text:
    Weinschenk, Executrix, v. Western Allegheny Railroad Company, Appellant.

      Evidence — Eminent domain — Railroads—Destruction of spring— Specific uses of water — Adaptability—Water supply — Manner of constructing railroad — Testimony—Striking out testimony — Improper elements of damage.

    1. Where in a proceeding to recover damages for the appropriation of lands by a railroad company it appears that the land taken contained a spring of water which was diverted by the company, it is competent for the plaintiff to show any and every purpose for which the water could and would reasonably be utilized on the land by the owner, as it would enhance the market value of the premises. It is not the question whether the spring had previously been used for any specific purpose, but whether the owner could utilize it advantageously for such purpose in using the land for what it was reasonably adapted.
    2. Where in such a case it appeared that prior to the destruction of the spring by the defendant company the plaintiff had no occasion to obtain or use other water than the water on his premises, it is competent for the plaintiff to show how and where he was compelled to obtain water for the purpose for which he had previously used the spring.
    3. In such a case the plaintiff may properly show the manner in which the railroad was constructed through his land.
    4. In such a case it. is not reversible error for the court to refuse to strike out the entire testimony of an unquestionably competent witness who had estimated the difference v between the market value of the land before and after the appropriation by the company, although it appears that he had taken into consideration certain elements of damage which he should not have considered, and, after being instructed to eliminate the improper matter, he testifies that he would not reduce the damages on that account.
    Argued Oct. 10, 1911.
    Appeal, No. 194, Oct. T., 1911, by defendant, from judgment of C. P. Lawrence Co., March T., 1906, No. 93, on verdict for plaintiff in case of Katherine Weinschenk, Executrix of George G. Weinschenk, deceased, v. Western Allegheny Railroad Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.

      Appeal from report of jury of view. Before Porter, P. J.
    At the trial, while the witness, Henry Weinschenk, was on the stand, the following questions were asked:
    “Q. Did it have a value in addition to the use that had already been made of it? A. Well, that is all the value of it — that is all the use but of course we could have made other uses of it. Q. What other uses would it have had?”
    Objected to as incompetent and immaterial.
    The Court: We will allow the witness to state what other uses the spring reasonably could be put to, considering the character of the land and the purposes for which it was used or adapted. The witness may answer the question and an exception is sealed for the defendant.
    Question read witness.
    “A. Why, the spring being an exceptionally strong spring could have been cleaned out and fixed for drinking purposes, and used for irrigating, being nice clear water it would have been exceptionally well adapted for that purpose. Q. Would it or would it not have a value for household use? A. Yes.”
    Defendant’s counsel object and ask that the last and preceding answers be stricken out and withdrawn from the jury.
    . The Court: We will allow the evidence to stand and seal an exception for the defendant. [1]
    “Q. Where has the water been obtained for this garden and other purposes necessary on this land since the railroad was constructed over this spring?”
    Objected to as incompetent.
    Counsel for plaintiff propose to show that this particular spring having been taken plaintiff has been compelled to go outside of the premises for water for garden and all other purposes on the land.
    Objected to as incompetent and immaterial.
    The Court: The witness may answer and an exception sealed for the defendant. [2]

      “A. Well, the spring that is located on the Sweikert farm. Q. Amd not on these lands? A. No, sir. Q. And it is not on this land, that spring? A. No, sir.”
    F. E. Alborn was asked these questions:
    “Q. What was this land worth just prior to the time the railroad entered and appropriated this land? A. Well
    for the purpose it was used- Q. What was it worth
    on the market? A. About $500 per acre. Q. And taking into consideration, Mr. Alborn, the fact that the railroad company went there and went through the center of it from north to south and took a strip of ground 100 feet wide, containing 2.59 acres, in the manner in which the roadway is constructed and for the purpose of operating a railroad thereon the full width of 100 feet or the full width of the right of way, what, in your opinion, would be the market value of that land afterwards?”
    Objected to as being incompetent and irrelevant, the question of the manner in which the railroad bed was constructed is not an element to assess damages by. Question read at suggestion of court.
    The Court: The witness may answer and an exception is sealed for defendant. [3]
    "A. About half.”
    C. B. Reno was asked these questions:
    “Q. What was the market value of this land as a whole affected by the taking of the land and the operation of the railroad upon it? A. Well, from a third to a half. Q. What would you say that was? A. In dollars? Q. Yes, for 26.12 acres I believe of it originally. A. I would say it was a damage to the farm of $5,000, that includes the spring, as I view it the land taken and the perpetual damage to the farm.”
    Cross-examination by Mr. Martin:
    “Q. What do you include in the perpetual damage to the farm, Mr. Reno? A. The annoyance from the persons operating it watching the trains going back and forward, causing delay.in their work, the delay of the employees, the danger attendant to grade crossing and things like that. Q. What else do you include in that? A. I would include the damage to growing crops by soot and smoke falling on them, necessitating loss of the stuff itself, beside the inconvenience — the greater inconvenience in preparing the same for market, I would add that. Q. Anything further? A. Not further than what was stated in my direct examination — not that I think of now. Q. You say you include in that the loss of the employees doing their work? A. Yes, sir. Q. What do you mean by that? A. I mean the natural tendency of the human family when a train is going along the road to stop work and watch that train for a few minutes. Q. And you include that in your estimate of $5,000? A. Yes, sir, I did. Q. Do you also include in that the possibility or probability of having the crossings stopped by trains crossing? A. The annoyance caused by that, yes, sir.”
    Counsel for defendant now moves the court to strike out and withdraw from the consideration of the jury all the testimony of this witness, for the reason that he includes in his estimate of damages elements that are not proper to be included in an estimate of damages in this character of cases.
    Mr. Aiken: The witness has only stated the facts in connection with the ordinary operation of a railroad.
    The Court: We will permit the testimony to stand, upon the condition, however, that the witness will eliminate and we now instruct the witness, that the natural tendency of the human family to stop and look at moving objects is not a proper matter for compensation in this case. You will have to eliminate that from your estimate of damage. You can state your damage after eliminating that factor, because that is not such a factor as the jury can consider in determining the damages.
    Judge Martin: We ask an exception to the ruling of the court.
    The Court: You may inquire further on that point. An exception is sealed for defendant.
    Mr. Aiken: “Q- You have stated, Mr. Reno, that the total damage is $5,000 to this piece of land? A. Yes, sir. Q. Now, would you reduce that on account of this item being eliminated, if so, to what extent? A. I don’t think I would.”
    Judge Martin: I now renew my request to strike out the entire testimony of this witness on account of the fact that he has included in his testimony items that are not proper to be included in an estimate of damages in a case of this character.
    The Court: I do not recall any other item he included that is not proper to consider. I cannot think of any now. We will overrule the motion and seal an exception ■for defendant. [4]
    Verdict for plaintiff for $6,354.28 and judgment thereon. Defendant appealed.

      Errors assigned were (1, 4) in various rulings on evidence as above.

      J. Norman Martin, for appellant.
    The manner of construction was for the company and not an element in assessment of damages any more than evidence as to the value of the property before completion, and this is not admissible: Hoffman v. Bloomsburg & Sullivan R. R. Co., 157 Pa. 174.
    Where evidence has been improperly admitted, which tends to prejudice the minds of the jurors, the error is not cured by an instruction in the charge disregarding or to ■withdraw it from their consideration: Willock v. Beaver Valley R. R. Co., 222 Pa. 590; s. c., 229 Pa. 526; Hamory v. Pennsylvania, Monongahela & Southern R. R. Co., 222 Pa. 631.

