text:
    Rutherford et al. versus Maynes.
    1. The Act of April 12th 1760 (1 Sm. L. 227), and its supplement of January 13th 1804 (4 Sm. L. 109), relating to the Greenwich Island Meadow Company, are not unconstitutional.
    2. These acts must, however, be strictly construed. The managers have just the powers, and none other, that are given expressly or by necessary implication.
    3. The 2d section of the Act of January 30th 1804, which authorizes the managers to regulate the assessments and to collect the same by levy, distress and sale of the goods and chattels of the delinquent, in the manner prescribed by the Act of April 11th 1799, “ such sum, if paid or recovered from a renter to be deducted from his rent,” does not authorize a distress upon goods of a tenant to satisfy assessments imposed prior to his tenancy.
    4. Henry v. Horstick, 9 Watts 412, distinguished.
    January 12th 1881.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Stbrrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of January Term 1881, No. 132.
    This was an action of replevin by Charles Maynes, who was tenant under Elizabeth L. Devine, against William Rutherford, treasurer of the Greenwich Island Meadow Company and James J. Keating, for certain goods and chattels distrained upon by the Greenwich Island Meadow Company for assessments levied upon the land of the said Elizabeth L. Devine, which were overdue and unpaid. The said Greenwich Island Meadow Company avowed, and James J. Keating made cognisance, as bailiff, for taxes in arrear.
    The facts of the case were as follows: The Greenwich Island Meadow Company was organized with reference to nearly twelve hundred acres of meadow, marsh and cripple land, situate on the Delaware river in the county of Philadelphia, below the city, originally open to the overflowing of the tide, which has since been reclaimed by the erection of embankments, sluices, ditches, &c. The lands are owned by some thirty-three owners, few if any of whom reside on the land, which is mostly in the possession of tenants. The managers of the company are authorized by virtue of certain Acts of Assembly hereinafter particularly referred to, to rate, assess and collect from the owners or possessors, certain bank taxes or charges, &e., necessary to keep the said embankments in repair. The plaintiff in April 1869 rented a tract of land on Greenwich Island from Mrs. Elizabeth L. Devine, the owner in fee. At that time there wa.s due to said company the sum of $461.25, for bank taxes or assessments levied for the years 1876, 1877 and 1878. These assessments had been regularly demanded from Mrs. Devine, but remained overdue and unpaid. On August 26th 1879, the plaintiff's goods on the premises, consisting of cow's, horses, carts, household furniture, &c., were distrained for the overdue taxes at the instance of William Rutherford, treasurer of said company, whereupon the defendant brought this action of replevin.
    Upon the trial, before Ludlow, P. J., the plaintiff testified that he did not owe any rent to Mrs. Devine at tho time of the levy, nor anything to the plaintiff as treasurer of tho company The defendants produced the minutes of the company, showing assessments upon the land for the years 1876, 1877 and 1878, and testified that a notice of levy was left at Mrs. Devine’s house, and that tho company waited thirty days before distraining, and that they had in other respects complied with the requirements of the Greenwich Island Enabling Act, passed April 12th 1760, recorded in book A, vol. 4, p. 182 (1 Sm. L. 227), and its supplement approved January 18th 1804 (4 Sm. L. 109). The original act is entitled: “ An act to enable the owners of Greenwich Island to embank and drain the same, to keep the outside banks and dams in good repair for ever, and to raise a fund to defray sundry contingent and yearly expenses accruing thereon.” Tho preamble recites : Whereas the improvement of meadow grounds is not only useful to the owners and possessors thereof, but is also of great benefit to the public. And, whereas, there is a certain island or neck of marsh, meadow and cripple land, surrounded by Delaware river, Hollander’s and Hay creeks, in the townships of Moyamensing and Passyunk in the county of Philadelphia, named and henceforth to be called Greenwich Island, which island is partly drained and partly open to the overflowing of tho tide, the several owners of which propose by dams, sluices and floodgates, near the outside thereof, the whole completely to embank and drain. But, forasmuch as such improvements are, from their own nature, subject to many casualties, and without constant care and expense not only liable to decay, but the defect of one part is often destructive and ruinous to many, and among a number of owners such frequent disputes arise concerning repairs, or concerning the means of defraying the necessary expense thereof, that oftentimes from little neglects groat damages ensue, and the heavy charge of many owners rendered ineffectual through the default of a few; to pro-vent which damages and inconveniences, and for the security and encouragement of said owners and undertakers of this improvement, it was enacted that certain persons therein named, “are hereby nominated and appointed, authorized and empowered” to divide the said tract into districts or divisions for the purpose of damming and banking, &c. The act made it the duty of the owners or possessors of lands in the said districts, to erect banks, sluices, floodgates, &c., and provided that the costs of maintaining the same should be paid by the owners or possessors of each district in proportion to the number of acres held .by them respectively, and provided for the establishment of a fund to defray contingent and yearly expenses by the payment of such sums as the managers shall find necessary.
    The act provided that payment of said assessments might be enforced by the treasurer by suit before a justice of the peace or in the Common Pleas, which tribunals wore directed to give judgments and executions to be levied on the tract in default by delivering the land to the managers, who were authorized to let the same, until the rents arising therefrom should pay all arrearages.
    The supplement of January 13th 1804, made it the duty of the managers, as often as it might be necessary, to estimate the expenses for making, repairing and keeping in good repair, all and every bank, &c., on the land, and to ascertain the names of owners and possessors thereof or their legal representatives, and to rate and assess each owner or possessor fairly and equally per acre. And such supplement further provided that the managers, after regulating the assessments, are to issue their warrant to the treasurer, authorizing and requesting him to receive from every owner or possessor, his or her legal representative, the sum wherewith he is charged. “ And if any one shall refuse or neglect to make payment within thirty days from the date of such demand, it shall be the duty of the said treasurer to levy, or cause to be levied, the said tax and costs attending such levy, by distress and sale of the goods and chattels of the delinquent in such manner as is prescribed by the act entitled to raise and collect county rates and levies passed April 11th 1799; such sum if paid or recovered from a renter to be deducted from his rent.”
    The judge charged the jury as follows: “ I will bring this case down to a very narrow limit. It is somewhat complicated, and involves questions of law too important for me to consider at this time; but there are two questions which I W'ant you to decide. First. Were these assessments made by this association of individuals before or after this tenant went into possession ? (and here I may say that there was another case of this kind decided by us a few weeks ago, and although the facts found there have nothing to do with this case, I am bound by the principle of that decision.) If these assessments were made before the tenant went into possession, then your verdict will be for the plaintiff, for it would be in violation of the ‘ Bill of Rights’ that his property should bo taken to pay the debt of another man; but, if on the other hand, you should find that the assessments were made after the tenant went into possession, then you may find for the defendant; provided notice was given as required by this act. And this brings me to the second point, and it is an important question in this case. These acts are highly penal and summary, and must ho strictly construed. They require that thirty days’ notice shall be given to the owner or possessor, or to his or her agent, authorized to accept service of notice, and if no such notice was given to the owner or to an agent authorized to accept service for him, then you will find for the plaintiff; but if you should find such notice was given, then you will find for the defendant, provided you further find that the assessments were made after the tenant went into possession.”
    The defendants excepted to the charge, and their bill of exceptions was sealed. The verdict was for the plaintiff, and judgment was entered thereon. The defendants took this writ, assigning for error the charge of the court.

      J. M. Moyer (with whom was R. C. Garsed), for the plaintiffs in error.
    The Greenwich Island Meadow Company is a quasi corporation erected for a public object, as well as for private interests. Where any considerable tract of land owned by different persons is in a condition precluding cultivation by reason of moisture and overflow, w’hich embankments and drains would relieve, the public have an interest in t'he improvement. General taxation is admissible for this purpose, but the legislation which authorizes special assessments on the owners, has boon sustained against all objections: Cooley on Taxation 424-427. The legislation in this case constitutes the owners, for the time being, members of the corporation, who elect their own managers for the inspection of the banks, and for levying the necessary assessments. The constitutionality of the Acts of 1760 and 1804, has never been seriously doubted, and the owners of the premises in question have always heretofore recognised the validity of the acts, and enjoyed the benefits. The assessments are not liens upon the land, but a personal charge on the owner or possessor, which may lawfully be collected by distraining goods found on the premises, whether they belong to the owner or tenant in possession. The land could not bo sold to pay the tax. The supplementary Act of 1804, is not in violation of the Bill of Rights. It is neither an exercise of the right of eminent domain, nor taxation for private purposes. The legislature may confer upon municipal corporations the right to assess the cost of local improvements, in which the public welfare is interwoven, upon the properties benefited. It is a question of expediency, of which the legislature are tne competent and exclusive judges: Hammett v. Philadelphia, 15 P. F. Smith 146; Sharpless v. The Mayor, 9 Harris 147; Henry v. Horstick, 9 Watts 412; Sharp v. Spier, 4 Hill 76; Pray v. Northern Liberties, 7 Casey 71; Beekman v. Railroad Co., 3 Paige Ch. 73; Hagar v. Supervisors of Yolo County, 47 Cal. 222, 223; O’Reiley v. Kankakee Valley Draining Co., 32 Ind. 169; Sessions v. Crunkilton, 20 Ohio St. 349; Whiting v. Lake, 9 W. N. C. 187.

