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    Pennsylvania Railroad Co. versus Langdon.
    1. The right of a railroad company to make reasonable rules for its own protection and for the safety and convenience of passengers has been frequently recognised.
    2. A passenger who voluntarily leaves his proper place in the passenger-car of a railroad, in violation of the rules of the company, to ride in the baggage-oar, or other known place of danger, and is injured in consequence of such violation cannot recover damages therefor.
    3. It seems, this would not apply to an accident the result of a brief visit to the baggage-car to give some needed directions about a passenger’s baggage, to have it re-cheeked, or for any other legitimate purpose, but to a person who rides in a baggage-car in violation of a known rule of the company, and who is injured in consequence of such violation.
    4. Where the rule of a company is intended for the safety of the passengers the company will be relieved from responsibility if it be shown that an injury was received in consequence of a violation of the rule, and this notwithstanding the fact the negligence of the company’s servant was the cause of the accident.
    5. A conductor of a railroad train cannot, in violation of a known rule of the company, license a man to occupy a place of danger so as to make the company responsible.
    6. A conductor cannot waive a rule which by its very terms he is commanded to enforce. He may neglect to enforce it, and where the rule is a mere police arrangement of the company, such request may perhaps amount to a waiver as between the passenger and the company. But when the rule is for the protection of human life the case is very different. O’Donnell v. Allegheny Valley Railroad Co., 9 P. F. Smith 239, and Creed v. Pennsylvania Railroad Co., 5 Norris 139, distinguished.
    7. The provisions of the Act of April 4th 1868, limiting the amount to be recovered in case of death to $5000, were accepted by a railroad company on April 15th 1868, by a formal resolution of their board of directors. Held, that the act thereby became a part of the charter of the company, and the clause in the constitution of 1874, repealing all laws limiting the amount to be recovered in such cases, was inoperative as to said railroad company: Hays v. Commonwealth, 1 Norris 518, followed.
    November 4th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., absent.
    Error to the Court of Common Pleas, No. 1, of Allegheny coimtg : Of October and November Term 1879, No. 37.
    Case by Mary A. Langdon, widow of Stephen Langdon, Albert Smith and Anna Maria Smith, his wife, in right of said wife and Mary Emma Langdon, a minor, by her mother and next friend, Mary A. Langdon, against the Pennsylvania Railroad Company, operating the Western Pennsylvania Railroad, to recover damages for the death of Stephen Langdon, which it was alleged was caused by the negligence of defendant.
    Langdon was killed on the evening of July 23d 1877, by a collision of trains on the Western Pennsylvania Railroad, on one of which he was a passenger. For some days previous a mob had taken possession of the property of the Pennsylvania Railroad Company, in the city of Pittsburgh, had burnt the Union depot, the cars, shops and locomotives of the company, and so effectually destroyed the tracks that no passenger trains could be run. On Monday evening, July 28d, it was determined to attempt moving a passenger train eastwardly on the Western Pennsylvania Railroad, a branch line of the Pennsylvania Railroad Company, having a connection with the main line at Blairsville intersection, and its terminus on Federal street, Allegheny City. The train proceeded, in safety from that point to Sharpsburg, a distance of five miles from the city, the end of the double track, and stopped, the conductor going to the telegraph ofiice of the company for orders as to the running of his train. He quickly returned from it, and started the train, wholly misunderstanding the order. The train should have waited at Sharpsburg until' the mail train west passed it. After going about two miles it collided with that train, and by this accident Langdon, who was on the mail train, was so much injured that he died in a few hours.
    It was an undisputed fact in the case that he was in the baggage-car at the time of the accident. His train had stopped at Claremont station, and he then got on it, going at once into the baggage-car. He was engaged in conversation with Mr. Luther, the baggage-master, from that station until the train collided, a very brief period of time, for the distance was hut short. lie was an employee of the Pennsylvania Railroad Company, not at work on the Westei'n Pennsylvania Railroad, but on the main line. Lang-don lived near Claremont, and had daily gone up and down the road, riding on a commutation ticket, such as was ordinarily sold to passengers. He was a passenger, and one with knowledge of the rules of the company, such as no ordinary traveller had. He was in the baggage-car, contrary to a printed notice posted in it, forbidding any passenger riding therein. The following is a copy of the notice, which was given in evidence:
    “PENNSYLVANIA RAILROAD CO.
    “ Pennsylvania Railroad Division.
    “notice to passengers.
    “The following is an extract from the Book of Rules governing the employees of the Pennsylvania Railroad Company:
    “Rule 166. — -‘They (the Trainmen) must see that passengers are PROPERLY SEATED, AND WILL NOT ALLOW THEM TO STAND ON THE PLATFORMS OF THE OARS, NOR RIDE IN THE BAGGAGE OR MAIL OARS.’
    “ Conductors and Brakemen are instructed to strictly enforce this rule, and it is expected that passengers will cheerfully comply, as the rule is one intended for their own safety, it being particularly dangerous for passengers to he on platforms as trains approach Stations.
    “G. Clinton Gardner,
    “ General Superintendent.
    “General Superintendent’s Office, 1 “ Altoona, Dec. 12, 1876.” J

      Had deceased gone into the smoking-car, or any of the other cars of the train, it appeared no harm would have befallen him. The evidence was uncontradicted that no passenger in either of them was injured, for only the platform of the smoking-car, which was next to the baggage-car, was broken, and neither it nor any car behind it was even thrown from the track. Shortly after the collision Langdon stated he was in the baggage-car at the time of the accident, and that if he had not been in it he would not have been inj ured.
    The plaintiffs having shown the manner of Langdon’s death, his age, occupation and habits, closed their case. The defendants set up as ground of defence that he was in the baggage-car, in violation of the rules of the company and with positive knowledge as a railroad employee, that he had gone into a forbidden place, and was there at his peril. And that by his unlawful act he had been the occasion of his death and guilty of such contributory negligence as would defeat the plaintiffs. After the defendants had closed their case, evidence was offered and received on part of the plaintiffs tending to show that Langdon was in said car with the implied assent of the conductor of the train, there béing no allegation that any express consent or permission had ever been given by him to Langdon to ride in that car.
    At the trial, before Stowe, P. J., the defendant submitted, inter alia, the following points, to which are subjoined the answers of the court:
    1. If the jury believe from the evidence that some months prior to the collision, notices were placed in the passenger and baggage-cars of the mail train forbidding passengers to ride in the baggage-car, the act of Stephen Langdon, deceased, in being in said car at said time was illegal, and the plaintiff cannot recover, even though there was a permission, express or implied, on the part of the conductor for him to be there.
    Ans. “ Refused.” (First assignment of error.)
    2. If the court should decline to affirm the foregoing point, then they are requested to charge the jury that there is no sufficient evidence to warrant the jury in finding that any permission, express or implied, on the part of the conductor of the mail train, existed, whereby said Langdon was lawfully in the baggage-car on the day of the collision, and by reason thereof the plaintiffs cannot recover.
    Ans. “Refused.” (Second assignment.)
    6. That the jury are not at liberty to find such implied permission existed, unless the evidence satisfies them that said Langdon did so frequently and notoriously ride in said baggage-car as reasonably to induce the belief that the conductor knew he did so, and that unless the jury are satisfied that such was the fact plaintiffs cannot recover.

      Ans. “Affirmed. With the qualification, that if you believe that the conductor actually knew from his own observation that he had done so before and made no objection thereto, or knew from personal observation that he was in that car the day of the collision previous to the accident sufficiently long before the collision to enable him, without neglecting his other pressing duties, to request him to leave and did not do so, this may be sufficient evidence of implied assent.” (Third assignment.)
    7. That if the jury believe from the evidence that said Langdon was not in the habit of riding in said baggage-car, but on several occasions, while on the train, may have left his seat in one of the passenger-cars and gone into the baggage-car for a special purpose, without remaining therein but for a short time, and then returned to the car he had left, such acts would not justify the jury in finding that he had an implied permission from the conductor to ride in the baggage-car, and if the evidence shows no greater permission than that, plaintiffs cannot recover.
    Ans. “ Affirmed, but if the conductor knew that deceased did as stated in this point, and that he did so to converse with Luther, the baggage-master, or for other purposes of his own, remaining there as indicated by plaintiff’s evidence, this would be evidence from which the jury may infer consent of the conductor to his being there which would be sufficient to justify a verdict for plaintiffs so far as this question is concerned.” (Fourth assignment.)
    8. That in no event can there be any recovery greater than the sum of $5000, because of the acceptance of the Act of April 4th 1868, by the Pennsylvania Railroad Company, as shown by the certified copy of the resolution of said company given in evidence.
    Ans. “ Refused. This question can be raised by motion in arrest of judgment, if the verdict should render it necessary.” (Fifth assignment.)
    The benefit of the Act of April 4th 1868 (Pamph. L. 1868, p. 59), was claimed to limit the amount of recovery to $5000, because the act had been accepted by the Pennsylvania Railroad Company by a resolution of its board, a certified copy of which was given in evidence. Forming thus a part of the charter of the company, it was contended the clause in the new constitution, repealing all laws limiting the amount to be recovered in a case like this, was inoperative and void.
    Verdict for the plaintiffs for $5712.50, and, after judgment, defendants took this writ, and alleged that the court erred, inter alia, as set forth in the above assignments.

