text:
    Ohio River Junction Railroad Company v. Pennsylvania Company, Appellant.

      Evidence — Unstamped instrument in writing — Effect of the repeal of the stamp law — Act of Congress of June 13, 1898, and April 12, 1902.
    An instrument in writing executed but not stamped while the act of congress of June 13, 1898, 30 Statutes at Large, 448, was in force, became immediately admissible in evidence, when the stamp act was repealed by the act of April 12, 1902, 32 Statutes at Large, 96, without reservation of right thereafter to demand the tax in cases where the stamp had been omitted from instruments executed during the period the act was operative, or enforce any of the penalties or forfeiture which the act provided should follow a disregard of its provisions.
    Where objection is made to the admission in evidence of an unstamped instrument, the burden is upon the person making the objection, to show that the stamp had been omitted with intent to evade the act of congress.

      Ejectment — Possession—Evidence—Burden of proof — Vendor and vendee — C ontract.

    Where a vendee of land brings an action of ejectment against a stranger to the agreement of sale,.and has shown possession in himself, the law will refer the possession to the contract as understood and interpreted by the parties themselves. In such a case it is essential to recovery by plaintiff that he should show his possession of the land when entry thereon was made by the defendant, and to effect this he is entitled to show whatever circumstances by way of occupancy that tended to establish it. When he has thus shown possession, and that subsequently he had been forcibly dispossessed by the defendant, the latter will then be called upon to show his right to the possession.

      Vendor and vendee — Outstanding agreement of sale — Notice—Duty of inquiry.

    Whatever puts a party upon inquiry amounts in law to notice, provided the inquiry becomes a duty, as in case of purchasers and creditors, and would lead to the knowledge of the requisite fact by the exercise of ordinary diligence and understanding.
    It is always the duty of a purchaser of real estate to investigate the title of his vendor. He cannot be said to exercise due diligence in this regard if he accepts the statement of his vendor as to binding effect of an outstanding agreement of sale with another, and makes no attempt to ascertain for himself what the agreement contains.

      Ejectment — Purchase money — Tender.
    Where a vendee under articles of sale brings an ejectment against a stranger to the articles, who had ousted him from possession, the defendant is not entitled to receive purchase money from the plaintiff under any circumstances. Therefore no tender is necessary, nor is it necessary that plaintiff should have the money due to his vendor present in court. The defendant must look to his grantor for reimbursement for what he paid for the defective title. In such a case the plaintiff’s equitable title is sufficient to enable him to sustain the action.
    Argued Oct. 14, 1908.
    Appeal, No. 45, Oct. T., 1908, by defendant, from judgment of C. P. Beaver Co., June T., 1906, No. 332, on verdict for plaintiff in case of Ohio River Junction Railroad Company v. Pennsylvania Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Ejectment for land in Rochester township. Before Thomas, P. J., specially presiding.
    At the trial it appeared that both parties claimed title from one J. E. Herrold.
    The court charged in part as follows:
    It seems that on December 18, 1900, Mr. J. E. Herrold entered into a contract with one George I. Park for the sale of this land. That contract or article of agreement has been read in your hearing, and it provides, as we recollect it, that Mr. Park was to pay $3,500 for the land; that he paid $25.00 down at the time, and that the article of agreement was entered into and signed by all of the parties, by the provisions of which Mr. Park was to pay the balance of $3,475 within thirty days, or at such time as a good deed should be delivered to him by Mr. Herrold. It also provided that at the end of thirty days, or upon January 18, following, Mr. Park was to have possession of the land. And that if there was a failure to pay according to the terms of the contract, after the term of sixty days certain legal proceedings might be had, by virtue of which Mr. Herrold would have the right to enforce his claim, to gain possession of the land.
    It appears according to the testimony that no tender of the purchase price was made, or offer of a deed by Mr. Herrold to Mr. Park until possibly March 14, following, when Judge Holt, who at that time was counsel for the plaintiff company, the Ohio River Junction Railroad Company, and on behalf of that company and by virtue of means furnished by them to him, went to the home of Mr. Herrold and made a tender of the balance due, together with interest from thirty days after its date to the date of the tender; and Mr. Herrold refused to accept the tender, and did not at that time, or at any other time, as we understand, make a tender of any kind óf deed good or otherwise. The plaintiff offers testimony to the effect that George I. Park was at the time the purchasing agent for the plaintiff company; and he says he was acting for and in behalf of the plaintiff company in this transaction, and that he procured the assistance of Mr. Noss, a real estate agent, I believe, in procuring the 'contract. Mr. Noss testifies that he was engaged by Mr. Park, and that Mr. Park furnished to him the $25.00 that he paid as hand money. There is testimony to the effect that upon December 19, according to the terms of this contract, Mr. Park was to have possession on January 18, 1901, or thirty days after the contract. Mr. W. A. Park testified that he had a contract with the plaintiff company for the construction of certain portions of its line; that the engineer for that company staked out tracks, beginning as I gathered it, on December 21, 1900, and that by January 19 he had the tracks staked out; and that there was some additional work to be done before February 5, when the plaintiff company, by its duly authorized officers, accepted the report of the engineer and adopted it. He testifies that these stakes were driven at that time, and that he as contractor began work as we remember it, on March 21, 1901; and shortly after he had begun work, the employees of the defendant company came on and tore up their tracks and dispossessed them; and that the plaintiff has been out of possession from that day until this, and that the defendant is in possession at the present time, and as I gather it, has been in possession during the time from that time until the present.
    The defendant relies upon a title which also came from Mr. Herrold. Mr. J. D. Strock testifies that he was acting for the defendant company, the Pennsylvania Company, in an attempt to, and I believe successfully, make purchase of this land in 1901. That he went to the home of Mr. Herrold possibly on February 23, 1901, and there entered into an agreement with him for the purchase of .this land; that he was acting for the Pennsylvania Company at this time, and that what money he paid — and as I gather, it was subsequently paid for the land— was paid by the Pennsylvania Company. That pursuant to the article of agreement entered into with Mr. Strode, a deed was made to William Jackson on March 8, 1901, and Mr. Jackson, formally reciting that he had taken title as trustee for the Pennsylvania Company, and pursuant to that, conveyed the title in him to the defendant company on March 13, 1901.
    There is testimony to the effect that the defendant company or its lessor located a line across the Herrold lands in 1898; and that it has since that time built a road across this land. Evidence has been offered showing that the right of the defendant company to a right of way across this land, at least, has been adjudicated; and it is not contended, as we understand, on the part of the plaintiff, but that the defendant company or its lessor has an easement, that is, a right to maintain a railroad across this land, but denies that it has title to the land, or has any right to the balance of the five acres, other than that which is occupied by its road and the necessary width of land accompanying it.
    It appears that the branch which the defendant occupies extends along the east side of the Beaver river, and was located there, I believe, in 1898, and was occupied by the defendant company. That question has been adjudicated, and they would have the right to the easement in that land for railroad purposes, and it not being shown the width taken, it would be presumed that would be the width allowed by law, sixty feet, along the river, and the place where they now have their railroad located.
    The article of agreement which Mr. George I. Park received was not acknowledged by Herrold and his wife, nor was it acknowledged by Park at'the time when it was executed and delivered, according to his testimony. Some time thereafter and upon the day when Judge Holt says in his testimony that he made the tender to Mr. Herrold, it appears that certain proceedings were taken for the purpose of having this HerroldPark article of agreement probated, so that it could be placed of record. We say to you as matter of law that the probate of that article of agreement, and the placing of it upon the records was not sufficient to give notice to any person of the ownership of that land, or the terms of that article of agreement. In our view of the case, the law was not so complied with as to entitle that article of agreement to be placed of record; and having been spread upon the record without ■ legal authority, it was not notice to anybody. The purpose of recording an instrument is solely for the purpose of giving notice; and if a party has notice without the record, such party is bound just the same as if the instrument were upon the record. If the instrument is duly recorded, notice is visited on all parties, whether they have actual notice of the contents of the instrument or not. But if it is not recorded, if a party has notice of the instrument, — and I do not now mean that he has notice of it by hearing a rumor of it, or something of that kind, — but if he has notice of the instrument being given, or has notice of its contents by one of the parties interested, then such party is bound, the same as if he had examined the instrument; for it was his duty to examine what it contained. Again, a person buying land is obliged to take notice of what is going on upon it; if he buys land from one person, and somebody else is in possession of it he is put upon inquiry, and is obliged to know by what authority such other person is there in possession. There is some evidence in the case as to whether or not when Mr. Strock obtained title, or entered into this article of agreement with the Herrolds, he had notice of the title which Mr. Park had secured and secured for and in behalf of the plaintiff company. Mr. Strock says that Mr. Herrold told him he had entered into the agreement with Mr. Park, but that it was for sixty days, and that the time had expired. If Mr. Herrold told Mr. Strock that he had entered into the article of agreement with Mr. Park, it was his duty to determine the terms and conditions of that agreement; and if he chose to rely upon a legal interpretation of it by Mr. Herrold or anybody else, that was his risk, and what he did acting for the Pennsylvania Company bound the Pennsylvania Company. Therefore, did the Pennsylvania Company acquire this title with notice of the contract with Park.
    There is some other evidence of notice upon the ground. It appears that in January, or possibly in December, December 21 according to W. A. Park’s testimony, the engineer of the plaintiff company began driving stakes upon this ground. Was there such a condition of affairs there as to give notice to a person going upon the ground that somebody was in possession, or claiming title? As I understand, or recollect the testimony, it appears that Mr. Herrold was living on this five acres of land at the time. Now, was there anything there that should have given Mr. Strock as a reasonable man notice that somebody else, other than Mr. Herrold, was in possession, or claiming possession? If there was, or was not, is for you, gentlemen, to determine. And if there was such an indication of possession, it was the duty of the defendant company’s agent to determine by what authority or right the person having that possession claimed to have it.
    Something has been said in your hearing with reference to the plaintiff company not taking possession of the Herrold property by virtue of the contract made with George I. Park, but that it was by virtue of their right to locate the railroad, and condemn the land.
    The testimony offered showing the action of the plaintiff company with reference to locating its switches, yards, and roundhouse, was presented before you, gentlemen, and that included, as we understand it, lands which were at that time owned by divers persons; and there were directions by the duly authorized officers of the plaintiff company that the proper officers should proceed to acquire title.
    A railroad company may acquire title by what is. known as the right of eminent domain; but it is not obliged to do that. The railroad company can make agreement with the owners of the land, or buy an easement in the land, or the fee, — buying the land outright if they so agree. And if George I. Park was actually negotiating for and took this property for it in behalf of the plaintiff company, the title thereto would be in it.
    [Something has been said with reference to the plaintiff being obliged to tender the purchase money, and keep that tender good, and bring it into court. As we view this case there is no duty on the part of the plaintiff company to do that, as to this defendant company. As between this plaintiff and Mr. Herrold there are different rights. But as we interpret the instrument given by Herrold to Park, Park had thirty days, or until Herrold tendered him a good deed, to make this purchase, to make the payment; and that he could not proceed against Park in any event until, I believe, ninety days, — or sixty days after the thirty days expired, if I correctly remember the terms of the contract. And within that time, and before Herrold would have a right to proceed, it is alleged that the plaintiff company, following the contract with Park, made a tender, but failed to receive a deed, and that they will answer to Herrold as to that at any time he attempts to enforce his rights, or when he presents a deed. ,
    However, if the plaintiff had this article of agreement, and the defendant had no notice of it, such as we have indicated in our charge, the defendant could take title and would acquire a good and valid title as against the plaintiff when it purchased the land of Herrold; and the plaintiff then will have to settle as to any damages to it because of that, with Mr. Herrold. But if the defendant had notice, and went on notwithstanding that notice, and purchased of Herrold, it would not take title as against this plaintiff, and then, for any damage the defendant has sustained the defendant and Herrold may settle.] [5]
    It is a question of notice, as we view the case, chiefly of notice, and also as to what was done to give the notice, and what was done by the parties, and for whom they were acting. If George I. Park was not acting for the plaintiff company, or if he was so acting and the plaintiff company never ratified or accepted that, — either one, — the plaintiff would not acquire title any way.
    [If you find under the instructions we have given you, and all the evidence in the case, that the plaintiff has title, and that whatever title the defendant took it took with notice of that title in the plaintiff, you will find a verdict for the plaintiff for the land described in the writ of ejectment, subject, however, to an easement in behalf of the defendant company, and you will describe what that easement is. As we remember it is an easement of right of way for a railroad along the east bank of the creek or Beaver river, and across this land; and it would be for sixty feet in width, and at the place where their right of way is now located. If the plaintiff is entitled to recover at all, it will be for the land described in the writ, subject to the easement in the land; and you will describe where that easement is.] [6]
    Defendant presented these points:
    1. Under the law and the evidence the verdict must be for the defendant. Answer: Refused. It is a question for you. [1]
    2. The alleged agreement of December 18, 1900, between John E. Herrold and George I. Park, and under which plaintiff claims title, is not sufficiently stamped as required by the act of congress in force at the time of its execution, is not admissible in evidence, and should be disregarded by the jury. Answer: This point is refused. It cannot be entirely disregarded by you, in view of the admission made, and we will refer to this in the answer to the next point. [3]
    5. Under the pleadings and evidence plaintiff’s claim, if any, in this case, would not be more than an equitable title, and in no event could plaintiff recover, without having the money in court ready to be paid in the event of a verdict in its favor. Answer: This point is refused. [4] ■
    Verdict and judgment for plaintiff. Defendant appealed.

