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

text:
    Llewellyn, Appellant, v. Cauffiel.

      Equity — Equity practice — Evidence—Admission of evidence — Disregarding evidence — Harmless error.

    A decree on a bill in equity will not be reversed on the ground that evidence was erroneously admitted, where it appears that such evidence was entirely eliminated from the case by the trial judge in arriving at his conclusion.

      Equity — Injunction—Right of way — Possession of land.

    On a bill in equity to restrain the erection of a trestle on a triangular piece of land on the ground that the erection of the trestle would interfere with the mining operations of the plaintiff, the court found as a fact that the plaintiffs were entitled only to a right of way over the land, and that the erection of the trestle did not interfere with the use of such right of way. Held, that it was proper to dismiss the bill.
    In such a case the right of the plaintiffs to an injunction does not depend on whether the defendant has title to the land but whether the plaintiffs have the title or the right to the possession of it. If they have neither, except as to a right of way, they cannot contest the defendant’s right to occupy any other part of the premises.
    Elkin, J., dissents.
    Argued March 7, 1906.
    Appeal, No. 21, Oct. T., 1906, by plaintiffs, from decree of C. P. Cambria Co., Sept. T., 1905, No. 7, dismissing bill in equity in case of D. J. Llewellyn and J. C. Yeagley, trading as Llewellyn & Yeagley, v. Daniel Cauffiel.
    Before Mitchell, C. J., Fell, Brown, Mesteezat and Elkin, JJ.
    Affirmed.
    Bill in equity for an injunction.
    The averments of the bill and answer and the facts of the case are set forth in the opinion of the Supreme Court.

      _Errors assigned were (1-12) various rulings on evidence sufficiently referred to and grouped in the opinion of the Supreme Court, and (13) decree dismissing the bill.

      H. W. Storey, with him Robert S. Murphy, for appellant.
    Where land purchased is devoted by the owners to a particular use, which use entered into the consideration of the contract by which it was created, one of the tenants in common cannot defeat the joint use by a writ of partition without the consent of the cotenants: Latshaw’s Appeal, 122 Pa. 142.
    April 16, 1906 :
    The plaintiffs had a right to have their road kept free from obstructions, and Cauffiel never acquired the right that we know of by which he could erect a pier in the center of the road and compel the plaintiffs to make another to suit his convenience.

      F. P. Martin, with him Forest Percy Allen Pose, for appellee.
    If there had been any question as to the location of this right of way, even granting that it extended, not from the tipple to the mines, but across this triangular piece of land, the intention of the parties to the articles of copartnership with respect to its location is conclusively established by the use to which the grant thereof was put by the partnership a.nd the acquiescence therein by the owner of the land, Jane C. Yeagley: Kraut’s Appeal, 71 Pa. 64; Stove Company v. Evans, 9 Pa. Superior Ct. 597.
    Despite the fact that this copartnership firm had several years yet to run, Jane C. Yeagley, one of the members thereof, had a right to dissolve it before the expiration of the term : Mason v. Connell, 1 Wharton, 881; Slemmer’s Appeal, 58 Pa. 168. And having the right to dissolve the partnership before the end of the term, Mrs. Jane C. Yeagley accomplished that end by a sale of her interest therein to the defendant below: Horton’s Appeal, 13 Pa. 67.
   Opinion by

Mr. Justice Mestrezat,

On April 22, 1905, the plaintiffs filed this bill against the defendant, averring substantially as follows : That by written articles, dated January 28,1901, the plaintiffs formed a copartnership for the purpose of leasing, mining and shipping bituminous coal from their coal plant, situated in the seventeenth ward of the city of Johnstown; that the partnership property consists of coal in place, mine tracks to and on the coal tipple, mine cars, the necessary ground appurtenant thereto for carrying on the business, and a siding for the loading of cars on the Johnstown & Stonyereek Railroad, said land having a frontage of about 200 feet on the railroad and varying in width from fifty to eighty-one feet upon which the coal tipple is erected; that they have made a road for teams for the purpose of hauling supplies and materials to the coal tipple and scale office which passes over said ground, and is the only way to deliver the same; that all of the said property, appliances, road, siding and ground above described are absolutely necessary for the operation of the plant; that defendant has entered on the land and dug three trenches and constructed masonry for a coal tipple in one of them, with the intention of constructing masonry in the two other trenches for the purpose of erecting a coal tipple on the land so that he can load cars standing on the railroad siding which is the property of the plaintiffs ; that if defendant is permitted to erect his coal tipple on the land it would absolutely destroy the property of the plaintiffs, inasmuch as it would be impossible to load cars on their siding, and that it would also destroy the wagon road and the proposed use of the property by the plaintiffs. The bill prayed for an injunction.

The defendant in his answer admits the plaintiffs’ partnership, and that its property consists of certain interests in coal, mine tracks to and on the coal tipple, mine cars, certain ground appurtenant to the said coal tipple, a siding for the loading of cars on the Johnstown & Stonyereek Railroad; avers that the land on which the coal tipple is erected has a frontage of 200 feet on the railroad; denies that the width of the land upon which the coal tipple is erected varies from fifty to eighty-one feet, and avers that it varies from a point to eighty-one feet; denies that the partnership possesses a right of way for teams over the land for the purpose of hauling supplies and materials to the coal tipple and scale office, and avers that the only right of way it enjoys thereover is for the purpose of affording it access to its coal tipple from a coal mine formerly operated by it; avers that any wagon road constructed by Llewellyn or the partnership over the land is not the only means of hauling or delivering supplies and materials to the plaintiffs’ coal tipple and scale office ; denies that such road and all. the ground mentioned in the bill are absolutely necessary for the operation of plaintiffs’ plant; denies that the plaintiffs are the sole owners of the land; avers that in 1905 he purchased the land of Mrs. J. C. Yeagley and was given possession of it; admits that he entered upon it, dug trenches and constructed masonry for the purpose of erecting a coal tipple on the land, and alleges that his structures will be located not less than twenty feet from the plaintiffs’ right of way over the land, and will be constructed in such manner as not to interfere with the plaintiffs’ tipple, side track or any road which the plaintiffs have located upon the land; denies that he intends using the plaintiffs’ siding; avers that he intends to erect his coal tipple on the land in such a way as will not interfere with the plaintiffs’ rights thereon.

A preliminary injunction was granted by the court. Subsequently, on motion to continue the injunction, testimony was taken, and, after argument by counsel, the injunction was dissolved and the bill was dismissed. The learned judge found, inter alia, as follows: u At the time of the formation of the partnership of Llewellyn & Yeagley, J. C. Yeagley was the owner in fee of certain lands adjoining the mine property. Upon, a portion of this land the tipple was erected, and over it was conveyed in mine cars the product of the mine to a siding on the Johnstown & Stonycreek Railroad. In addition to this way of reaching the mine there was a footpath which had been some years previously, and later occasionally, used by teams and wagons going to and from plaintiffs’ mine. This wagon way was at one time laid out and constructed so far as it was necessary for that use, but at the time of the entry complained of it was grown up with shrubs, weeds and bushes, in so much that its boundaries and location were somewhat uncertain, and caused the witnesses to slightly differ as to its location. This way was a well defined way when the partnership was formed, and, together with the way used for reaching the railroad siding, constituted the only ways used in connection with the operation of this mine. Against the objection of the defendant we received testimony relating to both ways, instead of confining it to the right of way by which the railroad was reached, as contended for by the defendant. From all of the testimony in the case it was clear to the court that the defendant had not erected, nor was there in progress of erection by him, nor any threatened erection by him upon the land of Mrs. J. C. Yeagley, over which land the firm of Llewellyn & Yeagley claimed the right of way, which in anywise interfered with any right of way now in use, heretofore used, or hereafter contemplated, or which would be in anywise necessary for the operation of the mine of Llewellyn & Yeagley.”

It appears from the plaintiffs’ evidence that in 1891 Benjamin F. Yeagley was the owner of several tracts of land in the seventeeth ward of the city of Johnstown. He and Llewellyn in that year formed a partnership and engaged in the mining and selling of bituminous coal at that place. This partnership continued until 1895 when Yeagley died and devised his real estate and his interest in the partnership to his son, Henry J. Yeagley, who, a few months thereafter, conveyed the real estate to his mother, Mrs. J. C. Yeagley, one of the plaintiffs. The plaintiffs also offered in evidence the articles of agreement, dated January 28,1901, by which Llewellyn and Mrs. Yeagley entered into a copartnership for the purpose of leasing, mining and selling bituminous coal for ten years, in which agreement it is set forth that Llewellyn had contributed “ as stock certain leaseholds or right to mine and take out coal, .... one gondola car, a one-half interest in seven mine cars, three mules and harness .... amounting in the whole to $10,000 ; ” and Mrs. Yeagley had contributed “ as stock, railroads, sidings, two gondola cars, mine cars, scales, tipples, buildings, and a one-half interest in three mules, harness, etc., and a right of way over land to mine .... amounting in the whole to the sum of $10,000.” Each party sells and transfers his property to the partnership.

