author: Mb. Justice Potteb,

text:
    Confer, Appellant, v. Pennsylvania Railroad Company.

      Negligence—Railroads—“Stop, look and listen.”

    Where a person approaches a grade crossing where there are three tracks, and where there are cars standing on both sides of the crossing, and stops, looks and listens at a point where people usually stopped before crossing the railroad, the question whether he should have stopped again at another point is a question for the jury, and not for the court.

      Practice, C. P.—Submission of question to fury—Reserved question.

      ■ Where the trial judge submits a specific question to the jury to be answered by them, yes or no, and the jury answers the question in favor of the plaintiff, it is error for the trial judge to enter judgment for defendant on the ground that the evidence was insufficient to sustain the finding. If the fact was improperly found, the remedy is a new trial.
    The trial judge cannot himself draw conclusions of fact from the evidence.
    Hence a reserved question must be a pure question of law. It cannot be a mixed question of law and fact, for that would necessarily draw to the • court what properly belongs to the jury.
    Argued April 18, 1904.
    Appeal, No. 212, Jan. T., 1903, by plaintiff, from order of C. P. Centre Co., April T., 1901, No. 112, entering judgment for defendant non obstante veredicto in case of G. J. Confer v. Pennsylvania Railroad Company.
    Before Mitchell, C. J., Dean, Brown, Potter and Thompson, JJ.
    Reversed.

      Trespass to recover damages for personal injuries. Before Love, P. J.
    The circumstances of the accident are stated in the opinion of the Supreme Court.
    Verdict for plaintiff for $4,000. The court entered judgment for defendant non obstante veredicto. Plaintiff appealed.

      Error assigned was in entering judgment for defendant non obstante veredicto.

      Ellis L. Orvis, for appellant.
    This case is ruled by Elston v. Delaware, etc., R. R. Co., 196 Pa. 595.
    In order to enter judgment against a verdict, the judge below cannot himself draw conclusions of fact from the evidence; these are determined by a jury: Winchester v. Bennett, 54 Pa. 510; Wilde v. Trainor, 59 Pa. 439 ; Com. to use v. McDowell, 86 Pa. 377.
    It is error to submit a particular fact in a cause to the jury and after the fact has been found by them to enter judgment for the party against whom it is found on the ground that the evidence is insufficient to establish it: North American Oil Co. v. Forsyth, 48 Pa. 291; Butts v. Armor, 164 Pa. 73.

      John Blanchard, with him Edmund Blanchard, for appellee.
    Plaintiff was-guilty of contributory negligence : Gangawer v. P. & R. R. R. Co., 168 Pa. 265 ; Kinter v. Penna. R. R. Co., 204 Pa. 497; Carroll v. Railroad Co., 12 W. N. C. 348; Marland v. Railroad Co., 123 Pa. 487; Myers v. Railroad Co., 150 Pa. 386; Holden v. Railroad Co., 169 Pa. 1; Derk v. Railway Co., 164 Pa. 243; Fox v. Railroad Co., 195 Pa. 538.
    June 15, 1904:
   Opinion by

Mb. Justice Potteb,

On the morning of October 27, 1900, the plaintiff was injured at a grade crossing of the public highway, on the tracks of the defendant company in the borough of Howard, Centre county; He was driving southward along the main street of the borough in a spring wagon drawn by two horses. At the point where the accident occurred the street crosses three parallel tracks, the northernmost two being sidings, and the third the main track of the railroad. The three tracks have a total width of twenty-eight feet from the outer rail to outer rail.

The plaintiff testified that on the day of the accident as he approached the crossing, there was a freight train on one of the sidings, and a wreck train or gravel train on the other. The former extended across the street and he stopped his team in front of a store forty feet or more distant from the track. Then he drove on, to a point twenty or twenty-five feet from the tracks, where he stopped again, rose from his seat, and looked and listened for the approach of a train on the main track. He saw and heard nothing, and the freight cars having meanwhile been moved back from the street and two other wagons having crossed from the opposite side, he drove upon the tracks. As he crossed the main track his wagon was struck by a special freight train coming from the east and he was injured. He testified that no whistle was sounded nor bell rung to give notice of the approach of the train which struck him.

Plaintiff’s account of the accident was corroborated by other witnesses and it was shown that the point where he stopped, looked and listened was the place where people usually stopped before crossing the railroad.

The negligence alleged was failure to give warning of the approach of the train. Nine witnesses testified that they were in position to hear and observe whether the whistle was sounded or bell rung by the approaching train, and that they heard neither whistle nor bell. Some of them had special reason to take notice and they were almost all positive that no warning whatever was given.

The defendant offered testimony to show that the whistle was sounded and that if the plaintiff had looked and listened, as he claimed to have done, he could have both heard and seen that the freight was coming.

Upon the trial the defendant presented two points for charge:

First. The rrndisputed evidence in this case proves that the plaintiff was guilty of contributory negligence as a matter of law and therefore the plaintiff cannot recover and the verdict must be for the defendant and the jury are instructed so to find.

Second. There is no evidence in this case that entitles the plaintiff to recover and therefore the verdict must be for the defendant and the jury are instructed so to find.

To each of these the court answered, The question of law raised by this point is reserved for further consideration.

At the conclusion of the charge the court submitted to the jury five points in writing, saying: Now, for my own satisfaction hereafter, I desire you to return answers to the following questions, which will be sent out with you to be returned with your verdict:

1. Do you find from the evidence that the whistle was blown and the bell rung on the freight 'train that collided with the plaintiff, as testified to by defendant’s witnesses ?

2. Do you find from the evidence that the rear car of the local freight train, standing on the warehouse siding, was west of the siding, about opposite the platform of the freight depot?

3. Do you find from the evidence that there were no cars west of the crossing standing upon the middle track of the railroad so as to obstruct the view of the plaintiff?

4. Do you find that if the plaintiff stopped at twenty-five feet from the north track and looked and listened, that at that point the station, and cars on the track west of the crossing would obscure his view of the track in looking west?

5. Do you find from the evidence that had the plaintiff approached within ten or fifteen feet of the north track he could have had a better and more extensive view of the tracks west and could have seen the approaching train with which he collided?

Those questions can all be answered yes or no and you can return them with your verdict.

The jury answered all the questions submitted by the court, in the negative, and found a general verdict in favor of the plaintiff for $4,000.

Subsequently the .court entered judgment, in favor of the defendant, non obstante veredicto, upon the questions reserved. These appear only in the charge and were upon the two points submitted by the defendant.

The assignments of error are all substantially to the same effect, that the court below erred in the entry of judgment for the defendant.

The question of negligence was found specifically against the defendant, as a plain matter of fact. The location of standing cars, with relation to the crossing, was also in dispute, and that matter was also submitted by the trial judge to the jury, both in his general charge, and specifically in the second and third questions, which the jury answered in the negative, thereby sustaining the contentions of the plaintiff in that respect. It appeared from the evidence that the plaintiff first stopped as he approached the crossing at a point farther from the track than the usual place for stopping, because the street was partly obstructed by cars. When they were pulled out of the way, he passed on to a point about twenty-five feet from the north track, which was apparently the usual place for stopping. In answering the fourth specific question submitted to them, the jury found that at that point the view of the plaintiff looking west would not be obstructed by the station and the cars on the track, west of the crossing. And' in answering the fifth question the jury said that as a matter of fact, the view of the track would not have been improved for the plaintiff if he had approached ten or fifteen feet nearer the north track, instead of stopping where he did, the last time. This was purely a question of fact, and its determination would require the position of the cars standing upon the tracks at the time, to be taken into consideration. The trial judge in entering judgment for the defendant, notwithstanding the verdict of the jury, assumed that the finding of the jury in this respect was wrong. But the fact was specifically submitted to the jury, and having been found in favor of the plaintiff, it was error for the trial judge to enter judgment for the defendant on the ground that the evidence was insufficient to sustain the finding. If the fact was improperly found, the remedy was a new trial: North American Oil Co. v. Forsyth, 48 Pa. 291. As our Brother Dean said in Butts v. Armor, 164 Pa. 73, “ Whether warranted or unwarranted, the jury believed defendant’s witnesses, and on the facts testified to by them, drew the inference, which the court instructed them they might draw, if they thought it was warranted. The court cannot now draw an opposite one, and negative the verdict. It can only set the verdict aside if it be against the weight of the evidence.”

The verdict of the jury and their special findings of fact take this case out of the principle set forth in Kinter v. Penna. R. R. Co., 204 Pa. 497, and place it within the lines of the decision in Elston v. Del., etc., R. R. Co., 196 Pa. 595, to which indeed, in its facts and circumstances, it bears a close resemblance.

Upon the facts as here found by the jury the court could not say, as matter of law, that the plaintiff was guilty of contributory negligence. To justify that conclusion he would have to ignore the conclusions of fact drawn from the evidence by the jury, and draw for himself a different inference of- fact. But as Justice Si-iarswood said in Com. to use, etc., v. McDowell, 86 Pa. 877, “ The judge cannot himself draw conclusions of fact from the evidence. Hence the reserved question must be a pure question of law. It cannot be of a mixed question of law and fact, for that would necessarily draw to the court what properly belongs to the jury.” Under the facts as found, judgment should have been entered upon the verdict in favor of the plaintiff.

