author: Mb.. Justice Elkin, Mr. Justice Mestrezat,

text:
    Sligo, Appellant, v. Philadelphia Rapid Transit Company.

      Negligence — Street railways — Passenger alighting; from car — Condition of roadway.

    1. Where a passenger in alighting from a street railway car steps into a depression caused by a gutter at the side of a country road and is injured there can be no recovery against the street railway company.
    2. When municipal consent is obtained to lay the tracks of a street railway on a public road, it becomes the duty of the railway company to conform its lines to the established grade of the highway and to adjust its operation to the conditions existing on the ground. It is under no obligation to cover a ditch constructed by the public authorities alongside of the public road upon which the tracks are laid nor to establish a platform or landing place over such a ditch.
    3. In an action against a street railway company by a woman to recover damages for personal injuries sustained while alighting from a summer car, it appeared that the accident occurred on a May evening in the twilight when there was still light enough to read a newspaper. The car was an open one with a running board on either side. On one side of the track was a broad, smooth, level, macadam surface and on the other side there was a little depression in the nature of a roadside ditch used for drainage purposes. It was made by grading the roadway under municipal regulation from the traveled part of the highway to the outer side of the same and was of the general character of ditches or gutters alongside of country roads. Passengers on the street railway could alight on either side of the car and in alighting could step down on the level macadam road on one side or on the receding gutter side on the other. The plaintiff stepped off on the gutter side, and in doing so the step being a little high, she lost her balance, fell and was injured. Held, that the court committed no error in directing a verdict for the defendant company. Mahoney v. Phila. Rapid Transit Co., 214 Pa. 180, followed.
    Mr. Justice Mestrezat dissents.
    Argued Jan. 19, 1909.
    Appeal, No. 274, Jan. T., 1908, by plaintiffs, from judgment of C. P. No. 3, Phila. Co., June T., 1905, No. 3,858, on verdict for defendant in case of George D. Sligo and Florence Sligo, his wife, v. Philadelphia Rapid Transit Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.

      Trespass to recover damages for personal injuries. Before Ferguson, J.
    The facts are stated in the opinion of the Supreme Court.
    The court gave binding instructions for defendant. Plaintiffs appealed.

      Error assigned was in giving binding instructions for defendant.

      Thos. J. Duff, with him H. B. Painter, for appellants.—
    There is no difference in the duty owing by carriers of passengers by horse railroad and by steam. Passenger carriers bind themselves to carry safely those whom they take into their coaches as far as human care and foresight will go; that is, to the care and diligence of a very cautious person: Wynn v. Central Park, etc., R. R. Co., 38 N. Y. St. Repr. 181 (14 N. Y. Supp. 172); Poulin v. Broadway, etc., R. R. Co., 61 N. Y. 621.
    It,is the duty of a street railway company to stop its cars at suitable places for passengers to leave them and remain stationary long enough to enable them to do so safely: Jagger v. People’s St. Ry. Co., 180 Pa. 436; Crissey v. Hestonville, etc., Pass. Ry. Co., 75 Pa. 83; Philadelphia City Pass. Ry. Co. v. Hassard, 75 Pa. 367; Del., Lackawanna & Western R. R. Co. v. Napheys, 90 Pa. 135; Meier v. Railroad Co., 64 Pa. 225.
    "The question of contributory negligence, and negligence where 'there'"i's conflicting testimony, is always a matter for the jury: Crissey v. Hestonville, etc., Pass. Ry. Co., 75 Pa. 83; Wilson v. Railroad Co., 177 Pa. 503; Baker v. Irish, 172 Pa. 528.
    It is further submitted that while there may be a difference between street and steam railway arising from the lack of control which a street railway has over the street which would differentiate it in regard to an absolutely safe landing for its passengers, yet it is required to select its point of discharging passengers with the highest degree of care; and further, that with a knowledge of the defects of the road on which it agrees to carry the passengers it must take every precaution to select proper stopping places and must be held to have contracted to carry the passenger with a full knowledge of the government of the road and the defects and dangers thereof, and is therefore responsible: Peters v. Rylands, 20 Pa. 497; Rauch v. Lloyd & Hill, 31 Pa. 358; Richmond City Ry. Co. v. Scott, 86 Va. 902; s. c. 11 S. E. Repr. 404; Farish v. Reigle, 11 Gratt. 697; N. Y., P. & N. R. R. Co. v. Cooper, 85 Va. 939 (9 S. E. Repr. 321); Cartwright v. Ry. Co., 52 Mich. 606 (18 N. W. Repr. 380); Terre Haute, etc., Ry. Co. v. Buck, 96 Ind. 346; McGee v. Ry. Co., 92 Mo. 208 (4S. W. Repr. 739); Maverich v. R. R. Co., 36 N. Y. 378; Citizens’ Street Ry. Co. v. Twiname, 111 Ind. 587 (13 N. E. Repr. 55); Smith v. St. Paul City Ry. Co., 32 Minn. 1 (18 N. W. Repr. 827); Topeka City Ry. Co. v. Higgs, 38 Kan. 375 (16 Pac. Repr. 667); City, etc., Ry. Co. v. Findley, 76 Ga. 311; Barrett v. Third Ave. R. R. Co., 45 N. Y. 628; Hill v. Ninth Ave. Ry. Co., 109 N. Y. 239 (16 N. E. Repr. 61).
    March 16, 1909:

      Thomas Learning, with him Chester N. Farr, Jr., for appellee. —
    If it was so dark immediately after sunset that the planks were totally invisible then the plaintiff cannot charge the defendant with negligence in failing to perceive that the car was not precisely opposite them and yet escape the consequences of contributory negligence: Patton v. Traction Co., 132 Pa. 76.
    The decision which, upon facts exactly parallel in the minutest particular, rales this case, is Mahoney v. Philadelphia Rapid Transit Co., 214 Pa. 180.
    That defendant is not responsible for the peculiarities of the road upon which a passenger alights from a street car, was decided by this court in Keater v. Scranton Traction Co., 191 Pa. 102; Scanlon v. Phila. Rapid Transit Co., 208 Pa. 195; Bland v. Ry. Co., 13 Pa. Superior Ct. 93.
   Opinion by

Mb.. Justice Elkin,

The learned trial judge submitted this case to the jury which after long deliberation reported a disagreement, whereupon a verdict for defendant was directed and judgment entered thereon. It is clear as indicated by the course of the trial that the learned court in the first instance entertained some doubt as to the liability of the defendant, but after more mature deliberation concluded that there could be no recovery under the facts and the rules of law applicable thereto. The accident occurred on the Old York road upon which is laid a street railway line with the consent of the municipality. This road is of the general character of a country highway with the usual ditches, banks, crossings, drains and culverts necessary or convenient to the maintenance of such a highway. At the point where Eckard avenue intersects with York road a somewhat temporary sort of bridge made of planks had been constructed over the gutter, thus affording a passageway for vehicles and travelers using the highways. The street railway had nothing to do with the construction or maintenance of the highways or the so-called bridge in question. It happened that the avenue was wider than the bridge was long, but the public authorities were responsible for this situation and it was not either the right or the duty of the street railway company to exercise any control over the highways, nor did the burden rest upon it to furnish a different kind of bridge, or platform or landing place at that point. When municipal consent was obtained to lay the tracks of the street railway upon the public road, it became the duty of the railway company to conform its line to the established grade of the highway and to adjust its operation to the conditions existing on the ground. This eliminates from the case all questions as to the construction of said approaches or places to alight. No such duty rested upon the appellee company at the point of accident. As to the questions whether the car was stopped at a proper place, and whether notice should have been given the passenger before alighting we agree that the case at bar is ruled by Mahoney v. Rapid Transit Company, 214 Pa. 180. The cases are almost parallel in their facts and to distinguish them in principle would require a refinement too technical to have, any force in the practical application of the law. The injured passenger was riding in an open summer car with a running board on either side. On one side of the track was a broad, smooth, level, macadam surface and on the other side there was a little depression in the nature of a roadside ditch used for drainage purposes. It was made by grading the roadway under municipal regulation from the traveled part of the highway to the outer side of the same and was of the general character of ditches or gutters alongside of country roads. Passengers on the street railway could alight on either side of the car and in alighting could step down on the level macadam road on one side or on the receding gutter side on the other. In the present case the complaining passenger stepped off on the gutter side and in so doing the step being a little high, she lost her balance and fell, thus receiving the injuries for which damages are sought to be recovered in this action. The accident occurred on a May evening, in the twilight. The weight of evidence shows that it occurred from 7 to 7:15 o'clock in the evening, although the injured lady said it was later. The car had not yet been lighted and one of the witnesses testified it was light enough to read a newspaper. Under these circumstances, we think, this case is squarely ruled by the Mahoney case above cited.

Judgment affirmed.

Mr. Justice Mestrezat,

dissenting:

I cannot agree with the disposition made of this case by the majority of the court, and as it affects every individual in the state who has occasion to use a street railway, I will submit the reasons for my conclusion. The case is disposed of by an opinion which cites a single authority to sustain its conclusion but which in my judgment, as I shall hereafter point out, is not an authority for the principle which controls the case at bar. I believe the rule announced by the majority is so much at variance with the well-settled doctrine on the subject that it will invite legislation which, in seeking to correct the effects of the decision, may impose too great responsibility upon street railway companies.

