text:
    James, Appellant, v. West Chester Borough.

      Waters — Boroughs—Appropriation of water — Damages—Viewers.
    Damages occasioned by the taking of water to supply a municipality are to be estimated as of the time of the taking, and are to include the amount of water, the right to divert which is taken, irrespective of the amount actually diverted.
    Where a borough council adopts a resolution appropriating an entire stream, but by a supplemental resolution limits the amount of water to be taken per day not to exceed a stated number of gallons, and five years thereafter a lower riparian owner whose property had been injured by the diversion of water, files a petition for the appointment of viewers, the jury in determining the damages must limit their consideration of the question to how much the property was reduced in value by reason of the appropriation and withdrawal from the stream of the number of gallons specified in the supplemental resolution.

      Damages — Unreasonable demand.

    In such a case if the petitioning landowner made an exorbitant and unreasonable demand, so that reasonable settlement with him was impossible, the court may properly instruct the jury that the damages should not be increased because of delay in the settlement.
    Where a borough makes two successive appropriations of water from the same stream, a lower riparian owner who acquired title after the first appropriation, will be entitled to no damages therefor, but will be restricted to the damages resulting from the second appropriation.
    Argued Feb. 4, 1908.
    Appeal, No. 375, Jan. T., 1907, by plaintiff, from judgment of O. P. Montgomery Co., Marcb T., 1907, No. 42, on verdict for plaintiff in case of John W. James v. West Chester Borough.
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Appeal from report of viewers.
    Before Weand, J. -
    The facts are stated in the opinion of the Supreme Court.
    The court charged in part as follows:
    [The borough of West Chester, without legislative authority, had no right to go beyond its limits to obtain water until the years 1838 and 1839, when there was enacted an act of assembly which gave them that permission. In consequence of that act, in 1854, they resolved to build a pumping station at Fern Hill, from which to take the water of Chester creek. That pumping station was established, therefore, we will say, in 1854.
    Under the act of 1838, under which the court rules that the Fern Hill station was established, there was a certain course of procedure laid down, which anyone who was injured was bound to pursue when he asked for damages. This plaintiff in this suit has not pursued the procedure under that act, and therefore it is that the court has ruled that for any damage done under the taking by virtue of the act of 1838, at Fern Hill, there can be no recovery in this case. In 1887 the legislature passed a general law applicable to all boroughs, which allowed them to go beyond their limits for the purpose of procuring water, and in pursuance of that act the defendant borough established another pumping station at Milltown, and it is for the damages which the plaintiff says he incurred by reason of this taking that this suit is brought.
    Therefore, in considering this question, you will always recall that in mind, what we are deciding here, is what damage was caused to this plaintiff by reason of the taking at the Milltown station.] [2]
    [Probably the best evidence of the condition of the mill prior to 1897 would be that of the plaintiff and the men who worked in the mill at that period. In order to determine what the difference in loss was, it is necessary to know exactly what was the condition of this property in 1897. The plaintiff himself has testified on that point, and we turn to his testimony. He says : “ I realized the loss in my waterpower in 1895. Those two years I spoke of I was dreadfully handicapped, and had serious loss from the fact of not being able to run the mill.” It is admitted, I believe, that up to 1895 there was no perceptible loss of water-power. “ In 1895 and 1896 we were suffering a great deal of loss from not having sufficient power to operate the mills, not even enough in 1895 and 1896 to operate the flour mill alone half time in dry seasons. We were losing by having to go into the market to buy flour with which to supply the contracts,” and so forth. Again : “We were able to run up to 1895 ; 1895 the night miller and also the day miller were both losing time during that time.” He had previously said: “ The water was noticeably decreasing from 1883, along there. We noticed the decrease in water and knew the cause, and yet we had sufficient to run the mill, but we foresaw the increased consumption or taking of West Chester was going to ruin the power.” The question was asked: “ Tell us in 1897 how you found the water for running your mill before you put a gasoline engine in at all. A. We had not water sufficient to run the flour mill more than half time a great deal of the time ; sometimes a little more,” and so forth. “ The sawmill was standing a good part of that time, only when there was a wet day, or something of that kind. In 1896 or 1897 we partially abandoned that, but we allowed the logs to come to the mill and saw them up as we could.” Again : “ From 1895 to 1903 there was a great deal of the time that the flour mill would not make twelve hours out of the twenty-four, with the mill not running in the summer seasons, and a great deal of the time in winter time. I was away from the place a great deal.” Here he said : “ Q. How many hours are you able to run your mill ? A. It is a varying thing. From six hours out of the twenty-four to probably twelve; it depends on the season, and on the summers in ordinary stages, you could not hardly do that. There are times you can run full.”
    How here, gentlemen, you have the condition of this mill up to 1897.' In that year, if I am correct, he put in a gasoline engine, this for the purpose of restoring part of his power, showing in addition that he had sustained a loss of power up to that time. On this question the defendants have introduced the testimony of a witness named Brinton, who testifled that in a conversation with the plaintiff he was told that the reason for putting in that gasoline engine was on account of the drought and the flood. This conversation is denied by the plaintiff, who says that he never made any statement of that kind.
    In 1897 the new taking took place under which the defendants are allowed to take 1,250,000 gallons of water away. Consider how much additional damage will be done as effected by this additional right to take. Has experience demonstrated any material damage to this power measured by what has been taken since 1897 ? According to Mercer, who was the engineer for the defendant company for the years commencing 1895 to 1900, the highest quantity taken, as I have it, was 716,933, but he testified that during the period of nine years and six months, if I am not mistaken, the pumping at Milltown was only for 121 days. During the rest of the period covered b} these years the loss, according to the testimony, was the same as in 1897 or after. The question for you then is to decide how did the damage that had already taken place at Milltown affect this property. If, during the balance of the period, exclusive of the 121 days, the pumping was all done from Fern Hill, you would have to say, in the best manner possible, how this mill was damaged any more after 1897 up to this time than it was before, remembering that up to this time the defendants have not yet taken 1,-250,000 gallons daily.
    This evidence that I referred to, of its previous condition, and the pumping during these nine years and six months, is important as throwing light upon the question as to whether the plaintiff’s loss to date is in any way chargeable to the Mill-town plant. But even if that has shown no loss, you are still to remember that the defendants are entitled to take 1,250,000 gallons. Therefore, although no appreciable loss of power can be attributed to Milltown with the quantity already taken, yet, with the right to take the whole 1,250,000 gallons, if the value of the property is diminished, plaintiff is entitled to recover whatever that may be, as measured by the difference in market value before and after 1807.] [3]
    [Whatever damage was done to the predecessor of the plaintiff, or the other mill owners along that stream, is not to be chargeable to the defendant, and has nothing to do with this case. In this case you are not to punish the defendant for anything it has done, because it has taken it by lawful means. What the plaintiff, however, is entitled to here, is full compensation for his loss, and that compensation is the difference in market value immediately before the taking of the Milltown plant in 1897, and afterwards, what it would fairly bring in an open market.] [4]
    [In 1889 it is stated that this property had a fair public sale, and only brought $15,000, and the question is propounded to you, why should it have increased to such an extent up to 1897, when, from 1895 on, the power was decreasing day by day, and the effective power of that mill had been reduced in the proportion testified to by the plaintiff himself, and his witnesses.] [5]
    Defendant presented these points :
    1. By the Act of April 16, 1838, P. L. 477, as amended by the Act of March 23, 1839, P. L. 129, the appropriation by the borough of West Chester, of Chester creek, at Fern Hill, in 1854, entitled it, all times thereafter, to take all the water for its lawful purposes at that point. Answer; Affirmed with this qualification : The right to take all must be manifested in some definite manner other than the taking of an undefined quantity, and there is no evidence in this cáse that defendants appropriated the entire stream. [6]
    2. The appropriation of Chester creek by the borough of West Chester, at Fern Hill, in 1854, was a lawful appropriation, which entitled the owner of plaintiff’s premises, if injured, to damages, which are presumed to have-been settled for, more than twenty-one years having elapsed since said taking. Answer: This is true, for the purpose of this case, as we have restricted plaintiff to damages incurred after 1897. In a proper proceeding the presumption of payment could be rebutted by evidence that the damages were not paid, where the taking is under the right of eminent domain. [7]
    3. Any damage done plaintiff’s property at the time of the appropriation at Fern Hill in 1854, present or prospective, did not run as a covenant with the title, and did not pass to the respective future purchasers of the property. Answer: This is affirmed. [8]

      4. In the present proceeding the plaintiff is entitled to no damages for the taking of water by defendant at Fern Hill for its lawful purposes under its appropriation in 1854, and as against this plaintiff, defendant is entitled to take all the water it needs at Fern Hill up to 1,250,000 gallons each twenty-four hours, if Fern Hill is capable of producing that quantity. Answer : Affirmed, with the qualification, that for damages incurred under the appropriation of the water by the borough in 1854, plaintiff cannot recover in this action; but he can recover for the damages done by the difference in quantity actually appropriated in 1854, and 1,250,000 gallons. This point is further answered by the answer to the next point. [9]
    5. Recovery in this proceeding is based on the taking by defendant under its resolution of April 9, 1897, August 31, 1899, and October 19, 1900, whereby it appropriated the waters of Chester creek and limited the taking to 1,250,000 gallons of water at Fern Hill and Milltown each twenty-four hours, and the difference between what the jury may find under the weight of the testimony, as the number of gallons of water capable of being taken at Fern Hill and 1,250,000 gallons each twenty-four hours, less such part of the difference as is returned, so far as it affects the market value of plaintiff’s property, is the sole basis upon which damages are to be determined. Answer: Affirmed, by adding to the words “ capable of being taken at Fern Hill, ” the words under its ordinance and taking in 1854. [10]
    6. Plaintiff is only entitled to recover the difference in the market value of his property as affected by the appropriations of 1897 and 1899 as limited in 1900, and the inquiry is confined to the fair market value of his property immediately before said taking, and its market value immediately after said taking. Answer: This is affirmed. [11]
    13. Whatever sum the jury may find to represent the depreciation of the market value of plaintiff’s property solely due to the taking by defendant, the plaintiff is not entitled to receive interest thereon ; nor is he entitled to have the damages further increased because of the delay in settlement, if the jury find his demand was so exorbitant and unreasonable as to make payment of his reasonable damages impossible. Answer : This is affirmed. [12]