      Hampton and Dalzell, for plaintiff in error.
    Langdon was an employee of the road. He daily travelled over it-. The notice forbidding persons riding in the baggage-car was posted in the passenger and baggage-cars. Langdon must have known this rule, as well from the notice as from his employment. He likewise declared he would not have been hurt if he had not been in the baggage-car. The notice required the trainmen to enforce an observance of this rule, and the conductor could not give his assent to his riding in that car. The conductor could not bind the company by assenting to Langdon being in the car, either by express permission or an implied one coming from having seen him on several occasions in it. Railroad companies have the right to make reasonable regulations for the transaction of their business. This case differs from O’Donnell v. Allegheny Valley Railroad Company, 9 P. F. Smith 239, for in that case the plaintiff, with others, had been for some time daily riding on the baggage-car. As between Langdon and the conductor there could be no waiver of the rule. Lang-don was in the baggage-car simply to engage in conversation with the baggage-agent, not for any purpose of his employment or for want of room. There was no evidence that Langdon or any other persons were in the habit of travelling in the baggage-car. That he was in it at long intervals does not show an implied assent to ride there when he pleased. If the court exacts of a company strict compliance with its rules, a passenger must, in good faith, observe the rules made for his safety. To charge the conductor with the knowledge of acts amounting to an implied assent, it must be shown that such acts were customary and of such frequent occurrence, that the rule was abrogated by his assent to these acts.
    There can be no recovery to exceed $5000 in any case for damages for injuries resulting in death, if the Act of April 4th 1868, Purd. Dig. 1094, is still in force. It is claimed that it has been repealed by sect. 21, art. 3, of the new constitution.
    But so far as the Pennsylvania Railroad Company is concerned, we deny the power either of the constitutional convention or the legislature to repeal the Act of 1868. It was provided in that act as follows (sect. 4.): “And upon the acceptance of the provisions hereof, by any carrier or corporation, the same shall become a part of its act of incorporation.”
    The Pennsylvania Railroad Company accepted said act, as appeared by the certificate offered in evidence. The Act of.Assembly of 1868 thus became a part of the company’s charter. To all intents and purposes the company had the same right under it as if it had been written in the body of its original charter. Had it been there it can hardly be contended that there exists any power to eradicate it against the consent of the corporation. This court has declared “that charters of private corporations are left exactly as the new constitution found them, and so must remain until the companies holding them shall enter into a new contract with the state, by accepting the benefit of some future legislation.” Hays et al. v. Commonwealth, 1 Norris 518.

      Barton $ Sons, for defendants in error.
    Langdon was not an employee of the Western Pennsylvania Railroad, he was simply an ordinary passenger. The question is not what knowledge either he or the conductor had, but did the conductor assent, either expressly or impliedly to his non-observance of the rules: O’Donnell v. The Allegheny Valley Railroad, supra; Creed v. Pennsylvania Railroad Co., 5 Norris 139.
    It appeared the conductor knew Langdon occasionally rode in the baggage-car, and that he never forbade him to do so ; that he saw him get on the train the day of the accident, knew he was on the train, and that he was not in any of the other coaches; that he did not go to him to punch his ticket, because he had already punched it for the down trip when he came up in the morning; that he was through with his 'active duties, and was sitting in the second car — plenty of time, if Langdon was not where he ought to be, to have gone to him and directed him to his seat. Take all these facts together, and have we not abundant evidence of the consent and assent of this conductor to his being exactly where was?
    Can it be the law that because a passenger violates some rule of the company by stopping on a platform to speak to an acquaintance, or by going into the baggage-car to talk to an employee, and that while so doing he is suddenly deprived of his life by the gross carelessness and criminal negligence, shown in this case, of the officers of the road, that he forfeits all compensation, and they are relieved from liability for their acts ?
   Mr. Justice Paxson

delivered the opinion of the court, January 5th 1880.

There are certain facts in this case which are not disputed. Stephen Langdon, the deceased, to recover damages for whose death this action was brought, was an employee of the company defendant, but was not engaged upon the Western Pennsylvania Railroad when the accident occurred. His position was that of night inspector of locomotives at the outer depot of the Pennsylvania Railroad, in the city of Pittsburgh. The depot had been burned by the rioters the day before the accident occurred. He lived upon the line of the Western Pennsylvania Railroad, a few miles out of the city, and was in the habit of riding to and from his home daily on said road. He travelled upon a commutation ticket, such as is usually sold to passengers. At the time of the accident, he was riding in the baggage-car, in violation of the rules of the company. Said rules were conspicuously posted in the baggage-car. The particular rule in question is as follows: “ They (the trainmen) must see that passengers are properly seated, and will not allow them to stand on the platforms of the cars, nor ride in the baggage nor mail-cars. Conductors and brakemen are instructed to strictly enforce this rule, and it is expected that passengers will cheerfully comply, as the rule is one intended for their own safety, it being particularly dangerous for passengers to be on platforms as trains approach stations.” Whilst Langdon was sitting in the baggage-car, and after the train had left Sharpsburg, it collided with the mail-train, injuring him so severely that his death occurred within a few hours thereafter. Had he been in the smoking-car, or in any of the passenger-cars he would not have been injured. After the accident he stated to some of the witnesses, that if he had not gone into the baggage-car he would not have been hurt.

.The right of a railroad company to make reasonable rules for its own protection, and for the safety and convenience of passengers, has been repeatedly recognised. Sullivan v. Phila. Railroad Co., 6 Casey 234; Powell v. Pennsylvania Railroad Co., 3 Id. 414; West Chester & Phila. Railroad Co. v. Miles, 5 P. F. Smith 209; Pitts. & Conn. Railroad Co. v. McClurg, 6 Id. 294; Central Railroad Co. v. Green, 5 Norris 421; O’Donnell v. Allegheny Valley Railroad Co., 9 P. F. Smith 239. Such companies are held, and very properly, to a strict measure of responsibility in cases of injuries to passengers. It is not unreasonable that they should have the right to require passengers to observe such proper regulations, as are essential to their own safety. With all the care such corporations can exercise in the perfection of their road-bed'and machinery, and in the selection of their servants, accidents involving injuries and loss of life, will frequently occur. This must continue to be the case so long as iron and wood are destructible, and dependence is placed upon the fidelity, the vigilance, and the judgment of servants. A misplaced switch or an inaccurately worded telegram, may send a train to destruction. In such and other like cases, the company is liable to the party injured. The practical impossibility of avoiding all accidents by rail furnishes no good reason why such corporations shall not respond in damages for the injuries caused by the negligence of their servants, when and so often as the same occurs. Such being the measure of their responsibility, may they protect themselves so far as to require passengers to conform to reasonable rules intended to lessen the chances of their being injured? We know of no well-considered ease which holds that they may not do so, nor has any sufficient reason been shown why they should not. In doing so, they at least seek to guard the lives of their passengers.

The baggage-car is a known place of danger. In this respect it differs from the cow-catcher and the platform only in degree. It is placed ahead of the passenger-cars and next to or near the locomotive. In cases of collision, it is the first car to give way to the shock, and frequently is the only one seriously injured. It is treated as dangerous by the rules of all well-regulated companies, and the rule of the defendant company emphatically declared it to be so. An infant or an idiot might be excused for riding in such a position, by reason of his lack of mental capacity, but an intelligent man, accustomed to railroad travel, must bo presumed to know its danger. It is patent and the same under all circumstances.

Can a passenger who voluntarily leaves his proper place in the passenger-car, in violation of the rules of the company, to ride in the baggage-car, or other known place of danger, and who is injured in consequence of such violation, recover damages for such injury ? We are not speaking of a possible accident, the result of a brief visit to the baggage-car to give some needed direction about a passenger’s luggage, to have it re-cheeked, or for any other legitimate purpose, but of a person who rides in a baggage-car in violation of a known rule of the company, and who is injured in consequence of such violation.