The material facts of the case which were sufficient to send it to a jury are not in dispute, or if in dispute were sufficiently supported by evidence to require the case to be submitted to the jury. The female plaintiff was a passenger on one of defendant's cars going north on the east side of Old York road, and desired to alight at Eckert avenue. She signaled the conductor, who stopped the car just short of the usual place of stopping at Eckert avenue. The plaintiff, sitting in the third seat from the rear of the car, arose after it had stopped and proceeded to alight by way of the running board at the east side of the car. This was the proper and safe side for passengers to leave the car. She passed the conductor, and as she was stepping from the car fell into a ditch and was injured. The accident occurred between 7:30 and 8 o'clock on May 8, 1905. It was dark or dusk. She thought she was alighting at the usual place, and testified that before making the step from the car she looked to the ground and “they all looked the same, the ground looked the same;'' that “I supposed I was stepping on the ground and I went in the ditch, which was beyond these boards at the south side of Eckert avenue.” At the northeast corner of the intersection of Eckert avenue with York road there is a grocery store in front of which the • ditch on the east side of Old York road is covered, making an entirely safe place for passengers to enter and alight from cars going north on the trolley line and is used for that purpose. The ditch immediately south of this covering is also covered with planks for a short distance. The car stopped south of these planks for the plaintiff to leave it, and she stepped into the unprotected ditch. She stepped a distance of three feet instead of one foot, which was the distance to the ground. The conductor testified that he knew the condition of the place at which the plaintiff alighted and that he did not warn her of the danger because, “I had spoken to so many people before that and they would turn round and give me the laugh and go on.”

The plaintiff, as she testified, did not know of the ditch where the accident occurred. The conductor should have stopped the car in front of the store which was the usual and safe place for passengers to alight. The place at which she did alight was dangerous and so known to the conductor, and hence to the defendant company.

The majority opinion holds that the public authorities were responsible for the condition of the street at the place the passenger was directed to alight; that no duty rested upon the company to put the place in proper and safe condition; and that whether the car was stopped at a proper place or whether notice should have been given to the passenger before alighting is determined adversely to the plaintiff by Mahoney v. Rapid Transit Company, 214 Pa. 180. These are the reasons assigned by this court for sustaining the action of the trial court in directing a verdict for the defendant company.

It is uniformly held that a street railway company is a common carrier and that its duties and responsibilities and the degree of care required of it in the carriage of passengers are substantially the same as those of a railroad company. We have time and again held that it is the duty of a carrier of passengers not only to transport the passenger to his destination in safety, but to furnish a safe place for him to alight. In the case of a person alighting from a street car it is said the relation of carrier and passenger does not cease until he gets a footing upon the street which he can maintain: Nellis on Street Surface Railroads, 449; but the better and more' generally accepted doctrine is that the relation continues until the passenger has reasonable opportunity to leave the car and roadway of the company after the car reaches its stopping place: Melton v. Birmingham Ry., Light & Power Co. (Ala.), 16 L. R. A. (N. S.) 467. Of course, a street railway company cannot be held to as strict accountability in furnishing a place for a passenger to alight as a railroad company. The former must discharge its passengers in the public highway and at places over which it does not have exclusive control; and hence its liability is different from that of a railroad company which has the exclusive control over its stational facilities. It is well settled, however, that a street railway company must exercise care in the selection of the place at which it discharges passengers. This is the doctrine of all the authorities: 1 Fetter on Carriers of Passengers, sec. 64; Middlesex R. R. Co. v. Wakefield, 103 Mass. 261; Creamer v. Ry. Co., 156 Mass. 320;. Mobile Light & R. Co. v. Walsh, 146 Ala. 290; Foley v. Brunswick Traction Co., 66 N. J. L. 637; Flack v. Nassau Electric R. R. Co., 58 N. Y. Supp. 839; Henry v. Grant Street Electric Ry. Co., 24 Wash. 246; Sweet v. Louisville Ry. Co., 113 Ky. 15. In Mobile Light & R. Co. v. Walsh, 146 Ala. 290, the passenger signaled the conductor to stop the car, but it was run beyond the crossing to a place where there was a depression in the street. The passenger in alighting from the car stepped into the depression and injured herself. The court held the case was for the jury. In Bass v. Concord Street Ry. Co., 70 N. H. 170, the passenger requested the conductor to stop, which he did, but it was at a place a few feet beyond the usual stopping place. In leaving the car the passenger stepped into a depression in the highway and was injured. The court held there was sufficient evidence of the company’s negligence to go to the jury. In Topp v. United Rys. & Electric Co., 99 Md. 630, the car was run beyond the point where the passenger signified his desire to alight. In an action by the passenger for injuries received while alighting, it was held that by stopping at the place there was an implied invitation to the passenger to alight, as well as an implied representation that it was a proper place for that purpose imposing upon the street railway company the duty of exercising the utmost degree of care in selecting a safe.place. In our own case of Jagger v. People’s Street Ry. Co., 180 Pa. 436, following Crissey v. Hestonville, Mantua & Fairmount Pass. Ry. Co., 75 Pa. 83, it was said by this court (p. 438): “It is the duty of a street railway company to stop its cars at suitable places for passengers to leave them, and remain stationary long enough to enable them to do so safely.” The same rule applies in the case of an interurban railway company: Indiana Union Traction Co. v. Jacobs, 167 Ind. 85; Joslyn v. Street Ry. Co., 184 Mass. 65; Tilden v. Rhode Island Co., 27 R. I. 482; McGoven v. Interurban Ry. Co. (Ia.), 13 L. R. A. (N. S.) 476.

It is, therefore, manifest that the rule announced in the majority opinion is in conflict with the well-settled doctrine throughout the country. It is not a question of who constructed the bridge or platform over the ditch at the place the plaintiff alighted, as contended by the majority, but whether the defendant company stopped its car at a suitable place for the plaintiff to alight. The fact that the municipal authorities had permitted the place of the accident to become unsafe for passengers to alight from the defendant’s cars will not excuse the company for stopping its car at that point, known by its conductor to be dangerous, for the purpose of discharging passengers from its cars: Leveret v. Shreveport Belt Ry. Co., 110 La. 399; Stewart v. St. Paul City Ry. Co., 78 Minn. 85. The doctrine announced by the majority of the court as applicable to the admitted facts of this case is a violation of the settled rule of law in every jurisdiction and is supported by no authority, English or American, so far as I know. It is in conflict with the universal doctrine that imposes upon a carrier the highest degree of care in the protection of its passengers until they are discharged from the car at a proper and suitable place. It permits the carrier company to discharge with impunity its passengers at any hour of the night at the most dangerous place. It sustains a conductor of a street railway company, as in this case, who, by stopping his car, impliedly invites a passenger to alight at a place unknown to the passenger but known to the conductor to be dangerous. Such a doctrine, I submit, is not supported by reason or by any precedent in either the common or civil law.

The majority opinion cites the Mahoney case to sustain it on “the questions whether the car was stopped at a proper place, or whether notice should have been given to the passenger before alighting.” This, I think, is a misapprehension of the decision. That case, like the present, was trespass for injuries sustained by stepping into a ditch when alighting on the right-hand side of a street car operated on Old York road. As here, it was contended that the right-hand side was the “unsafe side” on which to alight, but this court said: “Under ordinary circumstances it is obviously the safe and prudent thing for a passenger to leave the car upon the right-hand side.” Again: recognizing what the plaintiffs allege here was the duty of the conductor under the circumstances when he saw Mrs. Sligo about to step from the car, the opinion in the Mahoney case says (p. 184): “If there was any duty upon the defendant company under the circumstances, it would have been that of giving warning at the precise moment of leaving the car.” This is the opinion of the court as to the duty of a conductor under circumstances such as existed in the present case, the failure in the performance of which would be clear negligence.

The learned trial judge submitted the case at bar to the jury in a charge, a part of which was too favorable to the defendant, but another part of which is clearly within well-established doctrine. Among other things he said: “Having stopped the car at the place it did stop, you may consider whether or not the employee of the company was negligent, if the car was in a position where a passenger, in stepping off, might step into the ditch and be injured, if the conductor did not warn the passenger against the possible danger. When the car stops any place there is a tacit invitation to alight. The company does not insure the passenger against a possible accident in getting off a car, but where a car is on the edge of a ditch, I will leave it to you to say if it was not negligence for the conductor to permit the passenger to step off the car at a point opposite a ditch without a warning against a possible danger.” This question properly arose under the evidence submitted and the jury should have been required to answer it. The law as there stated is correct and was applicable to the facts disclosed by the evidence in the case. The subsequent action of the trial judge, when the jury failed to agree, in directing a verdict for the defendant was clearly reversible error.

I would reverse the judgment and direct the case to be retried.


source: Caselaw Access Project

author: Mr. Justice Potter,

license: Public Domain

text:
    Boyer’s Appeal.

