text:
    Wesley, Appellant, v. Sulzer.

      Deeds — Building restriction — Covenant.
    Where a restriction, in a deed forbids the erection of a building exceeding nine feet in height “on the rear end of a lot of ground,” described in the deed, the owner of the land may be restrained by injunction where he admits that he proposes to erect a brick factory five stories high, which will occupy the entire space of the lot in question and other adjoining lots owned by him, up to and on the rear line of such lots. In view of the announced intention of the owner the words “rear end of the lot,” are not indefinite.
    Argued Jan. 12, 1900.
    Appeal, No. 300, Jan. T., 1908, by plaintiff, from decree of C. P. No. 2, Phila. Co., March T., 1908, No. 2,253, dismissing bill in equity in case of John S. Wesley v. Gustavus W. F. Sulzer.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Reversed.
    Bill in equity for an injunction. Before Barratt, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was the decree of the court.

      Charles S. Wesley, of Wesley & Tustin, for appellant.—
    Whether the restriction imposed by these covenants was imposed in favor of a certain dominant tenement as against a certain servient tenement or whether the covenants were merely a personal contract for the benefit of the vendor or his grantee is to be determined generally by a fair interpretation of the grant creating it, aided, if necessary, by reference to the situation of the property and the surrounding circumstances: Landell v. Hamilton, 175 Pa. 327; Mann v. Stevens, 15 Sims. 377; Patching v. Dubbins, 1 Kay, 1; McLean v. McKay, L. R. 5 Privy Council App. 327; Child v. Douglas, 1 Kay, 560; 2 Jur. (N. S.) 950; Coughlin v. Barker, 46 Mo. App. 54.
    It has been held in numerous cases that the vendor cannot in any wise affect the vested right to enjoy the covenant. This was decided in Coughlin v. Barker, 46 Mo. App. 54; Watertown v. Cowen, 4 Paige, 510; Child v. Douglas, 2 Jur. (N. S.) 950; Western v. MacDermot, L. R. 1 Equity, 499; Landell v. Hamilton, 177 Pa. 23; Allen v. Hamilton, 177 Pa. 26.
    We contend that the covenant in question operates substantially for the benefit of the complainant and his adj oining neighbors in the way of securing light and air to the premises. A mere change in the circumstances and conditions of the neighborhood, and in the character and uses of the properties involved, are matters properly for the serious consideration of a chancellor only when the appellant is guilty of laches.
    Where a writing is ambiguous, the court, in order to determine its meaning, will consider all the facts and circumstances attending its execution, and among the circumstances so considered are .thé nature and situation of the subject-matter and the apparent purpose of making the instrument the contract in question; Jackson v. Marsh, 6 Cow. (N. Y.) 281; Lycoming Mut. Ins. Co. v. Sailer, 67 Pa. 108; McCullough v. Wainwright, 14 Pa. 171; Coleman v. Grubb, 23 Pa. 393; Matchette v. Colburn, 166 Pa. 265; People's Nat. Gas Co. v. Wire Co., 155 Pa. 22.

      John G. Johnson, with him James Wilson Bayard, for appellee. —
    It is well settled in this commonwealth that where a restriction or 'other agreement affecting real estate is not definite, it cannot be enforced. We need refer only to two cases: Stambaugh v. Hollabaugh, 10 S. & R. 357; Meigs v. Lewis, 164 Pa. 597.
    April 12, 1909:
   Opinion by

