author: Chief Justice Agnew

text:
    Pennsylvania Railroad Company versus Lewis et ux.

    1. A cMkl about nine years old was sent by liis mother, who resided in Harrisburg, near defendants’ railroad, on an errand across the road ; whilst on the track he was killed by an engine going westward ; there were ironworks and houses for the hands on the opposite side of the road at that point, which was in the outskirts of the city; and the hands of the works and other persons were frequently crossing the track about the place. East of where the boy was struck was a curve, which prevented the engineer from seeing him till within too short a distance to stop the train after he was seen. There was no ordinance of the city limiting the rate of running trains at that point. There was evidence that the train was running at a high rate of speed. Held, that whether the train was running at a rate of speed which was safe and prudent under the circumstances, was for the jury.
    2. It is not common prudence or ordinary care for trains to enter the outskirts of a city at a dangerous rate of speed, although the people have no right to go on the railroad track.
    3. Although persons on a railroad track are trespassers, regard must be had to the habits, character, condition and circumstances of a people living in a city and immediately on the line of a railroad.
    4. The Commonwealth by its police power may regulate positive rights when for the safety, protection and welfare of the people; and the speed of trains through towns and cities may be regulated by ordinance.
    5. When it is determined by the jury on the facts submitted to them that the rate of speed of a train is incompatible with public safety under the circumstances of the place, the rights of a company even on its own track are qualified by the law of the public good.
    6. The court charged: “If the boy (being on the track) had sufficient judgment and discretion to know his danger, and did not exercise the ordinary care that one of his age and maturity should, he was guilty of such negligence as would prevent him from recovering,” &e. Held not to be error.
    7. There was evidence in this case of contributory negligence by the parents as to exposing their son to danger, and submitted with proper instructions.
    8. Philadelphia & Reading Railroad Co. v. Hummell, 8 Wright 375, distinguished.
    May 17th 1875.
    Before Agnew, O. J., Sharswood, Mercur, Gordon, and Woodward, JJ.
    Error to the Court of Common Pleas of Dauphin county: Of May Term 1875, No. 55.
    This was an action on the case, brought September 10th 1870, by Daniel Lewis and Margaret his wife against The Pennsylvania Railroad Company, for causing the death of their son, Edward Lewis, a child eight years and six months old, through the negligence of defendants’ servants.
    The parents lived near Lochiel Iron-Works in the city of Harrisburg, a short distance from defendants’ railroad track; on the 22d of November 1869, the child was sent by his mother on an errand to an aunt on the other side of the track; whilst on the track he was struck by a passenger train of the defendants’ moving west and killed.
    By an ordinance of the' city of Harrisburg, passed in 1862, the speed of railroad trains within the city was limited to seven miles per hour ; at the time and up to 1868 the southeastern boundary of the city was Hanna street; and the place where the accident occurred was,-prior to 1868, outside of the city. In that year the city limits were extended beyond Hanna street; nothing was done to extend the ordinance beyond Hanna’ street, until, by the Act of April 9th 1869, the limits of the city were still further extended, and the whole territory was made subject to the same ordinances, &c., as those by which the city was then governed. The accident happened at a point within the city limits at the time of its occurrence.
    The case was tried December 14th 1874,, before Henderson, J.
    Margaret Lewis the mother testified, that about noon .on the 22d of November 1869, she directed her son to go to his aunt’s; the boy left the house as directed; she did not see him again till he was brought home dead; the father was not in the house at the time ; he was at work at the Lochiel Mill where he was employed ; the aunt lived at the mill, which was half-a-mile west of the plaintiff’s house.” The aunt’s house was on the other side of the railroad.
    Daniel Balsley testified, that some time before the accident, he had built a house for the Lochiel Company at their mill; by order of that company he made a partition in it; and a small part of the house was used as a station; the defendants had no ticket agent there; the accommodation train stopped there. “ The Lochiel Iron Company had a flag there. I put a private crossing at this station to get sand from the river. The water-closets of the mill were on the other side of the railroad from the mill. This private .crossing was used by the Lochiel Company to get the sand over, and in going to water-closets. In 1869 there was only one row of forty houses between Lochiel and McCormick’s Furnace; the distance between the two furnaces was aboutfive hundred yards. There were considerable houses from McCormick’s to Harrisburg, and manufactories also; there was a curve below the station-house; there were forty-eight houses below the Lochiel Mill; th-ere was a siding below the mill; there was a very long coal-bin alongside the road, on the east side; they were up within ten or twelve feet of this crossing; coal-bin belonged to Lochiel Company; I could see an approaching train one hundred and fifty yards from coaíbin ; in 1869 there were two tracks there; bin came within eight feet of the track; the siding did not interfere in looking down the track; we could see over gondola cars, but could not see over high cars on the siding; the Lochiel Company ran a cart road from the hack road to the station, hut it was not safe; when the accident happened the hoy was about fifteen feet above the crossing, on the railroad; the boy lay, as near as I could tell, about the centre of the brick house called the depot, on the track. * * * This road, called the back road, after crossing the railroad, goes up through McCormick’s property to Harrisburg; this road was used by everybody; I saw this accident; I was standing a little above the brick house, about fifteen feet from the railroad ; I heard the whistle sounding very loudly, and I ran and saw the pilot strike the boy; he was on the right-hand track coming up, and the train was coming in the same direction; a freight was going, east at the same time on the other track ; I was attracted by the ‘ danger whistle ’ of one of the locomotives, but cannot say which; all the work I did was at the expense of Lochiel; neither I nor they had any connection with the Pennsylvania Railroad Company; my opinion that the train was running at the rate of twenty-five miles an hour, is formed from simply looking at the train of cars running along the railroad. The length of Lochiel Mill is three hundred and one feet; the whole of it is west of the cart-road; the front of the station is fifteen feet from the front of mill.”
    There was evidence, by a number of witnesses, that the railroad track in the vicinity of the place of the accident was travelled generally by the people, especially since the building of the Lochiel Mills, because it was a shorter way than on the public road; the ties were worn smooth by the travel.
    For defendants, Christian Hoffmaster testified : “ I was engineer on mail train; it left Philadelphia at 7:50; schedule time at Harrisburg was 12:45 ; it reached Lochiel at 12:35 or 12:37, on time; the train was in order, and had chain-brake on; there is no better brake in use; the brake was in good order; the road-bed was in good order. * * * As I came around the curve, before reaching Lochiel, I saw a boy coming down from the mill towards the railroad ; I blowed the whistle, but he took no heed to it; he walked right on the track in front of train and turned up towards Harrisburg ; I did all I could to stop the train, but could not; the engine struck the boy and knocked him over on the other track; I applied the brake, and broke the chain in doing so; the boy, when I first saw‘him, was forty or fifty feet from me; the bell rang and I whistled; I had whistled before I reached the curve; the boy was five or six yards away from us when he stepped upon the track; the boy could not have been saved if the brake had not broken; I could not have done anything more than I did do to save the' boy; I do not think he could have been saved if we had had the air-brake; it was not invented at that time ; I examined the break; it was a clean break, and good iron ; the speed of the train, at the time the boy was struck, was from fifteen to eighteei miles an hour; we shut off steam at the bridge below Lochiel Mill — three hundred or four hundred yards below; its schedule time is about twenty-one or twenty-two miles an hour; a train would slack up in three or four hundred yards from the shut-off to about fifteen or eighteen miles an hour; I think we had six cars. * * * We entered the city at Hanna street at seven miles ; we had no knowledge that it extended further east than that; we slackened up because we were coming into the city limits at Hanna street.”
    There was other evidence, that the brake on the train at the time of the accident was the best then in use ; it would not stop a train running at fifteen or eighteen miles an hour in 60 feet; running at seven miles an hour a train could not be stopped in 50 feet. There'was evidence also, that Hoffmaster was a first-class engineer, of long experience, one of the best in the employ of the defendants.
    In rebuttal, the plaintiff gave evidence that Hoffmaster, when before the coroner’s inquest, testified, that at the time of the accident the train was running at the rate of from twenty to twenty-five miles per hour.
    At the request of defendants- the court withdrew from the consideration of the jury all that part of the evidence relating to the permissive use of the track of defendants’ road by the public in the vicinity of the place of the accident.
    The following are defendants’ points with their answers :—
    1. Parents owe protection to their children. The plaintiffs’ testimony in this case showing that they permitted the boy to go on the railroad, the plaintiffs failed in performing their duty to the deceased and cannot recover.
    Answer. “ If the plaintiffs permitted the boy to go on the railroad track, the law of this point is correctly stated, but we do not recollect any evidence to show such permission. It is true, the boy would have to cross the railroad in going to his aunt’s, but we cannot say to you that a boy of the age of this one would require his parents to be with him in crossing the railroad, or to have a protector for that purpose. We submit to you to say, under the evidence, whether they failed to perform their duty to the deceased boy. If they did, and their negligence contributed to his death, then they cannot recover.”
    2. Knowingly to allow a boy eight years of age to go on a railroad track, where trains of cars are continually passing and re-passing, is such negligence in his parents as will prevent them from recovering in an action brought by them for loss of service, and the uncontradicted testimony showing this negligence here, the verdict must be for the defendant.
    Answer. “ We answer this in the affirmative as a proposition of law, but do not say that the uncontradicted testimony establishes the fact as stated ; you will determine the facts involved in this point.”
    3. The fact that the boy was killed where he was, is presumptive evidence that he was unprotected and exposed by his protectors; and as their negligence contributed to his death, they cannot recover for loss of service.
    'Answer. “We have already said that if the negligence of plaintiffs contributed to the death of the boy, they cannot recover, but we cannot say that he was ‘ unprotected and exposed by his parents,’ or that the fact that he was killed where he was, on the railroad, was presumptive evidence that he was, in the eye of the law, unprotected and exposed by his protectors, so as to attribute to them that negligence which would defeat a recovery in this action. And we also refer you to the answer to the first point of the defendant, and to the general charge, for the qualification of this point.”
    4. It is the duty of parents at all times to shield their children from danger, and this duty is the greater where the danger and risk are imminent. The uncontroverted proof here being that the parents of the deceased worked and lived close to the railroad tracks, and knew of the running of the trains every few minutes, and of the running time of the mail train west, the plaintiffs, by their own fault, contributed to the accident by which their child was killed, and cannot recover.
    “We answer the proposition of law in this point in the affirmative, and refer to you the question of fact, whether the plaintiffs contributed to the accident by which their child was killed.”
    5. The law determines precisely the extent of parental duty. Its standard is not a shifting one; and as there has been no performance of it at all in this case, the verdict must be for the defendant.
    Answer. “ We cannot say there was no performance of parental duty in this case; and repeat, as we have already said, that whether there was contributory negligence on the part of the plaintiffs is, under all the evidence in this case, for the jury. We decline to say that your verdict must be for the defendant.”
    6. The defendant has the lawful right to the unobstructed and exclusive use of its tracks, except at public crossings; and if persons go upon the tracks at other places, they go where they have no lawful right to be, and if accidents ensue therefrom, the railroad company is not responsible.
    “ We answer this point in the affirmative.”
    7. If the deceased came upon the railroad track in front of and so near the running engine, that no efforts could be made by those in charge of the train sufficient to prevent the accident, there can be no recovery. There being no question here as to these facts, the verdict must be for the defendant.