      Thomas W. Pierce, with him George E. Darlington and Louis M. Ohilds, for appellant.
    Damages occasioned by the exercise of a statutory power with a statutory remedy similar to the acts of 1838, 1839, were held recoverable in a proceeding under the act of 1887: Shroder et al. v. Lancaster, 170 Pa. 136.
    Damages for successive increasing takings occurring within a period of twenty-one years can be recovered in one proceeding : Hannum v. Borough of West Chester, 63 Pa. 475.
    This court has said when the special act of 1838, in relation to West Chester, was before it, that the legislature meant that instead of successive actions on the case there should be but one proceeding, the judgment in which should be in effect a transfer to the borough of all the party’s rights to the water of the creek, which might be needed fór the purposes in contemplation : Hannum v. Borough of West Chester, 63 Pa. 475.
    Where a water company as a riparian owner diverts water to the injury of a lower riparian owner, the proper basis of estimating the damages is the average condition of the stream for a number of years, not by its condition in an extremely dry one: Philipsburg Water Co. v. Citizens’ Water Co., 25 Pa. C. C. Rep. 382.

      E. H Hall and N. H. Larzelere, with them Wm. 8. Windle and W. W. MacElree, for appellee.
    March 30, 1908 :
   Opinion by

Mr. Justice Potter,

This was an appeal from the report of viewers appointed to assess damages sustained by plaintiff through the appropriation of the waters of Chester creek by the defendant for the purpose of improving and enlarging its water supply. The proceedings were instituted in Chester county, but under a change of venue to Montgomery county, the issue framed under the appeal was there tried, resulting in a verdict in favor of plaintiff for $2,800, upon which judgment was entered. Plaintiff has appealed.

It appears from the evidence that in the year 1854, the borough of West Chester obtained title bi condemnation to a piece of land at Fern Hill on Chester creek, and erected there a pumping station on the banks of the stream. It has continued the use of this plant and has drawn water from Chester creek at this point from that time until the present. In the year 1897, the borough authorities purchased a mill and water power located at Milltown on Chester creek several miles below Fern Hill, and erected there a pumping station and reservoir, and since then have pumped water from time to time from the stream at that point to the reservoir near Fern Hill, from whence the water is distributed to the town.

The plaintiff, John W. James, is the owner of a tract of about eighty acres of land situated on Chester creek, below' both of the pumping stations of the borough of West Chester. Upon his land are located two mills on opposite banks of the stream, one a flour mill, and the other a feed and sawmill. He acquired title to the property in 1889, and shortly after-wards sold a one-half interest therein, which was conveyed back to him in 1895. Since that time he has continued to hold title to the entire tract of land, and has operated the mills. The plaintiff did not allege any impairment of his water supply prior to 1895, and it appears from the evidence that the years 1895 and 1896 were seasons of unusually low rainfall. But since 1897, when the Milltown pumping station was erected, its operation has resulted in an impairment of the plaintiff’s water power.

The proceedings in this case were under the provisions of the Act of May 25, 1887, P. L. 267. The actual taking of the water at Milltown began in 1897. Ho bond was filed and no formal appropriation was made until August 31, 1899, when the original resolution was adopted by the borough council appropriating the entire stream. On October 19,1900, a supplemental resolution was adopted, which modified the prior resolution in respect to the amount of water to be taken from Chester creek and limited the amount, so that it should not exceed 1,250,000 gallons in any day of twenty-four hours. The plaintiff’s right to recover damages, however, rests upon the actual taking in 1897, and not upon either the original or the supplemental resolution of appropriation. It was not shown, however, that at any time more than 1,250,000 gallons per day were actually taken.

The petition for the appointment of viewers in the present case was not filed until August 28, 1905, nearly five years after the adoption of the supplemental resolution. If there was any restriction placed upon the appropriation of water, it was proper to consider it, in assessing the damages. This principle is inferential^ recognized in Miller v. Water Company, 148 Pa. 429 ; and it is very clearly stated in Lee v. Water Company, 176 Pa. 223. In that case the water company limited its appropriation of water to 2,000,000 gallons each day, and Justice Williams said (p. 227): “ The attention of the jury should have been drawn strictly to the question, how much has this property been reduced in value by reason of the appropriation and withdrawal from the stream of the 2,000,000 gallons of water? Anything tending to obscure, or divert attention from, this well settled measure, of damages should have been avoided.”

In the present case, as the second resolution limited the right of the defendant to 1,250,000 gallons daily, and the charge of the court limited the damages to the withdrawal of that amount, the ruling was squarely within the principle laid down in Lee v. Water Co., 176 Pa. 223.

Counsel for appellant complains of the trial judge for confining the jury in the assessment of damages, to the taking of the water at Militown, and excluding the taking at Fern ITill. We think the trial judge was clearly right in so doing. The taking at Fern ITill was before appellant had any title to the property in question. It is settled in Pennsylvania, as stated in the opinion in Losch’s Appeal, 109 Pa. 72, that damages being in the nature of a trespass for injury done to the land, do not pass by a subsequent conveyance thereof. The damages were a personal claim of the owner when the injury occurred. They do not run with the land nor pass by the deed, although not specifically reserved.” To the same effect are Warrell v. Wheeling, etc., R. R., 130 Pa. 600 ; Tenbrooke v. Jahke, 77 Pa. 392 ; McFadden v. Johnson, 72 Pa. 335. In Hannum v. Borough of West Chester, 63 Pa. 475, Justice Sharswood said that under the special acts of 1838 and 1839, authorizing the borough of West Chester to procure a supply of water, there “ should be but one proceeding; the judgment in which should be in effect a transfer to the borough of all his right to the waters of the creek, which might be needed for the purposes in contemplation.”

It is clear, therefore, that, under the application of this principle, appellant had no right to recover for any damages at Fern Hill, as the appropriation there occurred long before his tittle was acquired.

In addition we might add, that there seems to be no evidence to show any damage to his water supply from any talcing at Fern Hill.

The rule is apparently well established that damages occasioned by the taking of water to supply a city, are to be estimated as of the time of the taking, and are to include the amount of water, the right to divert which is taken, irrespective of the amount actually diverted : Gould on Waters (3d ed.), p. 495. In his twelfth assignment of error, appellant complains of the affirmance of defendant’s thirteenth point for charge, by which the jury were instructed that plaintiff would not be entitled to have his damages increased because of delay in settlement, “ if the jury find his demand was so exorbitant and unreasonable as to make payment of his reasonable damages impossible.” No fault can be found with this instruction as a sound proposition of law. The evidence showed that in the action of trespass brought in 1904 by appellant against the defendant, he laid his damages at the sum of $20,000, and in the testimony in the present case the same amount is claimed. The jury found the actual damages to have been $2,800. Such a discrepancy might well be deemed sufficient to warrant the jury in refusing to allow any additional sum for the delay in making settlement.

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


source: Caselaw Access Project

author: Mr. Justice Potter,

license: Public Domain

text:
    Lancaster Trust Company v. Long, Appellant.

      Statute of frauds — Parol agreement to purchase land at sheriff’s sale— Trust ex maleficio.

    A parol agreement by one to purchase land for another at a sheriff’s sale followed by a breach of the contract to convey on the part of the purchaser, gives rise to no resulting trust, unless the promisee furnished the purchase money in whole or in part, or had at the time of the contract an actual estate or interest in the land or a bona fide claim thereto. A mere initiate right of curtesy in the promisee is not sufficient.

      Execution — Sheriff’s sale — Possession—Practice, C. P.

    The Act of April 20, 1905, P. L. 239, which was intended to provide a new and more effective method of obtaining possession of real estate purchased at a judicial sale, does not affect or alter the defenses that may be set up by the person in possession. Thus the defendant in his answer to the purchaser’s petition may set up that the latter was a trustee for him under a promise to purchase and hold the property for the defendant’s benefit; but he can only do so if he is in a position to raise such a question.
    Argued Feb. 18, 1908.
    Appeal, No. 333, Jan. T., 1906, by defendant, from order of C. P. Lebanon Co., March T., 1906, Nos. 11 and 12, making absolute rule for judgment for petitioner in case of Lancaster Trust Co. v. Margaret J. Long and Frank B. Long, her husband.
    Before Mitchell, G. J., Fell, Mesteezat, Potteb and Elkin, JJ.
    Affirmed.
    Rule for judgment for petitioner on the whole record.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in entering judgment for petitioner on the whole record. .

      Walter O. Graeff, with him George B. Woomer, for appellants.

