervading system thoroughly understood by official agents, and familiarity with diversified and minute details. The vacation of a single street could be at a point so vital as to derange the graduation, drainage and sewerage of an entire borough. Legislation should be very clear indeed to require that the health, convenience and comfort of a whole community should be put to the hazard of the action of six gentlemen casually selected from country townships, adjacent to a town, to deal with an isolated detail of a system which they could touch only to injure and perhaps destroy.

That the Courts of Quarter Sessions have no original jurisdiction in the vacation of borough streets, appears manifest from the terms of the Act of the 3d of April 1851. It is true that in the second section, enumerating the powers of borough officers, the second clause authorizes them only to survey, lay out and ordain roads, streets, lanes, alleys, courts and common sewers, and to provide for widening and straightening them. The word “vacate” does not occur. But all the provisions of the act are to be considered. The fourth clause of the second section declares that those officers “shall regulate the roads, streets, lanes, alleys, courts, common sewers, public squares, common grounds, footwalks, pavements, gutters, culverts and drains, and the heights, grades, widths, slopes and forms thereof; and they shall have all other needful jurisdiction over the same.” The 27th section fixes the time when and the terms and forms on and in which the court shall have the right to intervene. By the third clause of that section, complaint may be made to the Quarter Sessions by any person or persons aggrieved by any regulation in relation to the laying out, widening or straightening of highways, or to “ the opening, grading or other regulations thereof,” and thereupon the court are required to take such order as may be just and reasonable. The first proviso to this third clause directs that the same proceedings shall be had as those provided for the laying out and opening of the public roads of the Commonwealth. The terms of the second proviso are: “ That every jury appointed to view, review, lay out, widen or straighten, or vac,ate, any road or part of a road in any borough of .this Commonwealth, shall have due reference to the town-plot herein authorized and directed, and to the general arrangement, plan, convenience and advantage of the borough, and shall set forth the facts fully in their report.” No jury can have existence until, upon the complaint of a citizen, the action taken by the town council shall be brought into the court for review. The words “ to vacate” in the second clause of the proviso are to be read in connection with the rest of the third clause of the 27th section, as well as in connection with the second and fourth clauses of the 2d section. The vaca-, tion of a street was as much in contemplation as the laying out and opening of a street when the legislature made provision of means by which the proceedings of the council should be revised. The words cannot be relegated to the Act of 1846, and read into that, in order to give them efficiency, nor can they be stricken out. As they stand, they are aids to indicate the scope and purpose of the Act of 1851 in an unmistakable way.

Proceedings reversed, and petition dismissed.


source: Caselaw Access Project

author: Mr. Justice Paxson

license: Public Domain

text:
    Knecht versus Mutual Life Ins. Co. of New York.
    In an application for a life insurance policy^ the applicant declared, “that he does not now, nor will he, practise any pernicious habit, which obviously tends to the shortening of life.” The policy issued in pursuance of said application contained this provision : “ If any of the statements or declarations made in the application for this policy, upon the faith of which this policy is issued, shall be found in any respect untrue, then and in every such case, this policy shall be null and void.” At the time of making the application, the applicant was of correct and temperate habits. Some years after the issuing of the policy, he became addicted to the use of intoxicating drinks, from the immoderate use of which he was attacked with delirium tremens, from the effects of which he died. Held, that in the absence of any clause in the policy avoiding it, in case the assured should practise any such habit, and of any covenant or warranty on his part that he would not do so, his mere declaration to that effect in the application was not sufficient to avoid the policy.
    April 1st 1879.
    Before Sharswood, C. J., Mercur, Paxson, Woodward, Trunkey and Sterrett, JJ. Gordon, J., holding, a policy in the company, did not sit. •
    Error to the Court of Common Pleas of Northampton county: Of January Term 1879, No. 253.
    Amicable action of assumpsit, by A. S. Knecht, administrator of Abram E. Eangboner, deceased, against the Mutual Life Insurance Company of New York, wherein the following case was stated for the opinion of the court:
    That in January 1868, the deceased applied to the defendant for a policy of insurance upon his life, the application, among other clauses, containing the following: “And the said Abram F. Fang-boner further declares that he is not now afflicted with any disease or disorder, and that he does not now, nor will he, practise any pernicious habit that obviously tends to the shortening of life;” that upon the faith of the conditions and promises in said application, the defendant issued a policy to deceased. Among the provisions of said policy was the following: “ If any of the statements or declarations made in the application for this policy, upon the faith of which this policy is issued, shall be found in any respect untrue, then and in every such case this policy shall be null and void.” That at the time of making the aforesaid application for insurance, the said Fangboner was of correct and temperate habits; that some years after the issuing of said policy he became addicted to the use of intoxicating drinks, from the immoderate use of which he was attacked with delirium tremens, from which he died; that the court shall be at liberty to make all legitimate and proper inferences of fact which flow from the foregoing facts, and that the case shall be considered and determined as upon a demurrer to evidence by the plaintiff; that if the court shall be of opinion that the defendant is liable to pay the whole amount insured by- said policy upon the life of the said Fangboner, then judgment to be entered in favor of the plaintiff for the sum of $1500, with interest from June 26th 1876. If not, then judgment to be entered for the defendant.
    The court, Meyers, P. J., entered judgment for the defendant, when the plaintiff took this writ, and assigned this action'-for error.

      Fdiuard J. Fox, for plaintiff in error.
    Was the clause in the application a warranty by the assured? By a warranty the insured stipulates for the absolute truth of the statement made, and the strict compliance with some promised line of conduct, upon penalty of forfeiture of his right to recover in case of loss, should the statement prove untrue, or the course of conduct promised not be fulfilled.
    Nowhere, either in this policy or the application, did the assured promise, covenant, agree or warrant that he would not practise any pernicious habit. He declared that he would not do so. In such a contract words are to be interpreted according to their ordinary meaning. The language of the clause cannot be legitimately or properly applied to the performance of something which the assured declared he would or would not do in the future.
    Habits of intemperance acquired subsequent to the insurance, even though the cause of death, will not avoid the policy, unless expressly so stipulated: Reichard v. Manhattan Life Ins. Co., 31 Mo. 518; Horton v. Equitable Life Ass. Co., 2 Bigelow 108.

      H. Green, for defendant in error.
    The policy provides that it is issued “ upon the faith” of the statements and declarations contained in the application. And the application provides that it shall “form the basis of the contract,” and that if any “violation of the covenants, conditions or restrictions of the policy shall occur,” the policy shall be void. Of course, “shall occur,” means occur in the future. Now, the policy incorporates into itself all the statements, declarations, stipulations and agreements of the application, and further expressly provides that if any of the statements or declarations' of the application shall be found in any respect untrue, the policy shall be void. The words “ shall be found” import discovery in the future. While these words may mean discovery in the future of a fact existing in the past, they may also mean discovery in the future of a fact occurring in the future. The undertaking not to practise the habit in the future, is ■ a part of the contract. This engagement is a condition precedent, which must not be violated, except at peril of forfeiture. It is also a warranty, and for that reason a condition precedent. If the liability of the company does not arise until the stipulations of the insured are performed, then such stipulations are conditions precedent: 2 Chitty on Contracts 1082; 2 Parsons on Contracts 40; Insurance Co. v. Slockbower, 2 Casey 199; Inland Ins. Co. v. Stauffer, 9 Id. 397; Trask v. Ins. Co., 5 Id. 198; Holterhoff v. The Mutual Benefit Life Ins. Co., 3 Ins. Law Journal, Nov. 1874, p. 854.
    In the case at bar, the applicant declares that he will not practise any pernicious habit which tends to shorten life. The policy provides that if any of the declarations of the application shall be found to be untrue, the policy shall be void. The declaration that he would not practise a pernicious habit, &c., was found to be untrue. Hence the legal and logical necessity for the conclusion that the consequence expressed in the policy shall attach, to wit, the policv shall be void: Mily v. Conn. Mutual Life Ins. Co., 3 Gray 580 Southcombe v. Merriman, 1 C. & M. 286; 41 E. C. L. R. 159.
    May 7th 1879.
   Mr. Justice Paxson

