text:
    Wallace v. Pennsylvania Company, Appellant.

      Negligence — Damages—Earning power — Evidence.
    Where loss of earning power is one of the principal items of damages claimed in an accident case, the evidence presented should be sufficiently explicit to enable the jury to form an intelligent judgment. Earning capacity depends upon several matters, such as the age, health, occupation or business, habit of industry, manner of living, etc., of the party, and they should be disclosed to the jury.

      Negligence — Evidence—Parol testimony — Question for jury.

    When the right to recover in an accident case depends upon parol testimony it becomes a question for the jury, and the court cannot peremptorily instruct the jury to find for the plaintiff; and this is so even where the defendant’s liability is conceded, unless it appears of record.

      Negligence — Damages—Pain and suffering — Question for jury — Erroneous instruction.

    Damages for pain and suffering incident to an injury sustained can only be awarded upon sufficient proof; and if the proof is presented, it is the duty of the jury to consider and be guided by it in making up their verdict. It is error for the court to charge that “there is no evidence which can be used to modify verdicts when pain and suffering and deformity are the subjects of compensation.” Such an instruction leaves the jury at liberty to ignore the evidence and to award such damages for pain and suffering as the jury, in their discretion, might think proper.
    Argued Oct. 22, 1907.
    Appeal, No. 124, Oct. T., 1907, by defendant, from judgment of C. P. Lawrence Co., March T., 1906, No. 62, on verdict for plaintiff in case of Fred F. Wallace v. Pennsylvania Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries.
    Before Porter, P. L.
    Plaintiff presented the following points:
    4. In determining the nature and extent of the plaintiff’s injuries and whether he will be temporarily or permanently disabled and crippled, the jury will consider the injuries sustained by the plaintiff at the time of the accident a.nd the present condition of his injuries, and if the plaintiff in the selection of his physicians, surgeons and nurse and in compliance with their directions, used reasonable care, the defendant is still responsible in damages for the injurious results to the plaintiff, although physicians and surgeons may differ as to what treatment was best under the circumstances. Answer : Affirmed. [2] '
    5. Under all the evidence in this case the plaintiff is entitled to recover and his damages for the injuries he has sustained consist of three items: First, his loss of earning power, whether temporary or permanent; second, the pain and suffering naturally resulting from his injuries ; third, the expense to which the plaintiff is subjected to by reason of his injuries. Answer: Affirmed. [3]

      Defendant presented these points:
    3. That there is no sufficient proof in this case of the earning power of plaintiff to authorize the jury to fix damages for a future loss of earning power. Answer: Eefused. [4]
    4. That the earning power of plaintiff is so poorly shown that the jury should exercise care and caution in allowing damages for loss of wages and services in the past since plaintiff was injured. Answer: As stated we cannot affirm this point, but we say that- we do not believe the court should determine the quality of proof as stated in this request, but leave the weight to be given to the testimony on this question wholly with the jury. Eut we do say that the jury should exercise care and caution in determining whether there be a loss in earning power, and, if so, is it the result of the original injury. And in allowing damages for the loss of earning power in the past, as well as the future, you should determine whether any, all or part of the loss of earning power is the result of a condition which is a sequence of the original injury. [5]
    9. That there is not sufficient proof in this case showing the earning power of plaintiff to enable the jury to fairly estimate it and that part of the case should be withdrawn from the jury. Answer: Eefused. [6]
    Yerdict and judgment for plaintiff for $14,750. Defendant appealed.

      Errors assigned were (1) answer to plaintiff’s seventh’s point, quoted in the opinion of the Supreme Court; (2-6) above instructions, quoting them.

      Oscar L. Jackson, with him Charles R. Davis, for appellant.
    When the court below adopted this seventh point of plaintiff’s it erred, as an examination of our own authorities will show: Collins v. Leafey, 124 Pa. 203; Phila., etc., R. R. Co. v. Adams, 89 Pa. 31; Penna. R. R. Co. v. Kelly, 31 Pa. 372; Penna. R. R. Co. v. Books, 57 Pa. 339; Goodhart v. R. R. Co., 177 Pa. 1; Linn v. Duquesne Borough, 204 Pa. 551.
    Jury must have testimony to show to what extent plaintiff’s earning capacity has been impaired in order to take it into account: Wallace v. Penna. R. R. Co., 195 Pa. 127; McHugh v. Schlosser, 159 Pa. 480; McKenna v. Citizens’ Nat. Gas Co., 198 Pa. 31; Wilkinson v. North-east Borough, 215 Pa. 486; Simpson v. R. R. Co., 210 Pa. 101.

      Robert K. Aiken, for appellee.
    The instructions were proper: Owens v. People’s Pass. Ry. Co., 155 Pa. 334; Goodhart v. Railroad Co., 177 Pa. 1; Penna. & Ohio Canal Co. v. Graham, 63 Pa. 290; Steamship Co. v. Wood, 18 Pa. Superior Ct. 488; Smedley v. Ry. Co., 184 Pa. 620; Kyle v. Electric Light & Power Co., 174 Pa. 570; Coleman v. Southwick, 9 Johns. (N. Y.) 45.
    January 6, 1908:
   Opinion by

Mr. Justice Mestrezat,

The argument of appellant is confined to the first and third assignments of error and to the assignments raising the questions as to the sufficiency of the proof of earning power and the adequacy of the charge. The "other assignments are not pressed.

In cases of this character the burden rests upon the plaintiff to show by sufficient evidence what loss of earning power he sustained by the injuries he received: McKenna v. Citizens’ Natural Gas Company, 198 Pa. 31. Loss of earning power is one of the principal items of the damages which the plaintiff claims in this action, and the evidence presented should be sufficiently explicit to enable the jury to form an intelligent judgment. Earning capacity depends upon several matters, such as the age, health, occupation or business, habit of industry, manner of living, etc., of the party and they should be disclosed to the jury. In the case at bar more information could have been given the jury on the trial of the cause as to the plaintiff’s earning capacity, but we are not prepared to say that there was not evidence to go to the jury on the subject and that the case should be reversed on that ground.

The objection to the adequacy of the charge is not well taken. We think the charge taken in connection with the learned judge’s answers to the numerous points submitted was sufficient to give the jury an intelligent and comprehensive understanding of the questions involved in the case and their duties in considering and disposing of them.

Plaintiff’s fifth point, the subject of the third assignment of error, was predicated upon the defendant company’s admission in. the court below that it at no time questioned the right of the plaintiff to recover, and the point was simply intended, as expressed by plaintiff’s counsel, “to specifically enumerate the items to which the plaintiff was entitled to compensation as laid down by this court.” When the right to recover in any case depends upon parol testimony it becomes a question for the jury, and the court cannot peremptorily instruct the jury to find it as a fact. Even where the defendant’s liability is conceded, unless it appears of record, it is not good practice for counsel to present a point for charge in the form of the one complained of in this assignment. Tf the purpose of the point in question was to direct the attention of the court to the proper elements of damage, a point should have been formulated expressing clearly that purpose without the request for peremptory instructions to find for the plaintiff.

The plaintiff’s seventh point for charge, affirmed by the court below and the subject of the first assignment of error, is as follows: “ In considering the damages you may award the plaintiff for pain and suffering, you will consider the pain and suffering he has already endured, bodily and mentally, and which lie is likely to endure, and it is for you to determine what under all the circumstances should be allowed the plaintiff in addition to the other items of damage to which he is entitled, in consideration of the pain and suffering he has and will necessarily endure as a result of the accident; and there is no evidence which can be used to modify verdicts when pain and suffering and deformity are the subjects of compensation ; there is no rule of law by which that can be measured and they are therefore left to the jury exclusively. What amount of money is sufficient compensation in. such case is to be decided by the jury and it is the jury’s sole prerogative.”

Aside from any other objection which might be urged to the accuracy of the language used in this point it was manifest error for the court to charge that “ there is no evidence which can be used to modify verdicts when pain and suffering and deformity are the subjects of compensation.” Whatever may have been the construction of this language by the plaintiff’s counsel or the meaning intended to be conveyed by it, it is apparent that the jury would have been justified in construing it to mean that in compensating the plaintiff for the pain and suffering he endured, incident to the injury he sustained, they were not controlled by the evidence in the case, and were at liberty' to ignore it and to award such damages for the pain and suffering as the jury, in their discretion, might think proper. If evidence cannot “ modify verdicts,” it logically follows that it need not be considered by juries in arriving at their verdicts; and hence may be disregarded in ascertaining the compensation to which the plaintiff is entitled by reason of pain and suffering. This would be giving the jury a latitude in awarding damages hitherto unknown in the trial of causes of this character, and is so clearly erroneous as to require a reversal of the judgment. Damages for pain and suffering incident to an injury sustained can only be awarded upon sufficient proof; and the proof having- been presented, it is the duty of the jury to consider and be guided by it in making up their verdict.

The first assignment of error is sustained, the judgment is reversed and a new venire is awarded.


source: Caselaw Access Project

author: Mr. Justice Mestrezat,

license: Public Domain

text:
    Ranney v. Byers, Appellant.

      Trusts and trustees — Declaration of trust — Sufficiency of declaration— Act of April 22, 1856, P. L. 532.
    The essential elements of a declared trust are: the subject-matter of the trust; the designation of the cestui que trust; and the right or interest of the cestui que trust in the subject-matter of the trust. It need not be created by writing, but is required by the statute to be “manifested by writing signed by the party holding the title thereof.” If in writing, the declaration need not be expressed in any particular form of words, even the words “trust” or “trustee” need not be used; but the language employed must be such as to disclose with certainty the purpose to create a trust.
    . A writing headed “The Byers Place — J. P. Byers,” and designated as “Memoranda and agreement,” was as follows: “The arrangement with Mr. Byers is this: All money invested by him in the Byers Place to be placed to his credit and to bear interest from the date credit is given until paid. When the total principal and interest is paid in full then the residue or remaining property to belong to C. W. and R, B. Ranney (Signed) J. P. Byers.” Held, (1) that the writing was a declaration of trust sufficient to meet the requirements of the act of 1856; (2) that the designation of the subject of the trust as “Byers Place” was a sufficient description; and (3) that as the subject-matter was designated, parol evidence was admissible to apply the description to the land.
    Where a writing declaring a trust is complete in itself, stating the subject-matter designating the cestui que trust and his interest in the subject-matter, parol evidence is admissible to identify and locate the subject of the writing.
    Argued Oct. 23, 1907.
    Appeal, No. 152, Oct. T., 1907, by defendants, from decree of C. P. Lawrence Co., Dec. T., 1906, No. 6, on bill in equity in case of Cassius W. Ranney and Robert B. Ranney v. John P. Byers and S. C. Faddis.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity to declare a trust.
    Before Porter, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was decree in favor of plaintiffs.