It, therefore, appears that not only have the plaintiffs failed to sustain their averment in the bill that they own the triangular piece of land on which the defendant proposes to erect his trestle and coal tipple, but that their own evidence conclusively shows that the title to the land in question was never in Llewellyn or his firm, but is now, and has been since 1895, in Mrs. J. C. Yeagley. By the articles of copartnership, she granted to the firm as part of her contribution to the stock “ a right of way over land to mine.” That is the only interest the partnership has in the Yeagley lands. It would 'have been a fair interpretation of .this grant if the learned judge had held that it was a right of way from the tipple at the railroad to the mouth of the mine; that would have given full effect to the language of the grant. But as will be observed from the quotaation from the court’s opinion, the learned judge did not confine the plaintiffs to a right of way from the tipple to the mouth of the drift but, against the contention of the defendant, held that the plaintiffs might show that at the formation of the partnership there was a way used by teams across the piece of ground in controversy leading to the plaintiffs’ mine.^ This was giving the broadest construction to the grant in the partnership contract and affording the plaintiffs an opportunity to establish the only right which, under the testimony, they could legally have on the disputed premises.

The single question left for determination was whether the defendant in the erection of bis trestle and tipple would obstruct the plaintiffs’ right of way over the Yeagley land. The court found, as we have seen, that the erection of the tipple would not “ interfere with any right of way now in use, heretofore used, or hereafter contemplated, or which would be in anywise necessary for the operation of the mine of Llewellyn & Yeagley.” We have carefully read all the testimony in the case and it amply sustains this finding. In fact, a contrary finding would have been against the great weight of the disinterested testimony produced by the parties at the hearing. While Llewellyn in his testimony strenuously maintains that the structure proposed to be erected by the defendant would ruin his firm’s business, it was clearly apparent that he was mistaken, and that the defendant’s trestle and tipple would not prejudice or interfere with the delivery of coal to the railroad at the plaintiffs’ tipple.

There are fourteen assignments of error, but in considering the questions raised, we may group them as the plaintiffs’ counsel have done. The first four allege error in admitting testimony to show the negotiations between the defendant and Mrs. Yeagley’s agent for the purchase of the real estate in question and her interest in the partnership. If it be conceded that this testimony was erroneously admitted, it did the plaintiffs no harm as it was entirely eliminated from the case by the learned judge in arriving at his conclusion. In the opinion entering the decree, the court says : “ The defendant was not treated as having any rights by virtue of his alleged purchase from J. C. Yeagley of an interest in the partnership, but in the decision of the cause was treated as though he were a stranger to the parties plaintiffs.” The other assignments may be considered together as they allege substantially that the “ court erred in limiting the issue and the testimony to the obstruction of the wagon road, when the bill averred that the coal in place, mine tracks to and on to the tipple, mine cars, and the necessary ground appurtenant thereto were absolutely necessary for the operation of the plant, and that if defendant was permitted to erect his trestle over the said property it would destroy it.” The supposed destruction of the plant would result, as stated by plaintiffs’ counsel, because (a) it would be impossible to load cars on their siding, (6) it would destroy their wagon road, and (e) it would destroy their proposed use of the entire property. The defendant avers that he does not intend to use the plaintiffs’ siding and, as conceded by their counsel, that is no longer involved in the controversy. As to the other two reasons assigned by plaintiffs, the court did not “ limit the issue and the testimony,” but heard the testimony of both parties and, on the plaintiffs’ testimony, made a distinct finding that “ it clearly appears from plaintiffs’ evidence that no right of way belonging to complainants over the land of J. C. Yeagley is being obstructed, or that there is any intention on the part of the defendant to obstruct in any manner any right of way which the complainants under the partnership agreement ever acquired, and no interference with the operation or contemplated operation of the mine property of Llewellyn & Yeagley is threatened.” But if it be conceded that the whole of the triangular piece of ground was necessary for carrying on the plaintiffs’ coal business, it would not have warranted the court in finding that they were entitled to the possession of the land. Their own testimony shows the title in Mrs. Yeagley and that the only right they possess on the premises is “ a right of wray to the mine.” This was granted to the partnership by Mrs. Yeagley as part of the stock of the firm. The erased portion of the partnership agreement shows that Mrs. Yeagley declined to grant the firm any other or further interest in the premises and limited its interest to a right of way over her land. This agreement was in writing and under seal and the only authority, so far as any competent evidence discloses, which gives the plaintiffs a right to occupy any part of the triangular piece of ground. The duty of the judge, therefore, in determining the right of the plaintiffs to an injunction was to ascertain from the evidence the location of the right of way granted in the partnership agreement and whether the erection of the defendant’s trestle and tipple would obstruct or interfere with it. If there was no obstruction, it follows that there was no right to an injunction. The right of the plaintiffs to an injunction does not depend on whether the defendant has title to the land- but whether the plaintiffs have the title or the right to the possession of it. If they have neither, except as to the right of way, as their own evidence discloses, they cannot contest the defendant’s right to occupy any other part of the premises.

The learned judge of the court below disposed of the application for an injunction as the facts and the law clearly require, and, therefore his decree must be sustained.

Decree affirmed.

Mr. Justice Elkin,

dissenting :

The defendant has no title to the triangular piece of land on which he is attempting by force to construct a tramway and build a coal tipple. He does not have either the possession or the right of possession. He must, therefore, be regarded as a trespasser in this proceeding. The learned court below in .entering the decree dismissing the bill said that the defendant was regarded as a stranger having no rights under his alleged purchase of the property in dispute. It was conceded at the argument that defendant was not now asserting title under the so-called agreement to purchase, and therefore is without legal right to justify his acts of trespass. We must accept this as an established fact in the consideration of the case; indeed, no other conclusion could be reached under the testimony, because the only evidence of title offered by defendant was the receipt signed by Joseph H. Berlin, as attorney in fact for Mrs. Yeagley. The receipt does not describe any land, is silent on the subject of possession, and the party who signed it testified that it had been altered by the interlineation of the words “ as per agreement ” after he had signed it. No evidence was introduced that the self-styled attorney in fact had any authority to sell the interest of Mrs. Yeagley in the partnership or land, and this leaves the defendant without the shadow of legal right to support his contention. Here, then, is a case in which, the defendant has undertaken to invade and take possession of a property by constructing permanent obstructions upon it, without any legal right, title or interest in the same. He did not have title to the land, and since he never had possession in fact, nor the right of possession in law, he is a trespasser ab initio. Under somewhat similar circumstances this court has held that where a person goes upon the property of another and wrongfully builds upon it, he is a trespasser and will be compelled by injunction to remove the wrongful construction: Bright v. Allan, 203 Pa. 394. Our courts have frequently held that one who attempts to enforce by violence his claim of ownership of land in the possession of another, will be enjoined by a court of equity until he appeals to a proper tribunal for the adjudication of his rights. If a person under a claim of ownership will be restrained from disturbing one in actual possession until the legal rights are established by an action at law, the present plaintiffs have a much stronger equity against a trespasser without any title. This principle is clearly recognized in Pomeroy’s Equity Jurisprudence, vol. 5, sec. 502, wherein it is said: “ Hence a true regard for the interests of both parties requires that a temporary injunction should issue to preserve the property in its present condition till the ownership is decided. . . . The courts are largely guided in forming their conclusion by balancing these possible wrongs against each other, and acting favorably toward whichever party will be the least injured by unfavorable action. . . .” This doctrine is sound even as between different persons asserting title under a claim of right to the disputed land. The present case is much stronger because the defendant has no title to the land, and therefore in balancing the wrongs the equities are all with the plaintiffs here.

It was necessary for the plaintiffs to establish one of two things in order to sustain their bill and be entitled to the injunction. First, that they were the owners of the title, or, second, that they were in possession under a claim of right. In either event, they were entitled to the injunction. It is averred in the bill that the title to the piece of land in dispute was in the partnership. This fact is not only averred in the bill, but at the hearing plaintiffs’ counsel offered to prove by Mrs. Yeagley, in whose name the legal title stood, what real estate belonged to the partnership, with the evident intention of showing that she held the title in trust for partnership purposes, but the court refused to admit the testimony. This was clear error, because in equity it is immaterial in whose name the legal title stands, if the intent is to convey to the partnership. The possessor of such legal title will be deemed to hold the property in trust for partnership purposes: 22 Am. & Eng. Ency. of Law (2d. ed.), 93. There has been and there can be no sufficient reason given for the exclusion of the testimony of Mrs. Yeagley in this respect. It is said that the purpose of the question was not broad enough. But this is technical in the extreme, and without merit in view of the ground upon which the court excluded the testimony. It was excluded on the sole ground that the partnership agreement of 1901 was conclusive of the rights of the partners, and that no title to the real estate could be shown unless therein specified. Certainly, this cannot be the rule. The partnership agreement on its face and the evidence offered at the trial show that at the time the agreement was executed there was a dispute between the partners about the title to the land. Mrs. Yeagley claimed it belonged to her individually. Llewellyn insisted that it belonged to the partnership under an arrangement made with her husband ten or twelve years prior thereto. He refused to sign the agreement until the provision relating to the title to the disputed land was stricken out. It was stricken out before execution, and we must conclude from this fact alone that nothing was settled by that agreement so far as the title to the disputed land was involved. It is contended, however, that 'because there had been inserted in the agreement the phrase “ and a right of way over land to mine ” it necessarily follows that the title to the land was in Mrs. Yeagley, and only the right of way over the same was granted to the partnership. The court below and here rule the case on this ground. In my opinion, this is balancing the plaintiffs on a too narrow edge to be in keeping with the spirit and purpose of a court of equity. Even if we concede that under the agreement the partnership acquired no title to the land because of the phrase used, it certainly cannot be contended that defendant acquired any right in the land by reason of this provision. Just what was meant by it does not clearly appear. Its meaning is ambiguous, and testimony should have been admitted to explain it so as to show what the rights of the partners were. But no matter what it means, nor what the disputes between the partners were in reference to the ownership of the land, how can a stranger to the title, a trespasser upon the land, raise the question in a collateral equitable proceeding in which these issues were not directly involved? It must not be overlooked that the partners were not asking the court to pass upon their rights in the partnership property. So far as the record shows the partners were standing together in resisting the encroachments of the defendant. As against a trespasser, the bill should be sustained upon the testimony of Llewellyn alone, lie testified in positive terms that the land belonged to the partnership, and explained in detail the arrangement by which he put in his coal leases, and the husband of Mrs. Yeagley put in the land as part of the partnership assets. The partnership had been in existence ten or eleven years before the written agreement was entered into. The tipple and tramway had been constructed and in use upon the land by the partnership during all these years. These facts are sufficient to my mind to move a court of equity to restrain the attempted invasion by defendant.