      Trusts and trustees — Life tenant and remainder-man — Dividends on stock — Earnings.
    1. As between life tenant and remainder-man presumptively every dividend goes to the life tenant.
    2. Under a deed of trust in which the settlor transfers to trustees stock of two corporations with power in their discretion at any time to sell and reinvest the proceeds, and with power to pay over the “ dividends, income and profits,” thereof to the tenant for life, and after her death to convey the estate absolutely to her children, “dividend obligations” of one company and “ certificates of indebtedness ” of the other company, issued to stockholders and representing moneys which were deemed to have been appropriated by the two companies out of current earnings to pay for improvements and additions, are to be distributed to the tenant for life, in the absence of any evidence whatever that the issue of the dividend obligation, or the certificates of indebtedness lessened the value of the stock below what it was at the time of the creation of the trust.
    3. In such a case the burden is upon the remainder-man to show that the issue of the obligations and certificates decreased the value of the stock below what it was worth at the date of the execution of the deed of trust. Whether there has been a decrease in the value of the stock between the date of the creation of the trust, and the date of the obligations and certificates is not to be ascertained by deducting the aggregate credits of the profit and loss account at one of the periods from the aggregate credits of the same account at the other period, inasmuch as the amounts expended out of earnings for permanent improvements would have to be charged against earnings, and would leave that much less to go to the credit of the profit and loss account at the later period.
    Argued Jan. 5, 1909.
    Appeal, No. 165, Jan. T., 1908, by Nathalie C. Boyer, from order of C. P. No. 3, Phila. Co., March Term, 1881, No. 443, dismissing exceptions to auditor’s report in estate of Nathalie C. Robinson.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Exceptions to report of Frank R. Shattuck, Esq., auditor.
    The facts are stated in the opinion of the Supreme Court.

      Errors assigned were in dismissing exceptions to auditor’s report.

      Henry C. Boyer, for appellant. —
    The $13,020 dividend obligations of the Richmond, Fredericksburg and Potomac Railroad Company and the $7,800 certificates of indebtedness of the Seaboard and Roanoke Railroad Company are both dividends, and belong to the life tenant without apportionment: Robinson’s Trust, 218 Pa. 481; Vinton’s App., 99 Pa. 434.

      William Early Rhein and Charles Chauncey, for appellees.—
    The dividend obligations of the Richmond, Fredericksburg and Potomac Railroad Company and the certificates of indebtedness of the Seaboard and Roanoke Railroad Company were properly apportioned between life tenant and remainder-men in accordance with the Pennsylvania rule: Earp’s App., 28 Pa. 368; Wiltbank’s App., 64 Pa. 256; Moss’s App., 83 Pa. 264; Biddle’s App., 99 Pa. 278; Vinton’s App., 99 Pa. 434; Phila. Trust Co.’s App., 24 W. N. C. 137; Oliver’s Est., 136 Pa. 43; Smith’s Est., 140 Pa. 344; Park’s Est., 173 Pa. 190; Connolly’s Est., 198 Pa. 137.
    March 22, 1909:
   Opinion by

Mr. Justice Potter,

On November 19, 1869, Moncure Robinson, the father of Mrs. Nathalie C. Boyer, the appellant in this case, executed a deed of trust under which he transferred to the trustees sixty-two shares of the capital stock of the Richmond, Fredericksburg and Potomac Railroad Company, and 150 shares of the capital stock of the Seaboard and Roanoke Railroad Company. Under the provisions of the deed of trust, the dividends, income and profits of the stock were to be collected and paid over to the appellant, the daughter of the donor, during her natural life, and after her death, the said stocks were to be transferred absolutely to her children.

Afterwards, under the same conditions as contained in the original deed of trust, additional shares of stock were transferred to the same trustees, which increased the holdings in the Richmond, Fredericksburg and Potomac Railroad, to 186 shares, and in the Seaboard and Roanoke Railroad Company to 156 shares. Under date of November 16, 1881, the board of directors of the Richmond, Fredericksburg and Potomac Railroad Company recommended the adoption by the stockholders of the following resolutions:

“Resolved. That for the purpose of dividing among the common stockholders of the company the amount standing upon its books to the credit of profit and loss, which amount has been heretofore earned by the company and expended in permanent additions to and improvements of the company’s property, instead of being used in the payment of dividends, the board of directors be, and they hereby are, authorized in their discretion, to issue dividend obligations or certificates in amounts of $100, or multiples of that amount, bearing, in lieu of interest on each $100 of the certificates, the dividend payable on each share of the common stock of the company at the several dates when such dividends shall be payable, and entitled in any division of the assets of the company to share in a corresponding proportion of the same.
“For the fractional part of $100, to which any stockholder may be entitled, there shall be issued to him a certificate of dividend scrip, which certificates may be converted at the option of the holder into dividend obligations when presented in sums of $100, but which shall not be entitled to interest or a share of the dividends until so converted.
“Respectfully referring the stockholders to the accompanying reports of the examining committee and of the general superintendent and to the statements of the treasurer for details, this report is submitted.
“By order of the Board of Directors.
“J. P. Brinton,
“President.”

These resolutions were duly adopted at a stockholders’ meeting held the same day, and the board of directors under date of January 1, 1882, duly issued the so-called dividend obligations, as therein described, to an amount equal to seven-tenths of the common stock then outstanding. Upon the 186 shares of the stock of this company held by the trustees, they received dividend obligations of the par value of $13,020.

Upon May 4, 1886, the stockholders of the Seaboard and Roanoke Railroad Company adopted the following resolutions:

“Whereas, for a series of years, surplus earnings of the company, which could have been legitimately divided among the holders of its stock and dividend obligations in addition to the amounts actually divided among them, have been used by the company for the purpose of replacing wooden bridges by stone and iron structures;-for improving the character of the roadway; for the building of freight and passenger houses; for the purchase and construction of wharves and terminal facilities; for relaying the road with steel rails; for the purchase and construction of machinery and cars, and for the acquisition .of other property, and it is due to the holders of the stock and dividend obligations of the Company, that they should receive evidence of the expenditure and investment of said surplus earnings from time to time according to the convenience of said Company and its ability to pay interest upon such evidence, and
“Whereas, the present actual value of the investment of such surplus earnings has been estimated by the Directors of the Company and the value thereof in the judgment of the said Directors is not less than the amount of the par value of the entire capital stock, guaranteed and common, and the dividend obligations of the Company; now, theretofore,
“Resolved. That certificates in amounts of one hundred dollars, or multiplies of that amount, signed by the President and Treasurer of the Company, be issued to the several holders of its stock, guaranteed and common, and its dividend obligations, in sums of money equal in amount to the sum of fifty dollars for each share of the capital stock, guaranteed or common, held by the stockholders respectively, and in sums of money equal in amount to the sum of fifty dollars for each one hundred dollars of dividend obligations held by the respective holders of dividend obligations; the said certificates to be payable on or at any time after the first day of August, nineteen hundred and sixteen, at the pleasure of the Company, in full or in installments of ten per cent of the face value of such certificate, with interest at the rate of six per cent per annum, to be computed from the first day of August, 1886, payable in equal semi-annual installments as the same shall accrue on the first days of February and August in each year until the principal sum named in each and every one of such certificates shall be fully paid. Such certificates to be issued to the holders of stock (guaranteed and common) and of dividend obligations of record at the office of the Company at the time of the passage of this resolution, to wit: the-fourth day of May, 1886, except as hereinafter provided.”

The resolutions further provided for the payment of fractional interest in cash, and exchange of bonds if subsequently issued by the Company, and a form of certificate as follows:

“UNITED STATES OF AMERICA
“STATES OF VIRGINIA AND NORTH CAROLINA
“SEABOARD AND ROANOKE RAILROAD COMPANY
“certificates of indebtedness authorized by resolutions OF THE STOCKHOLDERS, PASSED MAY 4tH, 1886.
“This is to certify, That the Seaboard and Roanoke Railroad Company for value received, is indebted to-in the sum of-dollars payable on or at any time after the first day of August, in the year one thousand nine hundred and sixteen, at the pleasure of the company in full or in installments of ten per cent or in multiples thereof, with interest at the rate of six per cent per annum to be computed from the first day of August, 1886, payable in equal semi-annual installments as the same shall accrue on the first days of February and August of each year until the principal sum is paid.
“If at any time the Company shall authorize an issue of bonds or other form of indebtedness secured by a deed of trust or mortgage subordinate to the mortgage to secure an issue of bonds of the aggregate amount of two million five hundred thousand dollars authorized by the resolution of its stockholders of May 4th, 1886, then and in such case there shall be reserved by the Company out of said issue of bonds or other form of indebtedness secured by said subordinate mortgage an amount thereof sufficient to pay or provide for said certificates at their maturity or to retire the same prior to their maturity by exchange by mutual agreement.
“This certificate is registered and is transferable only upon the books of the Company in person or by attorney for a certificate or certificates of the same aggregate amount, provided that each certificate shall be for one hundred dollars or a multiple of one hundred dollars.
“In Witness Whereof, etc.”

Action was duly taken by the board of directors, and the officers of the company, and on August 1, 1886, certificates of indebtedness in the form set forth, were issued. It should be noticed that these certificates did not in any way purport to be for stock, nor were they similar to the so-called dividend obligations issued by the other company. They were straight out acknowledgments of indebtedness. Upon the 156 shares of this company’s stock held by the trustees, they received certificates of indebtedness to the amount of $7,800.