      George W. Thorn, for defendant in error.
    Whatever may have been the. condition of Greenwich Island a hundred and twenty years ago, when the Act of 1760 was passed, it does not in its present'condition fall within the principle that applies to vast bodies of swamp lands, which in many states are detrimental to the public weal. Pt is a comparatively small tract, liable to be overflowed by the tides unless protected by banks. Such protection is purely for the benefit of the private owners, and the managers of the meadow company have no legal right to collect from one owner taxes for the general impi’ovement of the whole tract. This authority, even if rightfully conferred by the Act of 1760, is in violation of the Bill of Rights, and repealed by the constitutions of 1790, 1838 and 1874: Rutherford’s Case, 22 P. F. Smith 82; Washington Avenue, 19 Id. 352; City v. Scott, 31 Id. 80; City v. Field, 8 Id. 320; Philadelphia Association v. Wood, 3 Wright 73.
    But even if constitutional, the acts would not warrant taking the property of a tenant, to pay taxes which had been levied prior to his occupancy. The act by its terms makes the “ owner or possessor ” liable, but the clear intent is, that it shall be the possessor at the time the tax was levied. It is sought in this case to make the present possessor pay the accumulated taxes for years previous to his possession, which the company failed to collect, and from which payment the present occupant derives no benefit.
   Mr. Justice Trunkey

delivered the opinion of the court, January 21st 1881.

Greenwich Island, described in the preamble of the Act of 1760, as marsh, meadow and cripple land, partly drained and partly open to the overflowing of the tide, is the territory required by said act to be embanked and drained for the common benefit of the owners. That it is divided into a number of farms, with several owners; that the lands would be almost, if not altogether unfit for cultivation without embankment and drainage; that the statute provides a just mode for making the general improvements and keeping up the same, and for levying the costs thereof as between the .owners, are uncontroverted facts. After the lapse of one hundred and twenty years, during which time the landowners have ■enjoyed th,e benefits of the statute, it should not be declared void but for imperative reasons. Indeed, the court below held it to be valid, and charged that if the assessments wore made after the tenant went into possession, and the requisite notice had been given him, the jury could find for the defendant. But it was ruled that if the assessments were made before the tenant went into possession, he was not bound to pay them.

When any considerable tract of land, owned by different persons, is in a condition precluding cultivation by reason of moisture and overflow, which embankments and drains would relieve, the public have such an interest in the improvement, and the consequent advancement of the general interest of the locality, as will justify the levy of assessments upon the owners for the purposes of such improvements: Cooley on Taxation 424, and cases cited in note. No doubt general taxation is admissible for this purpose, but the special benefits from enhancements of values must accrue mainly to the owners of the lands, and legislation which imposes the costs upon those who, without the improvements, would bo the principal sufferers, is probably inmost cases wiser and better: Id. 427. When there is no consideration other than the improvement of land as property, the authority to levy such assessments is confined within limited bounds. In Pennsylvania, it can scarcely be measured by the necessities or laws of such states as Louisiana or California; there is but little land liable to overflow or stvampland within her borders. As the facts are presented, we cannot •say that the statute for improvement of Greenwich Island is without those limits of authority. It widely differs from the Act of May 9th 1871, which was declared unconstitutional in Rutherford’s Case, 22 P. F. Smith 82, and has been acquiesced in for several generations. Every statute which authorizes assessments upon the owners for improvement of their lands, ought to be strictly construed. If it admit of two constructions, one consistent with the Bill of Rights, the other repugnant, it should receive the former. It is said that the statute makes the owners of this island a quasi corporation. Be it so. The managers have just the powers, and none other, that are given expressly or by necessary implication. They claim the right to seize the goods of a tenant to satisfy an assessment laid prior to his possession. They must show the grant or their claim is false.

The Act of 1760 directed the managers to make a true list of the names of the owners or possessors, with the quantity of land held or possessed by each, with the sum per acre of the assessment for the current year; and in default of payment by any such person, judgment could be obtained against him, in satisfaction whereof his land should be levied and let for so long a time as the rents would pay the debts and costs. By the supplement of 1804, the managers shall ascertain the names of each owner or possessor of every acre of said island, and having estimated the expenses for the year, rate and assess each owner or possessor fairly and equally, his or her proportionate part, and give a list thereof, with their warrant, to the treasurer, who shall demand and receive from every person in such list, his or her legal representatives, the sum wherewith such person is charged. “ And if any person shall neglect or refuse to make payment within thirty days from the time of such demand, it shall be the duty of the said treasurer to levy, or cause to be levied, the said tax, and the costs attending such levy, by distress and sale of the goods and chattels, lands and tenements of the said delinquent, in such manner as is prescribed by the act entitled An Act to raise and collect county rates and levies,’ passed the eleventh day of April, Anno Domini, one thousand seven hundred and ninety-nine;’ such sum, if paid or recovered from a renter, to be deducted from his rent.” In original and supplement, the assessments are required to be made on the owners or possessors. The possessor may be a renter, and if so, he may defalcate from the rent. Upon default, the property of the said delinquent may be seized. The delinquent is he who was assessed and neglected to pay for thirty days after demand. One whose name is not on the list, and neither owned nor possessed the land when the assessment was made, is not within the terms of the statute. The seizure and sale shall be in the manner prescribed by the- Act of 1799, which manner is set forth in the 15th section. ££ It shall be the duty of the said collectors to levy the said tax by distress and sale of the goods and chattels of said delinquent, giving ten days’ public notice of such sale by written or printed advertisement.” Nothing else in that act relates to the manner of selling goods and chattels. Section 25 provides that the goods and chattels of tenants occupying lands, shall be as liable to be distrained for taxes, arising out of such lands, as though such tenants were the real owners thereof. This extends the liability to seizure to the property of other people, but does not aifect the manner of sale. The treasurer of the managers of the Greenwich Island improvements is not vested with all the pow'ers of tax collectors under the Act of 1879. In case goods of the owner or possessor cannot be found, he is not authorized to take th.e body of the delinquent to the county jail, as w'ere collectors of county taxes, nor can he take the goods of a tenant who was not in possession when the assessment was laid.

It was said in Henry v. Horstick, 9 Watts 412, that the Act of Assembly will admit of a construction, which would authorize a distress of the goods of a party in possession of the land, though the tax was laid prior to his entering into possession; and that the act in this respect being remedial, ought to be construed liberally in order to make the remedy provided by it effectual in all cases. This language was respecting the general laws for collection of taxes, and has no application to the construction of a private statute for local and special assessments.

It is not the intendment of the Greenwich Island Enabling Act, or of its supplement, that the managers may suffer the assessments to remain unpaid for an indefinite time, finally to be collected from a new tenant, or an innocent purchaser. If it were, this case is illustrative of the result. The arrears exceed the value of the annual rent, and the tenant might lose all the excess. Cases would likely arise far worse than this; for here only the amount laid for three years is asked of the tenant. It is no answer to refer to the assessment of public taxes laid by public officers, and the ease of obtaining information in the proper offices in regard to all such taxes. Prompt collection of the assessments from the proper parties is required by the spirit of the act, rather than a loose and unwarranted construction for the enlargement of the powers of the managers.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Gordon