      “We answer this point in the affirmative, unless you find that defendant was guilty of negligence in running its train; and if you so find, then there may be a recovery, unless you determine, under the instructions already given, that there was such contributory negligence as to defeat the recovery.”
    9. Upon the whole evidence of this cause the law of the case is with the defendant, and the court is requested to give binding instructions to the jury, that the plaintiffs cannot recover.
    Answer. “ We decline to withdraw this case from the jury.”
    The court charged: * * * “ The question naturally arises, is the defendant liable by reason of the negligence of its agents in running this train on the day this boy was killed? Was it owing to the negligence of defendant that he was killed ? And here I withdraw from your consideration all the testimony offered, on the part of the plaintiffs, to prove that the public were accustomed to use the track, at this point and in this neighborhood, as a passage way, by sufferance of the Pennsylvania Railroad Company. This testimony you must discard entirely from your minds, in the consideration of the evidence. It did not establish the fact proposed in the offer. The Pennsylvania Railroad Company is just as much entitled to the free and uninterrupted enjoyment of its track at this particular place, as at any other along the entire line of its road. It would be cruel and wicked to expose the men, women and children of that neighborhood to the dangers of trespassing upon this railroad track, upon the groundless supposition that they had acquired a right of way or a right so to use the track, by the sufferance of the defendant; ‘ and it would be unjust and positively dishonest to hold the company responsible for injury to persons who knowingly trespass upon the track, and take the risk and consequences upon themselves.
    “ This collision happened within the limits of the city of Harrisburg, near the Lochiel Iron-works. On the part of the plaintiffs, it is alleged that the defendant’s train was running at the rate of about twenty-five miles; that it was an unusual rate of speed, reckless and dangerous to the lives of citizens living in this part of the city. The defendant answers, and attempts to prove, that the train was running at its usual rate of speed, was on a good track, with the best brake in use, and was in perfect order, and everything done that could be done to save the life of the boy. Mere there is a discrepancy in the testimony as to the distance the boy was from the engine and the place where he first stepped on the track — whether at the crossing, or further up, opposite the mill. Mow this was is for you. Was the train running at a safe■ and prudent rate of speed f Was everything done that could be done by defendant’s agents under the circumstances ? Or was the rate at which the train was approaching and running, dangerous and re,ckless? We think, and perhaps you will have no difficulty in concluding, that when the boy was seen upon the track, everything possible was done to save him. Then you have to determine whether there was negligence or want of ordinary care in running the train, taking into consideration the fact, that it was along a part of the road within the city limits, which was, to some extent at least, occupied by manufactories and dwelling houses ; the curve around which the train came, and the distance of the place where the accident occurred from the curve. And in this connection I call your attention to the fact, that the engineer swears that he whistled before reaching the curve, and let off steam, in which he is corroborated by the fireman on the same train.
    “ We instruct you, that the locus in quo — the place where the hoy was killed — was not within the provisions of the ordinance of the city of Harrisburg, limiting the running of trains within the city limits to seven miles an hour. * * * This ordinance was passed in 1862. The city limits were extended by the Act of 1868, but this Act did not extend the city ordinances over the new territory taken in. The Lochiel Iron-works were not within the city limits when the said ordinance was passed. It is then contended, that the Act of 1869 did extend the city ordinance over this place; but we say to you, that it had not this effect, and that act was unconstitutional and void, as we shall hereafter say more fully in answer to a point submitted by the defendant. You must therefore, in your investigation, consider the evidence as if no such ordinance existed. The ordinance referred to is withdrawn from your consideration.
    “ Greater danger demands higher vigilance, and when it is said that negligence is the absence of ordinary care, it must be understood that ordinary care depends very much upon the circumstances of each particular case. Certainly, what might be ordinary care in running a train in an uninhabited country, might be gross negligence in running the same train, in the same way and at the same speed, through the streets of a town or city. If you find that the defendant’s train was running at the usual rate of speed, and not at a reckless and dangerous rate, but with proper care and caution,- upon a good track, with the best brake then known, and with a due regard — and by this I mean, with that regard that a prudent man would have — for the protection of human life under the circumstances of this case; then, we say to you, that the plaintiffs cannot recover, and your verdict should be for the defendant.