delivered the opinion of the court,

It is not alleged that in his application for insurance the insured made any false representation of an existing fact. What he did declare was, “that he is not now afflicted with any disease or disorder, and that he does not now, nor will he, practise any pernicious habit that obviously tends to the shortening of life.” The case stated sets forth, “ That at the times of making the aforesaid application for insurance, the said Abram F. Fangboner was of correct and temperate habits; that some years after the issuing of said policy he became addicted to the use of intoxicating drinks, from the immoderate use of which he was attacked with delirium tremens, from which he died.” The policy issued in pursuance of said application contained this provision: “If any of the statements or declarations made in the application for this policy, upon the faith of which this policy is issued, shall be found in any respect untrue, then and in every such case this policy shall be null and void.” It is unnecessary to discuss the question as to whether the declarations of the insured as to existing facts in his application, constitute a warranty. The authorities are by no means uniform upon this point. Our own recent case of the Washington Life Insurance Co. v. Schaible, 1 W. N. C. 369, holds that they do not constitute such warranty. Where, however, the policy has "been issued upon the faith of such representations, and they are false in point of fact, the better opinion seems to be that the policy is avoided. And this is so even where the false statement is to a matter not material to the risk: Jeffries v. The Life Insurance Co., 22 Wallace 47. In such case the agreement is that if the statements are false, there is no insurance; no policy is made by the company, and no policy is accepted by the insured. In the case in hand the policy attached. There was nothing to avoid it ab initio. Were the mere declarations by the insured in his application, as to his future intentions, and his failure to carry out his declarations, or to comply with his intentions as to his future conduct, sufficient to work subsequent forfeiture of the policy ? In no part of the application did the assured covenant that he would not practise any pernicious habit. Nor did he promise, agree or warrant not to do so. He declared that he would not. To declare, is to state; to assert; to publish; to utter; to announce; to announce clearly Some opinion or resolution ; while to promise is to agree; “ to pledge one’s self; to engage; to assure or make sure; to pledge by contract.” — Worcester. There is no clause in the policy which provides that if the assured shall practise any pernicious habit tending to shorten life, the policy shall ipso facto become void. There is only the stipulation that, “ if any of the statements or declarations made in the application * * * shall be found in any respect untrue, this policy shall be null and void.” This evidently referred to a state of things existing at the time the policy was issued. As to such matters, as I have already said, there was no untrue statement. But the assured declared, as a matter of intention, that he' would not practise any pernicious habit. Was this declaration of future intention false ? There is no allegation, much less proof, that it was so. The assured might well have intended to adhere to his declaration in the most perfect good faith, yet in a moment of temptation have been overcome by this insidious enemy. In the absence of any clause in the policy avoiding it in case the assured should practise any such habit, and of any covenant or warranty on his part that he would not do so, we do not think his mere declaration to that effect in the application sufficient to avoid the policy.

The judgment is reversed, and judgment is now entered in favor of the plaintiff and against the defendant for the sum of $1500, with interest from June 26th 1876.

Mr. Justice Trunkey dissented.


author: Mr. Justice Trunkby

text:
    Lehigh Valley Railroad Co. versus McKeen.
    1. Sparks were thrown from an engine of a railroad company, to a point on land adjoining the plaintiff’s, about three hundred feet from a lumber pile, belonging to the plaintiff. The sparks set fire to combustible materials, consisting of leaves, briars, brush, stumps and logs, burning the same in its pathway, until it reached the plaintiff’s lumber. The weather was dry and a high wind was blowing in the direction of the property destroyed. The fire reached the lumber about two hours after it started, and could not be extinguished by any effort. In a suit for the loss, there was evidence on the part of defendant company tending to another theory as to the origin and extent of the fire. Held, that it was properly left to the jury to determine whether the negligence of defendant was the proximate or remote cause of the injury. Pennsylvania Railroad Co. v. Hope, 30 P. F. Smith 373, followed.
    2. There was evidence on the part of plaintiff, that the sparks emitted from the engine on the day of the fire were of unusual size. The defendant gave evidence to show, that the engine was supplied with the most approved spark-arrester, and asked the court to charge that there was no proof of any want of care in the working of the engine, which the court refused. Held, that the question of negligence was one of fact and properly left to the jury.
    April 2d 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterreti, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas of Northampton county: Of July Term 1878, No. 83.
    Case by Thomas L. McKeen against the Lehigh Yalley Railroad Company, for setting on fire and destroying plaintiff’s lumber, which plaintiff alleged was caused by the negligence of defendant.
    On the 4th of May 1870, the lumber in question was piled between the track of the Lehigh and Susquehanna Railroad and defendant’s road, at a point about one mile above White Haven, Luzerne county. The strip of land between said tracks, containing about three acres, on a portion of which this lumber was piled, belonged to the plaintiff. About one o’clock, or thereabouts, on the afternoon of the above-mentioned day, the lumber caught fire from some cause or other, and was totally destroyed. The allegation of the plaintiff was that between 12 and 1 o’clock v. M., a coal train drawn by engine No. 133, going northward on defendant’s road, passed the place where the lumber was piled; that the engine threw sparks of fire, which set fire to the brush, leaves, rubbish, and other combustible materials on both sides of the track; that the fire was transmitted to brush, leaves, briars, stumps, logs, -and other combustible materials on plaintiff’s land and from thence to his lumber; that every effort was made to extinguish the fire before it reached the lumber, but that they proved ineffectual owing to the high wind.
    Several witnesses testified that they had observed the character of the sparks thrown out by the engine in question both on the day of the fire and for sometime before; that the sparks were of unusual size, and that at different times they had set fire to boards, straw, a house and other combustible materials. Witnesses testified for the defendant that the -engine did not throw out sparks of the character described; that on the day of the fire the engine had a spark-arrester of the most improved kind, and that it was in good ' condition; that trains of the Lehigh and Susquehanna Railroad passed on that road near to the plaintiff’s lumber ; that on the day of the fire and for several days previous, there was fire in the stumps, brush and other combustible material in the immediate vicinity of the lumber pile, from some of which fires the lumber might have caught, especially as there was a strong wind blowing at the time and in the direction of the lumber pile.
    The defendant, inter alia, submitted the following points, to which are appended the answers of the court:
    4. There being no proof of any want of care on the part of the defendant in the character of the spark-arrester used on the locomotive which is alleged to have caused the fire that destroyed the plaintiff’s lumber, or that there was any want of care and vigilance in running the train, there can be no recovery in this action.
    Ans. “This point we cannot affirm. To do so we would have to take the case from the jury and direct a verdict in favor of the defendant. The concluding clause in the point is substantially correct, as there is little, if any, evidence that there was any want of care and vigilance in running the train at the time of the fire, but we cannot say, as alleged in the remaining part of the point, that there is no proof of any want of care on the part of the defendant in the character of the spark-arrester used in the locomotive which is alleged to have caused the fire that destroyed the plaintiff’s lumber, or that it was in a defective condition at the time of the fire. The proof submitted by the plaintiff bearing on the said questions of fact is of such a - character as to entitle it to be considered by the jury, whose province it is to determine said questions of fact from all the evidence in the case.” (Second assignment of error.)
    8. It is the undisputed fact that the plaintiff’s lumber was not fired by sparks from defendant’s locomotive coming in direct contact with it; it is also the undisputed fact that the fire originated on the land of another, from which it was transmitted to combustible material on the land of the plaintiff, from which latter material it was communicated to plaintiff’s lumber under the influence of an unusually high wind; in these circumstances the maxim causa próxima non remota peetatur becomes applicable, and the plaintiff cannot recover.
    Ans. “If the jury find that some combustible, material, though on the lands of another, were in the first instance set on fire by sparks or burning coal from defendant’s locomotive, and the. fire was transmitted to other combustible materials on lands of the plaintiff and by means .of the latter materials to the plaintiff’s lumber, in such case the jury must determine whether such facts constitute a continuous succession of events so linked together as to be a natural whole or whether the chain is so broken as to become independent, and the final result, to wit, the burning of plaintiff’s lumber cannot be said to be the natural and probable conseqenuce of the setting on fire the combustible materials in the first instance by the sparks or burning coal from defendant’s locomotive. The rule for determining what is.proximate cause is, that the injury must be the natural and probable consequence of the act in the first instance, and that it might and ought to have been foreseen under the circumstances.” (Fifth assignment.)
    10. Under all the testimony in the case there is not sufficient evidence to prove that the engine of the defendant occasioned the fire which destroyed the plaintiff’s lumber, and that it was by reason of any negligence on the part of the defendant, and, therefore, the verdict must be for the defendant.
    Ans. “Refused.” (Seventh assignment.)
    8. The court erred in answering as they did the defendant’s eleventh point, which was as follows:
    11. Under all the evidence in the cause the verdict must be for the defendant.
    Ans. “ Refused.” (Eighth assignment.)
    In the general charge, the court, Meyers, P. J., inter alia, said:
    “ The allegation of the plaintiff is that the sparks of fire thrown from the engine set fire to the combustible materials alongside of the defendant’s road on land adjoining the plaintiff’s strip of land on which the lumber was piled; that the fire was then transmitted to combustible materials, such as leaves, briars, brush, stumps and logs on said strip of land and by the force of a high wind to his lumber. The defendant contends that under such circumstances and conditions the throwing of sparks of fire by the engine was not the immediate or proximate cause of the injury to the plaintiff’s lumber. This is a question of fact for you.” (Ninth assignment.)
    Verdict for plaintiff for $9609.20. After judgment, defendant took this writ, among its assignments of error being those above noted.