Entirely independent, however, of the question of title, the decree should be reversed on another ground. The uncontroverted testimony shows that the possession of the land in dispute had been in the partnership for upwards of fourteen years prior to the time defendant attempted to violently seize it. There can be no question that a person in possession of land, either as an owner, a tenant, or under a claim of right, can in equity restrain a trespasser from disturbing that possession until the legal rights are properly determined. This is a familiar rule, and will not be questioned. Possession is good evidence of title against all persons except the owner. It is prima facie .evidence of title against all persons not having a better right. It constitutes, or rather answers, for a right of property: Com. v. Finn, 108 Mass. 466; Rogers v. Bates, 1 Mich. N. P. 93. That the plaintiffs were in possession is not denied. What answer can there be when a court of equity is asked to restrain a trespasser from violently disturbing that possession? To my mind, but one, issue the restraining order.

I would reverse the decree, reinstate the bill, continue the injunction, and preserve the status quo until the parties are fully heard and their legal rights determined by due process of law.


source: Caselaw Access Project

author: Mr. Justice Elkin,

license: Public Domain

text:
    Welch v. Carlucci Stone Company, Appellant.

      Negligence — Master and servant — Place of employment — Quarry.
    While it is the duty of the employer to provide an employee with a reasonably safe place to work, it does not follow that the question of what constitutes a safe place must always be submitted to a jury. Negligence is the want of care under the circumstances, but there can be no recovery of damages in any case unless there has been a breach of legal duty, and if there has been no breach of a legal duty, it is the province of the court to say so.
    Where an owner of a quarry sets an employee to work to clear off a bank of earth from the top of a ledge of stone, and the workman comes upon a large loose stone imbedded in the earth, but not connected with the ledge, and no part of the quarry proper, and this stone becomes dislocated not through any operation of the quarry, but from the digging under it, and slides suddenly upon the workman, who is thereby injured, the latter cannot recover from the owner of the quarry for the injuries which he has sustained.
    Argued March 13, 1906.
    Appeal, No. 42, Jan. T., 1906, by defendant, from judgment of C. P. Susquehanna Co., Aug. T., 1903, No. 242, on verdict for plaintiff in case of Leroy T, Welch v. Carlucci Stone Co.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Searle, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff: for $15,000. Defendant appealed.

      Error assigned amongst others was in overruling motion for judgment for defendant non obstante veredicto.

      Edward W. Thayer and T. J. Davies, for appellant.
    The court had no right to permit a jury to guess or conjecture from mere possibilities, in order to find negligence on part of the defendant, without proof of actual facts to support them: Phila., etc., R. R. Co. v. Schertle, 97 Pa. 450; R. R. Co. v. Hughes, 119 Pa. 301; Huey v. Gahlenbeck, 121 Pa. 238; Reese v. Clark, 146 Pa. 465 ; Durst v. Carnegie Steel Co., 173 Pa. 162; Higgins v. Fanning, 195 Pa. 599; Alexander y. Penna. Water Co., 201 Pa. 252; Smith y. Traction Co., 202 Pa. 54; Price y. R. R. Co., 202 Pa. 176; Ault v. Cowan, 20 Pa. Superior Ct. 616; Cracraft v. Bessemer Limestone Co., 210 Pa. 15; Meixner v. Phila. Brewing Co., 210 Pa. 597; Mc-Kinzie v. Philadelphia, 8 Pa. C. C. Rep. 293.
    The word “safe ” in connection with cases of negligence has more than its literal meaning: Titus v. Bradford, etc., R. R. Co., 136 Pa. 618; Ross v. Walker, 139 Pa. 42; Dooner v. D. & H. Canal Co., 171 Pa. 581.
    The servant assumes the risk of all patent defects or “ seen dangers ” in the course of his employment, and this whether the same existed when the employment commenced or otherwise : O’Donnell v. R. R. Co., 59 Pa. 239; Brossman v. R. R. Co., 113 Pa. 490; Simmons v. Traction Co., 207 Pa. 589; Sykes v. Packer, 99 Pa. 465 ; Miner v. Connecticut R. R. Co., 153 Mass. 398 (26 N. E. Repr. 994) ; Sheetram v. Trexler Stave, etc., Co., 13 Pa. Superior Ct. 219.
    When danger arises only as work progresses and the accident be caused by the work done the plaintiff cannot recover : Durst v. Steel Company, 173 Pa. 162; Fulford v. R. R. Co., 185 Pa. 329 ; Bellows v. Canal & R. R. Co., 157 Pa. 51; Fletcher v. Traction Company, 190 Pa. 117; Masterson v. Eldridge, 208 Pa. 242; O’Driscoll v. Faxon, 156 Mass. 527 (31 N. E. Repr. 685).

      John M. Kelley and Paul J. Sherwood, for appellee.
    The plaintiff was entitled to a safe place to work: Lynch v. Allyn, 160 Mass. 248 (35 N. E. Repr. 550); Rogers v. Overton, 87 Ind. 410 ; Indiana Car Co. v. Parker, 100 Ind. 181; Lebbering v. Struthers, 157 Pa. 312 ; Levy v. Rosenblatt, 21 Pa. Superior Ct. 543; Welch v. Butz, 202 Pa. 59; Brislin v. Coal Co., 20 Pa. Superior Ct. 234; Ricks v. Flynn, 196 Pa. 263; Buck v. Zinc Co., 204 Pa. 132; Wagner v. Chemical Co., 147 Pa. 475.
    April 16, 1906:
   Opinion by

Mr. Justice Elkin,

The appellant owns and operates, a stone quarry. The appellee was employed as a laborer to do work in and about the same. The quarry consisted of a ledge of blue stone rock which was covered with earth twelve to fifteen feet deep. It had been worked for some years, and as a result a considerable portion of the ledge and earth had been cut away from the face of the hill. The appellee, thirty-eight years of age, was a blacksmith, and had worked on a farm. He was not familiar with stone quarries, but was put to work as a laborer, doing such things as an inexperienced man could do. On the morning of the accident he and a fellow laborer were working on the top of the ledge of rock at the base of a bank of earth with which it was covered. It was their duty to dig the earth loose with a pick, then shovel it in a box, which, when filled, was carried away by a derrick. The bank was composed of earth, loose bowlders and stones. There was nothing peculiar or dangerous about its formation. In the bank in front of them about shoulder high the end of a stone was partially exposed. It was imbedded in the bank, but the part exposed was in plain view of the laborers. This loose stone was not connected with the ledge and was no part of the quarry proper. The two laborers, working together, had excavated a considerable amount of earth by digging under it, when, without warning, and while appellee was stooping down, the stone slid down upon him, by reason of which he received injuries for which he claims damages in this action. After the stone was removed it was discovered that it was about three feet wide, four feet long, three to four inches thick, and weighed from 400 to 600 pounds. A small amount of earth in which the stone was imbedded fell with it. The appellee bases his right to recover principally on the ground that it was the duty of appellant to provide him a safe place to work, which duty it is alleged had b'een neglected in this case. While it is the duty of an employer to provide an employee with a reasonably safe place to work, it does not follow that the question of what constitutes a safe place must always be submitted to a jury. It is true, negligence is the want of care under the circumstances, but there can be no recovery of damages in any case unless there has been a breach of legal duty, and if there has been no breach of a legal duty, it is the province of the court to say so.