      “ But should you find that the defendant was guilty of negligence in the running of this train, you have another question to determine — that of contributory negligence. Were the plaintiffs guilty or chargeable with contributory negligence in permitting their son, a boy of eight or nine years of age — the evidence shows that he was about eight years and six months old when killed — to go out in this neighborhood without a protector, or in sending him on an errand which required him to cross the railroad track of defendant, without having a care-taker with him ? The evidence is that he was a healthy, intelligent boy. Was this such a dangerous place, that it was unsafe for a boy of this character to be absent from the reach of his parents or some care-taker? Are the parents chargeable with negligence in regard to their son, because the mother sent him upon this errand ? You will observe that there is no evidence that she directed him to go up to his aunt’s by the short cut upon the railroad track. It is very clear, he could have gone to his aunt’s without going upon this track, except to cross it.

      “ But further, was this boy guilty of negligence in walking up along the track of this road, or was he without that judgment and discretion by reason of his tender years, which would charge one of more^mature years with negligence ¶ This child is to be held responsible for that degree of negligence only which would be attributable to one of its years.

    “ This question of contributory negligence, as indeed frequently questions of negligence are, is a mixed question of law and fact, and is to be decided by the court when the facts are undisputed or conclusively proved; but not to be withdrawn from the jury when the facts are disputed or the evidence conflicting. The rule of law in regard to an adult, differs from that of an infant, or one of more tender years. The degree of discretion in the case of an infant, depends on his age and knowledge. Of a child of three years of age, less caution would be required than of one of seven, and a child of seven less than one of still an older age. The caution required is according to the maturity and capacity of the child, and this is to be determined in each case by the circumstances of that case. Bid this boy exercise that ordinary care that is required of one of his age ? Was he crossing the railroad track at the usual crossing and eart road, or was he walking up along the track — on the track where a large number of trains were running daily, passing each other at times, going east and west ? Bor we say to you, that if this boy was walking on the track of this road, taking it as a short cut to his aunt’s, he was where he had no right to be ; and it matters not that many others had done the same ; this did not justify this boy, nor could it justify the father and mother in using this track as a foot-way; and if the boy in so doing had sufficient judgment and discretion to know the danger he was running, and did not exercise the ordinary care that one of his age and maturity should, he was guilty of such negligence, concurring to an accident, as would prevent him from recovering against the company, because he was a wrong-doer — a trespasser — and did not guard against the injury as he might have done; and if he could not recover, under the same conditions, if the accident resulted in his death, the plaintiffs cannot recover; for his negligence — the negligence of the son, the servant, the agent — is imputable to the plaintiffs themselves, when they ask to recover damages for an injury to their son, which was occasioned by an accident to which his own negligence contributed.
    “ If the boy was old enough to go to school in the neighborhood, to be sent an errand requiring him to cross the railroad track, had he sufficient judgment and discretion to know the danger of walking upon this railroad track ? If he had this judgment and discretion, did he exercise that ordinary care that the law exacts of him ? Did he know that he incurred the risk of trains passing over this track he was walking upon ? These questions are for you; as you find the facts, the law determines the rights of the parties. If the boy had this judgment and discretion, and did not exercise it, he was guilty of such negligence and want of ordinary care in going upon and along defendant’s railroad track, as would prevent the plaintiffs from recovering in this action. * * *
    “Was the defendant guilty of negligence in running its train that caused the death of Edmund Lewis ? If it was not, your verdict should be for the defendant; if it was, were the plaintiffs guilty of contributory negligence in permitting the boy to be out without a protector, or in sending him an errand which required him to cross the railroad track ? And here I may say to you that I recollect no evidence to justify you in finding plaintiffs guilty of contributory negligence, except in permitting him to be out without a protector, and in sending him to his aunt’s, which required him to cross the railroad track ; and this you will consider in connection with his age and maturity, and the dangerous locality, as we have already instructed you. Or, had the boy sufficient judgment and discretion to know the risk he Avas running, and did not use the ordinary care the law requires of one of his age and maturity, to avoid the danger he was exposed to under all the circumstances of this ease ? If you find that there was negligence in the boy, under our instructions, then the plaintiffs cannot recover.”
    The verdict was for the plaintiffs for $1000.
    The defendants took a writ of error.
    The sixth assignment of error was, that the court erred in submitting the case to the jury after answering defendants’ sixth point in the affirmative.
    The ninth assignment of error was that “ the court erred in submitting the case of the plaintiffs, both in the general charge and answers to the points, as if. the action was brought by the boy instead of by the plaintiffs.”
    The other assignments were the answers to the defendants’ points and the parts of the charge in italics.

      L. W. Hall and F. Jordan, for the plaintiff in error.
    The child was where he had no right to be; the defendant’s had the right to presume that even children of tender age would not he on their track; they could not he there without fault of their parents or guardians: Railroad Co. v. Hummel, 8 Wright 375. Though a child of tender years may recover for an injury, partly caused by his own imprudent act, a parent cannot: Glassey v. Railroad Co., 7 P. F. Smith 173.
    As to the 9th assignment of error, they cited: Railroad Co. v. Spearin, 11 Wright 300. Railroad companies mpst keep the time announced in their schedules : Wharton on Negligence, sec. 662; Denton v. Gr. W. Railway, 5 E. & B. 860; Gordon v. M. & L. Railroad, 52 N. H. 596. No conceivable rate of speed is per se evidence of neglect: Shearman & Redf. on Negligence 535, sec. 478 ; Wild v. Hudson Railroad, 29 New York 315.

      O. F. Johnson and H. Alriehs, for defendants in error.
    Whether permitting the child to go along the railroad was negligence, was for the jury: Catawissa Railroad Co. v. Armstrong, 2 P. F. Smith 282; Schinhold v. N. Beach & M. Railroad, 40 Calif. 447 ; Drew v. Sixth Avenue Railroad, 26 N. Y. 49; Lovett v. Salem & S. Danvers Railroad, 9 Allen 563 ; Pennsylvania Railroad v. Kelly, 7 Casey 372; Philadelphia & Reading Railroad v. Long, 25 P. F. Smith 257. Whether ordinary and reasonable care was used was for the jury: Pennsylvania Railroad v. Ackerman, 24 P. F. Smith 265. More care is to be exercised by engineers towards the young, the aged and infirm, than towards those of mature years and active bodily powers : 38 N. Y. 445; Baltimore and Ohio Railroad v. Fryer, 30 Maryland 47; O’Flaherty v. Union Railway, 45 Missouri 70. To constitute negligence of parents, there must be such omission as persons of ordinary prudence exercise towards their children: Beers v. Housatonic Railroad, 19 Conn. 566. Negligence and contributory negligence are for the jury, and to be determined by the circumstances of each case: Robinson v. Cone, 22 Vermont 225 ; Pendrill v. Second Avenue Railroad, 43 Howard 409; Johnson v. Bruner, 11 P. F. Smith 58. The father being employed in the Lochiel Mills, and thus having the right to use the crossing there, the child had the same right: Pittsburg, F. W. & C. Railroad v. Bumstead, 48 Ill. 221; Reeves v. Del. & Lacka. Railroad, 6 Casey 461; Wild v. Hudson River Railroad, 33 Barbour 504. If the train was going too fast the parting of the brake chain was no excuse: West Chester & Philadelphia Railroad v. McElwee, 17 P. F. Smith 312; Aaron v. Second Avenue Railroad, 2 Daly 127. Railroad companies running their trains through cities or populous places, are held to a degree of care commensurate with the danger thus involved : T., W. & W. Railroad v. Harmon, 47 Ill. 298 ; Johnson v. Hudson River Railroad, 6 Duer 633 ; Daley v. Norwich & Worcester Railroad, 25 Conn. 595.
   Chief Justice Agnew

delivered the opinion of the court, May 24th 1875.