      Errors assigned were (1, 3-6) above instructions, quoting them.

      George B. Gordon and James L. Hogan, with them John M. Buchanan, for appellant.
    Revenue' stamps are undoubtedly necessary on the agreement of sale upon which plaintiff based its right to recover the land. It purports'to create or vest in George I. Park an interest in or title to the land and falls within the class of instruments requiring internal revenue stamps: Chartiers and Robinson Turnpike Co. v. McNamara, 72 Pa. 278.
    Where the possession of the vender is lawful, his vendee cannot maintain ejectment against him without proof of the purchase money: Bell v. Clark, 111 Pa. 92; Dwyer v. Wright, 162 Pa. 405.
    It is not necessary to sustain a conditional verdict in equitable ejectment that there be a contract directly between the parties: Riel v. Gannon, 161 Pa. 289; Donovan v. Driscoll, 12 W. N. C. 203.

      Frank H. Laird, with him J. Rankin Martin, for appellee.
    The agreement was properly admitted: Chartiers, etc., Turnpike Co. v. McNamara, 72 Pa. 278; Roney v. Westlake, 216 Pa. 374.
    In the case at bar there was delivery of possession; a tender of the full consideration and a forcible and tortious dispossession of the vendee. This court in a long line of cases has said, that in such a case the vendee is neither obliged to make a tender or to have the money in court, to answer to the verdict: D’Arras v. Keyser, 26 Pa. 249; Harris v. Bell, 10 S. & R. 39.
    January 4, 1909:
   Opinion by

Mr. Justice Stewart,

This was an action in ejectment. The plaintiff rested its right" of recovery on an article of agreement .for the purchase of the land in dispute with John E. Herrold, under whom the defendant also claimed, executed December 18, 1900. When the agreement was offered in évidence objection was made that it was not stamped in accordance with the requirements of the act of congress of June 13, 1898, 30 Statutes at Large, 448. While the paper did bear a revenue stamp, it was admittedly inadequate in amount. The court overruled the objection, and admitted the paper without giving any reason for the ruling. The record leaves us to conjecture as to what the reason was, or find a sufficient one for ourselves; and the argument for the appellee gives us no aid. To secure observance of its requirements with respect to tax on instruments of this character, the act of congress then in force provided that except as they were properly stamped they should “not be competent evidence in any court.”

I. The question whether the disqualification here put upon an unstamped agreement as a matter of evidence, was intended to operate in state as well as federal courts; and if so, whether to this extent, congress did not assume a power not warranted by the constitution, — a question in regard to which there are conflicting decisions, — does not here call for consideration. The provision of the act of Congress of June 13, 1898, which imposed a tax upon instruments of this character, was repealed by act of April 12, 1902, 32 Statutes at Large, 96, without reservation of right thereafter to demand the tax in cases where the stamp had been omitted from instruments executed during the period the act was operative, or enforce any of the penalties or forfeitures which the act provided should follow a disregard of its provisions. Without question the provision in the act putting a disqualification upon unstamped instruments as evidence, is penal in its character; it contemplated, as a penalty to be suffered for a violation of the law, the forfeiture of what is an unquestioned right in every individual, to use his written agreement with another as evidence in any court, to support whatever claim he might be there asserting under it. In this forfeiture the government could have no vested right; nothing could accrue to it from its enforcement. The rule which applies in such cases, is thus stated in Endlich on Interpretation "of Statutes, sec. 478, “Where an act expires or is repealed, it is, as regards its operative effect, considered, in the absence of provisions to the contrary, as if it had never existed, except as to matters past and closed. As to all future matters, all steps yet to be taken, the repealed statute upon which they are based, is treated as utterly obliterated;” and in sec. 479, “Actions in their nature penal, pending at the timé of the repeal of the statute authorizing them, fall with it. . . . A fortiori must such be the result where, though the liability has arisen, no proceeding has been taken for its enforcement. And the same rule applies to all proceedings, whether civil or criminal, going on by virtue of a statute at the time of its repeal. Whenever the jurisdiction exercised in proceedings, depends wholly upon 'the statute, and the statute is repealed, or expires by its own limitation, the jurisdiction is gone, and with it the whole proceeding, imperfect at the time of the repeal or expiration, falls to the ground, unless there be a reservation as to pending rights or causes.” The rule thus stated finds support in our own cases: North Canal St. Road, 10 Watts, 351; Fenelori’s Petition, 7 Pa. 173; Hampton v. Com., 19 Pa. 329; Uwchlan Twp. Road, 30 Pa. 156. Its application to the case in hand is too obvious for discussion. The ruling of the court in admitting the agreement in evidence could be rested on the unqualified repeal of the statute imposing the tax, without more. But there is another quite sufficient reason which for aught we know may have been what prevailed with the court. The penalties and forfeitures prescribed in the act of 1898 will be found to be the same as those contained in the earlier internal revenue act of June 30, 1864. The case of McGovern v. Hoesback, 53 Pa. 176, arose under this earlier act; and in that case as in this, objection was made to the admission in evidence of an unstamped instrument. This court decided that although the instrument there fell within the tax law, yet because there was no evidence that the stamp had been omitted with intent to evade the act of congress, it was properly admitted; that it was only instruments made with such intent that the law avoided. The decided weight of opinion in those states where the matter had been considered in connection with the later act, accords with the view expressed in the case just cited; and in all the cases where this view is held, the burden of proving the fraudulent intent is put upon the party objecting. The decisions of the several state courts with respect to this question are fully collated in 22 Cyc. of L. & P. 1621.