The first question to be considered is, what duty did appellant owe appellee in the matter of providing a safe place to work ? The words “safe place ” in such cases have no fixed and definite meaning. In determining what is a safe place, much depends upon the facts of each particular case. In some instances it is a question for the court, and in others for the jury. An employer cannot be convicted of negligencein not providing a safe place to work where, from the very nature of the employment, the risks and dangers are as apparent to the employee as to the employer. The top of a twenty-story building in a sense may be considered an unsafe place to work, but it will not be seriously contended that if a mechanic should be injured by falling from the top of such a building without any fault of his employer, he could recover damages for injuries received because of the allegation that he was put to work in an unsafe place. So, too, a brakeman on a freight train, whose duty calls him to travel back and forth on the top of the cars, and while so doing receives an injury through no fault of the railroad company, cannot recover damages on the ground that he was provided with an unsafe place in which to work. In the ease at bar the appellee desired to secure work at the quarry, which work was more or less dangerous, but the dangers were open and obvious, and as well known to the employee as to the employer. It was the business of the appellant company to strip off the bank and blast out the rock for commercial purposes. It is a useful and proper business. It was necessary to strip off the bank above the ledge in order to quarry the rock. Certainly a jury cannot be permitted to say that appellant was negligent because appellee was put to work removing the earth from above the ledge. He stood upon the solid ledge of rock, and in front of him was a bank of earth with nothing unusual or dangerous about it. These were natural conditions, and if there were any dangers they were obvious to any person with ordinary intelligence. It is argued, however, that appellant had done, or permitted to be done, three things which made it an unsafe place. First, it had caused to be drilled eight feet back of the face of the bank down through the earth five or six holes about three inches in diameter, about which appellee was not informed. Second, that at a point estimated to be seventy-five to 100 feet from the place of accident there had been drilled in the ledge some holes in which dynamite had been placed and exploded for the purpose of blasting the rock. Third, that the quarry had not been worked in a careful and proper manner, because it was alleged the bank immediately over the ledge had been undermined to some extent and weakened. The case was tried in the court below upon the theory that these were hidden and latent dangers unknown to appellee, and that the injury had resulted by reason of the bank being thus weakened. Expert testimony was admitted, the purpose and effect of which was to show that the bank was, or could have been, affected by these things and the accident might have resulted therefrom. This error permeated the whole trial, for the reason that the testimony of the experts did not fit the facts of the case. The accident did not occur because the bank was weakened. The bank did not fall. It remained the same after as before the accident, with the exception of the loose stone and some earth attached to it which alone fell. The drilled holes in the bank of earth, the Knox shots in the ledge of rock, and the so-called undermining of the bank, were not the direct or proximate cause of the accident, and therefore the expert testimony is without value in determining the question of the alleged negligence. At a trial for homicide in a proper case it would be competent to show that at the time the crime was committed a shot was fired and defendant was seen with a loaded gun in his hands pointed at a vital part of the body. But if, in point of fact, the testimony clearly established that no bullet had touched or penetrated the body of the deceased, and that death had resulted from a bludgeon blow on the head, the irrelevancy of such testimony would be manifest. There are some things about which expert testimony cannot enlighten us. We know without expert or scientific instruction that when a tooth is pulled it hurts, or when a finger is cut it bleeds, or when a stone is thrown into the air it falls to the earth, or when the foundations that support a rock are dug away it will slide or fall down. The experience common to mankind teaches us these things better than the knowledge of experts. In the present case, if the injury had resulted from a fall of the overhanging bank, the testimony of the expert witnesses relating to the latent danger and negligent operating theory relied on by appellee might have some bearing, but inasmuch as the bank did not fall, and hence could not have caused the accident, this testimony was irrelevant, and should not have been submitted to the jury. When the appellee went to work the place in which he was working was safe. He might have remained there for weeks without being injured, but as ho and his fellow workmen proceeded with their work they changed these natural conditions. The work done by them dislodged the stone which fell upon and injured appellee. The injury occurred while appellee was prosecuting the work in which he was engaged, and as a result of his own labor in digging the earth from under the stone, and was one of the risks incident to his employment. Any person of ordinary intelligence knows that if you dig the earth from under a rock it will fall, and that is what was done in this case. All persons are presumed to know the law of gravitation. It has not yet been declared as the law of this or any other state that an employer who provides his employee with a pick and shovel and sets him to work on the top of a solid ledge of rock, and on the face of an ordinary bank of earth, can be made liable in damages on the ground of furnishing unsafe tools with which, or an unsafe place in which, to work.

It is somewhat remarkable that no similar case has been before this court, although such accidents must have been of frequent occurrence. Questions of a similar character have arisen in many courts of other jurisdictions, and it may be instructive to note the rule relating to same laid down in those cases. In Indiana it has been held that a laborer working in a gravel pit assumes the risk arising from the liability of sand and gravel falling during the process of excavation : Swanson v. City of Lafayette, 134 Ind. 625. Also that a servant who was injured while undermining a bank of gravel and clay below a stratum of earth which fell upon him cannot recover: Railsback v. Wayne County Turnpike Company, 10 Ind. App. 622 ; Griffin v. O. & M. Ry. Co., 124 Ind. 326. In Missouri, that a laborer engaged in excavating a bank of iron ore assumes the risk incident thereto: Aldridge v. Midland Blast Furnace Company, 78 Missouri, 559. In Texas, that an employee assumes the risk in going above an overhanging gravel ledge and digging a ditch for the purpose of dislodging the ledge: M. K. & T. Ry Co. v. Spellman, 34 S. W. Repr. 298. In Minnesota, that an employer is not liable in a case where the employee was put to work on a hill from which the employer was removing gravel and while loosening the material while performing his work received injuries: Swanson v. Great Northern Ry. Co., 68 Minnesota, 184. To the same effect: Kletschka v. M. & St. L. Ry. Co., 80 Minnesota, 238 ; Pederson v. Rushford City, 41 Minnesota, 289. In Utah, that a laborer cannot recover against his employer for injuries caused by the fall of a bank caused by undermining the same for the purpose of removing it: Allen v. Logan City, 10 Utah, 279. In Wisconsin, that a workman of ordinary intelligence, whether experienced or not, is presumed to know that when a bank of earth is undermined by removing its foundation it is liable to fall: Naylor v. Chicago & N. W. Ry. Co., 53 Wis. 661. In Tennessee, that an ignorant and illiterate negro laborer must be taken to understand that the sides of a ditch dug in soil which is composed of cinders is liable to fall: Brown v. Chattanooga Electric Ry. Co., 101 Tenn. 252.

It appears from these authorities that the courts have uniformly refused to hold that it is the duty of an employer to provide a place in which to work absolutely free from danger. On the other hand, it has been expressly held that when an employee engages to work in such places, he assumes the risks and dangers incident thereto and resulting from natural causes. In all such cases, the word “ safe ” must be understood to be used in the sense of “safe” according to the usage, custom and risk of the business in which the employee is engaged.

A jury under the circumstances of this case cannot be permitted to guess at or conjecture about what constitutes a safe place or what caused the accident without proof of facts to support the theories relied on or facts from which an inference of the alleged negligence can be fairly drawn: Alexander v. Pennsylvania Water Company, 201 Pa. 252 ; Smith v. Traction Company, 202 Pa. 54; Cracraft v. Bessemer Limestone Company, 210 Pa. 15; Meixner v. Philadelphia Brewing Company, 210 Pa. 597.

Judgment reversed, and it is ordered that judgment be entered in the court below for the defendant non obstante veredicto.


author: Mr. Justice Stewart,

text:
    Mershon, Appellant, v. Walker.

      Easement — Alley—Obstruction of easement — Equity.
    Where a person's easement in a private alley or court is defined in his deed as “the common use and privilege of said twenty feet wide court with or without horses, cattle and carriages,” and, “of a water course therein,” such person cannot complain of any use of the space above or beneath the surface not affecting the rights defined by his deed; but doors or shutters which when open project into the court, or a fire escape used as an exit for a theater, which projects into the court, so as to interfere with the rights of the owner of the easement, will be enjoined. Schmoele v. Betz, 2X2 Pa. 32, followed.
    Argued Jan. 18, 1906.
    Appeal, No. 209, Jan. T., 1905, by plaintiffs, from decree of C. P. No. 4, Pbila. Co., Sept. T., 1901, No. 726, dismissing bill in equity in case of Kate M. Mersbon and Albert H. Mershon, Trustee, v. Annie M. Walker, Executrix and Sole Devisee under the last will and testament of William Weiglitman, deceased.
    Before Mitchell, C. J., Fell, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Bill in equity for an injunction.
    The facts appear by the opinion of the Supreme Court.

      Error assigned among others was decree dismissing the bill.

      Alex. Simpson, Jr., with him John W. Gtraham, Jr., for appellants.
    The defendant cannot maintain the fire escape which is also at all times used by its patrons as a means of exit from her theater: Benner v. Junker, 190 Pa. 423; Patterson v. R. R. Co., 26 W. N. C. 327; Stevenson v. Stewart, 7 Phila. 293; Ellis

      April 30, 1906:
    v. Academy of Music, 120 Pa. 608; Schmoele v. Betz, 212 Pa. 32; Muzzarelli v. Hulshizer, 163 Pa. 643; Clark v. Martin, 49 Pa. 289; Meigs v. Milligan, 177 Pa. 66; Reimer’s Appeal, 100 Pa. 182.
    The defendant has no right to excavate into the soil of the court and use it as an adjunct to the cellar of her building: Ellis v. Academy of Music, 120 Pa. 608.
    The defendant should be enjoined so far as the doors and windows when opened project into the court.
    The defendant cannot use the court as an appurtenance to premises 1334 and 1336 Chestnut street except in the way and to the extent it has been used for at least twenty-one years: Irving v. Media Borough, 10 Pa. Superior Ct. 132.