This case was submitted to the jury correctly and fairly. In the first place the judge withdrew from the jury all the evidence that the public were accustomed to use the track at or in the neighborhood of the place of the accident, as a passage-way by sufferance of the railroad company; saying also that the company “is just as much entitled to the free and uninterrupted enjoyment of its track at this particular place as at any other along the entire line of the road.” He also informed the jury, “that if this boy was walking on the track of this road, taking it as a short cut to his aunt’s, he was where he had no right to be; and it matters not that many others had done the same; this did not justify this boy, nor could it justify the father and mother in using the track as a footway.”

He then fairly left the great question of the cause to the jury in fitting terms ; that is, whether the train was “ running at a safe and prudent rate of speed;” or (said he) “was the rate at which the train was approaching and running dangerous and reckless ?” Again, “ if you find that defendants’ train was running at the usual rate of speéd and not at a reckless and dangerous rate, but with proper care and caution, upon a good track, with the best brake then known, and with a due regard — and by this I mean with that regard that a prudent man would have — for the protection of human life, under the circumstances of the case, then we say to you that the plaintiffs cannot recover, and your verdict should be for the defendants.” Surely' this was not exacting an unjust or illegal degree of care and caution of the company entering within the outer limits of the city of Harrisburg where the accident happened. It took place at the Lochiel Iron-works, situated immediately alongside of the track, where numerous hands were constantly passing and repassing, and in the vicinity of the rows of houses occupied by the hands employed in these large works, and in a neighborhood where many persons were likely to be. According to the plaintiff’s evidence, the rate of speed of the train, while approaching and entering within these limits, was from twenty to twenty-five miles an hour. The engineer himself testified to eighteen miles, and it was shown that before the coroner’s jury he had testified that the speed was from twenty to twenty-five miles an hour. There was therefore evidence which justified the instructions, and this distinguishes the case, at once, from that of the Railroad Company v. Hummel, 8 Wright 375, in which Justice Strong says, the cars were moving slowly by their own gravity, yet so perfectly under the control of the engineer that they could be immediately stopped. The question presented in this case is, therefore, whether a railroad company may enter into the outskirts of a populous city at a high and dangerous rate of speed, even though it be upon its own track where the people have no right to be. He would be without much feeling for his kind, and wedded to technical rights to an unwarranted extent, who could affirm this proposition; and thus leave a people unprotected by law, and subject to whatever danger any motive of interest or otherwise might lead to in the use of a high and dangerous rate of speed. The Railroad Company v. Hummel, supra, asserts the rights of a railroad company upon its own track, as thoroughly as any case to be found in the books, and even there it is said, “ ordinary care they must be held to.” Is it common prudence or ordinary care to run into the outskirts of a city at a rate of speed so high and reckless that persons happening on the track are liable at any moment to be overtaken and crushed to death by the ponderous wheels of the swiftly-moving engine ? Conceding that these people are trespassers, yet must we have no regard to the habits, character, condition and circumstances of a people living in a city and immediately on the line of a railroad ? Clearly to disregard them would be contrary to our sense of humanity, and to that common judgment of mankind expressed in the maxim, “sic utere tuo, ut alienum non Icedas,” and that rule of right doing which requires men to do unto others as they would have them to do unto themselves. But beyond this there is also that supervising authority of the state, which, by its' police powers, is enabled to regulate even positive rights, when it is necessary for the safety, protection, and welfare of the people. Hence it has been held that the speed of trains through towns and cities may be regulated by municipal ordinances. But the absence of any such positive regulation does not leave the way open to a railroad company to run its trains into a populous town at a dangerous and reckless rate of speed. Are the circumstances of the case not to be heeded, and are the people, regardless of the probability of the loss of life, to be run down and crushed to death merely because they happen to be trespassers ? Does no duty rest upon a railroad company, because it is running upon its own track, unfenced and unguarded ? Surely we must not disregard the habits, character and condition of a people, accustomed to run thoughtlessly and unheedingly into danger. We must take into account the feebleness of age and helpless infancy, the infirmity of mind and body of many living on a railroad track, their want of reflection and unthinking heedlessness, their want of apprehension of danger, and entire absence of injury .they suppose they do to the hard rough track of a railroad; the many motives they have to do an act which, though a trespass, is seemingly to them no cause of complaint. Surely the courts have not lost their power to declare what is ordinary prudence and care in the use of its track by a railroad company merely because the track is its own, and no one may rightfully trespass there. The circumstances which qualify this right must be taken into account and submitted to a jury under proper instructions. It is said this is to subject the company to the influence of prejudice, and that juries are always unfavorable. The causes of this prejudice it is not proper to discuss, but the common sense of mankind is not often very far wrong. Not to submit circumstances to a jury upon the evidence, and under the controlling power of a court, is simply to set aside the trial by jury. Whether the population is dense or sparse at the locus in quo, what is the likelihood of danger, and what the rate of speed compatible with the public safety under the circumstances, are facts which necessarily find their way into the jury box. When it is thus determined that the rate of speed is incompatible with public safety, under the circumstances of the place, the rights of the company, even upon its own track, are qualified by the great law of the public good. Life is too sacred to become the sport of chance, or the sacrifice of heedless will. “ Salus populi est suprema lex.” “ Necessitas vincit legem et quod cogit, defendit.”

We hold, therefore, there was no error in the instruction of the court in this respect. This being the casé, there cannot be any serious objection to the charge upon the other questions in the cause as to contributory negligence either on the part of the boy or his parents. Referring to the unlawful act of the boy in being upon the track, the judge said: “ And if the boy in so doing had sufficient judgment and discretion to know the danger he was running, and did not exercise the ordinary care that one of his age and maturity should, he was guilty of such negligence, concurring to an accident, as would prevent him from recovering against the company because he was a wrongdoer — a trespasser — and did not guard against the injury as he might have done. And if he could not recover, under the same conditions, if the accident resulted in his death, the plaintiffs cannot recover; for his negligence — the negligence of his son, servant, the agent — is imputable to the plaintiffs themselves when they ask to recover damages for an injury to their son, which was occasioned by an accident to which his own negligence contributed.” As to the negligence of the mother herself, the court affirmed the fourth -point of the defendants, leaving the facts to the jury, and this fully covered the ground in connection with the answers to the third and fifth points of defendants.

Finding no error, the judgment is affirmed.


source: Caselaw Access Project

author: Mr. Justice Woodward

license: Public Domain

text:
    Malone versus Dougherty et al.

    1. In an action on a note for $5000 the plaintiff gave in evidence an agreement by which defendant, his partner in a railroad contract, purchased his interest in' the firm, $5000 of the consideration to bo paid in forty days; plaintiff testified that the note was for that $5000. Held, that the defendant could not introduce his defence on cross-examination, but under the Act of April 15th 1869, sect. 2, the plaintiff could have been examined as on cross-examination in the defence in chief.
    2. By the agreement dated in July the defendant bound himself to indemnify plaintiff from all losses, &c., by reason of engagements of the partnership, and to fulfil all its engagements. In October plaintiff, by an unsealed writing, agreed “.to withdraw the note,” if defendant could show “he did not make any money out of the July estimate.” Held, that evidence that suits had been brought and threatened against the firm, that defendant had undertaken to settle them, &c., and surrender the contract to the company, and that this was done in pursuance of an arrangement of which the October paper was a part, was inadmissible; the matters offered being the same stipulated in the July agreement, and were therefore no consideration for the October agreement.
    3. It not appearing that the October agreement was made on any consideration, evidence that nothing was “ made out of the July estimate” was incompetent.
    4. Evidence for defendant was admissible that on October 3d a new agreement was made by which plaintiff agreed to release defendant from the note, in consideration of which defendant agreed to release and did release to the railroad company his interest in the railroad contract.
    5. Extrinsic verbal evidence is admissible to prove a new agreement upon a new consideration, whether a substitute for the old or in addition to it.
    May 17th 1875.
    Before Agnew, O. J., Sharswood, Mercur, Gordon and Woodward, JJ.
    Error to the Court of Common Pleas of Dauphin county: Of May Term 1875, No. 67.
    This was an action of assumpsit, brought March 24th 1871, by Daniel Dougherty and Daniel W. Seiler against Richard A. Malone and Michael J. Barry. The sheriff returned “ Nihil ” as to Barry. Malone pleaded, “ Payment with leave,” &c. The cause of action was the following note :