      O. V. Henry, with him H. Bank Biokel and W. U. Hensel, for appellee.
    March 30, 1908 :
   Opinion by

Mr. Justice Potter,

In the present case the Lancaster Trust Company issued writs of scire facias under mortgages given by appellants upon certain property situated in the city of Lebanon, obtained judgments, and issued writs of levari facias thereon. On January 21, 1906, the sheriff sold the mortgaged premises to W. U. Hensel, Esq., and made deed to the purchaser. On May 23, 1906, Mr. Hensel filed a petition in which he set forth the judgments, executions and sheriff’s sale, the purchase by himself, and sheriff’s deed to him, the service of due notice to quit upon appellants, who were defendants in the executions, and in possession of the premises sold, and averred that appellants refused to deliver possession to him.

In answer to citations granted by the court below, to show cause why possession should not be delivered to the petitioner, appellants alleged that Mr. Hensel was not the real purchaser at the sheriff’s sale, but was merely a trustee for one Hoffman, and that Hoffman had agreed to buy the property at the sheriff’s sale for the respondent, Frank B. Long, and convey it to him. The answer further required the petitioner to reply to the new matter therein set forth, and prayed a jury trial on the issues of fact raised under the pleadings. The court below, upon the whole record in the proceedings, determined that the petitioner, W. U. Hensel, was the holder of the legal title, and the owner of the real estate in controversy, and had the present right of possession thereof, and gave judgment against the respondents. The question raised by this appeal is whether the averments in the answer were sufficient to prevent judgment, and to send the case to a jury. The proceedings were under the Act of April 20, 1905, P. L. 239, which is manifestly intended to provide a new and more effective method to obtain possession of real estate purchased at a judicial sale. Under the act of 1836 the purchaser was required to proceed before a magistrate or justice of the peace, and sheriff’s jury. This procedure was abolished by sec. 19 of the act of 1905, and a proceeding by petition and citation, answer and replication in the court of common pleas was substituted. The later act does not, however, affect or alter the defenses that may be set up by the person in possession. The averment in this case by the respondents that the purchaser at the sheriff’s sale was a trustee for them under a trust arising from a promise to purchase and hold the property for their benefit, is a defense which might be set up, and which would, as a question of fact, be for the determination of a jury if the appellants were in a position to raise such a question. But under the facts which appear on the record they cannot, under the authorities, set up this defense. In First National Bank v. Cowperthwaite, 10 W. N. C. 532, Justice Gbebn thus stated the principle (p. 531): “ The case is therefore the ordinary one of a parol agreement by one to purchase land for another at a sheriff’s sale, followed by a breach of the contract to convey on the part of the purchaser, in which event it has been uniformly held that no resulting trust arises, unless the promisee had furnished the purchase money in whole or in part, or had at the time of the contract an actual estate or interest in the land or a bona fide claim thereto.” Following Beegle v. Wentz, 55 Pa. 369 ; Boynton v. Housler, 73 Pa. 453 ; Wolford v. Herrington, 86 Pa. 39, in all of which cases it was held that in order to constitute a purchaser at a sheriff’s sale a trustee ex maleficio, the person to whom the promise was made must have had an interest in the land sold or have paid the whole or a part of the purchase money. Such a promise made to an entire stranger to the title would fall within the prohibition of the statute of frauds.

In the present case Frank B. Long, to whom the promise is alleged to have been made, did not contribute to the purchase money, and had no interest in the property except his initiate right of curtesy. And as to this, in the case just cited (Bank v. Cowperthwaite), Justice Green said : “ The suggestion that the wife, Mrs. Cowperthwaite, had a possible right of dower in the land and was, therefore, vested with a sufficient interest to give her the benefit of the rule as held in Beegle v. Wentz and Boynton v. Housler, is not tenable. The estate or interest in the land must be an actual subsisting one at the time of the agreement to purchase. . . . Mrs. Cowperthwaite and her husband were both living at the time of the alleged parol agreement. Her estate in dower could not become a vested interest in possession except in the event of her survival, which might never happen.”

In the case at bar the appellant, Frank B. Long, to whom, in the answer, the promise is alleged to have been made by Hoffman, was a defendant in the execution, and for this reason the promise would not be sufficient to raise a trust ex maleficio. In Barnet v. Dougherty, 32 Pa. 371, a leading case, the syllabus reads : “ A promise to purchase at a sheriff’s sale, for the benefit of the defendant in the execution, will not constitute the purchaser a trustee for him, unless the purchase were made with the money of the defendant.” This was followed in Kellum v. Smith, 33 Pa. 158, -where Justice Strong said (p. 164): When the purchaser at a sheriff’s sale promises to hold for the debtor, and afterwards refuses to comply with his engagement, the fraud, if any, is not at the sale, not in the promise, but in its subsequent breach. That is too late. It is abundantly settled that equity will not decree such a purchaser to be a trustee, unless there is something more in the transaction than the mere violation of a parol agreement.”

These authorities and others to the same effect are cited and followed in an opinion adopted by this court in Bryan v. Douds, 213 Pa. 221. We are satisfied that the respondents in this case were not entitled to set up the defense upon which they attempted to rely. The assignments of error are overruled and the judgment is affirmed.


text:
    Klick, Appellant, v. Gernert.

      Ejectment — Defenses—Record of prior suit — Res adjudicata — Act of May 8,1901, P. L. 142.
    Under the Act of May 8,1901, P. L. 142, relating to defenses in actions of ejectment, the record of a prior suit in equity claimed to be res adjudicata of the matter in dispute, should not be admitted in evidence, where there is no reference to such a defense set up in the answer; but the appellate court will not reverse because of the admission of such record, where it appears that the only result would be an amendment of the pleadings in the court below so as to admit the record, and an entry of judgment for defendant on the ground of res adjudicata.
    In an action of ejectment, where the plaintiff claims that the defendant had taken title with full knowledge that his grantor held the land as a trustee ex maleficio for the plaintiff, the defendant may set up as a defense the record of a former suit in equity between the plaintiff and the defendant's grantor in which the whole question as to the trusteeship ex maleficio has been tried on its merits and decided against the plaintiff.
    Argued Feb. 18, 1908.
    Appeal, No. 105, Jan. T., 1907, by plaintiff, from judgment of O. P. Lebanon Co., Dec. T., 1904, No. 102, on verdict for defendant in case of Sarah Klick, wife of William A. Klick, v. Grant E. Gernert.
    Before Mitchell, O. J., Fell, Mbstbezat, Pottbe and Elect, JJ.
    Affirmed.
    Ejectment for land in Union township.
    Before Ehegood, J.

      The facts are stated in the opinion of the Supreme Court.
    Yerdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (1) admission of record referred to in the opinion of the Supreme Court; (2, 3) in giving binding instructions for defendant.

      Paul 6r. Adams, with him Robert L. Adams and J. G. Adams, for appellant.
    The defendant held the land as trustee ex maleficio : Grove v. Kase, 195 Pa. 325 ; Church v. Winton, 196 Pa. 107 ; Kasler v. Kasler, 2 Watts, 323 ; Morey v. Herrick, 18 Pa. 123 ; Maul v. Rider, 51 Pa. 377 ; Wolford v. Herrington, 86 Pa. 39 ; Preston v. Preston, 202 Pa. 515 ; Goodwin v. Colwell, 213 Pa. 614.
    The decree of the court in the equity was not an adjudication of this cause of action: Graeff v. Felix, 200 Pa. 137 ; Clark v. Partridge, 2 Pa. 13 ; Jackson v. Thomson, 215 Pa. 209 ; Hartman v. Pittsburg Inclined Plane Co., 23 Pa. Superior Ct. 360 ; Tams v. Lewis, 42 Pa. 402 ; Williams v. Row, 62 Pa. 118.

      E. E. McCurdy, of Gobin & McCurdy, for appellee.
    The subject-matter in the equity suit was the alleged title of Sarah Flick, under the alleged trust, under which she contended Mr. Deisher held this real estate. In this case the subject-matter is the same. The adjudication having been against Mrs. Flick, it is final as to her, and the adjudication of this controversy between herself and Gereon Deisher and his successors to the title: Williams v. Row, 62 Pa. 121.
    The case in hand, an action of ejectment, and the proper plea, as directed by the statute, is not guilty. Under the plea, the defendants can avail themselves of the defense of res ad judicata : Bruner v. Finley, 211 Pa. 74 ; Garvin v. Dawson, 13 S. & R. 246 ; Jones v. Ellison, 10 W. N. C. 205.
    Record of former adjudication admissible in evidence, either under plea of general issue, plea in bar, or as evidence, conclusive between the parties : Finley v. Hanbest, 30 Pa. 190.
    March 30, 1908 :
   Opinion by