      J. Norman Martin, with him Leonard M. Uber, for appellant.
    The statute of frauds requires that such a sale of land as was attempted must be in writing. It cannot be by parol. It is by parol if it requires verbal testimony to prove any essential part of it. In this case the land could not be identified or described without parol testimony: Hammer v. McEldowney, 46 Pa. 334; Sausser v. Steinmetz, 88 Pa. 324.
    An equitable interest in land is within the statute, and cannot be conveyed by parol: Gratz v. Gratz, 4 Rawle, 411; Goucher v. Martin, 9 Watts, 106; Meason v. Kaine, 63 Pa. 335; s. c., 67 Pa. 126.
    An easement is within the statute: Huff v. McCauley, 53 Pa. 206; Yeakle v. Jacob, 33 Pa. 376.
    A contract for growing timber to be taken off at discretion is within the statute: Pattison’s Appeal, 61 Pa. 294; Miller v. Zufall, 113 Pa. 317; Robbins v. Farwell, 193 Pa. 37.

      R. A. Winternitz, with him Gregory & Dickey, for appellees.
    The writing was a sufficient declaration: Smith’s Est., 144 Pa. 428; Saylor v. Leedom, 5 Montg. 78; Marvine v. Drexel, 68 Pa. 362; Williard v. Williard, 56 Pa. 119; Centenary M. E. Church, v. Clime, 116 Pa. 146; Wright v. Gas Co., 2 Pa. Superior Ct. 219; Smith v. Howell, 11 N. J. Eq. 349; Hunsecker’s Estate, 19 Pa. C. C. Rep. 14; Graver v. Scott, 80 Pa. 88; Gould v. Lee, 55 Pa. 99; Ash v. Ash, 4 Pa. Dist. Rep. 725; Henry v. Black, 210 Pa. 245.
    January 6, 1908:
   Opinion by

Mr. Justice Mestrezat,

The learned trial judge was right in holding that the writing signed by Byers was a sufficient declaration of trust under the Act of April 22, 1856, P. L. 532, 2 Purd. (13th ed.) 1757, and in entering a decree in conformity with the prayer of the bill.

As has been frequently said, the essential elements of a declared trust are the subject-matter of the trust, the designation of the cestui que trust, and the. right or interest of the cestui que trust in the subject-matter of the trust. It need not be created by writing, but is required by the statute to be “ manifested by writing signed by the party holding the title thereof.” If in writing, the declaration need not be expressed in any particular form of words ; even the words “ trust ” or “ trustee ” need not be used, but the language employed must be such as to disclose with certainty the purpose to create a trust. It may be couched in any language which is sufficiently expressive of the intention to create a trust: Smith’s Estate, 144 Pa. 428.

The paper signed by Byers and delivered to plaintiffs, the declaration of trust in this case, is as follows :

“The Byebs Place,
“ J. P. Byebs. Db. Cb.
“ New Castle, Pa., Aug. 3, 1896.
“ Memoranda and agreement.
“ The arrangement with Mr. Byers is this : All money invested by him in the Byers place to be placed to his credit, and to bear interest from the date credit is given until paid. When the total principal and interest is paid in full then the residue or remaining property to belong to C. W. and R. B. Ranney.
“ J. P. Byebs.”

It will be observed that this paper sets out a subject-matter, designates the cestuis que trust, and their right or interest in the subject-matter. The subject-matter is the “ Byers Place,” the cestuis quo trust are O. W. and R. B. Ilanney, and they are the owners of the whole property. This declaration is, apparently at least, sufficient to meet the requirements of the statute of 1856. In fact, as we understand, it is conceded that it does contain all the requisites demanded by the statute except the subject-matter is not named, or, rather, it is not sufficiently described to meet the requirements of the statute. It is contended that there is “ nothing contained in the alleged declaration of trust that couples Byers Place with the lands described in the deed from Adam Treser to John P. Byers.” But the declaration unquestionably names a subject-matter. From the wording of the instrument itself, “ Byers Place ” is well known and its existence recognized by Byers himself. The instrument is written and dated at “ The Byers Place,” and the body of it declares the “ Byers Place ” to be the subject in which Byers has invested his money for Avhich he is to have a credit, and that when the principal and interest of the money thus invested by him are paid the “remaining property to belong to C. W. and II. B. Ilanney.” Can there be any doubt that Byers and the Hanneys knew Avhen the instrument Avas executed and delivered, and now know Avhat the “ Byers Place ” is, what real estate it includes, where it is situated, and that a decree of the court containing a like description would be sufficient to locate the property ? It is a matter of common knoAvledge that residential and other real estate property is frequently givun some name by which it is knoAvn, is described in written instruments, and is recognized by eATeryone familiar Avith the property. Many written agreements for the sale of real estate contain no better or fuller description of the property than the name by which it is generally known in the community, and for a court to hold that such name is an inadequate description is to give an opportunity to every dishonest vendor or vendee to evade his contract. A court of equity should be sIoav in announcing a doctrine that Avould produce such results. While the statute of 1856 is most salutary legislation and its enforcement will unquestionably prevent fraud as Avell as perjury, yet, as has been frequently said, it must not be made a means of aiding anyone to perpetrate a fraud. Here, as we have observed, all the parties interested in the trust know the property, the subject-matter, involved. Byers used the name in the declaration which he signed as the one appropriate to and correctly describing the property. It was the name he recognized as descriptive of the property which he declared he held for the Ranneys. He should not now be permitted to say that the name means nothing, is descriptive of no property, and is not sufficient to describe the real estate in dispute.

If, however, the name used in the writing to designate the subject of the trust is not sufficient to identify or locate the property, is parol evidence admissible for that purpose ? It is true, as we have frequently held, that a declaration of trust is condemned by the statute unless all its essential elements are in writing. Parol testimony is not admissible to establish any essential part of the declaration. But when the writing is complete in itself, stating the subject-matter, designating the cestui que trust and his interest in the subject-matter, there is no reason why parol evidence should not be received to identify and locate the subject of the writing. The distinction between parol evidence when offered for the latter purpose and when offered for the purpose of naming or designating the subject-matter of the contract is of vital importance and determines its admissibility. While, as we have seen, in creating a trust, it is essential to its validity that the writing designate the subject-matter, no language or form of words, however, has been prescribed by the statute, the simple requirement being that the subject, as stated, be definite and certain. When, therefore, the instrument names a definite subject it satisfies the statute, and parol evidence is admissible to identify or locate it on the ground. This rule is recognized alike in text-books and in the decisions of the courts. In Stephen’s Digest of the Law of Evidence, article XCI, pl. 4, it is said : “ In order to ascertain the relation of the words of a document to the facts, every fact may be proved to which it refers or may possibly have been intended to refer, or which identifies any person or thing mentioned in it.” In his work on the Law of Evidence, chap. 19, sec. 1194, Mr. Taylor says: Passing now to the consideration of the second description of evidence, which is admissible in explanation of written instruments, it may be laid down as a broad and distinct rule of law, that extrinsic evidence of every material fact, which will enable the court.to ascertain the nature and qualities of the subject-matter of the instrument, or, in other words, to identify the persons and things to which the instrument refers, must of necessity be received.” Mr. Greenleaf (Evidence, Lewis’s ed., sec. 266) states the rule applicable to the admission of parol evidence under the statute of frauds as follows : “ It is to be observed, that the statute does not require that the trust itself be created by writing, but only that it be manifested and proved by writing; plainly meaning that there should be evidence in writing, proving that there was a trust and what the trust was. ... In all these cases, it seems now to be generally conceded that parol evidence, though received with great caution, is admissible to establish the collateral facts (not contradictory to the deed, unless in case of fraud) from which a trust may legally result.”

Turning now to our own cases, it will be seen that for at least three-quarters of a century a like doctrine as to the admission of parol evidence has prevailed in this state. In Bertsch v. Lehigh Coal Navigation Company, 4 Rawle, 130, it is held, as stated in the syllabus, that parol evidence may be given to explain a written agreement, so far as to give locality and identity to the subject-matter of it, and apply the contract to it. In delivering the opinion, Mr. Justice Kennedy says (p. 139): As often as written agreements fail to describe by metes and bounds the lands contracted for, and to give a precise location to them, the omission is always supplied, and the application of the agreements made to the lands by the introduction of parol evidence, which has ever been considered competent ; otherwise, in, most cases the agreements could never be carried into effect.” In Gould v. Lee, 55 Pa. 99, Chief Justice Woodward delivering the opinion says (p. 108): Parol evidence is not admissible to alter or contradict what is written, upon the very obvious principle that the writing is the best evidence of the intentions of the parties; but parol evidence has many times been received to explain and define the subject-matter of written agreements. Herein is no contradiction.”