The first, second, fifth and sixth assignments of error are sustained and the judgment is reversed. It is further ordered that the record be remitted to the court below, with directions to enter judgment upon the verdict in favor of the plaintiff.


source: Caselaw Access Project

license: Public Domain

text:
    Wineberg v. DuBois Borough, Appellant.

      Negligence—Boroughs—Sidewalk—Damages—Proximate and remote cause.

    In an action by a woman against a borough to recover damages for injuries to her leg caused by a fall on a defective sidewalk, it is error for the court to submit to the consideration of the jury as an element of damages the results of a second fall, which occurred in plaintiff’s own house months after the first accident, and which, she testified, was caused by her well foot slipping and the inability of the other leg to support her and save her from falling.
    Argued April 18, 1904.
    Appeal, No. 13, Jan. T., 1904, by defendant, from judgment of C. P. Clearfield Co., Sept. T., 1902, No. 379, on verdict for plaintiff, in case of Sarah Wine-berg v. DuBois Borough.
    Before Mitchell, C. J., Dean, Brown, Potter and Thompson, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Gordon, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Verdict and judgment for plaintiff for §1,750. Defendant appealed.

      Error assigned amongst others was portion of charge quoted in the opinion of the Supreme Court.

      W. 0. Eentz, for appellant.
    The first fall was not the proximate cause of the second: Scott v. Allegheny Valley Ry. Co., 172 Pa. 646 ; Swanson v. Crandall, 2 Pa. Superior Ct. 85 ; South Side Pass. Ry. Co. v. Trich, 117 Pa. 390; Habecker v. Lancaster Twp., 9 Pa. Superior Ct. 553 ; McGrew v. Stone, 53 Pa. 436 ; Chartiers Twp. v. Phillips, 122 Pa. 601; Herr v. Lebanon, 149 Pa. 222; Schaeffer v. Jackson Twp., 150 Pa. 145; Wood v. Penna. R. R. Co., 177 Pa. 306; Hunter v. Wanamaker, 2 Atl. Repr. 507.

      A. L. Cole, with him E. Blaise Kuntz, for appellee.
    June 15, 1904:
   Opinion by

Mb. Justice Potteb,

. The plaintiff while walking along the board walk upon a public street of the borough of DuBois, on a dark rainy evening, fell from the walk upon the side next the property line, and sprained her knee. The walk was substantially built of planks but on the side from which the plaintiff fell it was about thirty inches from the level of the ground and was not protected by a guard rail. Plaintiff admitted having been over the walk at intervals of from two to three weeks for a year before the accident, but stated that her attention had never been- particularly attracted to the height of the walk. There was some evidence to the effect that her eyesight was defective but this was contradicted. There was also evidence that there was a sidewalk on the other side of the street but plaintiff testified that she did not know it. Defendants attempted to show that plaintiff took a light in a house near by as a guide, and was therefore guilty of contributory negligence inasmuch as the house was quite a distance back from the sidewalk. The testimony does not seem to warrant this assumption, but indicates rather that plaintiff used the light as a guide to keep her on the walk and did not go directly toward it but to one side of it.

Plaintiff was confined to lier bed for six weeks or more and was not able to move about until July. After that she was able to walk on crutches until September. After September :she was able to get along with a cane, and by supporting herself by leaning on objects in the room. Her knee was stiff and still pained her. /On February 23, 1903, she had a second fall which she says was caused by her well foot slipping and by reason of her other leg being stiff she could not save herself from falling, and as a result, she received additional injury to the limb which had been hurt before.,/ She testified on cross-examination that she did not use a cane at that time when walking about in the house. After the second accident, plaintiff’s condition was worse; she suffered very much and had to go to bed again. She has never been able to walk without crutches since that time. The doctor testified that the fall made the condition of the leg worse in that it inflamed it but that it made it better by limbering up the stiff joint.

The court below submitted the question to the jury whether the negligence of the borough was the proximate cause of the second accident, in the following language : “ There is still another question involved in this case and that is, what effect the second accident which happened to this woman had upon her claim. And upon that we say to you, that all persons in life are required to exercise due and proper care in all their relations of life, and this woman after she was injured by the fall on the pavement was required to exercise due care, not only in performing her household duties but on the streets and every place else and if she failed to exercise due care in walking around and as a result of her negligence she was injured a second time she could not recover for the second injury. . . . At the same time I understand the plaintiffs were claiming that the second accident was the result of the first one, and I was just coming to that branch of the case. That if a person is injured and crippled, and as a result of that it is impossible with safety to walkthrough the house or about the streets, and if in walking about and exercising due care a second accident results, why that results from the first accident, because if it had not been for the first accident the second wouldn’t have occurred. ... As I said before, the question arises whether the second accident was the result of negligenceor not. If it was not, of course the borough would not be liable the same as for the" first.”

This instruction was too broad. It made the borough liable for the result of the second fall, even though it were purely accidental. ' The second accident did not occur upon the streets of the borough, but in the house of the plaintiff. It was not caused by the injured leg, but by the slipping of the sound foot. It does not seem that counsel for the plaintiff intended to charge the defendant with the results of this second fall, for they expressly disclaimed any intention of claiming damages upon that account, when the testimony was offered, and said that they only sought to use it as accounting for the condition of the plaintiff. Yet the court in the charge called the attention of the jury to the pain and suffering resulting from the second accident. We think it is clear from the evidence that the first injury was not in any way the proximate cause of the second accident, and that the jury should have been instructed not to include its results in awarding damages for the negligence of the defendant in causing the first injury to the. plaintiff.

The question of whether or not the plaintiff was guilty of contributory negligence in not taking proper care of herself at the time she suffered the second fall does not arise in this case. The mistake of the trial judge was in holding that there was any relation of cause and effect between the two accidents. We see none, under the testimony.

The seventh assignment of error is sustained, and the judgment is reversed, with a venire facias de novo.


author: Mb. Justice Dean,

text:
    Coolbroth, Appellant, v. Pennsylvania Railroad Company.

      Practice, C. P.—Trial—Reservation of question of law.

    A reservation which embraces a mixed question of law and fact is not a legal reservation of a question of law alone.

      Negligence—Railroads—“Stop, look and listen ”—Grade crossings.

    Where the evidence is conflicting as to whether a person stopped at the best place to look out for danger before approaching a railroad crossing, the case must go to the jury.

      Negligence—Contributory negligence—Province of court and jury.

    The question of contributory negligence cannot be treated as one of law, unless the facts and the inferences from them are free from doubt. If there is doubt as to either the case is for the jury.

      Negligence—Contributory negligence—Burden of proof—Evidence.

    In an action to recover damages for personal injuries the burden is on the plaintiff to prove negligence on the part of defendant, and that this negligence caused the injury. He is not bound to go further and prove that he did not contribute to the result by his own negligence; that burden is on the defendant, unless the evidence adduced by plaintiff discloses contributory negligence.
    Argued April 19, 1904.
    Appeal, No. 32, Jan. T., 1904, by plaintiffs, from order of C. P. Clearfield Co., May T., 1903, No. 58, entering judgment for defendant non obstante veredicto in case of Grace Coolbroth and Charles Coolbroth, her husband, v. Pennsylvania Railroad Company.
    Before Mitchell, C. J., Dean, Brown, Potter and Thompson, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Gordon, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Defendant presented, inter alia, the following point:
    First. The court is respectfrilly requested to direct a verdict in favor of the defendant for the following reasons ;
    1. Because it appears by the testimony of plaintiff herself that the point where she stopped to look and listen was to the south side of the Irvin siding and before she got quite to the siding, which is shown by the testimony of her engineer, Mr. Moore, to have been over fifty-three feet along the sidewalk from the track where she was struck.
    2. Because it appears by some of her witnesses who were a considerable distance from the train that they were able to see the train and did see it, and are able to state approximately the distance they were from it.
    3. Because the plaintiff was not injured on the track, but just as she was about to step on the track before a locomotive, which is shown by uncontradicted testimony to have been equipped with a proper headlight.
    4. Because it appears by the testimony on the part of the plaintiff that the box cars and the lumber pile were necessarily out of view after she passed the Irvin siding, and that there was no obstruction between the Irvin siding and the track where she was struck, and that the distance between them along the sidewalk is forty-five feet.
    5. Because the plaintiff was struck on the back, showing that she had her face away from the direction from which this train came.
    6. Because the place at which she stopped over fifty-three feet from the track was shown by the testimony to have been a point where the view was obstructed; while on the ground she passed over after crossing the siding and in which she did not stop, the view was unobstructed for over 300 feet.
    7. Because the testimony shows that at any point within the space from the Irvin siding to the track at which she was struck along the sidewalk there was an unobstructed view of the approaching train for several hundred feet; that immediately before stepping on the track she would have had a view of over 300 feet and this view would be widened in the direction from which she came.
    8. Because there is no testimony upon the part of the plaintiff that no bell was rung or whistle sounded; the witnesses only stating that they did not hear such signals, and none of the witnesses are shown to have had any relation to the train which specially called their attention to the signals, and this testimony against the positive testimony of the engineer, fireman, and brakeman that the signals were given is insufficient to justify a finding by the jury that they were not given.
    9. Because none of. the witnesses who testified on the part of the plaintiff in relation to the speed of the train are shown to have had any qualification or experience to enable them to judge of its speed, and it is testimony of such vague character as would be overborne by the positive testimony of the engineer, fireman, brakeman and conductor, and by the schedule of the train.