      U Lancaster, July 30th 1867.
    Forty days after date we promise to pay to the order of Daniel Dougherty and Daniel W. Seiler, Five Thousand Dollars, without defalcation, for value received, at Reed, McGrann & Co.
    Richard A. Malone,
    Michael Barry,
    For Michael J. Barry.”
    The case was tried January 6th 1875, before Pearson, P. J.
    The plaintiff gave the note in evidence. Also an agreement under seal, dated July 30th 1867, between the plaintiff and the defendant, Michael J. Barry and Michael Barry. The agreement recited that Dougherty, Michael Barry, Seiler and Malone had contracted with the Western Maryland Railroad Company to construct their railroad, on the terms mentioned in the contract, and Dougherty and Seiler were desirous of withdrawing from the partnership, and had agreed to assign all their interest in the contract to Malone and Michael J. Barry for $10,000, of which $5000 was to be paid cash and $5000 in forty days, Michael Barry agreeing to the assignment. Dougherty and Seiler then, “in consideration of the premises,” assigned to Malone and Michael J. Barry, “ all their parts, shares, rights and interests, of, in and to all the capital stock, debts, moneys, books of account, vouchers, securities, effects, matters and things, due, owing or belonging to said co-partnership arising out of said-contract, and all gains and future profits thereof, and all benefit and advantages therefrom. And the said Richard A. Malone and Michael J. Barry covenant and agree, to and with them, the said Daniel Dougherty and Daniel W. Seiler, to pay, or cause to be paid, all the debts owing from or by the said late co-partnership, and to fulfil all the other engagements of said co-partnership, and to save, defend and keep harmless the said Dougherty and Seiler, and their estates and effects, of and from all losses, damages, costs and expenses whatsoever, that may occur or arise by reason of any engagements of the said late co-partnership. And the said Daniel Dougherty, Daniel W. Seiler, Michael Barry and Richard A. Malone, do, and each of them doth, by these presents, release and discharge each other and every of them, of and from all actions, suits, accounts and reckonings, claims and demands whatsoever, for or by reason or on account of the said late co-partnership.”
    The agreement was executed by all the parties.
    Seiler, one of the plaintiffs, was called to the stand and testified that the note in suit was given for the $5000 mentioned in the agreement, which was to be paid in forty days. The work was to be done in Maryland.
    On cross-examination be said :
    McDougal had no interest in the note or the agreement. William and Dennis Dougherty were interested; none others. The plaintiffs proposed to give or take $10,000; this was offered to get a settlement.
    Defendants then proposed to prove by witness- that James McDougal was interested in the contract referred to in the agreement given in evidence, and was at the time a director of the Western Maryland Railroad Company, and that information was communicated by him to witness, which induced him. and his co-plaintiff to sell out to Malone and Barry.
    The offer was objected to; rejected, as not proper on cross-examination, and a bill of exceptions was sealed.
    Defendant proposed to ask who was interested in the contract referred to in this one in evidence, or if they had information of the intended sale.
    This was objected to as irrelevant and inadmissable until defendants have introduced their case.
    The court rejected the offer and sealed a bill of exceptions.
    R. A. Malone, defendant, testified: That the persons interested in the contract were Dougherty, Seiler, Malone and Michael Barry, and also James McDougal and William Dougherty. Mc.-Dougal was brother-in-law of D. Dougherty. “ After the agreement we went on to work; we received the July estimate in part; I came to Harrisburg with Ettele and J. W. Malone, sub-contractors, and stated the condition of affairs in Baltimore to Seiler and Dougherty; came to get a release of stock attached in the hands of McDougal against us, and to get my note; Seiler gave me a power of attorney to have the stock released; I then demanded the note; Seiler said he had it not in his possession, and did not feel disposed to give it if he had; I told him unless he gave up the note, I would not return to Baltimore,' as my life would not be safe there, and suits would be brought against the whole firm. * * * D. Dougherty told him to do as he thought proper; he then offered to give the release, which I accepted; Seiler asked why I wanted the note; I told him suits had been brought, and were about to be brought for over $100,000.”
    The release was as follows:
    “ Harrisburg, Pa., October 3d 1867.
    It is agreed that if Richard Malone can show he did not make any money out of the July estimate paid by the Western Maryland Railroad, then Daniel Dougherty and myself agree to withdraw note of Malone and Barry for $5000, given us by said parties.
    D. W. Seiler,
    Witness — H. Ettele. Dan’l Dougherty, per Seiler.”
    Defendants proposed to prove that suits had been brought, and others were threatened, by creditors, against the original contract-tors (the plaintiffs and defendants in this suit); that defendants undertook to settle and compromise these suits, to transfer the shares of stock they held in the railroad to the railroad company, to surrender all interests defendants had in the contract to the company, and to procure releases from the railroad company and from the sub-contractors, to all the parties to the suit; and that all this was done in pursuance of the arrangement of which the paper of October 3d 1867, is part.
    This was objected to by plaintiffs because it did not tend to show any consideration for the giving of the paper of October 3d 1867, all the matters offered to be proved having been agreed to be done by defendants at the time the note in suit was given.
    The offer was rejected, and a bill of exceptions sealed.

      The defendants offered to show that they “ did not make any money on the July estimate paid by the railroad company.”
    This was objected to: First, it is not offered to be proved until the trial, or that they ever before the present time showed or offered to show that fact to the plaintiffs. Second, because if proved, it would furnish no proof of consideration for the writing, as the defendants had the entire contract assigned to them, undertook to carry on the work at their own risk, as appears by the article, and plaintiffs only promised to release the note on condi-, tion that they would carry on the work at their own risk of profit and loss; therefore there was no consideration for the promise to release.
    Defendants claimed that there was the further consideration, that they have brought witnesses here at expense, and been put to trouble and expense in having the same, and in preparing for trial to prove that fact, to which it was objected that the proposed consideration arose on the trial, and the fact proposed should have been shown to plaintiffs long before.
    The' court rejected the offer, saying:—
    “ Whether this fact was offered to be proved in time might be a question for the jury as well as the court; but we are of opinion that there would have been no consideration for the promise, if made, for the reasons raised in the second objection. There may be something in the first, as it is very late to furnish a consideration on the trial. But the evidence, if heard, would not render the writing of any validity.”
    The offer was rejected, and a bill of exceptions sealed.
    The defendants proposed to prove that on the 8d of October 1867, there was a new contract made between the parties, by which the plaintiffs agreed to release or discharge the defendant from the payment of the note in suit, in consideration of which the defendant agreed to release and did release to said railroad company his interest in the original contract of construction, at the request of the plaintiffs.
    This was objected to, because it is not offered to show that plaintiffs requested defendants to release the railroad company from its contract for constraction, and if they did release for the purpose of getting clear of the contract and saving all parties from loss, it is only complying with their article with plaintiffs to procure their discharge from all contracts, and indemnify and save harmless against all losses, &c., as stipulated therein.
    The offer was rejected, and a bill of exceptions sealed.
    Defendants closed, and the court directed the jury to find for the plaintiffs for the amount of the note and interest.
    The verdict was for the plaintiffs for $7197.67.
    The defendants took a writ of error; they assigned for error :—

      3. Rejecting the offer to prove that McDougal was interested in the contract, &c.
    2. Not permitting the defendants to ask who was interested in the contract, &c.
    8. Not permitting the defendants to prove that suits had been brought and others'threatened, and that defendants undertook to settle and compromise these suits, &c.
    4. Not allowing defendants to prove that they made no money out of the July estimates, &c.
    5. Not allowing the defendants to prove that on the 3d of October 1867, there was a new contract by which the plaintiffs agreed to release defendants from the note in suit, &c.