Mr. Justice Potter,

This is an action of ejectment brought by Sarah Flick, wife of William A. Klick, against Grant E. Gernert, who was the grantee of the executor of Gereon Deisher, a former owner. The plaintiff alleged that Deisher had been a trustee ex maleficio for her, of the land in dispute, and that the defendant had taken title with full knowledge of the trust. Upon the trial the defendant offered in evidence the record of an equity suit, in which the plaintiff was complainant and Gereon Deisher was defendant, and in which was involved the title to the premises embraced in this ejectment suit. The bill in that case ivas passed upon the same allegation of facts, claimed to establish a trust ex maleficio, as was set forth in plaintiff’s statement in this case ; and the prayer of the bill was that the defendant might be ordered to convey the real estate described in this writ of ejectment, to the complainant. After hearing upon the merits the court dismissed the bill, and no appeal was taken. Upon the trial of the present case, the court below admitted this record in evidence against the objection of counsel for plaintiff. The trial judge also held that the decree in the equity case was a bar to the action of ejectment, and directed a verdict for the defendant, upon which judgment was entered. Counsel for appellant here contend that the record of the former equity suit between plaintiff and the defendant’s grantor, was not admissible in evidence, by reason of the provisions of sec. 2 of the Act of May 8, 1901, P. L. 142, as the answer of the defendant set forth no defense except want of notice of the trust, and no motion to amend was made. The Act of April 13, 1807, 4 Sin. L. 477, sec. 4, provided that “ the plea of ejectment shall be, not guilty.” This remained unchanged until the act of May 8, 1901, which provided that “ in addition to the plea of not guilty ’ now required by law, the defendant shall file an answer in the nature of a special plea, in which he shall set forth his grounds of defense, with an abstract of the title by which he claims,” and that no evidence shall be received on the trial, of any matter not appearing in the pleadings. This statute was only the embodiment of the rules which had prevailed prior to that time in some of the common pleas courts of the state. Such a rule was upheld in Lehman v. Howley, 95 Pa. 295, and in Westcott v. Crawford, 210 Pa. 256. It is analogous to the rules which have been adopted in some counties, restricting a defendant upon the trial to proof of such defenses only as have been set up in his affidavit of defense. See American Fire Ins. Co. v. Hazen, 110 Pa. 530, and McGraw v. Ins. Co., 5 Pa. Superior Ct. 488. As the defendant did not set up in his answer the record of the former suit in equity, nor allege in the pleadings that he intended to rely upon the decree in that case, it was clearly error for the trial judge to receive the evidence of it, in the absence of an amendment to the answer. But if the error did the plaintiff no harm, we will not reverse because of the mistake. If we should reverse and grant a new venire, the pleadings would be promptly amended, so as to provide for the admission in evidence of the record in the former suit, and when the case came on again for trial, the court would very properly direct a verdict for the defendant on. the ground of res adjudicata. If is apparent, therefore, that no harm has resulted to the plaintiff from the error of the court. This case does not depend upon oral testimony which might vary upon a second trial, but it stands upon record evidence. A comparison of the averments of the bill, and the claim of title set out in the ejectment, shows that the facts alleged’ as the basis of both suits are identical. In Commonwealth v. McWilliams, 11 Pa. 61, Justice Bell said (p. 72): “We will not reverse where, from the record, it is demonstrable the judgment must be the same on an amended pleading especially where the case of the plaintiff in error has been considered as though no defect existed.”

An inspection of the record of the equity suit shows that the question was disposed of upon the merits, and “ where the merits, or any facts material to the final determination of the controversy, have been considered and passed on, the matter is as much res adjudicata as it would be by a judgment at law: ” Larkins v. Lindsay, 205 Pa. 534. This rule was again followed in Columbia Nat. Bank v. Dunn, 207 Pa. 548, where our Brother Bbowx said (pp. 549,550): “ Erom this it is plain that, the defense now set up is res adjudicata and can no longer avail the defendant. The material matters in the bill are the material matters in this issue, and by the decree against him in the equity suit the appellee is concluded. Out of innumerable authorities supporting this, reference is made to the' following : Kelsey v. Murphy, 26 Pa. 78; Williams v. Row, 62 Pa. 118 ; Westcott v. Edmunds, 68 Pa. 34 ; Weigley v. Coffman, 144 Pa. 489.”

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


author: Mr. Justice Mestrezat,

text:
    Besecker v. Delaware, Lackawanna & Western Railroad Company, Appellant.

      Negligence — Railroads—Station—Passenger—Alighting from train— Running train on track intervening between station and standing train— Proximate cause — Contributory negligence.

    In an action by a passenger against a railroad company to recover damages for personal injuries, the ease is for the jury and a verdict and judgment for plaintiff will be sustained where the evidence shows that the plaintiff, a passenger, after his station had been announced and the door of his car opened, arose from his seat, went through the open door, and alighted from the car while it was still in motion, and after having safely alighted, was struck and injured while crossing a track between his train and the station, by another train which was run on the intervening track in violation of the rules of the company. In such a case the proximate cause of the accident was not the alighting from a moving train, but was the act of the company in negligently running another train on the track intervening between the plaintiff’s train and the station.
    While passengers are alighting from a train at a station, and proceeding across the tracks to the station, it is clear negligence for the railroad company to permit a train to pass upon one of the intervening tracks thereby endangering the safety and the lives of the passengers. Under such circumstances the passenger has a right to assume that his safety will not be endangered by permitting a train to pass upon the intervening tracks while he is in the act of crossing to the passenger station, and he may rely upon the company to keep the tracks clear.
    Argued March 9, 1908.
    Appeal, No. 211, Jan. T., 1907, by defendant, from judgment of O. P. Monroe Co., Feb. T., 1906, No. 20 on verdict for plaintiff in case of George Besecker v. Delaware, Lackawanna & Western Railroad Company.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.

      Trespass to recover damages for personal injuries.
    Before Staples, P. J.
    The circumstances of the accident are stated in the opinion of the Supreme Court.
    Yerdict and judgment for plaintiff for $3,000. Defendant appealed.

      Error assigned amongst others was in submitting the case to the jury.

      A. Mitchell Palmer, for appellant.
    To get on or off a moving car, whether propelled by steam or electricity, is negligence per se in him who attempts it: Boulfrois v. Traction Co., 210 Pa. 263 ; Hunterson v. Union Traction Co., 205 Pa. 568 ; Purvis v. Buffalo, etc., R. R. Co., 219 Pa. 195 ; Rothstein v. R. R. Co., 171 Pa. 620 ; R. R. Co. v. Aspell, 23 Pa. 147 ; Powelson v. Traction Co., 204 Pa. 474 ; Victor v. Penna. R. R. Co., 164 Pa. 195 ; Murray v. Penna. R. R. Co., 173 Pa. 74.
    The announcement of the brakeman was not notice to the passenger to get off the moving train, but that it would come to a full stop at the next station, ITenryville.
    A person who attempts to reach a railway station by a way, not a public road or street, and not provided by the company, and which lies, in part, over the company’s right of way, is a trespasser, and if injured while on the tracks, he cannot recover, and the fact that the way is used by many persons is immaterial: Comly v. Pennsylvania R. R. Co., 22 W. N. C. 42 ; Hunterson v. Traction Co., 205 Pa. 568.

      Rogers L. Burnett, for appellee.
    The facts and circumstances of this case constitute it an exception to the general rule that to alight from a moving train is negligence per se : Sharrer v. Paxson, 171 Pa. 26 ; Boulfrois v. Traction Co., 210 Pa. 263 ; Harper v. R. R. Co., 219 Pa. 368.
    If two distant causes are successive and unrelated in their operation, they cannot be concurrent. One of them must then be the proximate and the other the remote cause. When they stand in this relation to each other and the result to be considered, the law regards the proximate as the efficient and responsible cause, and disregards the remote : Herr v. City of Lebanon, 149 Pa. 222.

      March 30, 1908 :
   Opinion by

Mr. Justice Mestrezat,

On the morning of November 20, 1905, George Besecker, the plaintiff, purchased a round trip ticket at Henryville over the defendant company’s road to Portland and return. In returning, he took a west bound train leaving East Stroudsburg station at Y: 15 p. m. He entered the smoking car, the rear car of the train, and seated himself on the left hand side and in the third or fourth seat from the front of the car. As the train approached Henryville the rear brakeman, who was seated in the rear end of the smoking car, announced that station twice, having previously announced as the train left the last station, that Henryville was the next stop. The brakeman then opened the front door of the smoking car, passed through the vestibule of that car and the vestibule of the next coach, which was a coach for ladies, and announced Henryville station twice in that car. He then returned to the front end of the smoking car, opened the vestibule door of the smoking car and turned to open the vestibule of the ladies’ coach. The plaintiff arose from his seat, passed out the front door of the car and down the steps through the vestibule, and as the smoking car was about opposite the waiting room door of the station, he alighted. The plaintiff claims that when he alighted the train had stopped and he stepped' off. The defendant claims that the plaintiff alighted while the train was in motion and that he jumped off.

At Henryville the defendant company has two main tracks, east and west bound. The station is on the south side of the east bound track. As Besecker had arrived on a train on the west bound track, he was obliged to cross the east bound track to reach the station. After alighting from the train he started towards the station, and after taking a step or two, was struck and injured by the bumper beam of the engine drawing an east bound coal train, running at the rate of from twelve to fifteen miles an hour. The plaintiff, it is conceded, left the car at the place where passengers for that station usually and ordinarily alight. It is claimed by the defendant company, and its testimony tended to show, that the engineer of the passenger train saw the coal train approaching on the east bound track and realizing that it would cut his passengers off from the Henryville station, he kept his own train moving until the smoking car had overlapped the engine of the coal train when the passenger train stopped.

This is an action by the plaintiff to recover for the injuries he sustained, and the alleged negligence consists in the defendant company running the coal train by the Henry ville station on the east bound track without notice of its approach to the station or other warning while the plaintiff was attempting to cross that track to get to the station. It is properly conceded by the learned counsel of the defendant company that if the passenger train had stopped at the station, it was negligence on the part of the company to allow the coal train to run between the passenger train and the station while the passengers were being discharged. It is contended, however, by the counsel that the plaintiff alighted from the train while it was in motion, that this was negligence, and that his injuries resulted from this negligent act on his part. It is further claimed by the defendant’s counsel that the moving of the passenger train was notice to the passengers that there was danger and that, therefore, they had no right to alight from the train while it was in motion. The court, however, instructed the jury that the bare fact of the plaintiff stepping off the train, even though it were in motion, would not, of itself, be such contributory negligence as would prevent a recovery in the case. It will, therefoi’e, be observed, as suggested by the learned trial court, that the only question before the court and jury was whether the plaintiff was guilty of contributory negligence. The only question which we need consider is whether it was negligence per se for the plaintiff to alight froxn the train while it was in motion and attempt to cross the east bound track to reach the station. If it was, the instructions of the court just alluded to, were erroneous. There was ample evidence to support the defendant’s contention that the plaintiff did leave the train while it was in motion, and if his act in doing so was negligence of itself, the jury should have been so instructed.