      Answer: This point asks us to take the case from the jury, but in the view we take of it at this time we cannot do that, and we therefore refuse this point and will reserve the question for future consideration.
    Verdict for Grace Coolbroth for $1,000 and for Charles Cool-broth for $2,000.
    The court entered judgment for defendant non obstante veredicto. ■ •

      Error assigned was in entering judgment for defendant non obstante veredicto.

      David L. Krebs, of Krebs Live-right, with him Wrn. Irvin Swoope, for appellants.
    The reservation was not in proper form: Clark & Thaw v. Wilder, 25 Pa. 314 ; Irvin v. Wickersham, 25 Pa. 316 ; Wilson v. Steamboat Tuscarora, 25 Pa. 317; Winchester v. Bennett, 54 Pa. 510 ; Wilde v. Trainor, 59 Pa. 439; Ferguson v. Wright, 61 Pa. 258; Buckley v. Duff, 111 Pa. 223; Henry v. Heilman, 114 Pa. 499; Casey v. Paving Co., 198 Pa. 348; Mayne v. Fidelity, etc., Co., 198 Pa. 490.
    The court erred in holding as matter of law that the plaintiff Grace Coolbroth was guilty of contributory negligence: Kuntz v. New York, etc., R. R. Co., 206 Pa. 162.
    The very difficulty with which the question seemed surrounded made submission of it to the jury imperative. The court held that it was not one-sided. The doubt with which his own mind was clouded upon the point made it error to determine the question of contributory negligence as matter of law: Kuntz v. Railroad Co., 206 Pa. 162; Doud v. Delaware, etc., R. R. Co., 203 Pa. 227; Bard v. Philadelphia & Reading Railway Co., 199 Pa. 94; McCusker v. Pennsylvania Railroad Company, 198 Pa. 540; Muckinhaupt v. Erie Railroad Company, 196 Pa. 213; Davidson v. Lake Shore & Michigan Southern Railway Co., 179 Pa. 227 ; McNeal v. Pittsburg & Western Railway Company, 131 Pa. 184.

      Thomas H. Murray, of Murray ¿- (ILaughlin, for appellee.
    The reserved question was sufficient to support the judgment entered thereon: Williams v. Crystal Lake Water Co., 191 Pa. 98 ; Casey v. Paving Co., 198 Pa. 348 ; Mayne v. Fidelity, etc., Co., 198 Pa. 490.
    This was a case for binding instructions for defendant company : Penna. R. R. Co. v. Mooney, 126 Pa. 244, 252; Hauser v. Central R. R. Co., 147 Pa. 440, 444; Myers v. B. & O. R. R. Co., 150 Pa. 386, 390; Holden v. Penna. R. R. Co., 169 Pa. 1, 16, 17; Hovenden v. Penna. R. R. Co., 180 Pa. 244, 246-251.
    June 15, 1904:
   Opinion by

Mb. Justice Dean,

As this case is presented on the record we will have to reverse the judgment for these reasons: 1. The form of the reservation is very unsatisfactory because, from the manner of it, it does not clearly disclose the exact legal question reserved. But assuming that we might get around the informality of the reservation and find that it is good in substance, then, 2. The reservation embraces a mixed question of law and fact. These are the facts as plaintiff avers them and there was some evidence to sustain her averments:

“ On the afternoon of the 29th of August she went from her home in the central part of the borough of Curwensville across the Susquehanna river and across the railroad of the defendant company to visit a lady with whom she had business pertaining to some of her work as a seamstress.

“ She remained at this house during all the afternoon and until after eight o’clock in the evening of the same day. It was quite dark when she started to return to her home, which was distant between a quarter and a half a mile. She recrossed the river on an open iron bridge and as she was about the west end of the bridge, the end nearest the railroad, she heard the whistling of a train.

“ There being but few trains on this end of the railroad and none due at this hour, by any schedule of trains, she was puzzled to know where to look for this train.

“She not only looked in the direction of Clearfield from which direction it subsequently appeared a passenger train was coming, and which was running two hours and a half behind time but she also looked in the opposite direction, thinking it might be a train coming from the region of Grampion—a point north.

“ When she reached the side track, which ran from the main track across the street on which she was traveling toward home to a mill that stood near the footwalk on which she was walking, she stopped, looked and listened, but saw no train, saw no headlight, nor the reflection of any light, heard no whistle nor any bell.

“ The night was dark, as shown not only by her own testimony but also of other witnesses called in her behalf. Just beyond the defendant company’s road, and at a higher elevation, an engine on the Buffalo, Rochester & Pittsburg Railroad was standing.

“At the trial of the cause, it appeared from the testimony that some cars were standing on the side track near the public road or street that to some extent obstructed the view of the main track. This obstruction so far as the cars are concerned was created by the defendant, but how long they had been standing there does not appear from any evidence; whether they were run upon that side track that afternoon or evening does not appear.

“ This obstruction of the view of the main track was something the plaintiff could not anticipate.

“ From the point where she stopped and looked and listened she could see down the main track some considerable distance, and had the headlight of the engine been burning it would have surely appeared.

“ From this point, seeing and hearing nothing, no bell being rung and no whistle blown, she proceeded to walk across this side track toward the main track about fifty-two feet distance, continually watching down the road to see if a train was approaching. Seeing nothing in that direction she turned to look in the opposite direction and as she stepped on the track she was struck by the engine and thrown about eighteen feet and very badly hurt.”

We concede, that on the facts, taking them to be just as plaintiff alleges them, the case is a close one and we fully appreciate the difficulties of the learned judge of the court below in arriving at a correct conclusion on the point reserved, nevertheless, we, think in entering judgment for defendant on the point he invaded the province of the jury. The court in entering judgment for defendant says: “ The question raised by defendant’s requests in their points for binding instruction and the nine reasons given therefor, which points on account of the reservation were refused,” and then follows the decree for judgment non obstante veredicto. The defendant had presented nine written points for instruction; the.conclusion of each was, in effect, for a peremptory instruction to find for defendant because the facts stated in them were established by the evidence. Logically then, the judgment was an affirmation of all of them, and the substance of all of them is a request that the court shall as a matter of law pronounce the plaintiff guilty of contributory negligence. This affirmation is in direct conflict with the court’s instructions on the written request of plaintiff thus :

“ 1. That if they believe and find from the testimony that the plaintiff stopped, looked and listened at a proper place and the best place from which to observe the approach of a train toward the State street crossing, then she was not guilty of contributory negligence, and if they further find from the evidence that the defendant company was negligent in approaching the crossing where the plaintiff was struck by the train, then the plaintiffs are entitled to recover, and the verdict of the jury must be for the plaintiff.

That point is affirmed. But we desire to explain, that you have no right to conclude that the plaintiff is not guilty of contributory negligence merely because she stopped, looked and listened. It is proper to take that into consideration, but she might be guilty of contributory negligence notwithstanding that fact.”

Which instruction was in law clearly correct, and the only question open is, whether there was any evidence of contributory negligence on the part of plaintiff, for on review, we must take the verdict as establishing the truth. First, in his opinion on the reserved point and in his charge to the jury, the learned judge says, the burden was on the plaintiff to prove that defendant was negligent and that there was no contributory negligence on her part. This was doubtless an inadvertent error, for the law does not impose on a plaintiff so heavy a burden. She is bound to prove negligence on the part of defendant and that this negligence caused her injury; she is not bound to go further and prove that she did not contribute to the result bjr her own negligence. That burden is on defendant, unless the evidence adduced by her discloses contributory negligence. It may or may not do this ; if it do not, she is entitled to a verdict, unless the defendant then adduces evidence establishing her contributory negligence. In most cases the question of contributory negligence is one of fact for the jury, though by no means always. Where the facts are clearly established and the inference of negligence from them manifest, the court should peremptorily so instruct the jury; but our latest case preceded by possibly one hundred others, Kuntz v. New York, etc., Railroad Company, 206 Pa. 162, says : “ The question of contributory negligence cannot be treated as one of law unless the facts and the inferences from them are free from doubt. If there is doubt as to either the case is for the jury.”

In 'passing upon the question of contributory negligence in his opinion on the reserved point, the learned judge almost, if not altogether, in his own language identifies this case as one for the jury. He says :

“ It is held that the stopping must be at a place where an approaching train may be seen or heard. That it will not do for a pedestrian crossing to say that he stopped and then stepped in front of a moving engine and was injured. That in such case the legal inference would be either, that he did not stop, look and listen, or that having done so he both saw and heard the approaching engine. He must comply with the legal injunction and then upon passing over the danger point, keep his eyes and ears open. Does the plaintiff’s case here properly measure up to the legal requirement ? The question is not entirely one-sided or free from difficulty, yet after careful consideration, but with considerable reluctance, I have come to the conclusion that it does not.”

