author: Me. Justice Mestrezat,

text:
    Pittsburgh v. Pittsburgh Railways Company, Appellant.

      Street railways — Municipalities—Duty to clean streets — Demand for performance — Gontracts.
    1. He who assumes the performance of a fixed duty at a definite time voluntarily imposed cannot justify a neglect or failure on the ground of the absence of a subsequent request that he per-from the duty.
    2. Where a street railway company obtains municipal consent to enter and operate a railway upon the streets of a city it is charged with notice of its duty to keep the streets clean as required by the ordinance granting consent and it assumes the performance of this duty without further notice or request from the city.

      Statements of claim — Assumpsit—Failure to demur — Practice, G. P. — Appeals.
    3. Where a statement in assumpsit is deemed inadequate or insufficient under the practice act or that it does not disclose clearly the plaintiff’s claim so as to enable the defendant to prepare its defense, the proper way for the defendant to raise these questions is by a demurrer or a rule for a bill of particulars. .,

      Evidence — Admissions—Affidavits of defense — Practice, O. P.

    4. Admissions in affidavits of defense are not an exception to the general rule that a party may prove his claim by showing the, voluntary admissions of his opponent.

      Practice, G. P. — Assumpsit—Juries—Sending out calculations' and statements of claim.

      5. In an action of assumpsit to recover moneys alleged to be due the plaintiff either or both parties may send out with the jury a calculation and statement of claim based on evidence produced at the trial. Such statements and calculations are not evidence, but are simply given to the jury to show the several items and the manner by which the party arrives at his demand.

      Street railways — Municipalities—Duty to clean streets — Operating companies.

    6. In an action of assumpsit brought by a city against a street railway company to recover the cost of cleaning streets occupied by the tracks of the street railways operated by the defendant company from 1902 to 1907, based upon the assumption by the defendant company of the obligations of the underlying companies owning the lines which it operated, it appeared that all the underlying companies obtained their rights to use the streets on condition that they should keep them clean, in some instances from curb to curb, and in others between the tracks and one foot outside thereof. On January 1, 1902, the defendant became the successor of the traction companies and thereafter operated the street railways in the city, having previously secured control of the street railway lines not included in the two traction companies. The city in 1890 enacted a general ordinance relating to the entry upon and use of the streets by street railway companies and providing therein that any such company should clean the space within its tracks and one foot outside thereof. In 1895 the city organized a street cleaning department which thereafter cleaned the streets from curb to curb, including the part of the street between the car tracks and one foot outside thereof on streets occupied by defendant company. In the affidavit of defense, put in evidence, the defendant conceded that since January 1, 1902, it had assumed the obligations and conditions relating to the cleaning of streets within the city imposed by the charters and franchises of the underlying companies and that the street cars were operated over routes in the city covered by traction systems and that rights were granted to the traction companies operating these systems subject to the general ordinance of 1890, which “abrogated and rendered of no effect” the duty to clean streets imposed by any act of assembly or other ordinance. The action was brought for $704,946 as representing the cost of cleaning the streets in question. The city, under instructions of the court was permitted to recover only for cleaning that part of the streets lying between the tracks and one foot on either side thereof. Held, that a verdict and judgment for plaintiff for $226,000 should be sustained.

      Argued Oct. 24, 1911.
    Appeal, No. 160, Oct. T., 1911, by defendant from judgment of C. P. No. 4, Allegheny Co., Fourth T., 1907, No. 240, on verdict for plaintiff in case of City of Pittsburgh v. Pittsburgh Railways Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit to recover cost of cleaning city streets. Before Swearingen, P. J.
    The opinion of the Supreme Court states the case. Verdict for plaintiff for $226,000.00 and judgment thereon. Defendant appealed.

      Error assigned, among others, outlined in the opinion of the Supreme Court, was in refusing motion for judgment n. o. v.

      Edwin W. Smith, of Reed, Smith, Shaw & Beal, with him Wm. M. Robinson, for appellant,
    cited on the question of necessity of notice to clean. Philadelphia v. Hestonville &c. Pass. R. R. Co., 177 Pa. 371; Philadelphia v. Railway Co., 143 Pa. 444; Pennsylvania R. R. Co. v. Duquesne Boro., 46 Pa. 223.

      C. K. Robinson, with him C. A. O’Brien and C. Elmer Bown, for appellee.
    — The defendant, having exclusive knowledge as to its contractual relations with all the companies, if it deemed the statement of claim inadequate in fastening the liability of the underlying companies upon it, should have demurred. It should not have filed its affidavit of defense, admitting this liability, and gone to trial on issue joined: Zerger v. Sailer, 6 Binney 24; Friedly v. Scheetz, 9 S. & R. 156; Athens Car & Coach Co. v. Elsbree, 19 Pa. Super. Ct. 618; Shaw v. Redmond, 11 S. & R. 27; Coble v. Zook, 6 Pa. Super. Ct. 597; State Insurance Co. v. Todd, 83 Pa. 272; Rice v. Insurance Co., 17 Pa. Super. Ct. 261.

      It was entirely proper to permit the plaintiff to offer an express admission of the affidavit of defense. Farmers’ & Merchants’ National Bank v. Nat’l. Bank, 30 Pa. Super. Court 271; Bowen v. DeLattre, 6 Whart. 430.
    Formal notice of the intention of the city to clean these streets from day to day was not necessary. 36 Cyclopedia of Law and Procedure, 1412; New Haven v. Railroad Co., 38 Conn. 422; District of Columbia v. R. R. Co., 15 D. C. Reps. 214.
    Where liability proved is of the same kind and nature as that averred but for a smaller sum, the variance is not material. Rice v. Insurance Co., 17 Pa. Super. Ct., 261; State Ins. Co. v. Todd, 83 Pa. 272; Ben Franklin Fire Ins. Co. v. Flynn, 98 Pa. 627; Plate v. Vega, 31 Cal. 383; Short v. McRea, 4 Minn. 119; Murdoch v. Finney, 21 Missouri 138.
    January 2, 1912:
   Opinion by

Me. Justice Mestrezat,

It would have been well if this case had been submitted to a referee. The voluminous record discloses the difficulty which a jury would have in dealing with the questions of fact submitted to them. For some reason, not apparent, it was thought best to try the case before a jury and let it consider the almost innumerable items contained in the plaintiff’s claim and which had to be dealt with as matters of fact. The case was one peculiarly for a referee, and we are satisfied that counsel for both parties must be of that opinion now, if not prior to the trial before the jury.

The action was assumpsit brought by the City of Pittsburgh on July 22, 1907, to recover the cost of cleaning the streets of the City occupied by the tracks of the street railways operated by the defendant company during the annual periods ending January 31st in the years 1902 to 1907 inclusive. The claim of the City, as appears by the statement, is based upon the assumption by the defendant company of the obligations of the underlying companies owning the lines which it operated. All the underlying companies obtained their rights to use the streets of the City on condition that they should keep them clean, in some instances from curb to curb, and in others between the tracks and one foot outside thereof. On January 1, 1902, the Pittsburgh Railways Company, the defendant, became the successor of the traction companies and has since been operating the street railways in the City of Pittsburgh. It had previously secured control of the street railway lines not included in the two traction companies.

The City, on February 25, 1890, enacted a General Ordinance relating to the entry upon and use of its streets by street railway companies or by companies operating passenger or street railways and providing regulations pertaining thereto for the public convenience and safety. Prior to this ordinance, the obligations of the railway companies in the use and cleaning of the streets were imposed by special ordinances which granted the right to such companies to enter upon and use the streets. Some of these ordinances required the railway company to clean the streets from curb to curb. By paragraph three of section one of the ordinance of 1890, the company was required to clean the' space within its tracks and one foot outside thereof, and by section three, railway companies were prohibited from entering upon and using the streets until after they had procured the consent of councils, “by an ordinance other than this one * * * , granting such rights to such companies,” and had accepted all the conditions and provisions of the ordinance of 1890.

In 1895 the City organized a department for cleaning its streets and thereafter this department cleaned the streets from curb to curb, including the part of the street between the street railway tracks and one foot .outside thereof which, under the General Ordinance of 1890, the defendant company was required to keep clean. This action was brought to recover the cost of cleaning the streets on which the defendant operated its street railway, but, under the instructions of the court, the city was permitted to recover only for cleaning that part of the streets lying between the tracks and one foot on either side thereof.

The aggregate of the plaintiff’s claim was $704,-946.40, alleged to be the cost of cleaning the streets for the five years ending January 31, 1907. The case was tried before a jury and resulted in a verdict for the plaintiff for $226,000. A motion was made for a new trial and also for judgment for the defendant non obstante veredicto. Both motions were overruled in elaborate opinions by the learned court below and judgment was entered on the verdict. From this judgment the defendant company has appealed.

There are thirty assignments of error supported by an elaborate argument of the learned counsel for the appellant company. Its contentions may be summarized as follows: (a) The statement of claim is insufficient in that it does not set forth in full the ordinances referred to in Exhibit A, or any contracts, agreements or leases connecting the defendant with any of the companies named in the exhibit, and hence the ordinances were not admissible in evidence; (b) the ordinances relating to street railways subject to the General Ordinance of 1890 were not admissible so far as they were not referred to in the exhibit; (c) the cost of expense of cleaning the streets shown by the evidence had no relation to the figures set forth in Exhibit B; (d) there could be no recovery without a prior demand on defendant to do the work, and it is not alleged that any demand was made; and (e) the system adopted in cleaning the streets was extravagant and the charges are excessive.