      R. A. Lamberton and F. Jordan, for plaintiff in error.
    The questions rejected because asked on cross-examination, arose directly out of the testimony given in chief — related to the res gesta, and were therefore proper : Perit v. Cohen, 4 Wharton 81; Markley v. Swarztlander, 8 W. & S. 172; Bank v. Fordyce, 9 Barr 275 ; Jackson v. Litch, 12 P. F. Smith 451; McClelland v. West, 20 Id. 183.
    Parol evidence of a consideration not mentioned in the writing is admissible: Chalfant v. Williams, 11 Casey 212 ; Buckley’s Appeal, 12 Wright 491 ; Lewis v. Brewster, 7 P. F. Smith 410 ; Rearich v. Swinehart, 1 Jones 233. Although the parties had entered into contract under a seal, they might, still make a parol contract on the same subject. The paper of October 3d 1867 was an agreement to forbear, and therefore there was a consideration : 1 Chitty on Cont. 35; 1 Parsons on Cont. 366; Hamaker v. Eberley, 2 Binney 506 ; Silvis v. Ely, 3 W. & S. 420 ; Kean v. McKinsey, 2 Barr 30; Dundas v. Sterling, 4 Id. 73; Grove v. Hodges, 5 P. F. Smith 514. So mutual promises are a consideration: 1 Chitty on Contr. 5; 2 Kent’s Comm. 465; Kiester v. Miller, 1 Casey 481; Barnes v. Perrine, 9 Barb. 202; Kidder v. Boom Co., 12 Harris 193.
    The prevention of litigation is a consideration : 1 Parsons on Cont. 363; 1 Chitty on Cont. 46 ; O’Keson v. Barclay, 2 Penna. R. 531; Bennet v. Paine, 5 Watts 259; Brown v. Sloan, 6 Id. 421; Worrall’s Accounts, 5 W. & S. 111; Chamberlain v. McClurg, 8 Id. 31.

      J. W. Simonton (with whom was M. Norton), for defendants in error.
    As to the questions on cross-examination, cited : Jackson v. Litch, 12 P. F. Smith 451; Helser v. McGrath, 2 Id. 531. The paper of October 3d 1867 was but a conditional offer, not shown to have been accepted by the defendant: Morrow v. Waltz, 6 Harris 118; Weaver v. Wood, 9 Barr 220; Clark v. Russel, 3 Watts 217; Shupe v. Galbraith, 8 Casey 10; Snyder v. Leibengood, 4 Barr 305 ; Bieber v. Beck, 6 Id. 198.
   Mr. Justice Woodward

delivered the opinion of the court, October 13th 3875.

The rejection of the proof which the defendant below proposed to make by the testimony of Daniel W. Seiler, one of the plaintiffs, on cross-examination, is the ground for the first and second specifications of error. The facts themselves were both relevant and material. They were offered to show, in substance, that when the agreement of the 30th of July 1867, for the transfer to the defendant and Michael J. Barry of the original contract of Dougherty, Michael Barry, Malone and Seiler with the Western Maryland Railroad Company was made, the plaintiffs were aware that payment by the railroad company was about to be suspended. But it does not follow that the evidence was admissible on cross-examination. The suit was on a note given on the 30th of July 1867. The suspension of payment did not occur until some weeks afterwards. The admission of proof that the plaintiffs had knowledge of it would have involved the admissibility of proof of the fact of the subsequent suspension itself. And to make these details intelligible, and to show their relevancy to the issue, it would have been necessary to exhaust the knowledge of the witnesses in relation to the effect on the interests of the defendant which the suspension produced. The whole defence would have been interjected into the case upon the cross-examination of the first witness for the plaintiffs, and the presentation of their rebutting evidence would have been rendered inevitable. By such a method of development the trial of the cause would have been only confused, hampered and delayed. The evidence could have been offered with perfect safety on the part of the defendant in chief. By the 2d section of the Act of April 15th 1869, Mr. Seiler could have been required to testify “ as if under cross-examination.” It is not apparent how, by pursuing legitimate forms, the defence would have been subject to any embarrassment, or have incurred the loss of any due advantage. The offers were properly rejected.

At the stage which had been reached when the testimony specified in the third and fourth assignments of error was offered, the ruling of the court in rejecting it was right. The agreement of the plaintiffs of the 3d of October 1867, providing that the note in suit should be withdrawn if the defendant could show that he made no money out of the July estimate paid by the railroad company, had been given in evidence. The proposition of the defendant to prove that suits had been brought against the original contractor; that the defendant undertook to settle them and procure releases from the railroad company and the sub-contractors, and that this was done under an arrangement of which the paper of the 3d of October 1867 was part, amounted to nothing more than an offer to show that he undertook in October to perform the agreement he had made on the preceding 30th of July. In accepting the assignment of the railroad contract, the defendant and Michael J. Barry had bound themselves to pay all the debts of the original co-partnership, and “ to save, defend and keep harmless the said Dougherty and Seiler, and their estates and effects, from all losses, damages, costs and expenses by reason of any engagements of the said late co-partnership.” The consideration of the assignment was ten thousand dollars, of which the note in suit was part. It is obvious that a defence to this note could not consist in proof that the obligations assumed in the agreement for the assignment were either subsequently undertaken or subsequently performed. The offer to show that the defendant had made no money on the July estimate was properly treated as incompetent, for, as the case stood, there was nothing whatever to indicate that the agreement of the 3d of October 1867 had been made upon any consideration, and without that, it was conceded on the argument, for all contract purposes it was valueless and void.

The fifth assignment is based on better grounds. The defendant proposed to prove that “ on the 3d of October 1867 there was a new contract made between the parties, by which the plaintiffs agreed to release or discharge the defendant from the note in suit, in consideration of which the defendant agreed to release, and did release, to the railroad company, his interest in the original contract of construction, at the request of the plaintiffs.” That the scope of this offer was inadequately apprehended, is apparent from the record. The counsel for the plaintiffs objected to it because it was “not offered to show that the plaintiffs requested the defendant to release the railroad company from its contract for construction;” and the court rejected it on the ground that “the subsequent arrangement of the defendants and the company was of their own mere motion, and without the plaintiffs’ request.” It is probable that if the testimony specified in the fourth, sixth and seventh bills of exception had been presented in a single offer, exhibiting in symmetrical form the entire theory of the case which the defendant set up, the controversy would have been finally determined in the court below. There is no doubt that the evidence to establish a fresh contract in October 1867 ought to have been received. And the reception of that evidence would probably have brought into view the details of the new arrangement which, when separately presented, had been properly excluded. Enough can be gathered from the record to indicate at least that on the 3d of October 1867, embarrassments had been encountered in the efforts of'the defendant and his partner to perform the contract which they had assumed, and that some suits had been brought and others were threatened against the original contractors, amongst whom the plaintiffs were included. For reasons that satisfied the parties, a different mode from that originally adopted was agreed upon in order to relieve them all from the obligations under which they rested. This mode involved the relinquishment by the defendant and Michael J. Barry of their rights under the contract with the company. And permission was asked to prove that these rights were thus relinquished at the instance' of the plaintiffs. All the elements of a contract are embraced in the facts alleged. The release executed to the company, and the extinguishment of the claims of creditors by that means, would constitute a consideration for the stipulation of the plaintiffs to withdraw their claim upon the note in suit upon the terms which the agreement of the 3d of October specified. “ A release to a third party of an interest in lands, at the request of the promissor, is a good consideration for his promise, in a certain event, to pay the releasor a sum of money Shoenberger’s Ex’rs v. Zook and Wife, 10 Casey 24. The proposition to prove the new contract which was made on behalf of the defence, was warranted by ample authority. The rule that extrinsic verbal evidence is not admissible to contradict or alter a written instrument, is not infringed by the admission of oral evidence to prove a new and distinct agreement, upon a new consideration, whether it be a substitute for the old, or in addition to and beyond it: 1 Grreenl. Ev., § 303. It is also well settled that in a ease of a simple contract in writing, oral evidence is permissible to show that by a subsequent agreement the time of performance was enlarged, or the place of performance changed, the contract having been performed according to the enlarged time, or at the substituted place, or the performance having been prevented by the act of the other party ; or that the agreement itself was waived or abandoned. So it has been held competent to prove an 'additional and suppletory agreement by parol; as, for example, where a contract for the hire of a horse was in writing, and it was further agreed by parol, that accidents occasioned by his shying should be at the risk of the hirer: Ibid., § 304; Le Fevre v. Le Fevre, 4 S. & R. 241, supports the same general rule.