license: Public Domain

text:
    Amanda Martin’s Appeal.
    1. Where several pieces of real estate are subject to a common encumbrance, and are aliened successively, the properties so disposed of are liable for the amount of the encumbrance in the inverse order of alienation. Hence if the encumbrancer release from the lien of the encumbrance those subsequently aliened, such released premises being sufficient in value to discharge the debt, those previously aliened are discharged from the lion of the encumbrance.
    2. A. being seised of lots 1, 2 and 3, executed to B. a mortgage covering them all. A. subsequently successively conveyed the lots as follows : No. 1 to O. No. 2 to D, No. 3 to E. Afterwards B. released to C. and E, the lien of his mortgage upon lots Nos. I and 3. It appeared that lot No. 3 was of value sufficient to pay the mortgage in full. Held (upon distribution of the proceeds of a sheriff’s sale of lot No. 2 under a prior ground-rent), that by the execution of this release lot No. 2 was discharged from the lien of the mortgage.
    3. An application for an issue of fact is properly refused where the applicant could not exhibit a condition of affairs under which he could recover even if all the facts alleged by him to be true were found in his favor.
    January 13th 1881.
    Before Sharswood, C. J., Mercur, Gordon, Trunkey, Sterrett and Green, JJ. Paxson, J., absent.
    Appeal of Amanda Martin, executrix and legatee of the estate of Edward D. Martin, deceased, and claimant as mortgage lien-creditor, from the decree of the Court of Common Pleas, No. 2, of Philadelphia county, confirming the report of an auditor appointed to distribute the proceeds of a sheriff's sale of a house and lot of ground No. 839 North Broad street. Of January Term 1879, No. 179.
    The said promises were sold under an execution upon a judgment obtained in an action of covenant sur ground-rent deed, dated May 2d 1849. Before the auditor appointed to distribute the fund, Amanda Martin, the appellant, claimed payment of the amount of a mortgage for $2000, dated May 25th 1849. This claim was contested by Ferdinand Sarmiento, who claimed the balance of the fund as terre-tenant and owner, and by Mrs. Susan L. Morris, who claimed under a mortgage executed by Sarmiento to her on said premises, dated April 4th 1868, for $1666.67. The principal question was, whether the premises in question had been released by operation of law from the lien of the $2000 mortgage, under which Amanda Martin claimed.
    The material facts of the case, as found by the auditor, wmre as follows:
    On May 2d 1849, John McClosky by three indentures conveyed to John Grimstone in fee-simple, three lots of ground now known as Nos. 837, 839 and 841 North Broad street, in the city of Philadelphia, each lot subject to a ground-rent. These deeds were recorded June 9th 1849. A house was subsequently erected on each lot.
    On May 25th 1849, John Grimstone executed to Alonzo Farrington a mortgage for $2000, on the said lots, Nos. 837, 839 and 841, which mortgage was recorded May 26th 1849.
    On the same day Grimstone granted and conveyed the said three lots, Nos. 837, 839 and 841 to Robert M. Fitch in fee-simple ; deed recorded May 9th 1850.
    On June 12th 1850, Fitch granted and conveyed house and lot No. 841 to Robert M. Foust in fee-simple; deed recorded' March 24th 1853.
    On August 21st 1850, Fitch granted and conveyed house and lot No. 839 to Henry A. Charter in fee-simple; deed recorded October 28th 1850. Ferdinand Sarmiento, appellee, claims under this deed through Charter.
    On November 7th 1851, Fitch granted and conveyed house and lot No. 837 to Peter Bitmeyer in fee-simple; deed recorded November 19th 1851.
    On December 7th 1850, Alonzo Farrington, the mortgagee of the $2000 mortgage, died, and Mary Farrington, his wife, took out letters of administration on his estate.
    On November 10th 1851, Mary Farrington, administratrix, executed to Robert M. Fitch, owner of No. 837, and to Robert M. Foust, owner of No. 841, a release of those lots from the lien of the said $2000 mortgage; which release contained the following proviso, “provided always, nevertheless, that nothing herein contained shall be deemed or construed to release or discharge the remainder of the grounds and premises in the said indenture of mortgage described from the lien and operation of the said mortgage, or from the payment of the said principal debt and interest thereby secured.” This release was récorded November 19th 1851.

      On November 17th 1851, Mary Farrington, administratrix, assigned to William Spink the said $2000 mortgage, and Spink, on December 12th 1851, assigned the same to Edward D. Martin, the appellant’s testator.
    On September 6th 1876, Edward D. Martin issued a scire facias on the said $2000 mortgage against John Grimstone, mortgagor, in which Eerdinand Sarmiento, owner of house and lot No. 839, was made party defendant as terre-tonant. Sarmiento filed an affidavit of defence, and the cause was put to issue, but before trial, Edward D. Martin, the plaintiff', died, and no further proceedings were had. Edward D. Martin, by his will dated July 3d 1877, bequeathed the said mortgage to Amanda Martin, and constituted her the executrix of his will.
    On April 4th 1868, Ferdinand Sarmiento executed a mortgage on No. 839 to Susan L. Patrick, now Susan L. Morris, for $1666.67.
    On June 21st 1877, a summons covenant sur ground-rent deed was issued by T. B. Dixey, executor and trustee of John Dixey, deceased, who was assignee of John McCloskey, against John Grimstone, covenantor, and Eerdinand Sarmiento, terre-tenant, on which judgment was obtained and the premises sold at sheriff’s sale, as aforesaid, for $3600.
    The auditor reported, inter alia, as follows : That the sale discharged all the liens upon the land, and turned them over on the fund for satisfaction. That no valid assignment of the $2000 mortgage was ever made to Edward D. Martin, and that no interest had ever been paid thereon since its execution, and that Spink was the equitable owner both of the houses and of the $2000 mortgage. The auditor further reported as follows :
    “ The purchasers of these several lots of ground subject to this general mortgage were in equity to be charged in the inverse order of their alienation, in accordance with the doctrine laid down by the Supreme Court of Pennsylvania in Nailer v. Stanley, 10 S. & R. 450, and re-affirmed in Cowden’s Estate, 1 Barr 267, and as extended expressly to mortgages in the case of Mevey’s Appeal, 4 Barr 80. This doctrine, it was held in Taylor’s Executors v. Maris, 5 Rawle 51, applied to lands in the hands of vendee as well as of an heir. The Act of 1822, respecting the right to release parts of mortgaged premises, has no effect upon the application of this doctrine: Mevey’s Appeal, 4 Barr 88, note a. The said Ferdinand Sarmiento, owner of the fee of premises No. 839 North Broad street, city of Philadelphia, and deriving title through the said Henry A. Charter, who purchased the said lot prior to the timo of the purchase of the lot No. 837 North Broad street by Peter Bitmeyer, was entitled to compel the mortgagee, holding the general mortgage covering the throe lots Nos. 837, 839 and 841 North Broad street, or his proper legal representative (Beddow v. Dewitt, 7 Wright 326), to resort to the said lot No. 839, before proceeding against his lot No. 839. Now a mortgagee who has released a vendee of the mortgagor for a valuable consideration, cannot recover against a prior vendee of the mortgagor, as between whom and the second vendee the land of the latter was not liable: Paxton v. Harrier, 1 Jones 312; Lowry v. McKinney, 18 P. F. Smith 294. This release, therefore, discharged the lien of the mortgage therein described, being the mortgage in question sought to be recovered against the premises No. 839 North Broad street. The proviso excepting the said premises from the operation of the release was nugatory, the owner of the said premises being in no way party or. privy thereto. The auditor, therefore, decides, upon the authority of the above cases, that the mortgage given by John Grim-stone to Alonzo Farrington, and by his administratrix, Mary Farrington, assigned to William Spink, who, it is alleged, assigned to one Edward D. Martin, and recorded in Mortgage Book G. W. C., No. 4, page 415, &c., is not a lien upon the fund in court or any part thereof. The claim of Amanda Martin, executrix of the last will and testament of Edward D. Martin, is,-therefore, not allowed.”
    The auditor therefore awarded to Susan L. Morris the sum of $1701.11, the amount due on her mortgage, and the balance of the fund, $725.24, to Ferdinand Sarmiento, as terre-tenant and owner.
    At the conclusion of the hearing before the auditor,' Amanda Martin demanded an issue to try the disputed fact of the validity of the $2000 mortgage, of its assignment to Edward D. Martin, and of the payment of interest thereon. The auditor refused the request, and reported thereon that the question of law involved as decided in his report would prevent recovery by the petitioner were she to establish every fact said by her to be in dispute.
    Amanda Martin filed exceptions to the auditor’s report, because he refused to grant the issue demanded, or to file an interlocutory report thereon, and because he refused to award to her the amount of her claim with interest. After hearing, the court made the following order: “And now*, July 9th 1878, report referred back to the auditor to report whether the releasor, Mary Farrington, had notice of the conveyance of house No. 839 at the time of her release of houses No. 837 and 841, and if so, what was the value of house No. 837 at the time it was released.”
    The auditor, after taking further testimony, reported in a supplemental report as follows : “ From all the facts established by the testimony in the case, it appears that William Spink was the equitable owner of the properties Nos. 837, 839, 841 North Broad street from the 22d day of May 1849, the date of the conveyance of these properties to John Grimstone, until .the conveyance to Foust of No. 841, on the 12th day of June 1850, as to No. 841,-until the conveyance to Charter of No. 889, on the 21st day of August 1850, as to No. 839, and until the conveyance to Bitmeyor of No. 837, on the 7th day of November 1850, as to No. 837, and was equitable owner of the mortgage of §2000 in question from the date of its creation, the 25th day of May 1849. * * * Mrs. Mary Farrington, called by Mr. Thompson, counsel for Amanda .Martin, testified that she had received no consideration whatever, for either the release of mortgage made November 10th 1851, the release in question, nor for the assignment of the same, made November 17th 1851, to William Spink, that she had no knowledge of the conveyance of any of the properties, including No. 839, and that she supposed that the property belonged to Spink at that time.
    “From all this it appears that Mary Farrington had no interest or right whatever in this mortgage, and acted in tho matters of the release and assignment of it entirely as directed by William Spink, the equitable owner, which corroborates Spink’s own testimony upon this point.” * * *
    “ The auditor finds, therefore, that although Mary Farrington, the releasor, had no knowledge of tho conveyance of No. 839 at the time of the release of Nos. 837 and 841, yet such knowledge was unnecessary, she having no interest to be protected, having no right to the mortgage, as William Spink was the equitable owner of both houses and mortgage, and was, of course, aware of all conveyances of the former when he directed the release of the latter.
    “ As to the second fact, to wit: tho value of No. 837 North Broad street at the time of the release. The auditor finds the value of this property was, at the time of the release executed by Mary Farrington, §5000, subject to a ground-rent of §152.50 a year, tho principal of which is §2541.67, which, deducted from the value, §5000, would leave §2451.33 to satisfy tho mortgage of §2000.”
    No change was made in the distribution as formerly reported.
    To tho supplemental report, Amanda Martin filed exceptions, because the auditor put an excessive value on the premises No. 837, and because he reported that “ Mary Farrington had no interest or right whatever in this mortgage, and acted in the matter of the release, and assignment of it, entirely as directed by William Spink,” and that therefore, notice was immaterial to Mrs. Farrington.
    The court below dismissed the exceptions and confirmed the reports of the auditor. Amanda Martin thereupon took this appeal, assigning for error the refusal of the court to grant an issue; the dismissal of her exceptions; and, the confirmation of the report and supplemental report of the auditor.