      II. Green, for plaintiff in error.
    A former suit, which was brought for this same injury by the same plaintiff against the defendant, had been abandoned in consequence of the ruling of this court in the case of Railroad Co. v. Kerr, 12 P. F. Smith 353. That case was decided in 1869 and reported in 1870. Subsequently the case of Railroad Co. v. Hope, 30 P. F. Smith 373, was decided in 1876, and when it was made public and just before the Statute of Limitations would have become a bar, the present suit was brought with the expectation of getting the case to the jury under the doctrine supposed to be held in that case, that the jury and not the court must decide whether the cause of the injury was remote or proximate. At the time of the trial of the present case in April 1878, the case of Hoag v. The Lake Shore and Michigan Southern Railroad Co., 4 Norris 293, was not reported, and was not known to the court below, and consequently the disposition of the main question at issue was made conformable to what was the apparent, and the supposed, doctrine of the case of Railroad Co. v. Hope; that is, the question of remoteness or proximity was referred as a question of fact to the jury.
    Nevertheless it was contended for the defendant that where the facts were undisputed it was the duty of the court to pass upon them and determine the question without referring it to the jury ; and the ground was taken that in this case the facts were undisputed upon which the plaintiff claimed to recover, so far as this question was concerned, and that they constituted a clear case of remote cause, and, therefore, there could be no recovery.
    The undisputed facts of the present case bring it fully within the principles of Railroad Co. v. Kerr, supra, and Hoag v. Railroad Co., supra. The fire did not directly communicate to anything on the land of the plaintiff. Some worthless material on the land of another was first ignited. It was then blown to other dry material on plaintiff’s land, and was thus communicated to the lumber pile.
    It so happens that, in the case at bar, each element which controlled the question of remoteness in the two cases cited, existed. Thus, the proximate cause of the fire which destroyed the plaintiff’s lumber was not the sparks which were emitted from defendant’s engine, but sparks which were produced by logs, stumps and brushes burning on the plaintiff’s land, where the fire did not originate, and which were carried by the air over a cleared space of eighteen or twenty feet in width to the plaintiff’s lumber. In other words, there were two intervening agencies between the sparks and the lumber. In fact there were three : 1. The fire w'as not communicated by our engine to any property of the plaintiff. It commenced on the land of another and burned substances on those premises. 2. The fire thus created was carried by the force of an extraordinarily high wind over on the plaintiff’s land, and there set fire to other material on his land. 8. This latter material being in combustion, the sparks were carried by the same high wind over a cleared space of ground, and deposited on the plaintiff’s lumber. So that the actual cause of the fire that destroyed the lumber was three degrees removed, as to the material, intervening substance, and one degree removed as to the means by which the fire was carried before it reached the lumber.
    If the defendant used ordinary skill in procuring a good and safe spark-catcher, such as are most in use and approved by. experienced railroad operators and mechanics, it is not responsible for damage resulting from the emission of sparks: Frankford and Bristol Turnpike Co. v. Philadelphia and Trenton Railroad Co., 4 P. F. Smith 345; Philadelphia and Reading Railroad Co. v. Yerger, 23 Id. 121. The operation of this rule cannot be avoided by vague testimony as to the emission of sparks by an engine. The proof must be direct as to the existence of some defect in the apparatus used to check the emission of sparks.

      Edward J. Fox and John L. Wilson, for defendant in error.—
    Were the jury, under the evidence, warranted in finding that coals from this engine were the approximate cause of the fire ? Or would the court have been warranted in saying that the facts sworn to by them demonstrated that coals from this engine were not the proximate cause of the fire? The case of Iloag v. Railroad Co., supra, recognises the principle as a correct one, that where the probable consequences of a negligent act would be the destruction of another’s property, the party guilty of the negligence is responsible. In that case there was plainly no negligence on the part of the railroad company. No amount of foresight or precaution in running a train would have enabled an engineer to foresee that a landslide which occurred only ten minutes before would throw the train off, and that the disastrous consequences would result which did follow. 'It was a case of an accident not caused by the railroad company’s negligence, and they were very properly absolved from liability.
    The company contended that the injury was too remote from the original cause, but this court agreed with the court below that the “ question of proximity was one of fact peculiarly for the jury.” In the opinion the principles laid down are not in conflict with the principles asserted in Railroad Co. v. Kerr, or in Hoag v. Railroad Co., but are in harmony with these cases, with the well-considered statements of the treatises from which we have quoted and with the well-settled doctrine of leading cases in other states. Six of the judges were on the bench when the Hope case and the Hoag case were decided, and five of those who decided the Hope case concurred in the decision of the Hoag case. There was do dissent in either case. And yet the plaintiff in error treats the Hope case and its principles as being overruled. We see no warrant for such an assumption. The two cases differed widely in their facts and in their merits, and as the court remarked in the opinion in the Hope ease, “Every case must depend upon its own circumstances.”
    The plaintiff in error complains that the court admitted testimony to show that the engine could not have had proper appliances to prevent the scattering of coals of fire, and that, the testimony offered was entirely insufficient to overcome that offered by the company that the engine had the most approved pattern of spark-arrester and that it was in perfect order. Surely this was a question of fact foi: the jury.
    May 5th 1879.
   Mr. Justice Trunkby

delivered the opinion of the court,

However severe animadversions, sometimes made upon juries, the courts are bound to conserve their rights in the trial of causes. The organic law secures to the people trial by jury, as it was at common law, and nothing is more offensive in the administration of justice than for the judge to usurp the disposition of facts. Where there is no evidence of a disputed fact, or a mere scintilla, the question shall not be submitted; but where there is sufficient evidence to warrant its finding, it must be, and its determination is exclusively fór the jury. If a fact, in the opinion of the judge, be proved by clear and uncontradicted oral testimony, he may advise, not command, the jury to find it. They may disbelieve the witnesses, though he credits them, and they may understand the testimony differently from him. When a fact, essential to the maintenance of a cause, is not established by proof, the judge may order a nonsuit, or direct a verdict for defendant; and when the' requisite facts are agreed upon, or admitted, he may instruct a finding for plaintiff. These trite principles, called to mind by the liné of argument, seem to have been remembered by the learned judge, and they forbid reversal in absence of error in his rulings upon legal questions. If, indeed, it be'true that a prejudice exists affecting jurors in a class of cases, elsewhere, it might be profitable to inquire into the causes and of the means for its removal.

The chief complaint in this cause is, “ the question of remoteness or proximity was referred as a question of fact to the jury.” How it could have been otherwise, without disregarding the authority of Pennsylvania Railroad Co. v. Hope, 30 P. F. Smith 373, is difficult to comprehend. There the fire was dropped on a cross-tie of the track, “ and running into a small heap of dry grass that had been cut and pulled and thrown into a pile, in the fall before, was carried thence by means of rubbish and dry grass on the company’s ground, across the roadway to the fence, which was fired, and thence across two grass fields, burning the dry grass in its pathway, until it reached the plaintiff’s fence and woodland, about six hundred feet from the railroad, burning the fence and a large part of the woods. The weather was dry and windy, and the direction of the wind was strongly toward the plaintiff’s fields and woods.” Here, the sparks were thrown from the engine to a point alongside of the defendant’s track, on land adjoining the plaintiff’s, about three hundred feet from the lumber, set fire to combustible materials, consisting of leaves, briers, brush, stumps and logs, burning the same in its pathway till it reached the plaintiff’s lumber. The weather was dry and a high wind was in the direction of the property destroyed. There, the sparks fell on the track and were communicated to the adjoining land by the dry grass, negligently left by the company on its roadway. Here, the sparks were thrown into the combustibles on the adjoining land. The fire, reaching the combustibles on the land, was as sure to destroy in one case as the other. It was held 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, v'hich 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 continuous 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 defendant. The rule concerning involuntary negligence, as distinguished from wanton or intentional injury, is expressed in the maxim, causa próxima non remota spectatur.

* * In all or nearly all cases, the rule for determining what is a proximate cause is, that the injury must be the natural and probable consequence of the negligence, and that this might and ought to have been foreseen under the surrounding circumstances. These are the circumstances of the particular case, and from the nature of the thing must be referred to the jury.” Per Agnew, C. J.