      John Gr. Johnson, with him Hampton L. Carson, for appellee.
    The defendant had the right to excavate into the soil of the court if she covered such excavation with a solid pavement. ' The appellee ought not to be enjoined from swinging doors and windows outward into the court.
    The appellee has a right to use the court without any restriction.
    The continuance of the fire escape ought not to be enjoined because it does not interfere appreciably with the appellants’ right in the court: Hacke’s App., 101 Pa. 245; Bigler v. Penna. Canal Co., 177 Pa. 28; Walters v. McElroy, 151 Pa. 549; Sullivan v. Steel Co., 208 Pa. 540.
   Opinion by

Mr. Justice Stewart,

Appellants’ rights in the private alley or court in question, as owners of the adjoining property, are defined in the title under which they hold, as follows: “the common use and privilege of said twenty feet wide court, with or without horses, cattle and carriages,” and, “ of a water course therein.” They have no title and make no claim to the soil. Therefore, while they have standing to complain of any obstruction to or interference with the free and full exercise of the privileges they have in the surface of the court, they cannot have any with respect to any invasion by others above or beneath the surface not affecting them. The appellee holds by distinct title in fee a narrow strip of land one foot in width along the opposite or eastern side of the court, and a lot adjoining it on the east, on which is erected the Garrick theater. For the purpose of supplying the cellar of the theater building with light and air, she has constructed two areas or light wells beneath the surface of her own property and extending outward beneath the surface of the court for a distance of three and one-half feet. The surface above so much of the excavation as extends within the line of the court, has been covered over with solid concrete work and heavy flagstones; so that, as found by the court, the excavation does not in any way interfere with such use of the said court as the plaintiffs are entitled to. While there are exceptions to findings and conclusions touching the right to be heard with respect to any invasion of the subsurface, there are none to this particular finding which was «in answer to defendant’s thirteenth request. Indeed, it was not complained in the bill that the excavation was a disturbance of plaintiffs’ easement ; but simply that it Avas an unlawful invasion of the premises. This finding of the court, that it is not a disturbance of the easement, is conclusive of the fact; and, from all that appears in the case, rightly so; since it is a matter of common knowledge that no more substantial, permanent and generally satisfactory street surface can be obtained than from the proper use of these materials. There is no suggestion that the work in connection therewith was not adequately done. Plaintiffs having no right in the soil invaded, and no privilege in the court that was disturbed by the defendant, the court was clearly right in refusing the injunction asked for with respect to the excavation. Mershon v. Fidelity Ins., etc., Company, 208 Pa. 292 is not ah authority to the contrary. In that case the court refused to do the very thing that is asked for here — require the area-Avay be solidly filled up with earth. It decided that the permanent closing of the excavation by an iron grating, was a substantial change from the condition in which the surface had been theretofore used, and was a substantial interference with the right of passage ; but the decision left the case open for the defendants to show, if they could, that the filling up of the excavation could be avoided by the substitution of something in place of the iron grating, that would not interfere with the easement. In the present case the construction leaves the surface as unbroken, even, and substantial as it ever was; and it cannot, so far as we can see,.change conditions to the prejudice of the plaintiff. All the assignments of error that relate to the rulings of the court with respect to this branch of the case are overruled.

It was further complained that defendant had constructed certain doors and shutters in the west wall of the building known as the Garrick theater, occupying the lot to the east of the one-foot strip of ground adjoining the court, which when opened out project beyond the property line of the defendants and into the court. The finding of the court with respect to this is as follows: “ The west wall of this building (the Garrick theater) stands one foot east of the east line of the court above mentioned. In this wall are several doorways and window openings. One doorway is located near the head of the court on the first floor of the building. It has a double door whose parts when opened project three feet four inches into the court, opening outward. The other door on the first floor is located near the Sansom street end of the court. It is used constantly as a means of entrance to and exit from the theater by its patrons. When opened, its door projects about five and one-half inches into the court. When the shutters attached to the windows in this wall are being opened, they swing over the court. When pushed back against the wall, they are entirely within the defendant’s property line. Some, however, cannot be thus pushed back.” Notwithstanding this clear finding that the doors are so constructed that when opening they must necessarily project into the court, and so remain so long as open, and that some of the shutters cannot close back against defendant’s property but remain within the line of the court, yet in answer to defendant’s sixth request, the learned judge held: “ That the swinging of the doors and windows from the theater by the defendant over the footway of the said court in opening and shutting the same, occupies the street or court for so small a space of time as not to be appreciable, and the plaintiffs did not suffer substantial injury to be measurable, and are therefore not entitled to relief therefrom.” The inconsistency that is so apparent here, can only be accounted for on the supposition that the learned judge overlooked the effect of his finding with respect to the nature of the encroachment complained of. He disposes of the matter as though the complaint was in regard to the swinging of the doors and shutters over the area of the court whilst being opened and closed. Against the exercise of such right by defendant, if it be a right, no complaint was made. What plaintiffs complained of was, that when the doors and shutters were opened, they remained within the line of the court; that they are so constructed that it is impossible to fold them back against defendant’s building and that when opened they constantly occupy the space of the court, in the case of one of the doors, the projection being as much as three feet four inches. And the court found the facts to be just as complained of. Other facts distinctly found were, that defendant’s theater was erected in 1901; that while the owners of the building that had previously occupied this particular lot had maintained doors and windows in the west walls, and bad continuously, for many years, in opening some of them, been accustomed to swing them across the line of the court, the doors and shutters that opened outward were so constructed, that when open and in place, they stood entirely clear of the court. With such facts established, and they are clear beyond dispute, whatever may be said about the prescriptive right to swing the doors and shutte2's over the area of the court in opening and closing them, it cannot be pretended that such right extends to the matter here complained of. It is evident that nothing more serious was in the mind of the court, when in answer to defendant’s sixth request, it was held that the swinging of the doors and windows in opening and shutting the same, occupied so small a space of time as not to be appreciable, and that the injury to plaintiffs resulting therefrom was not sufficient to be measurable. Manifestly the earlier finding, as to the extent and character of the encroachment, was overlooked. The legal conclusions expressed are not applicable to such a state of facts as we have he2-e presented; the encroachment is without prescriptive right; it is not a momentary but con turned use of the court, and to that extent is an abridgment of plaintiffs’ easement therein, and hence a substantial interference. Plaintiffs have as much right to the unobstructed use of the space in the court now occupied by defendant’s doors and shatters, as to any other part of it, and defendant is without semblance of right in appropriating it.

Another subject of complaint was the maintenance of an iron balcony or fire escape that defendant has erected against the west wall of the theater, and which projects six feet eight inches over the court, the lower part being ten feet six inches above the surface. There are two upper doors leading from this balcony, which project eighteen inches into the court and which cannot be closed back against the wall. An iron stairway projecting over the court connects the several stories of the theater, and at the second story connects with a corresponding stairway leading along the Sansom street front to the street. This latter is wholly within the lines of the court. The balcony was intended primarily for a fire escape, and was erected with the approval of the city authorities. Its purpose in this regard could have been accomplished by a balcony overhanging defendant’s interior court. It is now used by the patrons of the theater as a means of exit therefrom. The height of the balcony from the surface is sufficient to enable most wagons to pass under it, but not all. These are the facts found by the court with respect to this particular subject of complaint. Very recently, in the case of Schmoele v. Betz, 212 Pa. 32, not reported when this case was before the court below, this court found occasion to discuss somewhat at length the law applicable to such a state of facts as we have here. The cases are so alike in every essential feature, that what was said there applies with equal force here. In that case the lower balcony was about sixteen feet above the surface. The court below denied the relief asked for, because it had not been made to appear that the balcony materially impaired the use of the easement. In the present case relief was denied on the ground, that equity would interfere only after the interference with plaintiffs’ easement had been determined at law. In neither case was there dispute as to the actual facts ; whatever difference of view there was, related to the natural and probable consequences to the complaining party from the alleged interference. The facts as found by the court in this case, without more, established an inference quite sufficient in itself, in the light of the case cited, to call into exercise the equity power of the court. “ The erection of the fire escape by the defendants,” says Mestrezat, J., in the case referred to, “ was a trespass and an infringement of the rights of the plaintiffs in the alley, and the right of the latter to the easement being conceded, equity will direct a removal of the obstruction and enjoin a continuance of the trespass without proof of actual damages.” In that case the balcony was at a much greater elevation from the surface than in this, but used in the same way, for the same purposes, and yet the court declared it to be a material impairment of the plaintiffs’ right in the court, expressly dissenting from a contrary finding by the lower court, and giving as justification therefor the very exact conditions which exist here. It is impossible to distinguish the two cases in their essential facts, and that case must govern this. It follows that the assigments of error which relate to this particular infringement must be sustained. It is unnecessary to refer to the other questions raised by the assignments, and which were discussed upon the argument of the case. What we have said sufficiently disposes of the appeal.

The decree is reversed at the costs of the appellee ; and it is now ordered, adjudged and decreed that the bill be reinstated; that defendant be required to remove so much of the iron balcony and fire escape as overhangs the court, and that an injunction issue restraining defendant perpetually from maintaining a fire escape or balcony overhanging said court, and obstructing said court by allowing the doors and windows in the western wall of her building to occupy any part of the said court, except while in the act of opening and closing the same; a reasonable time to be allowed for making the changes required by this decree.


author: Mr. Justice Stewabt,

text:
    Patterson v. Freihofer, Appellant.

      Contract — Real estate — Stipulation against easements — Affidavit of defense.

    In an action for the purchase money of real estate purchased under an agreement that “the premises are to be conveyed clear of all easements,” an affidavit of defense is sufficient which avers that notwithstanding the covenant the premises to be conveyed are subjected to certain easements consisting of (1) a joint right of way or alley, of a width of about eighteen inches, one-half of which is on the plaintiff’s premises, and the remaining half upon adjoining property belonging to another, said right of way or alley being for the common use of both said properties; and (2) a right in adjoining owners to the use of certain cesspools or privy wells opened and maintained partly upon plaintiff’s premises and partly upon the property of adjoining owners.
    When one protects himself against an incumbrance by a positive covenant that the property is to be conveyed to him clear of all such incumbrance, he is entitled to the benefit of his contract whether he had knowledge of the existence of the incumbrance or not.
    Argued March 20, 1906.
    Appeal, No. 75, Jan. T., 1906, by defendants, from order of C. P. No. 2, Phila. Co., Dec. T., 1905, No. 355, making absolute rule for judgment for want of a sufficient affidavit of defense in case of John J. Patterson v. Charles Freihofer and "William Freihofer.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Stewart, JJ.
    Reversed.
    Assumpsit for purchase money of real estate.
    Rule for judgment for want of a sufficient affidavit of defense.
    The court made absolute rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of the court.