In considering this question, regard must be had to the character of the rule violated. The rules adopted by railroad companies are a part of their police arrangements. Some of them are for the convenience of the company in the management of its business. Others are for the comfort of passengers, and yet others have regard exclusively to the safety of passengers. The distinction between them, and the difference in the consequences of their violation is manifest. As an illustration : it would be unreasonable to hold that the violation of the rule against smoking, could be set up as a defence to an action for personal injuries resulting from the negligence of the company. On the other hand, should a passenger insist upon riding upon the cow-catcher, in the face of a rule prohibiting it, and as a consequence should be injured, I apprehend it would be a good defence to an action against the company, even though the negligence of the latter’s servants was the cause of the collision or other accident, by which the injury was occasioned. And if the passenger thus recklessly exposing his life to possible accidents were a sane man, more especially if he were a railroad man, it is difficult to see how the knowledge or even the assent of the conductor to his occupying such a position could affect the case. There can be no license to commit suicide. It is true the conductor has the control of the train and may assign passengers their seats. Bu[; he may not assign a passenger to a seat on the cow-catcher, a position on the platform, or in the baggage-car. This is known to every intelligent man and appears upon the face of the rule itself. He is expressly required to enforce it, and to prohibit any of the acts referred to, unless it be riding upon the cow-catcher, which is so manifestly dangerous and improper, that it has not been deemed necessary to prohibit it. We are unable to see how a conductor, in violation of a known rule of the company, can license a man to occupy a place of danger so as to make the company responsible. It is otherwise as to rales which are intended merely for the convenience of the company or its passengers. It was said by Woodward, J., in Sullivan v. The Railroad Co., supra, that “ on the part of the passenger, his assent is implied to all the company’s reasonable rules and regulations for entering, occupying and leaving their cars; and if injury befall him by reason of his disregard of regulations, which are necessary to the conduct of the business of the company, the company are not liable in damages, even though the negligence of their servants concurred with his own negligence in causing the mischief.” This principle is even broader than the one we are now contending for. We only assert here, that if a passenger wilfully violates a known rule intended for his safety, and is injured in consequence of such violation, he is not entitled to recover damages for such injury.

We are not aware that the foregoing views conflict with any of our own cases. They may not harmonize with some of the dicta which lie scattered through them, but a careful examination of the points decided shows no serious embarrassment. In O’Donnell v. The Allegheny Railroad Company, 9 P. F. Smith 239, one of the cases relied upon to sustain the contrary view, the court below instructed the jury, as we gather from the opinion of Agnew, J.: “ Summing up the doctrine of the court as found in the charged answers to the points, it was this : That the baggage-car is an improper place for a passenger, and whether the rule of the company forbidding him to be there is made known to him or not, his own intelligence should teach him that it is not his proper place; that if he leave his seat in the passenger-car to go into the baggage-car, he is guilty of negligence-; that nothing less than a direction or an invitation from the conductor to go there will excuse this negligence, and such direction or invitation should not be inferred from the mere fact that he had been accustomed to ride frequently in the baggage-car, with the knowledge of the conductor and without objection. The judge therefore instructed the jury that if the plaintiff left the passenger-car without the direction or invitation of the conductor, he did what no passenger has a right to do, even though he had been accustomed to ride there with the knowledge of the conductor and without objection.” It will be noticed that this court did not deny the correctness of this ruling as an abstract proposition. It was merely held that it was not correct as applied to the facts of that case. It was said by the court: “ In view of the evidence this instruction was erroneous.” What was the evidence ? Again I quote from the opinion: “ The plaintiff had been riding in the baggage-car for about two months. Murphy, the conductor, himself admitted, that Liston’s men rode frequently in the baggage-car without his-objecting; that he never ordered them out. When they got on that car, they generally remained there without objection ; that he had no recollection of requesting them to go into the passenger-car, and that he had not at any time requested the plaintiff to leave the baggage-car. The reason for this is obvious. These hands, though passengers on the train from the terms of their employment, still retained the outward appearance of employees. They were in their working clothes, which, owing to their employments, were doubtless often soiled and filled with perspiration. They were probably at times not considered travel-ling companions for those who sat in the passenger-cars, and at times the cars were probably filled. It was not at all unnatural that they themselves should wish, and that the conductor should desire them to travel on the baggage-car out of the immediate presence of the passengers. Under these circumstances it cannot be justly said of them, as of ordinary passengers, ‘ that any one who is possessed of sufficient intelligence to travel should be held to know that the baggage-car is not an appropriate" place for passengers,’ nor to sa.y, although the consent of the conductor to riding there may be inferred from these facts, yet it does not follow that the company is liable, unless it is shown that they were there at the invitation or by the direction of the conductor.” And in concluding his opinion the learned judge said : “From the evidence in this case the jury might reasonably conclude that O’Donnell was in the baggage-car with the permission of the conductor, and for the benefit of the company, and was rightfully there at the time of the accident.” It will be observed that the case was put mainly upon the ground that the plaintiff and his co-employees had been riding in the baggage-ear daily for two months under circumstances which would justify the jury in finding that it was an arrangement for the benefit of the company. It may be conceded that if a baggage-car is used as a passenger-car for months, the full measure of responsibility would attach. There is nothing of the kind here. The deceased was riding in the baggage-car for his own convenience, and to have a chat with the baggage-master, with whom he appears to have been intimate. The assent or even the knowledge of the conductor was not shown. The jury were allowed to guess at it by reason of the submission of this question of fact upon clearly insufficient evidence. In Lackawanna and Bloomsburg Railroad Co. v. Chenewith, 2 P. F. Smith 382, there was a violation of the rules of the company, but it was a rule that had no relation to the plaintiff’s safety as a passenger. He induced some of the company’s employees, in the absence of the superintendent, to attach his freight-car to a passenger train, agreeing to run all risks, and to attend to the brakes on his own car. The engine ran over a cow,' by means of which the plaintiff was injured. It is manifest the facts of this case have no analogy to that of a passenger who leaves his seat in the cars, and rides in a known place of danger, in violation of the company’s rules. The court evidently had this view, for it was said by Mr. Justice Thompson, in delivering the opinion: “ If a passenger puts himself out of place, and in a place of danger, and is injured as the result, this is damnum alscjue injuria, and he cannot recover.” The recent case of Creed v. The Pennsylvania Railroad Co., 5 Norris 139, also rests upon an entirely different state of facts. There the deceased was riding in the caboose-car at the rear end of the train, in violation of the rules of the company. But it nowhere appeared that the rule violated was intended for the safety of passengers, nor was it even alleged that the caboose-car was a place of danger. On the contrary, it was said, by Mr. Justice Gordon : “No presumption of negligence can arise, either in fact or in law, from the fact of Creed’s occupancy of the caboose, for there is no evidence that it was in any degree more unsafe than any other car in the train. It was, indeed, under all ordinary circumstances, the one that was the most safe: from collisions in front of the train it was protected by the cars which preceded it, and from dangers behind, being itself a lookout, it was guarded by the constant vigilance of the employees.” The distinction between this case and the one in hand is so palpable that further reference to it is unnecessary.

Our own cases give us no trouble. Nor is there serious difficulty in the authorities outside of this state that have been called to our attention. In Dunn v. The Grand Trunk Railway Company, 58 Me. 187, the plaintiff got on board a freight train in violation of the rules of the company. The conductor did not put him off, nor request him to leave, but accepted his fare as a first-class passenger. It was held, that he was entitled to recover for injuries caused by the negligence of the company’s servants. Here, the conductor accepted his fare as a first-class passenger, and permitted him to take his seat in the saloon-car of the freight train. There was no point that it was a place of danger, nor that the rule was intended for the safety of passengers. On the contrary, it was manifestly a1 mere police regulation in the interests of the company. It was said by Appleton, C. J., in delivering the opinion of the court: “If any extraordinary danger arises from the violation of the known rules of the company, as by standing on the cars when in motion, the passenger violating the rules assumes the special risks resulting from such violation. But if the act of the passenger in no way conduces to the injury received, the carrier must be held responsible for the necessary consequences of his negligence or want of care.” Isbell v. New York & New Haven Railroad Company, 27 Conn. 393, was an action brought to recover damages for cattle killed upon the track, and has no application. Keith v. Pinkham, 13 Me. 501, was a case of injury to a passenger by stage. He took a seat on the outside of the coach, there being a vacant seat inside, after being told that if he did so it would be at his own risk. The defendant asked an instruction that if plaintiff had been directed to take an inside seat he could not recover. Appleton, J., said: “ If the plaintiff was injured through his or their neglect, he being in the exercise of ordinary and common care in the way of contributing to the injury by his position, he might well maintain this suit. The fact that the plaintiff took his position outside was a circumstance proper for the consideration of the jury in determining whether his negligence contributed in any way to the production of the injury. Rut the requested instructions took from the jury all inquiries as to the attendant negligence, and they were rightfully withheld.” Plere, the plaintiff took a seat intended for passengers and usually so occupied. If it was a place of danger, such fact did not appear, and it may be safely said as a general rule, the result of every intelligent man’s experience, that an outside seat on a stage-coach cannot be pronounced extra hazardous as a matter of law. It was properly left to the jury. Huelsenkamp v. Citizen’s Railway Company, 37 Mo. 637, was an injury to a passenger whilst standing on the platform of a city car. No notice was given not to ride there, nor was any rule of the company shown. The question whether it was a position of danger was not raised, and there is little analogy in this respect between a horse-car in a city, and a car propelled by steam. Richmond v. Sacramento Valley Railroad Company, 18 Cal. 351, was a case of a passenger who was injured by an accident caused by cattle upon the track. It is not in point. In Washburn v. The Nashville & Chattanooga Railroad Company, 3 Head (Tenn.) 638, the plaintiff was injured whilst riding in the baggage-car. In this respect it resembles the case under consideration. But here the analogy ceases. The plaintiff was travelling upon a. pass, and the principal question was whether he could recover for that reason. This question was settled by Railroad Company v. Derby, 14 How. 468. No point was made in regard to a rule of the company prohibiting the use of the baggage-car for passengers, nor was the fact of its being a place of danger referred to. Carroll v. New York & New Haven Railroad Company, 1 Duer 571, was a case decided in the superior court of the city of New York, and much relied upon as sustaining the opposite view. There, as here, the plaintiff was injured whilst in the baggage-car, and would have escaped if he had been in the passenger-car. The court recognised the fact that the baggage-car was a place of danger, but held that, inasmuch as he was there with the knowledge and consent of the conductor, he was there rightfully, and was entitled to recover. But there was no question made of the violation of such a rule as we have here, nor was even the existence of a similar rule shown. In its absence, it may well be that the assent of the conductor gave him the right to be in the baggage-car, and if he was there lawfully, under all the authorities he was entitled to recover. Jacobus v. St. Paul & Chicago Railway Company (Supreme Court of Minnesota), reported in the Legal Intelligencer of August 28th 1874, was also a case of injury to a passenger who was riding in' the baggage-car, contrary to the rule of the company. The court said there was a conflict of evidence as to whether the plaintiff had been notified of the rule, but that inasmuch as he was shown to have been there with the knowledge and assent of the conductor, it made no difference. The learned judge who delivered the opinion relied upon Railroad Co. v. Chenewith and the line of cases I have just discussed. Whatever' there is of confusion upon this question arises from the misapplication of the rule in Railroad Co. v. Chenewith and its cognate cases. The difference between a rule for the convenience of the company, and one for the safety of the passenger has been entirely lost sight of. In the former, the company would be liable unless, the violation was the cause of the accident producing the injury; in the latter, it is sufficient to relieve the company that the injury was received in consequence of the violation of the rule, and this, notwithstanding the fact that the negligence of the company’s servants was the cause of the accident. We do not regard Jacobus v. The Railroad Co. as entitled to weight as authority. The reasoning of the court is not satisfactory, and the authorities cited do not sustain the position assumed by the learned judge who delivered the opinion.