The portion of the charge, alleged erroneous in the ninth assignment, immediately preceded the reading of the matter set forth in the fifth assignment, and placed in its proper order in the instructions to the jury) accords with the doctrine in Hope’s case, and is nearly in the words there used. To have affirmed defendant’s eighth point would have annulled that decision. The facts were not agreed upon nor admitted, and their finding was exclusively for the jury. Had the defendant added to those stated in the point, another fact, namely, that the fire was transmitted by a continuous burning of the leaves and brush, from the point of its origin to the lumber, the natural and probable consequence of defendant’s, negligence, the jury might properly have been told that, upon such facts, the cause was proximate and plaintiffs could recover. Or, instead, had it been added that there was no continuous burning and the destruction of the lumber was not a natural result of setting fire to the leaves and brush, then upon such facts, it could well have been affirmed that the maxim applied and the verdict must be for defendant. A jury of the vicinage would understand the witnesses and know quite as well how that fire would run in the dry leaves and brush, on a windy day, as a judge learned in the law. Likely not one would hesitate in believing there was no real break in the fire, from its starting point to the lumber, or that if it got within eighteen or twenty feet of the lumber, the latter would burn. They could also determine whether dry weather and high winds, in the spring-time, are extraordinary; and whether, under these conditions, the continuous succession of events was such that the cause was naturally linked to the injury, and within the probable foresight of him whose negligence ran through from the beginning to the end.

It is contended that Hoag & Alger v. L. S. & M. S. Railroad Co., 4 Norris 293, in effect overrules thé doctrine in Railroad Co. v. Hope, and fully sustains and approves the ruling in Pennsylvania Railroad Co. v. Kerr, 12 P. F. Smith 353. The opinion of the late chief justice, in Hope’s case, shows the marked distinction between that and Kerr’s, and that the latter, upon its own facts, was unshaken. If the case of Hoag & Alger seems to support the one rather than the other, it is because of the greater similarity of facts.

In Hoag & Alger v. The Railroad Co., the plaintiffs adduced the evidence upon which they framed their third point, praying instructions that if the jury believed the facts as therein stated, they were entitled to recover. The defendant conceded the facts, and the jury were told that upon the facts in evidence, or as assumed in the plaintiff’s third point, their verdict should be for defendant. Had the facts not been virtually admitted the instruction would have been bald error; and so held this court. Paxson, J., after referring to, and quoting at some length from Railroad Co. v. Hope, without a word of qualification or abatement of its force, says: “ But it has never been 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. * * * We may therefore regard the plaintiff’s third point as a prayer for instructions upon the undisputed facts of the case.” It thus appears that the authority of The Railroad Co. v. Hope is in nowise shaken by the decision in a case where the plaintiffs- complained that the facts were not submitted which they themselves assumed to be true. Had the opposite party denied they were a full and fair statement and the case had come on his complaint, the situation would have been altogether different. Or had the assumed facts been in dispute, and the' point refused therefor, neither party could complain.

In that case the ignited oil ran down the bank into the river and was carried down the current, top of the water, till consumed. On its way it set fire to the plaintiff’s property. The water bearing it was an intervening agent, as would be the hand bearing a lighted torch. This court stated the rule for determining what is proximate cause, and said: “It would be unreasonable to hold that the engineer of the train could have anticipated the burning of the plaintiff’s property as a consequence likely to flow from his negligence in not looking out and seeing the land-slide.” “It is manifest that the negligence was the remote and not the proximate cause of burning the plaintiff’s building.” Not so, was it held where fire was negligently communicated to dry grass and fences, in which the fire spread as it consumed, and was speeded in its progress by a strong wind. In the latter, the question of proximity was one of fact- for the jury, who must determine whether the injury was 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. What would be more quickly apprehended, by one setting fire to dry leaves and brush, than that it would run before the wind and consume property in its pathway ?

There is no error in the answer to the defendant’s fourth point: besides in the general charge, on this matter, the -court called attention to the testimony in a manner which ought to be entirely satisfactory.

An examination of the testimony has convinced us that the defendant’s tenth and eleventh points were rightly refused. The plaintiff’s, if believed, standing alone, would justify a verdict in his favor, and, consequently, the court was bound to submit the questions of fact to the jury, no matter how strong the defendant’s counter proofs. It would be idle to refer to the testimony of each witness in detail.

The third, fourth, sixth and tenth assignments were not pressed, for the declared reason, that it is now settled that it is not contributory negligence in’ the owner to leave combustible material on his land near a railway track: Philadelphia & Reading Railroad Co. v. Hendrickson, 30 P. F. Smith 182.

The numerous points were fairly answered, and the instructions so full that there is no complaint of omission to charge on any question which was raised at the trial.

Judgment affirmed.


author: Per Curiam.

text:
    Davis’s Appeal.
    1. A mere surrender of his property, contemplated by the insolvent laws, does not entitle a person in confinement for deserting his wife and children to his discharge ; he must satisfy the conscience of the court, after an actual confinement of, three months, of his inability to comply with the order of the court and give security.
    2. The Act of April 15th 1869, was intended to furnish a different remedy for the relief of a person committed, instead of an additional one to that provided by the insolvent laws.
    April 2d 1879.
    Before Shape wood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Appeal from the Court of Common Pleas of Northampton county : Of January Term 1879, No. 39.
    Appeal of Edward H. Davis from the decree of the court dismissing his petition for the benefit of the insolvent laws.
    , Edward II. Davis,' the appellant, was committed to the jail of Northampton county on the 6th of May 1878, in default of giving security to comply with the order of the Court of Quarter Sessions of Northampton county, to pay a fine of <$ 1 to the Commonwealth for the use of the court, and to pay the sum of $4 per week for the support and maintenance of his wife and child, and the costs of prosecution, upon a complaint made under the 2d section of the Act of April 13th 1867.
    After he had been confined in the jail for three months, he made application to the Court of Common Pleas for his discharge, and gave bond to appear and present his petition at the next term for the benefit of the insolvent laws. He was therefore discharged from imprisonment by the court. At the next term, August 12th 1878, he presented his petition for the benefit of the insolvent laws, gave bond, and a time was fixed for the hearing. After hearing, the court, Meyers, P. J., refused to discharge him, in an opinion, saying:
    “ Edward H. Davis was committed to prison by the Court of Quarter Sessions, in default of giving security to comply with the order of said court, in a proceeding for the support and maintenance of his wife and children, under the 2d section of the Act of April 13th 1867. After an actual confinement in prison for three months, Davis made application for his discharge under the insolvent laws, and on his final petition, objection was made to his discharge on two grounds, viz.: 1. That the court has no jurisdiction to grant relief to persons in confinement under a sentence or order of a criminal court, except in the cases provided for by the 47th section of the Act of June 16th 1836. 2. That this application is not within the provisions of the 2d section of the same act, conferring jurisdiction in cases of insolvency.
    “ That Davis is not entitled to relief under the 47th section, is clear, as such relief is limited by said section to a person in confinement under a sentence or order, ‘ until he restore any stolen goods or chattels, or pay the value thereof; or in which any person may be confined for non-payment of any fine, or of the costs of prosecution ; or upon conviction of fornication and bastardy.’
    “ By the 1st section of the Act of March 26th 1814, every person was entitled to relief as an insolvent debtor, ‘ who shall be in actual confinement on mesne or final process for the recovery of money or damages, or who shall be confined for the non-performance of any decree or sentence for the payment of money.’ Under the act it was held, in the case of Greorge Texas, 1 Ash. 179, ‘that a person committed by the order of the Court of Quarter Sessions until he shall comply with a sentence directing him to pay weekly a certain sum of money for the support of his wife and child, and to give security for the performance of the order, is entitled to his discharge under the insolvent laws.’
    “The language of the clause in the 2d section of the Act of June 16th 1836, relative to insolvent debtors, differs very little from that in the 1st section of the Act of 1814. . The 2d section of the Act of 1836 confers jurisdiction in the case ‘of a person arrested or detained by virtue of any process issued in any civil suit or proceeding for the recovery of money or damages, or for the non performance of any decree or sentence for the payment of money.’
    “ The objection made to the discharge of Texas was that, in addition to the decree or sentence for the payment of money, the petitioner was required to do a collateral act, viz., to give security for his future performance of the sentence of the court. ' ‘ This incident,’ says Judge King, ‘cannot vary the nature of the principal obligation, as to make that a criminal offence which, without it, was but a pecuniary obligation.’
    “ In support of the position taken by Judge King, he relies upon the analogous case of a confinement under a sentence for fornication and bastardy, in which Judge Rush, as early as 1816, discharged McCulloch under the insolvent laws, though the act expressly extending the provision of the insolvent laws to such cases was not passed until the 11th of April 1826. Assuming that the court had jurisdiction under the insolvent laws prior to April 15th 1869, in a ease like the one under consideration, we are, however, met by the act of that date, which provides, ‘ that whenever the Court of Quarter Sessions of any county in the Commonwealth shall, under the 2d section of the act to which this is a supplement, commit the person complained of to the county prison, there to remain until he comply with their order or give security, &c., it shall be lawful for the said court, at any time after three months, if they shall be' satisfied of the inability of such person to comply with the said order and give such security to discharge him from imprisonment.’
    “It would seem, therefore, that the Act of 1869 intended to furnish a different remedy for his relief, instead of an additional one to that provided by the insolvent laws. While the act is entitled ‘ A supplement to the act for the relief of wives deserted by their husbands, in the county of Lancaster and other counties, approved the 27th day of February 1877,’ it was held in Keller v. Commonwealth, 21 P. F. Smith 413, that this act was intended as a supplement to the general act relative to desertions by husbands, &c., passed April 13th 1867. In proceedings for relief under the insolvent laws, the applicant is required, inter alia, to execute an assignment of all his estate, property and effects, &c., but under no circumstances is he required to satisfy the court in a case like this of his inability to comply with the order of the court and give such security.
    “ When the Act of 1869 was passed, the legislature must have intended that a mere surrender of his property, contemplated by the insolvent laws, ought not to entitle a person in confinement for deserting his wife and children to his discharge] hut that he should be required to satisfy the conscience of the court, after an actual confinement of three months, of his inability to comply with the order of the court and give such security.
    “ A person having little or no property, without the slightest inconvenience to himself, might procure his discharge under the insolvent laws; yet he might be in a position, by reason of his employment, social relations or otherwise, to be able to obtain the required security to comply with the order of the court. Under such circumstances, it seems reasonable that a person ought not to escape performance of his duty to support his wife and children, to prevent which I have no doubt was intended to be accomplished by the Act of 1869. For these reasons, the discharge of Edward H. Davis is withheld. Being of opinion, therefore, that the petitioner is not entitled to his discharge under the insolvent laws of this Commonwealth, we hereby order and decree that the petitioner’s application for discharge be dismissed.”
    Davis took this appeal, and alleged that the court erred in dismissing the petition and refusing to discharge him.