Ferguson v. Staver, 33 Pa. 411, was an ejectment, and the court held that the subject-matter of the writing was within the statute of frauds. In delivering the opinion Chief Justice Lowbie, in speaking of the contract in that case, says (p. 413): “ Its subject-matter is an essential part of it — and without it, there is no contract. If the subject-matter, the land, be described, we admit evidence in order to apply the description to the land ; but we cannot admit parol evidence, first, to describe the land sold, and then, to apply the description.” Smith & Fleek’s Appeal, 69 Pa. 474, was a bill filed to restrain the defendant from entering upon' certain premises and cutting and removing the timber therefrom. It was held that the contract was not within the statute of frauds. Williams, J., delivering the opinion, said (p. 480): “ Equally unfounded is the objection that the contract is incomplete in its terms. It sets out the parties and the consideration, and sufficiently describes the subject-matter — £ said land is all that piece bought of Rose by Thomas Smith and Porter Fleek,’ — oertum est quod certum reddi potest. If the subject of the contract is described, parol evidence is admissible to apply the description to the land: Ferguson v. Staver, 33 Pa. 411.” Phillips v. Swank, 120 Pa. 76, was an ejectment, and it was there held that the contract upon which the title depended was not ineffective under the statute of frauds. In delivering the opinion, Mr. Justice Clark says (p. 85): “ It is true, a written contract, in order to comply with the statute (of frauds), must be in some sense self-sustaining. ' It would be mere folly,’ as was said in Morris v. Stephens, 46 Pa. 200, ' to make a conveyance to my next door neighbor, or to the person now sitting at the table with me, by this description, instead of by name; the law could hardly be expected to enforce such a conveyance in the face of a statute which requires conveyances to be in writing and to be self-sustaining, with the exception only of such necessary uncertainty as is involved in their application to persons named and things described.’ There is, as intimated in the language of the case referred to, a necessary uncertainty in writings, involved in their application, not only to persons but to things described therein. If there are two or more persons of the same name, it may be necessary by parol proof to fix the identity of the person intended, or the thing concerning which the parties propose to contract may be described in such general terms as to require parol proof to identify the particular subject of the contract. It is quite impossible in most cases so to describe land as to avoid the necessity of parol proof for its identification; for whether it be described by metes and bounds, by monuments erected upon the ground, or by adjoiners, its identification necessarily becomes a subject of parol proof.”

Under this well-recognized doctrine, sustained alike by text-writers and decided cases, we think that, if necessary, parol evidence was admissible to identify and locate the “ Byers Place,” the subject-matter of the declaration of trust. The name used in the declaration describes the property, the subject of the trust. Parol evidence is not admissible to show what real estate the settlor or cestui que trust intended to be included in the trust. Had the settlor in the declaration not described the land, or given any name by which it was known or recognized, or had referred to it in such general terms as to make no one of several pieces of property applicable to the trust, parol evidence could not have been introduced to determine the subject of the trust. On the other hand, when the settlor does describe the property by a name, recognized by himself and the cestuis que trust, as well as by other persons in the community, parol evidence will be admitted to apply the description to the land. This is simply identifying the property made the subject of the trust by the declaration, and not establishing the subject-matter of the trust by parol evidence. It is not proving an essential part of the declaration by parol — that cannot be done — but simply identifying or locating the subject, an essential part of the declaration.

We have examined the cases cited in the appellant’s brief to support his contention that parol testimony is not admissible to identify or define the “ Byers Place,” the subject-matter of this trust, but the facts of none of these cases sustain the position. In Mellon v. Davison, 123 Pa. 298, the real estate described in the writing “ was a lot of ground fronting about one hundred and ninety feet on the P. R. R. in the twenty-first ward, Pittsburg, Pa.” There was no description of any particular lot. There might have been one dozen or 100 lots fronting on the railroad owned by Davison at that time, and hence it was not a description of any lot. To admit parol testimony to show which of these lots was the subject-matter of the trust would have been to admit it for the purpose of showing the subject-matter of the trust. In Hammer & Dauler v. McEldowney, 46 Pa. 334, the property was described in the writing as “ the houses on Smithfield Street.” This is open to the same objection as the description in the 'writing in the Mellon case. In such cases parol testimony could not apply the subject-matter, because no subject-matter was named. To refer to a property as a lot on Smithfield street or as a lot of ground on the Pennsylvania railroad is not to describe any particular lot, and hence parol testimony could not identify it.

The learned judge was fully justified in entering the decree which he made. It is molded so as to do justice between the parties in carrying out the trust which Byers assumed, and he is, therefore, not in a position to complain. It gives him all he is entitled to in a court of equity.

The decree of the court below is affirmed.


author: Mr. Justice Potter,

text:
    Beaver County, Appellant, v. Central District & Printing Telegraph Company.

      Bridges — Telegraph companies — Use of bridge — Condemnation of bridge by county — Equity—Remedy at law.

    Where a bridge company has given to a telegraph company the right to lay its cables and wires across a bridge for an annual rental, and the bridge is subsequently condemned by the county in which it is located, the county cannot maintain a bill in equity against the telegraph company to compel it to remove its wires and cables, or pay a rental for the use of the bridge. In such a case the county has an adequate remedy at law.
    Argued Oct. 23, 1907.
    Appeal, No. 102, Oct. T., 1907, by plaintiff, from decree of C. P. Beaver Co., June T., 1905, No. 7, dismissing bill in equity in case of Beaver County v. Central District & Printing Telegraph Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.

      Bill in equity for an injunction.
    The opinion of the Supreme Court states the case.
    The court entered a decree dismissing the bill.

      Error assigned was the decree of the court.

      Henry H. Wilson, for appellant.
    “Although a bridge is a highway, a highway is not necessarily a bridge. The terms are not convertible or synonymous:” Venango County v. Oil City St. Ry. Co., 3 Pa. Dist. Rep. 566. This is practically the common law of highways, such as roads and navigable streams. Individuals have a right of passage by the usual means of travel. For any other right they must wait the action of the legislature or the courts. So far the legislature has not altered the common law as to bridges in any way germane to the question before the court. Neither have the courts, except perhaps as to street car companies. Yet when courts held that street car companies had the right to enter and use bridges, it was justified on the grounds that street cars were an usual mode of travel, and that it was a right of the traveling public to cross a bridge on a street car. Also, this right was not given street car companies except upon the payment of an annual compensation to the owners of the bridge, whether the owner was a corporation or a county: Berks County v. Reading City Pass. Ry. Co., 167 Pa. 102; Delaware County, etc., Ry. Co. v. Philadelphia, 164 Pa. 457; Venango County v. Street Ry. Co., 3 Pa. Dist. Rep. 456; Lawrence County v. Street Ry. Co., 8 Pa. Superior Ct. 313; Pittsburg & West End Pass. Ry. Co. v. Point Bridge Co., 165 Pa. 37.
    Telephone companies have not the right of eminent domain: Pennsylvania Telephone Co. v. Hoover, 209 Pa. 555. Even if a telephone company had the right of eminent domain it could not enter bridges unless such right as to bridges was expressly given. Property devoted to public uses is not subject to a second appropriation to such uses: Packer v. Sunbury & Erie R. R. Co., 19 Pa. 211.
    Certainly, if a telephone company must first gain the consent of cities and boroughs to the use of streets, and if it is a doubtful question whether or not such company must first gain the consent of township supervisors to the use and occupancy of township roads, there can be no doubt as to the necessity of the consent of the county commissioners before such company may enter and occupy a county bridge: Pfoutz v. Penna. Tel. Co., 24 Pa. Superior Ct. 105.
    As the burden of maintaining a county bridge is on the county, so is the county also clothed with the powers necessary to enable it to regulate the public use of the bridge: Lawrence County v. Street Ry. Co., 8 Pa. Superior Ct. 313.

      William A. McConnel, for appellee.
    The bridge in question is a public highway: Pittsburg & West End Pass. Ry. Co. v. Point Bridge Co., 165 Pa. 37.
    The bridge being a public highway, the defendant company under the act of 1874 has a right to occupy it provided only that it does not incommode the public use of said highway: People’s Tel. & Tel. Co. v. Turnpike Road, 199 Pa. 411.
    January 6, 1908:
   Opinion by

Mr. Justice Potter,

On April 22, 1898, the Ohio River Bridge Company, which owned a toll bridge over, the Ohio river, connecting the boroughs of Rochester and Monaca, Pa., entered into a contract with the Central District and Printing Telegraph Company by which it granted to the latter, for ten years from June 1, 1898, “ the right and privilege of running, extending and laying over the bridge ” such telephone cables and wires, with the necessary fixtures, as may be required by the party of the second part to carry on its business of furnishing telephone service between points on either side of the river. For this privilege the telegraph company agreed to pay $50.00 per annum and to furnish the bridge company with two telephones, to be located as specified in the agreement. In pursuance of this agreement the telephone cables, wires, etc., were laid across the bridge, and have since that time been used by the telegraph company for the purposes of its business..

On January 1, 1905, under condemnation proceedings in the court of quarter sessions, the bridge was taken over by the county of Beaver, and made a public bridge. Since that date the telegraph company has refused either to remove its telephone and telegraph lines from the- bridge, or to pay anything to the county for the privilege- of maintaining them there.

The county filed this bill in equity, alleging substantially the above facts and praying that the telegraph company be required either to remove its wires, cables, fixtures and attachments from the bridge or pay a reasonable rental or compensation for its use, and that it be enjoined from using the bridge until such rental or compensation be fixed by agreement with the county commissioners, or security given. Defendant demurred to the bill, but the demurrer was overruled, and an answer was filed admitting all the allegations of the bill, but denying that the defendant had wrongfully and without authority in law, operated and maintained its telephone wires over the bridge, and averring that plaintiff had an adequate remedy at law for any damage it may have sustained.

The trial judge held that the defendant company, under the 33d section of the Act of April 29, 1874, P. L. 73, has a right to use the public highway in the construction of its lines, and as a bridge is a part of the public highway, the defendant company has a right to use the same, subject, however, to such reasonable regulations as the proper officers of the county or municipality may impose. Upon exceptions to the findings, they were after argument overruled, and a final decree was entered, dismissing the bill, without prejudice to the right of the plaintiff to institute proceedings at law to recover any damages to which the plaintiff may be entitled for the occupancy of the bridge of the plaintiff by said defendant,” and directing defendant to pay the costs. This decree is the subject of the ninth assignment of error, which raises the only questions involved in the case.