It seems to us that if the case was not one-sided that it had two sides, and if not free from difficulty, was not clear, but was one of doubt and belonged to the jury. But assuming that the learned judge did not mean exactly what he said, was there clearly but one inference and that one contributory negligence to be drawn by the jury ? Plaintiff says in her testimony that as she passed over the bridge towards the crossing she heard a whistle of some kind; then walked on to the Susquehanna House corner; she then looked down the track which was unobstructed for 400 feet; she then passed on to a point south of the mill siding where she stopped,looked and listened; proceeding on from this point she looked both ways, neither saw nor heard a train, and just as she was about to step on the track was struck by the bumper of a locomotive and injured. There was positive evidence that she stopped, looked and listened when approaching to cross the railroad; while there is considerable evidence tending- to show that the point where, she stopped was not the best place for a sight of a coming train, the distance on the track which would be shown to the eye from that point would be greatest; then because of a curve in the track and an embankment as the railroad is approached from that point, the view of it is narrowed to seventy or ninety feet; there was evidence that it was dark; that no whistle was blown or bell rung; that plaintiff continued to look and listen until she was struck. It is argued, with much force by appellee, that if she had looked before she made the last step she would not have been struck; but in reply it is urged that a train might have been coming on the track from either direction ; the one that injured her was running at high speed; it was visible onty a few feet from the crossing; it gave no warning and as caution required her to look at the tracks both north and south and while at the very moment her head was turned in the opposite direction the locomotive came upon her. We cannot certainly say this was not so; some of the facts are doubtful on the contradictory testimony; the inferences drawn from them may to some minds seem unreasonable, to others reasonable. That the most serious wounds on plaintiff’s person were on the back does not conclusively show that she was not listening or looking for a silent locomotive, but only that at the instant it struck her she was not looking in the direction from which it came.

As to whether she stopped at the best place to look out for danger when she approached the crossing, the evidence was contradictory. Under such evidence we have more than once held that the question must go to the jury.

From a careful consideration of the law and the testimony we are of opinion that the reserved points embraced a mixed question of law and fact and therefore was not a legal reservation of a question of law alone.

Judgment reversed and judgment entered on verdict for plaintiffs.


author: Mr. Justice Brown,

text:
    Friend’s Estate.

      Will—Provision against contest—Forfeiture of legacy.

    A provision in a will declaring the forfeiture of a legacy if the legatee contests the validity of the will is valid, but the penalty of forfeiture will not be imposed where it clearly appears that the contest to have the will set aside was justified under the circumstances, and was not the mere vexatious act of a disappointed child or next of kin. If it is doubtful whether there was probable cause for the contest, the will of the testator should be regarded as supreme, and his directions to forfeit carried out. In determining whether there was probable cause or not, the court will not be bound by the decree sustaining the will entered after a hearing of both sides, but will consider the information which the contestant had before the litigation begun, and upon which he acted. The testimony of an attorney that he advised a contest has no weight in itself in determining the question of probable cause.
    Mitchell, C. J., and Potter, J., dissent.
    Argued Oct. 28, 1903. Reargued, April 26, 1904.
    Appeal, by James W. Friend and Harry T. Friend, from decree of O. C. Allegheny Co., Sept. T., 1902, No. 96, dismissing exceptions to adjudication in estate of Rebecca Jane Friend, deceased.
    Before Mitcheul, C. J., Dean, Bbown, Mestbezat and Thompson, on reargument.
    Affirmed.
    Exceptions to adjudication.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was the decree of tbe court.

      J. S. Ferguson, with him E. G-. Ferguson and Reed, Smith, Shaw Bea\, for appellants.
    When a testator declares in his will that his several bequests are made upon the condition that' the legatees acquiesce in the provisions of his will, the courts wisely hold that no legatee shall without compliance with that condition receive his bounty, or be put in a position to use it in' the effort to thwart his expressed purposes : Smithsonian Institute v. Meech, 169 U. S. 398 (18 Sup. Ct. Repr. 396); Cooke v. Turner, 15 Sim. 611; McElfresh v. Schley, 2 Gill, 181; Stewart’s Case, 5 N. Y. Supp. 32; Thompson v. Gaut, 82 Tenn. 310; Bradford v. Bradford, 19 Ohio St. 546.
    The advice of counsel is only evidence of care and prudence, and in proper cases negatives malice or negligence: McClafferty v. Philp, 151 Pa. 86 ; McCarthy v. DeArmit, 99 Pa. 63.

      H. K. Siebeneck, of Seymour, Patterson Siebeneck, for P. C. Friend, appellee.
    Clauses of forfeiture for will contest are inoperative when there is probable cause of litigation: Jackson v. Westerfield, 61 Howard Pr. Rep. 399; Powell v. Morgan, 2 Vern. 90; Morris v. Burroughs, 1 Atk. 399; Loyd v. Spillet, 3 P. Williams, 344; Cooke v. Turner, 14 Simons, 493 ; Reilly’s Est., 200 Pa. 288; Mentz v. Armenia Fire Ins. Co., 79 Pa. 478 ; Lynn’s Estate, 48 P. L. J. 258; Owens’s Estate, 49 P. L. J. 257 ; Adams v. Adams, L. R. 45 Chancery Div. 426; Lee v. Colston, 5 T. B. Munroe (Ky.), 238 ; Sackett v. Mallory, 42 Mass. 355; Hoit v. Hoit, 42 N. J. Eq. 388 (7 Atl. Repr. 856) ; Stapilton v. Stapilton, 1 Atk. 2.
    Probable cause is generally defined to be a reasonable ground of suspicion supported by circumstances sufficient to warrant an ordinarily prudent man in believing the party is guilty of the offense : McClafferty v. Philp, 151 Pa. 86 ; Seibert v. Price, 5 W. & S. 438 ; Lynn’s Est., 48 P. L. J. 258 ; Knauss’s App., 114 Pa. 10.

      William H. MeOlung, of Ohantler, McGill McGlung, for Fidelity Title and Trust Company, trustee, appellee.
    June 15, 1904:
   Opinion by

Mr. Justice Brown,

By the second clause of her will the testatrix gave to the Fidelity Title and Trust Company, of Pittsburg, the sum of $20,000, to be held in trust for her son, Porter C. Friend. She had two other sons, James W. and Henry T. The sixth clause of her will is : “ If any of my children or grandchildren, or any of the cestuis que trust under this will, shall contest the validity of this my will, or attempt to vacate the same, or alter or change any of the provisions thereof, he or she, or they, shall be thereby deprived of any beneficial interest under this will and of any share of my estate, and the share, or shares, of such person or persons, shall be divided equally between my said sons, James W. Friend and Harry T. Friend, discharged from any trust.”

Porter C. Friend appealed from the decree of the register of wills admitting his mother’s will to probate, and petitioned the prphans’ court of Allegheny county for an issue devisavit vel non, on the ground that his brother, James ~W., had procured the execution of it by undue influence. This petition was dismissed by that court, and, on appeal to us, its decree was affirmed : 'Friend’s Estate, 198 Fa. 363. The appellants thereupon insisted that their brother, in view of the clause referred to in their mother’s will, was not entitled to what she had left him, and now ask that the $20,000, with the accrued interest, be awarded to them. Their contention was not sustained by the court below, which, in an opinion by its learned president judge, held that as Porter C., the son, had probable cause for instituting the proceedings to contest the will, he had not forfeited the interest which his mother gave him in her estate.

It is not to be questioned that it was competent for the testatrix, possessing the absolute power to dispose of what she possessed just as she pleased, to impose the condition upon which the appellants rely in asking that their brother shall be deprived of all interest in her estate; and it is equally clear, in view of his attempt to annul her will, that the burden is upon him to show that he now ought to have what it gives him. Such conditions to testamentary gifts and devises are universally recognized as valid, and, by some courts, enforcible without exception. The better rule, however, seems to us to be that the penalty of forfeiture of the gift or devise ought not to be imposed when it clearly appears that the contest to have the will set aside was justified under the circumstances, and was not the mere vexatious act of a disappointed child or next of kin. A different rule—-an unbending one—that in no case shall an unsuccessful contestant of a will escape the penalty of forfeiture of the interest given him, would sometimes not only work manifest injustice, but accomplish results that no rational testator would ever contemplate. This is manifest from a moment’s reflection and is illustrated by the class of cases to which the one now before us belongs, in which there is an allegation of undue influence which procured the execution of the will, jlf, as a matter of fact, undue influence is successfully exerted jover one about to execute a will, that same influence will have ¡written into it a clause which will make sure its disposition of 'the alleged testator’s property. He who will take advantage of his power to unduly influence another in the execution of a will will artfully have a care to have inserted in it a clause to shut off all inquiry as to the influence which really made the will; and, if the rule invoked by the appellants is to be applied with no case excepted from it, those who unscrupulously play upon the feelings of the testator may, with impunity, enjoy the fruits of their iniquity and laugh in scorn at those whom they have wronged. If the condition of forfeiture is to be enforced in every case, those who improperly influence a testator may boast to a child, against whom he discriminated, of the power they exerted over him and of what they were able to accomplish for themselves, taunting and goading on such child to a contest; and yet if, in the end, those who so invited it, and whose conduct made it justifiable, succeed in sustaining the will by retracting or denying what they said, the contestant will not only be deprived of his gift or devise, but those who drew him into the contest may acquire his portion as part of their own plunder. Would any rational testator ever contemplate such a result from a forfeiting clause in his will ? Again, in illustration, a will may be admitted to probate to which there are no subscribing witnesses. Two or more of those familiar with the handwriting of the alleged testator may testify before the register that the signature attached is genuine. Subsequently information is brought to some one interested in the estate that would justify any reasonable person in believing that it was a forgery. In perfect good faith, and apparently fully justified by reliable information, a contestant of the will presents and makes out a clear prima facie case. The proponents then succeed in showing, not that the contest was not justified, but that the contestant had been deceived and imposed upon, either intentionally or otherwise, and the will is sustained. Should forfeiture be the penalty in such a case? No testator, if he could speak from his grave, would declare such to have been his intention when he wrote his will and tried to protect it from assault. What may fairly be regarded as the absurdity of holding that there can be no exception to the rule, finds illustration in the case of Cooke v. Turner, 15 Meeson & Welsby, 727. Turner, a lunatic, having been so duly found by inquisition, made a will devising real estate to his daughter, upon the condition that if she contested it, or questioned his competency to make it, or refused, on request by the executor, to ratify and. confirm it, she should forfeit the interest given her. She subsequently disputed the will, on the ground of his incompetency to dispose of his property, and Rolfe, Baron, held the condition valid in law and so certified to the lord chancellor. The court of chancery subsequently awarded an issue devisavit vel non under an order that saved the daughter’s interest from forfeiture: Cooke v. Turner, 15 Simons, 611. Illustrations need not be multiplied to demonstrate the correctness of the rule observed by the court below, that such conditions as are found in the sixth clause of the will of the testatrix are inoperative, if there was probable cause of litigation, even where there is a gift over upon breach of the condition that the will shall not be contested.