II. If the question here was between a vendor and vendee as to the time when possession was to be given the vendee under the written contract, it might be argued that by fair intendment payment of purchase money was to be a condition precedent.

While the vendee is here a party to the action, his controversjr is not with his vendor, but with a stranger to the agreement. Where this is so, and possession has been shown in the vendee, the law will refer the possession to the contract as understood and interpreted by the parties themselves. It was essential to a recovery by plaintiff that it should show its possession of the land when entry thereon was made by the defendant. The question of plaintiff's possession was one of fact, and it was entitled to show whatever circumstances by way of occupancy that tended to establish it. There was quite enough shown to require a submission of the case to the jury. Plaintiff having shown its contract of purchase with the admitted owner of the land, and having offered evidence to support its claim that possession had been taken thereunder, and that subsequently it had been forcibly dispossessed by the defendant, the latter was called upon to show its right to the possession. This it attempted to do by producing in evidence an article of agreement for the sale of the identical land between Herrold and defendant’s agent or representative, J. D. Strock, dated February 23, 1901, and a deed from Herrold and wife in execution of this agreement dated March 8, 1901, to one William Jackson, who also represented the defendant and who subsequently conveyed the premises to defendant. It is to be remarked that each of the parties, in its negotiations with Herrold, acted through a third party as its representative, even allowing the representative to be named as the grantee in the conveyance. It is a circumstance not affecting the rights of either, and only remarked upon here to secure a correct understanding of the facts. Plaintiff’s agreement of purchase antedated that of defendant’s by more than two months and a half. Assuming that plaintiff had forfeited none of its rights under its contract with Herrold through any default, — and the jury under proper instructions from the' court, found this to be the case, — it at once became a question whether defendant was an innocent purchaser without notice. The contract between Herrold and the plaintiff had not been attested or proved in such a way as to entitle it to be made matter of record; yet it had in fact been recorded. Very properly the court ruled that the record of it could not be received in evidence to affect the defendant with notice. Strock, the agent of the defendant, in making the purchase, testified that in the course of his negotiations with Herrold, the latter told him that he had sold the property to Park (who was the plaintiff’s agent in the matter) by article of agreement, but that the agreement had expired; that he asked to see the contract and that Herrold told him that it was in the possession of the other party; that he, Herrold, did not know what it was, but that the price was $3,500. Strock further testified that he entered into the article of agreement with Herrold, relying upon the latter’s statement that the earlier contract with Park had expired five days before. Judged by its terms, the Park contract was still in force at that time; and there is no evidence that Herrold had ever' claimed any right to rescind it. On this state of the evidence, the defendant not attempting any qualification of Strock’s admissions, the court might well have decided as a matter of law that the defendant had at least constructive notice of the sale to Park. “Whatever puts a party upon inquiry amounts in law to notice, provided the inquiry becomes a duty, as in case of purchasers and creditors, and would lead to the knowledge of the requisite fact by the exercise of ordinary diligence and understanding:” Jaques v. Weeks, 7 Watts, 261. It is always the duty of a purchaser of real estate to investigate the title of his vendor. He cannot be said to exercise due diligence in this regard if he accepts the statement of his vendor as to binding effect of an outstanding agreement of sale with another, and makes no attempt to ascertain for himself what the agreement contains. Had the defendant or its agent inquired through the agreement itself, of the existence of which it admittedly had notice, or of the party holding it, the fact that there was an outstanding equitable title in the plaintiff must have appeared. Failing to do this the defendant was chargeable, as matter of law, with notice of the facts which the inquiry would have disclosed.

III. This was not an equitable ejectment to enforce specific performance of a contract; but an ejectment brought solely for the purpose of recovering possession of the land in dispute. The defendant was not entitled to receive purchase money from the plaintiff under any circumstances; therefore no tender was necessary, nor was it necessary that plaintiff should have the money due to Herrold present in court. For reimbursement for what it paid for a defective title, the defendant must look to its grantor. True, the plaintiff was suing on an equitable title; but this was quite sufficient to enable it to maintain the action: Presbyterian Congregation v. Johnston, 1 W.&S. 9.

In what we have said we have expressed ourselves with respect to each one of the several assignments of error. We find them to be without merit, and they are overruled.

Judgment affirmed.


source: Caselaw Access Project

author: Me. Justice Fell,

license: Public Domain

text:
    Garrett v. Beaver Valley Traction Company, Appellant.

      Negligence — Street railways — Contributory negligence — Case for jury— Collision between engine and street car at a public crossing.

    In an action against an electric railway company to recover damages for personal injuries sustained by a collision between a street car of the defendant and a locomotive engine, it appeared that the plaintiff landed from the street car after it had stopped at a waiting room 200 feet from the crossing. He saw the engine backing a train of freight cars slowly over the crossing from east to west. He ran on the east side of the public road and reached the railroad track as the engine was passing. He placed his right foot on the step, caught the hand hold, and as he placed his left foot to the floor, he was struck by the defendant’s car from which he had alighted. He at no time stepped on the track of the defendant company. There was ample evidence of the negligence of the motorman in allowing his car to collide with the engine. Held, that as the plaintiff did not step on defendant’s track, but was carried there while on the engine, and as he had safely passed the pueril of getting on a moving engine, there was no causal connection between his negligence in getting on the moving engine and his injury, and the case was for the jury.

      Negligence — Damages—Length of life — Charge of court.

    Where in a negligence case the jury is distinctly told that they could allow only the present worth of plaintiff’s earning power “from the time he reached twenty-one years for and during the remainder of his probable natural life,” a judgment for the plaintiff will not be reversed because the court referred in a cautionary way, in view of argument advaneed by plaintiff’s counsel, to the jury taking “into consideration the probability of the young man living to the allotted time of three score years and ten.”
    Argued Oct. 14, 1908.
    Appeal, Nos. 130 and 131, Oct. T., 1908, by defendant, from judgment of C. P. Beaver Co., March T., 1907, No. 274, on verdict for plaintiff in case of Robert Garrett, in his own right, and Perry Garrett, by Robert Garrett, his guardian, in right of said Perry Garrett v. Beaver Valley Traction Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin, and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Holt, P. J.
    The facts are stated in the opinion of the Supreme Court.
    The court charged in part as follows:
    [There is another legal principle which you will consider in determining the question of contributory negligence; he had a right to presume, unless he saw the car coming under circumstances that would indicate to him that there was danger of a collision, — that the street car would make the proper stop before attempting to make the grade crossing, and if the circumstances were not such as to indicate to him that the street car was not going to make the usual stop before reaching such a crossing, he would not be guilty of contributory negligence in boarding the train in the manner and at the place he did. Now this is a fact for you to determine. You will look at the young man’s testimony. He said that he didn’t look for the car as he ran down to board this engine, that he did not know where it was, except that he left it and came down along the track to board the locomotive.] [3]
    [As we said to you before, when you come to consider the compensation for loss of earning power, there are many contingencies that naturally enter into the determination of this question. You will take into consideration the probabilities of this young man improving, looking at the testimony of the physicians, and from your observation of the young man himself, and taking into consideration the history of the case from its inception down to the present time, and you will also take into consideration the probabilities of his being able to do other kinds of work than that which he was doing at the date of the accident, when you come to make up your verdict as to the amount of compensation to which he is entitled; and having taken into consideration the probability of the young man living to the allotted time of three score years and ten, and all the circumstances and contingencies that will probably enter into the life of a man, and bringing to bear that good judgment and common sense, which men of business and affairs exercise determine the amount of compensation due to this young man.] [5]
    Verdict and judgment for Robert Garrett for $1,500 and for Perry Garrett for $6,000. Defendant appealed.