It is no answer to the general objections of the defendant to say that the agreement of the 3d of October 1867, for the withdrawal of the note, was a conditional promise resting upon an executory consideration, and that a failure to show a loss of profits on the July estimate left the consideration unexecuted. This might be so if the entire contract consisted of the instrument in question. But it is alleged that this was part of the contract only, and that the agreement to release the railroad company, which was the consideration for the instrument itself, has been performed. As the offer of proof in regard to profits was rightly rejected when it was made, there is nothing to require the expression of any opinion as to its admissibility on its presentation before another jury. It may be said, however, that in the absence of any plan of ascertainment provided by the paper, or by any subsequent agreement of the parties, it is difficult to conceive of any other mode of settling the question than by making it an issue in the trial of the cause.

Judgment reversed, and venire facias de novo awarded.


author: Mr. Justice Paxson

text:
    Bell’s Gap Railroad Company versus Christy.
    1. Where a number of persons not incorporated but associated for a common object, intending to procure a charter, authorize acts to be done in furtherance of their object by one of their number, with the understanding that he should be compensated; if such acts were necessary to the organization and its objects and are accepted by the corporation and the benefits enjoyed, they must be taken cum onere and be compensated for.
    2. In such case the promoters of the enterprise must be a majority of them. A minority could not bind the association or corporation.
    May 18th 1875.
    Before Agnew, O. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Blair county: Of May Term 1875, No. 66.
    This was an action of assumpsit, brought to the July Term 1873 of the court below, by Josiah M. Christy against The Bell’s Gap Railroad Company.
    The suit was brought to recover money expended by plaintiff in procuring the charter of the defendants, in payment of surveyors, &c., in making explorations and running the line of their road, &c., and also for his own services in the same matter; the whole occurred before the corporation came into existence, but plaintiff claimed that the defendants having accepted the results of his work, &c., they became liable to pay him.
    The company was incorporated by virtue of the Act of May 11th 1871, Pamph. L. 737. This act appointed commissioners— amongst whom were John Brotherline and the plaintiff — to receive subscriptions and organize under the name of The Bell’s Gap Railroad Company, to make a railroad of a gauge not exceeding three feet nine and a quarter inches, from the Pennsylvania Railroad, at Bell’s Mills Station, to a point on the top of the mountain near Tub Spring, on a route recently surveyed by G. W. Dorner, thence to a point on Clearfield creek, near “Fallen Timber,” not to exceed twenty miles in length, and from Tub Spring to Galitzen; the capital to be $100,000, in shares of $50 each.
    By a supplement of March 29th 1872, Pamph. L. 700, the company were authorized to extend their road over the mountain at Bell’s coal bank, “instead of a route recently surveyed and laid out by G. W. Dorner.” Inconsistent provisions in the original act were repealed.
    The case was tried February 5th 1874, before Dean, P. J.
    John Brotherline testified that about June 1870 the plaintiff and himself, upon consultation, determined upon an effort to construct a road up Bell’s Gap; they got out handbills for the call of a meeting for the purpose, to be held at the St. Charles Hotel, Altoona, on the 2d of July 1870. A meeting was accordingly held, at which the plaintiff and witness were present; the plaintiff was chosen president of the meeting; one Lytle was appointed engineer to ascertain the practicability of a route, and the plaintiff' was directed to attend to the matter, and have the survey made; the meeting was to organize a company in view of obtaining a charter; Lytle reported favorably of the route; witness prepared a bill; sent it to the legislature; it was passed in May 1871; witness and plaintiff gave notice of a meeting for the purpose of organizing the company ; a meeting was called also by other commissioners, to be held previously to the time fixed by witness ; it was held at Mr. Neff’s office in Altoona, and all the stock was taken there, and the company (defendants) organized; they commenced shortly afterwards, and built the road; the meeting called by witness and plaintiff never was held.
    On cross-examination witness said:
    The- bill which he prepared authorized the company to extend the road to Erie ; being informed that the bill could not be passed in that shape, he prepared a second bill, by which the road should go to Tub Spring, Fallen Timber and Galitzen, and not to exceed twenty miles in length ; this was passed. The first bill proposed a broad gauge road; there were also changes made in the commissioners by the second bill; witness and' Christy could not get the law passed to suit their wishes.
    Plaintiff testified as to the preliminary explorations, &c.; that Mr. Lytle’s services were discontinued and Mr. Dorner was employed as engineer; witness then stated the routes explored by Mr. Dorner; that the surveying party was under plaintiff'’s charge; he was with them during the time they were making the survey, except a few days; paid most of the expenses, &e. A final location was made by Dorner, and a regular profile was made, showing that the difficulties of ascending the mountain could be overcome; there were other locations made afterwards, and the first locations were necessary to determine the propriety of the latter. Witness went frequently to Harrisburg about the charter, and incurred expenses there; also to New York to procure funds to make the road.
    On cross-examination, he said that individuals, whom he named, at different times requested him to get up a company through Bell’s Gap, to get to their timber; that witness expected to be paid for his services; that at the meeting at Altoona on the 2d of July 1870, a board of directors was formed who authorized witness to go to New York, Washington and other cities to raise funds; when first making the survey the purpose was to get a road from Bell’s Mills to Erie, and a bill for that purpose was the one he wished passed; his idea was that he could make money out of the road as a corporator, to hold a position in the company which would pay him; individuals whom he named and who were interested on the road told him they would see him remunerated for his services; he expected to be remunerated by the company by a salary for his services; the road was to be a broad gauge road.
    Another witness testified that the company represented by the meeting of July 2d 1870, so far as they were there, two or three at, a time, authorized plaintiff to go on with the business; it was the calculation to pay him, but nothing was said as to how he was to be paid. There was other evidence of similar character as to plantiff’s services, and that Dorner’s map was used by defendants.
    Defendants gave evidence that the bill first sent to the legislature was for a broad gauge road from Bell’s Mills to Erie; the impression at Harrisburg being that the road was in the interest of a New York corporation, there were objections to its being reported, and it was then ascertained that the bill was for a different purpose from that which the parties in the vicinity of Bell’s Mills desired; the bill was then modified and was passed in the form before given; plaintiff did not make any efforts to get .the last-bill through; the termini in the original bill were Bell’s Mills and Lake Erie. The meeting was held on the 18th of May 1871; the plaintiff had notice of it; a committee was appointed to open books for subscription to the stock at Mr. Neff’s office, June 18th, at 1 o’clock; the meeting was advertised; the books were then opened and all the stock was subscribed. The road was made on the line mentioned in the supplement, not that in the original charter; Dorner’s survey was not used; the object of the original proprietors of the road was to reach Bell’s coal lands; the survey for the defendants was made by Mr. Ramsey. The stock was subscribed to a great extent by persons in the neighborhood of Bell’s Mills. Dorner’s map went into the hands of the defendants’ engineer; none of the line of the constructed road was laid on Dorner’s line; but his map was of service in the explorations. There was evidence also that the promoters of defendants’ road never employed the plaintiff.
    The defendants’ third and fourth points, with their answers, were as follows :—
    3. If Christy was not employed by the company as a company nor by any one on behalf of - the company, or by any corporator or authorized agent of the corporation, but was employed, if at all, by individuals, his remedy, if he have any, is against such individuals, and not against the defendants.
    Answer. “We decline to instruct you as requested. Plaintiff claims he was one of those engaged in the inception of the enterprise, who, having in view the chartering of a company to build this road, made preliminary surveys to ascertain whether it was practicable to build a road at that point; that such surveys were necessary, and that in and about them he performed onerous duties that the others did not share; that he did so in expectation of compensation, upon a promise of those or a majority of those acting with him, that he should be paid by the company thereafter to be organized ; that when this company was organized it accepted and enjoyed the results of his work. If the facts be as plaintiff claims, he can recover from these defendants.”
    4. The railroad for which Christy had the survey made was a broad gauge road with different termini, being from Bell’s Mills to Lake Erie, being an entirely different route from that on which the Bell’s Gap railroad is laid out and constructed, and is no benefit to defendants, and therefore plaintiff cannot recover.
    Answer. “ This point assumes facts here disputed, which we have left for your determination, with proper instructions in our general charge, and for that reason we decline to affirm it.”
    The verdict was for the plaintiff for $848.70.
    The defendants removed the record to the Supreme Court by writ of error. They assigned a number of errors to the charge and to the answers to the defendants’ points. The third and fourth errors were the answers to the defendants’ third and fourth points.