In Chew’s Appeal, 45 Pa. 228, though the exact question now before us was not before the court, it was there discussed and said of it by Thompson, J.: “ Clauses in wills such as we are now considering are sometimes called conditions, and are also sometimes said to assume the character of conditional limitations : Russ, on Leg. 795. But by whatever designation they may be known, the general rule is that they are to be construed with great strictness, as they go to divest estates already vested: 2 Williams on Executors, 1145. It will not superinduce a greater freedom of construction to call them clauses of forfeiture, for they are never favorites in law, and have no place in administering equity. It seems to be well settled that where such a provision is merely denounced against disputing a will or its provisions without a devise over, it will only be considered in terrorem, and not as fixing on the devisee’s share intestacy; and this shows the tendency of the law against giving efficiency to such provisions. But where there is a devise over, in case of a violation of the provisions, to some person named, or that the share thus limited shall fall into the residue of the estate for distribution, the share so limited will pass to its intended devisee or to the estate upon breach of the conditions : 2 Williams on Executors, 1147 ; 1 Russ. Leg. 795. It also seems to be the result of authorities, that if there exists probabilis causa litigandi, that the nonobservance of the conditions will not be forfeitures : Russ. Id. Undoubtedly, 1 think, no provision could be formed to oust the supervisory power of the law over such conditions and limitations to control them within their legitimate sphere, which is generally to prevent vexatious litigation.”

In Powell v. Morgan, 2 Vernon Ch. Rep. 90, the testatrix gave a legacy upon condition that the legatee, who was her heir at law, “ did not disturb or interrupt her will.” He after-wards contested it, and it was held “ there was probabilis causa litigandi, and it was not a forfeiture of the legacy.” The question is considered in Schouler on Wills (3d ed.), section 605, where it is said: “ Modern wills seek, in some instances, to prevent litigation, by forbidding the beneficiaries named to dispute the will. The law on this point is likely to be more firmly settled hereafter than it is at present. To exclude all contest of the probate on reasonable ground that the testator was insane or unduly influenced when he made it is to intrench fraud and coercion more securely; and public policy should not concede that a legatee, no matter what ground of litigation existed, must forfeit his legacy if the will is.finally admitted. 'As for construction proceedings, the testator’s own language may have rendered them necessary. On the other hand, while the probate of the disputed will does not conclude that there was no just cause for opposing it, the testator’s last wishes are authenticated as he expressed them; and both in probate and construction proceedings, all speculative and heartless litigation, by which so many estates have been wasted, may well be discountenanced. No arbitrary rule meets well the cases likely to arise under this head, but circumstances ought to influence the construction. The English rule applied to legacies seems the true one; namely, to treat a condition not to dispute the will as in terrorem, and void as against sound policy, wherever it appears that the legatee had probable cause for contesting the validity or effect of the will, though not otherwise. And if the maxim is a just one, it ought to avail as well in a devise; and, generally, unless, perhaps, the language of the particular gift and circumstances require the restraint to be interpreted as a strict condition precedent. ... In this country the question appears still an open one, though a few decisions bearing upon the point may be found. All clauses or provisions of this character should at least be construed as strictly as possible, being penal in their operation.” Another text writer, in the light of cases referred to, says: “ When legacies are given to persons upon conditions not to dispute the validity of, or the dispositions in wills or testaments, the conditions are not in general obligatory, but only in terrorem. If, therefore, there exists probabilis causa litigandi, the nonobservance of the conditions will not be forfeitures. The reason seems to be this: a court of equity does not consider that the testator meant such a clause to determine his bounty, if the legatee resorted to such a tribunal to ascertain doubtful rights under the will, or how far his other interests might be affected by it, but merely to guard against vexatious litigation : ” 1 Roper on Legacies, 2d American edition from 4th London edition, 795. In Jackson v. Westerfield, 61 Howard Pr. Reports, 399, the testatrix directed that if any legatee should “ make any opposition or controversy in any court of law or otherwise, in relation to the validity ” of her will, such legatee should forfeit the bequest given him or her and be excluded from all participation in her estate. There was a contest before the surrogate as to her testamentary capacity. The will was upheld and the persons who took part in contesting it were awarded their legacies, the court saying: “ Clauses in wills which impose restraints upon proper inquiry into testamentary capacity and the legality and validity of dispositions of property should not be favored.”

Whether there was probabilis causa litigandi must, in every case, be for the court distributing the estate of the testator, and, when it is clear that there was such cause, the same decree ought to be made that was made here. If it is not clear, or if it is doubtful whether there was probable cause, the will of the testator should be regarded as supreme, and his direction to forfeit carried out. A disappointed beneficiary under a will is not to be encouraged to make a contest to set it aside, and when he does so, in the face of notice - from the testator that he shall have nothing if he attempts to strike down his provisions, he must understand the imminent risk he runs. The orphans’ court is a court of equity, and its judges, when!1 passing upon the question of forfeiture under such testamentary clause, sit as chancellors. To their consciences are committed, in the first instance, subject always to review by the proper appellate court, the imperilled interests of legatees or devisees who contest wills making them conditional beneficiaries, as Mrs. Friend made her children and grandchildren. Whether, under the circumstances, the court below properly saved to Porter C. Friend the interest given him by his mother in her will is the other question before us.

In affirming the decree of the court below, refusing an issue devisavit vel non, we said: “We have examined with care the testimony in this case to ascertain whether the appellant’s claim is supported by it, and entitles him to the issue called for in his petition. It plainly appears in the evidence that the testamentary capacity of the decedent was unimpaired when she executed the will in question. That she was a person of more than ordinary firmness and will power, and that she possessed these qualities while she lived, is also apparent in the testimony. It was not a characteristic of her nature to allow her children to dominate or influence her against her best judgment. On due consideration of the testimony, and of the clear and satisfactory opinion of the learned judge of the orphans’ court, we affirm the decision of the register and dismiss the appeal at the cost of the appellant: ” Friend’s Estate, 198 Pa. 363. In view of this, we are now asked to say that the prior findings and conclusions of the court below are conclusive that there was not probable cause for this contest. The answer to this is, that the court, on the application for an issue devisavit vel non, made its findings and drew its conclusion after it had fully heard both sides—the contestant and the proponents of the will—and it is not to be assumed that they would have been the same if only the contestant and his witnesses had been heard. On the question of probable cause, the learned president judge heard the testimony of Mr. Sol. Schoyer, Jr., ¿member of the Allegheny county bar, and reviewed what had been offered by the contestant in the former proceedings. This was all that was before him, for he was not to again pass on the question of whether an issue devisavit vel non should be awarded, but simply whether Porter C. Friend, under the information which he possessed, and in view of what he was able to prove in the first instance, was justified in questioning the validity of his mother’s will. If the question is to be determined in view of the findings and conclusions reached after the full hearing of both sides on the petition for an issue,.it may well be contended that probable cause did not exist, but that that is not the test. Bearing this in mind, the learned judge was fully justified in saying, not in finding as facts, that the testimony showed : “ Mrs. Friend had been for many years in a distressing nervous condition, and during the last few years there seems to have been a perceptible break in her mental' condition : one of her granddaughters testified that in these latter days she would tell ‘ the same stories over and over again within a few minutes’ intervals ; she seemed to forget that she' had told us.’ Her son, J. W., had charge of her business for many years, was her adviser and had unbounded influence with her. Miss Maxwell testified: ‘ Grandmother always quoted him in everything ; she quoted him in this way : it was always Jim said this, or Jim, as she called him, said that. She always referred in her opinion to him and took her opinions from him.’ On another occasion James W. Friend is reported to have said that his influence with her was so great he could do anything he pleased. There was no apparent reason why Mrs. Friend should have discriminated against her granddaughter. • While she had disapproved of her only daughter’s marriage, she continued to show a mother’s devotion up to the date of Mrs. Maxwell’s death, and was very much attached to her daughter’s children ; and while her son Charles was somewhat dissipated and voluntarily left her house where he had resided before the will was made, she never led him to suspect that she would discriminate against him ; but even assuming he had, his wife and son who remained had done nothing to forfeit her love. Indeed, her repeated declarations that the intestate law made a good enough will negatived any intention of discrimination on her part as between her children and grandchildren. On the other hand, the attitude of J. W. Friend, whose influence was, as already seen, so great over his mother, was unjustifiedly hostile towards his brother Charles and his only sister, Mrs. Maxwell, and her children. In these circumstances the will in question was made by which $70,000 was given the Fidelity Title and Trust Company in trust—$20,000 whereof was. to be for the benefit of Charles P. Friend during life, with remainder to said J. W. and H. T. Friend; $12,500 to Agnes, wife of said Charles, with remainder to their son ; $87,500 to’ the daughter of Mrs. Maxwell, deceased, and the bulk of the estate, amounting in round numbers to $200,000, was given to said J. W. and H. T. Friend absolutely. There was a further provision that upon the written' request of said J. W. and H. T. Friend, the Fidelity Title and Trust Company, trustee above-named, should pay any of said cestuis que trustent such portion of the principal of the trust as might be designated therein by said sons. The will closed with a clause of forfeiture in the event of contest by any beneficiary. The letter of instructions for drawing was understood by contestant to have been in J. W. Friend’s handwriting, but this was afterwards denied. The letter itself could not be found.” To this he added: “ It will readily be seen from this outline that there was enough to put any prudent man on inquiry as to the causes which led to the making of such will. The presumption of equality which the relations of the parties presupposed; the gross disproportion between the shares given J. W. and H. T. Friend and those of Charles and the Maxwell children ; the weak and dependent condition of testatrix; the influence of James over his mother and his persistent hostility towards his brother Charles and his sister and her children justified strong suspicions of undue influence and gave promise of developments of further evidence in that direction.”