      Errors assigned were (3, 5) above instructions, quoting them.

      James L. Hogan, with him John M. Buchanan, for appellant.
    Boarding a moving train is negligence per se: Bacon v. R. R. Co., 143 Pa. 14; Thane v. Traction Co., 191 Pa. 249; Fletcher v. R. R. Co., 187 Mass. 463; Chicago, etc., Ry. Co. v. Stewart, 77 Ill. App. 66; Purvis v. R. R. Co., 219 Pa. 195; Ricks v. Ry. Co., 118 Ga. 259 (45 S. E. Repr. 268).
    In the instruction contained in the fifth assignment of error the court submitted for the consideration of the jury three score and ten as the expectancy of life. This was error: McKenna v. Gas Co., 198 Pa. 31; Dooner v. Canal Co., 164 Pa. 17.

      William A. McConnell, for appellee.'
    The case was for the jury: Pass. Ry. Co. v. Boudrou, 92 Pa. 475; Sharrer v. Paxson, 171 Pa. 26; Gray v. Scott, 66 Pa. 345; Kibele v. Philadelphia, 105 Pa. 41; Davidson v. Traction Co., 4 Pa. Superior Ct. 86.
    January 4, 1909:
   Opinion by

Me. Justice Fell,

The plaintiff was employed as an inspector of air brakes at the yard of the Pennsylvania Company at Conway, on the line of the defendant's street railway. He lived with his parents near the line of the Ohio River Junction Railroad, whose track crossed that of the defendant at grade at Crow’s Run. This railroad is seven miles in length and is used mainly to transfer freight cars to and from factories to the tracks of another road. It has no passenger cars, stations or regular stopping places, but its trains are stopped or slowed to enable passengers to get on or off at any point on the road. Passengers ride in the cab of the engine or on the tender, and get on and off at a step at the back of the engine. The plaintiff in going to and returning from his work used both roads, changing from one to the other at Crow’s Run.

On the evening when he was injured, he came from Conway to Crow’s Run on the defendant’s car and got off at the rear platform after the car had stopped at a waiting room 200 feet from the crossing. He saw an engine backing a train of freight cars slowly over the crossing from east to west. He ran on the east side of the public road and reached the railroad track as the engine was passing. He placed his right foot on the step, caught the hand hold, and as he placed his left foot on the floor of the cab or was in the act of raising it to the floor, he was struck by the defendant’s car from which he had alighted. He at no time stepped on the track of the defendant company.

There was ample evidence of the negligence of the motorman in allowing his car to collide with the engine. The question to be considered is whether the case should have been withdrawn from the jury on the ground of the plaintiff’s contributory negligence. On the facts, the turning point of the case in the plaintiff’s favor is that he did not step on the defendant’s track. He was carried there while on the engine. He had safely passed the peril of getting on a moving engine and his negligence in that regard was not the cause of his injury, although a circumstance that made it possible. But against such a possibility he was under no duty to guard because he had no reason to apprehend danger from the defendant’s car when on the engine. There was no causal connection between his negligence and his injury. The case is governed by the principles stated in Boulfrois v. Traction Co., 210 Pa. 263, and Besecker v. Railroad Co., 220 Pa. 507.

A part of the charge relating to the compensation for the loss of earning power is assigned for error. The learned judge in calling the attention of the jury to matters to be taken into consideration in arriving at a conclusion on the amount of compensation spoke of the probability of the plaintiff’s improving, of his being able to perform other kinds of work, and of his “living out the allotted time of three score years and ten.” The general instruction on the subject was accurate and thorough, and the jury were distinctly told that they could allow only the present worth of earning power “ from the time he reached twenty-one years for and during the remainder of his probable natural life.” The language quoted was no doubt suggested by the argument of plaintiff’s counsel that seventy years was the proper period to fix. There was not, as in Dooner v. Canal Co., 164 Pa. 17, the statement of a rule not founded on evidence to be followed by the jury, but rather a caution, in view of the argument advanced, to consider the probabilities.

The judgment is affirmed.


author: Mr. Justice Elkin,

text:
    Willock to use v. Beaver Valley Railroad Company, Appellant.

      Streets — Title—Plan of lots — Land owned by commonwealth.

    Where the commonwealth lays out a plan of lots of land owned by itself, and the lots are sold with streets as boundaries, the title to the fee to the center of the streets passes to the purchasers.
    Where the commonwealth lays out a plan of lots on which one of the boundary streets is indicated as of the width of 200 feet, but before any of the lots are sold, and before the rights of the general public attached, the commonwealth makes a grant of adjoining land so as to include 100 feet of the width of the boundary street, and thereafter the street is always regarded by the borough and by abutting property owners as of the width of 100 feet and no more, and lots are sold accordingly, and this condition of things continues for over 100 years, it will be presumed that the commonwealth intended to cut down, and did, in fact, cut down the width of the street from 200 feet to 100 feet.

      Railroads — Occupation of street — Special injuries — •Damages.
    The construction of a railroad upon a public street already dedicated to public use as a highway, imposes an additional servitude upon the owner of the fee, but such owner is only entitled to recover damages from the railroad company if he has suffered some special injury by reason of the construction of the railroad, such as interference with access to his property, or the cutting off of light and air from it. He cannot recover damages for the mere inconveniences and discomforts which the general public living near a railroad is compelled to bear.

      Railroads — Damages—Constitution—Art. XVI, sec. 8.
    Section 8 of art. XVI of the constitution which provides for just compensation to the owner of property “taken, injured or destroyed” in the construction of a railroad only applies when the title to the property so taken or injured is in the abutting owner who complains. If no property be actually taken or injured there is no damage to be compensated. If an abutting owner of property on a public highway has no title to the fee in the street or highway upon which a railroad is constructed with municipal consent he cannot recover compensation in the nature of damages for property taken or injured for the reason that under such circumstances he does not suffer a legal injury in the constitutional sense.
    Argued Oct. 14, 1908.
    Appeal, No. 221, Oct. T., 1908, by-defendant, from judgment of C. P. Beaver Co., March T., 1907, No. 223, on verdict for plaintiff in case of John P. Willock to use of W. S. Willock v. Beaver Valley Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover injuries to land. Before Prather, P. J., specially presiding.
    The facts are stated in the opinion of the Supreme Court.
    Defendant presented these points:
    4. If the jury find from the evidence that the fee to the whole ground upon which the railroad is constructed in front of the plaintiff’s property does not belong to plaintiff, but is the property of the abutting owners on the south or opposite side of the street, then there is no additional servitude imposed on plaintiff’s land, and the verdict should be in favor of the defendant. Answer: This point is refused. We have instructed you that the plaintiff is entitled to access to his property, whether he owns further into the street than his curb line or not; and if that access to his property has been interfered with by the construction and operation of the defendant’s railroad, you have a right to consider that in making up your verdict. [4]
    6. There can be no recovery by the plaintiff in this case from any damages from smoke, dust, noise, or other inconvenience caused by the lawful operation of the defendant’s railway. Answer: This point is refused. If you find that the plaintiff has no fee in the street except to his curb line, you might, under the evidence, still find whether or not the access to his property has been interfered with, and has thereby affected the value of his property, and if so, you will determine how that affects the property, and the extent thereof. [9]
    [We say to you, gentlemen of the jury, as matter of law, that it is immaterial when you have found, if you so find, that the access to this property has been interfered with, abridged, and that it is with increased difficulty that the plaintiff has access to his property — we say to you, when you have found that fact, that it is immaterial whether his property line is twenty feet, thirty feet or forty feet from the curb. The plaintiff has a right to access to the street, and it is a presumption of law that the street as located there, and marked by curbs, is on the ground on which it was originally laid out and designed. And whether it is or is not, the plaintiff is entitled to the road and street privileges, and if you find that access by him to his property has been damaged or interfered with by reason of the construction and operation of the defendant’s railroad, you will consider, in passing on that branch of the case, that his right of property is to the curb.] [5]
    [If the plaintiff owns a right in the soil to the middle of the street, then he has a right here to be compensated, taking into consideration the testimony here, for what noise, dust and inconvenience he experiences by reason of the construction and operation of the railroad; but if you do not find, under this testimony, that his rights go further than the curb line, you would have no right to consider the matter of noise, or dust, or smoke as affecting his property; but you would still inquire how much, if any, his property has been damaged in its general market value, as affected by the construction of this railroad, applying that construction and operation to the access to his property; and by access we do not mean a line of travel, such as might be affected by a line of an alley; he has a right to have access at any point along his property for the purposes for which it is adapted; that may be by a vehicle, or it may be by a private walk or pathway; and it is no entrance at any particular point, if it is a pathway.]. [10]
    Verdict and judgment for plaintiff for $3,797.50. Defendant appealed.