      Fdward J. Fox, for appellant.
    The petitioner was entitled to the relief afforded by the insolvent law, and to his discharge as an insolvent debtor. He was within the provisions of sect. 2, of the Act of 16th June 1836. He was “detained” “for the non-performance of a sentence for the payment of money.” In George Texas’s Case, 1 Ash. 175, Judge King says: “ If George Texas is in confinement under a decree or sentence for the payment of money,’ he is entitled to the relief he asks for.” And Judge King decided that he was entitled to his discharge under the insolvent laws. This decision was under the Insolvent Act of 1814. The language of that act is precisely similar to that used in the second section of the Act of 1836, viz.: “for the non-performance of any decree or sentence for the payment of money.”
    Davis was entitled to his discharge from imprisonment after a confinement of three months, because he was “confined for the nonpayment of a fine and the costs of prosecution.” He was sentenced to pay a fine of $1 and the costs of prosecution. But the court Says, that although he was within the provisions of the Insolvent Law, yet “ when the Act of 1869 was passed, the legislature must have intended, that a mere surrender of his property contemplated by the insolvent laws ought not to entitle a person in confinement for deserting his wife and children to his discharge.”
    The intent of the legislature must be gathered from the plain meaning of the statute, and if there is nothing in the Act of 1869 taking away the right of a person in confinement under a sentence for the payment of money to his discharge under the insolvent laws, the right to a discharge still remains. There is no repeal of the Act of 1836 in express words by the Act of 1869. That is not pretended. Then it must be a repeal by implication. “ A statute will not be deemed to be repealed by implication, unless there be a clear and strong inconsistency between the two enactments:” Street v. Commonwealth, 6 W. & S. 209; Cohen v. Commonwealth, 6 Barr 111; Commonwealth v. Easton Bank, 10 Barr 442; Egypt v. Street, 2 Grant 455.

      O. M. Anstett, District Attorney, and Henry W. Seott, contra.

    —The sixth section of the Insolvent Law of January 29th 1820, which the Criminal Insolvency of 1836 was intended to embrace, is in the following words: “The provisions of this act shall not extend to discharge or relieve any defendant from any fine whatsoever set or imposed in any criminal prosecution.” Therefore the precedent of Judge Rush in 1816, cited in the Texas case, was not authority then; for the offence of fornication was indictable and punishable under the Act of 1705, as a criminal offence: 1 Sm. Laws, p. 27.
    The Act of April 15th 1869, in its preamble is said to be a supplement to a special act; but in Keller v. Commonwealth, 21 P. F. Smith 413, it was held to be supplementary to the general Act of 1867. If a defendant was not entitled to his discharge previous to the passage of this law, its provisions were intended for his similar relief. If he was entitled to discharge under the insolvent laws, this act *puts a further restriction upon his escape from a plain legal and moral duty.
   Per Curiam.

The order of the court below refusing to discharge the appellant as an insolvent debtor is affirmed, upon the opinion of the learned president judge. No point has been made as to the jurisdiction of the court to review the order complained of, either by appeal or certiorari, and we give no opinion on that question. In re Fletterer’s Petition, 2 W. N. C. 650.

Order affirmed.