As being of any weight in itself in determining the question of probable cause, no importance is to be attached to the testimony of Mr. Schoyer that he had advised the contest. As a justification of the contestant’s action it may fairly be taken into consideration with the independent facts upon which he must rely and which he communicated to Mr. Schoyer. Even in suits for malicious prosecution advice of counsel that it ought to be instituted is not evidence of probable cause, but only to disprove malice arising from the want of probable cause : McCarthy v. De Armit, 99 Pa. 63 ; Emerson v. Cochran, 111 Pa. 619. There is no question of malice in cases like the present, and if the mere advice of counsel can be regarded as probable cause for instituting proceedings to contest a will, there would be none without cause, and, in every instance, such a clause as the testatrix inserted in hers would be nugatory. Not being persuaded that there was error in ■holding that Porter C. Friend had probable cause for his action in contesting the will of his mother, the decree of the courC below is affirmed and the appeal dismissed at the cost of the appellants.

Mitchell, C. J., and Potter., J., dissent.


author: Mb. Justice Brown,

text:
    Higby, Appellant, v. Pennsylvania Railroad Company.

      Railroads—Railroad police—Trespassing on cars—Acts of May 24, 1878, P. L. 125, and June 11, 1879, P. L. 152.
    Under the Acts of May 24, 1878, P. L. 125, and June 11, 1879, P. L. 152, a special police officer in the service of a'railroad company acts within the scope of his authority in arresting without a warrant a person who had been a trespasser on a railroad car, who has jumped off the car and is in the act of escaping.

      Negligence—Joint tort feasors—Nonsuit—Practice, C. P.

    Where suit is brought against a railroad company and a special police officer in its service, as joint tort feasors, to recover damages for injuries sustained by the act of the officer in shooting the plaintiff while the latter was escaping from a car on which he had trespassed, and a nonsuit is entered as to the railroad company on the ground that the officer was not acting within the scope of his authority, and judgment is entered against the officer, the Supreme Court on appeal by plaintiff cannot on account of the condition of the record, reverse the judgment of nonsuit, although it is of, the opinion that the officer was acting within the scope of his authority.
    Argued May 2, 1904.
    Appeal, No. 30, Jan. T., 1904, by plaintiffs, from order of C. P. Warren Co., March T., 1903, No. 10, refusing to take off nonsuit in case of N. S. Higby and Charles A. Higby v. Pennsylvania Railroad Company and John Gallagher.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Lindsey, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was refusal to take off nonsuit.

      J. W. BunJcle, with him Cr. B. Munn, for appellant.
    The master is liable for the wilful and tortious acts of his servant if done within the scope of his employment: Brennan v. Merchant & Co., 205 Pa. 258; Phila. Traction Co. v. Orbann, 119 Pa. 37; McClung v. Dearborne, 134 Pa. 396 ; Haehl v. Wabash R. R. Co., 119 Mo. 325 (24 S. W. Repr. 737).
    The above principle applies in cases of assault and battery committed by the servant within the scope of his employment: McClung v. Dearborne, 134 Pa. 396 ; Moore v. Fitchburg R. R. Co., 70 Mass. 465; Hewett v. Swift, 85 Mass. 420.

      A railroad company is not exempt from responsibility to persons who are trespassing on their cars for injury arising from its negligence or tortious acts committed by servants within the scope of their employment: Enright v. R. R. Co., 198 Pa. 166; Biddle v. Ry. Co., 112 Pa. 551; Arnold v. Penna. R. R. Co., 115 Pa. 135; Sioux City, etc., R. R. Co. v. Stout, 84 U. S. 657 ; Barre v. Reading City Pass. Ry. Co., 155 Pa. 170; Rounds v. R. R. Co., 64 N. Y. 129.
    The employment of detectives and police officers naturally involves the right to use force: Duggan v. Baltimore & Ohio R. R. Co., 159 Pa. 248.

      ■I. Ross Thompson, of J. Ross Thompson $ Son, for appellee.
    The servant of the master cannot bind the master to respond in damages to the plaintiff unless it be shown that the act which the servant did, which caused the injury, was an act expressly or by necessary implication within the line of his duty under his employment: Haller v. Sanford Ross Co., 13 Am. Neg. Reports, 150; Guille v. Campbell, 200 Pa. 119; Golden v. Newbrand, 52 Iowa, 59 (2 N. W. Repr. 537) ; Belt Ry. Co. v. Banicki, 102 Ill. App. 642.
    Where the act of the servant does not fairly tend to effectuate the discharge of the duty for which he is employed, the master is not liable: Guille v. Campbell, 200 Pa. 119; Enright v. R. R. Co., 198 Pa. 166.
    The plaintiff elected to proceed against Gallagher, one of the defendants to a verdict as against him for the sum of $2,400. We contend that it is too late to go back as against the appellee and seek to recover a verdict against this defendant.
    If the appellants desired to hold the appellee we think the proper practice would have been when the compulsory nonsuit was granted to have asked leave to withdraw a juror, continue the case as to Gallagher and taken an appeal as to the Pennsylvania Railroad Company.
    June 15, 1904:
   Opinion by

Mb. Justice Brown,

Charles A. Higby, one of the appellants and a minor son of the other, with six or eight companions, was trespassing on a freight train belonging to the Pennsylvania Railroad Company. When it stopped at a station called Hemlock the boys jumped off, young Higby being the last to do so. They started to run up the track, evidently apprehensive of arrest by John Gallagher, a special police officer in the service of the railroad company. When young Higby started to run some one hallooed to him. Turning around to see who it was, he was shot by Gallagher. The latter, called by the plaintiff, as if on cross-examination, admitted that he was following Higby to arrest him. A compulsory nonsuit was entered as to the Pennsylvania Bailroad Company, on the ground that Gallagher was not acting within the scope of his employment when he tried to arrest Higby. The trial proceeded and a verdict was returned against Gallagher for |400 in favor of the father and $2,000 in favor of the boy.

In entering the judgment of nonsuit and refusing to take it off, the learned trial judge held that, as the boy was not actually on the train, or getting on it, when the officer attempted to make the arrest, he had no authority to do so, and was, therefore, acting beyond the scope of his employment, which confined him to what he was authorized to do by the act of assembly.

The first section of the Act of May 24, 1878, P. L. 125, as amended by the Act of June 11, 1879, P. L. 152, provides, “ that any person found entering, or being in or upon, any railroad engine or car, whether the same be passenger, freight, coal or other car, on any railroad in any city or county in this commonwealth, contrary to the rules of the person, or persons or corporations owning or operating the same, and with the intention of being in or upon, riding or traveling upon, such engine or ear, without paying fare, or of committing larceny,” etc., shall, upon a summary conviction before a magistrate, be subjected to certain penalties. The second section directs that “any constable or police officer, having knowledge or being notified of any violation of this act, shall forthwith arrest such offender and take him before any magistrate, alderman or justice of the peace, or any such magistrate, alderman or justice of the peace shall issue a warrant or capias for the arrest of any such offender, upon information duly made on oath or affirmation,” and thereupon there shall be a proper hearing.

Found entering or being in or upon an engine or car with the intention of not paying fare, or of doing one of the things specified in the act, is the offense for which the trespasser can be arrested and punished. When he commits it he is not exempt from apprehension and punishment simply because he is not detected and taken by the officer while in the actual commission of it. When the offense is committed any constable or police officer having knowledge of it, or having been notified of it, may do one of two things. He may, without a warrant, proceed forthwith to arrest the offender while in the commission or after the commission of the act, and take him before a magistrate; or he may first go and procure his. warrant, if, under the circumstances, such be the wiser course. Unless there was this alternative to arrest without a warrant, in most cases the offenders, generally tramps, would be far away from the scenes of their trespasses and depredations before they could be apprehended, and the act would be a dead letter. Literally read, however, it cannot have the interpretation put upon it by the court below, that it gives constables and police officers authority to make arrests without a warrant “ only when the person is found in the act of violating the statute.” Even if it is to be so interpreted, Higby manifestly was found in the act of violating the statute when he and his companions jumped from the train and started to run away from the officer who tried to arrest them. Nothing could be clearer than the statutory authority of Gallagher to pursue and arrest him after he left the train, and that officer was, therefore, acting within the scope of his employment by the appellee when he attempted to apprehend the appellant. Though he was acting within that scope in trying to make the arrest, we need not decide whether, under the circumstances, his conduct in shooting was such as would make the appellee liable under the rule respondeat superior, for, as this record stands, the judgment of nonsuit cannot be reversed and a procedendo awarded.