The auditor, and the court below, regarded these dividend obligations and these certificates of indebtedness as stock dividends, and apportioned them between the life tenant and those in remainder, upon the theory that they represented a distribution in part of profits earned by the companies, prior to the creation of the trust. In making the apportionment, the auditor simply compared the amount standing upon the books of the respective corporations to the credit of profit and loss, at the date of the creation of the trust, with that standing to the credit of the same account, at the date of the issue of the dividend obligations, and the certificates of indebtedness. The difference he regarded as the earnings of the companies, after the creation of the trust. He apparently made no attempt to ascertain the real value of the stocks at the time when the life tenancy was created. Nor did he ascertain whether after the issue of the dividend obligations by the one company, and the certificates of indebtedness by the other, the value of the stock in the respective companies was less than it was when the trust estate was created. The doctrine which the auditor attempted to apply, is that which undertakes to give the bonus to the remainder-man or to the life tenant, in accordance with the fact as to whether the bonus was earned before or after the creation of the trust; or if part was earned before and part after, then to divide the bonus between the remainder-man and the life tenant in the proportion which the amount accumulated before the creation of the trust may bear to that accumulated thereafter. This is the doctrine of Smith’s Estate, 140 Pa. 344, following and restating that of Earp’s Appeal, 28 Pa. 368. But under that rule, as stated in substance in 9 Am. & Eng. Ency. of Law (2d ed.), 715, as the Pensylvania rule, “the result is arrived at, by ascertaining what the value of the stock was when the life tenancy was created. After the issue of bonus its value is again determined. If it is less than it was at first, just to that extent is it held that the capital has been impaired, and the trustee must apply to the corpus of the estate enough of the bonus to make the capital equal to what it was when the trust was created. If on the other hand the stock is found to be as valuable as when the trust was created, or of ■ greater value, the capital has not been decreased, and the bonus goes in whole to the life tenant.” In other words, it seems to be the doctrine of our cases, that the remainder-men, are entitled to just what the stock was actually worth at the time of the creation of the trust, no less and no more. It may be suggested that this method makes no allowance to the remainder-men for such increase in value as may be due to an enlarged earning power of the corporation, or to an increased value of the franchise. But probably no rule could be framed which would work exact justice in all cases. At any rate, the method by which the auditor in the present case undertook to apply the rule was entirely inadequate to produce the right result, for the reason that he confined his calculation merely to the gross amounts standing at the different periods, fio the credit of the profit and loss accounts. This would not afford any real index to the value of the stock; and yet that was the thing to be ascertained; the value at the time the trust, was created, as compared with the value after the distribution of the bonus. Profit and loss is a resultant account, usually made up from the balances transferred from other accounts, and it must, from its nature, depend entirely upon the elements entering into those other accounts. For instance, in the present case, it appears from the resolutions authorizing the issue of the so-called dividend obligations, and the certificates of indebtedness, that for some years prior thereto, the earnings of the companies which might have been paid out in dividends to the stockholders, from year to year, had been expended in permanent additions to, and improvements of, the properties. Manifestly all such expenditures would be for the benefit of the remainder-men, and would be a taking of that which would otherwise have gone to the life tenant, in dividends. The amounts- expended in this way would have to be charged against the earnings, and would leave that much less to go to the credit of the profit and loss account. So that it is plain that the latter account, as it stood upon the books, would not represent the total earnings of the corporation. No man can ascertain his business worth from his profit and loss account alone; in order to learn that, there must be shown a statement of his assets and liabilities, and an inventory of his property. This court said in Smith’s Estate, 140 Pa. 344: “It is the intrinsic value of the shares, to be ascertained from the amount and value of the assets (of the corporation) at the death of the testator, and at the time of the increase of the stock, which governs in the apportionment of the surplus profits. The market value may aid in the ascertainment of the actual value, and is therefore properly received in evidence on that issue.” Citing Earp’s Appeal, 28 Pa. 368, and Moss’s Appeal, 83 Pa. 264. In the case now before us, the auditor apparently took no account of either actual value or market value of the stocks in question at any time, and therefore he missed the real point of the inquiry. Presumptively every dividend goes to the beneficial holder of the shares at the time it is declared. This will carry every dividend presumptively to the life tenant instead of to the remainder-man: Thompson on Corporations, sec. 2193.

In the present case, the burden was upon those who claim in remainder, to show that the issue of the dividend obligations in 1881 decreased the value of the stock of the Richmond, Fredericksburg and Potomac Railroad Company, below what it was worth in 1869, when the trust was created, and failing to do this, the whole of the bonus or dividend would, under the operation of the Pennsylvania rule, go to the life tenant. The same is true with respect to the certificates of indebtedness issued by the Seaboard and Roanoke Railroad Company. A very persuasive circumstance in the transactions is the fact that the dividend obligations and certificates of indebtedness were avowedly issued to make good to the shareholders the earnings which from year to year, instead of being distributed as dividends, had been applied to the permanent improvement and betterment of the properties. These dividends from earnings made after the creation of the trust, would clearly have gone to the life tenant. For some twelve years in one case, and seventeen in the other, she was thus deprived of her dividends, and the earnings out of which they might have been paid went by way of improvements and additions to the property, to the benefit of the remainder-men. Was she not then fairly entitled to the obligations issued by the companies, avowedly in lieu of the dividends of which she had thus been deprived? It seems so, to us. And then after all, the rule for the determination of controversies over dividends, between life tenants and remainder-men, should be to give to each just what the donor intended each to have. As has been said, the intent of the grantor or testator is the pole star for the guidance of the courts.

The intent of the grantor here, was that the “dividends, income and profits” from the stock in trust were to go to the life tenant. These terms are not necessarily coextensive or identical. It is to be presumed that the settlor meant to indicate by the use of these three words, “dividends,” “income” and “profits, ” pretty much everything in the way of advantage or benefit which might accrue from the stock, without decreasing the original value of the capital which it represented. We think the terms were broad enough to include the “dividend obligations” issued by the Richmond, Fredericksburg and Potomac Railroad Company, and the “certificates of indebtedness” issued by the Seaboard and Roanoke Railroad Company; the latter were not stock obligations, but were acknowledgments of indebtedness to the stockholders for the funds which it was considered fairly belonged to them as current earnings, but which had been appropriated to pay for improvements and additions. Mr. Robinson, the settlor, appears to have been thoroughly familiar with the conditions and management of the corporations in question, and he doubtless intended to cover whatever form the distribution of gains arising from the stock might take, when he provided that the life tenant should receive the “dividends, income and profits” of the stocks which he placed in trust. We see no evidence in this case that the issue of the dividend obligations, or the certificates of indebtedness, lessened the value of the stock below what it was at the time of the creation of the trust. That being so, there was no reason why the whole of the bonus, whether it be considered as “dividends,” “income” or “profits” should not go to the life tenant. We are of the opinion that the auditor and the court below erred in making any apportionment.

The assignments of error are sustained, and the judgment of the court below, affirming the report of the auditor, is reversed.

And it is now adjudged and decreed, that under the terms of this trust, the entire amount of 113,020 of dividend obligations issued by the Richmond, Fredericksburg and Potomac Railroad Company, and the entire amount of $7-,800 of certificates of indebtedness issued by the Seaboard and Roanoke Railroad Company, were due and payable to the life tenant as dividends, income or profits upon the shares of stock held in trust; and the proceeds thereof are hereby awarded to the appellant, as said life tenant.


author: Mr. Justice Mesteezat,

text:
    Conn, Appellant, v. Hunsberger.

      Bailment — Livery-stable keeper — Implied warranty of fitness of horse— Negligence — Vicious horse.

    1. The relation between a livery-stable keeper and his customer is that of bailor and bailee for hire, and the former assumes the liability which the contract of bailment imposes. When the bailor lets a horse for hire he impliedly promises or warrants that the animal is fit and suitable for the purpose for which it is hired; he warrants that the horse is not unruly or vicious but is safe, manageable and suitable for the usé for which the customer has hired it.
    2. It is the duty of a livery-stable keeper to inform himself of the habits and disposition of the horses which he keeps in his stable for hire, and if he knows that they are dangerous and unsuitable or by the exercise of reasonable care could ascertain the fact, he is liable for any injuries to his customers resulting from their vicious propensities. The law will not permit him to close his eyes and his ears, thereby remaining ignorant of the vicious habits of his horses, and relieve him from liability for injuries to a customer resulting from such habits. In his contract of hiring he impliedly engages that he knows or has exercised reasonable care to ascertain the habits of his horses, and says to his customer that the horse which he lets is safe and suitable for the purpose for which he has hired it. His warranty is against defects or vicious habits which he knows or by the exercise of proper care could know, and if he fails to exercise such care and it occasions injury to his customer, he will not be relieved of liability though he did not actually know the horse was unsuitable for the service.
    3. Where in an action against a livery-stáble keeper to recover damages for injuries caused by the conduct of a horse hired from the defendant by the plaintiff, the latter introduces evidence to the effect that the horse was vicious, wild, and unmanageable, the burden is then imposed upon the defendant to show that the horse was not vicious or unruly, or that the defendant was ignorant of the vicious character of the animal, and had exercised proper care to inform himself as to its habits. The defendant may also show in his defense, that the conduct of the animal was occasioned by the hirer, or by the happening of an event that would cause such conduct by a gentle or well-trained horse and one not addicted to a vicious habit, or that the hirer knew or was informed of the habits of the horse and he assumed the risk, or any other matter which would relieve the liveryman from the alleged negligence or breach of implied warranty.
    4. In such a case where the statement of claim shows a contract of hiring out of which an implied warranty arises, the mere fact that the statement contains also an averment of a special warranty, will not prevent the plaintiff, if the evidence is sufficient, from recovering upon the implied warranty.
    5. Where a person is injured by the vicious conduct of a horse hired from a livery-stable keeper, he may proceed against the livery-stable keeper either by an action for a breach of the implied warranty of the fitness of the horse, or by an action in tort for negligence.
    Argued Jan. 8,1909.
    Appeal, No. 231, Jan. T., 1908, by plaintiff, from judgment of C: P. No. 4, Phila. Co., March T., 1907, No. 3,673, on verdict for defendant in case of Charles O. Conn v. Harry K. Hunsberger. .
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elicin and Stewart, JJ.
    Reversed.
    Trespass against a livery-stable keeper to recover damages for personal injuries caused by the vicious conduct of a horse. Before Audenried, J.
    The facts appear by the opinion of the Supreme Court.
    At the trial the court gave binding instructions for defendant.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendant.