It is well settled that the duty of a carrier of passengers is not fully discharged until it has set the passenger down in a place of safety at his destination. It must not only carry him to His destination in safety, but it must provide a safe place to discharge him when he arrives there. This is conceded to be the law. If instead of discharging its passengers at a station on the side of the track, the carrier discharges them between its tracks and obliges them to cross one or more tracks to reach its station, an imperative duty devolves upon the carrier to see that the passenger will not be endangered in crossing the tracks. This duty is imposed by the contract which the carrier enters into with the passenger when he purchases his ticket. While its passengers are alighting from its train and proceeding across the tracks to the station, it is clear negligence for it to permit a train to pass upon one of the intervening tracks, thereby endangering the safety and the lives of the passengers. Under those circumstances, the passenger has a right to assume that his safety will not be endangered by permitting a train to pass upon the intervening tracks while he is in the act of crossing to the passenger station, and he may rely upon the company to keep the tracks clear: Flanagan v. P., W. & B. R. R. Co., 181 Pa. 237; Harper v. Pittsburg, etc., R. R. Co., 219 Pa. 368; Atlantic City R. R. Co. v. Goodin (N. J.), 45 L. R. A. 671; Chicago, etc., Ry. Co. v. Lowell, 151 U. S. 209. Before attempting to cross the tracks under such circumstances, the passenger is not always required to observe the rule which compels a person crossing tracks of a railroad on a highway to stop, look and listen before he attempts to cross ; his obligation may be totally different from that of a person at a public crossing : Pennsylvania Railroad Co. v. White, 88 Pa. 327; Betts v. Lehigh Valley Railroad Co., 191 Pa. 575. The great current of authority is to the effect that failure to look for trains when crossing a track, in passing from the train to the station, is not necessarily negligent : Per Collins, J., in Atlantic City R. R. Co. v. Goodin, 45 L. R. A. 671, citing two of our cases referred to above. The reason of the rule is that the carrier is required to provide a safe place to discharge its passengers and hence they have a right to assume that in the performance of that duty the carrier will not permit a train to pass on the intervening tracks while they are going from the train to the station. Of course, the passenger in crossing the tracks is not relieved from the exercise of ordinary care under the circumstances and whether he performed that duty is for the jury.

Conceding, therefore, that it was negligence in the defendant company to permit its coal train to be run on the intervening track if the plaintiff alighted from the passenger train after it had stopped, was it negligence in the plaintiff to alight from his train while it was in motion and to attempt to cross the tracks to the station % This is the real and only open question in the case. As we have seen, the defendant’s counsel contend that such action on the part of the plaintiff was negligence, that he had no right to alight from the train while it was in motion and the fact that it had not stopped, although at the usual place for trains to stop at that station, was notice to the passengers that alighting from the train would be dangerous. On the argument of the case the writer was impressed with this position, but upon subsequent reflection we are satisfied that it is not tenable. As this train approached the station the company’s brakeman announced the approach and made preparation for the passengers to alight by opening the door of the car and the door leading from the vestibule to the station. His train being a regular passenger train, the plaintiff had a right on its arrival at Henryville to assupne that the place for discharging passengers from west-bound trains was safe, and that their safety would not be endangered while crossing the intervening tracks of the carrier company to the station.. No notice or warning was given the passengers by the company’s servants of any danger at the station or that a train was approaching on the other track. The' situation at that time, then, was that the passengers had been notified by the brakeman that their train was approaching the Henryville station, the doors permitting exit from the car had been opened to enable the passengers to alight, the train had lessened its speed so as to be moving quite slowly, no notice of any danger on the intervening tracks had been given, and the passenger train was at the usual and ordinary place for discharging passengers at Henryville. While these facts would not justify the negligent act of a passenger in alighting from a moving train, yet it was the duty of the carrier company to keep the intervening tracks free from danger to any passenger who, having alighted from a west bound train at that time, desired to go to its station, and especially to enforce its own rule and prevent a train passing in either direction on the east bound track. The plaintiff had a right to assume that the company would perform this duty, unless he had notice that there was danger on the intervening track or that a train was approaching at that time. The mere fact that the train was in motion was not of itself notice to the passengers that the carrier would not perform its duty and keep its other track clear at that time: Philadelphia, W. & B. R. R. Co. v. Anderson (Md.), 8 L. R. A. 673. In that case the train was in motion when the passengers alighted, and the Maryland court of appeals in sustaining a verdict in favor of the passenger who had been injured in crossing the track by a passing train said (p. 676): “ If the discovery of the approaching train caused any change of purpose on the part of the conductor, it would have been reasonable to communicate this change to the passengers, whose safety might be affected by it.” It is true that the defendant company alleges that notice was given to the plaintiff of the approach of the train on the other track, but this was denied by him, and, of course, was a question for the jury. If the plaintiff had been injured in alighting from the moving train by having been thrown or having fallen against something or in any other way, and this action had been brought to recover damages for such injury, of course there could be no recovery; but he was not injured when he was alighting from the train or by anything he did while alighting from the train. He reached the ground in safety. The peril involved in alighting from the train was passed before he attempted to cross the tracks. That was a negligent act, but it was not the proximate cause of his injuries. This action was not brought to recover damages for injuries he sustained while descending from the car. The plaintiff assumed a risk in alighting while the train was in motion, but that assumption of risk cannot be extended so as to protect the company in its subsequent negligent act by which the plaintiff was injured while he was still under its protection as a passenger. Suppose the plaintiff had alighted from the train while it was at rest, and in going to the station was injured by something which had been negligently and improperly left between the rails of the east bound track or on the station platform, the company clearly would have had no defense to an action brought to recover damages for his injuries. Its liability would have been the same as though the plaintiff, having alighted under those circumstances, had been struck by a train approaching on the east bound track. In both cases, the carrier company is liable because the plaintiff is still a passenger and is entitled to its protection while he is crossing its track and passing through its station. In the case in hand, conceding the plaintiff to have alighted while the train was in motion, he is entitled to the same protection from the carrier company while he is crossing its tracks. He was not injured while alighting from the train but from the negligent act of the company while he was crossing its east bound track.

The case of Philadelphia, W. & B. R. R. Co. v. Anderson, 8 L. R. A. 673, decided by the Maryland court of appeals, is in point. The accident occurred upon the defendant company’s road at the city of Chester in this state. The name of the station was announced as the train approached the city, and it stopped at the eastern end of the station platform. Before the plaintiff could alight, the train had started, and while it was moving slowly he stepped from the car and was immediately struck by a train coming from the opposite direction. The court held that his negligence was for the jury. In the opinion it is said (p. 676): “ He made his exit from the car in safety, but was immediately confronted by a great danger. If he had looked forward he might have seen and avoided it. But here we must bear in mind the circumstances attending his exit from the cars. He was getting off at a place which, with the knowledge and permission of the defendant, was habitually used for this purpose; and he knew, moreover, that it was the defendant’s duty to use all possible care to make this place safe for him. And he knew that by a special rule it had declared that when his train was discharging passengers, any approaching train must be stopped and not be allowed to reach it. How, assuming that he supposed that he was to be discharged as a passenger at that place, he would necessarily and unavoidably infer that he would be safe, if the railroad company observed this rule. Undoubtedly he had a right to assume that this rule would be enforced and, relying upon the assurance guaranteed by the rule, he was dispensed from the necessity of using the degree of care ordinarily required of persons who go on or near railroad tracks.” In Chicago, etc., Ry. Co. v. Lowell, 151 U. S. 209, the passenger alighted from the train when it was in motion and was subsequently struck by an engine coming from the opposite direction while he was crossing the track to reach the station. The defense was contributory negligence, and the defendant company asked the court to instruct the jury to find for it on that ground. The prayer was refused and there was a verdict for the plaintiff which was sustained on appeal by the supreme court of the United States.

In the case in hand, the plaintiff knew of the existence of a rule of the carrier company similar to the one in the Anderson case, and the remarks of the court in that case apply, therefore, to the plaintiff here. He had a right to assume that the defendant company would observe its own rule : Lyman v. Boston & Maine Railroad Co. (N. H.), 11 L. R. A. 364, and, therefore, although having alighted from the train while in motion he had a right to rely upon the defendant company keeping its intervening track clear at the time for receiving and discharging passengers from its west bound trains at Henry ville. As said in Atlantic City Railroad Co. v. Goodin, 45 L. R. A. 671 : “ Goodin (the passenger) had a right to rely on the assumption that no train would be allowed to come while passengers might properly be crossing the track.” Reasonable care according to the circumstances was required of the plaintiff when he attempted to cross the defendant’s tracks, and whether he exercised that care or not was a question for the jury. The court could not declare as matter of law that in alighting from the train while it was in motion, the plaintiff contributed to the injuries he sustained.

The judgment is affirmed.


text:
    Bailey, Appellant, v. Lehigh Valley Railroad Company.