      Robert K. Aiken, for appellee.
    The land had been used for gardening, and on this land was the spring of water, and it was proper for the witness “to include in his estimation any and every feature and consideration which in his judgment would influence the general buyer.” Savings & Trust Co. v. It. It. Co., 229 Pa. 484; Wilmington & Reading R. R. Co. v. Stauffer, 60 Pa. 374.
    January 2, 1912:
    Any burden cast upon the land by the construction of the railroad which detracts from its value is to be considered by the jury in determining the damages: Port v. R. R. Co., 168 Pa. 19; Holier v. Canal Co., 87 Pa. 221; Western Penna. R. R. Co. v. Hill, 56 Pa. 460; Comstock v. Ry. Co., 169 Pa. 582.'
    The credibility of the witness Reno and the value and weight of his testimony were for the jury: Brennan v. R. R. Co., 230 Pa. 228; Lewis v„ Springfield Water Co., 176 Pa. 230.
   Opinion by

Mr. Justice Mestrezat,

The assignments allege error in the admission of certain testimony. The first assignment cannot be sustained. It was clearly competent for the plaintiff to prove, as ruled by the trial judge, what uses other than those named by the witness the waters of the spring could reasonably be put to, considering the character of the land and the purposes for which it was used or adapted. The purposes for which the waters of the spring could be utilized on the land, as testified by the witness, were not “mere possibilities,” as claimed by the appellant, but, if the witness was credible, the waters could be used advantageously for the purposes for which the land was specially adapted. It was competent to show the volume and character of the water of the spring, that it was pure and fit for domestic use, and that it could be used by anyone occupying the premises for gardening, especially in view of the fact that it appeared the owner made such use of the land. The plaintiff was entitled to show any and every purpose for which the water could and would reasonably be utilized on the land by the owner as it would enhance the market value of the premises. It is not a question whether the spring had previously been used for any specific pur-r pose, but whether the owner could utilize it advantageouely for such purpose in using the land for what it was reasonably adapted.

The contention of the appellant that the testimony complained of in the second assignment was not admissible because it did not appear that the plaintiff was previously compelled to procure water outside the premises for the purposes for which he had formerly used the waters of the destroyed spring cannot be sustained. Prior to the destruction of the spring by the defendant company the plaintiff had no occasion to obtain or use other water than the water on his own premises. It was therefore competent for him to show that in the construction of its road, the defendant company had interfered with or destroyed the spring, and how and where he was compelled to obtain water for the purposes for which he had previously used the waters of the spring.

It is true, as argued by the appellant, that the measure of the plaintiff’s damages is the difference in the market price or value of the entire tract of land before and after the appropriation by the defendant as affected by the appropriation. In order, however, to ascertain the value of the land after the appropriation, all the elements of depreciation must be considered by the jury. We have held that the jury should consider any burden cast upon the land by the construction of the railroad, the manner in which the road cuts the land, diagonally or otherwise, the inconvenient shape resulting from the construction of the road, the depth of excavations and height of embankments, the obstruction or complete interruption of access to public or private ways, the inconvenience in crossing the railroad and interfering with crossings already established, the division of the tract into different parts so as to prevent the passage of persons or stock from one part to the other or, where the passage is possible, the danger in making the passage, and that the manner of the construction of the road diminished the business of the plaintiff’s mill. It is therefore apparent that the appellant’s objection, covered by the third assignment, that the plaintiff could not show the manner in which the road was constructed through his land is not well taken. It is true, as argued by the appellant company, that the manner of constructing the road was to be determined by the company, but the plaintiff was entitled to compensation for the injury done his land by such construction and the amount of the damages was for the jury.

We cannot sustain the fourth assignment. The witness had been examined in chief at some length and had clearly disclosed his competency and had estimated the difference between the market value of the land before and after the appropriation by the company. On cross-examination he disclosed the fact that in making his estimate he had taken into consideration certain elements of damage which he should not have considered. The learned court directed the witness to eliminate the improper matter from his estimate of the damages and said: “You can state your damage after eliminating that factor, because that is not such a factor as the jury can consider in determining the damages.” The plaintiff’s counsel then asked the witness whether, after eliminating the objectionable item, he would reduce the damages on that account, and the witness replied that he would not. The defendant’s counsel did not further cross-examine the witness to ascertain his competency but moved to strike out his entire testimony. It would have been better possibly if, after the court had instructed the witness, the plaintiff’s counsel had renewed his question and permitted the witness to give the total damages which he regarded the plaintiff as having sustained by reason of the appropriation of the land. The witness having known the land for eighteen years, seeing it daily, and being familiar with the character of the soil, the improvements made by the plaintiff’s intestate and the use made by him of the premises, was so clearly competent to estimate the damages that we are not convinced that the case should be reversed because of the form of the question asked by the plaintiff’s counsel, especially in view of the fact that considering all the witness’s testimony the answer would probably have been the same .had the form of the question been different.

The judgment is affirmed.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Hobel v. Mahoning & Shenango Railway & Light Company, Appellant.

      Practice, C. P. — Judgment non obstante veredicto — Conflict of evidence —Case for jury — Act of April 22,1905, P. L. 286.

    1. The Act of April 22, 1905, P. L. 286, which gives the court authority to enter judgment non obstante veredicto when a request for binding instructions has been declined at the trial, makes no radical innovation on the settled line of distinction between the power of the court and of the jury. Judgment cannot be entered against the verdict where there is a conflict of evidence on material facts or when for any reason there could not have been a binding instruction for the defendant.

      Negligence — Street railways — “Stop, look and listen” — Case for jury.

      2. In an action for personal injuries against a street railway company judgment non obstante veredicto cannot be entered where there is evidence that as the plaintiff, driving a team, approached the defendant’s electric road on a city street he stopped at the house line and looked and listened and continued to look and listen as he advanced; that when his horses were in the act of stepping on the tracks he first saw a car 150 feet from him running at a very rapid rate and of the approach of which no notice had been given by bell or gong; and that no effort was made by the motorman to stop the car or to reduce its speed until it was within ten feet of him.
    Argued Oct. 10, 1911.
    Appeal, No. 199, Oct. T., 1911, by defendant, from judgment of C. P. Lawrence Co., Dec. T., 1908, No. 34, on verdict for plaintiff in case of Charles Hobel v. Mahoning & Shenango Railway & Light Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.

      January 2, 1912:
    Trespass for personal injuries. Before Porter, P. J.
    The opinion of the Supreme Court states the case. See 229 Pa. 507.

      Error assigned was in refusing defendant’s motion for judgment non obstante veredicto.

      C. H. Akens, of Akens, Wilkison, Lockhart & Chambers, for appellant.

      Charles R. Davis, with him Oscar L. Jackson, for appellee.
   Per Curiam,

The error assigned is that the court refused to enter judgment for the defendant non obstante veredicto and the only question to be considered is whether there was any testimony on behalf of the plaintiff, which, if believed, entitled him to a verdict. The Act of April 22, 1905, P. L. 286, which gives the court authority to enter judgment non obstante veredicto when a request for binding instructions has been declined at the trial makes no radical innovation on the settled line of distinction between the power of the court and of the jury. Judgment cannot be entered against the verdict when there is a conflict of evidence on material facts or when for any reason there could not have been a binding instruction for the defendant: Dalmas v. Kemble, 215 Pa. 410.

When this case was here before, see 229 Pa. 507, it was said that on the question of the negligence of the defendant and the contributory negligence of the plaintiff, there was evidence sufficient to take the case to the jury. On the second trial the testimony for the plaintiff was substantially the same as at the first. It tended to show that as the plaintiff approached a right angle crossing of the tracks of the defendant’s electric road on a city street, he stopped at the house line and looked and listened and continued to look and listen as he advanced. When his horses were in the act of stepping on the tracks he first gawa car 150 feet from him, running at a very rapid rate and of the approach of which no notice had been given by bell or gong, that no effort was made by the motorman .to stop the car or to reduce its speed until it was within ten feet of him. This made out a prima facie case.