I am not aware that it has been decided in any well considered case that a passenger may, as a matter of right, ride in the baggage-car at the risk of the company. In a few cases it has been held that the assent of the conductor is sufficient to charge the latter with the consequences of such act, that it amounts to a waiver of the rule forbidding passengers to ride in the baggage-car. But how can a conductor waive a rule which, by its very terms, he is' commanded to enforce ? He may neglect to enforce it, and when the rule is a mere police arrangement of the company, such neglect may perhaps amount to á waiver as between the passenger and the company. But when the rule is for the protection of human life the case is very different. We are not disposed to encourage conductors or other railroad officials in violating*' reasonable rules which are essential to the protection of the travelling public. If it is once' understood that a man who rides in a baggage-car in violation of the rules, does so at his own risk, we shall have fewer accidents of this description.

On the other side we have the case of Robertson v. The Erie Railroad Co., 22 Barb. 91, in which it was held that, where one rode upon the engine in violation of the known rules of the company, and was there injured, he could not recover, notwithstanding he was there with the assent of the engineer; and our own case of Pittsburgh and Connellsville Railroad Co. v. McClurg, 6 P. F. Smith 294, in which it was held that, where a traveller “ puts his elbow or his arm out of . a car window, voluntarily, without any qualifying circumstances impelling him to do it, it is negligence, in se ; and where that is the state of the evidence it is the duty of the court to declare the act negligence in law.”

The plaintiffs must be held to a knowledge by Langdon, the deceased, of the rule in question. Aside from the fact that it was conspicuously posted in the baggage-car, it is not disputed that the deceased was an employee of the defendant company ; that he was temporarily out of work, as was alleged, by reason of the burning of the depot is not material. Whilst all his -rights as a passenger are conceded, his position was such that he must have been familiar with a rule that is generally known to every intelligent man who travels by rail.

We need not pursue the subject further. We regard the weight of authority as with the principle indicated, and it is sustained by the sounder reason. Under the facts of this case the defendant’s 1st, 2d, 6th and 7th points should have been affirmed without qualification.

It was also error to decline the defendants’ 8th point (see 5th assignment.) The second section of the Act of 4th April 1868, Pamph. L. 58, limits the amount to be recovered in actions against railroad companies and common carriers for negligence, to $3000 in case of personal injuries, and $5000 in case of death. In Cleveland and Pittsburgh Railroad Co. v. Rowan, 16 P. F. Smith 393, the constitutionality of the act was affirmed so far as it limits the liability in case of death, and it was held that “ damages for death are exclusively statutory, and are capable of restriction and limitation by the legislature.” This principle was recognised by the later case of Pennsylvania Railroad Co. v. Keller, 17 P. F. Smith 300. The Act of 1868 has never been repealed by the legislature. It was contended, however, that it had been repealed by sect. 21 of art. 3, of the constitution, which is as follows: “ No Act of the General Assembly shall limit the amount to be recovered for injuries resulting in death, or for injuries to person or property; and in case of death from such injuries, the right of action shall survive, and the General Assembly shall prescribe for whose benefit such actions shall be prosecuted. No act shall prescribe any limitations of time within which suits may be brought against corporations for injuries to persons or property, or for other causes different from those fixed by general laws regulating actions against natural persons, and such acts now existing are avoided.” The first portion of this section ends with a period, and is complete in itself. It has no reference to corporations as distinguished from natural persons, and imposes a restriction upon the power of the legislature to limit the amount to be recovered in cases of injuries or death. It speaks for the future only, and avoids no existing acts. The second part of the section prohibits any limitations of time within which actions for such causes shall be brought against corporations, other than those fixed by general laws, and avoids all such existing acts. That is to say, it avoids all existing laws imposing limitations upon the time of bringing suit, other than those in harmony with general laws. This is the plain reading of the section. The Act of 1868 is not “ such” an act. It relates not to the time of bringing suit but to the amount to be recovered. Aside from this the 4th section of the Act of 1868 provides that, “ upon the acceptance of the provisions hereof, by any carrier or corporation, the same shall become a part of its act of incorporation.” It was in evidence, in the court below, that the defendant company had formally accepted the provisions of the Act of 1868. So that at the time of the adoption of the constitution, the provisions of said act limiting the amount to be recovered in case of death to $5000, was a part of the charter of the company. The effect of the constitution upon charters existing at the time of its passage was before this court in Hays v. Commonwealth, 1 Norris 518. It was there held that sect. 4 of art. 16 of the new constitution, which provides that “ In all elections for directors or managers of a corporation, each member or shareholder may cast the whole number of his votes for one candidate, or distribute them upon two or more candidates, as he may prefer,” does not apply to a corporation that existed prior to the adoption of the constitution, and has not since accepted the benefits of any legislation under it, and whose charter contained the provision, that at all general meetings or elections by the stockholders, each share of stock shall entitle the holder thereof to one vote.” It was there said: Charters of private corporations are left exactly as the new constitution found them, and so they must remain until the companies holding them shall enter into a new contract with the state by accepting the benefit of some future legislation.” The judgment of the court is so well vindicated in the clear and well-considered opinion of our brother Gordon, that we may well be excused any further discussion of this question. It is conclusive of this branch of the present contention.

For the reasons given we are of opinion that the defendant’s eighth point should also have been affirmed.

Judgment reversed.

Mr. Justice Trunkey dissented from so much of this opinion as relates to the Act of April 4th 1868, believing the second section of said act is avoided by the 21st section of article 3 of the constitution.