author: ' Mr. Justice Sterrett Sharswood, C. J., Paxson and Woodward, JJ.,

text:
    Delaware, Lackawanna and Western Railroad Co. versus Napheys
    1. While it is the duty of a railroad company to provide safe and convenient means of ingress and egress to and from the cars, it is equally the duty of passengers to use the means thus provided with reasonable circumspection and care.
    2. 1'he general rule is, that one who alleges negligence as the basis of a claim for damages, is bound to prove the fact alleged and the extent of the injury, if more than nominal damages are claimed ; but in some cases, slight proof only is required to justify a presumption of negligence.
    3. If a passenger seated in a railroad car is injured by a collision, or by a defect in any part of the machinery, a prima facie case of negligence is established, and the onus of disproving it is cast upon the company.
    4. Where a train has come to a stop and a passenger, on stepping from the lowest step of the platform of the ears to the ground, fractures her kneecap, without any apparent external cause, no presumption of negligence is raised.
    April 2d 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    •Error to the court of Common Pleas of Monroe county: Of July Term 1878. No. 149.
    Trespass on the case by George D. Napheys and wife against the Delaware, Lackawanna and Western Railroad Company, to recover damages for injuries to the wife of plaintiff, alleged to have been caused by the negligence of defendant. The facts were, in substance as follows: The plaintiff and his wife were passengers on a train of defendants. The train was destined for Stroudsburg, where it arrived in safety. Mrs. Napheys was assisted by her husband to alight from the car. On stepping down from the lowest step of the car platform, she advanced her left foot first to the ground, leaning her right foot upon the step and while in that position, without any apparent cause, her right knee-cap snapped and was fractured. There was no slipping or stumbling, or any external injury by a blow or force of any kind. In consequence of the injury Mrs. Napheys was confined to the house for about a year, suffering much pain, and the injured limb was permanently weakened. On the part of the defendant there was evidence that prior to the accident Mrs. Napheys had dislocated the knee-cap of her left knee while walking on the street; that she was confined to the house for several weeks by reason of the injury; that she was lame for some time thereafter, and that at the time of the injury at Stroudsburg, she was still wearing an elastic knee-cap over the left knee under the advice of her physician. Much testimony was given by defendant showing that the height of the lower step of the platform was not greater than that of the platforms of the cars in use by the principal railroads in the United States, and not so great as those used on several roads. The evidence, which was not contradicted, showed that the height from the top of the lower step to the rail was sixteen inches, and to the ground where Mrs. Napheys alighted not more than twenty-one inches, and probably not more than nineteen. A number of railroad conductors and ticket agents on other roads, were examined, who testified that a distance of twenty-one inches to step from the cars was a perfectly safe distance for travellers to descend; that elevated platforms, especially platforms between tracks, were more dangerous than no platforms at all, and were being removed from all the principal roads. They testified also that the steps ordinarily in use varied from nineteen to twenty-six inches to the ground, and that although they had car.ried and delivered many millions of passengers they never knew of a single instance in which the fracture of a knee-pan or any other injury occurred by stepping from the cars they were running. It was in evidence also that many- thousands of passengers had alighted at this very station and from the defendant’s own cars without a single accident of any description to the passengers. And further, that after this occurrence the defendant adopted a new style of platform, called the Miller platform, which is four to six inches higher from its lowest step to the ground than that of the car from which Mrs. Napheys stepped, and that this platform was still in use, and not a single accident had ever happened to any passenger alighting therefrom. The train on which the plaintiffs rode was a northern bound train, and it was shown that all northern bound trains passed the Stroudsburg station on the outer track, which was furthest from the depot, and that ten thousand persons annually alight from northern bound trains at the place, where Mrs. Napheys alighted, without a single accident 'having occurred. The defendant also called carriage-makers, livery-stable keepers, and others, who testified that the height of the step from carriages, omnibusses, farm-wagons, and other similar vehicles was from eighteen to twenty-four inches, and that no such accident had been known to happen to any person descending therefrom.
    In rebuttal, the plaintiff gave evidence to show that the height, from the step to the ground, was from twenty-five to twenty-nine inches.
    The plaintiff presented the following points, to which are appended the answers of the court:
    1. The defendant was not only bound to convey Mrs. Napheys safely to her destination, but to furnish her with a safe and convenient means of leaving the car, if human foresight and prudence could so provide, and in determining what is a safe and convenient mode of egress • the criterion is not what is the custom on other roads, nor how much strain other people have sustained in various ways without injury, but what did the safety and convenience of Mrs. Napheys require.
    Ans. “The first clause of this point is affirmed. As to the second clause, while the custom on other roads, or the amount of strain other people have sustained, are not the criterion by which to determine what is a safe and convenient mode of egress, in this particular case, yet such custom of other roads is evidence for the jury to consider in passing .upon the question of negligence of the defendant in the case trying.” (First assignment of error.)
    2. A carrier of passengers is bound to the utmost degree of care and prudence in providing means of egress from its cars. Any want of such care and prudence renders the company liable to respond in damages for an injury resulting therefrom.
    Ans. “ Affirmed.” (Second assignment.)
    3. That the defendants, as carriers, are bound to give secure access to, and egress from, their passenger cars, so that a passenger carefully descending from the cars may do so in safety, and if the jury believe that the height from the lower step of the car to the ground was so great that Mrs. Napheys, in attempting to descend with reasonable care, fractured her knee-cap in consequence of the height of the step, the defendant is liable for such damages as were sustained by the plaintiff in consequence of the injury.
    Ans. “Affirmed.” (Third assignment.)
    4. The proof in the case being uncontradicted that Mrs. Napheys, without any negligence on her part, received an injury in descending from the cars of the defendant, it raises the presumption prima facie that the defendant was guilty of negligence and the burden of proof is upon the defendant to show that it was not guilty of negligence.
    Ans. “ Negatired, for the reason that I cannot say that the evidence as to the negligence is uncontradicted.” (Fourth assignment.)
    5. If the jury believe that Mrs. Napheys, without any negligence on her part, received an injury in descending from the cars of the defendants, the defendants were, prima facie, guilty of negligence and the burden of proof is upon them to show that they were not guilty of negligence.
    Ans. “Affirmed.” (Fifth assignment).
    Among defendant’s points was the following, with the answer of the court thereto:
    6. If Mrs. Napheys was subject to any peculiar condition of the bones or body, which rendered her more liable to bony fracture than the generality of persons, the defendant was under no obligation to construct their cars or platforms with reference to such abnormal condition, and if the injury of Mrs. Napheys was produced in consequence of that condition, the defendant is not responsible for such result, and in that event there can be no recovery in this action.
    Ans. “ I cannot affirm this point. While I can assent to the first part of the proposition, I cannot affirm it as a whole, for the reason that though the facts should be as stated in the first clause, and that the accident would not have happened if she had not been in such condition of bones or body, yet the liability of the company depends upon the question of negligence, under the evidence and all the circumstances of the case.” (Sixth assignment.)
    In the general charge the court, Dreher, P. J., inter alia, said:
    “ Railroads for carrying passengers are not constructed for a particular class or size of persons. Large and small, lean and fleshy persons, those of large and those of small muscles and different temperaments, may travel, and railroad companies in constructing their roads and means of access to and egress from their cars are presumed to know that all such persons will travel on their road.” (Eighth assignment.)
    “It was argued, in behalf of the plaintiffs, that the injury to Mrs. Napheys occurred in consequence of the step to the platform of the car being too high from the ground. On the other hand, it is alleged by the defendant that the step was no higher than those in use by many other railroads, and not so high as some other companies use, and that the accident did. not result from any unusual height of the step. . The evidence upon the question of negligence •of the company, as respects the height of the step, is for the jury, and, in passing upon this question, you are to take into consideration the height of the steps in use by other railroad companies. The question is, whether the accident occurred from the negligence of the company alone. If it did, then the defendant is liable.. (Eleventh assignment.)
    “ In the case of Mrs. Napheys, that is, the suit in which she and her husband are joint plaintiffs for her use, the law has no fixed rule for assessment of damages. You should allow her such reasonable damages as under all the circumstances you may think she is entitled to, for the pain and suffering endured by her in consequence of the injury.” (Fourteenth assignment.)
    The verdict was for plaintiff for $2000. The defendant took this writ, among its assignments of error being those above noted, and that the court erred in not making an adequate presentation to the jury of the facts of the case, and in not explaining to them the meaning of negligence and contributory negligence as applicable to the circumstances of the case.

      William Davis, W. H. Jessup and Henry Green, for plaintiff in error.
    The control of the defendant over the person and movements of the plaintiff ceased when the train reached its destination and the further act of leaving the car was that of the defendant alone. Their height of steps which general experience demonstrates as being safe and secure for persons to alight from,' ought to be the criterion by which the rule of duty should be determined, as a railroad is only bound to give a reasonable opportunity to alight in safety: Fairmount and Arch Street Railway Co. v. Stutler, 4 P. F. Smith 375; Johnson v. West Chester and Philadelphia Railroad Co., 20 Id. 357; Empire Transportation Co. v. Wamsutta Oil Refining and Mining Co., 13 Id. 14; Meier v. Pennsylvania Railroad Co., 14 Id. 225; Pittsburgh and Connellsville Railroad Co. v. McClurg, 6 Id. 294.
    The practical meaning of the instruction of the court was, that if all other human beings were able to descend from the steps of our car without fracturing a knee-cap, nevertheless if Mrs. Napheys was so constituted that she could not do so without that consequence happening, we were guilty of negligence. In other words, the test of our legal duty is the ability, or disability rather, of this one person. This was error: Railroad Co. v. McClurg, supra; Bogle v. Winslow, 5 Phila. 136; Tennery v. Pippinger, 1 Id. 543. A railroad company, in the performance of its duty, is not to be held to the impracticable, nor to results out of an ordinary -or natural sequence: Tuller v. Talbot, 23 Ill. 357; Pittsburgh, Cinn. & St. Louis Railroad Co. v. Thompson, 56 Id. 138: McGrew v. Stone, 3 P. F. Smith 441; Ford v. London and Southwest Railroad Co., 2 F. & F. 730; Le Barron v. East Boston Ferry Co., 11 Allen 312; Curtis v. Rochester & Syracuse Railway, 18 N. Y. 534: 2 Redfield on Railways 430; Frankford & Bristol Turnpike Co. v. Philadelphia and Trenton Railroad Co., 4 P. F. Smith 345. We were entitled to an explicit answer to our point in regard to Mrs. Napheys’s physical condition: Noble v. McClintock, 6 W. & S. 58; Carpenter v. Mayer, 5 Watts 483; Tenbrooke v. Jahke, 27 P. F. Smith 392; Hood v. Hood, 2 Grant 229. The evidence upon which this case was submitted was clearly insufficient and ought therefore to be rejected: Altwell v. Wilcox, 8 Haines 117; Lower v. Clement, 1 Casey 63; Silveus v. Porter, 24 P. F. Smith 448; Cauffman v. Long, 1 Norris 72; Smith v. Bank, 98 Mass. 605.

      E. J. Eox and S. Holmes, for defendants in error.
    The question is whether there was negligence in the construction of the platform. A railroad company is bound to provide safe and convenient places of ingress and egress to and from its trains: Pennsylvania Railroad Co. v. Zebe, 9 Casey 326: Pennsylvania Railroad Co. v. Aspell, 11 Harris 149; McDonald v. C. & N. W. Railroad Co., 26 Iowa 124; Knight v. P. S. & P. Railroad Co., 56 Maine 234; Memphis & Charleston Railroad Co. v. Whitfield, 44 Miss. 466; Sherman & Redfield on Negligence, sects. 275, 277: Wharton on Negligence, sect. 77; Hulbert v. New York Central Railroad Co., 40 N. Y. 145. The burden was on defendant to disprove negligence: Sullivan v. Philadelphia and Reading Railroad Co., 6 Casey 234. A sick or disabled person is entitled to more care than one in good health: Sheridan v. Brooklyn City and Newtown Railroad Co., 36 N. Y. 39; O’Mara v. Hudson River Railroad Co., 38 N. Y. 445. A passenger is entitled to the greatest possible care: The New World v. King, 16 Howard 469; Longmore v. Great Western Railway Co., 19 C. B. (N. S.) 183. An omission to charge upon a particular point, for which there was no request, cannot be assigned for error: Lilly v. Paschal, 2 S. & R. 394: Poorman v. Smith, Id. 464; Kean v. McLaughlin, Id. 469; Carothers v. Dunning, 3 Id. 373; Fisher v. Larick, 7 Id. 99; Morris v. Travis, Id. 220; Rahn v. McElrath, 6 Watts 151; Dennis v. Alexander, 3 Burr 50; Fisher v. Filbert, 6 Id. 61; Klein v. Franklin Insurance Co., 1 Harris 247; Davis v. Bigler, 12 P. F. Smith 242; Cooper v. Altimus, Id. 486.
    A railway company using cars, the steps of which are elevated much above the ground, is undoubtedly bound to provide platforms upon which passengers may step, and which are long enough to accommodate all the cars of an ordinary train, so that a passenger in any car may easily reach the platform; Shear. & Red. on Neg., sect. 277; Foy v. L. B. & S. C. Railroad Co., 18 C. B. (N. S.) 225. See to same effect; Nicholson v. Lancashire & Yorkshire Railway Co., 3 Hurls. & Colt. 534; Burgess v. Great Western Railway Co., 6 C. B. (N. S.) 923; Jeffersonville, Madison & Ind. Railroad Co. v. Riley, Adm’x., 39 Ind. 569: Knight v. P. S. & P. Railroad Co., 56 Maine 234.
    May 5th 1879.
   ' Mr. Justice Sterrett