The judgment is affirmed.


author: Mr. Justice Stewabt,

text:
    Martin v. Baden Borough, Appellant.

      Appeals — Assignments of error — Refusal of instructions.

    1. Assignments of error based upon failure to instruct will be disregarded on. appeal when the record does not show the instruction in question was asked for, or, if asked for and refused, that any exception was taken.

      Evidence — Land damages — Municipalities—Change of grade — Contract with third party — Instruction to disregard — Street railways.

    2. In an action by a property owner against a borough to recover damages sustained by reason of the change of grade of a public street, the admission of a contract between the borough and a street railway •company for the purpose of showing that while the change of grade was a municipal improvement, undertaken by the borough, yet the railway company under its contract with the borough had obligated itself to do the work, and did do it, as the agent of the borough, constitutes error and the error is not cured by an instruction to disregard this testimony.
    Argued Oct. 11,1911.
    Appeal, No. 2, Oct. T., 1911, by defendant, from judgment of C. P. Beaver Co., Nos. 138, and 145, June T., 1908, on verdict for plaintiff in case of Naomi Martin v. Borough of Baden.
    Before Fell, C. J., Brown, Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Reversed.
    Appeals from award of viewers. Before Holt, P. J.
    In the year 1906, the borough of Baden in Beaver county, improved a number of its streets, one of which, Schiller street, was graded, and one, State street, being one and five-eighths miles in length,-was widened, graded, curbed and paved with concrete and brick. After the improvements were completed, on petition of the borough under the Act of May 16, 1891, P. L. 75, to assess benefits and award damages caused by the improvement, viewers were appointed. The plaintiff, Naomi Martin, an owner of property on both streets, was not awarded any damages by the viewers and thereupon an appeal was taken to the common pleas.
    Verdict for plaintiff for $3,529.33 and judgment thereon. Defendant appealed.

      Errors assigned were as follows:
    1. The court erred in admitting ordinance No. 19 of the borough of Baden, it being an ordinance granting a franchise to the Ambridge and Baden Electric Street Railway Company to construct and operate a street railway on State street in said borough; the ordinance being incompetent, irrelevant and immaterial.
    2. The court erred in refusing to instruct the jury as requested by the defendant, as follows:
    If the jury believe that the property of the plaintiff by reason of the improvement of State street has been benefited over and above the damage sustained, they can find in favor of the defendant and against the plaintiff in a sum not to exceed $900, that being the total amount of damages awarded by the jury of view that the borough was compelled to pay by reason of said improvement.
    3. The court erred in admitting testimony showing that plaintiff was deprived of the use of her mill while it was being raised and consequently suffered a loss in business.
    4. The court should have instructed the jury that when the plaintiff gave her consent to the borough to raise her mill building so as to conform to the new grade of the street, that she thereby assumed the risk of any injuries done in the raising thereof, and that having given her com sent, she has no standing now to complain of the manner in which it was raised.
    5. The court erred in not admitting testimony per-. mitting the defendant to show what the plaintiff had paid for the mill and machinery a few years prior to the time it was raised by the defendant. The only difference in the property and machinery therein at the time plaintiff purchased it and at the time it was raised being a secondhand gas engine, the cost of which was testified to by one of the. plaintiff’s witnesses.
    January 2, 1912:
    6. The court erred in admitting the testimony of J. D. Frazier to testify as to the injuries done to the property of the plaintiff for the reason that he did not see the property until two years after the building and machinery were raised.

      Edwin S. Weyand, with him Forest G. Moorhead, for appellant.

      William A. McConnel, for appellee.
   Opinion by

Mr. Justice Stewabt,

We have here six assignments of error. We shall dispose of them somewhat out of the order in which they are presented. The second complains that the court refused to instruct the jury that, if they believed that the property of plaintiff, by reason of the improvement of State street, had been benefited over and above the damage sustained, they could find in favor of the defendant and against the plaintiff to the limited extent stated in the proposition. It is enough to say with respect to this, that the record does not show that any such instruction was asked for, or, if asked for and refused, that exception was taken. The fourth complains that the court should have instructed the jury, that when the plaintiff gave her consent to the borough to have her mill raised so as to conform to the new grade of the street, she thereby assumed the risk of any injuries to her mill. It is enough to say as to this, that the learned judge was not asked to so instruct the jury. We may venture to add that he could not have done so had he been requested. The third, fifth and sixth assignments relate to the admission and rejection of certain testimony. These three assignments are in plain disregard of rule 28, and cannot therefore be considered. All the assignments above referred to are dismissed. The first assignment charges error in admitting the contract between the borough and a certain street railway company, wherein certain franchises are conferred upon the railway company and certain obligations imposed. The assignment barely escapes a like condemnation with the others. When it is recalled that this was an issue to determine what amount of damages the plaintiff had sustained by reason of the change of grade of a public street, it is impossible to see any relevancy this contract has to the issue being tried. It was admitted on the ground, that while the change of grade was a municipal improvement, undertaken by the borough, yet the railway company under its contract with the borough had obligated itself to do the work, and did do it, as the agent of the borough. What possible difference could it make if the borough instead of doing the work itself employed another agency, o.r, how could such fact be relevant to the issue tried? Had the borough engaged individual contractors to do this wo.rk, it would certainly not have been thought necessary or important to introduce such fact in an action against the borough for damages. The complaint is that the evidence was offered with a view of having the railroad company considered the real defendant; that having been admitted, the evidence did so operate, with the result that the verdict was larger than it otherwise would have been. We have no way of determining how this is, but the fact that the viewers awarded nothing to the plaintiff, and on appeal she recovered a verdict at the hands of the jury of more than $3,000, lends some support at least to the contention of the defendant. We express no opinion as to the merit of the plaintiff’s claim, but we do take occasion to condemn the introduction into a case of this kind of anything so foreign to the issue as this evidence was, especially where it can' be employed as an appeal to prejudice. It is evident from the following excerpt from the charge of the court, that to the mind of the learned judge the evidence was calculated to have this very effect. “It seems that the work upon the ground was performed by the Beaver Valley Traction Company as the agent of the borough of Baden, and this ordinance was offered for the mere purpose, and you can consider it for no other purpose, that while the work was done by the street railway company, the company really did it as the agent and representative of the borough of Baden, and that any liability to property owners growing out of a change of grade of these streets, would have to be borne by the borough of Baden; so that you will give yourselves no concern, whatsoever, so far as the traction company is concerned, except merely that the work was done by it as the agent of the borough; for the borough will be responsible, liable, for whatever amount of damages property owners sustained in and along the highway by reason of the work which the traction company did in grading and doing this work upon the streets.” It is to be observed that as explicit as this instruction is, it fails in the very important matter of final and ultimate liability, and leaves the jury free to conjecture that there could be recovery over against the railway company for whatever damages might be assessed against the borough. Apart from this, the evidence being inadmissible and calculated to affect the minds of the jury, as is apparent from the charge of the court, the only way to correct the error of its admission was to order it to be wholly withdrawn. The instruction to disregard it came too late: Erie & W. V. R. Co. v. Smith, 125 Pa. 259. As the case is exhibited by the record we can only say that the evidence was improperly admitted,, and that the instruction in regard to it was insufficient to neutralize any prejudicial effect it was calculated to produce. We are not sure that prejudice did not result to the defendant in consequence, and we sustain this assignment of error. The judgment is reversed and a venire facias de novo is awarded.


author: Mr. Justice Stewart,

text:
    Glass, Jr., v. Borough of College Hill, Appellant.