The statement avers that the defendant company by reason of operating and controlling the street railways and traction systems is responsible for the obligations and conditions attached to and forming a part of the charters and franchises of the underlying companies whose lines it operates. There is attached to the statement a schedule marked Exhibit A which contains a reference to the acts of assembly and the ordinances authorizing the construction and operation of street car lines and relating to the duty of the railway and traction companies to clean the streets. It is averred that those companies neglected and refused to keep clean the streets traversed by the railway tracks, and the City had been obliged to do the work at a large expenditure of money, and that the defendant became liable for the moneys thus expended. There is also attached to the statement of demand a statement, marked Exhibit B, showing the streets having railway tracks thereon, alleging liability on the defendant for cleaning all the streets between the tracks and one foot outside thereof, and liability for cleaning certain specified streets from curb to curb. The statement shows the proportionate cost of the work of cleaning which the defendant should pay and the proportion of money expended by the plaintiff in maintaining the street cleaning department for which, it is alleged, the defendant was liable. The statement further discloses the number of times the streets had been cleaned and the total cost thereof, and avers that the cost and expenditure are reasonable and proper and what the services were worth.

We think the statement, while not as definite as it should be, is sufficiently full and clear to advise the defendant of the particulars of the plaintiff’s claim, and of what the defendant company would have to meet on the trial of the cause. The exhibits contain a reference to the various acts of assembly and city ordinances authorizing the construction and operation of the street car systems in the city now controlled by the defendant, and also a reference to the clauses in the acts and ordinances imposing the obligation to clean the streets and setting forth in detail the work required to be done and cost thereof. The statement avers that the defendant was responsible for the obligations of the underlying companies, that those companies had not cleaned the streets and that the City had to do the work. As suggested by the learned trial judge in his opinion discharging the rule for judgment n. o. v., “its (the defendant’s) liability was averred, the streets upon which its tracks were laid were specified, and the responsibility under the General Ordinance for all streets was distinctly affirmed.” There was no demurrer to the statement nor request for a bill of particulars. The plea was non assumpsit. The court permitted a recovery only upon the obligations imposed by the General Ordinance, thus excluding from the consideration of the jury liability alleged in the statement under special ordinances. No recovery was had for sweeping snow or for cleaning streets from curb to curb, or for expenses for maintaining the department. These were claimed in the statement but were abandoned on the trial by the plaintiff or the evidence supporting them was excluded.

Had the defendant company demurred in the first instance it might have been difficult to sustain the statement. If deemed inadequate or insufficient under the practice act, or that it did not disclose clearly the plaintiff’s claim so as to enable the company to prepare its defense, the proper way to raise these questions was by a demurrer or a rule for a bill of particulars. Having pleaded the general issue and filed an affidavit of defense to the merits of the plaintiff’s claim which avers no defect in the statement, it is now too late to allege that the statement is insufficient in not setting out the claim in greater detail. The statement was sufficient and the evidence offered was properly admitted.

For the purpose of showing that the responsibilities which attached to various street railway companies under the General Ordinance of 1890 and under the special ordinances set forth in Exhibit A had been assumed by the defendant company since 1902, the plaintiff offered in evidence paragraph one of the affidavit of defense as follows: “That while it may not be true that the defendant is responsible for all of the obligations and conditions attached to and forming a part of the charters and franchises of the various companies whose lines defendant operates, the defendant is willing to admit that in so far as such obligations and conditions relates to the cleaning of streets in the City of Pittsburgh it has assumed the responsibility of such companies since the first day of January, 1902, at which time its operating contracts with the United Traction Company and the Consolidated Traction Company became effective.” The plaintiff also offered in evidence for the purpose of showing an admission of liability on the part of certain traction systems, under the General Ordinance of 1890, paragraph two of the affidavit of defense, which, in part, is as follows: “That nearly all the street cats are operated over routes in this city covered by certain traction systems, and that rights were granted to the traction companies operating these systems, subject to the General Ordinance dated February 25, 1890, which provided that the streets should be kept clean and in repair between the tracks and one foot outside, and the defendant asserts that in so far as it has any liability for the cleaning and repair of streets it is under this traction ordinance or the General Ordinance of the City of Pittsburgh, passed on the 25th day of February, 1890; that any act of assembly or other ordinance which has imposed any other duties of cleaning the streets or keeping them in repair has been abrogated and rendered of no effect by the passage of these later ordinances.” Under the admissions in the affidavit, which are in evidence, the defendant concedes, as will be observed, that since January 1, 1902, it assumed the obligations and conditions which relate to the cleaning of streets within the city imposed by the charters and franchises of the underlying companies. It also appears by these admissions that the street cars are operated over routes in the city covered by traction systems, and that rights were granted to the traction companies operating these systems subject to the General Ordinance of 1890, which “abrogated and rendered of no effect” the duty to clean streets imposed by any act of assembly or other ordinance. The plaintiff was therefore not required to show the charters and franchises of the underlying companies nor the contracts, agreements or leases connecting the defendant with those companies. The affidavit admits that the charters of these underlying companies required them to keep the streets clean, as does also the General Ordinance of 1890, and that the defendant assumed this obligation since January 1, 1902. In view of these admissions it was immaterial, so far as showing the liability of the underlying companies to clean the streets was concerned, whether the charters of those companies were put in evidence or not, and, therefore, their admission did the defendant no harm.

The court properly admitted in evidence, on the plaintiff’s offer, the two paragraphs of the affidavit of defense. They contained admissions which were adverse to the defense and tended to sustain the plaintiff’s claim. A party may prove his claim by showing the voluntary admissions of his opponent, whenever and wherever made, and whether verbal or in writing. Admissions against interest are always admissible in the trial of a case to sustain or defeat a cause of action. At any time or under any circumstances, if the admission is voluntarily made it may be given in evidence by the opposite party. Admissions in affidavits of defense are not an exception to the general rule. The purpose of an affidavit of defense is primarily to prevent a summary judgment; but it may become evidential by containing admissions or statements adverse to the party who made it. It is the uniform practice in this state for the plaintiff to offer any part or parts of an affidavit of defense which show admissions by his opponent sustaining the plaintiff’s claim. He may offer those parts of the affidavit for the specific purpose of showing such admissions, and the offer and the evidence will be confined to the purpose. He is not required to offer the whole affidavit and is not bound by any part of the affidavit which he does not specifically offer, nor can the defendant use the other parts of the affidavit to relieve himself from supporting those averments by proof. Such parts only of the affidavits as are offered for the specific purpose are in evidence and to be considered by the jury.

Paragraph three of the General Ordinance of 1890 provides that a passenger street railway company “shall keep clean and maintain such pavement in good order, condition and repair so long as its tracks shall be used.” The acceptance of this ordinance imposed upon street railway companies an absolute duty to clean that portion of the streets between its tracks and one foot outside thereof. The obligation is definite and mandatory. When a company obtains municipal consent to enter and operate a railway upon the streets of a city it is charged with notice of its duty to keep the streets clean as required by the ordinance. It assumes the performance of this duty without further notice or request from the city. The ordinance itself is notice to the company that it must keep the streets clean. Notice of the necessity for the observance of the ordinance and of cleaning the streets is brought to its attention every day. It sees the municipality cleaning those parts of the streets which the ordinance requires the company to clean, and, therefore, there was no necessity for notice to the defendant company to perform its duty in this respect. He who assumes the performance of a fixed duty at a definite time voluntarily imposed cannot justify a neglect or failure on the ground of the absence of a subsequent request that he perform the duty. In other words, he need not be told to do what he already knows it is his duty to do. TTis failure to act under such circumstances imposes liability for the necessary consequences. There is no provision in the General Ordinance or any special ordinance which requires the railway company to clean the streets after notice or on demand to do so. Nor is there any provision in the ordinance imposing a conditional duty on the railway company to clean the streets; on the contrary the duty is unconditional and obligatory that the company “shall keep clean and maintain such pavement in good order, condition and repair so long as its tracks shall be used.” The duty therefore was imperative and the time of its performance was absolutely fixed. There is no merit whatever in the contention that a prior demand upon the defendant to clean the streets was a prerequisite to the right of the plaintiff to maintain this action.

This is not a claim for the cost of paving or repaving a street where a prior duty devolves upon the municipality of determining the character of the pavement and the time when it shall be laid. The municipal discretion in such matters must be first exercised before the party is required to perform the service. In such cases it is necessary that notice to act be given the party whose duty it is to pave the street. The cases cited by the appellant are of this character, and were determined upon facts which required a prior notice to impose responsibility upon the defendant company.