      Negligence — Railroads—Walking on tracks — Track repairman — Contributory negligence — Nonsuit.
    No damages can be recovered from a railroad company for the death of one of its track repairmen, where it appears that the deceased after the end of his working day, started to walk to his home on one of the tracks of the railroad, although there was another and safer route, but a longer one, and was killed, without anyone seeing the accident, by being struck by the tender of an engine which was running rapidly backward and westward on the eastbound track.
    Such a case is within the rule that a railroad company has the right to the exclusive possession of its tracks, except at crossings, and that a person who enters upon .the tracks at any other point than at such crossings, is guilty of negligence per se. The fact that the deceased was an employee of the company, and that for several years he had used the tracks to reach his home, is immaterial.
    The fact that a person makes frequent use of a railroad track by walking along it longitudinally at a point where the company has the right to the exclusive possession of it, cannot be construed to mean consent to such use by the company. In the absence of evidence showing permission to use its tracks, the necessity for the exclusive use by the company in the operation of its trains, excludes any presumption of the company’s consent to its use for any other purpose.
    Argued March 18, 1908.
    Appeal, No. 88, Jan. T., 1908, by plaintiff, from order off O. P. .Bradford Co., Feb. T., 1906, Mo. 10, refusing to take off nonsuit in case of Mahala Bailey v. The Lehigh Valley Railroad Company.
    Before Mitchell, C. J., Bbown, Mestbezat, Potteb and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband.
    Before Fanning, P. J.
    The facts relating to the accident are stated in the opinion of the Supreme Court.

      Error assigned was order refusing to take off nonsuit.

      D. O. De Witt, for appellant.

      Davies & Davies and Henry Streeter, for appellee, were not heard.

      March 30, 1908 :
   Opinion by

Mr. Justice Mestrezat,

The plaintiff is the widow of Ambrose Bailey who was killed on December 6,1904, on the defendant’s road about two miles west of Wyalusing borough, Bradford county. For five years prior to his death, the deceased was in the employ of the defendant company as a track repair man, and lived a few rods from the defendant’s tracks, and about three miles west of Wyalusing. When engaged at his work he would usually report for duty at the company’s tool house near Wyalusing, and when his day’s work was ended, he would go to the tool house and was there discharged. It was his custom to go to the tool house and return from it along the defendant’s tracks. There was a public highway leading from Bailey’s house to Wyalusing, but the distance was nearly a mile farther than along the railroad. In order to reach a public highway from the tool house, it was necessary to go along the defendant’s tracks a distance of half a mile, or by a path leading through the fair grounds east direct to the main highway in Wyalusing borough, a short distance away. On December 6, 1904, the day of the accident, the deceased was employed with other workmen south of the Wyalusing depot. He, with the other employees, returned from their labor on a handcar to the tool house, about five o’clock in the evening. Soon after his arrival at the tool house, he left for his home, following the line of the defendant company’s tracks. At the place of the accident, the defendant has a double track road running east and west. The court below in its statement of the facts says: “ As Bailey, who had completed his day’s work, was proceeding west, being about a mile from his home and not far from two miles west of the tool house, he was struck probably by the tender of this engine, which was running rapidly backward and westward on the east bound track, and killed. . . . His body was found between the track and the highway a short distance therefrom, evidently near the point where he was struck.” The court granted a nonsuit which it subsequently refused to take off. The plaintiff has taken this appeal.

The plaintiff’s contention is “ that if Bailey was upon the track by the act of the defendant, or by license, or with the knowledge and consent of the defendant, express or implied, going to and from his work without objection for several years, then he was not, when leaving the premises in the ordinary-manner, a trespasser ; that if the company did not use ordinary care, was negligent in running its engine backward and westward on the east bound track at a high rate of speed without a light on the tender and such negligence was the cause of the accident, and the deceased without fault, then the plaintiff is entitled to recover.” The plaintiff contended that the case should have been submitted to the jury, and if the facts were according to her contention, the defendant company was responsible for her husband’s death. v

It is settled law in this state that a railroad company has the right to the exclusive possession of its tracks except at crossings; and that a person who enters upon the tracks at any other point than at such' crossings is guilty of negligence per se. Where the public have the right to cross a railroad, the company in the operation of its trains must exercise ordinary care to prevent.accidents. This necessarily follows from the right of the public to cross the tracks. But at all other points upon a railroad, where the railroad company has the exclusive right to the use of its tracks, the person who enters npon the tracks becomes a trespasser, and the only duty imposed upon the company at that place is to refrain from wantonly injuring the trespasser. In operating trains on its road at all places other than at crossings, the company’s employees in charge of the train have the right to assume that no person will enter upon the tracks, or if upon the tracks will immediately leave them upon the approach of the train. The train men may act upon this presumption, and if a person trespassing on the tracks is killed, the company is not liable unless his death is caused by the wanton or willful conduct of those in charge of the train. As said by ATr. Justice Strong in Philadelphia & Reading Railroad Company v. Hummell, 4A Pa. 375, 379 : “ If the use of a railroad is exclusively for its owners, or those acting under them; if others have no right to be upon it; if they are wrongdoers whenever they intrude, the parties lawfully using it are under no obligations to take precautions against possible injuries to intruders upon it. . . .' Precaution is a duty only so far as there is reason for apprehension. No one can complain of want of care in another where care is only rendered necessary by his own wrongful act.”

We are unable to see anything in the facts of this case that takes it out of the rule that declares a person a trespasser who voluntarily enters upon a railroad at any other place than at a crossing. As said by the learned counsel for the appellant, “ Bailey’s work and employment commenced and ended at the tool house.” There is no evidence in the case that would warrant the inference that the company gave him permission to use its tracks in going to and returning from the tool house. The company was not required to concern itself about where Bailey lived, or how he went to his labor or returned from it to his home. In this respect he was at liberty to act in accordance with his own pleasure. He could use the public road or, if he desired to take a shorter route, he could use the railroad. Choosing the railroad instead of the other and safer route was solely his own act, for which the company was not responsible. That for several years Bailey used the tracks of the road going to and returning from his labor without objection on the part of the company is not sufficient to show its consent to his action, or, as contended by the plaintiff, that he was upon the track by the act of the defendant company, or by its license, or with its knowledge and consent. The fact that a person makes frequent use of a railroad track by -walking along it longitudinally at a point where the company has the right to the exclusive possession of it, cannot be construed to mean consent to such use by the company. In the absence of evidence showing permission to use its tracks, the necessity for the exclusive use by the company in the operation of its trains excludes any presumption of the company’s consent to its use for any other purpose. This is not the case of a permissible crossing of a track where the company must recognize the rights of others in the use of its tracks. There it is the duty of the company to exercise ordinary care to prevent collisions and accidents. Here there was no evidence tending to show that the company had granted any, permission or license for any person to occupy its tracks longitudinally in walking from one point to another upon its road. The safety of its passengers, as well as the' protection of its own employees and property, required the company to insist upon a free and clear track, and that its tracks should be used for no other purpose. That one individual, and he an employee, saw proper to use its tracks for his own convenience in passing from one point to another along its road is not sufficient evidence of permission to make such use of the track. A railroad is not built to be used as a footpath for the convenience of the public. On the other-hand, the safety of the traveling public demands that all persons refrain from trespassing upon a railroad, and that the company insist upon its exclusive use of the tracks.

There is nothing in the evidence to show that the death of the plaintiff’s husband was caused by the wanton or willful act of the trainmen. The accident did not occur in a thickly populated community nor in the suburbs of a city, nor at a place where the use of the tracks by a pedestrian could reasonably be anticipated. There were no residences in that vicinity, nor any path or road leading across the tracks. It was at a place where the company had the exclusive use of its tracks, and there was nothing to induce the belief that they would be used by any person or for any purpose than by the company in operating its trains. No witness saw the locomotive strike the deceased, and there is no evidence in the case to show that the company’s servants in charge of the locomotive saw Bailey, or knew that he was on the track before he was struck and killed. Hence, there is nothing in the case to warrant the conclusion that Bailey’s death was caused by the willful or wanton act of the company’s servants in charge of. the locomotive.

As we have said above, Bailey was not struck by the locomotive at a crossing where the company’s trainmen were required to use ordinary care to protect him, nor, as suggested, does he come within that class of cases where it is held that a person who is paid a certain amount per day and furnished with transportation is a passenger while being carried to and from his place of employment. The plaintiff admits that Bailey’s work began and ended at the tool house. His contract for his services did not include transportation to and from the tool house. In fact, he was not being carried by the company’s train or being transported in any way by the company when he was killed. Hence there is no ground whatever for the suggestion that at the time he was killed he was entitled to the rights of a passenger. Equally inapplicable to the case in hand is the doctrine announced in Ham v. Delaware & Hudson Canal Company, 155 Pa. 548, and Tilburg v. Horthern Central Railway Company, 217 Pa. 618. In those cases the injured party was a passenger, and his injuries resulted from his being wrongfully ejected from the train at a place of danger. The fact that he was subsequently on the railroad tracks was not his own act but that of the company in wrongfully ejecting him from the train, and while he was attempting to escape from the dangerous position in which the company had placed him. In the case in hand Bailey voluntarily entered upon and walked along the company’s track, and thereby put himself in the place of danger without any wrongful act of omission or commission on the part of the company. He had not been a passenger and discharged from the company’s train immediately before he was killed. At the time he was struck by the locomotive the company owed him no duty as a passenger. The plaintiff, therefore, cannot invoke the doctrine of the Ham and Tilburg cases to impose liability on the defendant company for her husband’s death.