      Errors assigned were certain rulings on evidence; (4, 5, 9, 10) above instructions, quoting them.

      George B. Gordon, of Gordon & Smith, with him John M. Buchanan & James L. Hogan, for appellant.
    The plaintiff not being the owner of the ground upon which the defendant’s railroad is constructed, and the same having been built pursuant to grants from the state, the borough and the owners of the fee, the plaintiff is not entitled to recover: Paul v. Carver, 26 Pa. 223; Neely v. Philadelphia, 212 Pa. 551; Beck v. R. R. Co., 11 Pa. C. C. Rep. 363; Mayor, etc., of Allegheny v. R. R. Co., 26 Pa. 355; Johns v. Davidson, 16 Pa. 512; Dunham v. Williams, 37 N. Y. 251; Chicago v. Rumsey, 87 Ill. 348; New Castle & Franklin R. R. Co. v. McChesney, 85 Pa. 522; Philadelphia & Trenton R. R. Co., 6 Wharton, 25; Danville, etc., R. R. Co. v. Com., 73 Pa. 29; Jones v. R. R. Co., 151 Pa. 30; Penna. R. R. Co. v. Duncan, 111 Pa. 352; Penna. R. R. Co. v. Lippincott, 116 Pa. 472; Penna. R. R. Co. v. Marchant, 119 Pa. 541; North Penna. R. R. Co. v. Traction Co., 205 Pa. 579; Cobb v. Warren St. Ry. Co., 218 Pa. 366.
    The court’s instructions as to the measure of damage were incorrect, and his rulings on admissions of evidence on the part of the plaintiff relating thereto: Jones v. R. R. Co., 151 Pa. 30.

      Robert W. Darragh, with him J. Rankin Martin, for appellee.
    The common grantor of both the street and lot in question, having at one time owned all the land in fee, the legal effect of plaintiff’s deed, being bounded on the south by the street in question, was to vest in him the fee in the land to the center of the street, subject, however, only to the rights of the public to use it for street purposes: Robinson v. Myers, 67 Pa. 9; Transue v. Sell, 105 Pa. 604.
    The evidence clearly shows that the borough of Beaver never in any way recognized this street as being of any other that 100 feet in width, and the fact that it has been used as a street to the width of 100 feet for over 100 years, is better evidence of the location of the street than any mere paper location: Commonwealth v. Marshall, 137 Pa. 170; Hancock v. Borough of Wyoming, 148 Pa. 635; Penna. Schuylkill Val. R. R. Co. v. Walsh, 124 Pa. 544.
    In determining a question of damage to a property so located, it is proper to submit to the jury evidence as to what extent the plaintiff’s property may be damaged by reason thereof, which submission was properly and carefully given to the jury in this case: Penna. S. V. R. R. Co. v. Ziemer, 124 Pa. 560; Penna. R. R. Co. v. Duncan, 129 Pa. 181; Pittsburg Junction R. R. Co. v. McCutcheon, 18 W. N. C. 527; Shano v. Bridge Co., 189 Pa. 245.
    January 4, 1909:
   Opinion by

Mr. Justice Elkin,

There can be no proper disposition of this case without a determination of the question of title to the fee in Fifth street. If appellee, an abutting property owner, has no title to the fee in the street upon which the railroad is constructed, he cannot recover compensation in the nature of damages for property taken, injured or destroyed, because under such circumstances he would not suffer a legal injury. The first contention of learned counsel for appellant is that the town of Beaver was laid out under legislative authority on lands belonging to the state, and the streets and alleys having thus been dedicated to public use, the subsequent conveyance of lots to private owners did not divest the title of the commonwealth to the streets and alleys. This position is predicated on the theory that the commonwealth holds the streets as trustee for the public, and is not governed by the same rule as an individual grantor. A grant by the commonwealth is taken most strongly against the grantee, while a grant by an individual is taken most strongly against the grantor. This is the general rule, but in our view of the present case it has no application. The town of Beaver was not laid out by the exercise of the sovereign power of the state, but by express legislative authority, directing the proper officers of the commonwealth, the owner of the soil, to lay out the same for the purpose of sale to private purchasers. The purpose was to encourage the building of a town at that point. The officers of the commonwealth had no power to act in the premises except such as was conferred by the legislature, and this power when conferred authorized the laying out of a town and provided for the sale of lots. If the plan of lots in the present case had been laid out by an individual in precisely the same manner as the commonwealth has done, and lots had been sold with streets as boundaries, the title of the fee to the center of the streets would have passed to the purchasers. This is the rule of our cases from Paul v. Carver, 26 Pa. 223, to Neely v. Phila., 212 Pa. 551. There is no sufficient reason why the same rule should not apply to the commonwealth under the facts of the case at bar. The reasonable construction to be placed upon the acts of assembly authorizing the laying out of the town and the sale of lots in this case, and of the acts of the officers entrusted with the execution of these powers, is that the legislature intended the purchasers of lots to enjoy every privilege and be invested with every legal right passing to any purchaser of a lot abutting on a public street, and this would pass the title of the fee to the center of the street to the purchaser as in the case of a purchase from an individual grantor. It is further contended that appellee is not the owner of the fee in any part of Fifth street as at present located, even if the title to the whole street is not in the commonwealth. This raises an interesting question and one not free from difficulty. In order to understand it the facts must be briefly stated. The town of Beaver was laid out under the authority of an act of assembly passed in 1791. The site was a part of the depreciation tract north of the Ohio river, and the title was in the commonwealth. The surveyor general caused a survey to be made, and prepared a plan showing lots, streets, alleys and public squares. The principal streets were marked of the width of 100 feet, with the exception of Buffalo street on one side and Fifth street on the other, which were laid out to be of the width of 200 feet. The survey was approved by act of 1793, and there can be no doubt that there was a dedication of the streets to public use of the designated widths. If Fifth street still remains of the width of 200 feet, there can be no recovery in this case, because the railroad is not located on that part of the street as originally dedicated to which the appellee could claim title. It clearly appears, however, from the evidence that Fifth street was never opened to the width originally plotted, but has always been used and regarded as of the width of 100 feet. In itself this would not defeat the original dedication because the rule is that the character of the highway and the right of the public at all times to use it as such cannot be lost by nonuser. This rule, however, must be understood to apply after the rights of the public in general or of individual property owners in particular, have attached. Even in the case of a private owner who lays out a plan of lots with plotted streets and alleys of certain widths, thus making a dedication for public use, there is no reason why he may not change or alter his plan of lots, streets, and alleys if he does so before the rights of the public or of individuals become vested. If a private owner may change or alter a plan of lots under these circumstances, why cannot the commonwealth do the same thing if done in a proper manner? The surveyor general who caused the plan of lots to be laid out had no greater authority than the legislature gave him, and the power which gave can take away so long as the rights of others are not disturbed. This is what was done in the present case. Fifth street separated the inlots from the outlots on the original plan. In 1803, before any of the inlots or of the outlots abutting on Fifth street had been sold to anyone, and before the street had been opened or used as a public highway, the commonwealth, under the authority of an act of assembly, granted a patent of the outlots to the trustees of Beaver Academy, and in making the survey of this grant by courses and distances, included within its boundaries the north half of Fifth street as originally dedicated. There were no sales of either inlots or outlots to private owners for more than two years after the commonwealth had conveyed the outlots, including 100 feet, being the north half of Fifth street, to the Beaver Academy. In 1806 an act was passed authorizing the trustees of the academy to make sale of certain lots held by that institution under the prior grant. As authorized by this act the outlots were sold, and the appellee derives his title from this source. It is clear, therefore, that from the date of the patent to Beaver Academy in 1803 down to the present owner, one-half of Fifth street as originally dedicated, has been included within the boundaries of the outlots now held by the appellee. It further appears that the outlots belonging to appellee and which are the subject-matter of the present controversy have been described in the several deeds of conveyance forming the chain of title as bounded by Fifth street on the south, and Fifth street on the south which bound these lots has only been 100 feet wide from the beginning of these conveyances to the present time. Fifth street has always been regarded by the borough and by abutting property owners as of the width of 100 feet and no more. These facts clearly indicate an intention on the part of the commonwealth soon after the original dedication and before any adverse property rights had become vested, to reduce the width of Fifth street as originally dedicated and make it of the same width as the other principal streets of the borough. We can see no good reason in law why this cannot be done. The commonwealth herself, the proprietor of the soil, altered the width of the plotted street by making an absolute conveyance of the title to the north half of it to the trustees of Beaver Academy and in making the survey of the academy tract, located its southern boundary on the north line of Fifth street reduced to the width of 100 feet. The conveyances since that time have given Fifth street thus reduced in width as the southern boundary of these lots. This has been the situation for more than a century, and we have not been convinced that there is any legal reason for disturbing it. Under these circumstances, we must regard the width of Fifth street as 100 feet, and with the width of the street thus fixed, it follows under the deeds of conveyance that appellee is the owner of the title to the center of it, and the railroad having been located in the center of the street, part of the construction is necessarily upon the fee of appellee.