source: Caselaw Access Project

author: Mr. Justice Trunkey

license: Public Domain

text:
    Bender, to use of Mueller, versus George.
    A. gave B. a lease for a term of years. 0. and D. were B.’s sureties. B. assigned the l'ease to E., who assigned it to E., for whom H. became security as bail absolute for payment of the rent and performance of the covenants of the lease. E. defaulted for the rent and D. was compelled to pay the same to A. He then brought an action in the name of A., for the use of D., against H. Held, reversing the court below, that he could recover.
    November 4th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., absent.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1879, No. 265.
    Debt by Andrew Bender, for use of John M. Mueller, against Michael George.
    The facts were these: Andrew Bender, being the owner of the premises No. 242 Pride street, in the city of Pittsburgh, let the same on June 27th 1872, for the term of four years and eight months from August 1st 1872, to G. Tochterman, at $1200 per annum. Krehan, an alderman, who was concerned with Bender in the negotiation of the lease, subsequently received the rent for Bender, and otherwise acted as his agent. A firm doing business as Meyer & Co., and John M. Mueller, the equitable plaintiff, became sureties on this lease. On August 23d 1873, Tochterman, the lessee, assigned his interest to 0. A. Campbell, and on the 27th September 1873, Campbell assigned to John Anderson. Prior to the assignment to Anderson, the rent had fallen behind, and A. S. Bright, a co-partner in the firm of Meyer & Co., had obtained possession of the property and controlled it for the protection of the sureties. He procured the assignment of the lease to Anderson, and as part of the transaction, stipulated with Anderson for security for the payment of the rent. Anderson tendered his father-in-law, the defendant, Michael George, and Bright met Anderson at Krehan’s office to consummate the arrangement.The blank form of the covenant of suretyship usually found on the back of leases in use in Allegheny county was cut off by Krehan, and filled up as follows:
    “ For a valuable consideration as well as in consideration of the letting of the premises No. 242 Pride street unto John Anderson, I hereby become security, as bail absolute, for the payment of rent, and performance of the covenants in the foregoing agreement mentioned by the said party of the second part, to be paid, kept, done and performed. And in the event that any default shall be made therein, I hereby covenant and agree to pay unto the said party of the first part such sum or sums of money as will be sufficient to make up any deficiency, and fully satisfy the conditions of the said agreement, without requiring any notice of non-payment or proof of demand being made.
    “Witness my hand and seal this first day of October 1873.
    “Michael George.” [seal.]
    This document was taken by Anderson to George, and returned with the latter’s signature to Bright; who afterwards gave it to Mueller. George was examined as to it in another proceeding, and swore that he had signed it for “ the house, Bender’s house, No. 242 Pride street,” and that when he signed it “he understood he was going bail for Anderson for the rent of the house.” There was also an offer by plaintiff, which was rejected by the court below (fourth assignment of error), to prove that when Anderson had defaulted in the payment of his rent, and Mueller had been sued for it by Bender, the landlord, Mueller, went to George with the latter’s agreement, told him that Anderson’s rent was in arrear, and demanded the payment of it; and that George excused himself from the compliance on the ground that he had to meet a mortgage on his property, and was therefore without funds. Bender recognised Anderson as his tenant, and on one occasion allowed him a reduction of his rent.
    Mueller was compelled to pay to Bender $1033.65 of Anderson’s rent, and the present suit was brought in the name of Bender as the legal plaintiff, treating the engagements of George as having been made to him. Various offers were made of the agreement signed by George, all of which were excluded by the court below. The court granted a compulsory nonsuit, regarding the action as not well brought in the name of Bender as the legal plaintiff, because George’s contract, if any, was (in the court’s opinion) with the sureties.
    A motion was made to set aside the nonsuit, and after argument the court, Bailey, J., in an opinion said: “It is quite apparent, from the inability of plaintiff to show that Bender ever saw the paper signed by George, that the persons with whom George contracted, if with any one, were Mueller and his co-securities. If the principle underlying Kramer & Rahm’s Appeal, 1 Wright 71, and kindred cases, is, as seems reasonable, that it would be inequitable, under the guise of protection to a surety, to divert assets of a debtor from the reach of a creditor, whom both debtor and surety were bound to secure, such cases can have no application here. See Homer v. Savings Bank, 7 Conn. 484. To so apply them would be to confound the attitude of the parties, and to convert the equitable claim of Bender to have recourse to George into a legal right, merely in order to suspend therefrom an equitable right in Mueller, who was a party to the contract sued upon. The motion to set aside the nonsuit is refused.”
    The plaintiff then took this writ and, inter alia, alleged that the court erred in refusing to admit in evidence the deed of George, and in rejecting the offer alluded to in the fourth assignment of error above.

      John If. Mueller and J. M. Stoner, for plaintiff in error.—
    Sureties are entitled to be subrogated to all the creditor’s rights as to any fund, lien or equity to which he may have recourse against any other person or property on account of the debt: Eddy v. Traver, 6 Paige 521; 1 Lead. Cas. in Eq. 143. And the doctrine does not depend upon privity, nor is it confined to strict cases of suretyship: McCormick v. Irwin, 11 Casey 111; 1 Lead. Cas in Eq. 148; 2 Id. 280, 283. The rule is broad enough to include every instance where one pays a debt for which another is primarily answerable, and that should, in equity and good conscience, have been discharged by him: 1 Lead. Cas. in Eq. 148, and cases cited.
    It is wholly immaterial that Bender did not know of the existence of the paper. It enured to his benefit when made, and he could sue on it at any time: Kramer & Rahm’s Appeal, 1 Wright 71, and cases cited; Rice’s Appeal, 29 P. F. Smith 168; 1 Lead. Cas. in Eq. 173. Nor could it have been withheld from him by the sureties: 1 Lead. Cas. in Eq. 174. And conversely, whenever a surety learns of the existence of a security, he is entitled to its benefit, though ignorant of it before.

      Robb $ Fitzsimmons, for defendant in error.
    How can George be held responsible’on such a paper, detached as it was from any agreement, lease or deed. It is nudum pactum. By its terms, it imports a consideration, but when it is rejected by the party to whom it purports to have been given, it is a nullity. Bender, for whom it was drawn, having rejected the deed, how can Mueller enforce the payment of the same ? The plaintiff in error admits in his argument “that Bender never saw the paper,” and also that “there was no evidence of any contract between George and the sureties.” Certainly the learned judge, under all the testimony in the case, had nothing to leave to the jury, and was clearly right in granting the nonsuit.
   Mr. Justice Trunkey

delivered the opinion of the court, November 17th 1879.

Bender gave Tochterman a lease for the term of four years and eight months from the 1st of August 1872, and Meyer & Co. and John M. Mueller were sureties for performance of the lessee’s covenants. Tochterman, August 3d 1873', assigned his term to Campbell, who soon after assigned the same to Anderson, for whom George became security, as bail absolute, for payment of the rent and performance of the covenants mentioned in the agreement. On the face of the writings, George was bound to Bender and his deed was admissible in evidence.

The testimony which was received must be taken as establishing every fact, which the jury would have been warranted in finding had it been submitted. And offered testimony, erroneously rejected, will be considered as if received, in determining if the nonsuit was rightly ordered. Then, when George executed the deed, he knew Anderson was in the house, and that he alone was going bail for payment of the rent. Tochterman had failed, and his sureties, who had taken charge of the premises, made the contract with Anderson, procured the assignment of the lease to him, gave him possession, and he got the paper signed by George which he delivered to them. In this transaction, Bright, a member of the firm of Meyer & Co., was the active agent for the sureties. Upon these facts, shown by written and oral evidence, it is clear that the plaintiff was entitled to recover such sum as he had been compelled to pay by the default of Anderson.

For the time that Anderson held the term as assignee of the lease, by privity of estate, not of contract, he was directly responsible to the lessor for the performance of the covenants, although Tochterman and his sureties were not discharged: Borland’s Appeal, 16 P. F. Smith 470; Negley v. Morgan, 10 Wright 281. Upon the latter having been made to pay, they had right to all the remedies. which the lessor had against Anderson and George. Where two persons are equally liable to the creditor, if as between themselves, there is a superior obligation resting on one to pay the debt, the other, after paying it, may use the creditor’s security to obtain reimbursement. The doctrine of subrogation does not depend on privity, nor is it confined to cases of strict suretyship. It is a mode which equity adopts to compel the ultimate discharge of the debt by him who, in good conscience, ought to pay it, and relieve him whom none but the creditor could ask to pay: McCormick’s Adm’r. v. Irwin, 11 Casey 111.

In some cases, a conflict of equities may arise, as between the former and latter sureties, but not here. In consideration of the assignment, Anderson agreed with the sureties of the original lessee to pay the rent, and gave security for his performance. In strictness, the legal liability of himself and his surety was to the lessor; in equity and good conscience they were bound to save harmless those with whom Anderson actually contracted. The principal creditor was entitled to the full benefit of that security, even if he did not know of its existence till sometime after it was given: Kramer & Rahm’s Appeal, 1 Wright 71. Had he released it, the prior sureties to himself would have been discharged. Pie could not free George and hold them. The obligation of George was to pay on Anderson’s default; but Bender chose to make Mueller pay, and, by familiar principles in equity, the latter is allowed to use the creditor’s name for recovery against him who ought to have paid the debt.

As already stated, the deed set forth in the first offer of testimony was admissible, and we also think the fourth offer should have been received. In view of the foreshadowed defence, the fourth offer was pertinent and corroborative of the plaintiff’s other testimony.

Judgment reversed, and procedendo awarded.


author: Mr. Justice Mercur

text:
    Brown et al. versus Gilmore. Brown et al. versus Henderson et al.
    1. The state courts have jurisdiction of admiralty cases where the action is in personam, and not in rem, whether the action is one of contract or sounding in tort.
    2. The test is whether the common law gives to a suitor the right of a common-law remedy to redress the wrong which he has suffered. Whenever it does the party injured may maintain such action in a state court.
    3. As a general rule the burden of proof of want of ordinary care rests on the party alleging it, and when therefore plaintiffs alleged an injury on the part of defendants, an act done by plaintiffs to prevent the injury, and which was not shown to have caused any damage, did not impose on plaintiffs a necessity to prove that it did not contribute to the loss.