Mr. Justice Brown,

In 1829 Frederick and Charles Graff were the owners of a piece of land situated on the west side of North Eleventh street, in the city of Philadelphia, extending from a point 121 feet south of Vine street southwardly 218 feet and thence westwardly 183 feet to Madison street, bounded on the north by Graff, now Winter, street and on the south by Branch alley. On this lot of ground there had been laid out, parallel to Eleventh street, ninety-six feet westwardly from it, an alley twenty feet wide, called Brigg street, now known as Jessup street. Rows of residences were erected on Madison street and Eleventh street. The Graffs conveyed their land to various parties, subjecting each lot sold to certain restrictions in favor of the remaining lots on Madison street and Eleventh street. These restrictions were substantially the same in each grant. That portion of the Graff land facing on Eleventh street is now composed of premises Nos. 232 to 254, inclusive. On May 1, 1829, by a deed duly executed and recorded, the Graffs conveyed to Eli B. Fourestier, the appellant's predecessor in title, the premises No. 232 North Eleventh street. In the conveyance it was “understood, conditioned and agreed to by and between the parties” that the said grantee, “his heirs and assigns, shall and will not at any time hereafter erect or build or permit or suffer to be erected or built on the rear end of the lot of ground above described and granted any building or part of a building exceeding nine feet in height, and also that they, the said Frederick Graff and Charles Graff, and their respective heirs and assigns, shall not nor will not at any time hereafter erect or build or permit or suffer to be erected or built on the rear end of their remaining lots of ground on Eleventh street or on the rear ends of their several lots of ground on the east side of the said Madison avenue any building or part of a building exceeding nine feet in height as aforesaid.” The appellant acquired title to his property by deed .dated November 13, 1897. In 1829 and 1831 the Graffs conveyed to the appellee’s predecessors in title premises Nos. 252 and 254 North Eleventh street, the conveyances containing the same restriction as to the erection of any building or part of a building on the rear end of the lots exceeding nine feet in height and covenants on the part of the grantors that they would not at any time erect or build, or permit or suffer to be erected or built, on the rear end of the remaining lots owned by them any building or part of a building exceeding nine feet in height. The appellee acquired his title by deed dated July 17, 1906. Under condemnation proceedings all of the lots of ground fronting on Madison street, together with the buildings erected thereon, have become the property of the Philadelphia & Reading Terminal Railroad Company and there has been erected thereon a solid elevated structure for the support of its railroad. That portion of the premises formerly owned by the Graffs fronting on Madison street is, therefore, not to be taken into consideration in determining the rights of the appellant. On March 28, 1908, this bill was filed, averring that the appellee, the owner of premises Nos. 252 and 254 North Eleventh street, was about to erect a five-storied brick factory for the manufacture of gas and electric fixtures, the said building to cover the entire lots now owned by him, and an injunction was prayed for to restrain such erection as being in violation of the building restrictions in the conveyances from the Graffs. Under the undisputed facts of the case the court below refused the injunction and dismissed the bill, mainly on the ground of the indefiniteness of the restriction, saying as to this: “There is nothing in the restriction indicating or in any way defining what is meant by the ‘ rear end’ of the several lots. Is the 'rear end’ one foot, or twenty feet, or fifty feet in depth from the alley? Is the 'rear end’ of any different depth on the Madison street houses where the lots are only sixty-seven feet in depth? There is nothing in the terms of the restrictions which will enable a chancellor to declare to what point a building more than nine feet in height can be extended.”

Other reasons given for dismissing the bill are that for more than twenty-one years, on some of the lots north of complainant’s premises, back buildings have stood of a greater height than nine feet, extending to from ten to twenty-five feet from the rear end of the lots; that when the complainant bought in 1897 he was bound to take notice of the existence of these back buildings which might be in violation of the restrictions; that his premises are more than 150 feet away from respondent’s, and he has not shown he will suffer any special damages by reason of the erection of any building on respondent’s premises; that the neighborhood is entirely changed, and, from being one of residences, for which abundance of light and air were of importance, it has become a business one, where use of all the ground for business purposes is the most beneficial use to which the premises of the several owners can be put. But these reasons are not to avail the appellee if what he now proposes to do is an unequivocal violation of a building restriction placed upon his premises for the benefit of every lot owner south of him, who, with him, traces title to the Graffs.

Whether the words “the rear end of the lot” are too vague and indefinite to restrain the erection of a building some feet distant from the western line of appellee’s premises is not the question now before us. We are not now to determine what is embraced in the rear end of the appellee’s lots, or upon what parts of them he may put up buildings of a greater height than nine feet. What he admits that he proposes to do is to erect a brick factory, five stories high, for the manufacture of gas and electric fixtures, which shall occupy the entire space of the lots now owned by him, thirty-eight feet on Eleventh street, thirty-eight feet on Brigg street and ninety-six feet in depth on Graff street. That this is a violation of the building restriction placed upon his premises, and of the covenants of his grantors, cannot be questioned. When he builds up to and on the western or rear line of his lots, he is clearly doing that which is forbidden in his title, and in the face of what he would do the words “rear end of the lot” are not indefinite. The complainant’s property is still a residence, occupied by a tenant, for the benefit of which the building restriction was placed on each lot sold by the Graffs, and it is not to be utterly disregarded by the appellee without the consent of the appellant.

The decree of the court below is reversed, the bill is reinstated and it is now ordered, adjudged and decreed that the appellee be perpetually restrained from erecting the building described in the fifth paragraph of appellant’s bill, the costs below and on this appeal to be paid by the appellee.


source: Caselaw Access Project

author: Mr. Justice Potter,

license: Public Domain

text:
    Haley, Appellant, v. American Agricultural Chemical Company.