      March 22, 1909:

      Louis Goodfriend, for appellant. —
    A livery-stable keeper who lets a horse for hire for a trip impliedly promises that the horse is a kind and suitable one for the purpose for which he is let, and not vicious, nor in the habit of kicking: Windle v. Jordan, 75 Me. 149; Horne v. Meakin, 115 Mass. 326; Kissam v. Jones, 56 Hun (N. Y.), 432; Payne v. Halstead, 44 Ill. App. 97; Benner, Livery & Co. v. Busson, 58 Ill. App. 17; Siegrist v. Arnot, 86 Mo. 200.
    The only reported case in Pennsylvania at all pertinent to the question involved is Miller v. Moyer, 24 Pa. C. C. Rep. 259.

      Edwin M. Abbott, for appellee. —
    The plaintiff must prove the scienter, i. e., that the defendant had knowledge that the horse was dangerous and vicious and unsuitable for the bailment purpose: Horne v. Meakin, 115 Mass. 326; Copeland v. Draper,
    157 Mass. 558 (32 N. E. Repr. 944); Lynch v. Richardson, 163 Mass. 160 (39 N. E. Repr. 801); Windle v. Jordan, 75 Me. 149; Blanchard v. Weeks, 34 Vt. 589; Bradley v. Myers, 19 Lanc. L. R. 137; McConnell v. Lloyd, 9 Pa. Superior Ct. 25; P. & R. R. R. Co v. Hummell, 44 Pa. 375; P. & R. R. R. Co. v. Spearen, 47 Pa. 300; Cresey v. Railroad Co., 26 Legal Int. 301; Fouhy v. Railroad Co., 17 W. N. C. 177; Ogden v. Railroad Co., 23 W. N. C. 191; Shvagzdys v. Railroad Co., 48 Pitts. L. J. 136.
    There is no warranty, express or implied, where a liveryman hires out a horse, that the same is gentle, docile or will not run away: Copeland v. Draper, 157 Mass. 558 (32 N. E. Repr. 944).
    Recovery in damages cannot be had where the mere breach of this warranty occurred innocently: Jones v. Ross, 98 Ala. 448 (13 So. Repr. 319); Case v. Stevens, 137 Mass. 551; Bruce v. Fiss, etc., Horse Co., 47 N. Y. App. Div. 273.
   Opinion by

Mr. Justice Mesteezat,

This is an action of trespass to recover damages for injuries caused by the vicious acts of a horse. The defendant is a livery-stable keeper in the city of Philadelphia, and for several months prior to November 12, 1906, the plaintiff had hired of him a horse to be used for drawing a delivery wagon about the city. On the morning of the day mentioned, the plaintiff went to the defendant’s stable and obtained a mare to drive in his wagon during the day. This mare was different from the one which he had previously hired and used in his business, the defendant having purchased her that morning. The plaintiff testified that the defendant knew the purpose for which the mare was hired, that he recommended her very highly and that she was safe and suitable for the purpose; and that he had purchased her especially for the plaintiff’s use. The plaintiff was familiar with and had been driving horses for twenty-five years.

The mare was harnessed to a light wagon and the plaintiff started on his drive about the city. Within half an hour after the animal was hired she suddenly, without any apparent cause, started to kick violently and finally ran off. She kicked the dashboard off, hit plaintiff above the eye, and kicked the seat from under the plaintiff. While she was running, the wagon violently struck a truck standing on the street, broke the front axle at the hub and threw the plaintiff out. He was knocked unconscious and was severely injured.

This action was brought to recover damages for the injuries which the plaintiff sustained. On the trial of the cause the above facts were made to appear; and witnesses were also called who testified that the conduct of the mare on the occasion of the accident showed that she was not mild, kind and gentle, but was wild and vicious, and that a gentle horse would not act as she did.

These witnesses were owners of horses and knew their habits, traits and dispositions. The learned judge directed the jury to find a verdict for the defendant on the ground that there was “no evidence that the defendant knew or by the exercise of reasonable care could have known that the mare was unsuitable for use, if in fact she was so.” The plaintiff has taken this appeal.

The relation between a livery-stable keeper and his customer is that of bailor and bailee for hire, and the former assumes the liability which the contract of bailment imposes. When the bailor lets a horse for hire he impliedly promises or warrants that the animal is fit and suitable for the purpose for which it is hired; he warrants that the horse is not unruly or vicious but is safe, manageable and suitable for the use for which the customer has hired it. It is the duty of a livery-stable keeper to inform himself of the habits and disposition of the horses which he keeps in his stable for hire, and if he knows that they are dangerous and unsuitable or by the exercise of reasonable care could ascertain the fact he is liable for any injuries to his customers resulting from their vicious propensities. The law will not permit him to close his eyes and his ears, thereby remaining ignorant of the vicious habits of his horses, and relieve him from liability for injuries to a customer resulting from such habits. In his contract of hiring he impliedly engages that he knows or has exercised reasonable care to ascertain the habits of his horses, and says to his customer that the horse which he lets is safe and suitable for the purpose for which he has hired it. His warranty is against defects or vicious habits which he knows or by the exercise of proper care could know, and if he fails to exercise such care and it occasions injury to his customer, he will not be relieved of liability though he did not actually know the horse was unsuitable for the service. It is true a liveryman is not an insurer of the suitableness of a horse or carriage let to a customer, but he is bound to exercise the care of a reasonably prudent man to furnish a horse or carriage that is fit and suitable for the purpose contemplated in the hiring. The customer is at his mercy and must rely upon the liveryman to guard him against the danger of a vicious animal or defective vehicle; and hence he has the right to demand of the liveryman that he will use such care in supplying a horse or carriage as a reasonably prudent man exercises in the conduct of his own business affairs. While this court has not passed upon the question, the doctrine here announced is recognized and applied in other jurisdictions: 25 Cyclopedia of Law and Procedure, 1513; 19 Am. and Eng. Ency. of Law (2d ed.), 432; Edwards on Bailments, sec. 373; Fowler v. Lock, L. R. 7 C. P. 272; 10 C. P. 90; Horne v. Meakin, 115 Mass. 326; Lynch v. Richardson (Mass.), 47 Am. St. Rep. 444; Windle v. Jordan, 75 Me. 149; Stanley v. Steele (Conn.), 69 L. R. A. 561; Nisbet v. Wells (Ky.), 76 S. W. Repr. 120. In Lynch v. Richardson, Mr. Justice Knowlton, delivering the opinion, said: “It was the duty of the defendant to furnish a horse that had no such vicious habit, and if he knew of the existence of the habit, or if, by the exercise of reasonable care to ascertain whether the horse was suitable for the use of hirers, he ought to have known that it was dangerous, he is liable for such injuries as resulted from his wrongful conduct. ... It was the duty of the defendant to try to inform himself in regard to the habits of horses kept in his stable for use in his business. It does not require a very long acquaintance with a horse to enable an ordinary livery-stable keeper to form a correct opinion of his qualities. Usually he tries to ascertain as much as possible about it before becoming its owner.”

In the case at bar, therefore, the questions were whether the mare was vicious and unsuitable for the purpose for which she was hired, and whether the defendant knew or by the exercise of reasonable care should have known the fact. The burden of establishing both propositions was on the plaintiff. He assumed the burden and introduced evidence to show the vicious conduct of the mare at the time she became unmanageable and injured the plaintiff. In addition to this, witnesses were called whose familiarity with horses, their dispositions and habits, gave their testimony weight, and they testified that the actions of the mare on that occasion showed that she was not gentle or kindly disposed, but was wild and unmanageable. We think the evidence, if believed by the jury, was sufficient to show a breach of the defendant's implied warranty that the mare was fit and suitable for the service for which she was hired, and that the defendant was negligent in not furnishing the plaintiff a gentle and suitable animal. Such evidence having been introduced by the plaintiff, the burden was then imposed upon the defendant of satisfying the jury that the animal was not vicious or unruly or that he was ignorant of the vicious character of the animal and had exercised proper care to inform himself as to its habits. The defendant may also show as a defense, that the conduct of the animal was occasioned by the hirer, or by the happening of an event that would cause such conduct by a gentle or well-trained horse and one not addicted to a vicious habit, or that the hirer knew or was informed of the habits of the horse and he assumed the risk, or 'any other matter which would relieve the liveryman from the alleged negligence or breach of implied warranty. It is imposing no heavy burden upon the keeper of a livery stable to require him to investigate the character of the horses he keeps in his stable before hiring them to persons whose safety may be endangered by their vicious habits. If he cannot get any information in regard to their habits, he can at least satisfy a jury on a trial where the conduct of an animal shows a vicious propensity that he made diligent efforts to do so.

It has been suggested that the plaintiff’s statement sets forth a special warranty and that, therefore, he cannot recover upon the implied warranty which arises from the contract of hiring. This position is not tenable. The statement is amply sufficient to show the contract of hiring out of which an implied warranty arises, and if in addition to such warranty the statement contains an averment of a special warranty it will not prevent the plaintiff, if the evidence is sufficient, from recovering upon the implied warranty: Windle v. Jordan, 75 Me. 149. In that case it was contended that the plaintiff was confined to a special warranty, but the court said: “It is true that the plaintiff and his witness to the contract of hiring, testify that both the defendant and his hostler recommended and warranted the horse, except in the matter of laziness, but that testimony was not essential to the plaintiff’s case. When it was proved and admitted that the defendant was a livery-stable keeper and that he let the horse for hire to the plaintiff for the trip, the law settles the contract upon the breach of which the plaintiff counts.”