      James W. Laws, with him William W. Porter, for appellants.
    All averments in the affidavit of defense which go to meet the averments of the statement must be taken as true: Johnston v. Callery, 173 Pa. 129.
    The averments in the affidavits of defense, that the properties are subject to easements, cannot be gone behind, even though such averments constitute mere conclusions of law: Erie City v. Brady, 127 Pa. 169; Eby v. Elder, 122 Pa. 342; Friend v. Oil Well Supply Co., 179 Pa. 290; Evans v. Taylor, 177 Pa. 286 ; Bank v. Alexander, 3 Cent. Repr. 388.

      Ira Jewell Williams, with him Simpson Brown, for appellee.
    The averment as to the alleged easements falls short of the requirements: Howes v. Barmon, 69 L. R. A. 568; Flanigen v. Phila., 51 Pa. 491; Henry v. Black, 210 Pa. 245; Wolf v. Christman, 202 Pa. 475; White v. Price, 202 Pa. 128; Shattuck v. Cunningham, 166 Pa. 368; Bowman v. Bittenbender, 4 Watts, 290.

      April 30, 1906 :
    An apparent easement is presumably known to the purchaser, the price paid being fixed in view thereof, and is therefore not within the covenant against easements or incumbrances: Memmert v. McKeen, 112 Pa. 815.
   Opinion by

Mr. Justice Stewabt,

This was an action for purchase money of real estate. The plaintiff’s statement recited the written agreement between the parties. It is therein stipulated among other things, that “ the premises are to be conveyed clear of all easements.” It is distinctly averred in the affidavit of defense filed, that notwithstanding this covenant, the premises to be conveyed are subjected to certain easements consisting of (1) a joint right of way or alley, of a width of about eighteen inches, one-half of which is on the plaintiff’s premises, and the remaining half upon adjoining property belonging to another, said right of way or alley being for the common use of both said properties; and (2) a right in adjoining owners to the use of certain cesspools or privy wells opened and maintained partly upon plaintiff’s premises and partly upon the property of adjoining owners. If the facts are as here stated, and for present purposes we must assume that they are, then plaintiff’s action cannot be maintained; for he can only require the defendant to keep his covenants as he observes his own. He stipulated to convey the premises clear of all easements, and defendant covenanted to pay the consideration only on condition that plaintiff fulfilled his contract. The buyer cannot be required to pay for what he did not agree to purchase. The description of the easements alleged is sufficiently explicit; it indicates clearly what they are, where they are, and their extent. This description certainly leaves the plaintiff in no doubt with respect to the defense set up, for recognizing the easements described, he insists in reply that they were open and visible at the time of purchase, that plaintiff must be presumed to have seen them, and that their existence therefore is no defense to the action. Whether such reply would be adequate where the covenant is simply a general warranty of title, we need not consider; it certainly fails to meet the ease where the covenant is expressed, to convey clear of easements. When one protects himself against an incumbrance by a positive covenant that the property is to be conveyed to him clear of all such incumbrance, he is entitled to the benefit of his contract whether he had knowledge of the existence of the incumbrance or not: Evans v. Taylor, 177 Pa. 286. The present action is to enforce payment of purchase money on an executory contract. In the case just cited, it is said, “ But when a positive term of the contract must be disregarded, neither law nor equity will interfere when the contract is executory.” It is unnecessary to discuss the other matters of defense set up in the affidavit of defense ; this one was sufficient to prevent the rule for judgment being made absolute.

Judgment reversed and a procedendo awarded.


text:
    Real Estate Investment Company’s Assigned Estate.

      Assignment for creditors — Distribution—Contract—Compromise—Valuation of property.

    Where a debtor agrees, in compromise of a claim which he deems exorbitant, to transfer to his creditor houses and stock of a corporation at a valuation, which the agreement on its face shows is in excess of the market value, and before the agreement is executed, the debtor makes an assignment for creditors, the creditor on distribution will be entitled to a dividend only upon the market value of the houses and stock, and not upon the valuation stated in the agreement.
    Argued March 21, 1906.
    Appeal, No. 80, Jan. T., 1906, by William J. Murphy, from order of C. P. No. 1, Phila. Co., Dec. T., 1900, No. 140, dismissing exceptions to auditor’s report in Assigned Estate of the Real Estate Investment Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Stewart, JJ.
    Affirmed.
    Exceptions to report of Sheldon Potter, Esq., auditor.
    The facts are stated in the opinion of the Supreme Court.

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

      April 30, 1906:

      Ormond Ramho, for appellant.
    The measure of damages was the amount agreed to be paid at the agreed value of the houses, stock and cash, less the amount paid on account in bouses, stock and cash: Singerly v. Armstrong, 5 W. N. C. 139; Roberts v. Beatty, 2 P. & W. 63; Church v. Feterow, 2 P. & W. 301; Moore v. Kiff, 78 Pa. 96; Fleming v. Potter, 7 Watts, 380 ; Stewart v. Morrow, 1 Grant, 204.

      Thomas Ridgway, for assignee.

      Richard 8. Hunter and Greorge Harrison Fisher, for creditors.
   Opinion by

Mr. Justice Stewart,

This case requires little more than a brief statement of facts. Appellant claimed that there was due him from the Real Estate Investment Company $26,459.92 for work and material furnished by him, in connection with the construction and erection of what is known as the Lincoln Apartment House in the city of Philadelphia. The company disputed the claim, alleging that there was included in it a large amount properly chargeable to the account of other buildings for which it was not responsible. A settlement was effected and reduced to writing. The writing recites that the parties “had finally agreed to compromise, adjust and settle all their difficulties.” Under this agreement appellant was to receive in cash and notes $7,959.92; 700 shares of the capital stock of the investment company at a valuation of $3,500; and fifteen houses on Titan street at a valuation of $15,000; appellant agreeing to save harmless the investment company from all mechanics’ liens, and procure release from such liens as had been filed. There is no dispute with respect to the cash and notes which the appellant was to receive; these items of obligation have been discharged. To facilitate the extinguishment of the mechanics’ liens, the investment company with appellant’s consent conveyed in satisfaction of certain of them, seven of the houses which it had agreed to give to appellant by way of compromise, and also 220 shares of the stock that he was entitled to get; but it was not until November, 1899, that the building was wholly released. Then for the first time, appellant was in position to demand the consideration agreed upon in the settlement. But meanwhile the company, presumably because of financial embarrassment, had sold the remaining eight houses and was not in position to comply with the terms of settlement. In November, 1900, the investment company assigned for the benefit of creditors. The present proceeding is in connection with the distribution of the balance in the hands of the trustee; whether upon settlement of a partial or final account, does not appear. Appellant asks distribution on the basis of the agreement of settlement between himself and the investment company; that is to say, not having received the eight remaining houses, or the 480 shares of stock unapplied, he claims distribution on a principal sum determined on the valuation at which he agreed to accept the houses and the stock. The auditor allowed the claim, and made distribution accordingly ; but on exceptions, the report was referred back with directions to ascertain the actual value of the houses and stock, and make a distribution on that basis ; the court holding that appellant was a creditor for houses and stock which should have been transferred to him in November, 1899; that the transfer not having been made to him, he was entitled to share in the distribution of the assigned estate to the extent of the dividend of the value upon the property. Upon the second hearing before the auditor, appellant declined to offer any evidence as to the value of houses or stock, insisting that the agreement of settlement determined the value of each article of property, and that he was entitled to distribution on the basis of the valuation therein. The auditor having nothing before him from which he could ascertain the damages resulting to appellant, from the failure of the investment company to carry out its agreement of settlement, disallowed the claim. This appeal is from the action of the court in affirming the action of the auditor. If it results that appellant gets nothing out of the assigned estate, he will have only himself to blame. He had either of two courses to adopt with safety to himself; he could have submitted his original claim against the investment company, reduced by the proper credits, as a basis for distribution; or the agreement of settlement. He chose the latter, and this entitled him to a distribution on the basis of the market value of the property that had been withheld from him, as of the day when he was entitled to demand it. But evidently the prices at which he was to receive the property were not the market value; otherwise there was no compromise in the arrangement. He had claimed from the company an amount largely in excess of what the company had admitted was owing him. A compromise was effected, on the strength of his agreeing to accept in part payment, the specified property at an artificial valuation, which brought the entire consideration in correspondence with the amount of his claim. No other meaning can be derived from the agreement of settlement. Under such circumstances, the stipulated amount can reflect no light upon the market value, and could not in any way relieve the appellant of the burden that was on him to show what that market value was. At most, an agreement as to price, as in this case, can only be used in evidence for the purpose of showing value, on the ground that it is an admission by the party sought to be charged. But on the face of this agreement, it clearly appears that the price at which appellant was to take the property was not determined by its market value, but by the amount of what the investment company regarded as an exorbitant and unjust demand on the part of the appellant. In no sense can it be regarded as an admission that the price stipulated for was the market value of the property. Principle and reason are against allowing it to be regarded as evidence of market value ; and it would be most unjust to other creditors of the insolvent concern to allow the appellant’s demand in this regard. It is to be hoped that he may yet have an opportunity to correct his mistake in another distribution ; but however this may be, the action of the court below in this connection is free from error and the decree is affirmed.


author: Mr. Justice Brown,

text:
    Van Sciver, Appellant, v. Churchill.