These questions are two: (1) Whether the defendant company has the right to maintain and operate its wires, cables and other appliances upon the plaintiff’s bridge without the consent of the latter, and (2) whether the plaintiff has an adequate remedy at law.

In Pennsylvania, bridges are treated as part of the highway, which is carried and supported by them. The law was pointed out, as well as the proper procedure under similar facts, in Berks County v. Reading City Pass. Ry. Co., 167 Pa. 102. Under such circumstances it was shown that the county owns the bridge, and maintains it for the comfort and convenience of the traveling public. If is liable for its proper construction and safety as part of the highway. It cannot arbitrarily refuse the use of the bridge for purposes which have been lawfully authorized upon the highways. The county commissioners have, however, the right within reasonable limits to regulate the manner in which the bridge may be used, and may provide for its repair, and require a proper compensation by way of rental.

In People’s Tel. & Tel. Co. v. Turnpike Road, 199 Pa. 411, we held that as a turnpike road when used by the public, is a public highway, under the act of April 29, 1874, a telephone company may locate and construct its line upon the highway, provided that it does not incommode the public use of the road. In the present case, the telegraph and telephone company laid its line upon the bridge under agreement with the corporation that was then the owner. It was rightfully upon the structure when it became a county bridge. We agree with the view taken by the trial judge, that as matters now stand, in case the defendant company refuses to pay a proper rental, the remedy is not in equity to enforce the removal of its lines of wire, cables and attachments, which were lawfully placed upon the bridge, but it is in the right of the plaintiff to bring an action at law to recover the damages for the use of the bridge during the time for which no compensation has been paid. We can see no difference in principle between the use made of the bridge by a street railway company, and that which is appropriated by the telephone company. Its wires, cables and appliances are carried upon, and supported by, the bridge structure, as long as its use is required. There should be no more difficulty in agreeing upon a fair rental now that the county is the owner of the bridge, than there was when it belonged to the Ohio River Bridge Company. In case of failure by the parties to agree upon proper terms it may be necessary to pursue the course indicated in Berks County v. Reading City Pass. Ry. Co., 167 Pa. 102; but at present, we see no reason to apprehend that the remedy of the county in its action at law, will not be adequate to secure proper compensation for the use of the bridge by the defendant company.

The appeal is dismissed, and the decree of the court below is affirmed.


author: Mr. Justice Stewart,

text:
    Ohio River Junction Railroad Company’s Petition.

      Railroads — Connection between railroads — Contract.
    In a proceeding to fix and determine the terms and manner of a proposed connection between two railroads, it appeared that the complainant’s railroad was built by the respondent company as a side track of its own road, partly on its land and partly on a right of way furnished by a private firm for whose accommodation and at whose instance it was constructed. By the agreement under which it was built it was to be under the management and control of the respondent, and subject to removal at its option at any time upon sixty days’ notice. This notice was given. The complainant company acquired the rights of the private firm to the property in question, and procured a charter as a railroad under the Act of April 4, 1868, P. L. 62. Held, that as the respondent company having by its own act terminated the agreement, as it had a right to do under its terms, the contract was at an end, and the parties stood with respect to their rights in the same position as though the contract had never been made.
    Exceptions in proceedings to fix and determine the terms and manner of a proposed connection between two railroads are properly dismissed, where such exceptions are not based upon any facts proven or apparent in the case.
    Argued Oct. 23, 1907.
    Appeal, No. 139, Oct. T., 1907, by the Pennsylvania Company, lessee of the Pittsburg, Fort Wayne & Chicago Railway, from order of C. P. Beaver Co., Sept. T., 1903, No. 186, dismissing exceptions to report of viewers In re Petition of the Ohio River Junction Railroad Company for connecting with the Pittsburg, Fort Wayne & Chicago Railway.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to report of viewers. Before Bouton, P. J., specially presiding.
    For the facts see the opinion of the Supreme Court and Ohio River Junction Railroad Company v. Pennsylvania Company, 216 Pa. 316.

      Errors assigned were in dismissing exceptions to report of viewers.

      James L. Hogan, with him John M. Buchanan, for appellant.

      William A. McConnel, for appellee.
    January 6, 1908:
   Opinion by

Mr. Justice Stewart,

This was a proceeding begun by petition of the Ohio River Junction Railroad Company, a corporation chartered under the railroad law of 1868, and operating a line of railroad extending from a point in the township of New Sewickley, in the county of Beaver, to the tracks of the Pittsburg, Port Wayne & Chicago Railway Company, in the township of Economy, in the same county., for the appointment of viewers to fix and determine the terms and manner of a proposed connection of the former with the latter road. The answer filed to this petition by the Pittsburg, Fort Wayne & Chicago Railway Company and the Pennsylvania Company, lessee, controverted nothing set out in the petition as matter of fact. It denied the plaintiff’s right to make the proposed connection,- without stating on what grounds the denial was made, and denied also the jurisdiction of the court to appoint viewers for the purpose set out in the petition. Everything necessary to establish a prima facie right in the petitioner was distinctly averred in the petition, and the answer raised no issue of fact. Yiewers were appointed by the court and reported in favor of a connection to be made in accordance with a plan attached to the report. Exceptions were filed to the report and evidence taken. This appeal is from the confirmation of the report of the viewers. A number of the original exceptions seem to have been abandoned, and the assignments of error, though five in number, present but a single question for consideration here. They may have been intended to embrace more, but that is impossible in view of the state of the record. To explain this a fuller statement of facts is required. By the report of the viewers the connection allowed is the one already made.” That comes about in this way. In 1884 an agreement was entered into between the Pennsylvania Company, lessee, and the Messrs. Park, who were operating a firebrick plant a short distance from the line of the railroad, whereby the latter secured for their own use, in connection with their business, a side track a little over a mile in length connecting with the main track of the company. The agreement provided that the railroad company should have the right at any time, upon sixty days’ notice in writing, to discontinue the use of the side track and disconnect the same from the railroad ; in such case the railroad company to have no right of property therein except as to the track superstructure. Notice was given by the company of its purpose to discontinue February 11, 1903. On February 18, 1898, a charter was obtained for the Ohio River Junction Railway Company under which it was authorized to construct, operate and maintain a railroad extending from a point in the borough of Rochester, in Beaver county, to a point in New Sewickley township, in the same county. By an amendment to the charter the company was authorized to extend its road and construct a branch to and into the borough of Sewickley. On April 8, 1903, the Messrs. Park, parties to the agreement with the Pennsylvania Company, conveyed by deed to the Ohio River Junction Railroad Company the entire road which they had been using in connection with their manufacturing plant, including the entire side track constructed under the agreement, and which the appellant desired to have disconnected from its main track pursuant to its notice of February 11, 1903. This deed recites that the road so sold for the entire length thereof is upon the location surveyed, staked out and adopted by the Ohio River Junction Railroad Company for its railroad, and that the deed was made simply to confirm a sale which had in point of fact been made to the railroad in 1898. This was at once followed by a proceeding in equity, begun by the Ohio River J unction Railroad Company, to restrain the Pennsylvania Company from disconnecting the track purchased from the Messrs. Park from its main line. The injunction prayed for having been granted, an appeal was taken from the decree awarding it, and the matter was reviewed by this court in Ohio River Junction Railroad Company v. Pennsylvania Company, 216 Pa. 316, with the result that the injunction was ordered to be continued for four months; not that there was any question in the mind of the court as to the merits of the case as then presented, for in the opinion filed it is expressly stated that on the merits the plaintiff’s bill should have been dismissed. The injunction was continued solely in view of the finding of the court below as to the extent of the injury which would result from the immediate severance of the existing connection, and in order that the plaintiff might have an opportunity to have its rights determined in the present proceeding which was then pending in the court below. The contention in the injunction proceeding clearly foreshadowed certain serious questions likely to arise in this present proceeding; and in the opinion filed these were indicated in express terms. The first was, whether, under the circumstances, the Ohio River Junction Railroad Company is entitled to the rights of a railroad as against the appellant; the other, whether, conceding such title, a new railroad can, by simply inserting in its charter route, take a siding which is the property and on the land of a senior railroad. The subject of the first assignment of error here is the appointment of viewers by the court; that of the fifth, is the confirmation of the report of the viewers. Both assignments being in general terms, and neither specifying the particular point sought to be raised, neither can be considered. The court’s refusal of respondent’s third exception is the subject of the second assignment. This was to the effect that the Ohio River Junction Railroad Company was estopped from this or any other proceeding by virtue of the agreement between the Parks and the respondent. The third assignment is but a repetition of the second in somewhat different form. With respect to these assignments, it is only necessary to say that the learned judge ruled in exact accordance with what was said in Ohio River Junction Railroad Company v. Pennsylvania Company, supra. He held that respondent having, by its own act, terminated the agreement as it had a right to do under its terms, the contract was at an end, and the parties stood with respect to their rights in the same position as though the contract had never been made. The agreement was not in the case. These exceptions may be dismissed without further comment. The court’s dismissal of the respondent’s eighth exception is the complaint in the fourth assignment. The exception was in these words: “ It is further denied that the said Ohio River Junction Railroad or the Park’s road as it was heretofore known, served any number of people outside of the Pennsylvania Clay Company, being in a sparsely settled district with no public works, except the works of the Pennsylvania Clay Company, as aforesaid.” If the purpose of this assignment was to raise one of the serious questions indicated by this court in the former case as likely to be involved in this, it wholly fails. The exception was dismissed because — we quote the language of the court — “ it is not based upon any facts proven or apparent in the case.” Appellant’s view doubtless is, that this is an effort on the part of the plaintiff company to use a charter obtained for a public use for the accomplishment of private ends exclusively, and that therefore, in the accomplishment of these private ends, it is not entitled to the rights of a railroad against it. But how can that question be considered here? We have not only no finding of fact by the court on evidence adduced, but we find no evidence in the case which would justify any finding on the subject. There is absolutely no evidence in the case even remotely bearing on this question. This is equally true in regard to the other serious question which this court in the former case thought likely to arise. There is nothing in the case calling for review. The assignments are dismissed and the order and decree of the court below are affirmed.


author: Mr. Justice Fell,

text:
    Neely v. Western Allegheny Railroad Company, Appellant.