Another question to be determined is what is the proper measure of damages, if any injury has been suffered, under the facts of this case. The appellant company has a charter from the commonwealth to construct a railroad and has obtained municipal consent to lay its tracks in the center of Fifth street. Prior to the adoption of the new constitution, abutting property owners, who sustained injuries resulting from the construction of a railroad upon a public street could not recover damages. It was uniformly held that such damages were damnum absque injuria. Section 8 of art. 16 of the constitution was intended to remedy what was considered a hardship under the old rule by providing that when private property is taken for public use just compensation shall be made for property so “taken, injured or destroyed.” This section of the constitution has been the source of much contention and our earlier cases indicate a difference of view as to its proper interpretation, but the rule has been finally settled that there must be either an actual taking of or positive and visible injury to the property of an abutting owner on the street before there can be a recovery of damages. The construction of a railroad upon a public street already dedicated to public use as a highway imposes an additional servitude upon the owner of the fee, and one not contemplated when the street was originally laid out. In this sense the abutting owner has been injured within the meaning of the constitution and for any special injury suffered by the additional servitude imposed he is entitled to just compensation. The right of action accrues when the railroad is constructed. This is the doctrine of Penna. S. V. Railroad Co. v. Walsh, 124 Pa. 544; Penna. S. V. Railroad Co. v. Ziemer, 124 Pa. 560; Penna. Railroad Co. v. Duncan, 129 Pa. 181; Jones v. Railroad, 151 Pa. 30. It must not be overlooked, however, that the foundation of the right of action is the allegation that the abutting property owner has suffered some special injury by reason of the additional servitude upon the street caused by the construction of the railroad thereon. In some instances access to his property was interfered with, in others drainage was disturbed, and in others light and air were cut off. The injury to the complaining property owner must be special, different from that of the general public, else there can be no recovery. This, for the reason that the only claim for damages is on account of some special injury to the private owner in the construction .of the railroad, and he cannot recover for those inconveniences or discomforts which must be borne by the general public which live near a railroad. Title to the property either taken or injured must necessarily be in the abutting property owner who complains, because it is the taking of or injury to private property for which compensation is to be made. If no property be taken or injured, there is no damage to be compensated. In all such cases there can be no recovery unless special injuries are alleged and proven, and the proper measure of damages is the extent of those injuries to the abutting owner. It is true these special injuries may depreciate the value of the property, and we see no reason why inquiry should not be made as to the amount of depreciation in value caused by the special injuries about which complaint is made. In this connection, however, it should be observed that in Jones v. Railroad Company, 151 Pa. 30,' it was finally settled that noise, smoke and dust as well as other inconveniences and discomforts which must be borne by the general public and which are occasioned by the operation of the railroad, cannot be considered in estimating damages for special injuries in this class of cases. In the statement of claim the appellee complains that access to his property has been interfered with by the construction of the railroad upon the street, and this is the special injury for which he asks to be compensated in damages. The proper inquiry, therefore, is, has the construction of the railroad interfered with access to his property, and if so, what amount of damage has resulted to the property owner by reason of the alleged interference?

The fifth, sixth, ninth, tenth, eleventh, twelfth, thirteenth and fourteenth assignments of error are sustained.

Judgment reversed and a venire facias de novo awarded.


author: Me. Justice Pottee,

text:
    Goehring v. Beaver Valley Traction Company, Appellant.

      Negligence — Street railways — Passenger—Master and servant — Borough policeman — Contributory negligence — Question for fury.

    A borough policeman was not paid by the borough but by business men and others needing police protection. He rendered services to a traction company in preserving order at its stations and on its cars. For these services he was paid by the company a small sum in wages with the right of free transportation over all its lines. On a certain night he was asked by a conductor to board a car on an outward trip. On the return trip when there was no disorder, the conductor asked the policeman to go to the front platform with the motorman. While standing there he was severely injured by the car leaving the track at a curve, when it was being run at a great and excessive speed. Held (1) that the question whether the policeman was or was not a passenger at the time of the accident was for the jury, and (2) that the question of his contributory negligence was also for the jury.
    Argued Oct. 14, 1908.
    Appeal, No. 222, Oct. T., 1908, by defendant, from judgment of C. P. Beaver Co., Dec. T., 1905, No. 82, on verdict for plaintiff in case of Charles W. Goehring v. Beaver Valley Traction Company.
    Before Mitchell, O. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Smith, P. J., specially presiding.
    The facts appear by the opinion of the Supreme Court.
    The court charged in part as follows:
    [Plaintiff’s counsel contends that his business as a night policeman ended at the boundary of Rochester borough, being the middle of the Ohio river, while in the defendant’s testimony it is contended that his employment was that of a peace officer throughout their entire lines. On the night of the accident plaintiff, after getting on the car and taking his seat in the regular seats in the interior of the car, alleges that he was directed by the conductor to go on the front platform with the motorman, and it is in testimony on both sides that he stayed there during the entire trip going to Monaca, where they stopped a couple of minutes, during which time he sat with the motorman in the interior of the car, and then again took his place on the front platform with the motorman on the return trip at the instance of the employees of the car. Plaintiff’s counsel contend that he was not in the line of his employment on the return trip, but that his duties as night policeman in there were only on the outbound trip from Rochester to the center of the bridge, and that he did not get off after passing that point simply for the reason that he did not want to walk back. Now we leave this as a question of fact for this jury. Plaintiff could have been an employee with the rights of free passage and at the same time a passenger, that is, his being an employee is not inconsistent also with his being a passenger at certain times upon the company’s cars. The question for you then to consider is, whether or not on this night in question, under all the testimony in the case, both on the part of the plaintiff and on the part of the defendant, this plaintiff was there as an employee of the company in the line of his duty by virtue of such employment at the time of the accident. If he was a passenger, as we said to you before, the proof of the accident raises the presumption of negligence on the part of the defendant company or of its employees. While if he was an employee and there in the line of his duty, there is no such presumption of law and the burden would be upon this plaintiff to satisfy you that there was negligence on the part of the defendant’s employees. There must be negligence on the. part of the defendant, understand, in either case, but in the ease of a passenger this negligence is presumptive from the proof of the accident.] [7]
    [Having decided, then, this question of fact as to his status as a passenger or an employee on that night and at the time of the accident, you then pass to the question, if you decide he was an employee, whether negligence has been shown affirmatively by plaintiff’s testimony. If he was an employee and it has not been so shown, defendant is entitled to a verdict at your hands. If a passenger, has the presumption of negligence been overcome by the proof offered by the defendant? If it has, defendant again would be entitled to your verdict. If an employee, and this accident was the result of negligence by a coemployee, such as would be the motorman and the conductor, plaintiff cannot recover and your verdict must be for the defendant. The only evidence in this case on the part of the plaintiff attempting to explain the cause of this accident is that of the plaintiff himself and one or two witnesses, in an effort to show excessive speed of the car. There is no evidence of the plaintiff going to show that the car was defective or that the track was defective, or that this accident could have resulted from anything but increased speed upon a dowñ grade, at the end of which was a curve, causing the car to leave the track at the curve. If this was the fault of the motorman, a coemployee, or was caused in any way by the act of the plaintiff himself, or by virtue of his contributory negligence, then he cannot recover in this action.] [8]
    [It is one of the undisputed facts in this case that this plaintiff was on the front platform of this car. It was while he was in that position that he received the injuries for which he sues. He excuses himself for being in this position, however, by alleging that he was directed to go there by the conductor, who told him that he did not allow policemen to ride on the seats, or something to that effect. You will remember just what he alleges was said. It is in evidence, undisputed I believe, that there was no rule of the company to that effect, and that the conductor himself denies that he gave any such direction. What, then, was the fact? Was he directed to go there by the conductor or did he go there voluntarily as is claimed by the conductor, at the instance of the motorman to talk to him? If he did go there at the positive direction of the conductor, we take it that such direction would have to be obeyed, as the conductor was the manager of that car and in full authority, and he, the plaintiff, would not be necessarily guilty of negligence per se in thus obeying the conductor's orders.] [9]
    . Verdict and judgment for plaintiff for $6,185. Defendant appealed.