      Negligence — Master and servant — Defective machinery — Notice — Promise to repair — Continuing in employment — Boroughs.
    1. A servant may be guilty of contributory negligence in continuing to use a machine which he knows to be in dangerous condition, notwithstanding he has protested against such use, and received the master’s promise to repair; but the test of contributory negligence in such case is whether the danger in using the machine was so imminent that no man of ordinary prudence would assume the risk. Except where the danger is so imminent that a reasonably prudent man would not incur it, the servant may, in reliance on the promise of the employer to remedy it, remain for a reasonable period in the employment without forfeiting his right to recover for injuries received because of these conditions.
    2. In an action by an employee against his employer, a borough, to recover damages for injuries sustained by reason of the breaking of an engine of which plaintiff was in charge, the questions of defendant’s negligence and of plaintiff’s contributory negligence are for the jury where it appears that more than a month before the accident, defendant’s attention was called to the defective condition of the engine, and repairs were made without remedying the condition, of which fact defendant had notice; that subsequently the plaintiff again called the defendant’s attention to the defective part and at the same time expressed the opinion that its condition made it dangerous to operate and the defendant’s representative replied, “We will have to have the light, George, you go on running and we will have it repaired;” and that plaintiff with full apprehension of the danger continued in employment on the assurance that the defect would be remedied.
    Argued Oct. 11, 1911.
    Appeal, No. 11, Oct. T., 1911, by defendant, from judgment of C. P. Beaver Co., March Term, 1909, No. 410, on verdict for plaintiff in case of George W. Glass, Jr., v. Borough of College Hill.
    Before Fell, C. J., Brown, Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass for personal injuries. Before Holt, P. J.
    The facts appear by the opinion of the Supreme Court.
    Verdict for plaintiff for $1,700 and judgment thereon. Defendant appealed.

      January 2, 1912:

      Error assigned among others was in refusing defendant’s motion for judgment non obstante veredicto.

      J. R. Martin, with him C. B. McCarter, for appellant.
    A freedom from contributory negligence is not shown when plaintiff’s testimony showed that he knew of the defect: Nicholas v. Peck, 20 R. I. 533 (40 Atl. Repr. 418); Dodger v. Wanamaker, 4 Walker (Pa.), 267; Cisney v. Penna. Sewer Pipe Co., 199 Pa. 519; Lineoski v. Susquehanna Coal Co., 157 Pa. 153; Diehl v. Iron Co., 140 Pa. 487; Delaware, L. & W. R. Co. v. Cadow, 120 Pa. 559; Reading Iron Works v. Devine, 109 Pa. 246; Marean v. N. Y. S. & W. R. R. Co., 167 Pa. 220.

      J. Sharp Wilson, for appellee.
    The case at bar, so far as the liability of the defendant borough is concerned, is definitely settled by a number of cases of our state: Brownfield v. Hughes, 128 Pa. 194; Webster v. Coal & Coke Co., 201 Pa. 278; Held v. Glass Co., 207 Pa. 534; Maines v. Harbison-Walker Co., 213 Pa. 145; Hartman v. Pulley Co., 38 Pa. Superior Ct. 587.
   Opinion by

Mr. Justice Stewart,

The negligence here complained of was failure on part of the defendant to maintain in proper repair certain parts of the gas engine used in connection with the electric light plant of the defendant of which the plaintiff was the engineer in charge, the averment being that in consequence of such neglect the engine exploded, dislocating certain parts of the machinery about the engine, which, falling into the casing around the crank shaft, were, by reason of the rapid revolution of the machine, thrown violently against the plaintiff, thereby causing him severe injury. The accident occurred July 20, 1908. The plaintiff had been in charge of the plant for nearly a year and was an experienced engineer.: He testified that more than a month before the explosion occurred from which his injuries were received, the attention of the light committee of the borough council had been called to the defective condition of the engine; that this committee employed the Valley Machine Company to make these repairs; that after the machine company had completed its work upon the engine, and the engine had been again started, he notified the light committee, through its chairman, that the engine was not working satisfactorily; that the committee came and inspected it and agreed that it was in dangerous condition; and that again, on July 25, he served like notice on the chairman, calling his attention to the defective part, and at the same time expressing the opinion that its condition made it dangerous to operate. He testified that in reply to this last the chairman said: “We have to have the light, George, you go on running, and we will, have it repaired.” The plaintiff continued to operate the plant until the accident happened. Much of plaintiff’s testimony was contradicted by the opposing witnesses, nevertheless it was for the jury to say where the truth lay as between them. That the plaintiff’s testimony as to circumstances made out a prima facie case of negligence on the part of the plaintiff, is too clear for discussion. It is contended by the appellant that the plaintiff, upon his own showing, was guilty of contributory negligence and that binding instructions should have been given for the defendant. We quote so much of the testimony of the plaintiff as is here relied upon: “Q. And you continued to operate the plant? A. Yes, sir. Q. Now you have stated that the cause of this defect, that it gave a sound that was terrific at times. A. Yes, sir. Q. And you knew the cause? A. Yes, sir. Q. And you knew the danger? A. Yes, sir. Q. And you continued to operate it? A. Yes, sir.”

That a servant may be guilty of contributory negligence in continuing to use a machine which he knows to be in dangerous condition, notwithstanding he has protested against such use, and received the master’s promise to repair, is not to be questioned; but, after all, the test of contributory negligence in such case is whether the danger in using the machine was so imminent that no man of ordinary prudence would assume the risk. Except where the danger is so imminent that a reasonably prudent man would not incur it, the servant may, in reliance on the promise of the employer to remedy it, remain for a reasonable period in the employment without forfeiting his right to recover for injuries received because of these conditions. These are settled principles. In the present case there is no pretense that the plaintiff continued in employment out of deference to what he supposed was the superior judgment of his employer as to the risk; he continued with full apprehension of the danger on the assurance that the defects would be repaired. This question of fact therefore was suggested: Did the plaintiff in remaining at his accustomed work about this engine after the twenty-fifth of July when he received the assurance that the defect would be remedied, act with reasonable care for his own safety? Or, in other words, did he behave as a reasonably prudent man would have acted under the circumstances? There may be and are cases where it is the duty of the court to say as a matter of law that an employee, who in the face of known danger continues in employment is guilty of negligence, even where a promise to repair has been made, but this occurs only when the recklessness of the act clearly evinces a disregard of the common rules of safety which ordinarily govern human conduct. Whether this could be affirmed of the conduct of this plaintiff, the jury alone could determine from all the facts in the case. This was the view taken by the court below, and the question was submitted to the jury with the careful and correct instructions as to the law, as will be seen from the following extract: “So that, gentlemen, if this machine was so dangerous that it threatened immediate injury, then we say to you that in any circumstances the plaintiff would be guilty of contributory negligence in continuing to operate it. If it was in that condition it was his duty to shut it down and quit, even if the employer promised to have it repaired, and he continued to rely on that promise. But if the danger was not so imminent as to threaten immediate injury, and there was a promise to repair, and he continued in his employment, relying on that promise, and a reasonable length of time in which the repairs could have been made had not gone by, and the explosion occurred, and plaintiff was injured thereby, then he would not be guilty of contributory negligence in continuing to operate the machine.” This instruction was in exact accordance with the law as frequently declared in our own cases, notably Reese v. Clark, 198 Pa. 312; Webster v. Coal & Coke Co., 201 Pa. 278, and Hollis v. Widener, 221 Pa. 72.