We have held that it is the practice in this state to send out with the jury calculations and statements of a claim in the trial of a scire facias, in an action of replevin, and in an action of trespass for mesne profits. There has never been any doubt, and it has been ruled time and again, that in an action of assumpsit to recover moneys alleged to be due the plaintiff that either or both parties may send out with the jury a calculation and statement of claim based on evidence produced at the trial. It is everyday practice. In holding it proper in such cases to send out with the jury a “statement and set off and calculations made of thé same,” Mr. Justice Gibson said in Frazier v. Funk, 15 S. & R. 26, 27: “With reasonable caution on the part of tbe Court, no unfairness can be practiced in sending out a paper such as this; of its consequences, no test is so good as experience, and that proves not only its fairness, but its great utility. Indeed, where accounts are submitted to a jury, it would be impossible to get along without it. It originated with mutual convenience and tbe agreement of parties; but it has prevailed so long and so uninterruptedly, as to have grown to be a rule of practice, and as such we are not bound to disturb it.” Such statements and calculations are not evidence, and in this case tbe court distinctly told tbe jury they must not be considered as such, but are simply given to tbe jury to show tbe several items and tbe manner by which tbe plaintiff arrived at bis demand. Of course, every item in tbe claim must be proven to tbe satisfaction of tbe jury, otherwise it must be stricken from tbe claim and not allowed to go to tbe jury. When tbe plaintiff offers to send out bis calculation or statement, if there is any objection, it must be submitted to tbe court who will see that it contains no item which is not supported by evidence. It is not tbe duty of tbe court however to say that tbe evidence is not sufficient to support any item, but only to see that there is evidence which if believed by the jury will sustain tbe item. If the opposite party has any objection to the statement it is bis duty to call the attention of tbe court to thbe disputed items and ask that they be stricken out, and, if be fails to do so, and only flies a general objection to the statement, we will not reverse: Kline v. Gundrum, 11 Pa. 242; Terry v. Drabenstaat, 68 Pa. 400. In the case in band, it was obviously necessary that a statement of the plaim tiff’s claim, including the several items thereof and the tabulations and calculations, should be sent out with the jury. The defendant company was at liberty to send out a tabulated statement if it desired, and should have done so, if it thought the plaintiff’s statement erroneous in any particular. The trial occupied more than two weeks of the time of the court, and Exhibit B showing the items of expenditure and other data fill one hundred pages of the paper-book. Without the statement the jury would have been at sea without compass or rudder. Twelve accountants, sitting as a jury, could not have intelligently considered and arrived at a correct conclusion without a tabulated statement showing the several items and a calculation showing the final result. The tabulations made by the plaintiff and sent out with the jury were all based upon testimony which had been delivered before the jury, and as the several items of the claim were stated, the jury was enabled to consider each item and to apply the evidence to it. The jury was admonished that the statement and tabulations were “merely claims of the plaintiff as to what the evidence shows, and unless you find that the evidence corresponds with them, both with respect to the time that was occupied, the number of men employed, when the work was done, and all those matters, you will disregard them.” Under the circumstances, and considering that the verdict was, in the judgment of the trial court, very reasonable, being less than one-third of the claim, we can see no just ground for holding it error to send out the tabulations with the jury. Sending papers and exhibits out with a jury is in the sound discretion of the court: Little Schuylkill Nav., R. R. & Coal Co. v. Richards, 57 Pa. 142; Ott v. Oyer, 106 Pa. 6; Person & Riegel v. Lipps, 219 Pa. 99.

The fact that the cost of cleaning the streets as shown by the evidence was not as large as that set' forth in Exhibit B, or that the system adopted in cleaning the streets was alleged to be extravagant and the charges excessive do not require us to reverse the judgment. They are matters of which the trial court is far more able to judge intelligently than we are. It is seldom that a plaintiff proves an unliquidated demand in the' exact amount set out in his statement, and he is not required to do so. He avers the amount of his claim, and it is the province of the jury to determine whether he has proved the whole or any part of it. Likewise, whether the system of cleaning the streets was extravagant and the charges excessive, as alleged, were matters for the jury under proper instructions by the court. They were necessarily questions of fact and could not be withdrawn from the jury.

We have dealt with the controlling questions in the case without taking up seriatim the thirty assignments of error. The court committed no reversible error in the conduct of the trial, and we see no reason for interfering with the judgment. Under the pleadings, evidence and admissions in the case, there is no doubt of the liability of the defendant company for the cost and expenses incurred by the City in cleaning the parts of the streets between the railway tracks and one foot outside thereof (the obligation imposed by the General Ordinance), and the only real question in dispute on the trial was the amount of the expenses legally incurred by the City in doing the work assumed, but not performed, by the defendant company.

The judgment is affirmed.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Glew v. Pittsburgh Railways Company, Appellant.

      Negligence — Master and servant — Vice-principal—Street railways — Motorman—Superintendent—Defective tracks — Knowledge of dangerous condition — Reliance on master’s orders — Question for fury.

    In an action to recover damages for personal injuries, the case is for the jury and a verdict for plaintiff will be sustained where it appears that the plaintiff, a motorman in the employ of the defendant, was engaged to run a freight car whenever and wherever directed by the superintendent of the defendant’s supply department; that on the day of the accident he was instructed to run his car, with a load of old wheels on board and pulling a gondola car loaded with coal behind, over a certain line the tracks of which were out of repair; that the plaintiff suggested this fact to the superintendent or his representative, and said that it would be dangerous to run the kind of load he was hauling over these tracks, when he was told that he should proceed to do as he was ordered or he would ‘learn what would happen to him;” that he carried out the directions of the superintendent and while on the line the tracks separated, causing the gondola car to drop down and break an axle, with a resulting shock to the freight motor car which disploced the old car wheels and caused one of them to fall upon and injure the plaintiff.
    Argued Oct. 25, 1911.
    Appeal, No. 75, October T., 1911, by defendant from judgment of C. P. Washington Co., Feb. T., 1910, No. 103, on verdict for plaintiff in case of Thomas Glew v. Pittsburgh Railways Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass for personal injuries.
    The facts appear in the following opinion by Mcllvaine, P. J., overruling motion for judgment non obstante veredicto:

      This motion raises bnt a single question, and that is, did the Court err in refusing the defendant’s .request to give the jury binding instructions to find in its favor.
    The plaintiff was an employee of the defendant company. He was a motorman engaged to run a freight motor car whenever and wherever directed by the superintendent of the department in which he was employed. The defendant company operates the street railways in the city of Pittsburgh and the neighboring boroughs, and the interurban cars that run into Washington County. It has a department known as the supply department, with a store at Homewood. J. A. Laughlin is the superintendent of that department and has entire control of it. In his department he has three motor freight cars, which he uses in distributing the supplies which he keeps in his store to the different points on the defendant’s system at which they may be needed. As the calls for supplies come at irregular intervals and whenever needed, the services of the plaintiff in running the motor car are rendered upon the express order of the superintendent, and he comes and goes as the superintendent directs. On the 5th day of May, 1909, the plaintiff was sent out with his motor car from the Homewood store for the purpose of getting some old car wheels at Rankin station, and also of getting a gondola load of coal at Glenwood station, the gondola car when loaded with coal to be attached to the freight motor car. While at Glenwood station he was called by telephone by the store at Homewood and the superintendent, through his assistant, directed him, after he had gotten his load as ordered in the morning, to proceed to Braddock avenue in Turtle Creek borough, go along that avenue to the factory of the Westinghouse Airbrake Company and there get certain castings, and then return with his load to Homewood. The railway tracks on Braddock avenue were out of repair and the plaintiff when talking over the ’phone to the store at Homewood suggested this fact to the superintendent or his representative; and said it would be dangerous to run the kind of a load that he was hauling over those tracks, when he was told, as he claims, that he should proceed to do as ordered or he would learn in the morning what would happen him. He carried out the directions of his superintendent, loaded the old car wheels at Rankin station into the box car and took the loaded gondola of coal hooked to his freight car and started for Braddock avenue for the purpose of getting the castings as directed- When on Braddock avenue, as he alleges, the track separated and allowed his gondola car which was running in front, to drop down and break an axle, and this sudden stop of the gondola car caused a shock to the freight motor car which was running behind it, and this shock displaced the old car wheels and caused one of them to fall on the plaintiff’s foot and injured it. He alleged at the trial that the negligence of the company in not keeping their tracks in repair was the proximate cause of the injury to his foot. No defense was made by the defendant company as to the charge that it was negligent in not keeping its tracks on Braddock avenue in proper repair. They rested their whole defense on what they claimed was the contributory negligence of the plaintiff in running Ms car over tracks which he himself knew were dangerous; and at the close of the testimony their request to the court was to charge the jury as a matter of .law that the plaintiff was guilty of contributory negligence in running his car over Braddock avenue with the knowledge he had of its condition, and that their verdict should be for the defendant company on that account. The refusal to so charge and leaving the question of whether or not the plaintiff was guilty of contributory negligence to the jury, is the matter that now is complained of. In arguing this case the counsel for the defendant stated expressly- that the tracks on Braddock avenue. were out of repair and they had no defense to make against the plaintiff’s charge that they were negligent in this regard. They claimed, however, that the plaintiff having himself said in his conversation over the telephone to his superintendent, that it would be dangerous to run his cars over that track and then after-wards having done it, this was negligence on his part a,nd the Court should have found ás a matter of law that it was negligence.
    Now, there can be no dispute about the rules, first that an employee of a railway company, such as the defendant, assumes all the risks that are incident to the business in which he is engaged; second, that where he knows of a dangerous condition in the tracks of the company, and voluntarily runs his car over the dangerous tracks, he assumes all the risks of doing so, unless the danger is so slight or the risk so little that a man of ordinary prudence would have assumed it. But these general rules to which we have just referred have their limitations. First, if the defects grow out óf a want of ordinary care and vigilance on the part of the railroad company in providing or maintaining a reasonably safe track and are not so serious but that with care and prudence the track may be safely used, and at the request of the master the servant continues to use them and is injured, notwithstanding the exercise of care and prudence, he may hold the master liable. Again, if the servant suggests the danger and the master says or does that which leads the servant to believe that his fears are not well founded and that the master’s judgment is that, notwithstanding the defect, the tracks can be safely used, the servant has a right to rely upon the superior judgment of his master, and if he does and injury happens, the master is liable, notwithstanding the servant’s previous knowledge of the defect. Now, applying these limitations to the general rule to the facts in this case, it appears to us that it clearly raised a question of fact for the determination of the jury. It is true that the plaintiff said on cross-examination that he knew that the Braddock avenue tracks were in a dangerous condition and that he protested against running his cars loaded as they were over those tracks, but he alleges that the superintendent or his representative insisted on him doing it and added that he knew what would happen if he would disobey these orders. Now, what is the proper construction to be put upon this conversation? The defendant claims that the proper construction is that the plaintiff knew of the dangerous situation and that he took the language of the superintendent or his representative to be a threat that he would be discharged if he did not run over the dangerous track, and that rather than lose his job he risked being injured as he was. The plaintiff’s contention was that his conversation simply meant that the Braddock avenue track was out of repair, but that the superintendent thought it was not necessarily dangerous to run over, as the company at that time was running many trains a day over it of heavy interurban cars, and that there had no accident happened and it would be as safe to run the plaintiff’s cars over it as it was to run these heavy cars, and that the plaintiff had a right to infer from what the superintendent said that he believed that he, by exercising care, could safely do what he was ordered to do, and that he would not have said what he did had he thought he was placing an extra hazardous risk upon the plaintiff, and after having had this conversation with his superintendent that he concluded he would do the best he could, never thinking that he would be injured as he was, and that what happened to him was not what he expected. Under these contentions, it struck us at the trial and does yet, that the Court would have erred had it said as a matter of law that the plaintiff was guilty of contributory negligence.
    “The fact that the person injured was aware of the danger is not sufficient to render him guilty of contributory negligence as a matter of law, but the question should be submitted to the jury:” 29 Cyc. 640.
    Again, it is clear from the testimony, as we view it, that the plaintiff did not voluntarily run his car over this dangerous track. He did it upon the order of the superintendent of the department in which he was working, — the vice principal of the defendant, and the jury was the proper tribunal to say whether he had a right by that order to infer that the superintendent thought he could safely pass over the tracks, and, if that inference was justifiable, to also say that the plaintiff as employee trusted to the judgment of his superior. If that were the case, then the true rule would be that laid down by Mr. Justice Mestrezat in Williams v. Clark, 204 Pa. 416, which we gave to the jury for their guidance and which reads as follows:
    “We think the facts in this case bring it within the well recognized rules laid down in the test books and in our own decisions. The true rule in this case, as in all other cases, is, that if the master gives the servant to understand that he does not consider the risk one which a prudent person should refuse to undertake, the servant has a right to rely upon his master’s judgment, unless his own is so clearly opposed thereto that, in fact, he does not rely upon his master’s opinion. A servant is not called upon to set up his own unaided judgment against that of his superiors, and he may rely upon their advice and still more upon their orders, notwithstanding many misgivings of his own. The servant’s dependent and inferior position is to be taken into consideration,' and if the master gives him positive orders to go on with the work, under perilous circumstances, the servant may recover for an injury thus incurred, if the work was not inevitably and imminently dangerous.”
    We recognize the fact that this is a close question, but we have always in cases of this kind resolved the donbt in favor of a trial by jury rather than by the judge; and whether or not Thomas Glew, the plaintiff, under all the circumstances which led up to his running his cars over Braddock avenue exercised ordinary care, under these circumstances, was a question of fact and in our opinion it would have been error on the part of the court to say as a matter of law he was guilty of contributory negligence in doing what he did; and the motion for judgment n. o. v. must therefore be overruled.
    And now, January 17, 1911, this motion came on to be heard, and was argued by counsel, whereupon, upon due consideration it is ordered, adjudged and decreed that the motion be overruled and judgment be entered for the plaintiff on the verdict of the jury.
    Verdict for plaintiff for $2,795.83 and judgment thereon. Defendant appealed.