Hnder the evidence in the case we must conclude that Bailey was on the defendant’s tracks at the time he was killed without any necessity on his part or authority from the company. He was carelessly walking upon the track longitudinally, and having no right or authority to do so he was a trespasser and, therefore, his death was the result of his own negligence.

This is a most unfortunate and distressing accident, and naturally excites the keenest sympathy. A large family is deprived of its head and its protector. These facts, however, will not justify the court in holding the defendant responsible for Bailey’s death under the circumstances disclosed by the evidence.

The judgment is affirmed.


text:
    Stephens, Appellant, v. Dayton.

      Wills — Trusts and trustees — Perpetuities.
    Testator devised and bequeathed all of his property to his executor, in trust for the purposes named in his will, and then over. He further directed as follows:
    “ (h) The residue of the rents, issues and profits of my said estate, after paying all charges thereon, shall be equally divided, semi-annually, between my son Ira A., and daughter, Susan, or should either die, between the survivor and the heirs and the next of kin of the deceased, said heirs and kin taking what the deceased, if living, would have taken; or, if this trust should continue after the death of both my said son and daughter, the said residue of the rents, issues and jDrofits of my estate shall be divided, one-half to the heirs and next of kin of said deceased son, and one-half to the heirs and next of kin of said deceased daughter.
    “ (k) The trust hereby created shall cease immediately upon the sale by the trustees of my shares of the capital stock of the J. E. Dayton Company, Williamsport, Pa., or upon the said trustees dividing the said capital stock between my said two (2) children or upon the death of the survivor of my son or daughter, should he or she die before the other, and the said trustee shall immediately, upon this its termination in any one of the ways aforesaid, convey all the estate then in their hands to my son and daughter in equal shares; or, if my son or daughter or both be then dead, the half which otherwise would be conveyed to him or her, shall be conveyed to the heirs of said son or daughter, or, if the property be personalty, to such persons as, under the intestate laws, would be thereto entitled had such son or daughter died owner of it.
    “(1) Notwithstanding the provision in the preceding paragraph as to the termination of the trust hereby created, if in the unanimous judgment of my said trustees, it would be unwise for any reason at the time and under the conditions mentioned therein to so divide my estate, this trust shall continue during the life of the survivor of my grandchildren, who may be living at the time of my death, or until such time, although one or more of said grandchildren be living, as the said trustee shall unanimously agree that it will be wise and safe to terminate said 'trust, and I hereby give the said trustees full power to carry out the provisions of this paragraph. If, as provided in this paragraph, the trust be continued after the death of the survivor of my son and daughter, the said trustees shall immediately upon its termination convey all the estates then in their hands to the heirs of my son and daughter in manner following: ” Held, that the will did not offend the rule against perpetuities or the statute that prevents accumulations beyond the life or lives in being and twenty-one years thereafter.

      Argued March 18, 1908.
    Appeal, No. 108, Jan. T., 1908, by plaintiff, from decree of O. P. Lycoming Go., Sept. T., 1907, No. 1, dismissing bill in equity in case of Susan M. Stephens v. George A. Dayton et al., surviving executors of the estate of John E. Dayton, deceased.
    Before Mitchell, O. J., Beown, Mesteezat, Pottee and Elkin, JJ.
    Affirmed.
    Bill in equity to declare a trust null and void.
    The bill averred that John E. Dayton died July 3, 1905, leaving a last will and testament, in which he named his son, Ira A. Dayton, and his brother, George A. Dayton, and William J. Dale as executors and trustees,. with full power and authority to carry on the business theretofore carried on by the testator during his lifetime, and in case of a vacancy, from any cause, at any time, in the board of trustees, said trustees are authorized to fill such vacancy. That testator left to survive him two children, both of full age, viz.: Ira A. Dayton and Susan M. Stephens (plaintiff and appellant in this case) and five grandchildren, viz.: John D. Stephens, aged thirteen, William H. Stephens, aged eleven, and Mary A. Stephens, aged four, children of said Susan M. Stephens, and Louise Dayton, aged nine, and Robert Dayton, aged seven, children of said Ira A. Dayton, and that said Ira A. Dayton, one of said executors and trustees, is dead, G. W. Scott has been appointed executor and trustee in his stead.
    That the trust which testator undertook to create in his executors and trustees and in their successors violates the rule of law against perpetuity, and is in unlawful restraint of alienation and therefore void.
    That said testator, at and before the time of his death, was engaged in the manufacturing business, and possessed of property of the value of $103,000.
    That the executors and trustees had neglected and refused to account to plaintiff, though often requested so to do.
    The bill prayed for a decree making null and void the trust created under the will of the testator.
    That the executors and trustees be required to account to plaintiff.
    The defendant demurred to the bill.
    The court sustained the demurrer and dismissed the bill.

      Error assigned was decree dismissing the bill.

      John J. Reardon, with him Wm. M. Stephens, for appellant,
    cited: Philadelphia v. Girard’s Heirs, 45 Pa. 9 ; Johnson’s Est., 185 Pa. 179 ; Donohue v. McNichol, 61 Pa. 73 ; Smith’s App., 88 Pa. 492 ; Pennsylvania Co. for Ins., etc., v. Price, 7 Phila. 465.

      Seth T. MeOormiehc, with him A. M. Eoagland, for appellee,
    cited: Johnston’s Est., 185 Pa. 179 ; Hillyard v. Miller, 10 Pa. 326 ; Lawrence’s Est., 136 Pa. 354 ; Phila. v. Girard’s Heirs, 45 Pa. 9 ; Smith’s App., 88 Pa. 492 ; Donohue v. McNichol, 61 Pa. 73 ; Goehring’s Appeal, 81* Pa. 283 ; Weinbrenner’s Estate, 173 Pa. 440 ; Johnston’s Estate, 185 Pa. 179 ; Gerber’s Estate, 196 Pa. 366 ; Horner’s Est., 10 Pa. Dist. Rep. 729 ; Siddall’s Est., 180 Pa. 127 ; Coggins’s App., 124 Pa. 10 ; Chess’s App., 87 Pa. 362.
    March 30, 1908 :
   Opinion by

Mr. Justice Mestrezat,

The testator devised and bequeathed all his property to his executors in trust for the purposes named in his will, and then over.

By clause (h) of paragraph 2, it is provided: “ The residue of the rents, issues and profits of my said estate, after paying all charges thereon, shall be equally divided, semi-annually, between my son Ira A., and daughter, Susan, or should either die, between the survivor and the heirs and the next of kin of the deceased, said heirs and kin taking what the deceased, if living, would have taken; or, if this trust should continue after the death of both my said son and daughter, the said residue of the rents, issues and profits of my estate shall be divided, one-half to the heirs and next of kin of said deceased son, and one-half to the heirs and next of kin of said deceased daughter.”

Clauses (k) and (1) of the said paragraph provide for the termination of the trust. Clause (k): The trust hereby created shall cease immediately upon the sale by the trustees of my shares of the capital stock of the J. E. Dayton Company, Williamsport, Pa., or upon the said trustees dividing the said capital stock between my said two children or upon the death of the survivor of my son. or daughter, should he or she die before the other, and the said trustees shall immediately, upon this its termination in any one of the ways aforesaid, convey all the estate then in their hands to my son and daughter in equal shares ; or, if my son or daughter or both be then dead, the half which otherwise would be conveyed to him or her, shall be conveyed to the heirs of said son or daughter, or, if the property be the personalty, to such persons as, under the intestate laws, would be thereto entitled had such son or daughter died owner of it.” Clause (1): “Notwithstanding the provisions in the preceding paragraph as to the termination of the trust hereby created, if in the unanimous judgment of my said trustees, it would be unwise for any reason at the time and under the conditions mentioned therein to so divide my estate, this trust shall continue during the life of the survivor of my grandchildren, who may be living at the time of my death, or until such time, although one or more of said grandchildren be living, as the said trustees shall unanimously agree that it will be wise and safe to terminate said trust.”

It will be observed that under clause (k) there are three ways in which the trust may be terminated. But each of those ways contemplates its termination not later than the death of the survivor of the testator’s two children, and hence earlier than the date fixed in the succeeding clause. Whether it should be terminated in the manner provided in clause (k) was, by clause (1) left to the unanimous judgment of the trustees. If in their judgment it was unwise for any reason to terminate the trust and divide the estate as provided in clause (k), they were authorized to continue the trust as provided in clause (1). It is, therefore, apparent that, under neither clause, could the limitation upon the life of the trust be extended beyond the restriction provided in clause (1).

There is no difficulty in interpreting clause (1) and in reaching the conclusion that it' does not violate the rule against perpetuities. The controlling language is : “ This trust shall continue during the life of the survivor of my grandchildren, who may be living at the time of my death, or until such time, although one or more of said grandchildren be living, as the said trustees shall unanimously agree that it will be wise and safe to terminate said trust.” As contended in appellant’s brief, this enlarges the duration of the trust declared in clause (k). If, therefore, in the judgment of the trustees it is unwise to divide the estate at the death of the testator’s surviving child as provided in clause (k), the trust shall continue during the life of the survivor of his grandchildren who may be living at the testator’s death. The death of the surviving grandchild who was living at his grandfather’s death fixes the utmost limit of the trust, and under this clause of the will it must terminate upon the happening of the event. But the trust may be sooner terminated under the alternative provision of the clause. It is to continue during the life of a surviving grandchild, “ or until such time, although one or more of said grandchildren be living,” as the trustees may unanimously determine it is wise and safe to terminate it. The trustees, therefore, are not obliged to await the death of the surviving grandchild to terminate the trust and vest the estate. They may end it while any or all of the grandchildren who were living at the testator’s death are still living. The “ said grandchildren” named in the alternative provision of this clause of the will refer to the grandchildren mentioned in the previous clause who are those living at the death of the testator. In no contingency, therefore, can the trust be extended beyond the life of a surviving grandchild who was living at his grandfather’s death. Hence it must be terminated within a life in being at the death of the creator of the trust. At that time, the remainder of the estate will vest in those entitled to it under the will. This trust, therefore, does not offend the rule against perpetuities or the statute that prevents accumulations beyond the life or lives in being and twenty-one years thereafter.