      Errors assigned among others were (7, 8, 9) above instructions, quoting them.
    ' James L. Hogan, with him John M. Buchanan, for appellant.
    A policeman riding on the car to keep order is undoubtedly a fellow servant with the motorman and conductor: New York, etc., R. R. Co. v. Bell, 112 Pa. 400; Dishon v. Railway Co., 126 Fed. Repr. 194; Texas & Pac. Ry. Co. v. Smith, 31 Lawyers’ Rep. Annotated, 321; McLaughlin v. Interurban St. Ry. Co., 91 N. Y. Supp. 883.
    A passenger on the platform takes upon himself the risk of injury from collision as well as the ordinary dangers: Harding v. Transit Co., 217 Pa. 69; McDade v. Transit Co., 215 Pa. 105; Paterson v. Transit Co., 218 Pa. 359; Mooar v. Pittsburg Railways Co., 219 Pa. 616; Ramsey v. Street Railway Co., 35 Pa. Superior Ct. 598; Purvis v. Railroad Co., 219 Pa. 195; Deery v. Railroad Co., 163 Pa. 403; Rothstein v. Railroad Co., 171 Pa. 620; Reilly v. Railway Co., 4 W. N. C. 273.

      George Wilson and Robert W. Darragh, for appellee.
    We contend that this case was properly submitted by the court to the jury under all the evidence: McNulty v. Railroad Co., 182 Pa. 479; Creed v. Railroad Co., 86 Pa. 139; O’Donnell v. Railroad Co., 59 Pa. 239.
    January 4, 1909:
   Opinion by

Me. Justice Pottee,

The plaintiff in this case was employed as a night policeman for the borough of Rochester, but instead of being paid by the borough he received his compensation from business men and firms, who were presumably interested in securing police protection. Among other services which he rendered was that of keeping a certain waiting room of the traction company clear of loafers and disorderly persons, and he was also expected to respond whenever called upon by the conductors to aid in preserving order upon the cars of the defendant company. For his services to the defendant in these respects, it paid him $4.00 a month, and gave him the right of free transportation over all its lines. His earnings as a police officer from other persons and firms whom he served during the same period were apparently more than ten times what he received from the defendant company. Plaintiff testified that on the night of the accident he was asked by its conductor to board a car running, across the river into the borough of Monaca, and that he responded to the request. That at first he took a seat inside the car, but was directed by the conductor to go to the front platform with the motorman. He made the trip to the terminus and back, and while he was upon the front platform and as the car was rounding a curve with what was charged as great and excessive speed, it was thrown from the track, and plaintiff was very severely injured. At the trial of the case it was contended on the part of the plaintiff that he was merely a passenger at the time of the accident, having at the time no police duties to discharge, and that he was under his right to free transportation, merely riding back to the point at which he had entered the car. On the other hand, the defendant company contended that the plaintiff was then acting in the capacity of an employee. This disputed question of fact as to the status of the plaintiff was left to the determination of the jury, and properly so, we think. It is clear from the evidence that upon the return trip of the car there was no disorder and no occasion for interference by the plaintiff in his capacity as an officer. He was entitled to free transportation as part of the compensation for his services. McNulty v. Penna. R. R. Co., 182 Pa. 479, affirms the doctrine that “a person employed by a railroad company at a certain amount of wages per day and free transportation to and from his home is to be regarded as a passenger while traveling to his home after his day’s work is done.” In the present case, as that question was carefully submitted to the jury for their determination, the verdict of the jury must be accepted as establishing the fact that the plaintiff was a passenger at the time of the accident; and we know of no principle of law which stands in the way of such a finding. We think the question was properly regarded as one of fact for the jury rather than one of law for the court, and that in this respect the case is within the principle of Wilkes v. Buffalo, etc., Ry. Co., 216 Pa. 355.

On the question of plaintiff’s contributory negligence, the jury were instructed that there could be no recovery if the plaintiff voluntarily took a place upon the front platform, when there was room for him inside the car. But the undisputed evidence is that the conductor directed plaintiff to go out upon the platform, telling him that the motorman wanted to talk to him. It must be remembered that under the circumstances the position of the plaintiff was not that of the ordinary passenger. He was a peace officer, engaged by the defendant company to aid the men in charge of the car in preserving order whenever the need should arise. He had also the right of free transportation at all times, whether actually discharging police duties or not. Under such circumstances the rules which would govern an ordinary passenger could not reasonably be applied to the conduct of the plaintiff. He would naturally have occasion for communicating with the men in charge of the car, as ordinary passengers would not. The trial judge could not properly have ruled as matter of law that the plaintiff was guilty of contributory negligence in going from the inside of the car to the front platform in compliance with the direction of the conductor.

Our examination of the record in this case has satisfied us that the questions of whether plaintiff was at the time of the accident a passenger or an employee, the negligence of the defendant, and the contributory negligence of the plaintiff, were all properly submitted to the jury, in a very careful and impartial charge, of which the appellant has no just reason to complain.

The assignments of error are overruled, and the judgment is affirmed.


text:
    McIntosh, Appellant, v. Ropp.

      Estoppel — Oil lease — Tenant by the curtesy — Joint action.

    Where a tenant by the curtesy executes an oil lease without the remainder-men, a son and two daughters, joining in the lease, and subsequently the three remainder-men bring a joint action of trespass against the lessee to recover damages for the taking of oil, and there is sufficient evidence to constitute an estoppel against the son, although no evidence of estoppel against the daughters, a joint recovery is defeated, and a verdict and judgment for the defendant will be sustained.
    In such a case there is sufficient evidence to constitute an estoppel against the son, where it appears that he had urged the taking of the lease in the first instance from his father, had encouraged the expenditure of money by the lessees in developing the lease, had worked on the lease at different times for several years, and had received checks made payable to his own order for a number of years for the royalty due under the lease for oil run into the pipe line in the name of his father.
    Argued Oct. 14, 1908..
    Appeal, No. 59, Oct. T., 1908, by plaintiffs, from judgment of C. P. Butler Co., Sept. T., 1907, No. 94, on verdict for defendant in case of Edward E. McIntosh and Addie McIntosh v. W. H. Ropp.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for the taking of oil. Before Galbreath, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Plaintiff presented the following points:
    11. If Edward E. McIntosh did make any declarations as to being pleased or satisfied that Dierken and Whitener had taken an assignment of the wells and intended fitting them up and pumping them, or any declarations to this effect, without knowledge of his rights, he would not be estopped, as one of the essential elements in estoppel is the knowledge of his own rights in the subject-matter by him who is to be estopped. Answer: This is refused, if Edward McIntosh encouraged Dierken and Whitener to purchase the lease. Otherwise, it is affirmed, and in that connection I may say to you what I probably neglected to say in the general charge, that Edward McIntosh says that he has no recollection of having said those things which it is alleged he said before or at the time when Dierken and Whitener were contemplating the purchase of these wells. [27]
    12. If one cotenant or joint tenant by his acts, words or conduct is estopped, it will not affect or destroy the title of the other cotenants or joint tenants if they were not present and had no part in misleading the injured party, and there has been no evidence shown in this case which would estop Addie McIntosh and Elizabeth Mary Lee. Answer: The acts, words or conduct of one cotenant will not affect or destroy the title of the other cotenant or cotenants who were not present and had no part in misleading the injured party, and unless Addie McIntosh and Elizabeth Mary Lee, with a full knowledge of their rights, stood by in silence and saw the defendant, in a mistaken belief that he had good title, make his expenditures, they are not estopped. [28]
    Elizabeth Mary Lee and her husband having joined in a deed of conveyance of her undivided one-third interest in the McIntosh farm to the plaintiffs on April 7, 1900, which deed is recorded April 13,1900, in Butler county in deed book No. 186, page 180, the plaintiffs must recover in this case for the damage done the shares of Addie and Elizabeth. Answer: That is answered in the same way as the preceding point, which I will read as the answer to this point. The acts, words or conduct of one cotenant will not affect or destroy the title of the other cotenant or cotenants who were not present and had no part in misleading the injured party, and unless Addie McIntosh and Elizabeth Mary Lee, with a full knowledge of their rights, stood by in silence and. saw the defendant, in a mistaken belief that he had good title, make his expenditures, they are not estopped. [29]
    14. If Edward E. McIntosh did work on the wells after the purchase by Dierken for a week or more, and did haul an auger stem or other machinery to. a shop for a contractor and did furnish the coal to generate steam for the wells, from the beginning up’to 1905 without the knowledge of his rights, these facts do not estop him and are not evidence of estoppel. Answer: Without knowledge of his own right the facts set out in this point would not work an estoppel, unless he thereby encouraged future investment or expenditure, in which case, he would be estopped to complain of any injury done after such encouragement had been given and expenditure made. [30]
    17. The fact that Edward McIntosh carried his father’s receipts and selling orders to the pipe line office and received checks for them and paid money over to his father is no element of estoppel, especially as Daniel Dierken had no knowledge of that fact until the summer of 1907 and about the time this suit was brought. Answer: That is affirmed, with the qualifications that the jury may consider the fact of the sale of the oil by Edward McIntosh as a circumstance in the case, in its relation to the other evidence in the case, and the light, if any, which it throws upon the whole conduct of Edward McIntosh. The fact, however, in itself is not sufficient to predicate an estoppel upon it. [33]
    Defendant presented these points:
    2. While the title to the McIntosh farm is in Kenneth McIntosh for life as tenant by the curtesy, and then will vest in the plaintiffs, and while Kenneth McIntosh had no right to lease it for oil purposes without the consent of his children, yet the plaintiffs may be precluded by their conduct from asserting their title to the prejudice of the defendant; and if the jury find that before purchasing the wells from Sybert and before paying the purchase money therefor, and before expending money in the development thereof, Dierken and Whitener were positively encouraged by Edward E. McIntosh to purchase or to expend money upon the wells, and he did not disclose the true state of the title, Dierken and Whitener being ignorant of it, there can be no recovery in this case, although Edward E. McIntosh may have been ignorant of his right. Answer: That is affirmed. [34]
    3. If the jury find that the plaintiffs knew that B. B. Sybert, or Dierken and Whitener under him, were expending money upon faith of a lease made by their father, knowing their rights in the land, their silence or failure to inform Sybert, or Dierken and Whitener, of their claim, will now estop them from denying the rights of the defendant under the Sybert lease, and the burden of proof is upon the plaintiffs to show that they were ignorant of their rights at the time they should have given information of their claims. Answer: This is affirmed, with the qualifications, that in order to the plaintiffs’ estoppel, it should appear, in addition to the. things set out in this point, that the defendant was making his expenditures without the same knowledge possessed at the time by the plaintiffs as to the rights of the parties respectively. [35]
    4. Although Kenneth McIntosh could not make a lease of the McIntosh farm without the consent of his children, the plaintiffs, yet the fact that Edward E. McIntosh, since the year 1900, has been receiving most of the oil royalties derived from the Sybert lease is evidence of a ratification of the lease by estoppel. This is true also if the plaintiffs, or either of them, allowed their father, without objection, to use the royalties for their joint benefit. And if the jury so find, and also find that the plaintiffs knew their rights, the jury may find ratification by estoppel and a verdict based thereon in favor of defendant. Answer: The facts set out in this point are not sufficient, in themselves, to work an estoppel, but may be considered in their relation to the other testimony bearing on the question of estoppel. [36]
    Verdict and judgment for defendant. Plaintiffs appealed.