      Error assigned was overruling motion for judgment non obstante veredicto.

      R. W. Irwin, with him Jas. A. Wiley, for appellant,
    cited Green & Coates Pass. Ry. Co. v. Bresmer, 97 Pa. 103; Diehl v. Iron Co., 140 Pa. 487; Sykes v. Packer, 99 Pa. 465; Danisch v. Amer, 214 Pa. 105; Brossman v. R. R. Co., 113 Pa. 490; Leary v. R. R. Co., 139 Mass. 580 (2 N. E. Repr. 115); Sweeney v. Envelope Company, 101 N. Y. 520 (5 N. E. Repr. 358); O’Neil v. Keyes, 168 Mass. 517 (47 N. E. Repr. 416); Nuss v. Rafsnyder, 178 Pa. 397; Talbot v. Sims, 213 Pa. 1.

      W. S. Maxey with him James M. Clark, for appellee ;
    cited: Doyle v. Mo. Kan. & Texas Trust Co., 140 Mo. 1 (41 S. W. Repr. 255); Patterson v. R. R. Co., 76 Pa. 389; Kehler v. Schwenk, 151 Pa. 505; Gerding v. Standard Pressed Steel Company, 220 Pa. 229.

      January 2, 1912:
   Per Curiam,

The judgment is affirmed on the opinion of the learned President Judge of the Common Pleas.


text:
    Houston Borough, Appellant v. Washington & Canonsburg Railway Company.

      Street railways — Bleciric Light, Seat and Power Companies— Boroughs — Borough streets — Bight to string wires — Act of March 19, 1908 P. L. Sk.

    Under the Act of March 19, 1908, P. L. 8k, an electric street railway company has a right to string its wires within the limits of a borough upon the poles of an electric light, heat and power company under a contract with the latter although in so doing its wires are located on streets occupied by poles of the light, heat and power company but not part of the route of the railway company or occupied by its tracks- and a bill in equity by the borough seeking an injunction to restrain such action will be dismissed where there is no violation of the provisions of either the ordinance granting permission to the railway company to occupy the borough streets or that granting permission to the electric light, heat and power company, and where the traveling public on the different streets would be interfered with just the same and for the same distance whether the line was strung on the poles of the railway company following the line of its track or on the poles of the electric light, heat and power company along its route.
    Argued Oct. 25, 1911.
    Appeal, No. 104, Oct. T., 1911, by plaintiff from decree of C. P. Washington Co., No. 1946 in Equity, dismissing bill in equity in case of Borough of Houston v. Washington & Canonsburg Railway Company and Pittsburgh Railways Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity for an injunction.
    McIlvaine, P. J., filed the following opinion:

      FINDINGS OF FACT. .
    1. The plaintiff is a municipal corporation, having been chartered by a decree of the court of quarter sessions of this county on May 13, 1901.
    2. The Washington & Canonsburg Railway Company is a corporation which holds its charter under the provisions of the Act of Assembly approved May 14, 1889, P. L. 211, and some years ago constructed an electric street railway from Washington through the borough of Houston to the town of Canonsburg, a distance of about nine miles. The Pittsburgh Railways Company is a corporation of similar character, and under a contract with the first named company operates its road from Washington through the borough of Houston to Canonsburg.
    3. The Canonsburg Electric Light, Heat & Power Company is a corporation having its office in the borough of Canonsburg and maintains electric lines from Washington through Houston to Canonsburg for the purpose of supplying light, heat and power to those who may see fit to patronize it.
    4. Two of the streets in Houston borough which run north and south and parallel to each other are known respectively as Grant Street and Pike Street; two other of the streets of the borough which run east and west and parallel to each other, crossing the first two named streets, are known respectively as Main Street and North Avenue. The Washington & Canonsburg Railway Company’s track going from Washington enters the south side of the borough of Houston on Grant Street and runs north to Main Street where it turns at right angles onto Main Street and runs east to Pike Street where it turns to the north and runs along Pike Street on its way to Canonsburg, passing over North Avenue. The Canonsburg Electric Light, Heat & Power Company’s poles and lines also enter the south side of the borough of Houston on Grant Street, run alongside of the Electric Railway Company’s track down Grant Street, passing over Main Street and running to North Avenue, where they make a turn to the east and run to Pike Street and there again follow the line of the railway company’s track. The distance between Grant Street and Pike Street is about 315 feet; the distance from Main Street to North Avenue is approximately 1500 feet.
    5. The defendant companies’ franchise in the borough of Houston was given by an ordinance duly passed which is known in the ordinance book as Ordinance No. 10, and grants to the Washington & Canons-burg Railway Company the privilege to enter upon, use and occupy for the purpose of its railway, the following described route in the said borough of Houston-: Grant Street from the southern entrance to Main Street, thence along Main Street to Pike Street, and thence along Pike Street to the northern boundary of the borough. The words of the first section of the ordinance which are particularly relevant to this case are as follows: “to construct, maintain and use for the term mentioned in its charter, a proper street railway track, with the necessary sidings and turnouts, the right to use electricity or other motive power, except steam or horse power, on the whole or any part of its line hereby authorized to be constructed, and also to erect, maintain and use on said streets an overhead electric system for the supply of motive power and to use thereon such overhead system and to complete said electric system by suitably connecting the rails of the road at their ends or by connecting the rails with supplemental ground wires.” One of the conditions on which the franchise was granted was that “the overhead wires shall be supported by smooth, symmetrical wooden poles which shall be kept neatly painted and be placed along the curb lines and so far as possible on property lines.”