      Appeals — Assignments of error — Separate questions — Point—Charge —Judgment non obstante veredicto — Act of April 22, 1905, P. L. 286.
    1. An assignment of error which raises three separate questions, violates rule 29.
    2. An assignment of error which complains that the court erred in not instructing the jury to find for the plaintiffs, is bad, where the record shows that no request for binding instructions in favor of plaintiffs was made.
    3. Where a portion of the charge is assigned as error, such portion must be set forth in the assignment totidem verbis in accordance with rule 30.
    4. The trial court cannot be convicted of error in refusing judgment for plaintiffs non obstante veredicto, where it appears that counsel for plaintiffs submitted no point at the trial requesting binding instructions in their favor.

      Landlord and tenant — Lease—Wharf property — Cost of cleaning dock . — Repairs.
    5. Where land abutting on a navigable river is described in a lease as exactly coterminous with a pier constructed thereon, and as extending into the river as far as the port warden’s low-water line, and the lease contains an additional grant of wharf property extending into the river from the previously described premises from port warden’s low-water line to port warden’s pier headline, “together with all water rights appurtenant thereto,” the landlord cannot, in the absence of an agreement to do so, compel the tenant to pay the cost of cleaning the adjoining dock required under the law to be paid by the owner of the pier.
    Argued Jan. 13, 1909.
    Appeal, No. 311, Jan. T., 1908, by plaintiffs, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1905, No. 4,063, on verdict for defendant in case of Rose Haley, Mary Coll and Fidelity Trust Company, Executors of the Last’ Will and Testament of Adam W. Louth, deceased, v. The American Agricultural Chemical Company.
    April 12, 1909:
    Before Mitchell, C. J., Fell, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit to recover cost of dredging a dock. Before Au-
    DENRIED, J.
    The facts appear by the former report of the case in 217 Pa. 354.
    Verdict and judgment for defendant. Plaintiffs appealed.

      Errors assigned were in the following form:
    The learned court below erred:
    1. In not instructing the jury to find for the plaintiffs.
    2. In instructing the jury to find for the defendant.
    3. In not entering judgment for the plaintiffs non obstante veredicto.

      D. Webster Dougherty, for appellant.

      R. Stuart Smith, with him Charles E. Morgan, for appellee.
   Opinion by

Mr. Justice Potter,

Upon the trial of this case the court below gave binding instructions in favor of the defendant, and subsequently refused to enter judgment non obstante veredicto in favor of plaintiffs, but did enter judgment on the verdict in favor of the defendant.

Plaintiffs have appealed, and their counsel has specified error in what was apparently intended as three assignments, but the form in which they are stated is that of a single assignment, raising three separate questions, and this is a violation of rule 29. But if we overlook this, and consider the specifications as separate and distinct assignments, we find that the first one, in which complaint is made that the court erred in not instructing the jury to find for the plaintiffs, is bad, for the reason that the record shows that no request was made for binding instructions in favor of plaintiffs. As to the second specification, in which it is alleged that the trial judge erred in instructing the jury to find for the defendant, this assignment is in disregard of the requirements of rule 30, in that it does not quote the portion of the charge assigned for error, totidem verbis. The third particular in which error is alleged upon the part of the court below, is in not entering judgment for the plaintiffs non obstante veredicto. But the trial judge cannot be convicted of error in this respect, for the reason that counsel for plaintiffs submitted no point, at the trial, requesting binding instructions in their favor. And under the Act of April 22, 1905, P. L. 286, the authority to ask for such judgment upon the whole record, is conditioned upon the presentation, before verdict, of a point requesting binding instructions. See opinion of Rice, P. J., in Philadelphia v. Bilyeu, 36 Pa. Superior Ct. 562. This appeal, therefore, presents no valid assignment of error.

The question here presented is precisely the same as that considered and decided by this court on the former appeal of this case, at 217 Pa. 354. As our Brother Stewart there said (p. 356): “The rights of the parties depend upon a proper construction of the lease which gives rise to the controversy.” Nothing else is involved at the present time. It was clearly pointed out in the former opinion, that the leased premises consisted only of the pier, with the buildings thereon. The dock, or basin of water between the piers or surrounding them, is part of the navigable river, a public highway, and could not be made the subject of a lease. It is used merely for the reception of vessels while loading and unloading. The obligation to keep in order, as an aid to navigation, that portion of the highway adjoining the pier, may of course be imposed upon the owner of the pier. As was said before, “It is in part the price he pays for the privilege of constructing and maintaining his pier upon the public domain; and it is in the nature of a charge upon the property, which a lessee can be required to meet only as he has expressly so covenanted.” No stipulation that the lessee should bear the burden of keeping in good order the portion of the highway adjoining the pier, is to be found in the lease which is the subject of this controversy. A covenant to keep in repair a leased dwelling house would not be construed to mean that the tenant should repair or repave the street, the public highway in front of the property. Yet that is in substance the construction which appellants are here asking to have applied to the lease of these premises.