The learned trial judge evidently thought that this case belonged to that class of cases in which it is held that before a person who has been injured by a vicious animal can recover against the owner .he must show that the owner knew of the animal’s vicious propensities. This was a misapprehension of the law. The owner of a vicious dog who bites another is responsible only on proof of the scienter. There, there is no contract relation between the parties and liability is not based upon such relation. In cases of the character under consideration, the liability of the owner of the livery-stable keeper rests on contract, and an implied warranty that the animal hired to the customer is free from defects and infirmities making it unsuitable for the purpose for which it was hired. The breach of this contract, by failing to exercise reasonable care and diligence in furnishing a suitable animal, imposes a liability upon the liveryman.

The statement in this case sufficiently avers a breach of an implied warranty on the part of the livery-stable keeper of the suitableness of the animal let to the plaintiff. It also avers facts sufficient to show negligence on the part of the defendant in that he did not exercise proper care in ascertaining the vicious nature of the animal, a fact which could have been known to the defendant had he used the diligence and care required of him. There was no demurrer to the statement. The courts, however, have, in this class of cases, permitted the plaintiff to enforce his right to damages by an action for a breach of the implied warranty or by an action in tort for negligence. The question was distinctly ruled in Hyman v. Nye, L. R. 6 Q. B. Div. 685. In that case Lindley, J., said (p. 689): “It was objected on the part of the defendant that the plaintiff had in his statement of claim based his case on negligence on the part of the defendant, and not on any breach of warranty express or implied. . . . But the absence of such care as a person is by law bound to take is negligence; and whether the plaintiff sues the defendant in tort for negligence in not having supplied such a fit and proper carriagé as he ought to have supplied, or whether the plaintiff sues him in contract for the breach of an implied warranty that .the carriage was as fit and proper as it ought to have been, appears to me wholly immaterial.” None of the cases on the subject, so far as we have seen, give any attention to whether the action was founded upon a technical warranty or upon negligence.

We think the evidence was sufficient to send the case to the jury, and that the court was in error in directing a verdict for the defendant.

The judgment is reversed with a venire facias de novo.


text:
    Quinn v. Philadelphia Rapid Transit Company, Appellant.

      Negligence — Street railways — Boarding moving car — Contributory negligence.

    1. In an action against a street railway company to recover damages for personal injuries, it is error to submit the case to the jury where the evidence offered by the plaintiff shows that he attempted, without the knowledge of the conductor or motorman, to get upon a summer car‘at a time when it was going faster than a man could walk, and that practically at the same instant that his foot reached the running board, he was thrown to the ground.

      Trial — Improper remark of counsel as to damages — Withdrawal of jury.

    2. It is error for counsel to state to the jury the amount of damages claimed in the declaration. The damages are to be ascertained by the jury from the evidence and are not to be determined by any estimate of counsel not baséd on the evidence.
    Argued Jan. 12, 1909.
    Appeal, No. 273, Jan. T., 1908, by defendant, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1906, No. 515, on verdict for plaintiff in case of Joseph Quinn v. Philadelphia Rapid Transit Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries received while attempting to board a summer car. Before Magill, J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $4,500. Defendant appealed.

      Errors assigned were (1) in refusing binding instructions for defendant and (2) in declining motion of defendant’s counsel to withdraw a juror, the plaintiff’s counsel having stated in summing up to the jury that “he had asked for $20,000 in this suit.”
    March 22, 1909:

      Thomas Leaming, with him Sydney Young, for appellant.—
    The plaintiff was guilty of contributory negligence: Hunterson v. Traction Co., 205 Pa. 568.
    A juror should have been withdrawn upon plaintiff’s counsel deliberately stating that the plaintiff claimed $20,000: Wagner v. Hazle Twp., 215 Pa. 219.

      John Monaghan, with him Darn'd Phillips, for appellee,
    cited as to negligence: Powelson v. United Traction Co., 204 Pa. 474; Boulfrois v. Traction Co., 210 Pa. 263.
    Cited as to remarks of counsel: Green v. Sun Company, 32 Pa. Superior Ct. 521; Kehoe v. Traction Co., 187 Pa. 474; Shaffer v. Coleman, 35 Pa. Superior Ct. 386.
   Opinion by

Mr. Justice Potter,

It is admitted in this case that the plaintiff attempted to board a moving car, which at the time was going faster than a man could walk. It is urged, however, upon the part of the plaintiff that even if his carelessness in this respect be conceded, yet at the instant when he was thrown from the car, he had passed the initial point of danger, and had attained what his counsel contend was a place of safety. The trial judge instructed the jury that if they found that the plaintiff while attempting to board a moving car, was thrown from it, in the very act of getting upon it, he could not recover, as such an act would clearly have been negligence upon his part. But we are satisfied from a careful examination of the evidence that there is really no conflict as to this point. The only reasonable inference that can be drawn from the plaintiff’s own statement, is that he was injured in the very act of attempting to board a moving car of the defendant company, while it was going at considerable speed. This being the case it was the duty of the court to say that under the evidence the plaintiff had failed to exercise reasonable care to prevent harm to himself, and that his injury was the result of his own fault, and he could not recover.

The testimony shows that the car which plaintiff attempted to mount was running north on Fourth street, and had passed the intersection with Dauphin street, and had begun its run towards the next intersection, at the time the plaintiff attempted to get upon the running board. There is nothing in the evidence to show the motorman or conductor knew that the plaintiff wanted to get on the car at the time, until he made the effort to do so. If the car had been standing still at the regular place for passengers to get on, and the evidence had tended to show that it had been started suddenly while plaintiff was in the act of stepping up, the question would have been for the jury. But as it was, there was nothing to warn the men in charge of the car of any impending peril to the plaintiff; there was therefore no duty upon them at that time with respect to the plaintiff, and there was no evidence of any negligence upon their part. On the contrary, the contributory negligence of the plaintiff is plainly apparent from his own story of the occurrence. He said that as the car came up to him he attempted to throw his body along with it, “to grab it as it came along.” He testified upon cross-examination that as near as he could judge the car was about a length past the crossing when he tried to get on, and that it was about a length and a half above the crossing when he fell to the ground. This shows conclusively that his attempt to mount the side of the moving car, and his fall to the ground were practically instantaneous. It was a continuous performance. The running board is not a place of safety; it is not intended for the use of passengers, except as a means of ingress and egress. And the fact that plaintiff had not gotten beyond the running board, when he was thrown off by the motion of the car, shows that he had not completed his perilous intention of mounting the moving car. The testimony of the passengers who were on the car does not contradict that of the plaintiff, but it adds much to the details which under the circumstances he naturally could not be expected to recall. One passenger, sitting in the seat next to the back seat said, in describing the accident, “ I was sitting there, and I saw a man make a grab for the car. I could not say if he got hold or not. By the time I turned my head he was down, lying on the street.” He further said that the car was running pretty lively at the time. Five other witnesses agree substantially in saying that plaintiff jumped for the running board, and whether or not he succeeded in getting his feet on, he was almost instantly thrown off. Of course if the testimony of the other witnesses contradicted the plaintiff, it would be for the jury to reconcile the discrepancies, but it all practically supplements the plaintiff's own story. The facts of the case bring it within the rule that to step on or off a moving car, is in itself an act of negligence.

There is a second specification of error, wherein complaint is made of the refusal of the court below to withdraw a juror and continue the case, because of counsel for plaintiff having stated in his argument to the jury that he asked “for $20,000 in this suit.” It is error for counsel to state to the jury the amount of damages claimed in the declaration. The damages are to be ascertained by the jury from the evidence, and are not to be determined by any estimate of counsel, not based on the evidence. Any suggestion to the jury of the arbitrary amount in which the damages are laid, in the declaration, is highly improper: Reese v. Hershey, 163 Pa. 253. The second assignment is sustained, but it becomes unimportant in this case by reason of the lack of anything in the evidence which properly sustains the charge of negligence against the defendant company.

The only reasonable inference that can be drawn from the evidence is that the plaintiff was hurt by his own fault, without fault upon the part of the defendant, and the trial judge should have assumed the responsibility of disposing of the case.

The judgment is reversed, and is here entered for the defendant.


author: Mr. Justice Fell,

text:
    Commonwealth to use v. Magee, Appellant
    (No. 1).

      Executors and administrators — Administrator’s bond — Premature suit — ■ Discontinuance — Act of June 14, 1836, P. L. 637.
    1. The Act of June 14,1836, P. L. 637, prescribes a mode of procedure in actions on administrators’ bonds, and gives to all parties who have several interests the right to join in the suit by suggestion of the right before judgment, or by scire facias after judgment has been entered for the commonwealth. The remedy provided is exclusive and prohibitory of any other.
    2. Since only one action is permitted and that is for the use of all parties interested, it follows that ordinarily the use plaintiff in the action may not discontinue it. But an action brought on an administrator’s bond, when there has been no default and no one has a right of action, is premature and the party who brought the action and in whose way it stands should be permitted to correct the error by discontinuing and commencing de novo. The better practice in such a case is to obtain leave of court to discontinue.
    3. In strict law a discontinuance is always by leave of court, but in practice leave to discontinue is assumed in the first place without the formality of an application but subject to be withdrawn on cause shown.
    4. The discharge of a rule to strike off a discontinuance is equivalent to a grant of leave.
    Argued Jan. 14, 1909.
    Appeal, No. 338, Jan. T., 1909, by defendants, from order of C. P. No. 1, Phila. Co., June T., 1902, No. 4,508, discharging rule to strike off discontinuance in case of Commonwealth to use of Charles Beckingham v. James E. Magee and Robert J. Barr.
    Before Mitchell, C. J., Fell, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Rule to strike off discontinuance.
    The facts appear by the opinion of the Supreme Court.