      B. J. Neff, for plaintiff in error.
    Plaintiff was president of the promoters, and as such could not hold the corporation liable; corporations are not liable to their officers on a quantum meruit: Kilpatrick v. Penrose Ferry Bridge, 13 Wright 118 ; Loan Association v. Stonemetz, 5 Casey 534. Even if plaintiff’s work had been accepted by the defendants, previous notice of his claim was essential to a recovery: Low v. Conn. & P. R. Railroad, 45 N. H. 375; 2 Greenl. on Ev., sect. 66.

      5. S. Blair, for defendant in error.
    Contracts with a company not organized, but in view of organization, are binding: Edinboro’ Academy v. Robinson, 1 Wright. 210 ; Erie & W. Plankroad Co. v. Brown, 1 Casey 156; Bedford Railroad v. Bowser, 12 Wright 29; Preston v. Liverpool, &c., Railroad, 7 Eng. Law & Eq. 124; Goodey v. Colchester & S. V. Railroad, 15 Id. 596; Edwards v. Grand Junction Railroad, 1 Myl. & Cr. 650.
   Mr. Justice Paxson

delivered the opinion of the court, May 24th 1875.

This case lacks all the elements of a contract, either express or implied. The most that it amounts to is the expenditure by the plaintiff of a certain amount of his time and money in the furtherance of a scheme of constructing a railroad. He attended meetings ; visited Harrisburg for the purpose of obtaining a charter; assisted in making a preliminary survey, and paid some of the expenses thereof. There was no contract with any one for the payment of his services, beyond the statement of some of the parties interested in the project that they would see him paid. All this was prior to the charter, or to any organization of the company. The road which the plaintiff had in view when he made the survey, as appears from his own testimony, was a broad gauge road, to run from Bell’s Mills to Erie, and he evidently relied upon aid from New York capitalists to build it, with the expectation of retaining an important position in the company. He did not succeed in obtaining the required aid, and the road to Erie was never constructed or even commenced. Instead thereof, a short local narrow gauge road, called the Bell’s Gap Railroad, was built, with the object in part to develop certain coal lands in the vicinity. The stock was principally taken in the neighborhood. The plaintiff, and others interested with him, were among those named as corporators in the act incorporating the company, but they failed to obtain the control of its organization. Subsequently, the plaintiff brought suit against the company to recover compensation for his services, as before stated, claiming that the company were bound by the promises of the original projectors of the enterprise, inasmuch as said company had accepted the result of his labors and enjoyed its benefits.

None of the cases cited by the defendant in error sustains his position. The Erie and Waterford Plankroad Company v. Brown, 1 Casey 156; and the Bedford Railroad Company v. Bowser, 12 Wright 29, were suits upon subscriptions to stock. The case of the Edinboro’ Academy v. Robinson was a subscription in aid of an academy. There is not the slightest analogy between either of these cases and the one under consideration. In Burton v. The Liverpool, Manchester and New Castle-upon-Tyne Junction Railway Company, 7 Eng. Law & Eq. Rep. 124, the contract was between the plaintiff and an organized company. This was a case where the projectors agreed to pay the complainant 5000Í. for the land to be taken for the railway and incidental damages, and the plaintiff thereupon assented that his land should be so taken. The agreement was in writing between the plaintiff and the executive directors of Lancashire and North Yorkshire Railway Company, which was afterwards united with another rival enterprise, under the name of the defendant corporation, and the two companies agreed to adopt the contract with the plaintiff. It is true the company had not yet obtained its charter, but it was still, an organization in esse, had a board of directors who assumed to make contracts binding upon the company when it should become thereafter fully clothed with corporate powers. In Low v. The Railroad Company, 45 N. H. (1 Hadley) 472, a charter had been obtained, and the services for which the suit was brought were rendered in promoting the organization of the company under the charter, procuring subscriptions to the capital stock, &e. It was held by the court in that case that, “ where, after the charter and before the organization of a corporation, services are rendered which are necessary to complete that organization, and after it has been perfected, the corporation elects to take the benefit of such services, knowing that they were rendered with the understanding that compensation was to be made, it will be held liable to pay for the services upon the ground that it must take the burthen with the benefit; but that£ no promise to pay would be implied from the fact that such services were rendered at the request of any number of the corporators less than a majority.’ ”

We do not desire to controvert the principle, established in England, and to some extent recognised in this country, that when the projectors of a company enter into contracts in behalf of a body not existing at'the time, but to be called into existence after-wards, then if the body for whom the projectors assumed to act does come into existence, it cannot take the benefit of the contract without performing that part of it which the projectors undertook that it should perform. Conceding to this principle its full force and effect, we are unable to see its application to the facts of this case. It may very well be that where a number of persons not incorporated are yet informally associated together in the pursuit of a common object, and with the intent to procure a charter in the furtherance of their design, they may authorize certain acts to be done by one or more of their number, with an understanding that compensation shall be made therefor by the company when fully formed. And if such acts are necessary to the organization and its objects, and are subsequently accepted by the company, and the benefits thereof enjoyed by them, they must take such benefits cum onere, and make compensation therefor. But the projectors or promoters of the enterprise within the meaning of the rule referred to, evidently must be a majority at least of such persons, and not one, two, or three, or a small minority thereof. Such minority can have no more authority to bind the association or corporation in its incipient or inchoate condition than they would have to bind it if fully organized. In this case the two or three persons who it is alleged promised the plaintiff to see him paid, bound no one but themselves. They had no authority to speak for any one else. In the absence of any such authority and of any satisfactory proof that the result of the plaintiff s labor and expenditures was accepted and enjoyed by the corporation, that it used the plaintiff’s survey or located its road upon any considerable portion of the line thereof, the court below should have instructed the jury that the defendants were not liable.

It is to be observed that in all the cases which were brought to the attention of the court, the services were either performed after the charter had been obtained, and there was therefore an inchoate corporation, or there was an informal organization, as in the case, cited in 7 Eng. Law & Eq. Rep., preparatory to obtaining a charter, and the employment was authorized by the organization as such, and was not the mere employment by individuals having no authority, express or implied, to contract for any one.

We think the court erred in their answer to the defendant’s third point. Under all the evidence in the cause it should have been affirmed. There was, also, error in not affirming the defendant’s fourth point. It appeared from the defendant’s own testimony that the road for which he had made the survey was a broad gauge road with a different terminus, being from Bell’s Mills to Erie, and was essentially a different route from that on which the Bell’s Gap Railroad was laid out and constructed.

This covers the third and fourth assignments of error. The remaining assignments need not be discussed.

The judgment is reversed and a venire facias de novo awarded.