The specifications of error are dismissed, and the judgment is affirmed.


author: Mr. Justice Stewart,

text:
    Carter v. Henderson & Company, Limited, Appellant.

      Pleading — Statement—Allegata and probata — Appliance—Pilaster— Negligence.

    1. Where in. an action against an employer the negligence charged is failure to provide safe and suitable appliances, and a defective pilaster in a building is averred as the immediate cause of the accident, if the defendant makes no objection to the evidence offered in support of the averment as to the defective condition of the pilaster as an appliance, he may not be heard at the end of the trial to ask for binding instructions on the ground that the allegata and probata do not agree.

      Negligence — Evidence—Charge—Introduction of improper theory 'into charge.

    2. Where in a negligence case the plaintiff's testimony supports one theory as to the cause of the accident, while the defendant's testimony supports an entirely different theory, it is reversible error for the trial judge to introduce into his charge a third and an entirely independent theory of his own, which is not supported by any evidence in the case.

      Negligence — Evidence—Independent contractor.

    3. Where in an accident case the defendant alleges that the improper appliance which was alleged to have caused the accident had been built by a subcontractor, and this allegation is based on evidence wholly in parol, the question as to whether there was an independent contract is for the jury although the evidence is uncontradicted, since it involves the credibility of witnesses.

      Argued Jan. 18, 1909.
    Appeal, No. 218, Jan. T., 1908, by defendant, from, judgment of C. P. No. 3, Phila. Co., Sept. T., 1905, No. 993, on verdict for plaintiff in case of James Carter v. Henderson & Company, Limited.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before McMichael, P. J.
    The defendant offered the following point:
    2. The allegata and probata do not agree, as there is no evidence of any failure on the part of the defendant to provide safe and proper appliances. Answer: Refused. [2]
    Plaintiff presented this point:
    8. Although there had been an independent contractor, the defendant would, nevertheless, be responsible, if he continued to exercise control over the method and manner of doing the work; or (b) if he interfered with such subcontractor, and assumed direction of the work or (c) if such subcontractor performed the work under the direction of the defendant or his representative. Answer: That, I think, is the law. The other points I decline. [3]
    The court charged in part as follows:
    [If the mortar was not dry, was spongy, it is for you to say whether or not that was the cause of this accident. I do not leave it as a question of fact for you to say whether that, mortar was improperly mixed or of bad materials, for there is ho evidence on that. But consider this: Was or was not the mortar dry in the wall when the truss was on there.] [4]
    [I at any rate call your attention to the third view I have of the case which will be for your determination, and that is that the stone masons and stone setters built their wall according to the specifications, according to the contract, but that the trusses were placed upon the wall when the mortar was not dry, and that as a result of that the pilaster buckled and bulged perhaps, or at any rate part of it gave way and slid off, and that the other face of the wall was slightly disrupted. You will remember the testimony of the man who constructed that wall, that he built it according to the specifications with binder stones in, but that after the accident the front of the wall was slightly disrupted. I want you to consider this testimony very carefully. Now, what happened? Whose fault was it?
    [As to the wall being built according to the specifications, I think I have called your attention to the fact that the architect and the supervisor and the man who constructed that wall testified to the fact that it was built accordingto specifications. There is no positive countervailing testimony as to that. I am bound to say that to you. But there is testimony from which you could, if you wish, draw the inference that the mortar was not dry. I think I have gone over that carefully. I cannot take it away from you, but I want to call your' attention to the weight of the testimony and the preponderance of the testimony on which that point is in favor of the defendant.] [5]
    [The construction of the contract is for me. Under this contract Henderson & Company who were the general contractors, had general control of the work. They owed a duty, not' only to their own employees, but to all except trespassers who were there. They owed a duty to be careful. Did they discharge that duty? Did their superintendent — and that is a. question of fact you will have to consider — was he careful? The only testimony I recollect as to the superintendent was that he gave the center, marked it on the metal cap which was above the stone cap which was on the top of the pilaster — he gave the center and the iron men put the iron work there. Just when he did that I do not recollect. There may be testimony, and that is for you. But was or was not Henderson & Company’s superintendent careful to see that that pilaster was in good condition to bear the superincumbent weight?] [6]
    Verdict and judgment for plaintiff for $15,934. Defendant' appealed.

      Errors assigned were (1) in refusing binding instructions for plaintiff; (2-6) various instructions and (8) refusal of defendant’s motion for judgment non obstante veredicto.