      Equity — Jurisdiction—Adequate remedy at law — Demurrer.
    On a bill in equity by a contractor against the owner of a building operation to declare a trust, plaintiff averred that the defendant had agreed to set aside his equity in three houses to secure certain deferred payments represented by notes, the houses to bo conveyed to the plaintiff in default of payment; that the houses were convoyed absolutely to the agent of a trust company, which company subsequently sold them for a price in excess of the mortgages, although it had full knowledge of the contract between the plaintiff and the defendant. Held, that the bill was properly dismissed on demurrer, inasmuch as the plaintiff had an adequate remedy at law against the owner for a breach of contract, and against the agent and the trust company, if liable, for money had and received for plaintiff’s use.
    Argued March 19, 1906.
    April 16, 1906:
    Appeal, No. 385, Jan. T., 1905, by plaintiff, from decree of C. P. No. 3, Phila. Co., Sept. T., 1905, No. 3,516, dismissing bill in equity in case of Ellwood Van Sciver v. Frank P. Churchill, David Carson and the Central Trust and Savings Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Stewart, JJ.
    Affirmed.
    Bill in equity to declare a trust.
    The averments of the bill are set forth in the opinion of the Supreme Court.
    The court sustained a demurrer and dismissed the bill.

      Error assigned was decree dismissing the bill.
    6r. Von Plrnl Jones, for appellant.

      Ormond Ramio, with him J. Hector McNeal, for appellees.
   Opinion by

Mr. Justice Brown,

On August 4, 1904, the appellant entered into a written contract with Frank P. Churchill for painting and glazing a number of houses which the latter was about to erect. The contract price for the work and materials to be furnished was §7,000 — §5,000 to be paid in cash as the work progressed, and for the balance, §2,000, the appellant agreed to take the promissory notes of Churchill at three months, to be renewed for a further period of three months upon the payment of discount by the maker. The notes were not to be given until the cash payment had been made. To secure the payment of these notes Churchill agreed to set aside his equities in three of the houses, each to be subject to a mortgage of §1,600, and it was further agreed that if he was unable to meet the renewed notes, Van Sciver would return them to him and accept in settlement the equities in the said houses.

The fifth paragraph of the bill avers that Churchill, in pursuance of the terms of his agreement, set aside and conveyed three properties to David Carson, one of the appellees, an employee of the Central Trust and Savings Company, who acted as its agent “ in holding the title of said properties in trust under the terms of the contract, as security for the payment of the notes to he given to the said Ell wood Van Sciver, and upon default in their payment to convey the same ” to him. This is followed by an inconsistent averment in the sixth paragraph, that notwithstanding the terms of the agreement that the equities in the three properties should be set aside, subject only to a first mortgage of $1,600 on each, they were, unknown to the plaintiff, conveyed to tlie said Carson and accepted by bim as the agent of the Centra] Trust and Savings Company, subject not only to a mortgage of $1,600 on each, but to a blanket mortgage of #25,000 covering them and other houses belonging to Churchill, and that the said defendants knew this was contrary to the form of the agreement referred to and was a fraud upon the appellant. If this last averment be true, no trust arose under the agreement to convey the houses subject only to a mortgage of c$l,600 on each, for that agreement was not performed by Churchill. On demurrer to the bill it was dismissed.

The remedy of the appellant for what he complains of in his bill is adequate and convenient at law. In the seventh paragraph he avers that, in violation of the terms of the agreement, or “ trust,” as he there terms it, Carson, at the request and upon the approval of Churchill and the Central Trust and Savings Company, and in fraud of plaintiff’s rights, conveyed the properties to August Voss for tlie sum of $2,850 each, or $750 in excess of the mortgage of #1,600. In the second prayer for relief complainant asks that the sum of $2,250 — the amount received from tlie sale of the three properties in excess of the mortgages —be set aside or paid into court as security for the payment of the notes for $2,000. From this it is clear that the case belongs on the common-law side of the court. Churchill is liable to the appellant for a breach of contract, and each of the other two appellees, if liable, is so for money had and received for his use.

The appeal is dismissed and the decree affirmed at appellant’s costs.


author: Mr. Justice Bbown,

text:
    Merchants’ Trust Company, Appellant, v. Real Estate Trust Company.

      Corporations — ■Foreclosure—Trustee—Excessive payment to trustee — Remedy —Equity—Citation to file account.

    Where, in foreclosure proceedings, a trustee in a corporate mortgage is alleged to have received more than was proper, the remedy against the trustee is not by a bill in equity for an accounting, but by a petition under the Act of June 14, 1836, P. L. 628, for a citation to file an account.
    Argued March 19, 1906.
    April 16, 1906:
    Appeal, No. 97, Jan. T., 1905, by-plaintiff, from decree of C. P. No. 3, Phila. Co., March T., 1904, No. 3,646, dismissing bill in equity in case of The Merchants’ Trust Company, substituted trustee under the Great Eastern Seaboard Coal Mining Company’s Mortgage or Deed of Trust, dated October 1, 1900, v. The Real Estate Trust Company of Philadelphia, Individually and as Trustee under the Raystown Branch Coal Company’s Mortgage or Deed of Trust, dated December 1,1890, et al.
    Before Mitchell, C. J., Fell, Bbown, Mestbezat and Stewabt, JJ.
    Affirmed.
    Bill in equity for an account.
    A demurrer was filed on the ground that the plaintiff had an adequate remedy at law.
    The court in an opinion by yon Moschziskeb, J., sustained the demurrer and dismissed the bill.

      Error assigned was decree dismissing the bill.

      John B. Uhle, for appellant,
    cited: Bierbower’s Appeal, 107 Pa. 14 ; Johnston v. Price, 172 Pa. 427; Steigerwalt v. Smeych, 9 Pa. Superior 363.

      Joseph de F. Junkin, for Real Estate Trust Company.

      F. O. JJewhourg, Jr., for Raystown Branch Coal Company.
   Opinion by

Mr. Justice Bbown,

On December 1,1890, the Raystown Branch Coal Company issued its bonds to the amount of $75,000, bearing interest at the rate of six per centum per annum, and to secure their payment executed a mortgage on its coal lands in Bedford county to the Real Estate Trust Company of Philadelphia as trustee for the bondholders. Subsequently this coal company conveyed the said lands to the Great Eastern Seaboard Coal Mining Company which issued its bonds to the amount of $300,000, bearing interest at the rate of five per centum per annum, and executed a mortgage on the lands to the Commonwealth Title Insurance and Trust Company as trustee for the bondholders. This company having resigned as trustee on September 8, 1903, the Merchants’ Trust Company of Philadelphia, the appellant, was substituted as trustee. After the sale of the coal lands to the Great Eastern Seaboard Coal Mining Company, subject to the first mortgage given to the Real Estate Trust Company as trustee, there was default in the payment of the interest on the bonds issued by the Raystown Branch Coal Company. The Real Estate Trust Company issued a sci. fa. on the mortgage given to it, with notice to the Great Eastern Seaboard Coal Mining Company as terre tenant. Judgment was taken for $135,132.37 — the principal of the bonds, interest accrued and attorney’s commissions. On a levari facias issued on this judgment the mortgaged lands were sold, and the sheriff of Bedford county paid over the proceeds to the Real Estate Trust Company as trustee. Complaining that the assessment of damages in the foreclosure proceedings was incorrect, that illegal, compound and usurious interest was charged, and that the counsel fee for the foreclosure was excessive and more than should have been allowed, the appellant filed this bill, praying “ that the true sum remaining out of the proceeds of the said sheriff’s sale after paying attorney’s commissions, costs, charges, judgments, liens and amounts due on the mortgage of the Raystown Branch Coal Company, as may appear just and legal, be ascertained and be decreed to be paid by the Real Estate Trust Company to your orator or to such bondholders of the Great Eastern Seaboard Coal Mining Company as may appear entitled thereto after the payment of your orator’s charges, expenses and counsel fee in the performance ” of the trust. On demurrer filed to the bill, it was dismissed, for the reason that the appellant had an adequate remedy at law under the acts of assembly relating to the accounts of trustees.

We have stated all the facts appearing in the bill that are material in determining whether it was properly dismissed. It is perfectly clear that it was. If the appellant was entitled to receive the surplus of the proceeds of the sale of the property after the payment of the amount actually due the holders of the bonds issued by the Raystown Branch Coal Company, it could have asked for an order on the sheriff of Bedford county to pay the money into court, where, before an auditor appointed to distribute the same, all parties in interest could have been heard, and the fund would have been awarded to those entitled to it. But this, the ordinary and usual step, was not taken by the appellant. It filed this bill, asking that the surplus remaining after the payment of the amount due on the mortgage of the Raystown Branch Coal Company be paid to it or the bondholders of the Great Eastern Seaboard Coal Mining Company, for whom it is trustee. These parties may not, as appellant seems to assume, be entitled to the surplus in the hands of the Real Estate Trust Company, and a decree awarding the same to them might be in prejudice of other rights. As to this the learned judge most properly said: “ Grave injustice might be inflicted by granting the relief under the prayers of the present bill and awarding any balance which might be judicially ascertained to the plaintiff therein without regard to other probable existing interests entitled to share in such distribution.” But, be this as it may, the statute points out the way in which the appellant can reach any money in the hands of the Real Estate Trust Company to which it is entitled, and that way must be followed. Opportunity was given by the learned judge below to follow it, and the decree dismissing the bill was withheld for thirty days, that, in the interval, the complainant mig’ht so amend it as to bring it within the terms of the nineteenth section of the Act of June 14, 1886, P. L. 628, by making it a “bill or petition” for a citation to the trustee to file its account. The filing of an account would have been followed by a distribution, after due notice to all interested in the fund, and to those entitled to it it would have been awarded. The appellant, however, did not avail itself of the opportunity so given to call the Real Estate Trust Company to account for the purpose of having the funds in its hands properly distributed, and nothing remained for the court below except to dismiss the bill. The decree doing so is affirmed at the cost of appellant.


author: Mr. Justice Fell,

text:
    King’s Estate.