      4. In an action to recover damages for a loss resulting from a collision of two tug-boats and their fleets, it was shown that the collision arose from the negligence of defendants, but it appeared that by reason of'a broken shaft the tug-boat of the plaintiffs was not able to manage its tow, and that by reason thereof, the tow was stranded and a portion of it lost. Held, that if plaintiffs used due and proper diligence to secure and protect the property, the resulting loss was not too remote to prevent a recovery therefor.
    5. The barges which comprised the tow were laden with coke. Held, that considering the character of the property and the fact that it was on its way, with other coke, to market, its value at the nearest'market, deducting therefrom the time and expense in making that market, was a correct measure of damages. '
    6. The allegata and the probata did not agree, but the evidence received was clearly relevant to the general complaint of the loss. No objection was made to the admission of the evidence, and no request to withdraw it from the jury. The court refused to instruct the jury that there could be no recovery. Held, that this was not error as the declaration could have been amended so as to make the evidence clearly admissible.
    November 4th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., absent.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1879, Nos. 261 and 311.
    Case by John Gilmore against Samuel Brown and others, and by Henderson & Co. against same defendants, to recover damages for the loss of certain barges and the coke, which composed the cargo therein, alleged to have been caused by the negligence of defendants in the management of the steam-tug Bigley, of which they were the owners.
    These two cases were tried together in the court below as they involved the same state of facts and nearly the same principles of law. The Gilmore case was brought by the owner of the steam-tug Phillips and certain coal and coke barges, and the Henderson case was brought by the owner of the coke and coal laden in the Gilmore barges, and both against the owners of the steam-tug Bigley, to recover for damages caused by a collison between the two tugs on the Ohio river in September 1876. The declaration in the Gilmore case, as amended, alleged that the plaintiff being the owner of a fleet of barges, viz.: nine barges laden with coal and coke moored in the Ohio river at a place called Merriman, the defendants, by neglect and carelessness of their employees in the navigation of their steam-tug Bigley, ran foul of and struck against the said fleet of barges and broke, damaged and injured the same.
    In the Henderson case, plaintiffs, in their narr., alleged that they owned a quantity of coke laden in certain barges of John Gilmore, and then being towed down the Ohio river from the city of Pittsburgh; that the steam-tug Bigley, owned by defendants, with her tow of barges, by negligence, had collided with and run into the Gilmore barges, and stove, wrecked and broke the same, thereby causing loss of the coke.,,.
    The facts were as follows: The steam-tug Phillips having broken one of her shafts, was lying at shore near Merriman’s shoals in the Ohio river. When, early in the morning of September 12th 1876, the Bigley and tow, in a heavy fog, came to land just above her, both the boats having their bows down steam — the trees to which the Bigley was made fast pulled out, and while endeavoring to back out into the stream, the foremost barge of the Bigley’s tow got foul of the wheel of the Phillips, having failed to clear it by about three feet in turning. The momentum of this collision caused the Phillips to move out — one of the lines holding her tow to shore was parted, the other was cut by the captain, and the whole tow drifted down and was stranded upon a dangerous bar just above which she had been moored. Some of the barges were gotten off, but others remained until a sudden rise in the river, about a week afterwards, wrecked and ruined them.
    Upon the trial, before Collier, J., a large amount of testimony was given upon the question as to negligence upon the part of defendants’ employees, and as to contributory negligence on the part of plaintiffs.
    There were two verdicts for the plaintiffs, amounting in the aggregate to $>7800, and after judgments thereon, the defendants took these writs.

      The following assignments of error will show the various questions raised in the case:
    1. The court erred in refusing to affirm defendants’ first point, viz.: That in cases of collision between steamboats while navigating the Ohio river, the respective claims and liabilities of the parties owning or navigating said boats, for damages caused by such collision, present a cause of admiralty jurisdiction vested exclusively in the courts of the United States, and of which by the constitution and laws of the United States, the state cannot take cognisance.
    Ans. “Refused.”
    2. The court erred in refusing to affirm the seventh point of defendants, as follows: If the jury find that the loss might have been avoided, even after the collision, had those in charge of the Phillips not cast off the lines by which they were held to the shore, the verdict should be for defendants [and plaintiff must satisfy the jury that casting off the lines did not contribute to the loss].
    Ans. “ Affirmed, if the jury find the facts as stated in this point, except the part in brackets, which is .refused.”
    3. The court erred in its answering the defendants’ eighth and ninth points, as follows :
    8th point. That even if the jury find that the striking of the Phillips’s wheel was occasioned by the negligent act or default of defendants’ employees, and yet that the subsequent stranding of the Phillips’s tow was owing to her inability to manage her tow in consequence of her broken shaft, the loss resulting from such stranding was too remote a consequence of defendants’' negligence, and cannot be recovered in this action.
    Ans. “ Refused.”
    9th point. If the foregoing point be refused, then, that under the same facts, if found by the jury the loss of the three barges by the sudden rise of the river, several days after the collision, was too remote a consequence of the collision, and defendants would not be liable for such loss.
    Ans. “ Affirmed, unless you find that the plaintiffs used due and proper diligence in the meantime.”
    4. The court erred in its answer to plaintiffs’ second point, and to defendants’ eleventh point, as follows :
    Plaintiffs’ 2d point. That the measure of damages is the value of the coke lost, and the damage done to the coke saved after the collision, at the nearest market for coke, considering the character of the river and navigation, with interest thereon from the date of the loss and damage, deducting the time and expense required to reach that market.
    Ans. “ Affirmed.”
    Defendants’ 11th point. That in cases of collision between steamboats, it is the actual damage sustained by the party at the time and place of injury that is the measure of damages. [And if defendants are liable at all for the value of property lost or destroyed, they are liable only for the value of such property at the port of shipment, with the additional allowance of the expenses of reaching the point of loss.]
    Ans. “ Affirmed, except as to the coke. The part in brackets is refused.”
    And in charging the jury as follows : “ Whatever was the real market value of the coke — not the retail market value — together with what it would cost to get it there (Wheeling), Henderson et al. would be entitled to.”
    5. The court erred in instructing the jury as follows: “The owner of the boat, Gilmore, would be entitled to every dollar he lost directly, and to all the money he expended in and about the barges trying to save and take care of them, with interest.”
    6. The court erred in refusing to charge the jury as requested in defendants’ 12th point, as follows: If the jury find that the actual collision which took place was merely the striking of the extreme point of defendants’ tow, when swinging round in order to back out, against the wheel of plaintiffs’ boat, the Phillips, as she laid tied to shore, causing thereby no damage to the wheel or boat, but simply forcing her from her moorings into the river, and that in consequence of the broken shaft of the Phillips, she was unable to manage her tow, which stranded on the shoal below, and that the actual loss did not take place till several days afterwards, when the barges were wrecked and wholly destroyed by a sudden flood, the plaintiffs cannot recover for the loss of such barges, for the reason that no such cause of action is set forth in the declaration, even if the alleged injury was not too remote from its alleged cause.”
    Ans. “Refused.”
    7th. The court erred in not allowing defendants’ motion in arrest of judgment for want of jurisdiction.

      H. & G. C. Burgwin, for plaintiffs in error.
    The Constitution of the United States having vested exclusive jurisdiction of admiralty causes in the Federal courts and Congress, cannot confer such jurisdiction on the state courts: Art. 3, sect. 2, Constitution of the United States ; Benedict’s Admiralty, sects. 34, 312 ; Tilghman, C. J., in Mannhardt v. Soderstrom, 1 Binn. 138; The Commerce, 1 Black 574.
    The Act of 23d September 1789 (Stats, at Large, sect. 711), vests, in the opening clause, exclusive jurisdiction in the United States courts in the subsequently mentioned cases. When enumerating, among these, all civil cases of admiralty jurisdiction, there is added a saving of a suitor’s right to a common-law remedy when the common law is competent to give it.

    In Leon v. Galceran, 11 Wall. 188, the Supreme Court of the United States for the first time held directly that in a case of contract the saving in the judiciary act of a common-law remedy gives jurisdiction to the state courts, because the state courts are competent to give such a remedy. We respectfully submit, however, that the reasoning of the court does not necessarily include cases of collision, because for the reason given by Judge Benedict, the common law in cases of such kind, however it may be in matters of contract, cannot afford a full and adequate remedy. Matters of contract are essentially common-law causes, but matters of pure navigation, such as collisions at sea and on navigable streams, are essentially admiralty causes, and belong to admiralty courts.
    The onus was on the plaintiffs to prove that they were not guilty of contributory negligence: Waters v. Wing, 9 P. F. Smith 211. The .question of diligence or neglect does not arise in questions as to proximate cause of loss. Whether the alleged cause is too remote may be a question of law, when the facts are admitted, or of fact for the jury when they are in dispute. Here they were admitted, and it was a question for the court. The sudden rise in the river and the consequent destruction of several of the barges, and the coke contained in them, was not a natural or probable consequence of the collision: Railroad Co. v. Kerr, 12 P. F. Smith 353; Hoag v. Railroad Co., 4 Norris 293, as commented on and explained; Railroad Co. v. McKeen, 7 W. N. C. 369.
    The court erred in instructing the jury with reference to the measure of damages as to the barges: The Baltimore, 8 Wall. 377; The Columbus, 3 W. Rob. Adm. 158; Gillett v. West. Railroad Co., 8 Allen 560. So also as to the coke: Smith v. Condry, 1 Howard 28; The Ocean Queen, 5 Blatch. C. C. 493; The Mary J. Vaughan, 2 Benedict 47.
    The plaintiffs’ allegation in both .the cases was, that defendants’ boat collided with plaintiffs’ barges and sunk and destroyed them. The facts proved were entirely different. The defendants’ boat did not touch the plaintiffs’ barges, they were swung into the stream by the parting of the ropes which held them to the shore, floated down till they stranded on the bar, and afterwards were wrecked by the sudden rise in the river; so that the damages if not too remote from their alleged cause, werb surely consequential and special, not the necessary act complained of. As such they should be specially laid in the declaration. In actions for injuries from negligence, damages not immediately resulting from the injury, cannot be proved unless specially laid: Laing v. Colder, 8 Barr 479 ; Good v. Mylin, Id. 54; Stanfield v. Phillips, 28 P. F. Smith 73; 1 Chit. Pl. 386; De Forest v. Leete, 16 Johns. R. 122.