      Frank P. Prichard, with him James Wilson Bayard, for appellant. —
    Plaintiff, under a statement of claim in which the only specific negligence alleged was the failure to provide safe and proper appliances, could not be allowed to recover, either upon the ground that the walls were negligently constructed of improper materials, or upon the ground that defendants had negligently allowed the plaintiff’s employers to prematurely place the roof trusses upon the walls before the walls were dry: Griffiths v. Railroad Co., 25 N. Y. Supp. 812; Stewart v. DeNoon, 220 Pa. 154; Kough v. Penna. Railroad Co., 222 Pa. 175.
    There was no evidence to justify the submission to the jury of the question whether the defendant had negligently allowed the roof trusses to be placed on the walls before the walls were dry.
    If the question whether the wall was erected by independent subcontractors was material, the court, under the evidence, should have charged the jury that the wall was erected by an independent subcontractor, within the definition given by the court to the jury: Miller v. Merritt, 211 Pa. 127.
    There was no evidence sufficient to justify the submission to the jury of the question whether the walls were negligently constructed by anyone.

      Charles F. Warwick, with him J. Edgar Butler and John J. McDevitt, Jr., for appellee. —
    The term “ appliances ” embraces not only machinery, premises and all the implements of every kind used in and about the business, but also the persons employed to operate them: 3 Wood on Railways, sec. 381; Johnson v. Ashland Water Company, 71 Wisconsin, 553 (37 N. W. Repr. 823); Honaker v. Board of Education, 24 S. E. Repr. 544; Bodie v. Ry. Co., 61 S. C. 468 (39 S. E. Repr. 715); Donahue v. R. R. Co., 32 S. C. 299 (11 S. E. Repr. 95).
    It is settled that although the plaintiff’s declaration may be general if it sufficiently refers to the accident, that the plaintiff was injured and the damage sustained, it is sufficient, although a more specific statement might have been required before trial: Quigley v. Penna. R. R. Co., 210 Pa. 162; Kirchner v. Smith, 207 Pa. 431; Kroegher v. McConway & Torley Co., 149 Pa. 444; Baylor v. Stevens, 16 Pa. Superior Ct. 365; Trainor v. R. R. Co., 137 Pa. 148.
    April 12, 1909:
    In the case now under discussion there has really been no variance; the case was tried entirely upon the theory that the pilaster was defective; whether in construction or premature use.
    The case having been tried on this assumption, it should be considered on review as if the proofs had been made: Shannon v. McHenry, 219 Pa. 267; Stoner v. Erisman, 206 Pa. 600; Schmelzer v. Traction Co., 218 Pa. 29; Jones v. Freyer, 3 W. N. C. 365; Bolton v. King, 105 Pa. 78; Patton v. Railway Co., 96 Pa. 169; Quick v. Miller, 103 Pa. 67.
    That courts have frequently suggested possible theories developed by the evidence is a well-known fact. In a very recent case, in fact, the theory was entirely founded upon the suggestion of the trial judge: Morgan v. Electric Co., 213 Pa. 151; Thomas v. Railroad Co., 194 Pa. 511.
   Opinion by

Mr. Justice Stewart,

Plaintiff was a workman employed by a subcontractor who had engaged to erect and put in place the iron trusses and beams required by the specifications for the roof of a public school building which the defendant company had contracted to build. When the last of the trusses was about to be placed in position on the walls, something gave way, and the truss fell to the ground below, carrying with it the plaintiff who in the mishap was severely injured. He brought this action for damages against the defendant company, the general contractor, charging it in the statement filed with negligence in having failed to provide sufficient and proper appliances, and permitting certain supports for the roof of the building to be violently thrown to the ground. On plaintiff’s part the case was tried on the theory that the proximate cause of the plaintiff’s injuries was the negligent and defective construction of that part of the wall known as the pilaster, the angular projection of the wall on the top of which the iron truss was intended to rest for support. We need waste no time or effort in considering whether a pilaster is an appliance. Clearly it is not, if we have regard to the etymology of the term “ appliance,” and there is nothing in the case to show that the word is used in common speech or technically to denote a pilaster. However this may be, the pilaster was the thing which the word “ appliance,” as used in the statement, was meant to denote. The word was inapt almost to the extent of being a misnomer; but allowing it the sense in which it was used in the statement involved no change in the cause of action, and consequently variance could not be asserted. If the defendant did not so understand it when the case was called for trial, and was not prepared for the issue as thus made up, a motion for continuance would have been in order, and the evidence offered by plaintiff should have been objected to as not supporting the averment. Defendant adopted neither course, but allowed the trial to proceed as though by mutual understanding pilaster was included within the meaning .of appliance. Under these circumstances we think a refusal to give binding instructions for the defendant on the ground that the allegata and probata did not agree, was entirely proper.