      Error assigned was the order of the court discharging rule to strike off discontinuance.

      William Brown, Jr., with him Charles L. Brown and Alex. Simpson, Jr., for appellants. —
    The appellee has no right to discontinue and commence de novo: Mechanics’ Bank v. Fisher, 1 Rawle, 341; Schuylkill Bank v. Macalester, 6 W. & S. 147; Consolidated Nat. Bank v. McManus, 217 Pa. 190.
    March 22, 1909:

      Trevor T. Matthews, for appellee. —
    It has not been shown that the lower court was guilty of any abuse of discretion in refusing to strike off the discontinuance: Com. v. Magee, 220 Pa. 201; Evans v. Clover, 1 Grant, 164; Bach v. Burke, 141 Pa. 649; Hall v. Vanderpool, 156 Pa. 152; Reading v. Bentley, 2 Monaghan, 715.
    It has not been shown that the discontinuance of the suit will result or has resulted in any vexation, oppression or disadvantage to the defendant: Dalton’s Est., 33 Pa. Superior Ct. 210; Com. v. Cope, 45 Pa. 161; Smith v. Com., 59 Pa. 320; Lacroix v. Macquart, 1 Miles, 156; Engle v. Ins. Co., 20 Pa. C. C. Rep. 90; Bank v. McManus, 217 Pa. 190.
   Opinion by

Mr. Justice Fell,

The appellant is the surety on a bond given by an administrator in 1891 to secure the accounting by him for the proceeds of the sale of the real estate of the decedent made by order of court for the payment of debts. An action was brought upon the bond by the use plaintiff while exceptions to the allowance of his claim were pending and before a final decree had been entered in the orphans’ court. On an appeal to this court it was held that the action was prematurely brought: see Com. v. Magee, 220 Pa. 201. The use plaintiff then discontinued the action without leave of court and caused a new summons to be issued. The surety obtained a rule to show cause why the discontinuance should not be struck off and the second summons quashed, which after hearing was discharged. The appeal is from the order discharging the rule.

The Act of June 14, 1836, P. L. 637, prescribes a mode of procedure in actions on bonds such as that in suit and gives to all persons who have several interests the right to join in the suit by suggestion of the right before judgment or by scire facias after judgment has been entered for the commonwealth. The remedy provided is exclusive and prohibitory of any other: Com. v. Cope, 45 Pa. 161. Since only one action is permitted and that is for the use of all parties interested, it follows that ordinarily the use plaintiff in the action may not discontinue it. But an action brought on an administrator’s bond, when there has been no default and no one has a right of action, is premature, and the party who brought the action and in whose way it stands should be permitted to correct the error by discontinuing and commencing de novo: Com. v. Magee, 220 Pa. 201. The better practice in such a case is to obtain leave of court to discontinue. In strict law a discontinuance is always by leave of court, but in practice leave to discontinue is assumed in the first place without the formality of an application but subject to be withdrawn on cause shown. The discharge of a rule to strike off a discontinuance is equivalent to a grant of leave. The causes that will move the court to withdraw its assumed leave are addressed to its discretion and usually involve some disadvantage to other interested parties: Consolidated Nat. Bank v. McManus, 217 Pa. 190. The only advantage of which the defendant was deprived by the discontinuance was that of asserting that he had been summoned before a right of action arose.

The appeal is dismissed.


text:
    Commonwealth to use v. Magee, Appellant
    (No. 2).

      Executors and administrators — Bond of administrator — Principal and surety — Affidavit of defense by surety.

    1. The same degree of particularity in an affidavit of defense is not required of a surety who sets up payment by the principal debtor as would be required of the principal.
    2. In an action upon an administrator's bond brought sixteen years after the audit, an affidavit of defense by the surety is sufficient in which he avers that he is informed, believes, and expects to be able to prove that the claim for which suit was brought had been paid in full by the administrator, but that he “cannot state the time, place and manner of said settlement at this time, for the reason that the same was secretly done by and between ” the administrator and the plaintiff.

      March 22, 1909:
    Argued Jan. 14, 1909.
    Appeal, No. 294, Jan. T. 1908, by defendants, from order of C. P. No. 1, Phila. Co., June T., 1902, No. 4,508, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Commonwealth to use of Charles Beckingham v. James E. Magee and Robert J. Barr.
    Before Mitchell, C. J., Fell, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Assumpsit upon bond of administrator.
    Rule for judgment for want of a súfficient affidavit of defense.
    The court made absolute rule for judgment for want of a sufficient affidavit of defense. Defendants appealed.

      Error assigned was the order of the court.

      William Brown, Jr., with him Charles L. Brown and Alex. Simpson, Jr., for appellants,
    cited as to the sufficiency of the affidavit of defense: Langfeld v. Lyon, 132 Pa. 441; Steltzer v. Steltzer, 10 Pa. Superior Ct. 310.

      Trevor T. Matthews, for appellee. —
    The affidavit of defense was not sufficient: Orr v. Diaper, L. R. 4 Ch. Div. 92; Thistle v. Lippincott, 14 W. N. C. 139; Peebles v. Boggs, 1 Phila. 151; Singer v. Caldwell, 7 Pa. Dist. Rep. 583; B. & L. Assn. v. Dunlap, 20 Lancaster, 59; Felleman v. Cassler, 198 Pa. 407; McCracken v. First Reformed Presbyterian Congregation, 111 Pa. 106; Andrews v. Packing Co., 206 Pa. 370; McGuire v. Conway, 10 Pa. C. C. Rep. 298; Langfeld v. Lyon, 132 Pa. 441; Close v. Hancock, 3 Pa. Superior Ct. 207.
   Opinion by

Mr. Justice Fell,

This appeal is from an order making absolute a rule for judgment against the surety on the bond of an administrator, for want of a sufficient affidavit of defense. It appears from the statement of claim that the bond was given in May, 1891, on the return of the order of sale of real estate. The administrator’s account was audited and confirmed nisi in May, 1892. Exceptions filed by the heirs to the allowance of the claim of the use plaintiff, a creditor, were dismissed in October, 1902. In October, 1905, on bill of review the adjudication was amended so as to show that the award to the plaintiff was payable out of the proceeds of the sale of the real estate sold for the payment of the debts of the decedent. This action against the surety on the bond was commenced in May, 1908, sixteen years after the audit of the account of the administrator.

The affidavit of defense contains the following averment: “This deponent says that he has been informed, believes and expects to be able to prove on the trial of this case that before commencement of this suit the said James E. Magee, administrator and co-defendant with this deponent and principal debtor, made a full settlement with the saj.d use plaintiff, Charles Beckingham, of the amount of said claim and released the said James E. Magee from all other and further claim regarding said debt, whereby said deponent has been and is released of and from all claims upon the bond sued upon in this suit. And that this suit is being prosecuted by the use plaintiff to recover a second time for the same debt. Deponent cannot state the time, place and manner of said settlement at this time, for the reason that the same was secretly done by and between said James E. Magee and use plaintiff only. All of which facts deponent is informed, believes and expects to be able to prove upon a trial of this case.” This averment by a principal debtor, whose duty it is to pay and who knows what he has done or caused to be done, would be insufficient to prevent judgment. It would be incumbent upon him to state the time and manner of payment and by whom made. The facts being within his own knowledge, he would be bound to set them out with such certainty and particularity that the court might determine whether the payment alleged to have been made was a discharge in fact or in law from facts disclosed. But the same degree of particularity is not to be required of a defendant who is under- no duty to pay in the first instance and whose liability is only secondary, who sets up payment by the principal debtor. All that may be required of him is that his averments are as explicit and specific as the nature of the circumstances reasonably admits. In the affidavit in this case the defendant avers that he is informed, believes and expects to be able to prove that the claim for which suit is brought has been paid in full by the administrator, and states an adequate reason for not being able to state the time, place and manner of settlement. This positive and distinct averment, in view of the peculiar facts of the case, the long delay in perfecting the record of the orphans’ court and in bringing this action, was, we think, sufficient to entitle the defendant to a trial.

The assignment of error to the order making the rule for judgment absolute is sustained, and the record is remitted for further proceedings.


author: Per Curiam,

text:
    Widener, Appellant, v. Philadelphia Rapid Transit Company.

      Negligence — Street railways — Passenger—Injury to passenger by passenger.