We see no merit in the assignments of error and they are accordingly overruled. The judgment is affirmed.


author: Per CtrRiAH,

text:
    Link v. McKee. Hays’s Appeal.

      Mortgage — Affidavit of defense — Sufficiency—Equities.
    An affidavit of defense filed by a terre-tenant in an action on a scire facias sur mortgage is insufficient where it is not alleged that the balance due on the mortgage had been paid, the only averment of payment being that the affiant and another paid “a considerable portion” of advanced purchase money, and the matter set out by way of defense relates to equities alleged to exist among the defendants, without making clear the basis upon which they rest.
    Argued Oct. 11, 1911.
    Appeal, No. 71, Oct. T., 1911, by H. Jacob Hays, from judgment of C. P. Butler Co., Sept. T., 1910, No. 57, in case of W. J. Link, now for use of The Mars National Bank, a Corporation, v. Joseph P. McKeé, Mortgagor, John C. Dight and H. Jacob Hays, Terré-tenants.
    Before Fell, C. J., Brown, Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Scire facias sur mortgage proceedings. .

      The opinion of Galbkeath, P. J., states the case as follows:
    By agreement bearing date October 31, 1906, and recorded in the office of the recorder of deeds on November 2, 1906, William J. Link and wife agreed in writing to sell and convey to Joseph P. McKee, attorney in fact, a certain tract of land situate in Adams township, Butler county, containing about twenty-nine and one-fourth acres, for the price of $4,000. This agreement in substantially the same form and on the same conditions and between the same parties was repeated in a second contract in writing, bearing date of November 1, 1906, which was in like manner recorded on November 2, 1906. Joseph P. McKee, attorney in fact, was the second party to both these agreements, but it nowhere appears in either of said agreements for whom he was attorney in fact. Under the terms of these agreements the purchase money was to be paid and secured as follows: $600, on execution of the agreement, $500, on February 15, 1907, and a like amount on June 15, 1907, at which time a deed was to be delivered and a bond and mortgage on the premises to be given to secure the payment of the balance of the purchase money, to wit, $2,500, with interest, payable in two years thereafter.
    By written contract, bearing date December 4, 1906, Joseph P. McKee, aforesaid, together with John C. Dight and Harry J. Hays, the terre-tenants herein, entered into an agreement by which each was to have an interest in said contract of purchase and in said land, on the conditions therein set forth. The contract sets forth that they are “three parties interested in the agreement of even date herewith between William J. Link and Mary E. Link, his wife, and Joseph P. McKee, attorney-in-fact.” In the affidavit of defense filed in this case it is assumed that this has relations to the agreements of October 31, and November 1, and was intended to set forth the interest of the parties respectively in said former agreements. It is provided that each of the parties will be entitled on fulfillment of this agreement to the undivided one-third interest in the property on condition that each shall contribute a one-third part of said payments as they fall due and one-third of the interest and expenses, the other two to make their payments to McKee, who in turn agrees to make payment to Link. It is further agreed that a failure of any one of the three to pay his stipulated amount or any part thereof shall forfeit his interest in the property, which shall vest absolutely in the remaining parties as the case might be. Neither William J. Link nor his wife is a party to this agreement.
    The deed provided for in the former agreements was made on June 15, 1907, which was the time agreed upon, at which time also a bond and mortgage were given to William J. Link for the balance of the purchase money, $2,500, payable with interest in two' years thereafter. The deed was taken in the individual name of Joseph P. McKee and the mortgage was executed by him in the same way. The mortgage was assigned by W. J. Link to the Mars National Bank on March 12, 1908. On August 2, 1910, proceedings on scire facias for the collection of said debt and interest due thereon were begun by said bank against Joseph P. McKee, mortgagor, and John C. Dight and H. Jacob Hays, terre-tenants. No defense is made by McKee or Dight. The affidavit of defense which it is now contended is insufficient to prevent judgment was filed by Hays.
    It is nowhere alleged in the affidavit of defense ón file that the., balance due on said mortgage has been paid. The matters set out by way of defense relate to equities alleged to exist among the defendants, and especially it is claimed that the deed was taken and the mortgage given by McKee in his individual capacity and not as attorney in fact. Why this was done we do not know. It may be observed, however, that in the agreement of December 4, 1906, it is provided that any one of the three parties thereto who should fail to contribute his one-third portion or any part thereof to the joint enterprise should forfeit all his interest in the property, which should thereupon vest in the other party or parties “without any recourse at law.”
    January 2, 1912:
    The affiant nowhere avers in his affidavit of defense that he has made such payment. The only averment of payment by him is that he and the said John C. Dight “paid a considerable portion of the fifteen hundred dollars due and payable for and ón account of the said purchase money before the execution and delivery of the deed,” but he does not state how much this “considerable portion” was and how much of it was paid by himself. If the affiant has equities which have not been recognized, the clear basis on which they rest is not made apparent in his defense. Having been named as a terre-tenant in the pending scire facias the way is opened up to him to pay the admittedly unpaid debt and by so doing save the property in which he claims an interest and place himself in position to work out any equities he may have in a proper proceeding between himself and the other defendants. As the matter now stands we think the defense set up cannot be urged against the use plaintiff and that it is insufficient to prevent judgment. The rule for judgment is therefore made absolute and judgment is directed to be entered in favor of the use plaintiff in an amount to be liquidated by the prothonotary.

      Error assigned was in entering judgment for want of a sufficient affidavit of defense.

      Edward F. Hays, with him R. H. Jackson, for appellant.

      B. R. Williams, for appellee.
   Per CtrRiAH,

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


author: Mr. Chief Justice Fell,

text:
    Wachsmith, Appellant, v. Baltimore & Ohio Railroad Company.

      Negligence — Railroads—Imputed negligence — Automobiles—Passenger —Contributory negligence.

    In an action against a railroad company to recover damages for personal injuries, the case is for the jury where it appears that the owner and operator of an automobile was engaged to take a lunatic to an asylum; that the plaintiff and another attendant, who were in charge of the lunatic, were seated with him on the back seat; that they were traveling on a borough street which crossed the defendant company’s road at grade; that the buildings on either side of the street shut off any view of the railroad until a point eighteen or twenty feet from the tracks was reached, from which there was an unobstructed view for several hundred feet; that the driver, when twenty-five or thirty feet from the track, slackened the speed of the automobile almost to a full stop and then suddenly started it forward and ran onto the crossing, where the automobile was struck by a shifting engine of the approach of which no notice was given; and it further appears that the lunatic became excited as the speed of the automobile was slackened, and the plaintiff’s attention was partly directed to him, but he looked and listened for trains, and plaintiff testifies that he saw the driver of the automobile slacken its speed until it was almost at a standstill and he thought the driver was going to bring it to a full stop.
    Argued Oct. 11, 1911.
    Appeal, No. 92, Oct. T., 1911, by plaintiff, from judgment of C. P. Butler Co., March Term, 1910, No. 11, refusing to take off nonsuit in case of Edward Wachsmith v. Baltimore & Ohio Railroad Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Galbreath, P. J.
    On October 28, 1910, the.plaintiff and A. E. Yaehnig were seated in the back seat of an automobile with Edward Yaehnig, a lunatic under their charge, seated between them, when the automobile was struck by an engine of the defendant company.

      January 2, 1912:
    The court entered a judgment of nonsuit which it subsequently refused to take off. Plaintiff appealed.

      Error assigned was refusal to take off nonsuit.

      John R. Henninger, for appellant.