The plaintiffs brought their joint action against the Pennsylvania Railroad Company, the master, and John Gallagher, its servant, as joint tort feasors. Whether such an action can be maintained is not the question now before us. We only know from the record that the plaintiffs are attempting to hold the two defendants jointly. When the judgment of nonsuit was entered against the one, they elected to proceed against the (Other and obtained a verdict, giving the father $400 and the son $2,000. If tbe defendants are jointly liable in this joint action against them, the same jury must pass upon their liability, and there can be but one verdict on which judgment can be entered against them. If the nonsuit as to the appellee was properly entered, it cannot be disturbed; and if, on the other hand, improperly entered, on the ground that there was no liability on the part of that defendant, if we reverse the judgment refusing to take it off, how can we award a procedendo ? In this joint action the plaintiffs now have one verdict, which neither they nor the defendant ask to have disturbed, and they cannot have another in it. If there should be further proceedings directed against the appellee, which, if liable at all in this action, is jointly so with its codefendant, what might the verdict be against it ? It is hardly conceivable that it would be the same in amount as the one rendered against Gallagher, and, if different, the record would present the spectacle of a joint suit against two alleged joint tort feasors, jointly liable to the plaintiffs for but one sum, and yet there would be different judgments for different amounts against these same joint defendants. To avoid the anomalous record that would follow a reversal of this judgment, it will not be disturbed.

Judgment affirmed.


author: Mb. Chief Justice Mitchell,

text:
    Newlin’s Estate.

      Wills—Revocation—After-born child—Act of April 8, 1833, sec. 15, P. L. 249.
    The Act of April 8, 1833, sec. 15, P. L. 249, relating to the revocation of a will by the subsequent birth of a child, makes no requirement that the child shall be fully or adequately provided for. That is left to the discretion of the parent as in the case of living children. All that it does require is that he shall have the child in mind and shall make clear his intention that the will shall apply to it. Any provision which does that is sufficient and the inquiry whether large or small, equal or unequal, vested or contingent, present or future, is irrelevant and outside the jurisdiction of the courts except so far as it tends to throw light on the question of intention.
    A gift by will to trustees to pay income to testator’s wife “ during the minority of my child or children, and during the period in which my wife shall remain unmarried after my death, and in further trust, to convey, assign, transfer, set over and pay to the trustees herein named the share of each of my daughters upon reaching the age of twenty-one or upon my wife remarrying, in trust to'keep the shares of my daughters invested,” etc., is a sufficient provision for a daughter born after the date of the will.
    Argued May 3, 1904.
    Appeal, No. 100, Jan. T., 1904, by Morris Wolf, guardian of Grace DeLancey Newlin, from decree of O. C. Delaware Co., dismissing exceptions to auditor’s report in estate of DeLancey Y. Newlin, deceased.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Exceptions to report of Isaac E. Johnson, Esq., auditor.
    The auditor stated the facts to be as follows:
    DeLancey V. Newlin, the testator, died on April 28,1900, less than one month after the execution of his will and on May 31,1900, a posthumous child, Grace DeLancey Newlin, was born. At the time of the execution of this will, DeLancey V. Newlin had no children, although he was expecting the birth of a child. The question which arises for the auditor’s determination is whether the provisions in the will constituted a sufficient provision for a child born after the execution of a will to prevent intestacy as to such child in accordance with the Act of April 8,1833, section 15, P. L. 249. This section reads as follows : “ When any person shall make his last will and testament and afterwards shall marry or have a child or children not provided for in such will, and die, leaving a widow and child, or either a widow or child or children, although such child or children be born after the death of their father, every such person, so far as shall regard the widow or child or children after-born, shall be deemed and construed to die intestate and such widow, child or children shall be entitled to such purparts, shares and dividends of the estate, real and, personal, of the deceased, as if he had actually died without any will.”
    The will of Mr. Newlin contained the following disposition of his property :
    One third of the estate, real and personal, was devised and bequeathed to the Girard Trust Company and Arthur Newlin, in trust to pay the income “ to my wife, Grace W. Newlin, during her life, and upon her death to such person or persons as by her last will and testament she may direct.”
    Another one third of the estate was devised to the same trustees in trust for his wife as long as she’ should live and remain unmarried; but, upon her death or remarriage, the trustees were to pay over to the guardians of the minor children the interest on their shares ; and upon the sons attaining the age of twenty-one, his or their share was to be turned over to him or them absolutely, the words used in the will being “ his or their share of the principal of the within-named trust,” but it was provided- that “ upon the death of my said son or sons, or any of them before reaching the age of twenty-one, then I direct that his or their share or shares shall be paid and divided amongst my said surviving children in equal portions, share and 'share alike.” The same provision was made in the ease of any daughters, except that their shares of the estate were to continue in the hands of the trustees.
    The residue of the estate was left to the trustees to pay the income thereof to the testator’s wife during the minority of the child or children and “ during the period of which my wife shall remain unmarried after my death,” but it provides that “ upon each of my sons reaching the age of twenty-one, the trustees are to assign, transfer, set over and pay unto the same his share of the principal of this one-third of my estate, absolutely in fee, and upon the death of my said son or sons, or any of them, before reaching the age of twenty-one, then I direct that his or their share or shares shall be paid and divided amongst my said surviving children in equal portions, share and share alike,” and similar provisions in this case as in the former were made for the daughters, except that their share or shares were to continue in the hands of the trustees.
    The auditor held that the will was not revoked by the birth of the daughter.
    Exceptions to the auditor’s report were dismissed by the court.

      Error assigned was the decree of the court.

      Louis JDeP. Vail, for appellant.
    The will made no provision for the daughter: Hollingsworth’s App., 51 Pa. 518 ; Walker v. Hall, 34 Pa. 483; McKnight v. Read, 1 Wharton, 213 ; Edwards’s App., 47 Pa. 144; Willard’s App., 68 Pa. 327; Donges’s Est., 103 Wis. 497 (79 N. W. Repr. 786).

      JS. Wilbur Kriebel, George T. Butler, George Quintará Horwitz and John G. Johnson, for appellee.
    The interest of the posthumous child of DeLancey Y. Newlin is vested and not contingent; and a vested remainder can be given to such a child as this testator’s : Yost’s Est., 134 Pa. 426 ; Blanchard v. Blanchard, 83 Mass. 223 ; McClure’s App., 72 Pa. 414.
    It is submitted that there are two tests which deny the right of a posthumous child to take against its parent’s will.
    1. If the provision made in the will for an after-born child be a legal interest and equal that made for other children in being at the time of the testator’s death, then the posthumous child cannot take against the will, provided—
    2. That the birth of the said child was contemplated by testator when he executed his will.
    Courts of other jurisdictions, interpreting similar acts, have unanimously decided in favor of the appellee’s contention: Bowen v. Hoxie, 137 Mass. 527; Minot’s Petition, 164 Mass. 38 (41 N. E. Repr. 63); Donges’s Estate, 103 Wis. 497 (79 N. W. Repr. 786).
    June 15, 1904:
   Opinion by

Mb. Chief Justice Mitchell,

A portion of the Earned auditor’s report, and the burden of the appellant’s argument here are devoted to the question whether the will of decedent made an adequate or sufficient provision for his unborn child, and incidentally, to the discussion of vested and contingent gifts, present or future possession or enjoyment, etc., as bearing on the question of adequacy. All such discussion was outside of the case. The statute makes no requirement of adequacy, and gives courts no authority over that subject. What it does require is that the testator shall make a provision, to wit: such provision as he deems proper, for the unborn child, and shall do it in such way as to show that he intends it as a provision. Beyond this the child unborn has no greater rights than the child or children living.

No decision of this court on this exact point has been brought to our attention, and the decisions in the lower courts, as well as some dicta here, are not altogether harmonious. The important ones of the latter will be noticed further on, but a brief historical survey of the subject will throw light on the path of the investigation.

By the custom of the province of York, “ and divers places in this realm of England” says the earliest authority, Swinburne, a testator had only partial power of disposition over his personal property, if he had a wife or children. “ Thou shalt understand that of that which remaineth” (after payment of debts) “ sometimes the whole, sometimes the half and sometimes the third part may be bequeathed by the testator, according to the diversity of these cases following: ” first, where he has neither wife nor child; second, a wife and no child, or child or children and no wife ; and third, a wife and child or children. Swinburne on Testaments and Wills, part 3, sec. 16. Later writers among whom is Blackstone following Glanvil are of opinion that this restriction of testamentary power over personalty by saving to wife and children what was known as their “ reasonable parts ” was not by local custom but was really the law of the realm. “ But this law is at present altered by imperceptible degrees, and the deceased may now by will bequeath the whole of his goods and chattels, though we cannot trace out when first this alteration began: ” 2 Black. Com. 492. In regard to lands the restriction was greater and lasted till more recent times. Power to devise land was opposed to the feudal policy of nonalienation without the consent of the lord, and after the conquest whatever may have been the law before, “ in general no will was permitted of lands till' the reign of Henry the Eighth; and then only of a certain portion; for it was not till after the restoration that the power of devising real property became so universal as at present: ” 2 Black. 12.