      Contract — Time—Essence of contract — Forfeiture.
    Although in an agreement for the payment of money time may be made material by express stipulation, yet where there has been no change in conditions which places the lender in a worse position and his loss may be measured and compensated for by the payment oí interest, a forfeiture will not be allowed.
    Where an agreement is for the reconveyance of property held in pledge as a security for the payment of money, time though specified is not regarded in equity as of the essence of the agreement.

      Orphans’ court — Jurisdiction—Specific performance — Partition.
    The power of the orphans’ court to distribute a fund in partition includes the power to decide all questions necessary for a proper distribution.
    Argued March 19, 1906.
    Appeal, No. 387, Jan. T., 1905, by W. Creighton Owens, from decree of O. C. Phila. Co., April T., 1883, No. 596, dismissing exceptions to adjudication in Estate of Richard King, Jr.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Stewart, JJ.
    Affirmed.
    Exceptions to adjudication of Hanna, P. J.
    The facts appear by the opinion of the Supreme Court.

      Errors assigned were in dismissing exceptions to adjudication.

      Joseph M. Smith, for appellant.
    The deed of November 9, 190-1, is in reality a mortgage: Lance’s App., 112 Pa. 456; Moran v. Munhall, 204 Pa. 242, and therefore contravenes the act of June 8, 1881: Sankey v. Hawley, 118 Pa. 30; Molly v. Ulrich, 133 Pa. 41; Lohrer v. Russell, 207 Pa. 105; Safe Deposit, etc., Co. v. Linton, 213 Pa. 105.
    Time is always of the essence of an option: McMillan v. Philadelphia Company, 159 Pa. 142; Sylvester v. Born, 132 Pa. 467 ; Smith & Fleek’s App., 69 Pa. 474; Westerman v. Means, 12 Pa. 97 ; Bodine v. Glading, 21 Pa. 50.

      J. Morris Yeaftle, for appellee.
    The orphans’ court had jurisdiction: Fromberger v. Greiner, 5 Wharton, 350; Johnson’s Appeal, 114 Pa. 132; Lowry’s Appeal, 114 Pa. 21 ; Appeal of Miskimins, 114 Pa. 530; Dickinson’s Estate, 148 Pa. 142; Hoffner’s Estate, 161 Pa. 331.
    April 30, 1906 :
    The transaction is not a mortgage.
    Time was not of the essence of this option : Smith & Fleek’s App., 69 Pa. 474; D’Arras v. Keyser, 26 Pa. 249; Sylvester v. Born, 132 Pa. 467; Svenson v. Rohrer, 206 Pa. 407; Decamp v. Feay, 5 S. & R. 323; Summerson v. Hicks, 134 Pa. 566 ; Haverstick v. Gas Co., 29 Pa. 254; Townsend v. Lewis, 35 Pa. 125; Remington v. Irwin, 14 Pa. 143.
   Opinion by

Mr. Justice Fell,

On the audit of the account of a trustee in partition in the orphans’ court there were two claimants for one of the distributive shares, Thomas King, a devisee under the will of the decedent, and W. C. Owens, the appellant, to whom King had conveyed his interest in the real estate. The deed to Owens was absolute on its face, but it appeared from the testimony that the conveyance was made to secure the payment of $200 loaned by him to King. Some two months after the delivery of the deed, the parties entered into a written agreement by which Owens agreed to reconvey the estate granted on the payment by King of $800 and all expenses, commissions, counsel fees, etc., that might be paid by Owens in connection with the estate. King at the time of the agreement was indebted to Owens in the sum of $600 and $200 more were to have been advanced at that time. This sum was not advanced until some weeks afterwards. The option to purchase was to remain in force for three months only. King did not make a tender of the consideration until six months after the time fixed.

The learned auditing judge, whose adjudication was confirmed by the court, found that “ All the facts show the transaction was merely that of a loan of money and the assignment or deed of conveyance simply a security for the money advanced and was to become absolute only if the assignor or vendor failed to pay the amount of his debt within three .months. There was nothing to show that the time fixed was made of the essence of the contract and the lender of the money can be fully compensated at any time by the payment of his loan with interest and expenses.” He awarded to King the amount of his share, less the amount due Owens with interest and costs.

In support of the assignments of error it is argued (1) that the orphans’ court was without jurisdiction to decide the controversy; (2) that the deed being absolute on its face could not be reduced to a mortgage because of the Act of June 8, 1881, P. L. 84; (3) that the agreement to reconvey was void because of the failure to tender the price within the time limited. The orphans’ court would not have had original jurisdiction to decree specific performance of the agreement to reconvey, but it had jurisdiction of the proceeding by which the fund was created and exclusive jurisdiction of all matters relating to the distribution of this fund. The power to distribute includes the power to decide all questions necessary to a proper distribution: Dundas’s Estate, 73 Pa. 474; McGettrick’s Appeal, 98 Pa. 9; Dickinson’s Estate, 148 Pa. 142. In McGettrick’s Appeal, supra, it was decided that the orphans’ court in a proceeding to distribute the proceeds of the sale of the real estate of a decedent among his heirs had the power to determine the validity of a deed by which the share of one of the heirs was conveyed to a stranger.

It is true that the deed from King to Owens could not be reduced to a mortgage, there having been no compliance with the act of 1881 as to the defeasance. This was distinctly ruled by the learned judge, who based his decision on the agreement to reconvey, holding that it was in force between the parties. This was clearly right. It would be grossly inequitable to hold King to a strict compliance with its terms. It was never intended that an absolute title should vest in Owens. He held the title as security only and had no equity to demand more than the return of the money loaned with interest. Although in an agreement for the payment of money time may be made material by express stipulation, yet where there has been no change in condition which places the lender in a worse position and his loss may be measured and compensated for by the payment of interest, a forfeiture will not be allowed: Remington v. Irwin, 14 Pa. 143. Where an agreement is for the reconveyance of property held in pledge as a security for the payment of money, time though specified is not regarded in equity as of the essence of the agreement: Svenson v. Rohrer, 206 Pa. 407.

The decree of the orphans’ court is affirmed at the cost of the appellant.


text:
    Hoffman, Appellant, v. Pennsylvania Railroad Company.
    . Negligence — Railroads—Stepping on track — Contributory negligence — Non-suit.

    In an action against a railroad company to recover damages for personal injuries, a nonsuit is properly entered where it appears from plaintiff’s own testimony that he saw a train with an engine attached, ready to move at any moment, and as likely to move backwards as forward, and that without stopping or taking any means to learn whether the train was about to move, he stepped on the track immediately behind the last car, and was struck and injured.
    Argued March 21, 1906.
    April 30, 1906 :
    Appeal, No. 86, Jan. T., 1906, by plaintiff, from order of C. P. No. 5, Phila. Co., March T., 1905, No. 1,468, refusing to take off nonsuit in case of Ben Zion Hoffman v. Pennsylvania Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Martin,, P. J.
    The facts are stated in the opinion of the Supreme Court.
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was the order of the court.

      Max Herzberg, for appellant.

      John Hampton Barnes, for appellee.
   Opinion by

Mr. Justice Fell,

The plaintiff was employed at the West Philadelphia Stock Yards and was injured while attempting to cross the tracks of the defendant’s road which extended through the yards. These tracks -were branch or side tracks used in connection with the business of the yards, and trains were continually moving backward and forward on them. At the place of the accident there was not a regular crossing but a permissive one used by employees of the stock yards. The plaintiff in going from one slaughter house to another crossed the tracks in the rear of a long freight train, and on his return several hours later he saw the train still standing at the same place. He testified: “ I opened the door and attempted to go behind the last car .... and when I put my foot here between the tracks the train moved back. I fell and the train caught my foot.” The only witness to the accident was called by the plaintiff and testified that he and the plaintiff approached the tracks at the same time but from opposite directions, that he saw the train was in motion and did not attempt to cross, and that when the plaintiff “ was near the track the train moved back.”

All that the plaintiff was required to do was to make out a case clear of contributory negligence. If he had done this, the testimony of his witness, though tending to show that he stepped on the tracks close to a moving train, would not have defeated his right to go to the jury. Where the testimony of a plaintiff makes out a clear case, the contradictory testimony of his own witness will not as matter of law destroy it: Kohler v. Penna. Railroad Co., 135 Pa. 346; Ely v. Pittsburg, etc., Railway Co., 158 Pa. 233. But the plaintiff did not make out a case clear of negligence on his part. It appeared from his own testimony that he saw the train with an engine attached, ready to move at any moment and as likely to move backwards as forwards. With the whole situation and its dangers he was entirely familiar, and without stopping or taking any means to learn whether the train was about to move, he stepped on the track immediately behind the last car. In doing this he failed to exercise tho care which the law requires.

The judgment of nonsuit was properly entered and it is now affirmed.