      Railroads — Condemnation proceedings — Experts—Evidence.
    In a railroad condemnation case the test of value is not the price paid for a particular property, but the general selling price of land in the vicinity, and evidence of particular sales is not admissible to establish market value.
    A witness may be asked as to the particular sales to ascertain whether he knew of and considered them in forming an opinion as to value, and it may be shown for the purpose of affecting the weight of the opinion he has given, that it is based on a misapprehension of the facts. But to show value by comparison with other lands or to attempt to weaken the testimony of a witness by showing that his opinion was not based on a proper comparison of properties is open to the same objection that excludes testimony as to particular sales.

      Argued Oct. 23, 1907.
    Appeal, No. 84, Oct. T., 1907, by defendant, from judgment of C. P. Butler Co., June T., 1905, No. 75, on verdict for plaintiff in case of Sarah C. Neely et al. v. Western Allegheny Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Issue to determine the value of land condemned for railroad purposes.
    Before Galbreath, P. J.
    . Stewart Wilson, a witness for plaintiff, was asked on cross-examination the following question:
    “ Q. How much in the market was the Neely farm worth per acre more than the Fair farm before the railroad was constructed ? ”
    •Objected to as incompetent.
    The Court: I think, gentlemen, we would not hear that; in order to test his knowledge of values you might ask what it sold for, to test his knowledge of the fundamental basis upon which he must estimate the value of land.
    Mr. Bowser: We object to the question as incompetent.
    The Court: We think that the question of values is not to be ascertained by comparison with particular sales in the neighborhood and for that reason we will sustain the objection and seal a bill for defendant. .Exception. [1]
    “ Q. Mr. Wilson, you have spoken about a Wimer sale made about three years ago; what was the consideration by,the acre of that sale ? A. Fifty dollars an acre, I think. Q. How far away from this property was that ? A. It is down the creek a mile or two. Q. Is it on the creek ? A. Handy to it. Q. It don’t touch the creek ? A. I don’t think it touches the creek. Q. It is more valuable land than this ? ”
    Mr. Bowser : That is objected to ; you are going into a comparison again.
    The Court: I think we will sustain the objection and seal a bill of exceptions. The witness can be inquired of as to whether he knew, and, if so, what was the actual selling price of the farm now being inquired about, but we think it is not permissible to compare that farm or its value with the one in question, for the reason that it would open up an inquiry with which we have nothing to do in this case and would lead to an interminable consideration of this case and the issues growing out of it. Exception. [2]
    Verdict and judgment for plaintiff for $2,200. Defendant appealed.

      Errors assigned were (1, 2) rulings on evidence, quoting the bill of exceptions.

      T. C. Campbell, with him J. Norman, Martin, for appellant.
    Where a witness is called to give his opinion of the market value of land it is necessary first that he should be competent to give an opinion, and the preliminary question of competency is for the court below.
    To be a witness competent to testify to market values the witness offered must show to the court upon this preliminary examination: (1) That he is familiar with the property in question, its area, its improvements, the uses to which it may be applied, its productive qualities, its environment, etc.; (2) the general selling price of land in the neighborhood at the time of condemnation: Michael v. Pipe Line Co., 159 Pa. 99; Friday v. Penna. R. R. Co., 204 Pa. 405; Reed v. R. R. Co., 210 Pa. 211; Davis v. Penna. R. R. Co., 215 Pa. 581; Brown v. Corey, 43 Pa. 495.
    To show the prices at which other lands in the neighborhood were sold would not prove market values without a comparison between the land in question and the land which was sold, as to quality: Kellogg v. Krauser, 14 S. & R. 137; Henkel v. R. R. Co., 213 Pa. 485.

      S. F. Bowser, with him A. L. Bowser, for appellees.
    — The general selling price of lands in the neighborhood cannot be shown by evidence of particular sales of alleged similar properties ; such evidence would introduce collateral issues and is not admissible: Pittsburg & Western R. R. Co. v. Patterson, 107 Pa. 461; Curtin et al. v. Nittany Valley Ry. Co., 135 Pa. 20; Michael v. Crescent Pipe Line Co., 159 Pa. 99.
    January 6, 1908:
   Opinion by

Mr. Justice Fell,

In an action to recover for injuries to a farm caused by the building of a railroad across it, the plaintiff’s witnesses, called as experts, testified in chief as to the value of the farm before the road was built. On cross-examination they were asked to compare the value of the plaintiff’s farm with the value of farms in the vicinity, of the sales of which they had testified they knew. The sustaining of objections to this line of cross-examination gave rise to the only question involved in this appeal.

It is well settled by an unbroken line of decisions that the test of value in such a case is not the price paid for a particular property but the general selling price of land in the vicinity and that evidence of particular sales is not admissible to establish market value. The reason for the rule is that particular sales may have been made without regard to the market value and that separate inquiries as to them and a comparison of the properties sold with the property in question and with each other would introduce collateral issues and tend to confuse rather than enlighten the jury: Railroad Co. v. Patterson, 107 Pa. 461. A witness may be asked as to particular sales to ascertain whether he knew of and considered them informing an opinion as to value, and it may be shown for the purpose of affecting the weight of the opinion he has given, that it is based on a misapprehension of the facts: Henkel v. Railroad Co., 213 Pa. 485. But to show value by comparison with other lands or to attempt to weaken the testimony of a witness by showing that his opinion was not based on a proper comparison of properties is open to the same objection that excludes testimony as to particular sales. As well stated by the learned trial judge, “ Any inquiry of this nature must inevitably tend to divert the mind of the jury from the real issue and to substitute for it an issue resting on a comparison of different tracts of land with the land in question. The result of such an inquiry, to be either adequate or fair, would involve the comparison of the land in question not alone with some one tract which had been sold in the neighborhood, but with all the tracts mentioned by the witnesses as having been sold in the neighborhood and of which they had knowledge. This would not only introduce collateral issues as numerous as the sales testified to by the witnesses, but would lead to inquiries in most cases of this- kind which would be almost interminable.”

The judgment is affirmed.


author: Per Curiam,

text:
    Dawson, Appellant, v. Strouss.

      Judgment — Opening judgment — Bond, of indemnity — Breach—Burden of proof — Evidence.
    A judgment entered upon a bond of indemnity will be opened where the plaintiff fails to sustain the burden of proving that a breach of the bond had been committed.
    Argued Oct. 22, 1907.
    Appeal, No. 21, Oct. T., 1907, by plaintiff, from order of C. P. Washington Co., Feb. T., 1907, No. 230, opening a judgment in case of Joseph S. Dawson v. Lawrence D. Strouss.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Petition to open judgment.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was the order opening the judgment.

      Wm. C. Boyd, with him M. H. Stevenson and J. C. Ewing, for appellant.

      Carl E. Gibson, with him Charles G. McIlvain and W. K. Vance, for appellee.
    January 6, 1908:
   Per Curiam,

The judgment was entered on a bond of indemnity which after reciting that defendant had sold to plaintiff a certain tract of land, was conditioned that the defendant (vendor) should keep harmless and indemnify the plaintiff (vendee) of and from “ the dower or thirds which Emily Strouss, widow of David Strouss and grandmother of the said Lawrence D. Strouss (defendant) shall or may claim in the premises, and of and from all actions, suits, payments, costs, charges and damages for and by reason thereof.”

Being a bond of indemnity the burden of proof of a breach was upon plaintiff. Judgment was entered on the bond in 1884 and revived in 1889 for want of appearance. The statement of breach in either judgment is not furnished to us, but in the present action sci. fa. to revive (issued January, 1905, but number and term not given) in which judgment was also entered for default of appearance, the statement does not aver any specific breach of the guaranty against the dower, but sets up in general terms a failure to indemnify by allowing the dower to accumulate, by reason of which plaintiff’s land was sold (not on proceedings on the dower) at a sacrifice. The damages thus declared for are not the direct result of a breach definitely averred, but consequential and only to be inferred from a general averment of failure to indemnify. The burden of proof was upon plaintiff to bring such damages within the condition of the bond.

The petition to open the judgment set up that “ during the entire time the said Dawson was the owner of said real estate your petitioner did indemnify, save and keep harmless the said Dawson from any loss, costs, charges or expenses by reason of the existence of the said alleged dower, and did in all things perform the covenants and conditions of the said bond. And your petitioner further represents and avers that the said Joseph S. Dawson never paid any part of the said dower or any costs or expenses by reason thereof, and never suffered any loss on account of said dower, which your petitioner was, under the provisions of the said bond, obliged to pay.” The petition was somewhat vague and even argumentative but it was . only met by an answer of the same kind, again failing to set up any specific breach of the bond, and repeating the claim for consequential damages previously averred in the statement above quoted. The burden of proof is still on the plaintiff to bring his claim within the bond.

Whether the.defendant’s long delay in applying for relief was sufficiently excused was a matter for the discretion of the court below.

Order affirmed.


author: Mr. Chief Justice Mitchell,

text:
    Morgan’s Estate.

      Wills — Probate—Subscribing witness — Testamentary capacity.