      Errors assigned among others were (27-30, 33, 34-36) above instructions, quoting them.

      John M. Greer, with him Thomas H. Greer and John B. Greer, for appellant.
    Under the undisputed facts the lessees could have had no mistaken opinion about their rights under the lease, before they began operations on it; but, on the contrary, knew exactly what they had acquired from the tenant by the curtesy. The doctrine of estoppel is not in this case; if the real truth was known to both, and their means of knowledge was equal, there is no estoppel: Brandmeier v. Pond Creek Coal Co., 219 Pa. 19; Knouff v. Thompson, 16 Pa. 357; Woods v. Wilson, 37 Pa. 379; Bright v. Allan, 203 Pa. 394; Hill v. Epley, 31 Pa. 331; Goundie v. Northampton Water Co., 7 Pa. 233; Boggs v. Mining Co., 14 Cal. 279; Williamson v. Jones, 38 L. R. A. 694.

      T. C. Campbell, with him P. W. Lowry, F. J. Forquer, W. Z. Murrin and John Murrin, for appellees.
    The evidence was sufficient to establish estoppel: Livengood v. Stauffer, 31 Pa. Superior Ct. 495; Hill v. Epley, 31 Pa. 331; Chapman v. Chapman, 59 Pa. 214; Goundie v. Water Co., 7 Pa. 233; Knouff v. Thompson, 16 Pa. 357; Beaupland v. McKean, 28 Pa. 124.
    A joint action in tort cannot be maintained when some of the plaintiffs are shown to have no right to recovery: McDonald v. Simcox, 98 Pa. 619.
    January 4, 1909:
   Opinion by

Mr. Justice Elkin,

The title to the tract of land which produced the oil, the subject-matter of the present controversy, was vested in Rosa McIntosh, mother of plaintiffs, at the time of her death. She died intestate in 1888, leaving to survive her a husband and three children. The husband went into possession of the farm as tenant by the curtesy, while the son and one daughter, appellants here, made their home with their father and continued to reside upon the premises as they had done in the lifetime of their mother. In 1895 Kenneth McIntosh, the father and life tenant, executed a lease for oil and gas products upon twenty acres of said tract to all intents and purposes as if he were the owner thereof. The original lessee, or his assigns, proceeded to drill and develop the tract for the production of oil. According to the terms of the lease one-eighth part of all the crude oil produced was set apart in the pipe line, running the same to the credit and for the benefit of the lessor. The lessee therefore contends that, having acted in good faith in the development of said property, and having paid the royalty agreed to be paid the lessor whom he believed to have the authority to execute said lease, he ought not to be required to again pay for the oil taken or damages done the premises, under the facts of the present case. The appellee took an assignment of the lease from Dierken in July, 1907, and this suit was instituted to recover damages from the time he took possession of and operated the wells under the lease. The defense relied on in the court below was that of an equitable estoppel, and this doctriné was very carefully explained by the learned trial judge in the charge to the jury. As to Edward McIntosh, we have concluded that there was sufficient testimony to justify a finding that he had urged the taking of the lease in the first instance from his father, had encouraged the expenditure of money by the lessees in developing the lease, had worked on the lease at different times for several years, and had received checks made payable to his own order from October 26, 1900, to November 27,1907, for the royalty due under the lease for oil run into the pipe line in the name of his father; and all of these things, if believed, are sufficient in law to constitute an estoppel. The verdict of the jury leaves no room for doubt that this view of the facts prevailed. This being a joint action, there must be a joint recovery. If Edward McIntosh is estopped, the right to a joint recovery is defeated, and the action as at present instituted must fall. What has been said as to Edward must not be understood as applicable to his sisters. As to the married sister who lived in the state.of New York, nothing was proven to show that during the time she had an interest as remainder-man in the farm as an heir of her mother, anything was done by her either by way of acquiescence or encouragement to estop her from asserting her legal rights. Those who subsequently took her title stand in the same position in respect to her interest as she would have done if the title remained in her, unless since the acquisition of her interest, those who took it did something which in contemplation of law would amount to an estoppel as to them, and this cannot be determined from the present record. As to the sister Addie, one of the appellants here, who remained at home on the farm, we are of opinion that the facts established at the trial are not sufficient to constitute an estoppel as to her. However, the present action cannot prevail, because it being joint, and there being sufficient facts established to estop Edward, the right to a joint recovery being thus defeated, this action must fall.

Judgment affirmed.


text:
    McIntosh, Appellant, v. Dierken.

      Estoppel — Joint action — Parties.
    If one of the parties plaintiff to a joint action fails to make out a case, or commits acts which estop him from asserting his claim, the right to a joint recovery is defeated, and the action falls.
    Argued Oct. 14, 1908.
    Appeal, No. 60, Oct. T., 1908, by plaintiffs, from judgment of C. P. Butler Co., Sept. T., 1907, No. 92, on verdict for defendant in case of Edward E. McIntosh and Addie McIntosh v. Daniel Dierken.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for taking oil. Before Gal-breath, P. J.
    Verdict and judgment for defendant. Plaintiffs appealed.

      Errors assigned were various instructions.

      John M. Greer, with him Thomas H. Greer and John B. Greer, for appellants.

      T. C. Campbell, with him P. W. Lowry, F. J. Forqner, W. Z. Murrin and John Murrin, for appellees.
    January 4, 1909:
   Opinion by

Mr. Justice Elkin,

All that has been said at No. 59, October Term, 1908, ante, p. 606, applies generally to the present case. This is also a joint action and if one of the parties to such an action fails to make out a case or commits acts which estop him from asserting his claim, the right to a joint recovery is defeated, and the action falls. Whether this might have been cured by an amendment, it is unnecessary to determine, for no such application has been made. The learned counsel for appellants stand upon the legal rights of the parties and contend that neither Edward nor his sisters did anything to constitute an equitable estoppel and thus preclude a recovery. We agree that as to the sisters this contention is sound, but not so as to Edward. He was a mature man; he lived on the farm and helped transact the business; he encouraged the original lessees to take the lease from his father; he worked on the lease and helped develop it, knowing its terms and provisions; he was familiar with the whole situation and either knew, or should have known, his legal rights in the premises. For a period of several years he received payment of royalties in checks drawn to his own order for the oil run into the pipe line in the name of his father under the terms of the lease. Under these circumstances, it would seem most unconscionable that he should be permitted to again enforce payment for the oil thus run and paid for with his knowledge and apparent approval. The jury found for the defendant, no doubt on the theory fully explained by the court, that if Edward were estopped by his acts there could be no recovery at all in this joint action. This being our view of the case, it is unnecessary to discuss the numerous assignments of error which raise many other interesting questions.

Judgment affirmed.