      Aaron Thompson, for the appellant.

      William L. Marshall, for the appellee.
   Mr. Justice Gordon

delivered the opinion of the court, January 31st 1881.

If a mortgagor or judgment-debtor has a lot or parcel of land, say of ten acres, and of this he sells five to B., the remaining five acres, if of sufficient value, must sustain the whole charge, and the part sold to B. cannot be made to contribute until that remaining in the debtor or mortgagor has been exhausted; and this rule extends to purchasers of the encumbered premises, and in an order inverse to the date of their several titles. The burthen falls first upon the last purchase, and it is only after the fund arising from this source has been consumed, that resort can be had to that which is antecedent, and so on in regular order, until the land of the first purchaser is reached, which is the last to be called on for contribution, and then only to the amount of what remains of the original charge after the lands post-dating it in title have been exhausted. And this, it is said in Mevey’s Appeal, 4 Barr 80, because it cannot be in the power of the debtor, by the act of selling or assigning his remaining land, to throw the burthen of the payment or a ratable part of it back on the first purchaser. It is true, that in the Presbyterian Church Corporation v. Wallace, 3 Rawle 165, a different doctrine was held, but that case was in terms overruled in Cowden’s Estate, 1 Barr 267, and the former ruling of Nailer v. Stanley, 10 S. & R. 450, restored.

Precisely the same rule applies to the release of the lien of a mortgage or judgment from the land of one of several vendees of the mortgagor or debtor. Thus if A.’s land is mortgaged to B., and A. afterwards divides that land into three several parts, and at successive periods of time sells such parts to C., D. and E., and B. releases D., this also releases C., unless indeed the values of the purparts of both E. and D. should be insufficient to satisfy the mortgage, in which case C. may be called upon for the balance.

This is the doctrine of Paxton v. Harrier, 1 Jones 312, and Lowry v. McKinney, 18 P. F. Smith 294. In the case last cited it was said, that the land of the first purchaser was surety for the debt upon the whole land, and by payment of it this purchaser would be entitled to subrogation, and of this fact the creditor with knowledge was bound to take notice, hence he could not release any of the primary securities and expect to hold the secondaries.

The application of this principle renders the solution of the case in hand easy. Grimstone, on the 25th May 1849, owned the lots Nos. 837, 839, 841, and on that day executed the mortgage now owned by the appellant to Alonzo Farrington. On the next day after the execution of this mortgage, Grimstone conveyed to Robert M. Eitch, and Eitch afterwards conveyed as follows: June 12th 1850, No. 841 to Robert M. Foust; August 21st of the same year, No. 889, the lot in controversy, to Henry A. Charter, under whom F. Sarmiento, one of the appellees in this case, now claims; November 7th 1851, No. 837 to Peter Bitmeyer. Then, on the 10th of November 1853, Mary Farrington, as administratrix of Alonzo Farrington’s estate, released the lien of the above-mentioned mortgage from lots No. 837 (Bitmeyer) and 841 (Foust), attempting, without the consent of Charter, to reserve the lien on 839, which was, of course, nugatory. Finally, on the 17th of November following, she assigned the mortgage to William Spink, who afterwards transferred it to Edward D. Martin, now deceased, the estate of whom is represented by the appellant. Now, as we have before us no question of notice or of the entire sufficiency of the Bitmeyer lot, No. 837, to have paid the mortgage in full, the application for an issue not having raised either of these questions, and the master having found that the value of said lot was ample lor that purpose, it is very clear that the release of 837, the subsequent purchase, released also 839, the prior purchase. It follows that the court below properly awarded the money arising from the sheriff’s sale of this property, after payment of the costs and mortgage of Mrs. Morris, to Sarmiento.

It is furthermore thus made apparent, that the demand for an issue of fact was properly refused, since, if to the appellant all that she proposes to establish thereby is admitted, her case is made no better, since the writings themselves exhibit a con dilion of affairs under which she cannot recover, and from which the proposed facts would not relieve her.

The decree is affirmed with costs.