      R. P. Scott, for appellee
   Opinion by

Mr. Chief Justice Fell,

The owner and operator of an automobile was engaged to take a lunatic to an asylum. The plaintiff and another attendant, who were in charge of the lunatic, were seated with him on the back seat. They entered the borough of Butler on a street that crossed the defendant’s road at grade. The buildings on either side of the street shut off any view of the railroad until a point eighteen or twenty feet from the tracks was reached, from which there was an unobstructed view for several hundred feet. The driver, when twenty-five or thirty feet from the track, slackened the speed of the automobile almost to a full stop and then suddenly started it forward and ran onto1 the crossing. The automobile was struck by a shifting engine of the approach of which no notice was given. The lunatic became excited as the speed of the automobile was slackened, and the plaintiff’s attention was partly directed to him, but he looked and listened for trains. He testified that he saw the driver of the automobile slacken its speed until it was almost at a standstill and he thought he was going to bring it to a full stop. Both the plaintiff and the driver were familiar with the crossing.

The negligence of the driver was manifest, but his negligence cannot be imputed to the plaintiff. The plaintiff was not, however, relieved from the duty of care. If he voluntarily went into a danger that he could have avoided, or joined the driver in testing a danger, his own contributory negligence would prevent a recovery. This rule is established by a line of our cases extending from Crescent Twp. v. Anderson, 114 Pa. 643, to Walsh v. Railway Co., 232 Pa. 479. The plaintiff was not heedless but exercised care by looking and listening and giving such attention to his surroundings as could be spared from the man he had in charge. He did not rashly join the driver in testing a danger. He was vigilant in observing what the driver was doing and he saw that he was acting with care in reducing the speed so that apparently the automobile would come to a stop at a place near the tracks where a full view of them could be had. The driver’s actions indicated as plainly as words coidd have expressed them, that he intended to stop at the right place for stopping, and there was no occasion to request him to do what he was in the act of doing. Until he was within a few feet of the tracks, the driver had acted with care; when he imprudently decided to go on the crossing, it was too late for the plaintiff to check or warn him or to escape the danger.

The law governing the case was very clearly and accurately defined by the learned trial judge in his opinion discharging the rule to take off the nonsuit, but we are of opinion that he erred in its application to the facts developed at the trial, and that the question of contributory negligence was for the jury.

The judgment is reversed with a procedendo.


text:
    Yaehing, Appellant, v. Baltimore & Ohio Railroad Company.
    January 2, 1912:
    Argued Oct. 11, 1911.
    Appeal, No. 95, ’Oct.T., 1911, by plaintiff, from judgment of C. P. Butler Co., March Term, 1910, No. 7, refusing to take off nonsuit in case of Albert E. Yaehnig v. Baltimore & Ohio Railroad Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Galbreath, P. J.
    The facts appear in Wachsmith v. Baltimore & Ohio Railroad Co., ante, p. 465.
    The court entered a judgment of nonsuit which it subsequently refused to take off. Plaintiff appealed.

      Error assigned was refusal to take off nonsuit.
    ■ James E. Marshall, for appellant.

      R. P. Scott, for appellee.
   Per Curiam,

This case was tried in the common pleas and argued on appeal with Wachsmith v. Baltimore & Ohio Railroad Co., ante, p. 465. The facts are the same in both cases.

The judgment is reversed with a procedendo.


author: Mr. Justice Moschziskeb,

text:
    Berg, Appellant, v. Butler Savings & Trust Company.

      Equity — Findings of fact — Decree—Easements—Adverse possession.

    1. In a proceeding in equity to restrain the obstruction of an alleyway in which plaintiffs claimed an easement and to recover damages for alleged injuries to their property, a decree dismissing the bill will not be reversed where there is support for the court’s findings and conclusions that the defendant and his predecessors in title had used and occupied the narrow strip in controversy so as to obtain title thereto by adverse possession, except that during part of the statutory time the water conductors on the plaintiffs’ building had overhung the alley eight or nine inches; that under the facts the use of the land as an easement by the plaintiffs was presumed to have been permissive; that the proposed construction would not interfere with the overhanging portions of plaintiffs’ building; and that since the defendant before excavating below the foundations of the plaintiffs' building had notified the latter to protect the same, which they had undertaken to do; and since no negligence had been proved against the defendant, the plaintiffs were not entitled to recover damages.

      Rules — Supreme Court — Specifications of error.

    2. A specification of error which goes to the decree and complains of the refusal of an injunction, the failure to assess damages and the dismissal of the plaintiffs’ exceptions offends against Supreme Court rule 26, to the effect that each error relied upon must be specified by itself and that no specifications shall embrace more than one point, refer to more than one bill of exceptions or raise more than one distinct question.
    Argued Oct. 11, 1911.
    Appeal, No. 153, Oct. T., 1911,,
    by plaintiffs, from decree of C. P. Butler Co., June T., 1910, No. 4, in Equity, dismissing bill in suit of Mary E. Berg et al. v. The Butler Savings & Trust Company.
    Before Fell, C.' J., Brown, Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity to restrain the obstruction of an alleyway, and for damages. Before Galbreath, P. J.
    The facts appear by the opinion of the Supreme Court.

      January 2, 1912:

      Error assigned among others was the decree of the court.

      II. H. Goucher, with him F. J. Forquer, Murrin & Murrin and Stephen Cummings, for appellant.

      T. C. Campbell, with him W. D. Brandon and J. C. Brandon, for appellee.
   Opinion by

Mr. Justice Moschziskeb,

This was a proceeding in equity to restrain the obstruction of an alleyway in which the plaintiffs averred an easement, and to recover damages for alleged injuries to their property from the construction of a building upon the adjoining land of the defendant.

The plaintiffs’ property is situated in the borough of Butler at the southwest corner of High and Jefferson streets, containing forty feet in width on High street and extending eighty feet to the westward along Jefferson street. The defendant’s lot has the shape of an inverted “L,” the long arm of which bounds the plaintiffs’ property on the south and the short arm on the west. This lot can best be described as follows: Beginning at a point on the west side of High street forty feet south of Jeffer.son street, thence extending westward along a line at right angles to High street eighty feet to a point, thence northward along a line at right angles to the last mentioned line, forty feet to the south side of Jefferson street, thence westward along the said Jefferson street twenty-five feet to a point, thence southward along a line at right angles to Jefferson street sixty feet to a point, thence eastward along a line at right angles to the last mentioned line 105 feet to High street, and thence northward along the west line of High street twenty feet to the place of beginning. The plaintiffs, claimed that a strip of the last described lot five feet in width, bounding their property on the west, constituted “a narrow alley or court,” running into Jefferson street, in which they had an easement.