It was developed as part of plaintiff’s case that had the pilaster been constructed in conformity with the architect’s specifications, it would have been more than adequate for the support of the truss. Defendant’s evidence was to like effect. The whole effort on part of the plaintiff was to show that the pilaster had not been so constructed, and that the accident resulted in consequence of this want of conformity. Was the evidence on this point sufficient to carry the case to the jury? Briefly it was this. Two witnesses called by plaintiff testified that after the collapse they had examined the mortar in which the bricks and stones had been laid and described it as “dry and crumbly,” both said it was in bad condition; one, that “it would crumble out like sand, was spongy;” the other, that “it was dry and crumbly, and in bad condition.” This was followed by the testimony of an expert witness, called by plaintiff, who testified that had the mortar been made of the materials called for by the specifications, and mixed in the proportions required, when examined “it would have been hard, and small particles would have been very-hard to break, and sharp cutting edges on it.” However unconvincing this testimony may have been to the mind of the court, and especially in view of the positive testimony adduced by the defendant, to the effect that the specifications had been strictly observed, it was for the jury to decide what weight they would give it. The court could not say, as matter of law, that if credited it would not support an inference that the wall had been defectively constructed. And yet, the trial judge disposed of the question in his charge in this way: “I do not leave it as a question of fact for you to say whether that mortar was improperly mixed or of bad materials, for there is no evidence on that.” This was error. Had the fact been as here stated by the learned judge binding instructions to find for the defendant should have followed, since the plaintiff’s whole contention was that the truss fell because the wall was unequal to the burden, and that this insufficiency resulted from the use of defective mortar in the construction. Instead of directing a verdict for the defendant, the judge introduced a theory of his own as to the cause of the accident, wholly different from any that had been suggested by either of the parties, and submitted it to the jury to be passed upon by them, as the governing question in the case, as will appear from the following extract from the charge: “The arguments of counsel through the case seem to have been, and that may be your view, that it was either the fault of the stone masons or the iron men. It is for you to say, but there is in my view — I at any rate call your attention to the third view I have of the case which will be for your determination, and that is that the stone masons or stone setters built their wall according to the specifications, according to the contract, but that the trusses were placed upon the wall when the mortar was not dry, and that as a result of that the pilaster buckled and bulged perhaps, or at any rate part of it gave way and slid off.” At the conclusion of the charge counsel for defendant having excepted to the submission of the question whether the defendant had been careful to see that the pilaster was strong enough to bear the weight of the truss, the court thereupon gave further instructions as follows: “On that point counsel having called my attention to it, the real question is whether the mortar was dry when the trusses were put on the pilaster, and if not, who was responsible for that.” The theory here presented is that the wall fell under its burden because it was unseasoned, the mortar not having had time to dry. It may be that this theory was the correct one; but where was the evidence in the case to support it? Not a single witness testified that the wall was unseasoned, or that the mortar was not dry. But two witnesses testified to the condition of the mortar, and the only inference that can possibly be derived from their testimony is that the mortar was dry, but without binding strength because not properly prepared. Any finding by the jury on the question submitted would necessarily be pure and simple speculation. The instructions of the court with regard to this feature of the case are assigned for error in the fourth, fifth and sixth specifications, and these assignments are sustained.

The jury having found for plaintiff, a motion for judgment non obstante followed. One of the reasons urged in support of the motion was that the wall had been built by an independent subcontractor, that no liability, therefore, attached to the defendant. This point assumes as a fact what was found not to be a fact by the jury. The court was asked to instruct the jury that the wall had been built by an independent subcontractor. This instruction was refused very properly, because the evidence relied upon to establish such fact was wholly in parol, and this circumstance drew the question to the jury necessarily, notwithstanding the fact that the testimony in regard to it was uncontradicted. The court could go no further in this direction than to say to the jury — and this should have been said — that if they believed the testimony of plaintiff's witnesses then the party who had built the walls was an independent subcontractor within the meaning of that term as defined by the court. The credibility of the witnesses was for the jury.

Upon the review we have made of the case, it sufficiently appears without specifying further, that the case required a submission; not, however, for a choice between conflicting theories, but for a determination of the facts in issue under the evidence in the case.

The judgment is reversed, and a venire de novo awarded.


author: Mr. Justice Brown,

text:
    Guemple, Appellant, v. Philadelphia Rapid Transit Company.
    April 12, 1909:

      Appeals — Assignments of error — Exception—Evidence.
    1. An assignment of error to the action of the trial court in directing a verdict for defendant will not be considered by the appellate court where the record shows that no exception was taken to the instruction at the trial.
    2. Where the trial court directs a verdict for the defendant without objection or exception by defendant an assignment of error by the plaintiff to the disallowance of testimony cannot be considered.
    Argued Jan. 20, 1909.
    Appeal, No. 292, Jan. T., 1908, by Mary Guemple, from judgment of C. P. No. 5, Phila. Co., Sept. T., 1902, No. 3,511, on verdict for defendant in case of Mary Guemple, Administratrix of William Guemple, deceased, v. Philadelphia Rapid Transit Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    Verdict and judgment for defendant.