      M. W. Aclieson, John Barton and Alex. M. Watson, for de.fendants in error.
    In all suits in personam against the owner or master, the party injured may have an action at law in the circuit court or in a state court, because the common law in such case is competent to give him a remedy, and whenever the common law is competent to give a party a remedy in such a case, the ri¿ht to such a remedy is reserved and secured to suitors by the saving clause contained in the ninth section of the Judiciary Act: Leon v. Galceran, 11 Wall. 188.
    Hine v. Trevor, 4 Wall. 570, and The Belfast, 7 Id. 644, were both cases where proceedings in rem were brought in state courts. It was held that the United States courts had exclusive jurisdiction, and that those cases did not come within the saving clause of the act, because there was no proceeding in rem at common law in such cases. But the Supreme Court of the United States in both of the cases cited recognises the jurisdiction of the state courts in all actions at common law against the owners of a vessel, in contradistinction to suits in rem against the vessel itself.
    Contributory negligence must be proved by the defendant alleging it: Bush v. Johnston, 11 Harris 209; Erie City v. Schwingle, 10 Id. 385. It is not incumbent on the plaintiff to-prove the exercise by him of ordinary care to avoid the injury, but the proof of the Avant of it on part of the plaintiff lies on the defendant: Beatty v. Gilmore, 4 Harris 463.
    The question whether the loss was too remote was, under the circumstances of this case, not a question for the court: Scott v. Hunter, 10 Wright 192; McGrew v. Stone, 3 P. F. Smith 436, 444; Pennsylvania Railroad Co. v. Hope, 30 Id. 373; Hoag et al. v. L. S. & M. S. Railroad Co., 4 Norris 293.
    The plaintiffs recovered no consequential damages, but only such as was strictly compensatory for direct loses sustained.
    As to the measure of damages for coke lost and damaged, in Henderson’s Case, the rule laid down by the court is quoted from Brown v. Riddle, 2 W. N. C. 362, where this court in a similar case held that, “ Avhere there is no market value of the article at the place of loss, the nearest market above or below, allowing for the expense of reaching the market, is the proper measure of loss, as a general proposition.”
   Mr. Justice Mercur

delivered the opinion of the court, January 5th 1880.

These two cases were argued together. The damages claimed, resulted from a collision on the Ohio river. The boat “ Phillips,” with nine barges in tow, some loaded with coke and others with coal, had become disabled in descending the river, and landed and moored over night at Phillips landing. While lying there, she had proper signal lights burning; but did not have steam up. While in that position she was struck by the “Bigley,” a boat also descending the river, owned by the plaintiffs in- error, and having a. tow in charge. The officers of the Bigley had previous notice of the disabled condition of the Phillips. The latter boat and her barges were torn from the shore, by the striking of the Bigley and her tow, and forced into the stream. The barges in the Phillips tow were scattered and thrown on a bar below. The barges were the property of Gilmore, the defendant in error. Three of them were entirely lost and others injured. The coke therein, lost and damaged, was the property of Henderson & Co., the other defendants in error. Each suit was to recover damages sustained by the respective party therein.

The first assignment of error denies that the court below had jurisdiction in the case.

The suits were not proceedings in rem against the boat of the plaintiffs in error, in which the District Court of the United States has exclusive jurisdiction; but they were actions in personam, against the owners of the boat. Sect. 563 of the Revised Statutes of the United States, prescribes in what cases the District Court shall have jurisdiction, and pi. 8 thereof declares, “ of all civil causes of admiralty and maritime jurisdiction; saving to suitors in all cases, the right of a common-law remedy, where the common law is competent to give it.” In Hines v. Trevor, 4 Wall. 570, and in The Belfast, 7 Id. 644, brought in state courts, the proceedings were in rem, and as there was no proceeding in rem at common law, the cases were held not to come within the saving clause of the Act of Congress. But in Leon v. Galceran, 11 Wall. 188, it was held that the state courts have jurisdiction in an action in personam. It is true that case was on a contract; but the Act of Congress makes no distinction between a tort and a contract. The test is whether the common law gives to a suitor the right of a common-law remedy, to redress the wrong which he has suffered. Whenever it does, the party injured may maintain such action in a state court. It therefore follows, the court had jurisdiction in the present case.

2. This assignment claims the court erred in refusing to charge the jury, that the defendants in error “must satisfy the jury, that casting off the lines did not contribute to the loss.” Under all the evidence furnished us, it would be manifest error if the court had so charged. We cannot find any evidence indicating that casting off the lines contributed to the loss. The defendant in error gave evidence tending to prove negligence on the part of the plaintiffs in error, in colliding with the boat of the former, and that one line was thereby pulled out of the post to which it was tied, and that the other line was cut when it was about to pull the end out of the barge. It certainly cannot be that an act done for the purpose of preventing injury, and which is not shown to have cau ed any damage, imposed on the defendants in error a necessity to prove that it did not contribute to the loss. If the plaintiffs in error claim this act was intended to cause loss or damage, or had that effect, or contributed thereto, there should be evidence to sustain the claim. As a general rule, the burden of proof of want of ordinary care, rests on the party alleging it; and under the circumstances attending the commission of this act, it rested on the plaintiffs in error. The court very clearly said to the jury, if they found there was any contributory negligence on the part of the “Phillips,” or if the defendants in error neglected to take care of their property after the accident occurred, they could not recover.

3. The answers covered by this assignment are as favorable, as the plaintiffs in error were entitled to receive. The court was not required to separate their negligent act from the reasonable effect resulting therefrom. If the defendants in error used due and proper diligence, in the mean time, to secure and protect the property, the resulting loss was not too remote to prevent a recovery therefor. In view of the injury first committed, and the exposed position in which they forced the barges and cargo, they cannot be exempted from the damages naturally resulting from their act, without any fault of the defendants in error.

4. The measure of damages as to the coke lost and injured, was correctly stated. Considering the character of the property, and the fact that it was on the way with other coke and coal, to market, its value at the nearest market, deducting therefrom the time and expense required to reach that market, was a correct measure of damages.

5. The first part of the charge covered by this assignment, was evidently intended to apply to the barges wholly lost, and the latter part to those which were injured only, and- saved by labor and expense. So understanding it, there is no error in this assignment.

6. This assignment seeks to make a distinction between the allegata andy>robata. It may be, that if objection had been made to the admission of some of the evidence, that it should have been rejected. None appears to have been made. It was all received, and was clearly relevant to the general complaint of the loss. No request was made to withdraw it from the jury. An amendment of the declaration, making the evidence clearly admissible, could have been made. The learned judge was right in refusing to charge as requested in the point covered by this assignment.

Judgment affirmed in each case.


author: Mr. Justice Paxson

text:
    Herzberg versus Irwin.
    Suit was brought to recover the hand-money and compel the execution of a bond and mortgage for the balance of the purchase-money, upon a contract for the sale of real estate. Held, that such a suit is a substitute for a bill in equity for specific performance and must be governed by the same principles, and where the title to the land is doubtful or not marketable the plaintiff cannot recover.
    November 4th 1879.
    Before Sharswood, 0. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., absent.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1879, No. 157.
    Covenant by John Irwin, Jr., against Frederick Herzberg. The following facts, together with those contained in the opinion of this court, sufficiently state the case:
    A proposition in writing, and executed under seal, was made by Herzberg, to purchase a farm from Irwin, at the price of $2250, of which $1800 was to be paid in cash and the balance in one year, with interest, &e. This price was the then full market value of the land, and the proposition was accepted by Irwin. A deed was tendered by Irwin and wife to Herzberg, and the cash payment, and a bond and mortgage for the deferred payments, demanded. Herzberg rejected the deed, and declined to pay the money and execute the bond and mortgage, for the reason, as he alleged, that the title of Irwin to the property was defective.
    This suit was brought to compel payment of the hand-money. The plaintiff below Sled an affidavit of claim setting out at length the character of his title, to which the defendant replied in an affidavit of defence, alleging the supposed defect in the title. A rule was taken by the plaintiff below for judgment, for want of a sufficient affidavit of defence, which was made absolute. This action was assigned for error by defendant, who took this writ.
    . John H. Mueller and F. M. Stoner, for plaintiff in error.

      M. $ Gr. 0. Burgwin, for defendant in error.
   Mr. Justice Paxson

delivered the opinion of the court, November 17 th 1879.