      6. The franchise granted to the Canonsburg Electric Light, Heat & Power Company is found in an ordinance which in the ordinance book of the borough is No. 27. The first section of that ordinance provides “that authority be and is hereby granted to the Canonsburg Electric Light, Heat & Power Company, its successors and assigns, to construct, operate and maintain lines for the transmission of electricity, for furnishing light, heat and power, including the necessary poles, wires and fixtures, upon, along and over the streets, lanes, alleys and highways within the limits of the borough of Houston, subject to the general regulations of said borough.” The second section provides that “all poles erected under this ordinance shall not be less than twenty-five feet in length from the curb line and located under the direction and supervision of the street committee of council and where required by said committee and in constructing' said line and making repairs to the same the work shall be done in such manner as to interfere as little as possible with the free use of the streets, alleys and highways of said borough;” and provides further “that no wire shall be Strung under the provisions of this ordinance nearer to the surface of the ground than twenty-five feet, except by special permission in writing from the street committee.” Under this ordinance and under the supervision of the street committee or commissioners of the' borough, the electric light, heat and power company constructed its lines from the south line of the borough along Grant Street to North Avenue, down North Avenue to Pike Street and from Pike Street to the northern boundary of the borough, and have been, since its construction some months before the filing of this bill, operating said line.
    7. On the 27th day of August, 1909, the Canonsburg Electric Light, Heat & Power Company entered into a written contract with the Washington & Canonsburg Railway Company,, whereby the right was given to the electric light and power company to erect its poles along the line of the railway company’s track and on their right of way between Washington and Houston borough and between Houston borough and Canons-burg. The fifth paragraph of that agreement, which covers a number of matters not relevant to this case, provides as follows: “The party of the first part (that is the electric company) hereby agrees to permit the party of the second part (that is the railway company) to erect upon the main line of poles of the party of the first part (that is the electric company) carrying its high tension line or lines through the Borough of Houston not to exceed two sets of three wires each in the same relative location on such poles as the high tension lines that the two companies occupy along the route from Tylerdale to Meadowlands upon condition that the party of the second part pays the party of the first part for the cost of all the poles and the setting of the same which the party of the second part thus occupies in said borough, and the party of the second part is to pay one-half the expense of the cross arms necessary for supporting said wires and pay the expense of the maintenance of any of the poles of the party of the first part which the party of the second part thus occupies in Houston borough.”
    8. Some time before the filing of plaintiff’s bill the Pittsburgh Railways Company which operates the street railway line, desired to string another high tension line through the borough of Houston and in doing so, in place of following the line of their track from the corner of Main and Grant Street down Main Street and along Pike Street to the corner of Pike Street and North Avenue, they strung the line under the contract just referred to on the poles of the electric light, heat and power company which were erected from the corner of Main and Grant Streets along Grant Street to North Avenue, and down North Avenue to Pike Street where connection was made with the line along the track of the railroad. The stringing of this line was finished (bnt no current of electricity passed through it) on the second day of September, 1910, the same day that the plaintiff presented its injunction bill in this case, praying that an injunction be awarded preliminary to final hearing, and thereafter to become perpetual restraining the said Washington & Canonsburg Railway Company and the said Pittsburgh Railways Company, defendants, from attaching their wires or the wires of either of them to poles or otherwise permanently locating them on or within that portion of Grant Street in the said Borough of Houston lying between Main Street and North Avenue and that portion of North Avenue lying between Grant Street and Pike Street in said borough, and from passing currents of electricity through the said wires while located on the portions of streets last above designated; and also praying that the said defendants be required to remove the wires already strung as aforesaid along said portions of Grant Street and North Avenue. The Court, on the presentation of the plaintiff’s bill and the necessary injunction affidavits and bond, granted the usual five day injunction, and at the time fixed for hearing the plaintiff moved the court to continue the injunction granted as a preliminary injunction until final hearing, and the question now for decision on the facts found is whether or not this motion should be granted.
    CONCLUSIONS OF LAW.
    First. That the contract of August 27, 1909, by and between the Canonsburg Electric Light, Heat & Power Company and the Washington & Canonsburg Railway Company referred to in the seventh finding of fact, was authorized by the provisions of the Act of Assembly approved March 19, 1903, P. L. 34; and under that contract the defendants had a right to string their wires upon the poles of the electric light, heat and power company from Main Street along Grant Street and down North Avenue to Pike Street, it not appearing in the evidence that in stringing said wire they in any way violated any of the provisions of ordinances Nos. 10 or 27.
    Second. That the plaintiff’s motion to continue the preliminary injunction until final hearing should be refused.
    COMMENTS.
    The Act of 1903 provides as follows: “Section 1. Be it enacted, &c., That it shall and may be lawful for corporations for what purpose soever formed and lawfully using electrical current within this Commonwealth, to enter into contracts with each other for the use of the same poles, wires and conduits, or for the purchase and sale of electrical current, or for the lease and operation of each other’s systems, on such terms and conditions as they may agree upon; Provided, That nothing in this act contained shall be construed to give to any company any rights to erect or maintain poles, wires or conduits upon any street or road not already so occupied, unless the consent of the local authorities shall have been first obtained.”
    It will be observed: (1) That both of these corporations had a right to string wires on poles through the borough of Houston for the purpose of carrying electric currents for the furnishing of power. (2) That the distance from the corner of Main Street and Grant Street to the corner of North Avenue and Pike Street was about 1800 feet, whether you went down Main Street and along Pike Street the way the railway track ran, or down Grant Street and along North Avenue to Pike Street the way the electric light, heat and power company’s poles ran. (3) That the railway company had a right to string such wires as they thought were necessary to carry the current required to operate their road between the points named, and also that the electrie light, heat and power company had a right to string similar wires to carry electricity to furnish power such as they might think was necessary. (4) That the routes from the corner of Main and Grant Streets to the corner of Pike Street and North Avenue, whether you went by the way of Main Street and Pike Street or went by the way of Grant Street and North Avenue, had erected thereon and were occupied by poles and wires used for one and the same purpose.
    This being the case, the traveling public on these different streets would be interfered with just the same and for the same distance whether the line was strung on the poles of the railway company following the line of their track or on the poles of the electric company along the route that they occupied, and in our opinion what was done by these two companies under the contract that existed between them in no way conflicted with the provisions of the Act of 1908 which provides that nothing in the act contained shall be construed to give any company any rights to erect or maintain poles, wires or conduits upon any street or road not already so occupied, unless the consent of the local authorities shall have been first obtained. Clearly, the two routes to which we have referred were already occupied by the two contracting parties and occupied for one and the same purpose, to wit, the carrying of electric wires on poles for the purpose of transmitting electricity which was to be used to furnish power, and as there is no allegation in the bill and as there was no evidence produced at the hearing which shows that this wire of the railway company which was strung on the poles of the electric company was strung in a manner to offend against the terms of either of the ordinances to which we have referred, we are clearly of the opinion that the plaintiff is not entitled to the preliminary injunction for which it prays.

      Exceptions to the adjudication were dismissed and a decree filed dismissing the bill.

      Error assigned was decree dismissing the bill.

      Irwin Cummins, with him Boyd & E. E. Crumrine, for appellant.
    — Street railway companies, incorporated under the Act of 1889 have no legal right to enter upon and occupy the streets of a borough without having first procured municipal consent so to do is well established in a long line of precedents: Larimer & L. St. Ry. Co. v. Larimer St. Ry. Co., 137 Pa. 533; Athens, Sayre & Waverly Electric St. Ry. Co. v. Sayre Borough, 156 Pa. 23; Allegheny v. Millville, Etna & Sharpsburg St. Ry. Co., 159 Pa. 411; Lehigh Coal & Navigation Co. v. Inter-Country Street Railway Co., 167 Pa. 75; Jordan v. Wash. & Canonsburg Ry. Co., 25 Pa. Super. Ct. 564; Ohio River Junction Railroad Company v. Freedom & Conway Electric Street Railway Co., 204 Pa. 127. Municipal consent to the construction of a street railway does not include subsequent extensions; consent must be obtained for each extension: Coatesville & Downington Street Ry. Co. v. West Chester Ry. Co., 206 Pa. 40; Lawrence County v. New Castle Electric Street Ry. Co., 8 Pa. Super. Ct. 313.

      R. W. Irwin, with him James A. Wiley, for appellee,
    cited: Com. v. R. R. Co., 27 Pa. 339; Philadelphia & Trenton R. R. Co., 6 Wharton 25; Penna. R. R. Co.’s App., 115 Pa. 514.
    January 2, 1912:
   Per Curiam,

The decree dismissing the plaintiff’s bill is affirmed on the opinion of Judge Mcllvaine.


text:
    McDonald v. Ellsworth Collieries Company, Appellant.

      Negligence — Master and servant — Respondeat superior — Scope of employment — Evidence—Question for jury.