text:
    Philadelphia and Reading Railroad Company versus Boyer.
    1. In an action against a railroad company to recover damages for the death of a person caused by a collision between a train of the defendants and a street passenger car in which the deceased was travelling, the plaintiffs, in order to recover, must show (1) that the death resulted directly from the negligence of the defendants’ servants, (2) that the servants of the carrier company were guilty of no negligence.
    2. In such case, the measure of duty of the carrier company is extraordinary care ; that of the non-carrying company is merely ordinary care according to the circumstances.
    3. The fact that a collision took place raises no presumption of negligence by the non-carrying company. It was, therefore, error to instruct the jury that if they found that the carrier company was not guilty of negligence their verdict should bo for the plaintiffs against the non-carrying company defendant.
    4. Where the tracks of a passenger railway company cross those of a steam railway company at grade, the driver of a car on the road of the former company is not justified in attempting to cross the track of the latter company without stopping, looking and listening, no matter what the action of the flagman of the latter company stationed at the crossing may be, if such driver have from other sources information which would lead a prudent man to infer that there was danger to be apprehended from an approaching train.
    5. A municipal ordinance of Philadelphia provides that conductors of passenger railway cars shall stop their cars and cross the tracks of steam railroads in advance of their cars, under a penalty for failure. Held, that the ordinance does not apply to cars on which one man acts as both conductor and driver. Held, further, that a municipal ordinance creates no new liability in favor of one injured by the negligence of another.
    6. "Whether the Act of April 4th 1868 (Pamph. L. 58), limiting the pecuniary liability of railroad companies for death caused by negligence, is a general law, applicable to companies which have not accepted it as part of their charter; and if so, whether it has been repealed by the Constitution of 1874, not decided.
    January 17th and 18th 1881.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrbtt and Green, JJ. (Reargument.)
    Error to the Court of Common Pleas, No. 4, of Philadelphia county: Of July Term 1878, No. 35.
    This case was first argued February 12th and 13th 1880. Sharswood, C. J., and Green, J., having been absent, a re-argument was ordered before a full bench. At the first argument the court permitted the counsel for the plaintiff in error to file two additional assignments of error, hereinafter referred to.
    This was an action on the case, by Mary R. Boyer, widow', and Maria M. Boyer et al., minor children of Jacob P. Boyer, deceased, against the Philadelphia and Reading Railroad Company, to recover damages for the death of the said Jacob P. Boyer, caused as alleged by the negligence of the company defendant.
    The narr. averred that Jacob P. Boyer was killed by a collision between a car of the Thirteenth and Fifteenth Streets Passenger Railway Company in which he was riding, and a locomotive and train of the company defendant, caused by the negligence of the defendant’s servants. Pleas not guilty; and that the collision was caused, or contributed to, by the negligence of the driver of the Passenger Railway Company, in driving the said car on and upon the railroad of the defendants, in front of the'locomotive, without taking the precaution of stopping, looking- and listening. Replication denying the facts alleged in the pleas, and issue.
    The case was tried January 29th 1878, before Briggs, J. The facts, as developed on the trial, were as follows: The German-town and Norristown branch of the Reading Railroad Company, a double-track road, running out from the city of Philadelphia, approaches and crosses Broad street, north of Huntingdon street, at grade, at an acute angle. On the morning of March 6th 1877, between 6.30 and 7 o’clock, Jacob P. Boyer and four others, policemen of the city of Philadelphia, were passengers in a one-horse passenger railway car of the Thirteenth and Fifteenth Streets Passenger Railway Lino, which was proceeding northwardly along Broad street, under the charge of a driver alone, without a conductor. As the passenger-car was crossing the railroad track at the intersection, it was struck by a locomotive and train running-on the north track toward Germantown. Three of the passengers escaped out of the rear door of the horse car just before the collision, but Boyer and one other passenger failed to escape and were killed.
    The testimony showed, that by reason of the houses on the east side of Broad Street and on Huntington street, a person going northwardly out Broad Street, cannot see a train coming from the city, after he passes Huntington street. There would be no danger from a train which could be seen at Huntington street, because it would have passed Broad street before a passenger-car could reach the crossing. The danger comes from trains that have not yet reached the point of the track which can be seen from Huntington street. As the passenger-car approached very near to the railroad track, a man walking near the track, shouted to the driver, when the flagman of the defendant company came out of his watch-box, which is at the intersection. The testimony as to the actions of the flagman was conflicting. The flagman testified that he waved his flag across the street railway, and observing that the driver was standing at the car-door, not holding the reins, and paid no attention to his signal, he shouted to him “ Are you going to stop ?” when the driver picked up his lines and whipped the horse, to get over. The driver testified, that he heard no whistle or bell; that on approaching the track he slowed up; but when the flagman came out of his box, with his hands in his pockets, and the flag rolled up under his arm, and made no signal and said nothing to him, assuming everything was right, he continued to drive on, thinking that if there was any danger, the flagman would stop him.
    The witness, Martin V. Spencer, testified, that he was coming south along Broad street, at the time of the accident, and saw a train coming at a high rate of speed from the city, and the driver of the street car approaching the crossing apparently unconscious of danger; he heard the train whistle below Cumberland street, and seeing no flagman out, he shouted to the driver, who commenced winding up his break ; the flagman then came out of his box, said to Spencer, “ Let him come on,” and beckoned with his flag rolled up, to the street car to come on, and it drove on to the south track. Seeing that a collision was inevitable, he, Spencer, jumped back off the track, when almost immediately, the collision occurred, the locomotive striking the passenger-car a few feet in front of the rear platform. The driver had room to stop, when the witness first called to him.

      There was conflicting testimony as to the speed of the train, and whether the whistle was blown or the bell rung on approaching the Broad street crossing. The train hands testified that they were running at the usual rate of speed, about nine miles an hour; that the usual Broad street whistle was blown and the bell rung; and that the flagman gave the signal of danger by waving the car to stop. Other witnesses said the train was running about twenty or twenty-five miles and hour, and that no whistle was blown or bell rung, after passing Cumberland street, until the engine was almost on the street car. When the car was struck, it was thrown or carried across Broad street a distance of about fifty feet, and the engine stopped about two hundred yards beyond the intersection.
    The evidence on the subject of the measure of damages was as follows: Jacob P. Boyer was, at the time of his death, in his forty-fifth year, a policeman, receiving $2.25 per day; he left surviving him a widow and seven minor children, six boys and one girl (the plaintiffs), whose ages l'anged between three years and twenty. This family was entirely dependant úpon the deceased for their support.
    The defendants put in evidence the following ordinance of councils: “ Sect. 1. The Select and Common Councils of the city of Philadelphia do ordain, that all passenger railway companies in the city of Philadelphia, whose tracks cross any steam railroads at grade, shall, before their cars cross such road, compel their conductors to stop all cars and cross the tracks of such steam railroads in advance of the cars, under a penalty of fifty dollars for each and every violation of such order, the same to be recoverable as sums of like amount are recoverable by law.”
    It was proved that a copy of this ordinance was hung up in the office of the passenger railway company, and the superintendent of the company testified that all drivers were instructed to come to a full stop before crossing the railroad at the Broad street intersection, and not to cross until the flagman told them to go on.
    The defendant submitted, inter alia, the following points: 2. That to entitle the plaintiffs to recover in this action, the jury must find from the evidence that the collision resulted from the want of ordinary care on the part of the Philadelphia and Reading Railroad Company, without negligence on the part of the driver of the passenger-car; the mere fact that a collision took place raises no presumption of negligence on the part of the Philadelphia and Reading Railroad Company.
    Ans. “ In view of the continuous passage of the people of this, city over the intersection of Broad street and the Reading Railroad, the company was bound to exercise the highest degree of caution, vigilance and observation while running trains over the intersection, in order to prevent injury to those in the street passing over the defendant’s track, that a cautious, vigilant and observant man could possibly exercise. But in view of the conceded fact that the defendants had placed a flagman at this point to warn back those approaching the intersection upon the occasion of a passing train, the defendant’s servants in charge of the train were not bound to presume that one would pass on to the track at such time as to be struck by the train, and hence the company’s train-servants were only bound to the exercise of ordinary care. The company’s servant, however, in charge of the flag was bound to the exercise of the highest possible care to prevent this accident. If he did not, upon this occasion, exercise such care, then his principal, the defendant, was not only guilty of negligence, bus negligence of the grossest character. You must, however, take my answer to this point in connection with my instructions in my general charge, that if the negligence of the servants of the Thirteenth and Fifteenth Streets Passenger Railway Company contributed to the killing of Jacob P. Boyer, the defendant is not liable.”
    3. That it was the duty of the driver of the passenger-car to stop before reaching the railroad, and to look and listen for approaching trains; and if the jury believe from the evidence that he failed to do so, the plaintiff cannot recover in this action, and the verdict must bo for the defendants.
    Ans. 44 In view of the testimony that the flagman beckoned to the driver to come on, this point is declined.”
    4. That it was the duty of the conductor, who was also the driver of the passenger-car, to stop the car and cross the tracks of the railroad company in advance ; and if the jury believe from the evidence that he failed to do so, the plaintiffs cannot recover in this action, and the verdict must be for the defendants.
    Ans. 41 This point is declined for the same reason as is given in the last answer.”
    In the general charge the court said, inter alia:
    ‘‘Before you can render a verdict against the defendant you must be satisfied that the Reading Railroad Company was negligent in its relation to Boyer’s death, and that the Thirteenth and Fifteenth Streets Passenger Railway Company did not contribute at all, by its negligence, in producing his death. That is to say, in order to recover a verdict against the Reading Railroad Company, the evidence must he satisfactory that the negligence that caused the death of Mr. Boyer was exclusively the negligence of the Reading Railroad Company, the defendants before us.
    . [If you find, however, from the evidence before you, in its entirety, that there was no negligence on the part of the Thirteenth and Fifteenth Streets Passenger Railway Company, then you have no trouble, and should, without a moment’s hesitation, reach the conclusion that it is your duty to find a verdict against these defendants.] For it is beyond all peradventure a conceded fact, from every aspect of the case, and by both counsel in the case, that Mr. Boyer was killed by the passenger railway car being thrown violently from its track by the Reading Railroad train. And there is no evidence whatever in the case for me to submit to you that there was any negligence on the part of Mr. Boyer himself ; that is frankly and manfully conceded by the counsel of the Reading Railroad Company also.
    “ Therefore, the principal question for your inquiry is, was the passenger railway company negligent, through its servants, or not? Did their negligence contribute to produce his death ? If it did, then your verdict must be for the defendant, for the reasons I have stated before. If not, then your verdict must be, if you are true to your duties, for the plaintiffs.
    “ [If the story of the driver is true, then he had no signal. If the story of Spencer, the colored man, is true, then the flagman, on whom as great a responsibility as can rest upon any human being rested, was guilty of the grossest negligence.]