The statute of wills, 32 Henry 8, was a radical change in the policy of the law, and the early construction of it was loose. Blackstone gives a graphic picture of the evils that followed: 2 Com. 376. For remedy the statute of frauds and perjuries, 29 Chas. 2, c. 3, enacted that all devises of land should be in writing signed by the testator, and required almost as great formality, by burning, cancelling, tearing, etc., for the revocation of a will once made. See Roberts’s Digest of Brit. Stat. 306. But notwithstanding the looseness of construction following the statute of wills, the policy of the English law under the rule of primogeniture, always leaned strongly against disherison of the heir, a principle which has been carried down to the present day in our own law upon the construction of wills. The courts, therefore, even after the statute of frauds, practically wrote into its provisions an implied revocation of a will by such a great and entire alteration of the testator’s circumstances and situation as arises from subsequent marriage and birth of issue. In Doe dem. Lancashire v. Lancashire, 5 Term Rep. 49, it is said that the first express decision to that effect was in Christopher v. Christopher in 1771, and in the same case Lord Kenyon said that the rule was borrowed by his predecessors with much hesitation from the civil law, and in resorting to that law to define the limits of the rule, he was careful to disclaim any intention to adopt its general doctrines upon testamentary acts. It being admitted that under the decisions subsequent marriage and birth of a child would revoke a will, but that subsequent marriage or birth of a child, would not, the particular point in that case was whether marriage and the birth of a posthumous child was within the first rule, and it was held that the child must be considered as in esse during the father’s lifetime and its birth made an implied revocation of the will. Some differences of opinion have been expressed as to the ground on which the revocation is to be implied, but they are differences in form of expression rather than in substance for they all start with a presumed change in the testator’s intention, from his changed situation and obligations, though whether the change is to be considered as one in actual intent, and therefore open to evidence, or is presumptio juris and irrebuttable, is a point on which opinions differ. See the eases collected and reviewed in 1 Redfield on Wills, ch. 7, sec. 24, ed. 1876. In our own case of Coates v. Hughes, 3 Binn. 498, the will gave the executor a power of sale of real estate which had been exercised and title passed to defendant, and the particular question raised was whether the testator’s subsequent marriage and the birth of a child revoked the will altogether or pro tanto only, and it was held that by the law of Pennsylvania, the revocation was pro tanto only, and the power of sale under the will passed a good title. The whole subject was very elaborately argued and considered, and in the opinion Chief Justice Tilghman said, “ marriage and the birth of a child, both subsequent to the .making of a man’s will, are circumstances by which his situation is so completely altered, that it cannot reasonably be supposed he intended the will to remain in force.” And from that down through all our cases the presumed intention of the testator has been treated as the basis of the rule.

As already said there is no express decision on the general question of a requirement of adequacy in the provision for the after-born child and there are expressions looking both ways. Those particularly relied on by appellant as in his favor are found in Walker v. Hall, 34 Pa. 483; Edwards’s Appeal, 47 Pa. 144; Hollingsworth’s Appeal, 51 Pa. 518, and Willard’s Estate, 68 Pa. 327.

In Walker v. Hall the testator left his entire estate to his wife, “ having the utmost confidence in her integrity and believing that should a child be born to us she will do the utmost to rear it to the honor and glory of its parents.” This was held not to be a provision for the child. In the opinion Read, J., lays much stress on the language of the act of 1748 that the will shall be revoked as to any child “ not named ” and the change in the acts of 1764 and 1833, to child “not provided for.” He also dwells on the English rule under the Statute 1 Viet. ch. 26, that the presumption of testator’s change of intention is statutory and imperative, and our act is the same. “ This is a positive statutory enactment, which can neither be repelled by parol testimony outside of the will nor by any language used in the will raising a presumption that he did not intend to provide for such after-born child.” On this last ground the case is very much shaken by Fidelity Co.’s Appeal, 121 Pa. 1, which will be referred to again. On the difference of phrase between the act of 1748 and the later acts, the change is better accounted for by the suggestion of Sharswood, J., in Willard’s Estate, 68 Pa. 327, that the child might be provided for by general words including other children, without being individually named. The case, however, was a close one and might well be sustained on the ground that the reference to a child was entirely contingent and speculative and did not indicate that there was any actual child in the testator’s mind for whom he intended to provide. So far as it goes, however, the case leans to the view that the law contemplates a substantial provision into which the courts may look. In the same direction and even more in disregard of testator’s actual intention is Hollingsworth’s Appeal, 51 Pa. 518, in which the opinion was also written by Judge Read and stated expressly as “ ruled by Walker v. Hall.”

Edwards’s Appeal, 47 Pa. 144, presents no difficulty. The testator left his entire estate in trust to pay the income to his friend S. so long as she should live “ either single or married, and if she shall die leaving lawful issue ” then to the heirs of her body. Testator afterwards married S. and died leaving children by her. It was argued to sustain the will that the children were provided for as heirs of the body of S. but the court held that the marriage having revoked the will absolutely as to S. she took no estate under it which could go to the children as her heirs. The reasoning though perhaps technical is unanswerable, and the chief bearing of the case on the present is the express ruling that “ the statute annexes the condition of provision to the children, not the widow.”

The next case, and the one on which as the auditor reports the appellant put his chief trust, is Willard’s Estate, 68 Pa. 327. But on its facts it presents no difficulty. Testator left the interest of a fund to his mother for life and after her death to his “ children and heirs; ” another fund to his wife for life; the residue of his estate to his “two little girls A. and L.,” children by a foriher wife; and on the death of his wife the fund left for her to revert to testator’s heirs at law. It was held that an after-born child was not provided for. It is quite clear that the child was not within the intention of the testator, being a stronger case in that respect than Walker v. Hall, for which that explanation has been suggested. The children that he mentioned as such were those in esse by a previous wife, and if the after-born child, took at all he took under the remainder to testator’s heirs at law, and therefore under the statute and not by any intended provision for him in the will: Kinney v. Glasgow, 53 Pa. 141. It is true that Judge Sharswood fortifies his position by an argument that if the child took as heir with the other children he would take only a reversion which in Edwards’s Appeal, Judge Woodward had gone out of his way to say would not be a present provision within the statute. But that this argument is only a make weight appears clearly from what is said by Judge Sharswood in the same opinion, “ The statute does not say fully nor equally provided for. It may be true that if it clearly appears by the terms of the will that an. after-born child was within the special intention of the testator, if there was any provision, no matter how inadequate, the words of the statute would be satisfied. Where, however, an immediate provision is made for children by name, who are living at the date of the will, and the interests which the after-born child takes is a reversion, and by general words and not by special description as an after-born child, it would be a very strange construction to hold such a child to be provided for.”

Similar expressions occur throughout our reports, and while the repugnance to disinheriting the heir, and the hardship of some cases, have induced the courts to lean against doubtful provisions, it appears to have been universally conceded that an actual provision, clearly intended for the after-born child, will satisfy the statute no matter how small the provision is. No case can be found to controvert this position, and this being once conceded the conclusion is unavoidable that the only test of what the statute requires is the intention of the testator.

In Fidelity Co.’s Appeal, 121 Pa. 1, it was held that the revocation of a will by the subsequent marriage of the testator was not absolute but only at the wife’s option. The actual decision is not material to the present question, but the cases of Walker v. Hall, 34 Pa. 483, and Edwards’s Appeal, 47 Pa. 144, heretofore cited and discussed, are distinguished in a way to throw much doubt at least on the obiter expressions on which the appellant relies.

In this condition of the decided cases we are at liberty to consider the question on principle, and the moment we do that all difficulty disappears. As shown by the historical retrospect of the development of testamentary power in England, the basis of the rule as to revocation of wills by the subsequent marriage and birth of children to the testator is the latter’s implied intention as to his disposition of his property under such change of circumstances. This was the view taken by this court in Coates v. Hughes, 3 Binn. 498, and no case has questioned it since. The statute is founded on the same presumption that the unborn child was not in contemplation of the testator when he made his will, and that if it had been, he would have changed the provisions. It gave the unborn child no greater rights in the parent’s estate than the living children, but it did raise in his favor a legal presumption that required a definite provision to overcome. It is like the Roman law from which the principle was borrowed, that if a child was passed over without mention, it was presumed that he had been omitted by accident, but if he had any legacy, however small, it was held to show that the omission was intentional, and no querela inofficiosi testamenti was allowed. “ Hence probably,” says Blackstone, “ has arisen that groundless vulgar error of the necessity of leaving the heir a shilling in order to disinherit him effectually:” 2 Com. 503.

The statute as said by Shauswood, J., in Willard’s Estate, 68 Pa. 327, makes no requirement that the child shall be fully or equally provided for. That is left to the discretion of the parent as in case of his living children. All that it does require is that he shall have the child in mind and shall make clear his intention that the will shall apply to it. Any provision which does that is sufficient and the inquiry whether large or small, equal or unequal, vested or contingent, present or future, is irrelevant and outside the jurisdiction of the courts except so far as it tends to throw light on the question of intention. Any other doctrine would lead to the result that a child born the day before a will was made, might take absolutely nothing and yet be remediless, while a child born the day after the making of the will could not be barred from a legal share under the intestate law, without a provision which a court should pronounce adequate. The law makes no such unsubstantial and unwarranted distinction.

Decree affirmed.