delivered the opinion of the court,

The claim of the defendants in error for damages in this case is based on an accident of rather extraordinary character. The train on which they were passengers arrived safely at its destination in daylight. The other passengers had left the car, and Mr. and Mrs. Napheys were the last to go out. He alighted first and assisted her down the steps from the front platform of the car. While her right foot rested on the lower step and just as her left touched the ground, her right pattella or knee-cap was fractured ■ and she was thus suddenly disabled. The fracture was transverse and entirely across the bone. At the same place and under similar circumstances, thousands of passengers had before alighted from the cars in safety, and, so far as appears, without inconvenience; but it so happened that Mrs. Napheys unfortunately met with the singular accident which undoubtedly caused her a great deal of inconvenience and suffering. Whether the injury resulted wholly from the negligence of the railroad company, without any fault on her part, or whether it was one of those fortuitous events, against which in the exercise of reasonable and proper care it is impossible to guard, and for which neither party is to blame was the question to be determined by the jury; and while we think there was sufficient in the facts and circumstances disclosed by the testimony to justify their submission to the jury, it is not so clear that they would have reached the conclusion they did if it had not been for ■ the instructions complained of in the fourth and fifth assignments of error. In the latter the jury were told that if Mrs. Napheys, without any negligence on her part, received an injury in descending from the car, the company was prima facie guilty of negligence, and the burthen of proof was on the defendant to show that it was not guilty. The fourth point was in substance the same, with the exception of assuming, as an uncontradicted fact, that there was no negligence on her part. This assumption of fact the learned judge refused to adopt, but in other respects affirmed the proposition in its full length and breadth. In view of the uncontradicted facts in the case, we think this instruction was calculated to prejudice the defence. The general rule is that a party who alleges negligence as the basis of a claim for damages is bound to prove the fact alleged, and the extent of the injury, if more than nominal damages are claimed; but in some cases slight proof only is required to justify a presumption of negligence. The mere circumstances attending the injury when put in proof may be enough to cast the burthen of exculpation on the defendant. If a passenger seated in a railroad car is injured in a collision, or by the overthrow of the car, the breaking of a wheel, axle, or other part of the machinery, he is not required to do more in the first instance than to prove the fact and show the nature and extent of his injury. A prima facie case of negligence is thus made out, and the onus is cast upon the carrier to disprove negligeuce. It was accordingly said in Sullivan v. The Philadelphia and Reading Railroad Co., 6 Casey 284, when a railroad company undertakes the transportation of a passenger for an agreed price, “ the contract implies that they are provided with a safe and sufficient railroad to the point indicated; that their cars are staunch and roadworthy; that means have been taken beforehand to guard against every apparent danger that may beset the passenger, and that the servants in charge are tried, sober and competent men. When in the performance of this contract a passenger is injured,without fault on his part, the law raises prima facie a presumption of negligence, and throws on the company the onus of showing that it did not exist.” It is reasonable that it should be so, because the company has in its possession and under its control, almost exclusively, the means of knowing what occasioned the injury and of explaining how it occurred, while as a general rule, the passenger is destitute of all knowledge that would enable him to present the facts, and fasten negligence on the company, in case it really existed. The facts of the present case are very different. The cars were at rest on the track; there was no jar or breaking of machinery; Mrs. Napheys, with the assistance of her husband, was descending the steps from the platform of the car. They had every opportunity of seeing and knowing where she was going, and controlling her movements. If the lower step was inconveniently or dangerously high for her in the condition she was, she and her husband had as good an opportunity as any one else of knowing the fact. If they had even a suspicion that it was in the least degree unsafe for her to take the last step, there was no urgent necessity for her to do so. The train had reached its destination and there was no occasion for haste in leaving the car. If they had any apprehension of danger, or even inconvenience in descending from the lower step, there was nothing to prompt them to incur the risk. They might have called on those in charge of the train to provide a better and more convenient means of egress, if they deemed'it necessary. -Taking the uncontradicted facts of the case, as they were presented, there existed no reason for relaxing the general .rule that he who alleges negligence as the basis of a claim for damages, is bound to prove it affirmatively.

The circumstances of the case were very peculiar and demanded great care in explaining to the jury the relative rights and duties of the parties. While on the one hand it is the duty of the company to provide safe and reasonably convenient means of ingress and egress to and from its cars, on the other hand it is equally the duty of passengers to use the means thus provided, with reasonable circumspection and care.

Judgment reversed, and a venire faeias de novo awarded.

Justices Mercur and Gordon, dissented.

Sharswood, C. J., Paxson and Woodward, JJ.,

concur in the judgment, but would not award a venire de novo, as they think there was no evidence of negligence in the defendants.


text:
    Fulmer’s Appeal. Fulmer versus Uhler et al., Executors.
    H. and W. entered into a partnership for the purpose of building a furnace and manufacturing pig iron. It was stipulated that the money necessary to build the furnace and carry on the business, should be advanced by said parties, in equal proportions, in instalments, whenever it should be required. It was further provided, that the parties should “ be entitled to the clear net gains and profits arising from the said trade or business of the said co-partnership, in the several proportions which their several interests bear to the total amount then paid in.” The partnership was dissolved by its own limitation. F. filed a bill for a partnership account, and claimed the profits should be divided between the parties, in the proportions of their respective contributions to the expense of building the furnace and working the same, while W. contended that the profits should be equally divided between them. It appeared that F. had contributed an amount a few thousand dollars in excess of W.; that F. assumed exclusive control of the business and denied all access to the books by W.; that the latter demanded to see the books and the vouchers of F., in order to equalize his contribution, and was denied; that he tendered an amount sufficient to make their contributions equal and was refused: that owing to the uncertainty of the amount of capital required no stated amount had been arranged for as the instalments to be paid, and that no time was fixed when the payment of the instalments was to cease ; that at the time the furnace commenced operations the difference in the contributions was small, and that the disproportion arose thereafter; that by reason of the profits arising from the business, all necessity for contribution had ceased long prior to the time fixed as the limitation of the partnership. Held (affirming the court below), that the provision in the articles of partnership was intended to provide for the wilful default of a partner, in not making his full contribution of capital; that there was no such wilful default in this case, and that if the contributions were equalized before the profits were accurately ascertained, that was time enough and saved any default.
    April 3d 1879.
    Before Shajíswood, C. J., Mercur, Gordon, Paxson, Woodward, TrunkeY and Sterrett, JJ.
    Appeal from the Court of Common Pleas of Northampton county: sitting in equity: Of January Term 1879, No. 175.
    Henry Fulmer was the appellant and plaintiff below. Peter Uhler was defendant and his executors were appellees.
    The pleadings were a bill to settle a partnership account, which partnership the answer admitted existed and had been dissolved. Nothing material to the controversy arose out of the pleadings.
    These parties and a third person, whose interest they bought out, agreed to go into partnership to build a furnace and make pig iron.
    They agreed upon the mode of dividing the profits and the losses. The contract was in writing and there was no pretence on either side that it did not contain the contract between them.
    The plaintiff contended that the profits were divisible in proportion to the contributions to capital. The defendant contended that the profits were divisible in the proportion of their interests in the capital whether contributed or not.
    The contract, after covenanting to form the partnership and contribute equally to the requisite expense of building and working, stipulated: “And the parties shall be entitled * * * to the profits * * * in the several proportions which their several interests bear to the total amount then paid in.” The plaintiff contended that this meant in the proportions of the amounts they shall have actually contributed at the times the profits were earned. The master, to whom the cause was referred, directed the account to be taken, dividing the profits in the proportions of the contributions to the building and working. The court, however, held that if the contributions were equalized before the profits were accurately ascertained and known, that was time enough and saved the default.
    The decree was made' by His Honor Judge Dreher, of the Forty-third Judicial District, holding the Court of Common Pleas in the Third District.

      Edward J. Eox and if. O. McMurtrie, for appellant.