This was a suit to recover the hand-money upon a contract for the sale of real estate. A deed was tendered by the plaintiff below to the defendant, and a demand made for the cash payment, and bond and mortgage stipulated for in the contract. The defendant desired to take the property, but declined to accept the deed, on the ground that the title was defective.

The plaintiff claimed title under Robert Hay, who with his wife conveyed, in 1854, a tract of 104 acres and 13 perches to Henry Williams and Jacob Croneweth as tenants in common. Jacob Croneweth died in 1870, leaving a wife and several children, who were minors. He left a will, in which he devised and bequeathed to his wife Catharine, her heirs and assigns, all his property, real, personal and mixed, “ provided, that she shall remain my widow, but if she should get married again, then and in that case she is to get whatever the law will allow her, and no more; and the balance of my estate yet in her hands yet unexpended to be equally divided among my children, then living at the time of her marriage, or their legal representatives.” In the year 1872, Henry Williams and Catharine Croneweth made a parol partition of the property, in pursuance of which Catharine released to Williams 50 acres and 93 perches. Williams, on the first of April 1873, conveyed the last-named tract to I). W. Good, who gave a purchase-money mortgage for $5000; the property was sold by the sheriff on this mortgage, and purchased by the plaintiff. It was this title he tendered to the defendant.

It is apparent, that the questions that arise upon the title are: 1st. What estate does the widow take under the will? and 2d. Have the children of Jacob Croneweth such an interest as would require them to be made parties to the partition ?

We do not regard these questions as so entirely free from doubt as to make a marketable title. This suit is a substitute for a bill for specific performance, and must be governed by the same principles. A chancellor will never compel a purchaser to take a doubtful title, or one that is not marketable. Nicol v. Carr, 11 Casey 381; Freetly v. Barnhart, 1 P. F. Smith 279; Swain v. The Fidelity Ins., Trust and Safe Deposit Co., 4 Id. 455; Ferguson’s Appeal, 9 Id. 487, note. In the case last cited, it was said by Bead, J. : “ Now, the rights of Jane, the wife, are not before the court. She is not a party to this suit, and no decree made here would bind her, and nothing is better settled than that upon a bill for specific per formance, which is addressed to the discretion of the chancellor, the vendor must make out not only a holding but a marketable title, one as to which there is no reasonable doubt either as to matter of law or fact.” We need not multiply authorities upon so plain a matter; what have been cited are sufficient.

The children of Jacob Croneweth were not parties to the partition, and are not before the court. Were we to say they have no ‘such interest as entitles them to participate in the partition, they may nevertheless claim their day in court hereafter to be heard upon that question, and our successors might not feel themselves bound by our decision. We ought not to subject the defendant to such a risk.

Judgment reversed.


author: Per Curiam.

text:
    Vollman's Appeal. Lang's Estate.
    Where the regulations of a beneficiary society prescribe a certain form in which money is to be paid to the beneficiary, in making a new direction as to its payment, this form must be followed, and the disposition of it cannot be changed by will.
    November 5th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., absent.
    Appeal from the Orphans’ Court of Allegheny county: Of October and November Term 1879, No. 346.
    Appeal of George Yollman and J. C. Breitlauch from the decree of the court in the matter of their petition as executors.
    The Grand Lodge of the Ancient Order of United Workmen was incorporated by that title by the legislature, March 9th 1871, and by its charter was authorized to create, hold and disburse a beneficiary fund for the relief of the members and their families, of the lodges established by said corporation, under such regulations as might be adopted by it. The corporation adopted what was called “the beneficiary article,” by which the order guaranteed to such members of the third (or master workman’s) degree, $2000, to be paid to such person or persons as the member might, while living, direct. Each member, upon applying for the third degree, was required to enter into a contract, by which he became entitled to participate in the beneficiary fund, and to receive a beneficiary certificate for the sum of $2000, to be paid at his death to such person as he might designate; in consideration of -which he bound himself to pay all beneficiary assessments or forfeit the certificate, and to accept it subject to such laws, rules and regulations, as said order had then or might thereafter adopt. The beneficiary article also provided that any member desiring at any time to make a new direction as to its payment, might do so by authorizing such change in writing on the back of his certificate in the form prescribed (printed on the back of each certificate), attested by the recorder, with the seal of the lodge attached, and by the payment to the grand lodge of the sum of fifty cents.
    Schiller Lodge, No. 46, was a subordinate lodge, organized under the grand lodge, and of it Charles E. Lang was a member in the third degree. On June 1st 1878, a beneficiary certificate was issued to him, which upon its face specified that, at his death, the amount was to be paid to Jacob E. Lang’s surviving children. This certificate was issued subject to the conditions set forth in the beneficiary articles.
    Jacob E. Lang wms a brother of Charles E. .Lang, and at or about the issuing of the certificate, Charles E. Lang delivered it to Jacob, in whose custody it remained until after the death of Charles.

      Charles died in July 1879, having first made a will, by which he devised the money to come from the lodge as follows: To Mary, Charles and Albert Lang, the children of Jacob F. Lang, each $300; to Mary Lang, wife of Jacob F. Lang, $200; to George Vollman, $300; for the erection of tombstones over himself and wife and J. F. Lang, his deceased father, $300. The residue was not disposed of specifically. Charles F. Lang left neither wife nor children surviving him.
    It was claimed that the designation in the certificate that it should be paid to the surviving children of Jacob F. Lang, -was but a testamentary act, and sufficiently revoked by the last will of which appellants are executors, and that the executors were entitled to receive the money. The lodge obtained leave to pay the money into court, and appellants applied for an order to take out the fund. The court below awarded it to L. H. Smith, guardian of Mary, Charles and Albert Lang, who were the only children of J. F. Lang, and dismissed the petition of appellants, inter alia, saying:
    “As between Charles F. Lang and the children of Jacob Lang, the policy of life insurance described in this case became the subject of an executed gift to the latter from its date. There was no condition, qualification nor power of revocation appearing on the face of the policy by means of which the assured could change the beneficiaries. When the policy was issued he had done everything which was then in his power to make the gift complete. It is true he might subsequently refuse to pay the premiums; but, having paid them, they necessarily enured to the benefit of the donees. The gift was absolute. There is nothing in the laws of the order which issued the policy from which an argument can be drawn that the gift is executory and therefore revocable. The 14th section of the article upon which the counsel for the executors relied, is a mere regulation of the mode of transfer of policies, and was intended exclusively for the benefit of the insurers. It gave no quality of assignability to the policy. Such regulations are common to life insurance companies, and no case has been found in which they were treated as reservations of the right of revocation. * * *
    The effect of the attempted change of beneficiaries in the present case, if valid, would be to defeat the declared object of the order in issuing the policy. That object was to aid the family of the assured. The .title to the policy would, if the contention of the executors be sustained, vest in the assured and pass to his executors at his death, for the benefit first of creditors, and second of legatees. The family of the assured might never receive any benefit whatever. McBride’s Appeal, 22 P. F. Smith 480. And there would thus be no “guarantee” against want so far as the family of the assured was concerned. The executors can, therefore, have no title to the fund.”
    From this decree the executors took this appeal.

      Henry Meyer and J. S. Ferguson, for appellants.
    The whole transaction indicates that it was regarded by Charles E. Lang and the order as a testamentary disposition of the sum named in' the certificate. The money was only to be paid at Lang’s death; at least by complying with section 14 of the beneficiary article, he could have appointed other payees. If, then, the certificate was a testamentary disposition of the sum of $2000, it was revoked by Lang’s last will and testament, formally executed, probated and registered, unless such revocation is defeated by his failure literally to comply with the provisions of section 14. But those provisions were clearly intended for the protection of the order;, and, in the absence of any injury, a will executed in conformity with the statute certainly could not be defeated by a mere society regulation.

      O. C. Bichey and J. MeF. Carpenter, for appellees.
    The constitution and articles of a voluntary association are a law as to its members : Thompson v. Adams, 7 W. N. C. 281. The intention was to make a life policy payable to these children, and said intention was not only expressed, but executed. The contract was complete, and the money, when due, ivas payable to them: Connecticut Mutual Life Insurance Co. v. Burroughs, 34 Conn. 305.
   The judgment of the Supreme Court was entered November 17th 1879,

Per Curiam.

The appropriation made by Lang of the moneys payable at his death on the beneficiary certificate, could be revoked by him only in the mode appointed in the regulations adopted by the Grand Lodge of the Ancient Order of United Workmen, by whom it was issued. They had an unquestionable right to make such a regulation. The regulation was that “any member holding a beneficiary certificate desiring at any time to make a new direction as to its, payment, may do so by authorizing such change in writing, on the back of his beneficiary certificate in the form prescibed, — attested by the recorder, with the seal of the lodge attached, and by the payment to the Grand Lodge of the sum of fifty cents.” No doubt it was adopted with a view to prevent the lodge from being involved in litigation with outside claimants. If Lang could revoke it by will — there is no reason why he could not do so by parol. If it was his so absolutely that he could dispose of it by will, it would undoubtedly be liable for his debts. One object of this regulation was to prevent this, and to secure it to such persons as he might desire. We think the decree of the Orphans’ Court was right.

"Decree affirmed and appeal dismissed at the costs of the appellant.