The third paragraph of the will does not postpone the termination of the trust under the limitation fixed in clause (1) of the preceding paragraph. It is simply a declaration by the testator of his purpose in making the “ previous dispositions ” of his property. His principal object was, as he states, to preserve his interest in the Dayton Company for his children and descendants. It is true, he says, that his object is to continue the trust “ as long as possible,” but that does not avoid or change the prior clauses of the will wherein he creates and limits the trust, but is merely an expression of his desire that the property be continued in his descendants as long as it can legally be done.

After a very careful examination and consideration of the will we are of opinion that the learned court below was right in holding that it does not transgress the law against perpetuities.

The decree is affirmed.


author: Mr. Justice Brown,

text:
    Bowman v. Woolworth, Appellant.

      Negligence — Master and servant — Contributory negligence — Falling of cellarway door.

    In an action by an employee against an employer to recover damages for personal injuries sustained by the falling of a cellarway door which struck him on the head, the plaintiff is not entitled to recover because of his contributory negligence where it appears from the evidence offered by plaintiff that the doors when opened stood perpendicular upon their hinges which were rusty, without being fastened in any way, that the plaintiff knew of the condition of the doors, that he had seen them every day for three weeks before the accident, and that notwithstanding this knowledge he took a place on the cellar steps beneath the doors when a breeze was blowing, and received in consequence the injuries for which he brought suit.
    Argued Jan. 7, 1908.
    Appeal, No. 206, Jan. T., 1907, by defendant, from judgment of O. P. No. 1, Phila. Co., Sept. Term, 1905, No. 4,171, on verdict for plaintiff in case of J. Joseph Bowman v. P. W. Woolworth & Co., a corporation.
    Before Mitchell, C. J., Pell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries.
    Before Brbgy, J.
    The facts are stated in the opinion of the Supreme Court.
    Yerdict and judgment for plaintiff for $8,500. Defendant appealed.

      Error assigned among others was in submitting the case to the jury.

      Frank P. Prichard, with him James Wilson Bayard, for appellant.
    On the uncontradicted evidence a verdict for appellant should have been directed : Welch v. Carlucci Stone Co., 215 Pa. 34 ; Wilkinson v. Mfg. Co., 198 Pa. 634 ; Zeilmann v. McCullough, 214 Pa. 27 ; Taylor v. Penn Steel Castings & Machine Co., 217 Pa. 269 ; Boyd v. Harris, 176 Pa. 484 ; Masterson v. Eldridge, 208 Pa. 242.

      Morton Z. Paul, with him J. Henry Badey Acker, for appellee.
    The negligence of appellant was properly submitted to the jury: Lillie v. American Car & Foundry Co., 209 Pa. 161 ; Lee v. Electric Light, etc., Co., 140 Pa. 618 ; Garrity v. Casting & Machine Co., 17 Pa. Superior Ct. 623 ; Wilkinson v. Evans, 34 Pa. Superior Ct. 472.
    The question as to whether the appellee was guilty of contributory negligence was properly submitted to the jury: Mortimer v. Beaver Valley Traction Co., 216 Pa. 326 ; Iseminger v. York Haven Water & Power Co., 206 Pa. 591 ; Beil v. Cement Co., 218 Pa. 472 ; Esher v. R. R. & Mining Co., 28 Pa. Superior Ct. 387 ; Plank v. Jessop, 178 Pa. 71 ; Garrity v. Penna. Casting, etc., Co., 17 Pa. Superior Ct. 623 ; Patterson v. R. R. Co., 76 Pa. 389 ; Schiglizzo v. Dunn, 211 Pa. 253 ; Schall v. Cole, 107 Pa. 1 ; Bannon v. Lutz, 158 Pa. 166 ; O’Rourke v. Chimney Construction Co., 21 Pa. Superior Ct. 52.
    April 20, 1908 :
   Opinion by

Mr. Justice Brown,

The facts in this case are not in dispute. When the plaintiff rested on the trial below the defendant asked that a verdict be directed in its favor. This was refused. The case then went to the jury without any evidence on the part of the defendant, and the verdict was for the plaintiff. The first contention of the appellant is that, on appellee’s own testimony, taken in connection with that of Albert Harwich, the only other witness who testified as to the accident, a recovery ought not to be permitted.

At the time the appellee was injured he was in the employ of the appellant, which conducted a store on Market street, in the city of Philadelphia. The building occupied by it extended back from Market street to another street, where there were three cellarways through which freight was taken into and from the cellar. Over one of these cellarways there were two cellar doors, one opening to the east and the other to the west. To the base of the window immediately above these cellar doors there was attached what was called a ceiling cellar door. At times the opening covered by the cellar doors was not large enough to receive the freight, and the ceiling door would then be pushed inward and fastened to the ceiling, making the opening larger. On the day the appellee was injured the ceiling door had been so fastened on the inside, and, after the freight had been received, he stood on the cellar steps to unfasten it and let it down to its place. While standing there one of the cellar doors fell, striking him on the head and causing the injuries for which he seeks compensation in this suit. The cellar doors when opened stood upright, at right angles to the pavement, inclining neither way. There was nothing to hold them in place when they were in this vertical position. According to the testimony of Harwich, they stood upright, apparently from the rust on their hinges. The only evidence as to what caused the one to fall was the testimony of this witness, that the wind blew it down.

Harwich testified that about a week before the accident he told appellant’s assistant manager that the cellar door which fell upon the appellee was in a dangerous position when open; that it needed fastenings to hold it up, or it would endanger anyone, if not careful, who went down the cellarway, as he had seen it fall. The appellee admitted that he knew there was nothing to hold the door in place when open; that he had seen the doors every day for three weeks before the accident, and during all that time there was nothing to hold them back when open. With this knowledge that the cellar doors stood upright without anything to hold them, he took a place on the cellar steps beneath them, when a breeze was blowing against them, and the jury were permitted to find that he was not guilty of contributory negligence when he was injured.

The danger to which the appellee was subjected was not a latent one. On the contrary, he and his witness both testified that they knew there was nothing to support the doors when standing upright. In Welch v. Carlucci Stone Co., 215 Pa. 34, we said : “ All persons are presumed to know the law of gravitation ; ” and this unfortunate appellee — at the time of the accident twenty-two years of age — is certainly presumed to have known that if he took a place on the cellar steps, with the cellar doors standing upright on their hinges and with nothing to hold them, they would fall before the force of a breeze blowing against them. The case as presented by the appellee himself was one of disregard of danger with which he knew he was confronted, and the law will not, therefore, hold his employer liable for the injuries he sustained.

The submission of the case to the jury was inconsistent with proper instructions given them in the charge, and we are at a loss to understand why a verdict ivas not directed for the defendant in view of the following words of the trial judge, in referring to what the appellant alleged was the contributory negligence of the appellee: “ Did he know they were there ? I mean did he know the doors were in that position, because, as I have said, if they were not in that position, his case is not made out — but suppose they were in the position claimed by the plaintiff, standing upright, did he know it? You have heard what has been said upon that subject. You have heard the testimony here as to where it was, that it was outside the building. You have heard about his employment, it not being his employment to open doors, but to work around about them. Do you think he knew those doors stood up that way? If he did not know, do you think any man of ordinary prudence ought to have known, because if either of those two things exist — he did know, or ought to have known, or, to put it in another way, if he did not know his want of knowledge was due to his own want of proper investigation — in other words, if you think it was a thing he ought to have looked at before he worked around that cellar door, or put his head where he did in pulling down what he called the ceiling door — if that was the condition of affairs, that he either did know, or ought to have known, from his working there, then he would be guilty of contributory negligence, and he would have no right to recover.”

The appellee knew the doors were there, for he said he did. He knew they were open, for if they had been closed he could not have stood on the cellar steps with his head above the surface of the pavement, and he knew there was nothing to hold them back, because he so testified. In his examination in chief he testified as follows : “ Q. Did you touch the door in any way ? A. Ho, sir;” and on cross-examination: “ Q. How did you know there was nothing there to hold the doors back ? A. I know it. I never saw anything there, never saw anything there at all. Q. How long had you been there ? A. About three weeks. Q. How often had you seen the cellar doors ? A. Every day. Q. During all that time there had been nothing thereto hold them back ? A. Ho, sir.” The witness who saw the door fall testified that while the appellee was standing on the cellar stairs a breeze was blowing, and the wind blew the door down from its vertical position. What this witness saw the appellee must have seen; and he must have known, too, that the wind was blowing against the unsecured door. Ho case could more forcibly illustrate the wisdom of the rule that when but one inference can be drawn by all reasonable minds from admitted facts, it is for the court to draw it, for in the teeth of evidence which the jury were instructed would make the appellee guilty of contributory evidence, there was a finding that he was not. It is not without reason that counsel for appellant say the jury were permitted to find for the appellee if they believed the facts to be directly contrary to the evidence.

As appellee has no cause of action against the appellant, the other two questions raised by it need not be passed upon. The first and second assignments of error are sustained, the judgment is reversed and is now entered for the appellant.