      “ But I say to you unqualifiedly, advisedly, feeling keenly the responsibility that rests upon me, in view of the importance of the case to us in the relation it occupies to this dense centre of population and the geographical position of this intersection, known to me, and of which 1 am bound by law to take notice, and that people are constantly passing that point during the business hours of the day, [that the highest degree of care, responsibility, vigilance and observation rested upon that flagman that could possibly be exercised by a man possessing care, vigilance and observation, under the same circumstances.]
    “ [The law as to him is not ordinary care, it is extraordinary care. It is that care springing from the fact that human life may be imperiled if he does not exercise it, and as the law values human life, so does it tax him with the exercise of his utmost faculties to protect human life. There he stood a sentinel of this character, and if he did not come up to the full measure that the law affixes to his office,"then this defendant company was not only guilty of negligence, but it was guilty of negligence of the grossest kind.]
    “ Now, I define the law sharply, and I do it advisedly. I mean what I say, and there must be no shrinking by you nor by me; for servants occupying the relation that this flagman did to this deceased man must be taught that human life is worthy the exercise of the utmost of human vigilance. * * *
    “ [But if the driver was beckoned on by the flagman, or told to come bn by the flagman, then that flagman being stationed there especially for the purpose of giving warning, the driver was justified in responding in action to the invitation by going on. And if you find that to be so, there is no negligence on the part of the passenger railway company, and the verdict in that aspect should be against the Reading Railroad Company.]
    “If you find that these defendants are liable, then proceed to assess the damages. The standard of damages is a pecuniary one; that is, what has been the inconvenience in dollars and cents to this widow and these children, in consequence of the death of the husband and father ? That is the pecuniary inconvenience. You cannot consider the suffering that he sustained by reason of the fright. What would he have brought to the family had he lived ? What fortune would he have made? Would he have made any fortune beyond the lot of toil that he was laboring in at the time ? How long would be have probably lived ? You have his age, and you have the means, with your knowledge of the length of human life, to aid you in ascertaining. These are the elemental outlines that the law furnishes to the jury, by which they are to ascertain the measure of damages that the aggrieved parties are entitled to. Consider all the testimony in the case, and render, in view of the legal propositions that I have given you, just such a verdict as your sense of justice dictates to you.”
    The verdict was for the plaintiff in the sum of $12,000, after-wards reduced by the court to $10,000, for which sum judgment was entered against the defendants. The defendants took this writ of error, assigning for error, the answers to their points and the portions of the charge quoted in brackets. At the first argument, the court permitted the defendants’ counsel to file the following additional assignments of error: (12.) The verdict of the jury assessing the damages at a greater amount than $5000, was erroneous. (18-) The court erred in entering judgment for a greater amount than $5000, the amount limited by law.

      James E. Gowen, for the plaintiff in error.
    The court erred in holding as matter of law, that if the jury found there was no negligence by the passenger railway company, the verdict should be for the plaintiffs. Under the pleadings, it was the duty of the plaintiffs to prove, not only that the passenger railway company was innocent, but that the defendant was guilty of negligence. In so holding, the court usurped the province of the jury: Madara v. Eversole, 12 P. F. Smith 160; Work v. Maclay, 2 S. & R. 415; Huston v. Barstow, 7 Harris 169; Hart v. Girard, 6 P. F. Smith 23; Moore v. Miller, 8 Barr 272; Tenbrooke v. Jahke, 27 P. F. Smith 392. The court further erred in its definition of the degree of care required of the flagman ; and in telling the jury, that if he did not comply with the standard so laid down, it was conclusive of the defendants’ negligence. The second point should have been affirmed without qualification. The negligence of the car driver, in failing to stop, look and listen, before attempting to cross the track, embodied in the third point, should have been affirmed. Such precaution was necessary, irrespective of any action by the flagman. In view of the ordinance of councils, such failure was negligence per se: Railroad Co. v. James, 1 W. N. C. 68; Pennsylvania Canal Co. v. Bentley, 16 P. F. Smith 30; Johnson v. Bruner, 11 Id. 58; Citizens Ins. Co. v. Marsh, 5 Wright 386; Schultz v. Pennsylvania Railroad Co., 6 W. N. C. 69; Girard Avenue Passenger Railway Co. v. Middleton, 3 Id. 486; McCully v. Clarke, 4 Wright 406; Crissey v. Railroad Co., 25 P. F. Smith 83. The verdict as to the excess over $5000, is in direct conflict with the Act of April 4th 1868 (Pamph. L. 58), which limits the amount to be recovered in actions against railroad companies for negligence to $3000 in case of personal injuries, and to $-5000 in case of death.
    [Sharswood, C. J. — What have you to say on the question as to the constitutionality of that act ?]
    A distinction is to be taken between the' limitation in case of personal injuries and that in case of death. As to the former, the act may be unconstitutional without affecting its constitutionality as to the latter. This court has said, that the right to recover for personal injuries is a common-law right, which cannot be abridged by the legislature: Central Railway of New Jersey v. Cook, 1 W. N. C. 319; Thirteenth and Fifteenth Streets Railway Co. v. Boudrou, 11 Norris 475. But the right of the widow and children to recover damages for the death of the husband and father, is a purely statutory right, and is capable of restriction and limitation by the legislature. The validity of this portion of the act was established in Cleveland and Pittsburg Railroad Co. v. Rowan, 16 P. F. Smith 393, and Pennsylvania Railroad Co. v. Keller, 17 Id. 300; and since the constitution of 1874, it has Been held, that the Act of 1868 was not ipso facto repealed by article III., section 21 of the constitution: Pennsylvania Railroad Co. v. Langdon, 11 Norris 21.

      Rufus E. Shapley, for the defendant in error.
    The answers to the defendant’s points and the charge of the court below, as a whole, contain no error. The learned judge expressly told the jury, that before they could render a verdict against the defendant, they must be satisfied that the Reading Railroad Company was negligent, and that the passenger railway company was not; and although he expressed his opinion on the testimony, he left all questions of fact to the jury. In charging that the flagman was bound to use extraordinary care, he referred to the extraordinary danger at this hazardous crossing, which fact was undisputed, and the instruction practically was, that he was bound to use such care as the circumstances of the case reasonably demanded. In view of the admitted fact, that an approaching train could not be seen from the passenger railway track, the flagman’s duty was to give •warning by an unmistakable signal, and -whether he did so or not was left to the jury. The rule requiring one attempting to cross a railroad to stop, look and listen, is not an unbending one, applicable to every case. Where, from the nature of the crossing, such precautions will not apprise the traveller of danger, and a flagman on duty invites him to come on, he is not only justified in doing so, but would be held guilty of negligence were an accident to happen, by reason of his disregarding the signal: Wharton’s Law of Negligence, sect. 387 (ed. 1874); Borst v. Lake Shore Railroad Co., 4 Hun 346; Cleveland Railroad Co. v. Crawford, 24 Ohio St. 631; Kennayde v. Pacific Railroad Co., 45 Mo. 255; Tabor v. Missouri Valley Railroad Co., 46 Id. 353; Newson v. N. Y. Cent. Railroad Co., 29 N. Y. 383; Beisiegel v. Same, 34 Id. 622; Brown v. Same, 32 Id. 597; Sweeny v. Old Colony Railroad Co., 10 Allen 368; Spencer v. Illinois Cent. Railroad Co., 29 Iowa 55; Warner v. N. Y. Cent. Railroad Co. 45 Barb. 299.
    Although it may not be negligence for a railroad company to omit to keep a flagman at a crossing, yet, if one is employed, his neglect to perform the usual and ordinary functions of the place is sufficient to charge the company: Kissenger v. N. Y. & Harlem Railroad Co., 56 N. Y. Court of Appeals 538; Reading Railroad v. Killips, 8 W. N. C. 526.
    A defendant cannot impute a want of vigilance to one injured, if that very want of vigilance was the consequence of an omission of duty on the part of the defendant: Kennayde v. Pacific Railroad Co., 45 Mo. 255; Tabor v. Missouri Valley Railroad Co., 46 Id. 353; Pennsylvania Railroad Co. v. Ogier, 11 Casey 60; McCully v. Clarke, 4 W. N. C. 186; Johnson v. West Chester Railroad Co., 20 P. F. Smith 366; Allegheny Valley Railroad Co. v. Findley, W. N. C. 438.
    A rate of speed over twenty-five miles an hour in a populous neighborhood of a city is too great, and rebuts any presumption of negligence on the part of a party run over and killed by the train while attempting to cross the street: Hagan v. Railroad, 5 Phila. 179, affirmed in 11 Wright 244.
    This being a one-horse car, without a conductor, the ordinance of councils does not apply to the case. A municipality cannot by ordinance create a civil duty enforeable at common law; that power reposes in the legislature: Philadelphia and Reading Railroad Co. v. Ervin, 8 Norris 71.
    As to the constitutionality of the Act of 1868, in Langdon’s Case, the Pennsylvania Railroad Company had formally accepted the act before the date of the new constitution, under the provisions of its fourth section, and they specially pleaded it and proved it in the case, as part of their charter, which was not affected by the constitution. While the judge who wrote the opinion intimated his view, that the act was not repealed by the constitution, the case was decided solely upon the ground the act formed part of the charter. In this case, there is no evidence that the Reading Railroad Company ever accepted the act, and we must assume that they did not. The questions now arise, therefore, is the Act of 1868 a general law ? and, if so, was it repealed by the constitution ? A reference to the debates of the constitutional convention will show, that the intention of the framers was absolutely to repeal acts limiting damages, referred to in the first sentence of art. III., sect. 1, of the constitution, as well as those limiting the time within which suits might he brought, referred to in the second sentence of that section. See punctuation, &c., on second reading, and amendment on third reading, Debates, vol. 5, p. 292. The constitution of Pennsylvania, unlike the constitution of the United States, is not to he construed strictly, hut liberally, in furtherance of the intention of the people, and in favor of their rights: Weister v. Hade, 2 P. F. Smith 474; Cronise v. Cronise, 4 Id. 255; Moers v. City of Reading, 9 Harris 188.
    Even if the act is in force and constitutional, a reversal would be improper, as this court can reduce and correct the verdict and judgment'below.
   Mr. Justice Gordon