    In an action for damages for the death of plaintiff’s husband the case is for the jury and a verdict for plaintiff will be sustained where there is evidence justifying a finding that the death was caused by the negligence of one of defendant’s servants, who in the course of his duties released the brakes upon eight loaded coal cars and permitted them to run down grade and strike other cars under which he had notice that decedent was working.
    Argued Oct. 25, 1911.
    Appeal, No. 166, Oct. T., 1911, by defendant, from judgment of C. P. Washington Co., Aug. T., 1910, No. 279, on verdict for plaintiff in case of Zarildia McDonald v. The Ellsworth Colleries Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass for death of plaintiff’s husband.
    The following opinion by MoIlvaine, P. J., overruling defendant’s motion for judgment non obstante veredicto, states the case:
    In this case the husband of the plaintiff, Elizabeth McDonald, while working for the Pennsylvania Bail-road Company was injured by a car running over him, so that he died. The plaintiff claims that the death of her husband was caused by the negligence of Angelo Sylvester who was an employee of the Ellsworth Collieries Company acting in the line of Ms duty at the time he negligently caused such injury, and that therefore the defendant company is liable to her and her children for the pecuniary loss they sustained by reason of her husband’s death. The defendant company denied any liability for the act of Angelo Sylvester for the reason that at the time he performed the act complained of he was acting as a volunteer for the Pennsylvania Railroad Company and at the suggestion of the railroad employee who was injured. There is no donbt that Angelo Sylvester was on the pay roll of the Ellsworth Collieries Company and that he performed the duty of trimming coal cars that had been loaded at their tipple, and after having trimmed them, of seeing that they were moved down to the point on the siding where the railroad company took them for transportation. As to the manner in which the accident happened that resulted in the death of McDonald, two theories were presented at the trial, both supported by testimony. These theories were given to the jury in the Charge of the Court in these words:
    “Now, Gentlemen, there are two theories in this case that have been laid before you by counsel, each claiming that the evidence before you supports its theory. The plaintiff’s theory is that McDonald went down to those six cars in the line of his duty to couple the airbrake hose, and that he was engaged in that duty, and that when he went down there these other eight or nine cars were standing up the track some distance and that there were no signs of them at that time being moved, and that he went in there under circumstances that justified him in believing that it was perfectly proper for him to do as he did, and that while he was in there fixing those cars, with his leg exposed outside the line of the cars, (where some of the witnesses that were standing at the telephone booth saw them) Angelo Sylvester notwithstanding Me-Donald was there between the cars where he might have been seen or where his leg might have been seen if he had looked, or where he might have seen him going just before he went in between the cars, — turned those eight or nine cars loose, releasing four brakes,— all of the brakes that were on the cars, — allowing them to go down there with force, thus endangering McDonald’s life, and that the natural and probable result of such action on Ms part took place, namely, McDonald was knocked down and run over and injured. And the plaintiff further claims that Angelo Sylvester while he was doing this was acting in the line of his duty, doing the work that he had been doing previously under the direction of the defendant coal company and while in their pay, and that that being true, under the law it is responsible for the negligence of its servant. Now, Gentlemen, if that was all true, then there would be a right of action here; that is, if you believe McDonald was there in the line of his duty working for the railroad company and that at the time he went in there he had no intimation that those eight cars above would be disturbed in any way, and that while he was in there Angelo Sylvester went on those cars and let them loose under circumstances showing that he knew or ought to have known that McDonald was down there, and ran those cars down by gravity without retaining any control of them so that he could stop them before they would disturb the six cars, and you further find that at that time he was a servant of the collieries company and was acting in the line of his duty and doing a thing there that they had assigned him to do or that he was accustomed to do under their directions,— why then I say there would be a right of action here on the part of the widow for negligence in having injured her husband in a way that caused his death, — negligence on the part of Angelo Sylvester which could be, under these facts, imputed to the company. Now, that is the plaintiff’s claim.
    “Now, the defendant’s claim is quite the converse of that. They claim first that McDonald was responsible for what took place there. They claim further that Angelo Sylvester at the time he moved those eight cars down there was not acting in the line of his duty for the coal company but he was acting simply at the direction of McDonald himself as a matter of accommodation to him, and that it was the railroad’s business
      to see that those eight cars were gotten down there and that when Sylvester did it he was merely complying with the request of McDonald himself who was a railroad employee and that he brought this injury upon himself. They claim that when McDonald got off the engine, which brought the twenty-six coke cars down from Cokeburg and went up in the direction of this booth where these eight cars were standing, and that he then asked Sylvester to drop one car down which was all that was necessary to make out their load when added to the six and twelve that were below. They claim that Sylvester told him he could not drop one car down. The foreigner, not being well versed in English, expressed it in this way, ‘because the track was bad.’ But I think we can fairly infer that what he undertook to express in his broken English, was that the track as it got down so near to the bridge was almost level and that one car loosed from the front end of those nine cars would not run down there by gravity, and that that is what he meant. But at all events he said that he told him he could not do that, but that he would run the eight down there and then when the eight were down he could cut off the one; (the greater weight of the cars which were farther up on the grade forcing them down) and that he turned them loose in that way. Now, Sylvester claims also that he did not know that McDonald had gone down to the six cars, that he supposed that McDonald was waiting till he did what he was asked to do; that he was not there, and that the track down there was clear of everything except the six cars and some boys were about there, whom he ordered away before he let the eight go, and that the eight went down there, and, as he intended they should, with force, striking the six cars and shoving all of them down onto the level place beyond the bridge, and that that was not an uncommon thing to do; and I suppose there would be no negligence in that if they were sure the track was clear. Now, if you believe the testimony of the defendant, why then the plaintiff could not recover for two reasons. In the first place, if McDonald had asked Sylvester to run those cars down and Sylvester told him he was going to do it, then it would be negligence on the part of McDonald to ignore the information he had in regard to that matter and go in between those cars where he could not see what was coming, because that would be taking a risk upon himself even if he might have expected the cars to be run down under control,— there was still danger of them bumping, and it is not safe to couple cars, — that is apparent, — when there is a liability of another train bumping up against the cars you are coupling, so he would be guilty of contributory negligence. And on the other hand, he could not recover, because if that was the way the thing was done, Sylvester who did the negligent act complained of, would be acting for him and to accommoate him; and if, as the defendant claims, these cars were standing there, these eight cars, for the railroad company to take away, and the railroad company was moving them down there for its purpose, and Sylvester was acting merely at the request of McDonald and with him and for him, then any negligence of Sylvester would be the negligence of a man that was working with McDonald, —a fellow servant, and the defendant collieries company would not be liable.
    “Now, Gentlemen, it appears to the Court that the dispute here is on a question of fact. There is testimony here that tends to sustain each of these claims, and it is pretty hard to tell just where the colliery company’s duties in assembling those cars stopped and where the railroad company’s duty commenced; but it is somewhere, because evidently from the testimony, the colliery company maintained control over those cars for a time, because they had men employed to trim them and to drop them down, and while they were trimming them and dropping them down and acting within the line of that direction, why then they would be servants of the colliery .company doing that for which they were being paid and any negligence on the part of one of its employees that was the direct cause of an injury to a third party, that is a party that was not in their employ, it would be liable for.”
    We then left to the jury to determine the question of fact, — that is, whether Angelo Sylvester when he turned the cars loose that caused the accident, was acting in the line of his duty as an employee for the coal company, the defendant company, or whether he was acting for the time being as an assistant to Me-Donald who was an employee of the railroad company. The motion for judgment non obstante veredicto asks us to set aside the finding of the jury that Angelo Sylvester at the time he did the act complained of was an employee of the coal company and to find that he was acting as a fellow servant with McDonald, an employee of the railroad company. After a careful reading of the testimony, we feel that for the Court to so decide would be usurping the powers of the jury. The testimony clearly raised the question of fact which was submitted to the jury, and they having found against the defendant company, we are clearly of the opinion that the verdict of the jury should stand and that judgment should be entered thereon in favor of the plaintiff and against the defendant.
    And now, June 27, 1911, the defendant’s motion for judgment non obstante veredicto is overruled and judgment will be entered in favor of the plaintiff and against the defendant on the verdict of the jury, on the payment of the jury fee.
    Verdict for plaintiff for $6,120 and judgment thereon. Defendant appealed.

      Errors assigned were in' refusing binding instructions for defendant and in dismissing defendant’s motion for judgment non obstante veredicto.

      R. W. Irwin, with him Jas. A. Wiley, for appellant,
    cited: Towanda Coal Company v. Heeman, 86 Pa. 418; Flower v. Pennsylvania Railroad Company, 69 Pa. 210; Murphey v. Philadelphia Rapid Transit Company, 30 Pa. Super. Ct. 87; Connor v. Pennsylvania Railroad Company, 24 Pa. Super. Ct. 241.

      T. H. W. Fergus, with him Victor J. Levy, for appellee,
    cited: Haughey v. Pittsburgh Railways Company, 210 Pa. 363; Connor v. Pennsylvania Railroad Company, 24 Pa. Super. Ct., 241.
    January 2, 1912:
   Per Curiam,

The judgment is affirmed on the opinion of Judge Mcllyaine,


author: Mr. Justice Stewart, Justice Moschzisker:

text:
    Blick, Appellant v. Cockins.

      Trusts and trustees — Trusts ex maleficio — Fraud—Equity— Equity practice — Chancellor’s findings — Weight of testimony— Decree — Appeals. •
    1. Where a testator has been induced to make a devise by the promise of the devisee that it should be applied to the benefit of another, a trust is thereby created that may be established by parol evidence, and this is not contrary to the Statute of Wills nor within the Statute of Frauds and Perjuries. It is the element of fraud appearing in the case that gives the court jurisdiction to inquire into it, not with a view of enforcing a parol trust, but to relieve against the fraud by raising a constructive trust.
    2. In a proceeding by bill in equity to have a trust ex maleficio declared in the defendant with respect to property bequeathed and devised to him by his wife, the fraud alleged being that the defendant had procured his wife to execute the will by giving her verbal assurance that he would hold the property devised to him absolutely only during his life, and would see to it that the property so obtained should be divided between the brother and sister of testatrix, the complainants in the bill, equally upon his death, and that having so obtained the property he had repudiated the obligation of his promise and proposed to hold the property as his own absolutely, where the chancellor finds as a fact the credibility of three witnesses, of whom two, the complainants in the ease, testify to explicit admissions by the defendant, one that the will was executed giving to defendant absolutely the entire estate on the strength of the promise made by him to his wife that he would see that the estate would, at his death, go to her brother and sister, and the other that the absoluteness of the gift to him was only apparent, that it was only so written that he might pass it to complainants at his death, and the third, a reputable lawyer, testifies that on the occasion of the probate of the will, the defendant stated that he “held the estate in trust, a sacred trust” for complainants, and where it further appears that on the date of defendant’s admissions to the complainants he executed, in the presence of one of the complainants and her husband, what purported to be a last will, written by this complainant’s husband at defendant’s request, giving the entire estate left defendant by his wife to the two complainants, followed, at a later date, by his assurance to one of the complainants that he had by this will— afterwards destroyed — secured to him and his sister the estate, tbe chancellor commits error in refusing to decree the trust for which the bill prays.
    3. Such a bill is not an attempt to reform a written instrument but an attempt to prove fraud on the part of the defendant, and for this one witness is sufficient if believed.
    Mr. Justice Moschzisker dissents.
    Argued Oct. 25, 1911.
    Appeal, No. 15, Oct. T., 1911, by plaintiffs from decree of C. P. No. 2, Allegheny Co Oct. T., 1909, No. 1139, dismissing bill in equity in case of Adelaide Miller Blick and Horace J. Miller v. James M. Cockins et al.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Beversed.
    Bill in equity to declare a trust ex maleficio. Before Si-iafer, J.
    The facts appear in the opinion of the Supreme Court and in Miller v. Cockins, 231 Pa. 449.