    Where a person in getting on to a street car with others is shoved and injured by a passenger standing on the platform, and the whole incident happened in so short a time that the conductor has no opportunity to interfere and prevent the injury, the street railway company will not be liable in damages to the man injured.
    Argued Jan. 18, 1909.
    Appeal, No. 270, Jan. T., 1908, by plaintiff, from order of C. P. No. 3, Phila. Co., June T., 1904, No. 1,450, refusing to take off nonsuit in case of William F. Widener v. Philadelphia Rapid Transit Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elicin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    The court entered a compulsory nonsuit which it subsequently refused to take off, Ferguson, J., filing the following opinion:
    The negligence alleged in this case was that the conductor of the car permitted the plaintiff to be wantonly assaulted by an unruly passenger, as a consequence of which injuries were received.
    It is clear from the evidence that a number of men who had been working at the League Island Navy Yard were lined up along the tracks waiting for the approaching car, and as the car passed them they jumped on to the platform. According to the plaintiff, two men boarded the car immediately in front of him, and he reached the step in safety and had one foot upon the platform and one foot on the step, when he was pushed by a man whom he called a marine, who was also standing on the step. Plaintiff had his back to this marine and says the marine pushed him against the gate, and as a consequence his knee was injured. The plaintiff saw this man push or jostle the men who preceded him, and what happened with regard to himself happened in a second or two of time. The conductor was upon the platform. The evidence of the other witnesses who boarded the car was to the effect that they, in jumping on the car, were interfered with by this marine. One of the witnesses testified to a remark made by the marine to the effect that he was trying to get off, and his actions were variously described as pushing and shoving and interfering.
    It is undoubtedly the law that a conductor must police his car and when he is able, prevent injury to passengers from wanton assaults of unruly passengers, and when the car stops to take on or let off passengers it is his duty to see that the passageways are clear for ingress and egress. In this case the car had not stopped, and we must presume that the marine, being on the car, was a passenger. Whatever happened took place in an exceedingly brief period of time, and in order to measure the conductor’s responsibility the circumstances of the case must be considered in order to arrive at a conclusion as to what he could have done to prevent the injury to the plaintiff. With the car in motion and a passenger upon the step and a number of men in rapid succession quickly boarding the car, with jostling and pushing, assuming that it was all done by the one passenger, it is difficult to see how the conductor could have interfered in a way to protect the plaintiff from what happened, assuming he had time to do it. The' natural consequences of a physical interference on his part would probably have been to throw some of the persons into the road. But from the evidence we cannot see that sufficient time elapsed after the conductor was cognizant of the conduct of this passenger, assuming him to have been unruly, to have prevented the injury to the plaintiff. The only evidence in the case which has given us any doubt at all upon the propriety of the action of the court in entering a nonsuit was that of the witness Harmon. His testimony was to the effect that the marine was pushing the intended passengers off, and the witness subsequently went back to see the plaintiff who was “thrown off” the car. Upon cross-examination this witness said he did not see the plaintiff fall from the car, but that he did see two men shoved off who immediately preceded him. The plaintiff’s story being that the two men who preceded him boarded the car in safety, though interfered with by the marine, and the witness Harmon testifying that he had seen two men pushed off the car before the plaintiff boarded it, might be said to be one of those inconsistencies which necessarily would take the case to the jury. But assuming it to be true that the two intended passengers who attempted to board the car before the plaintiff were shoved off as this witness testified instead of getting on, as the plaintiff testified, it does not give us any clearer notion of the time in which the events occurred than we have from the plaintiff’s own testimony. The negligence of the conductor in this case, if there was negligence, consisted in his permitting something to be done which he could have prevented; and we fail to find anything in the evidence to warrant an inference that this negligence existed. The events, as described by the plaintiff and his witnesses, were too unexpected to be guarded against by the exercise of reasonable care.
    The burden was upon the plaintiff to show by the evidence the failure on the part of the servant of the defendant to perform his duty. The evidence was sufficient to sustain a finding as to the injury received, but it was wanting in facts to sustain a finding of neglect of duty on the part of the conductor. This latter finding was essential to the plaintiff’s case, and where it could not be found because of an insufficiency in the evidence the court had no right to permit the case to go to the jury in order to have them fill in the gaps in the evidence by mere guesswork.
    March 22, 1909:
    The motion is overruled.

      Error assigned was refusal to take off nonsuit.

      Walter Thos. Fahy and Thomas A. Fahy, for appellant.

      Thomas Learning, with him Owen J. Roberts, for appellee.
   Per Curiam,

The judgment is affirmed on the opinion of the learned judge of the common pleas.


text:
    McClay v. Philadelphia, Appellant.

      Negligence — Municipalities—Defective roadbed — Contributory negligence — Case for jury.

    1. While the duty of vigilance is obligatory on everyone in the use of the city streets, a driver who is unable to give undivided attention to the roadbed, because of the care required in managing his horses and in avoiding other vehicles, cannot be held to have seen, or to have been reckless in not seeing, defects in a roadbed that would have been obvious to a pedestrian.
    2. In an action against a city to recover damages for death of plaintiff’s husband, it appeared that the deceased was riding on an elevated seat on an open wagon on a wide thoroughfare crowded with heavy teams, on which there were three tracks of a steam railroad. While crossing the tracks he turned his horses to one side to avoid a team crossing in front of him. One of the wheels of his wagon slid on a rail and went into a narrow depression or hole at its side, causing a jolt that threw him from his seat. Held, that the case was for the jury, and that a verdict and judgment for plaintiff should be sustained.
    Argued Jan. 18, 1909.
    Appeal, No. 183, Jan. T., 1908, by defendant, from judgment of C. P. No. 1, Phila. Co., March T., 1906, No. 1,176, on verdict for plaintiff in case of Annie McClay v. Philadelphia.
    March 22, 1909:
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $4,000. Defendant • appealed.

      Error assigned was in refusing binding instructions for defendant.

      Thomas D. Finletter, assistant city solicitor, with him Harry T. Kingston, assistant city solicitor, and J. Howard Gendell, city solicitor, for appellant.

      Thomas F. Gain, with him Alfred Law Cameron, for appellee.
   Per Curiam,

The only question argued was that of contributory negligence. The plaintiff’s husband was riding on an elevated seat on an open wagon on a wide thoroughfare crowded with heavy teams, on which there were three tracks of a steam railroad. While crossing the tracks he turned his horses to one side to avoid a team crossing in front of him. One of the wheels of his wagon slid on a rail and went into a narrow depression or hole at its side, causing a jolt that threw him from his seat. Whether under the circumstances he should have seen and avoided the danger caused by the defect in the surface of the street was a question for the jury.

While the duty of vigilance is obligatory on everyone in the use of city streets, a driver who is unable to give undivided attention to the roadbed, because of the care required in managing his horses and in avoiding other vehicles, cannot be held to have seen, orto have been reckless in not seeing, defects in a roadbed that would have been obvious to a pedestrian.

The judgment is affirmed.


text:
    Quinn, Appellant, v. Philadelphia.
    March 22, 1909:

      Municipalities — Sidewalk—Open areaway — Uncovered areaway— Proximate and remote cause.

    1. Where a small boy running upon a sidewalk in a city trips over the projecting hinge of a cellar door, and falls into an open areaway and from that into the cellar, and is injured, the city is not responsible for his injuries because it permitted the areaway to remain uncovered. In such a case, the proximate cause of the injury was the obstruction in the sidewalk consisting of the projecting hinge of the door as to which obstruction the city was not charged with negligence.
    2. Damages are not properly chargeable to any alleged act of negligence, when it appears that subsequently an independent and unexpected factor intervened which in itself was the real cause of the mischief. Legal responsibility in such a case rests .upon the intervening cause, and unless that was the fault of the original wrongdoer the latter is relieved from responsibility.
    Argued Jan. 18, 1909.
    Appeal, No. 322, Jan. T., 1908, by plaintiffs, from order of C. P. No. 5, Phila. Co., March T., 1905, No. 1,758, refusing to take off nonsuit in case of Felix Quinn and Felix Charles Quinn, a minor, by his father and next friend, Felix Quinn, v. City of Philadelphia.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Martin, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned was refusal to take off nonsuit.

      John F. Gorman, with him Harry K. Blake for appellants.

      Robert Brannan, assistant city solicitor, with him Frederick Beyer, assistant city solicitor, and J. Howard Gendell, city solicitor, for appellee.
   Opinion by

Mr. Justice Potter,

Damages are not properly chargeable to any alleged act of negligence, when it appears that subsequently an independent and unexpected factor intervened which in itself was the real cause of the mischief. Legal responsibility in such a case rests upon the intervening cause, and unless that was the fault of the original wrongdoer, the latter is relieved from responsibility.

In the present case the city was charged with negligence in not pursuing the owner of the property, for permitting a small areaway to remain uncovered, opening from the sidewalk into the cellar, near the house line of the street. A small boy running upon the sidewalk tripped over the hinge of an adjacent cellar door and fell into the areaway, and from there into the cellar. It was apparent that the fall was caused by the obstruction in the sidewalk, consisting of the projecting hinge to the door, and was not in any way due to the presence of the uncovered’areaway. It being there, he simply fell into the area instead of falling upon its cover, as he doubtless would have done had there been one over it. Probably his fall was more severe than it would have been had the area been covered, but this is mere conjecture. The defendant was not at fault in placing the cellar door, with its hinge, in the line of the sidewalk. That was done by the property owner. But it does not appear that negligence in this respect was charged against anyone. Had the fall been caused by negligence of the defendant, then the consequences which ensued would all have been chargeable to the defendant. But such was not the case. It was by no means clear that there was any lack of proper care upon the part of the city, in permitting the owner of the property to retain a small uncovered areaway, situated close to the house line. But however this may be, plainly there was an intervening cause which led to the accident, and this was the obstruction in the sidewalk, due to the presence of the hinge of the cellar door. It was this new and independent factor which caused the child to stumble and fall, and it was therefore the natural and real occasion of the mischief. Under these circumstances the learned trial judge very properly entered a compulsory nonsuit; and the judgment is affirmed.