delivered the opinion of the court, January 81st 1881.

Jacob P. Boyer, to recover damages for the loss of whose life this action has been brought by his widow and children, was, on the 6th day of March 1877, a passenger on a car of the Thirteenth and Fifteenth Streets Passenger Railway Company, and, as this car was moving across the tracks of the Philadelphia and Reading Railroad, it was struck by a passing locomotive; the result was the wreck of the car and the loss of two lives, that of Boyer being one of them.

The success of this action depends upon the establishment of two assumptions: (1.) That the death of Boyer resulted directly from the carelessness of the defendant’s servants; (2.) That the person in charge of the street car was chargeable with no negligence. It is only on this hypothesis that this suit can be maintained, for the rule is, that, where a passenger on a carrier vehicle is injured by a collision resulting from the mutual negligence of those in charge of it and another party, the carrier alone must answer for the injury: Lockhart v. Lichtenthaler, 10 Wright 151. On this theory the case was tried, and the principal point on which it turned was the question, whether the driver of the horse-car was or was not guilty of contributory negligence. This, of course, was exclusively for the jury, and it was error for the court to assume as true any fact upon which that body had to pass': Elkins v. McKean, 29 P. F. Smith 493. When, therefore, in answer to the plaintiff’s third point, asking instruction, “ that it was the duty of the driver of the passenger-car to stop before reaching the railroad, and look and listen for approaching trains, and, if the jury believe from the evidence he failed to do so, the plaintiff cannot recover, the court said: “ In view of the testimony that the flagman beckoned the driver to come on, this point is declined;” the rule as above stated was violated, for the court assumed as true, the very fact of all others upon which the case turned, since the only possible excuse for the driver for his neglect in not stopping ills car was the fact, if fact it was, that the flagman did beckon liim to cross the track. His duty to the passengers under his care was of the highest order, whilst that of the flagman as an employe of the railroad company was but secondary. He was bound to but ordinary care. The learned judge, however, seems to have inverted this order, for he says: “ The highest degree of caro, responsibility, vigilance and observation, rested upon the flagman, that could possibly he exercised by a man possessing care, vigilance and observation, under the same circumstances.” Had he applied this language to the driver of the horse-car, it would have been unexceptionable, but to apply it to the flagman was erroneous. It is true that that care, called ordinary care, must vary according to circumstances. What would be ordinary care in handling building-sand would be gross negligence in handling gunpowder; so, the care to be exercised in running a locomotive through a crowded city is something very different from that required'in driving the same kind of vehicle through the open country ; nevertheless, in both cases the care required is that only which a man of ordinary prudence would exercise under like circumstances. All this, the court might and ought to have told the jury. But it had no right to impose upon the company the duty of extraordinary care; that was the obligation resting upon the driver of the street-car, and upon him alone. From what has been said, it follows that the defendant's second point should have been affirmed without qualification, except, perhaps, to explain what ordinary care under the circumstances would be.

Furthermore, the learned judge erred in the following instruction : “ If you find, however, from the evidence before you in its entirety, that there was no negligence on the part of the Thirteenth and Fifteenth Streets Railway Company, then you have no trouble, and should, without a moment’s hesitation, reach the conclusion that it is your duty to find against the defendants.’

Here, again, is an assumption in which the court ought not to have indulged. From the evidence such a conclusion might possibly follow, but it was for the jury to draw it, not the court.

Again, the court said: “If the story of the driver is true, then he had no signal. If the story of Spencer, the colored man, is true, then the flagman on whom as great a responsibility as can rest upon any human being rested, was guilty of the grossest negligence.” But if the driver had no signal; if the flagman, as the driver himself says, came sauntering out of his box with his flag rolled up, under his arm, giving no heed to the railroad or what was upon it, what, under such circumstances, was the driver’s duty ? Under his care was the safety of his passengers; upon him rested the superior duty. Surely he ought to have stopped, looked for himself, or asked the flagman so to do; and this the more so, as Spencer was doing all in his jjower to warn him of the coming danger. The fact is, resting the case wholly upon his own and Spencer’s testimony, the driver did not exercise that care which, under the circumstances, was required of him. He had the lives of five men under his charge. B o was approaching a place of known danger. Had he stopped for one moment, he would have heard the noise of the approaching train. Spencer was directly in front of him, shouting and gesticulating in order to induce him to stop, and, instead of heeding this warning, with a curse he orders Spencer out of the way, and drives on. Now, suppose the flagman did beckon him on; tell him to go on: what was his duty as a prudent man? How could he help knowing that a train was coming ? He was not only warned of the fact, but, had he used his eyes, he might have seen it. It is, therefore, well nigh certain that his attempt to cross the tracks at that time, even under the supposition that the flagman signalled him so to do, was the result either of criminal carelessness or gross stupidity. One man told him to stop, another to go on; was he not to pause and judge between them, by the sure witness of his eyesight ? Surely this is a proposition of easy solution, and one, had it been properly submitted, that ought not to have given the jury much trouble. Again, the answer to the defendant’s fourth point was wrong, because it assumes the fact, as in the answer to the third point, that the flagman actually did beckon the driver on. The court might have refused this point. It was not necessary for the driver to cross the tracks in advance of his car. This" would have been proper had there been a conductor in charge of this vehicle, but as there was only a driver, this could not be done. Had he stopped, where he could have had a proper view of the road, and looked and listened, he would have discharged his whole duty. This point embodies the city ordinance, regulating the passage of railroad tracks by street-cars; an excellent regulation, and one that should be strictly enforced; but,, as we have said in the case of the Railroad Co. v. Ervin, 36 Leg. Int. 244, a municipal ordinance creates no new liability in favor of one injured by the negligence of another; hence, had the driver of the car observed the proper precautions, though they might not have conformed strictly to the directions of the ordinance, that would have been sufficient to have thrown the responsibility of the accident on the defendant, if its servants were negligent; nevertheless, the court, having undertaken to answer this point, should have done so in a proper manner, and not by an assumption of the prerogative of the jury.

We do not deem it proper now to discuss the exception to the entry of judgment in excess of §5000, the limit prescribed by the Act of 1868. It does not appear that the Philadelphia and Reading Railroad Company ever formally accepted the provisions of that act so as to make them part of its charter. Under such circumstances, whether the act applies at all to non-aceepting companies, is an important question, and a still more important question is, admitting it thus to apply as a general law, though not part of the company’s charter, what effect has the Constitution of 1874 upon the statute by way of repeal ? Should the case ever come before us again, which is not likely, it may be presented in a better shape for the discussion of these questions, but for the present we pass them.