      II. Grreen and B. E. Eaclcenthall, for appellees.
    May 7th 1879.
   Mr. Justice Paxson

delivered the opinion of the court,

This case presents but a single question. On the one hand, the appellant claims that the profits should be divided between the partners in the proportions of their respective contributions to the expense of building the furnace and working the same; while on the other hand, the appellees contend that the profits should be divided equally between them, as decreed by the court below.

The first step in this investigation is to ascertain what the parties agreed to do. On the 30th of October 1869, Henry Fulmer, appellant, Peter Uhler, now deceased, and whose executors are the appellees, and John D. Wágener, entered into a partnership for the purpose of building an anthracite hot-blast furnace, and manfacturing pig iron at Glendon, near Easton, Pennsylvania. ■ On July 2d 1870, Mr. Wagener sold out to the two others, and transferred all his right, title and interest to them for the sum of $1425, which was paid by Fulmer. The business was then continued by Fulmer and Uhler until November 1st 1872, at which time the partnership was dissolved by its own limitation.

By the agreement of partnership it was stipulated that the money necessary to build the said furnace, and to carry on the said business, should be advanced by said parties in equal proportions, in instalments, whenever it should be required; in other words, each partner was to advance one-third of the necessary capital. This, .without more, would have made them equal partners, and each would be clearly entitled to one-third of the profits as the partnership originally stood. After the withdrawal of Mr. Wagener, the proportion of the two remaining partners would be one-half each. But the agreement referred to contained this further provision, that “The aforementioned parties shall be entitled to the clear net gains and profits arising from the said trade or business of the said co-partnership in the several proportions which their several interests bear to the total amount then paid in.” The proper construction of this last clause is the principal contention here. It is not altogether free from obscurity, yet we think its meaning is sufficiently apparent. To hold that it contemplated an equal division of the profits, without regard to the amount of capital paid in, would be to treat it as surplusage and expunge it from the agreement. It was not needed to produce equality; that, necessarily, resulted from what had, already been said in the articles. We think the manifest object of the clause referred to was to qualify the prior language of the agreement, and to make the interest and share of each partner depend upon his contribution to the capital of the concern. This view is the more reasonable when we look at the position of the parties at the time .they embarked in this enterprise. The amount of capital to be paid in was not fixed, and probably was not known to them at the .commencement with any degree of certainty. That it would require a very largo sum must have been clear to each. No one of them could know with certainty that his partners would be able from time' to time to furnish their respective shares. It was doubtless intended that in case a partner made* default and failed to furnish his share of the capital, that his interest should be correspondingly diminished. This is the more probable from the absence of any provision in the agreement for charging a defaulting partner with interest on any advances made by the other partners to cover his default.

At the time the partnership was dissolved, it was conceded Fulmer, the appellant, had advanced considerably more than Mr. Uhler, and he claimed a corresponding increase in his share of the profits. This claim was resisted by the appellees, who contended that the alleged excess of Mr. Fulmer’s advances were the result of bad faith to Uhler; that the latter had always been ready and willing to contribute his share, and that he had been purposely kept in ignorance by Fulmer of the extent of the payments made by the latter.

The business appears to have been conducted in a manner altogether peculiar. Mr. Fulmer kept the books of the concern, and the court below finds that “ he had all the books and papers, kept them under his special care and supervision, under lock and key, and carried the key in his pocket.” The learned judge further states that “ the plaintiff (Fulmer) seems to have looked upon the defendant as a subordinate, who had no, or very little, voice in the management of the business; and that when he desired information or opportunity for inspection of the books, he must wait the entire pleasure and convenience of the plaintiff.” There was no book kept in which the contributions of the respective parties were entered. Instead of each partner paying into the firm regular instalments at stated periods, and claiming and receiving a proper credit therefor on the books, they appear to have divided the bills and expenses between them in an informal way, each paying such as suited him, and keeping his own account. The result was that at no time were they precisely equal. On the 5th day of August 1871, the day the furnace went into blast, and the manufacture of iron commenced, Eulmer had advanced $1408.39 more than Uhler, being $704.19J inore than his share of the aggregate advancements made to that date. It will be noted, however, that the amount paid for Wagener’s interest, $1425, is included in the advances of Mr. Fulmer, and if stricken out would leave him a few dollars in arrear. It is at least doubtful how far money voluntarily advanced by Fulmer to Uhler for the purchase of Wagener’s interest can be regarded as a contribution of money to build the furnace and carry on the business of manufacturing iron, within the meaning of the articles of partnership. Be that as it may, the difference in their contributions, at the time the manufacture of iron commenced, was very small. It was. between that time (August 5th) and the 16th of November that Fulmer advanced the most of his excess of his contributions. It appears that during this period the firm had considerable iron on hand, which Uhler desired sold for the purpose of paying off the debts. He insisted upon not paying any more money until the iron on hand had been sold. Fulmer refused to sell, and advanced the money required. The court below says upon this point: “ The plaintiff objected to have the iron shipped, and actually stopped the loading, declaring that iron should not be shipped until he said so; that he was boss; that he had paid pretty near all in that had been paid, and could pay Uhler all he had in in five minutes.” There was no time fixed when the payment of the instalments or contributions should cease. The reasonable construction of the agreement is, that they should not be required after the business commenced to be self-supporting. It appears to have been so from the time the furnace went into blast. It was the right of Uhler to have the iron sold to defray the expenses. He was entitled to as much voice in the business as Fulmer. The latter had no right to hold the iron against the wishes of his copartner, and by advancing his own money for expenses which the firm had the means to pay, deprive his weaker partner of a portion of his interest in the business.

The iron, as before stated, was not sold, and both parties continued to make contributions, Fulmer making his last payment on August 23d 1872, and Uhler his last payment on August 1st 1872. After these payments, Fulmer’s contributions amounted to $58,761.43; Uhler’s to $49,045.63. Looking at these transactions by the light of past events, it seems very clear that long prior to August 1872, the necessity for advancements or contributions had ceased. The business was extremely profitable, with a quick demand for iron at high prices. The appellant, by paying the amount of Thayer, Erdman, Wilson & Co., August 5th 1872, of $699.30, and claiming credit for it as a contribution or advancement, under the agreement of partnership, admits that down to that time at least either party had the right to make contributions. On the 27th of September following, but a little over a month after Fulmer’s last contribution, Uhler made a demand upon him for a statement of the moneys paid by him on account of the firm, and offered to pay whatever sum was necessary to equalize their contributions. To this demand in writing Uhler received no answer, and on the 5th of October he actually tendered Mr. Fulmer the sum of $6000, which was fully sufficient to equalize the advances. This sum Fulmer declined to receive, contending that their respective rights had become fixed prior to that time, and that the offer came too late. It is unnecessary for us to decide how this might have been, had the contributions been regularly made by instalments, the books been properly kept, and each partner in possession of full information as to what the other had paid. They were not dealing upon equal terms. It is apparent that Fulmer had superior means of information as to the condition of their accounts. The evidence shows a dispute between them in regard to their payments, early in 1872, resulting in a quarrel. Uhler produced his account to Fulmer, and demanded to see his. Fulmer’s account was finally produced, the court below says in April 1872, and after the quarrel, but the vouchers to sustain it were not produced or exhibited to Uhler, although he demanded them. He certainly was entitled to see them. He had a right to know how much his partner had contributed, and to see the vouchers therefor, before he could be considered in default for not paying up the difference. The parties must be held to entire good faith.

Mr. Fulmer having had the sole charge of the books, and having been the active business man of the concern, and fully posted as to its affairs, it was his duty to give his partner all the information in his possession. Indeed, I do not see how, in view of the manner in which the business has been transacted, either party could be held to be in default until an account was furnished by the other partner showing his payments. It is evident that each one intended to contribute his share. There was some evidence of Uhler’s having been pressed for money, and of his refusal to make further payments, but the fact is that their contributions were substantially equal when the furnance went into blast. After that the concern made money rapidly.

The provision in the articles of partnership was intended to provide for the wilful default of a partner in not making his full contribution of capital. We see no such wilful default in this case. It is, at least, questionable whether Mr. Fulmer had any right to charge his payments made since August 5th 1871, as contributions under the agreement for the purpose of fixing the interest of the respective parties in the profits, and if he had, Uhler would not under the circumstances be in default until notice of such payments had been given him and a demand for contribution. If Fulmerhad a right to increase his contribution on the 5th of August 1872, there is no good reason why Uhler should not have the right to make his account good in September or October. There was no necessity for contribution at either date, nor had there been for months before.

I do not regard the matter of the division of the $60 for rents as important. It w'as a very small matter in a very large transaction. Nor do I attach much significance to the income returns made by the parties. As minor points of evidence they are entitled to some weight, but are not controlling.

The decree is affirmed and the appeal dismissed at the costs of the appellant.