      Errors assigned appear by the opinion of the Supreme Court.

      Henry J. Scott, with him Walter Stradling, for appellant.

      Thomas Learning, with him Sidney Young, for appellee.
   Opinion by

Mr. Justice Brown,

On this appeal from the judgment on a verdict for the defendant we have two assignments of error. The first complains of the court’s direction of the verdict in its favor. The affirmative answer to the point requesting such direction was not éxcepted to, and we must sustain the contention of counsel for appellee that the first assignment cannot be considered: Curtis v. Winston, 186 Pa. 492; Sibley v. Robertson, 212 Pa. 24.

The second assignment is to the disallowance of the following- question asked a witness called by the plaintiff: “ Q. When the motorman struck.the wagon or the time he struck it or immediately thereafter, what, if anything, did he say? ” When this question was objected to the purpose of the offer was not stated, and the answer of the witness might have shown that what the motorman said was utterly irrelevant to the issue; but, aside from this, as there was no exception taken to the court’s direction of a verdict for the defendant on the record as it stood when plaintiff closed her case, the judgment on that verdict cannot be disturbed on her second assignment of error. What the motorman may have said was no longer in the case after a verdict was directed without objection or exception by the appellant.

The two assignments are dismissed and the judgment is affirmed.


author: Me. Justice Fell,

text:
    Griesemer v. Suburban Electric Company, Appellant.

      Negligence — Electric light company — Contributory negligence.

    1. Where the defendant in an accident case presents in the same point for charge the question of the defendant’s negligence as the proximate cause of the injury, and also the question of plaintiff’s contributory negligence, and the proofs are such that the latter question must be submitted to the jury, there is no error in the trial judge in refusing the point.
    2. Where a man employed by a street railway company to erect trolley poles works on a public highway thirty feet under an electric light company’s .wires whose insulation had worn off according to the plaintiff’s proofs, and .one of the trolley poles is accidentally brought in contact with the wire, and the workman is called upon to act in an emergency suddenly arising, and without time for reflection, and receives an electric shock, he cannot be charged as a matter of law with contributory negligence in not protecting himself by the use of rubber gloves with which he had been provided by his employer. ■.
    Argued Jan. 20, 1909.
    Appeal, No. 198, Jan. T., 1908, by defendant, from judgment of C. P. No. 2, Phila. Co., Jan. T., 1908, No. 198, on verdict for plaintiff in case of Sophia Griesemer v. Suburban Electric Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband. Before Wiltbank, J.
    The facts are stated in the opinion of the Supreme Court.
    Defendant presented these points:
    2. The uncontradicted evidence is that the plaintiff’s husband had been provided with rubber gloves for the purpose of protecting himself against injury from an electric shock, and that he failed to protect himself at the time of the accident by the use of these rubber gloves;, his own negligence, therefore, contributed to the accident, and your verdict must be for the defendant. Answer: To which I answer that if you find that the use of these rubber gloves would have been protective under the circumstances, the point should be affirmed. [2]
    3. The proximate cause of the death of the plaintiff’s husband was his use of an unusual and unsafe method of erecting the trolley pole, and his failure to observe precautions that would'have protected him from injury. The defendant was not bound to anticipate that its wires might be disturbed in this manner, and your verdict must be for the defendant. Answer: In answer to points I am under the law obliged merely to affirm or deny them without more, and as I cannot affirm this, I decline to charge it. [3]
    Verdict and judgment for plaintiff for $5,000. Defendant appealed.

      Errors assigned were (1) in refusing defendant’s motion for judgment non obstante veredicto; (2, 3) above instructions, quoting them.

      R. Stuart Smith, with him Charles E. Morgan, for appellant. —
    The burden is on the plaintiff to prove some negligent act which was the proximate cause of the injury. The proximate cause of the death of the plaintiff’s husband was a combination of circumstances so unusual as to be beyond the contemplation of -the defendant, irrespective of the condition of its wires; the use of the sidewalk for a purpose not to be anticipated, the erection of the pole in an improper and unusual manner, and the failure of the plaintiff’s husband to use ordinary and available means to protect himself from injury: Douglass v. Mitchell’s Executor, 35 Pa. 440; Railway Co. v. Henrice, 92 Pa. 431; Ford v. Anderson, 139 Pa. 261; Mensch v. Penna. R. R. Co., 150 Pa. 598; Brunner v. Blaisdell, 170 Pa. 25; Wood v. Diamond Electric Co., 185 Pa. 529; Elliott v. Allegheny County Light Co., 204 Pa. 568.
    The negligence of the plaintiff’s husband in failing to protect himself by the use of rubber gloves provided for that purpose contributed to his death, and for that reason the plaintiff cannot recover: Hart v. Allegheny County Light Co., 201 Pa. 234; Moyer v. Metropolitan Electric Co., 14 Pa. Dist. Rep. 798; Haertel v. Penna. Light & Power Co., 219 Pa. 640; Lonzer v. Lehigh Valley Railroad Co., 196 Pa. 610; Dinan v. Supreme Council, 210 Pa. 456; Keiser v. Lehigh Valley Railroad Co., 212 Pa. 409.