It appears from the findings of the court below that one McKee conveyed a block of land embracing, inter alia, both the properties in question to John M. Thompson; that the latter subdivided this large piece of land and made the following conveyances: (1) by deed dated November 11, 1871, to the defendant trust company, a lot on the west side of High street forty feet from Jefferson street, containing twenty feet in front and seventy-five feet in depth (being part of the defendant’s present property); (2) by deed dated January 3,1872, to one Duffy, a lot beginning at the corner of High and Jefferson streets, thence south along High street forty feet to a post, thence west eighty feet to “a narrow alley or court,” thence by said alley to Jefferson street, and thence along said Jefferson street east eighty feet to the place of beginning (being the property of the plaintiffs); (3) by deed dated April 4,1872, to one Pillow, a lot twenty feet in width immediately to the west of and adjoining the short arm of the “L” shaped lot of the defendant, described and referred to as “immediately west and adjoining John Kopp’s lot ... . the northeast corner of said lot herein conveyed being 105 feet from Main street;” that the various deeds in the line of title between Duffy and the plaintiffs make reference to “a narrow alley or court” in practically the same words contained in the deed to Duffy; that no deed of record or other conveyance from Thompson to John Kopp was produced for any portion of the piece of ground lying between the lot conveyed by deed “3” and those conveyed by deeds “1” and “2,” which piece of ground constitutes the balance of the defendant’s lot in excess of the. part conveyed by deed “1” above referred to; that the entire “Kopp” lot was claimed by defendant company under a sheriff’s deed made to one Lawall, dated January 15, 1878, it being therein described as “All the right, title, interest and claim of John Kopp of, in and to a lot of ground 20 by 60 feet, more or less, .... bounded on the north by east Jefferson street, east by National Bank building, south by Francis Baldauf and west by Henry Pillow; a large two-story frame house thereon,” and under a deed from the heirs of Lawall in which the description is practically the same; that in 1872 a three-story brick building covering the entire lot was erected on the property of plaintiffs, the said building having nine windows in the rear or west end thereof and three openings in the basement, together with a six-inch water conductor from the roof to the ground, connecting with a sewer leading from the defendant’s building through the “narrow alley or court” to Jefferson street; that in 1872 or 1873 there was erected on the Kopp lot a frame building twenty feet in width, leaving to the east thereof a strip of land; that this strip “designated in the deeds of conveyance to the plaintiffs and their predecessors . . .• . as a narrow alley or court .... was apparent on the ground and used by the plaintiffs and their predecessors in title for the purpose of obtaining light and air in the rooms in the west end of said building, conducting water from the roof and sewerage, from the date said building was constructed in 1872 down to a short time before the filing of this bill, when the defendant company entered thereon and commenced excavating for the purpose of erecting a building on said lot;” that the defendant has placed a stone foundation wall in said “alley or court” and has threatened to obstruct it with a building; that for a great part of the time between 1871 and the date of the filing of the bill a gate was erected and maintained across the so-called “narrow alley or court” by the owners and occupiers of the Kopp property (predecessors in title to the defendant), “which gate was erected at the entrance on Jefferson street, and from time to time the gate was kept locked by the defendant or by its predecessors in title;” that as early as the time of John Kopp (1865 or 1866) the ground constituting this narrow “alley or court” was used for the storage of marble by said Kopp in connection with a marble shop which he maintained on his lot; that the plaintiffs received due and ample notice from the defendant to underpin and protect their west wall and to disconnect their building from the sewer in said “alley or court,” — the former of which they endeavored to do and the latter of which they did; that “the plaintiffs have not shown negligence by the defendant in excavating for its building;” and that “there is no evidence in this case which would establish a claim by prescription in the plaintiffs to any land west of .... plaintiffs’ land. . . .”

The court below in its opinion states: “We do not know whether Thompson conveyed to the defendant’s predecessors in title the twenty-five feet between the Berg (plaintiffs) and the Pillow lot or not, or whether said deed antedated the deed to the predecessor in title of the plaintiffs’ land; But John Kopp was occupying the twenty-five feet of land when Thompson conveyed the land of the plaintiffs to their predecessor in title, Charles Duffy. If this land of defendant’s was conveyed by Thompson to Kopp before he ■ conveyed the plaintiffs’ land to Charles Duffy, and the conveyance called for the twenty-five feet, then the boundary of the Duffy land on the west by a narrow alley or court would not deprive Kopp of his title in this five-feet strip of land along the Duffy line. But we do not know how the land conveyed by Thompson to Kopp was described in the deed, but when in 1878 the sheriff sold it as the land of Kopp, the deed, as well as subsequent deeds, described it as being bounded on the east by the bank lot. The evidence does show, however, that John Kopp and his successors in title had used and occupied this narrow strip of land so as to obtain title thereto by adverse possession, ' except that during all the time since the erection of the present building upon the plaintiffs’ land, in about 1873, the water conductors on the building have overhung the alley eight or nine inches. . . . The title of the defendant in this case rests upon the statute of limitations, being held by the defendant under the possession of John Kopp. That possession, which includes what is called the alley west of the property of plaintiffs, dates back to a time anterior to the date of the inception of the title of John M. Thompson through whom plaintiffs claim title. It is presumed at this date that John Kopp, when he first went into possession, did so under a proper conveyance from the then owner of the property, and this is not shown to have been subject to said alley. Under these circumstances, the plaintiffs have no claim to the ground covered by the alleged alley unless they have acquired the same by adverse user. . . . Under the facts in this case the use of the land involved as an easement by the plaintiffs or their predecessors in the title is presumed to have been permissive and not adverse.” The court below concluded that the defendant had title to all the land in controversy; that the plaintiffs had no easement that would prevent the defendant from constructing its proposed building; that the construction of the building would not interfere with an overhanging cornice on the building of the plaintiffs; that since the defendant before excavating below the foundations of the plaintiffs’ building had notified the latter to protect the same, which they had undertaken to do, and since no negligence had been proved against the defendant, the plaintiffs were not entitled to recover damages; and that the bill should be dismissed. A decree was entered accordingly.

Forty of the specifications are faulty in failing to show that they raise matters excepted to and finally passed upon by the court below: New Cumberland Boro. v. Riverton Cons. Water Co., 232 Pa. 531; Chisholm v. Thompson, 233 Pa. 181. The remaining specification goes to the decree, and complains of the refusal of the injunction, the failure to assess damages, and the dismissal of the plaintiffs’ exceptions. This assignment offends against rule 26 to the effect that each error relied upon must ■be specified by itself and that no specification shall embrace more than one point, refer to more than one bill of exceptions, or raise more than one distinct question. While we will not undertake to treat each one of these defective specifications separately, in our investigations .and researches we have considered all the matters which they were intended to call to our attention, and we are not convinced of any reversible error; another mind might have drawn other inferences and determined some of the points involved differently, but there is support for all of the positions taken by the court below. It would have been better had the trial judge made separate and distinct findings of the essential facts upon which he based his determination that the defendant had title by adverse possession to the ground in controversy and that the use made thereof by the plaintiffs was permissive, but after reading all the testimony and considering the documentary evidence we cannot say that there were no sufficient proofs to sustain these conclusions.

The assignments of error are all dismissed and the decree of the court below is affirmed at the cost of the appellant.


text:
    Leonard, Appellant, v. Leister.

      Wills — Real estate — Fee simple title — Rule in Shelley’s case.