    Where a subscribing witness to a codicil knows that he is signing a testamentary paper, sees the testator sign it, and is asked by the testator or by the other witness in testator’s presence to sign as a witness, it is not necessary for him to hear the codicil read to the testator, or to know its contents.
    Where a will is written by counsel at one time, and a codicil by the attending physician at another time, both from dictation of the testator without aid or interference of any other person, there is a prima facie case in favor of the will and codicil, which can only be overcome by clear, definite, circumstantial and weighty evidence of facts not reconcilable with the possession of testamentary capacity. Opinions of experts, and the usual testimony as to the failings of age, lapses of memory, irritability, etc., are of little weight in such cases.
    A will is unnatural in a legal sense only when it is contrary to what the testator from his known views, feelings and intentions would have been expected to make. When it is in accordance with these it is never unnatural, however much it may differ from the ordinary actions of men in similar circumstances.
    A will passing over a daughter and leaving the bulk of testator’s estate to the daughter’s two children, is not to be considered an unnatural one, and evidence of undue influence, where it appears that the testator’s object was to prevent his estate from going into the hands or coming under the management of his son-in-law against whom he had a prejudice. In such a case the fact that the prejudice may have been without any just foundation is immaterial. A man’s prejudices are a part of his liberty.
    Argued Oct. 24, 1907.
    Appeal, No. 62, Oct. T., 1907, by Jennie M. Lang et al., from decree of O. C. Washington Co., Nov. T., 1905, No. 36, refusing an issue devisavit vel non in Estate of Samuel P. Morgan, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Appeal from register of wills.
    Before McIlvaine, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned was refusal to award an issue devisavit vel non.

      R. H. Jackson, with him McIlvaine & Williams, for appellants.
    The execution of the codicil was not proven by the oath of two competent witnesses as required by the Act of April 8, 1833, P. L. 249: Carson’s App., 59 Pa. 493; Derr v. Greenawalt, 76 Pa. 239.
    When a will is made by one whose mind is controlled by unreasonable prejudice, which no sane mind under the facts would entertain, then it ceases to be a prejudice and becomes an insane delusion under which the mind is laboring, and the will then executed is not the will of the testator, but is the product of the insane delusion: Taylor v. Trich, 165 Pa. 586; Thomas v. Carter, 170 Pa. 272.

      T. F. Birch, for appellees, was not heard.
    January 6, 1908:
   Opinion by

Mr. Chief Justice Mitchell,

The first objection of the appellant that the codicil was not legally proved by two witnesses cannot be sustained. The witness McCartney, whose testimony is complained of as insufficient, did not hear the codicil read to the testator, the contents were not known to the witness, nor did he know except by inference that it was a codicil. But it was not necessary that he should have affirmative knowledge on these points. He knew he was there to witness a testamentary paper, he saw the testator sign it and was asked by the testator or by the other witness in testator’s presence to sign as a witness. He testified on this point, “ The message to me was Mr. Morgan wanted to see me. And you didn’t hear the paper read that you signed ? Ho, sir. And you don’t know whether Mr. Morgan heard it read ? I don’t know ; I wasn’t told. Who asked you to sign it ? I can’t be absolutely certain about that, but I think it was both Mr. Morgan and Dr. Stewart. The mention was made of my witnessing the signature as soon as I went into the room, and after Mr. Morgan had affixed his signature; I can’t remember who it was said for me to sign it.” The actual signature of the testator and his intention to execute the paper are thus fully shown, and the nature of the paper appears on its face. Certainly in the absence of any conflicting evidence the requirements of the statute were complied with.

The second and principal error alleged is in the finding of the judge that the evidence of want of testamentary capacity was not sufficient to submit to a jury.

A will was written by counsel in November, 1903, and a codicil by the attending physician on March 22, 1904, both from dictation of the testator without aid or interference of any other person. Under such circumstances a prima facie case is made out, which can only be overcome by clear, definite, circumstantial and weighty evidence of facts not reconcilable with the possession of testamentary capacity. Opinions of experts, and the usual testimony as to the failings of age, lapses of memory, irritability, etc., are of little weight in such cases: Richmond’s Estate, 206 Pa. 219; Kane’s Estate, 206 Pa. 204; Draper’s Estate, 215 Pa. 314; Mulholland’s Estate, 217 Pa. 65.

Between the dates of the will and the codicil the testator made several very material changes in the disposition of his estate, and it is argued that this showed such weakness and vacillation of mind as to be strong evidence of want of testamentary capacity. But whatever weight such fact, unexplained, might have in ordinary cases, is obviated here by the plain indication that the impelling motive of the testator was to prevent his estate going into the hands or coming under the management of his son-in-law. He was less concerned as to where it should go than where it should not.

Testator had an only child, a daughter, whom he passed over and gave the bulk of his estate to her two children, and it is argued from this that the will is an unnatural one and evidence of undue influence. But a will is unnatural in a legal sense only when it is contrary to what the testator from his known views, feelings and intentions would have been expected to make. When it is in accordance with such views it is never unnatural, however much it may differ from the ordinary actions of men in similar circumstances. In the present case it was shown that the testator had a prejudice against his son-in-law and that his reason for passing over his daughter was to avoid the probability of the estate coming into the hands or management of her husband. It is conceded that the prejudice -was without any just foundation, but just or unjust its existence explains the testator’s action and deprives it of all weight as evidence of mental incompetency. As said by Paxson, J., in Cauffman v. Long, 82 Pa. 72, quoted by the learned judge below, a man’s prejudices are a part of his liberty.” The favoring of grandchildren in preference to children is hot in itself so unusual as to need justification.

The learned judge was of opinion that on the evidence a verdict against this will could not be sustained, and in that opinion we concur.

Judgment affirmed.


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

      Negligence — Railroads—Grade crossing — Collision between locomotive and wagon.

    The rule in Carroll v. Railroad Co., 12 W. N. C. 348, is in its nature only applicable to clear cases. It applies only when a person enters upon a railroad track and is struck by a moving train so instantaneously as to raise a legal presumption that he did not stop, look and listen, and to rebut any presumption that he had done so. Where there is doubt as to negligence upon the part of the plaintiff, the case is for the jury.
    In an action against a railroad company to recover damages for personal injuries sustained by plaintiff in a collision between a locomotive and a wagon on which the plaintiff was riding, the case is for the jury where the evidence tends to show that plaintiff stopped, looked and listened at a point some fifteen or twenty feet from the track, which according to the evidence of the defendant, permitted of a view along the track in the direction from which the engine came for a distance of about 600 feet, and that when plaintiff stopped he looked up and down the railroad in both directions and listened for a train, and, not seeing or hearing a train, started over the tracks with the result that the wagon was struck at the rear end just as it was leaving the track.
    Argued Oct. 24, 1907.
    Appeal, No. 92, Oct. T., 1907, by defendant, from judgment of C. P. Washington Co., Aug. T., 1906, No. 111, on verdict for plaintiff in case of J. E. Howard v. The Baltimore & Ohio Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.

      Trespass to recover damages for personal injuries.
    Before Taylor, J.
    The facts are stated in the opinion of the Supreme Court.
    Yerdict and judgment for plaintiff for $2,708.33. Defendant appealed.

      Error assigned among others was in refusing binding instructions for defendant.

      Norman E. Clark, with him Winfield McIlvaine, for appellant.
    One who is struck by a moving train which was plainly visible from the point he occupied when it became his duty to stop, look and listen, must be conclusively presumed to have disregarded that rule of law and of common prudence and to have gone negligently into an obvious danger: Myers v. B. & O. R. R. Co., 150 Pa. 386; Gangawer v. Phila. & Reading R. R. Co., 168 Pa. 265; Harvey v. Erie R. R. Co., 210 Pa. 95; Blotz v. R. R. Co., 212 Pa. 154; Sellers v. Ry. Co., 214 Pa. 298; Ellis v. Penna. R. R. Co., 216 Pa. 415; Sheehan v. R. R. Co., 166 Pa. 354; Holden v. R. R. Co., 169 Pa. 1.

      T. F. Birch, for appellee.
    The question of contributory negligence cannot be treated as one of law, unless the facts and inferences to be drawn from them are free from doubt. If there is doubt as to either the case is for the jury: Kuntz v. Railroad Co., 206 Pa. 162; Kelly v. Traction Co., 204 Pa. 623; Meyers v. Central R. R. Co. of N. J., 218 Pa. 305; Bickel v. Penna. R. R. Co., 217 Pa. 456.
    January 6, 1908:
   Opinion by

Mr. Justice Potter,

This was an action to recover damages for injuries sustained by plaintiff,, to himself and his property, while crossing the tracks of the defendant company at grade, near Finleyville, Pa. The appellant does not question the sufficiency of the evidence as to the negligence of the employees of the railroad company, but it contends that the plaintiff was guilty of contributory negligence. The trial judge declined to give binding instructions for the defendant, and submitted the questions of negligence and contributory negligence to the jury. The only question presented by this appeal, is whether under the testimony, the court below should have held as matter of law that the plaintiff by his negligence contributed to the happening of the accident. We have said many times that the rule set forth in Carroll v. Railroad Co., 12 W. N. C. 348, is in its nature only applicable to clear cases. It applies only where a person enters upon a railroad track, and is struck by a moving train so instantaneously as to raise a legal presumption that he did not stop, look and listen, and to rebut any presumption that he had done so. Where there is doubt as to negligence upon the part of the plaintiff, the case is for the jury. In the present case, it appears from the evidence that the horses of the plaintiff, instead of being struck immediately upon going upon the track, were not struck at all, but his wagon was struck at the rear end, just as it was leaving the track. The witnesses for plaintiff testified that he stopped, looked and listened at a point some fifteen or twenty feet from the track, which, according to the evidence of the defendant, permitted of a view along the track, to the east, the direction from which the train came, for a distance of about 600 feet. The plaintiff, in his account of the accident, states that he came down to within probably twenty feet of the main track, and he says : “ I had a driver with me and I called to my driver to stop, and I said, ‘ There’s a railroad crossing, stop,’ and he stopped the horses and we looked up and down the railroad in both directions and listened for the train, and we neither saw nor heard a train, so we started on over; I told the driver to go ahead and the driver started to go across the track, and just after the horses had got on the railroad crossing we heard an engine blow an alarm whistle, three rapid loud toots in succession. I yelled at the horses and grabbed the lines out of the driver’s hands and the horses jumped forward and cleared the track themselves, but the locomotive struck the wagon about the hind wheel, or rather towards the rear end of the wagon.” This statement is corroborated by the driver of the wagon. If the testimony upon the part of the plaintiff is to be believed, then he was not guilty of contributory negligence; it would go to show that he stopped at the proper place, and at that time could neither see nor hear any train approaching. If this was true, he was justified in proceeding to cross the track as he did. The engineer testified that when the engine struck the wagon, the train was running at a speed not exceeding eighteen miles an hour ; but even this rate would bring the train from the point where it could be first seen, to the crossing, in less than half a minute.