The judgment is reversed, and a new venire is ordered.


author: Mr. Justice Mercur

text:
    Green and Coates Street Passenger Railway Company versus Bresmer.
    1. A master does not warrant the safely of his servants, but is under an implied contract to adopt and maintain suitable instruments and means with which to carry on the business in which they are employed, so that they can perform their duties safely and without exposure to dangers which do not come within the reasonable scope of their employment.
    2. A servant will be deemed to have assumed all risks naturally and reasonably incident to his employment.
    3. Where a servant is injured in the ordinary course of his employment, after having had a fair opportunity to become acquainted with the risks naturally and reasonably incident thereto, he will be deemed to have contracted to submit to such risks, and has, therefore, no right of action against his master for the injury done him.
    4. A., who was employed as an hostler by a street car company, received an injury from the kick of a vicious mare, while engaged in grooming her as was his duty. The fact of the mare’s being vicious was known by A., by other employ&s of the company, and by the officers thereof. A. had once before been kicked by the same mure, but had not asked to have her taken from under his care. At the time of the accident A. was not using a strap which he ordinarily used when grooming the mare to prevent her from kicking. In an action by A. against the company to recover damages for the injury done him, Held, that the plaintiff was not entitled to recover.
    5. In an action against a street ear company for an injury occasioned by the kick of a vicious mare belonging to the company defendant, evidence is admissible in order to show that the company know of the vicious character of the animal, that the stable boss was possessed of such knowledge, and had had a conversation with the superintendent of the company relative to the sale of the mare.

      January 19th and 20th 1881.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1880, No. 130.
    This was an action on the case by John Bresmer against the Green and Coates Street Philadelphia Passenger Railway Company, to recover damages for injuries suffered by the plaintiff, on the 9th December 1878, from the kick of a vicious mare, while being groomed by the plaintiff, who was an hostler in the employ of the defendant company.
    On the trial, before Biddle, J., the evidence showed that the bad character of the mare for kicking was known to the plaintiff; that she had kicked him on a previous occasion in 1876, but he made no complaint, and did not ask to have her taken from under his care ; that the plaintiff was in the habit of tying up her foreleg to prevent her kicking, but on the occasion in question he omitted this precaution because, as he testified, he “ could not find his strap.”
    The plaintiff offered to prove by John Moghty, who had been an employe of the company at the time of the accident, that the character of the mare for kicking was ■ known to the stable boss, who had told the superintendent that the president had ordered the horse to be sold, and that the superintendent had replied that he would like to see himself sell the horse, as five trips a day would not hurt her. Objected to ; objection overruled ; exception (11th and 12th assignments of error.) The witness testified in accordance with the offer.
    The defendant presented, inter alia, the following points :
    4. That if the jury believe the plaintiff’s statement that he had been previously kicked by the same horse complained of in this case, and that he still remained in the company’s service, and in charge of the horse in question, he thereby assumed the risk of being kicked by it, and the verdict must be for the defendant. Refused. (5th assignment of error.)
    5. That if the jury believe from the evidence that the horse in question was accustomed to kick, and that the plaintiff, knowing the fact, remained in the service of the defendant as hostler, then, even if the defendant were fully aware of the said propensity of the horse, the plaintiff cannot recover, but the verdict must be for the defendant.
    9. That the plaintiff can recover in this case only on the ground that the injury was caused by the negligence of the defendant, and if the jury find from the evidence that the defendant had in its possession a mare disposed to kick, which was placed in the care of the plaintiff, that he had knowledge of the disposition of the mare, and whilst in the performance of his duty as hostler of the defendant he received his injury from a kick of the mare, he cannot recover in this action, even if the jury believe that the defendant knew of the disposition of the horse.
    10. It was not negligence in the defendant to keep this mare, even if she was a kicker and the defendant knew it, if the plaintiff had knowledge of the fact and had been warned against her disposition.
    His Honor answered the 5th, 9th and 10th points together, as follows:
    “ If the servant, in obedience to the orders of the company, took charge of this horse, and, although he knew him to be dangerous, reasonably supposed that ho could, by unusual caution and skill, escape injury, it would not relieve the defendant here, if, after taking such precaution, he was injured.” (0th, 7th, 8th and 10th assignments of error.)
    Biddle, J., charged the jury, inter alia, as follows:
    “ A man who engages to perform certain services for money, takes upon himself the risks incident to the performance of those ser vices, subject to this qualification, viz.: But if the master increases those risks beyond the natural risks of the employment, the servant does not, as an implied part of his contract, take those risks. * * * The defendant had no right to expose the plaintiff to danger from a horse which it knew to be dangerous and vicious.

      “ [If, then, the evidence satisfies you that this horse was dangerous and vicious, and that this fact was made known to the stable boss and the superintendent, it would be negligence on the part of the company to subject persons in their employ to such ri-ks. That- was not one of the ordinary risks of their employment.]
    “ [If, in this case, the plaintiff knew that the mare was so dangerous, that she could not safely be cleaned without having her leg tied up, and he recklessly attempted to do so without tying her up as he was accustomed to do, that would constitute contributory negligence, and he cannot recover.]”
    Verdict and judgment for the plaintiff for $625. The defendant took this writ of error, assigning for error, inter alia, the admission of the evidence objected to, the answers to the above points, and the portions of the charge enclosed in brackets.

      Henry Budd, Jr. (with whom was George W. Thorn), for the plaintiff in error.
    The danger of being kicked by a horse is an ordinary risk, incident to the business of a groom. Even regarding it in this case as an extraordinary risk, Bresmer had become fully aware of it, and by remaining in the defendant’s employ, without complaint or notice, he voluntarily assumed it and should not have been allowed to recover: Whart. Neg., sect. 199; 1 Add. on Torts § 569; Wood, Master and Servant, 793; Dynen v. Leach, 40 Eng. L. & E. Rep. 491; Frazier v. Pennsylvania Railroad Co. 2 Wright 104; Mansfield Coal and Coke Co. v. McEnery, 10 Norris 185. Moreover, in this case, the plaintiff was guilty of contributory negligence, in omitting the means of protection against the mare’s kicking, by tying up her front leg, which he was always in the habit of doing while grooming her. The judge erred in charging, that if the plaintiff “ recklessly ” attempted to groom her without using this precaution, he could not recover, thus leaving the jury too great latitude.

      Gustavus Remak, for the defendant in error, presented no paper-book and made no argument.
   Mr. Justice Mercur

delivered the opinion of the court, May 2d 1881.

This action was to recover damages for injuries which the defendant in error suffered by the kick of a horse, owned by the company. He was in the employment of the latter as an hostler. As such, he had charge of several horses, including the one which injured him.

A master does not warrant his servant’s safety. He, however, is under an implied contract with those whom he employs, to adopt and maintain suitable instruments and means with which to carry on the business in which they are employed. This includes an obligation to provide a suitable place in which the servant, being himself in the exercise of due care, can perform his duties safely or Avithout exposure to dangers that do not come within the reasonable scope of.his employment: Cayzer v. Taylor, 10 Gray 274; Seaver v. Boston and Maine Railroad Co., 14 Id. 466 ; Gilman v. Eastern Railroad Co., 10 Allen 233; Coombs v. New Bedford Cordage Co., 102 Mass. 572. A servant, however, assumes the risk naturally and reasonably incident to his employment. He is not bound to risk his safety in the service of his master, and may, if he thinks fit, decline any service in which he reasonably apprehends injury to himself: Hayden v. Smithville Manufacturing Co., 29 Conn. 548; Mad River & Lake Erie R. R. Co. v. Barber, 5 Ohio St. 541; Whart. on Neg., sect. 217. Inasmuch as the relation of master and servant cannot imply an obligation on the part of the master, to take more care of the servant than he may reasonably be expected to take of himself, he cannot complain if he is injured by exposure, after having the opportunity of becoming acquainted with the risks of his employment, and accepts them: Id. sects. 214 and 217; 1 Add. on Torts, sect. 255.

The undoubted evidence in this case shows the defendant in error had full knoAvledge of the vicious habits of the mare which kicked him. She had kicked others, and her reputation was well known to the persons employed in the stables, and they were warned to guard against being injured by her.

Tho defendant in error testified, that she had kicked him before, yet he swears, “I never complained or asked to have my stock changed;” and still further, “I always strapped up the front leg, but on that morning, I could not find my strap.” Thus, he not only had full knowledge of her practice, and of the risk and danger he incurred when grooming her, yet he made no complaint, and was accustomed to protect himself by so securing a front leg as to prevent her kicking.

No duty was imposed on tho company to inform him of what he so well knew, nor to forbid his grooming the mare. He voluntarily assumed the risk, and continued to expose himself to a well-known danger. He cannot now cast on his employer a liability for tho injury which he thereby suffered. It matters not that the master did know the vicious habits of the mare. It is the knowledge of the servant which withholds from him a right of action: Haskin v. New York Central Railroad Co., 65 Barb. 129; Frazier v. Pennsylvania Railroad Co., 2 Wright 104.

It follows, the learned judge erred in not affirming the points covered by the fifth, sixth, seventh, eighth and tenth assignments. We discover no error in the eleventh and twelfth assignments. In so far as the remaining assignments are in conflict with this opinion, they are sustained.

Judgment reversed.