      Error assigned among others was decree dismissing bill.

      John S. Ferguson, with him Joseph N. Ulman, for appellants.
    — If either before or after the making of the will, the testator makes known to the devisee his desire that the property should be disposed of in a certain legal manner, other than that mentioned in the will, and that he relies upon the devisee to carry it into effect, and the latter by any words or acts calculated to, and which he knows do in fact cause the testator to believe that the devisee fully assents thereto, and in consequence thereof, the devise is made, but after the death of the testator the devisee refuses to perform his agreement, equity will declare a trust and convert the devisee into a trustee, whether when he gave his assent he intended a fraud or not; the final refusal having the effect of consummating the fraud. Barrow v. Greenough, 3 Vesey, Jr., 152; Gilpatrick v. Glidden, 81 Me. 137 (16 Atl. Repr. 464); Drakeford v. Wilks, 3 Atk. 539; McCormick v. Grogan, L. R. 4 H. L. 82; Russell v. Jackson, 10 Hare 204; Wallgrave v. Tebbs, 2 K. & J., 313; Chamberlaine v. Chamberlaine, 2 Freem. 34; 2 Eq. Cas. Ab. 43; Fleetwood’s Case, L. R. 15 Ch. Div. 594; Amherst College v. Ritch, 151 N. Y. 282 (45 N. E. Repr. 876); O’Hara v. Dudley, 95 N. Y. 403; Brown v. Lynch, 1 Paige Ch. (N. Y.) 147; DeLaurencel v. DeBoom, 48 Cal. 581; Ahrens v. Jones, 169 N. Y. 555 (62 N. E. Repr. 666); Reel v. Reel, 1 Hawks (N. C.) 248; Church v. Ruland, 64 Pa. 432; Williams v. Fitch, 18 N. Y. 546.

      Samuel S. Mehard, with him Harvey A. Miller, for appellee.
    — When such terms as “clear, explicit, unequivocal and indubitable” are used by the courts in defining the requisite proof of a particular fact to be made out by verbal testimony, it is meant that a conviction shall be fastened in the minds of jurors as strong as verbal testimony is able to convey. It is meant that witnesses shall be found to be credible — that the facts to which they testify are distinctly remembered — that details are narrated exactly and in due order — and that their statements are true: Spencer v. Colt, 89 Pa. 314.
    There is every reason for maintaining the strictness of that standard where the witnesses in question are seeking by their own testimony to get for themselves a large estate in spite of the express provisions contained in the will of the owner.
    January 2, 1912:
   Opinion by

Mr. Justice Stewart,

This was a proceeding by bill in equity to have a trust ex maleficio declared in the defendant, James M. Cockins, with respect to property bequeathed and devised to him by the last will of his wife, Mariana M. Cockins, the averment being that the testatrix yielding to the persecution and studied insistence of her husband made her will devising her entire estate to her husband, only, however, upon his promise that he would hold the property so given him for and during his life, and would see to it that at his death the property should be divided between the complainants, brother and sister of his wife of the half blood. A decree was asked requiring the defendant to perform the terms of the trust, and enjoining him from encumbering or alienating the property. The answer specifically denied any effort on the part of the'defendant to influence his wife with respect to the disposition of her estate, and denied specifically that the will giving him the property absolutely had been made on any assurance or promise from him that he would hold it only for life and provide that upon his death it should go to appellants. Much besides what we have stated was alleged in the bill and denied in the answer, but the evidence in the case related solely to the one question of alleged inducement and promise on the part of the respondent. When the case came before us in 231 Pa. 449, we remanded it for fuller and more specific findings. These have now been furnished and the case is here for final determination. If the supplemental report leaves obscure some things which called for explanation, it is doubtless due to the fact that we did not clearly enough indicate the matters upon which we desired the mind of the chancellor. What these are will later on appear. The circumstances and relation of the parties to the controversy have but little bearing on the case. It is enough to state that the testatrix was a second wife of the appellee, Eev. James M. Cockins; that she was possessed of a very considerable estate, said to be of the value of $300,000, derived largely from her father, who was likewise father of the appellants by an earlier wife; that she died childless after a married life of about seven years, leaving as her closest kin the appellants. While her home was in Baltimore, she died in California while there on a visit. Her husband accompanied her remains to Pittsburgh for interment there. The appellants’ whole case rests upon admissions and declarations alleged to have been made by the defendant with respect to his wife’s will during the course of the funeral in Pittsburgh, on the evening of the same day, and on a day later in Baltimore where the will had been deposited and where it was to be probated. The witnesses who testified to the declarations made in Pittsburgh were the appellants, Horace J. Miller, Mrs. Adelaide Miller Blick and Carrol B. Blick, husband of the latter. The witness who testified to admissions made in Baltimore was Samuel' J. Harman, Esq., a reputable member of the bar. The material inquiry must be as to the sufficiency of the declarations and admissions made by the defendant to establish in him a trust with respect to the property given him by the will. The chancellor fully accredits the witnesses who testify to the declarations and admissions, and notwithstanding the explicit, unqualified, and repeated denial of each and every one by the defendant, he finds that the admissions were made in entire accordance with their testimony. He resolves it into a simple question of sufficiency of the proof. The doctrine is too well established to call for citation of authority that where a testator has been induced to make a devise by the promise of the devisee that it should be applied to the benefit of another, a trust is thereby created that may be established by parol evidence, and that this is not contrary to the Statute of Wills nor within the Statute of Frauds and Perjuries. It is the element of fraud appearing in the case that gives the court jurisdiction to inquire into it, not with a. view of enforcing a parol trust, but to relieve against the fraud by raising a constructive trust. Now the fraud alleged here and which was the one issue to which all the testimony was directed, was that the defendant had .procured his wife to execute the probated will by giving her verbal assurance that he would hold the property devised to him absolutely only during his life, and would see to it that the property so obtained by him should be divided between complainants equally upon his death, and that now, having by reason of such promise obtained the property, he repudiates the obligation of his promise, and proposes to hold the property as his own absolutely. How far do the admissions go towards sustaining this charge? Since the credibility of witnesses is a matter exclusively for the chancellor, and since in this instance the chancellor has expressly indicated the witnesses whose testimony he has accepted, our present inquiry must be confined to the testimony of these. They are Mrs. Adelaide Blick, Horace J. Miller and Samuel J. Harman. With respect to these witnesses the learned chancellor in his supplemental opinion says, “We are sorry to have been thus misapprehended, and desire to say that instead of disbelieving the testimony of Mr. Harman, who is an entirely disinterested witness, we were and are convinced that his account of the conversation testified to by him is correct. In like manner we have relied upon and treated as correct the testimony of Mrs. Blick, and especially that of Horace J. Miller, as to the statements made by the defendant to them in regard to his wife’s will, and notwithstanding the somewhat general denial of the defendant, we have no doubt that his declarations were substantially as related by these witnesses.” We have quoted this so that sufficient reason may appear for our limiting our present inquiry in the manner above indicated. We now give so much of the testimony of each of these witnesses as bears directly upon the point at issue. Mrs. Blick, accompanied by her husband, came from her home in Baltimore to attend the funeral of her sister, the testatrix, in Pittsburgh. She and her husband, with her brother Horace, accompanied the defendant to the funeral, occupying the same carriage. This is Mrs. Blick’s testimony in chief as to the conversation that there occurred: “Well, we were coming I believe out of the cemetery gate when the conversation came up, and be, defendant, spoke of tbe will being made and tbe money being left to bim, and tbe next reference was, be followed that right up by saying, it would be all right, it was a sacred trust that Mariana bad imposed upon bim, and it was a beautiful trust, that she bad trusted bim and that be meant by Almighty God to carry it out, and be would see we children got tbe money at bis death, and be said this two or three times in different ways, but all meaning tbe same thing.” Speaking of a later conversation that occurred during tbe evening of tbe same day at the hotel where they were stopping, she says defendant put bis arms about her and said, “Now, Adelaide, Mariana trusted me and you can trust me, and I will see not a penny of this money goes to my brothers; it will go to you and your brother Horace, and you can depend on it and I will carry it out.” On cross examination referring to this later conversation she says: “Mr. Cockins said to me that I need have no worry over tbe estate, that it was left to bim apparently in tbe will absolutely, but upon bis promise to my sister that at bis death it would go to us; it was not only a promise be made to my sister, but it was a sacred — a sacred contract be bad made before God Almighty. He meant to carry it out, and be would see in tbe end that tbe money would be ours.” Horace J. Miller’s testimony as to tbe conversation when returning from tbe funeral was as follows: “As we were returning from tbe interment, and I believe just as we were coming out of tbe cemetery gate way, Mr. Cockins suddenly mentioned tbe fact that bis wife bad left a will and bad left all tbe property to bim, but be said (I expect to do what is right. This is a sacred trust,’ and then be immediately followed that up by saying, ‘It was beautiful bow my wife trusted me and I will carry this out. I will carry out her intentions.’ He added some words to tbe effect that it was bis duty so to do, and be would see that they were carried out to tbe letter. My sister Adelaide made some sort of remark, “Oh, Mr. Cockins, we don’t want to hear about these things just now,” something like that, but he went on and told us about how his wife trusted him.” Further on he says “Well, he said that this property had been left to him absolutely apparently, but that it was left for him so that he might pass it to us at his death, that this would be better — I think he used the words that we would some day feel the advantage of this provision made in this way.” The conversation testified to by Samuel J. Harman occurred in Baltimore on the occasion of the probate of the will. Horace J. Miller had accompanied the others from Pittsburgh to Baltimore with a view to inquiring further as to the will. After reading the will Horace proposed to go and consult counsel. This Mr. Harman communicated to the defendant whom he found in his office on his return, “and it was then,” Mr. Harman testifies, that Mr. Cockins made the remark “that it was very foolish for Horace to employ counsel, or to give him any trouble in this matter, that he held Mariana’s estate — meaning his wife’s — in trust, a sacred trust, for Adelaide and Horace — Adelaide being Mrs. Blick — and Horace Miller, that he intended to give it to them, but if Horace gave any trouble he was going to give Mrs. Blick her share, but Horace’s share he would give to charity; he didn’t intend his brothers should have any part of it, that they had enough, but that his share if he gave any trouble would be given to charity.” The testimony of these witnesses having been fully accepted by the chancellor as true, it is unnecessary to indicate here how amply it was supported by the general facts of the case, especially by the circumstance that the same night that the conversation occurred in Pittsburgh, defendant in the presence of Mrs. Blick and her husband executed what purported to be a last will, written by Mr. Blick at defendant’s request, giving the entire estate left him by his wife to Mrs. Blick and Horace J. Miller absolutely. Here we have two of the only three accredited witnesses in the case testifying to explicit admissions by the defendant, one that the will was executed giving’to defendant absolutely the entire estate on the strength of the promise made by him to his wife that he would see that the estate would at his death go to her brother and sister, and the other that the absoluteness of the gift to him -was only apparent, that it was only so written that he might pass it to appellants at his death, and this supplemented by the testimony of Mr. Harman strongly corroborative in that the defendant there not only admitted a trust, but speaks of the shares of Mrs. Blick and Horace in the estate. Notwithstanding this accredited testimony we have this supplemental finding by the chancellor. “Ninth. The defendant did not constrain or compel his wife to execute the will in question leaving her property to him upon his verbal assurance that he would hold it only for life and see to it at his death that it should go to the plaintiffs; nor did his wife at or before the time of making her will require the defendant to make the promise alleged, nor did he obtain or procure the will to be made by making any such promise.”