    Where a testatrix provides in her will “I further give and devise to my youngest son, and to his heirs,” a certain piece of real estate “to hold to him .... and to his heirs after him forever. I order that he has no power or right to sell or convey the aforesaid messuage or tenement of land away, as he has only a life estate in said messuage of land, as I will and order the aforesaid messuage of land to his heirs at his decease,” the son takes a fee simple title in the land on testatrix’s death under the rule in Shelley’s case.
    Argued Oct. 11, 1911.
    Appeal, No. 162, Oct. T., 1911, by plaintiffs, from judgment of C. P. Butler Co., Sept. T., 1909, No. 4, on verdict for defendants in case of W. E. Leonard et al. v. Frank Leister et al.
    Before Fell, C. J., Brown, Mestrezat, Potter, Stewart, and Moschzisker, JJ.
    Affirmed.
    Ejectment for land in Parker township.
    Galbreath, P. J., charged the jury as follows:
    • This is an action of ejectment brought by the plaintiffs against the defendants for the recovery of a tract of land situated in Parker township, this county. Ejectment is an action which is brought for the recovery of real estate which the plaintiffs claim they are entitled to possession of but which is in possession of some one else.
    In this case the plaintiffs claim that this land described in the pleadings and praecipe and writ in this case is their land, and not the land of the defendants. We learn from the evidence that back in 1863 this land belonged to a woman by the name of Ann Lee Leonard, and that she was residing on the land at that time; that in that year she made a will by which she disposed of the land in the following manner. I will read that portion of the will: “I further give and devise to my youngest son, Simeon T. Leonard, and to his heirs, all that messuage or tenement of land which I now reside on, lying and being in Parker township, Butler county, together with all my household estate whatsoever to hold to him, the said Simeon T. Leonard, and to his heirs after him, forever. I order that Simeon T. Leonard has no power or right to sell or convey the aforesaid messuage or tenement of land away as he has only a life estate in said messuage of land, as I will and order the aforesaid messuage of land to Simeon T. Leonard’s heirs at his, Simeon T. Leonard’s, decease.”
    That, gentlemen, is the provision of the will by which Arm Lee Leonard disposed of this land, and you will observe that she does so by giving it to her son, Simeon T. Leonard.
    On the part of plaintiffs in this case, it is claimed that under this will Simeon T. Leonard did not take an absolute estate or fee simple title to this land, but only took a life estate, and that after his death it would go to his children.
    On the other hand, defendants claim that under the language of the will and under the rules of law applicable that he, Simeon T. Leonard, took an absolute estate, a fee simple estate, in the land, which would entitle him to convey it away, and that it did not go to his children after his death, necessarily, and upon the construction to be given to this will depends what your verdict in the case should be. I may say that this case was tried in this court at a previous time and the verdict rendered at that time not being supported by the testimony, as the court thought, it was set aside and a new trial directed, but inasmuch as the case turns, as we think, necessarily upon the construction of this will, it will be a matter for the court to direct what the verdict of the jury should be, because the construction of the will is a matter for the court and not for the jury.
    Now the present plaintiffs are the children of Simeon T. Leonard, mentioned in this will. The evidence discloses that after the death of Ann Lee Leonard, her son, Simeon T. Leonard, mentioned in the will, went into possession of the land, and he conveyed it away for a valuable consideration to M. S. Adams, and made deed for it to Adams. The testimony also discloses that Adams conveyed the land and it has changed hands frequently, by sale or leases for oil and gas purposes, since the time it was sold to Adams, which was in 1871. So the children of Leonard have brought this suit claiming that it belongs to them, their position being that their father simply had a life estate in the land.
    There is a rule of law, gentlemen, which has come down to us through many generations, in fact, which we inherit from England, and is older than our commonwealth, and known as the rule in Shelley’s case, which you have heard mentioned by the counsel in the argument. Under ■that rule, where one by will devises land to another and to his heirs forever, or heirs after him, the rule of law steps in and says that gives to him an absolute title or fee simple in the land, even if in the same will he undertakes to modify that by directing how the land shall be enjoyed or that it shall not be conveyed away by the first taker. The rule of law is inexorable and says that the first taker will take a fee simple in the land and may convey it away.
    With that explanation I will call your attention to the language of the will: “I further give and devise to nay youngest son, Simeon T. Leonard, and to his heirs, all that messuage or tenement of land which I now reside on, lying and being in Parker township, Butler county, together with all my household estate whatsoever to hold to him, the said Simeon T. Leonard, and to his heirs after him forever. I order that Simeon T. Leonard has no power or right to sell or convey the aforesaid messuage or tenement of land away, as he has only a life estate, in said messuage of land, as I will and order the aforesaid messuage of land to Simeon T. Leonard’s heirs at his, Simeon T. Leonard’s, decease.”
    On the part of plaintiffs it is claimed that he meant by his heirs his children, and that the court should so construe it here; that by the subsequent language that at his death it should go to his heirs, they say by that fact that it is evident he meant his children, and especially in the light of other reference made in the same will, that certain children are his heirs.
    Now, gentlemen, we have considered this matter and considered it quite at length on the former trial of this case to which we have referred, and we have come to the conclusion that Simeon T. Leonard, under the will and under the rule of law to which wé have referred, took a fee simple title to this land. To show that it meant otherwise than heirs generally when she used the language, it would have to appear, as the Supreme Court has said, unequivocally and without mistake, and, as the same court has said, the rule of law is inexorable and is applied arbitrarily and inexorably where the language of the will bears it out. The wisdom of the rule has often been doubted and called in question, and sometimes works hardship, but it has become a rule of property and recognized as a rule of law for so many generations that if now set aside it would result in upsetting and turning over a great many titles in the commonwealth, and for that reason whatever hardships follow its application, in the •view of the legal fraternity, would be more than offset by the hardship consequent on the overturning of titles, and so the courts have held to the rule through all these years, and, as I have said, in the judgment of the court in the case we are trying, we believe that the weight of the authorities is in favor of a construction of this will which will allow a fee simple title to vest in Simeon T. Leonard and not simply a life estate, to go to his children after his death, and inasmuch as Leonard treated it as a fee simple in himself by conveying it to Adams, who, in turn, conveyed to others who have been holding the land for some forty years, we say to you, gentlemen, that Leonard did take a fee simple title in the land, and, having conveyed it away to the defendants in the case, that their title cannot now be taken from them in this action, and under all the evidence in the case and law applicable it is your duty to render a verdict in favor of the defendants, and that you may do without leaving the box, if you so say. Do you all so say?
    The plaintiffs have asked for binding instructions in their favor. That request for binding instructions in favor of the plaintiffs is refused.
    Let the verdict be recorded in favor of the defendants.
    Verdict and judgment for defendants, plaintiffs appealed.

      Error assigned was direction of verdict for defendants.

      R. W. Irwin, with him James A. Wiley and Wilson & McQuistion, for appellants.
    The word “heirs” meant children: Miller v. Lynn, 7 Pa. 443; Perrin v. Blake, 4 Burr. 2579; Haverstick’s App., 103 Pa. 394; Wettach v. Horn, 201 Pa. 201; Sheets’ Est., 52 Pa. 257; Urich v. Merkel, 81 Pa. 332.

      T. C. Campbell, with him A. E. Middleton and L. M. Wise, for appellees.
    The word “heirs” when used in a will is to be understood in its legal or technical sense, unless there be something in the context showing that the testator meant it to be understood in its popular sense: Beck’s Est., 225 Pa. 578; Seybert v. Hibbert, 5 Pa. Superior Ct. 537; Moyer’s Est., 12 Pa. C. C. Rep. 137.
    January 2, 1912:
    The will of Mrs. Leonard contains no evidence of an intention to limit the estate of Simeon, or tending to show that the word “ heirs” meant children: Criswell’s App., 41 Pa. 288; Bassett v. Hawk, 118 Pa. 94; Grimes v. Shirk, 169 Pa. 74; Reutter v. McCall, 192 Pa. 77; Brinton v. Martin, 197 Pa. 615.
    Where a vested estate is distinctly given, and there are annexed to it conditions, limitations, powers, trusts or other restraints relative to its use, management or disposal that are not allowed by law, it is these restraints, and the estates limited on them, that are void, and not the principal or vested estate: Phila. v. Girard, 45 Pa. 9; Walker v. Vincent, 19 Pa. 369; Kaufman v. Burgert, 195 Pa. 274.
    A fee is taken by the first taker, notwithstanding a life estate is given him and he is forbidden to alienate: Reifsnyder v. Hunter, 19 Pa. 41; Naglee’s App., 33 Pa. 89; Curtis v. Longstreth, 44 Pa. 297; Kepple’s App., 53 Pa. 211; Criswell’s App., 41 Pa. 288; Doebler’s App., 64 Pa. 9; Sheeley v. Neidhammer, 182 Pa. 163.
   Per Curiam,

The facts are very clearly stated in the charge of the learned judge of the common pleas. In the opinion of the majority of the court there was no error in directing a verdict for the defendants.

The judgment is affirmed.