Under the evidence in this case, it could not properly have been taken from the jury.

The judgment is affirmed.


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    Pennsylvania Railroad Company, Appellant, v. Donora Southern Railroad Company.

      Appeals — Error—Harmless erren — Charge of court.

    A judgment will not be reversed because of an error in the charge, which was not an erroneous statement of a fact upon a decisive point in the case, but a misstatement that was wholly unimportant, except, that it might tend to divert the attention of the jury from a ground of dispute collateral to the main question; and this is especially the case where the attention of the court was not called to the misstatement at the time.
    Argued Oct. 24, 1907.
    Appeal, No. 98, Oct. T., 1907, by plaintiff, from judgment of C. P. Washington Co., May T., 1906, No. 157, on verdict for defendant in case of Pennsylvania Railroad Company v. Donora Southern Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Ejectment for tract of land in Carroll township.
    Before McIlvaine, P. J.
    The facts are stated in the opinion of the Supreme Court.
    The court charged in part as follows:
    [Did Joseph Bamford make an actual entry upon this land in dispute with the intention of claiming it ? Now, there does not appear to be any dispute or much dispute about the entry; there is a dispute about what his intention ivas when he entered, and we will speak of that under another head. There does not appear to be any dispute at all, I believe, that he remained in possession for a period of twenty-one years. The history of his coming to that locality and occupying this ground is something like this: In 1871 Allen Campbell owned one of these lots that John Dobbs had laid out, No. 62, I believe, and had a house on it in which he lived, and Joseph Bamford bought that lot from him and got a deed and had a good paper title for lot No. 62. Now, the defendant’s claim is that Joseph Bamford at the time he bought that lot which he afterwards conveyed to the steel company, the Union Steel Company or Mellons, also took possession of this land in dispute ; that between the Allen Campbell lot and a lot that has been designated here as the Fleming lot, lay the land in dispute, it being about 2,000 feet from the Allen Campbell lot up the river to the Fleming lot and running back at the Allen Campbell lot 190 feet and at the Fleming lot about 60 feet; that he took possession of that intervening land there as well as of the house and lot for which he received a deed from Allen Campbell; and as I said before, there does not appear to be very much dispute about the fact that he did move into that house about that time and that he did have possession of this land intervening between the Allen Campbell house and the Fleming house, for twenty-one years and more after the time that he moved in, having bought the lot in 1871 and having moved in perhaps the next spring, in 1872, which would make the twenty-one years expire in 1893. I say there does not appear to be much dispute about that. There does not appear to be very much dispute about the fact that his possession there was visible, open and notorious, — people knew that he occupied the ground between the Allen Campbell house and the Fleming lot, he was ploughing it and he was raising vegetables and he was using part of it as a landing for a ferry and allowing others to use it, and what he did there was open, visible and notorious. The contest, gentlemen, comes on the fourth requisite for a title by possession; and that was, you will recollect, that the possession must be distinct or exclusive, adverse and hostile. Now, the contest here turns not on the actual entry upon the land, not on the uninterrupted and continued possession for twenty-one years and not on the question ■that it was an open, notorious and visible possession, — not on that, but it turns on this : Was that actual entry in 1872 with the intent to claim that land as his own and was that claim kept up for twenty-one years adversely and hostile to the Moorhead people, and was the possession of that six and 73-100 acres exclusive,- — his exclusive possession and not a possession under Moorhead as landlord ?] [1]
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (1) portions of charge as above, quoting it; (2) that the charge as a whole was inadequate.

      R. W. Irwin, with him James A. Wiley, A. T. Morgan, and W. W. Wishart, for appellant.

      Samuel McClay, of Reed, Smith, Shaw & Beal, with him R. J. Dodds, and T. F. Birch, for appellee.
    January 6, 1908:
   Opinion by

Mr. Justice Fell,

This was an action of ejectment to recover possession of a narrow strip of land lying between the plaintiff’s road and the Monongahela river. The plaintiff’s title was by purchase from Moorhead and the defendant’s by purchase from .Barn-ford who claimed to have acquired title by adverse possession. That the defendant’s predecessor in title had been in possession a sufficient length of time to acquire title adversely, was not disputed, but the character of his possession was. The vital question in the case was whether he had occupied the land as a tenant of Moorhead or under a claim of ownership.

The first assignment is that the court incorrectly stated in the charge that it was not disputed that Bamford took possession of the land in question at the time of his purchase of a lot from Campbell in 1871, when in fact the defendant’s claim and the testimony in support thereof w7as that he took possession only of a part of the land at that time and of the remainder at the time of a later purchase of another lot from another person. Both purchases were made more than twenty-one years before a dispute arose as to the title, and the error had no bearing on the period of possession as it was concededly sufficient to found an adverse title on. It is, however, argued that this statement withdrew the attention of the jury from the disputed claim that Bamford had acquired a right to a part of the land by virtue of his second purchase and had an important bearing on the question as to whether he had entered into possession as a tenant. The error complained of was not the erroneous statement of a fact upon a decisive point in the case, but a misstatement .that was wholly unimportant except that it might tend to divert the attention of the jury from a ground of dispute collateral to the main question. Moreover, the attention of the judge was not called to the misstatement at the time. This should have been done before the jury withdrew in order that he might correct it: Halfman v. Insurance Co., 160 Pa. 202; Provident Life and Trust Co. v. Philadelphia, 202 Pa. 78; Kuntz v. Railroad Co., 206 Pa. 162; Commonwealth v. Razmus, 210 Pa. 609. In the case last cited it was said by the present Chief Justice: If the judge in referring to the testimony of a witness misquoted it in a material point, his attention should have been called to it at once before the jury retired. A party may not sit silent and take his chances of a verdict and then if it is adverse complain of a matter which if an error would have been immediately rectified and made harmless.”

There is no merit in the remaining assignment, that the charge was inadequate because of the failure of the court to comment on the testimony and to call the attention of the jury to the various facts and circumstances which indicated the nature of Bamford’s possession. The case had been very fully argued by most competent counsel. The charge, which covers eight pages of the paper-book, contains an exceptionally full, clear and accurate statement of the law, of the contention of the parties, of the exact question to be decided, and of the grounds on which the verdict should be based. Whether further comment was needed was a matter that rested in the discretion of the trial judge: Borham v. Davis, 146 Pa. 72.

The judgment is affirmed.


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    Fredericks, Appellant, v. Kerr.

      Wills — Power of sale — Real estate — Time limit.

    Where a testator grants “unto my executor the term of five years in ■which to make sale of my estate as aforesaid, using said time as in the judgment of my executor and the family may be deemed best in the interest of my estate,” a sale by the executor within five years is discretionary, and thereafter it is mandatory, and if the executor sells after the expiration of five years he conveys a good title.
    Argued Oct. 24, 1907.
    Appeal, No. 103, Oct. T., 1907, by plaintiff, from judgment of C. P. Washington Co., Feb. T., 1905, No. 71, for defendant non obstante veredicto in case of Wm. H. Fredericks v. A. H. Kerr.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Ejectment for a lot in the borough of Burgettstown.
    Before McIlvaine, P. J.
    The opinion of the Supreme Court states the case.
    Verdict for plaintiff. Subsequently the court entered judgment for defendant non obstante veredicto.

      Error assigned was the judgment of the court.

      Homer L. Castle, with him F. W. Jarvis and G. P. Baker, for appellant,
    cited: Hemphill v. Pry, 183 Pa. 593.

      John H. Murdoch and Edgar B. Murdoch, for appellee, were not heard.
    January 6, 1908:
   Opinion by

Mr. Justice Mestrezat,

In his last will and testament the testator provides as follows : “ 1 further direct that all my real estate and personal property be sold and converted into money except any household goods my wife may desire for her own use. . . . I hereby grant unto my executor the term of five years in which to make sale of my estate as aforesaid, using said time as in the judgment of my executor and the family may be deemed best in the interest of my estate.” He bequeaths to his wife the interest on a certain sum during her natural life, gives to his two sons, John Donnan and David Patterson, a collegiate education at Washington and Jefferson College, and then disposes of the residue of the proceeds of his property in the manner directed in the will.

Under the power conferred by the will the executor sold to the defendant’s predecessor in title the land in dispute in this action of ejectment, which was brought by the appellant who claims title under a deed from the heirs of the testator made some years subsequent to the executor’s sale. The appellant contends that the sale made by the executor passed no title, because it was not made within five years from the date of the testator’s death. The court below held that notwithstanding the sale was made by the executor after the expiration of the five years from his death, the purchaser took a good title. In his opinion, entering judgment non obstante veredicto for the defendant on the question of law reserved, the learned judge said: “ Taking the whole will together to discover the intention of the testator, we do not believe that he in naming five years intended to put a limit upon the power, but only upon its discretionary exercise. Up to the end of five years the power could be exercised or not by the executor at his discretion — after that it was mandatory. The default of the executor could not, and did not, destroy the power granted by the testator. It existed until the purpose was accomplished which the testator intended to be accomplished by having his real estate sold. That was a settlement and distribution of his entire estate in accordance with the provisions of his will.”