We remark here that it is not a question as to defendant’s active interference in connection with the making of the will, whether he compelled or constrained his wife to make the Avill as written, or whether the wife required the defendant to make the promise alleged, for while such matters were alleged against defendant in the bill, the entire evidence was directed to the one point, which was also averred in the bill, that the will had been made on the strength of defendant’s alleged promise. The sole question is, therefore, did the defendant promise his wife that if she gave him by her will an absolute estate in her property, he would claim only a life estate therein and see that her brother and sister upon his death succeeded to the estate? This is just what he did according to the testimony of these witnesses, with no one contradicting except the defendant whose denials are rejected by the chancellor. It is difficult to see how the evidence, particularly that given by Mrs. Blick, could have been more direct and positive to the point that the will was made on the promise alleged. The other testimony was strictly corroborative and in no particular conflicting. In the leading case of Hoge v. Hoge, 1 Matts 163, a trust maleficio was declared entirely upon proof of admissions by the devisee not a particle stronger, more direct or explicit than those we have here. Defendant told Mrs. Blick that “the will left the estate to him absolutely, but upon his promise that at his death it was to go to us.” He told Horace, “the property had been left to him absolutely apparently,” but that it was left to him so that he might pass it to- us at his death.” These conversations occurred in Pittsburgh before any one saw the will or had any knowledge of its' contents except the defendant who had the will in his safety box in the Fidelity Safe Deposit Company in Baltimore where it had lain for three years. He told Mr. Harman that “he held the estate in trust, a sacred trust for Adelaide and Horace” and spoke of their shares. The circumstances in connection with these admissions are in our judgment the full equivalent of another witness, the denial by the defendant, not general as stated by the chancellor, but specific and unqualified as to each admission, his eagerness the night his admissions were made in Pittsburgh to execute his trust by making a will there, in presence of Mrs. Blick and her husband, giving the estate at his death to the brother and sister, because as he said he could not sleep until he had done so, his assurance to Horace in Baltimore that he had by this will — after-wards destroyed — secured to him and his sister the estate. In a similar case, Jones v. McKee, 3 Pa. 496, Mr. Justice Burnside finds occasion to say that “the circumstances attending the case often afford the most violent presumption of its object and truth.” As much may be said in this connection. Whether we regard this finding by the chancellor as a finding of fact or conclusion of law, we feel, in view of what we have said, and in view of another finding to which we shall refer, that it is without support in so far as it finds that the defendant did not obtain or procure the will to be written by making the alleged promise.

Our attention is directed to the seventh original finding which is as follows: “We have thus stated the substance of the testimony for the reason that the nature and character of the evidence in a case of this kind appears to be a substantive fact. We are somewhat at a loss to determine from the evidence thus given precisely what did happen as to declarations and writing relied upon by the plaintiff. We have no difficulty, however, in finding as a fact, and we do find, that Mr. Cockins when he told the plaintiffs of his wife making a will of all her property in his favor, said to them substantially that his wife had reposed great confidence in him; that she had expressed to him the wish that her next of kin got the property after his death, and that he told her that he would see to it that they got it, but he did not say or mean to say that the will was made by her upon any promise or condition, but merely that after the will was made and she had told him of it the request and promise had been made as stated.” This finding contains the obscurity which we had hoped would be removed by the supplemental findings. Instead, it is rather increased. The obscurity is not in the finding; that is too explicit and direct to be misunderstood, but in the considerations which led to its adoption. In his discussion the chancellor made no attempt to vindicate the finding, and our examination of the evidence discloses nothing upon which it could rest. It was with a view of becoming better informed as to the mind of the chancellor with respect to it, that we directed a return of the record. The only result is the additional finding, No. 9, which we have just discussed, and which throws no light on the earlier finding. The latter was direct and explicit in finding (1) that the defendant did make admission that his wife had expressed to him the wish that he would see that her next of kin got the property after his death, (.2) then he told her that he would see to it that they got it, and (3) that the request and promise were not made before but after the will had been executed. We have nothing to do with what the defendant meant to say. He does not pretend that his language was misunderstood, but denies unequivocally that he ever admitted that he had ever made any promise whatever. That he did say exactly what the chancellor finds he did not say or mean to say is the testimony of Mrs. Blick, a witness accredited by the chancellor and the testimony of Horace J. Miller almost as direct. The finding is that the wife had expressed to the defendant “the wish that he would see that her next of kin got the property after her death, and that he had told her that he would see to it that they got it.” Had it been found that this admission related to a time antecedent to the execution of the will, can it be questioned that, if believed, it would have been entirely sufficient to establish the trust? But the finding is that the request and promise was made after the will had been executed. Upon what testimony could this rest? We examined the evidence when the case Avas here before, and we have again examined it with greatest care without finding anywhere any suggestion that request and promise followed the making of the will. The defendant does not say that they did, but denies that they were made at —any time; and it is absolutely impossible to derive the conclusion of the chancellor from the testimony of the opposing witnesses each of whom testified to admissions of facts which necessarily must have preceded the actual execution of the will. It might well be argued, in view of some of our decisions, notably Hoffner’s Est. Anderson’s App., 161 Pa. 331, that it is immaterial whether the property has been obtained' by promise made before or after the execution of the will. The chancellor took a different view. We decide nothing with respect to the question here suggested, since we find nothing in the case to support the conclusion, reached by the chancellor in regard to this feature of it. While some of the admissions testified to would perhaps not be inconsistent with the view that the reference was to request and promise subsequent to the execution of the will, yet all are equally consistent with the view that they preceded the execution of the will, and the testimony of Mrs. Blick as to what defendant said, is too explicit and direct to receive any other interpretation than that which its language clearly expresses. If it be that she is the only witness who testified to an admission covering in explicit terms every requirement of the law as to the time when the promise was made, what matters it, if her testimony be true? This is not a, case of attempting to reform a written instrument on the unsupported testimony of a single wit-ness; the will operates as written, and all dispute as to it is closed. What plaintiffs here attempted was to. prove fraud on the part of the defendant, and for this one witness is sufficient if believed.

The point in the case is not the number of the witnesses who testify to the defendant’s admission, nor their credibility," for that is established, but whether defendant did admit that he had promised his wife that if by her will she gave him her estate absolutely he would hold it for life and see that at his death it passed to her next of kin. We have sufficiently discussed the evidence on this subject. To our mind the affirmative of this proposition was so clearly established by admittedly credible witnesses, that nothing was left the chancellor but to decree a trust as prayed for. The material findings are numbers seven and nine and these have been assigned for error. They need not again’ be here recited. For the reasons stated we think clear error has been shown in each, and that upon the evidence the plaintiffs in the bill were entitled to the relief prayed for.

We accordingly reverse the decree dismissing the bill, and direct that the bill be reinstated, the case to be proceeded with to final decree in accordance with the views here expressed. The costs on the appeal to be paid by the appellee.

Dissenting opinion by

Justice Moschzisker:

I would affirm upon the findings of the court below to the effect that the promise was not contemporaneous with, or did not precede or procure the making of the will. The burden was upon the appellants to establish these facts to the satisfaction of the Chancellor, as an essential part of their case: McCloskey v. McCloskey, 205 Pa. 491. This they failed to do. None of the declarations of the defendant suggests that the promise induced the will; in fact, only one at all indicates a promise and that gives no particulars as to the making of the alleged bargain concerning the final disposition of the estate. It seems to me that it would be a most dangerous precedent to permit a solemn testament to be set aside upon such incoherent emotional declarations as are testified to in. this case. To my mind the law as laid down in McCloskey v. McCloskey, supra, governs here, and thereunder no error was committed in dismissing the bill.