The learned judge was clearly right in this interpretation of the testator’s will. • Power was clearly conferred upon the executor to make sale of the real estate for the purposes named in the will. The rights of the beneficiaries could not be defeated by any act of the executor in failing or neglecting to make the sale within the five years named in the will. There is no provision in the will disposing of the real estate if the executor should not exercise his power to sell within the five years. The manifest purpose of the testator was to prevent a compulsory sale by the executor at the instance of the beneficiaries within five years, and not to deprive the executor of a power of sale after the expiration of that time. "Within the five years from the date of the testator’s death the power of the executor was discretionary, made so by the testator, doubtless to protect the interests of the estate and to prevent a possible sacrifice of the property. He deemed it prudent that the executor should not be compelled to sell the real estate at an earlier period. Similar provisions are frequently found in wills, and they, in many instances, save the estate from great losses. Unless the view here taken of the clause in question in the testator’s will prevails, the plain purpose he had in disposing of his estate will be defeated. He did not intend that such results should follow the failure of his executor in delaying the sale of his real estate a few months after the expiration of five years from his death. We think it clear that the learned judge of the court below properly interpreted the intentions of the testator in holding that a sale by the executor within five years was discretionary, and that thereafter it was mandatory.

Our conclusion is sustained by the decided cases. In Shalter & Ebling’s Appeal, 43 Pa. 83, the will directs that the real estate be sold at public sale by the executors as soon after the testator’s decease as may be according to their best discretion, so that it be “ done within one year after his decease.” Real estate was sold by an administrator c. t. a., and it was held that the sale “ was as effectual as if it had been made by the executors, who undoubtedly had the power to sell, although the year had expired, for that was only directory, and not a condition precedent.” Fahnestock v. Fahnestock, 152 Pa. 56, was a bill filed by the devisees and legatees under a will for a partition of the real estate of the testator. The will authorized the executors to sell the real estate, and in the last paragraph, after naming the executors, provided as follows: “ And I hereby give them two years after my decease for the final settlement of my estate,” with a provision that, the time might be extended to four years. A sale not having been made by the executors within four years some of the heirs filed a bill for partition, which was dismissed by the court. In sustaining the court below, this court said (p. 63): This power (of sale conferred on the executors) was not destroyed by the default of the executors ; it survived their failure to exercise it within the four years allowed by the sixth clause for a final settlement of the estate. During this period they had some discretion as to the time of -its exercise, but they have none now.”

A like ruling on similar clauses in wills has been made in the state of New York: Mott v. Ackerman, 92 N. Y. 539; Spitzer v. Spitzer, 38 N. Y. App. Div. 436.

We are of the opinion that the sale and conveyance made by the executor of the real estate in controversy to the defendant’s predecessor in title conveyed a good title, and that, therefore, the judgment non obstante veredicto was properly entered by the court below in favor of the defendant.

The judgment is affirmed.


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    Harper v. Pittsburg, Cincinnati, Chicago & St. Louis Railroad Company, Appellant.

      Negligence — Railroads—Station—Platform.
    The obligation upon a passenger at a station, going to or from his train, is not the same as that of a person at a public crossing. If the way provided is across a track he may rely upon the performance by the company of the duty to keep the track clear while passengers are in the act of passing-between the train and the station.
    In an action against a railroad company to recover damages for personal injuries it appeared that the accident happened at a station where there were four tracks. The first track nearest to the station was used for freight trains, and the second for passenger trains. Between the two tracks was a board platform about five feet in width intended for the use of passengers in approaching and alighting from trains. The only access from the station to this platform was over the freight track. On the night of the accident the plaintiff hearing the train whistle for the station, left the waiting room with other passengers, passed over the first track, and onto the narrow platform between the tracks. While standing there and just before the passenger train came to a stop, he was struck by a freight train, which, with tender and engine reversed, showing no light and giving no warning, ran down upon the first track. The space between the two trains standing side by side was not more than twenty-five inches in -width, and several persons were caught between them and injured. Held, (1) that the court could not say as a matter of law that plaintiff was guilty of contributory negligence; (2) that the case was for the jury, and that a verdict and judgment for plaintiff should be sustained.

      Argued Oct. 24, 1907.
    Appeal, No. 129, Oct. T., 1907, by defendant, from judgment of C. P. Washington Co., Aug. T., 1906, No. 55, on verdict for plaintiff in case of W. J. E. Harper v. Pittsburg, Cincinnati, Chicago & St. Louis Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    Before McIlvaine, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $3,000. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      R. W. Irwin, with him James A. Wiley and A. T. Morgan, for appellant.
    Plaintiff was guilty of contributory negligence: McGeehan v. Lehigh Valley R. R. Co., 149 Pa. 188; Betts v. R. R. Co., 191 Pa. 575; Kohler v. R. R. Co., 135 Pa. 346.

      Norman E. Clark, with him W. S. Parker and Winfield McIlvaine, for appellee.
    The case was for the jury: McGeehan v. R. R. Co., 149 Pa. 188.
    January 6, 1908:
   Opinion by

Mr. Justice Potter,

At McDonald station, on the line of the railway of the defendant company, there are four tracks. The one nearest the station is used by freight trains, and the second track is for east bound passenger trains. Between these two tracks is a board platform, about five feet in width, intended for the use of passengers in approaching and in alighting from the train.

On the night of the accident, the plaintiff, hearing the train whistle for the station, left the waiting room, passed over the first track, and on to the narrow platform between the tracks. While standing there, and just before the passenger train came to a stop, he was struck by a freight train, which, with tender and engine reversed, showing no light and giving no warning, ran down upon the first track. The space between the two trains standing side by side, was not more than twenty-five inches in width, and several persons were caught between them, and injured.

The negligence of the employees of the defendant company in running the freight train over the intervening track, while the passengers were passing from the station to the train, was not denied ; but it was contended that the plaintiff was guilty of contributory negligence because he did not wait in* front of the station, until the passenger train had come to a full stop, before he stepped across the first track. The trial judge refused the request of counsel for appellant to so charge the jury.

The only question raised by this appeal, is whether the court below should have held as matter of law that the plaintiff could not recover by reason of this alleged contributory negligence. Counsel for appellant cites the case of McGeehan v. Lehigh Valley R. R. Co., 149 Pa. 188, as sustaining his contention. But in that case it was distinctly pointed out that the planked space between the two tracks was not a platform intended for the use of the passengers. It was said that not a witness testified that it was built or arranged for any such purpose.

In the present case the witnesses for plaintiff testified that the planking between the frieght and passenger tracks was a platform, and it was repeatedly referred to as such by counsel on both sides, during the trial. It is so designated in appellant’s history of the case, and it is further stated that it was for the accommodation of passengers in alighting from and boarding trains. So that in this respect the present case is to be clearly distinguished from McGeehan v. Lehigh Valley R. R. Co. It also appears that in that case the plaintiff went out and stood between the tracks in advance of the coming of the train. In the present case, plaintiff was in the waiting room of the station, until he heard the train whistle, and saw other people starting out. He followed them, and was the last to leave. He crossed the first track, and was taking a few steps along the platform, when the freight train came down upon him.

We think the plaintiff was entitled to assume that the way provided by the defendant company for him to reach the passenger train was reasonably safe, and that he was not bound to anticipate that a freight train would run him down, while he was in the act of crossing the intervening track to reach the passenger train. As our Brother Fell said in Flanagan v. P., W. & B. R. R. Co, 181 Pa. 237, the obligation upon a passenger at a station, going to or from his train, is not the same as that of a person at a public crossing. “ If the way provided is across a track he may rely upon the performance by the company of the duty to keep the track clear while passengers are in the act of passing between the train and the station.”

' Under the evidence in this case, the only way provided to reach the passenger train was across the first track. It would have been error in the trial judge to have held as matter of lawT, that the plaintiff was guilty of contributory negligence.

The judgment is affirmed.


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    McDaniel, Appellant, v. McDaniel.

      Will — Devise—Li,fe estate — Contingent remainder.

    Where a testator devises land to a son for the term of his natural life, and on his decease to the children of his son then living, and the children of such of them as shall then be dead, and if the son should die without having such child or children or grandchildren, then the property should go to other children and grandchildren of the testator, the son takes an estate for life and if he survives his father, has a child which dies, and then dies himself, the other children and grandchildren of the testator named in the will take the remainder.
    Argued Oct. 24, 1907.
    Appeal, No. 148, Oct. T., 1907, by plaintiff, from judgment of C. P. Washington Co., Aug. T., 1907, No. 19, for defendants on case stated in suit of Mary M. McDaniel v. Andrew McDaniel.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Case stated on a rule to settle title under the Act of June 10, 1893, P. L. 415.
    Before Taylor, J.
    The opinion of the Supreme Court states the case.

      Error assigned was in entering judgment for defendants.

      James A. Magill, for appellant.

      James P. Eagleson, for appellees.
    January 6, 1908:
   Per Curiam,

The devise of one tract to Joseph McDaniel through whom, the plaintiff claims was “ for the term of his natural life and no longer,” with remainders “to the children of my.said son Joseph McDaniel then living, and the children of such of them as shall then be dead. . . . And if my said son Joseph shall die without having such child or children and grandchildren, then the said properties are to go to the children of my son Andrew M’Danel, then living, and the children of such of them as shall then be dead.”

The devise of the other tract was to “Joseph for the term of his natural life, .... and after the death of my said son Joseph, then the last described property shall go to his children then living, and the children of such of them as shall then be deceased, in equal parts or shares; but if my son Joseph should die, not then having any living children or any children of a deceased child, of his, then the'last described property "shall go to my two sons Eobert and Andrew for their lives, and for the life of the survivor, etc.

The devises were of a definite life estate and the remainders contingent, on the existence of children or grandchildren of Joseph at his death. Nothing could be clearer than the testator’s actual intent that-the event on which the contingency depended was not his own death but that of Joseph, the life tenant. Joseph had a child, but she died before he did, and when the time for determining the contingency arrived there was no child or grandchild of Joseph “then living” and by the clear expression of the testator’s intent the remainder-men under the will were his sons Robert and Andrew and the latter’s children: Wood v. Schoen, 216 Pa. 425.

Judgment affirmed.