      J. Edgar Butler, with him Charles F. Warwick, for appellee. —
    A duty arose from the circumstance of defendant maintaining on a public street, a trap, consisting of a wire covered with rotten insulation, apparently safe, but in fact deadly, without taking the reasonable precaution of keeping the insulation in good repair, particularly as deceased had no reason to anticipate either that he would be in contact with said wires or that such contact would be harmful: Varnau v. Tel. Co., 5 Lane. Law Rev. 97; Dillon v. Light Co., 179 Pa. 482; Devlin v. Light Co., 192 Pa. 188; Morgan v. Electric Co., 213 Pa. 151; Electric Light & Power Co. v. Lefevre, 55 S. W. Repr. 396; Fitzgerald v. Edison Electric Illuminating Co., 200 Pa. 540.

      April 12, 1909:
    The second assignment of error required the court to assume as true testimony which was contradicted. Gloves would not have protected deceased because he embraced the pole and rode on it: Reel v. Elder, 62 Pa. 308; Illingsworth v. Light Co., 161 Mass. 583 (37 N. E. Repr. 778); Thomas v. Wheeling Electrical Co. (W. Va.), 8 Am. Elect. Cases, 528.
    The question of notice to defendant of the defective insulation is not before this court. No point requesting the trial judge to charge on said question was presented to the trial judge unless it was the fourth point, the answer to which is not excepted to nor assigned for error. Defendant was bound to keep its insulation perfect, which includes a reasonable inspection. No reasonable inspection would permit an insulation to rot off the wire. Rags hanging from a heavily sagging wire were sufficient notice to one knowing the deadly nature of the wire: Baker v. R. R. Co., 95 Pa. 211; Stoltenberg v. R. R. Co., 165 Pa. 377.
   Opinion by

Me. Justice Fell,

The plaintiff’s husband was the foreman of a gang of men employed by a street railway company to erect iron poles to support trolley wires. At the time of the accident that caused his death he was superintending the erection of poles at the side of a street directly under the electric light wires of the defendant, The Suburban Electric Company, which were thirty feet above the sidewalk. In erecting a pole a rope sling was placed near its middle and it was raised by means of a block and tackle attached to a tower wagon, and the lower end, which was kept near the ground, was guided to the hole in which it was to be placed. The sling had been put too near the bottom of a pole and, when the pole was raised, it did not have the right inclination, the lower end being too high. The deceased and one of his assistants put their arms around this end to lower it by their own weight. This brought the top of the pole in contact with the defendant’s wires and it became charged with the electric current. There was testimony on behalf of the plaintiff that tended to show that the insulation of the wire had became defective by long continued exposure and use, and that the defects were so apparent as to charge the defendant with constructive notice of them. And there was testimony from which the jury might have found that the death of the plaintiff’s husband was caused by his negligence in not insulating the top of the pole by fastening around it a nonconducting material and in not protecting himself by the use of rubber gloves, with which he was provided by his employer and which he had taken off a few minutes before the accident.

Whether the defendant was entitled to binding instructions in its favor because of the failure of proof of any negligence on its part that was the proximate cause of the accident, is a question not raised by the record of the trial. The only instruction asked for on this subject was by a point for charge, which involved also the question of contributory negligence. It could not have been affirmed, nor could judgment have been entered non obstante veredicto without passing on the latter question. This could not have been done in the absence of proofs so certain and direct that the court could have said that the facts alleged were established beyond doubt. The plaintiff’s case as made out did not show contributory negligence. The defendant’s proofs as to it depended on the credibility of its witnesses and the conclusions to be drawn from their testimony. If the deceased had been working with or among highly charged electric wires without the use of gloves, negligence could have been imputed to him. But he was working'on a public highway thirty feet under the wires with which the pole was accidently brought in contact, and he was called upon to act in an emergency suddenly arising, without time for reflection.

The judgment is affirmed.


text:
    Sinnott’s Estate.

      Executors and administrators — Commissions—Unconverted assets.

    Where none of the inventoried assets of an estate have been converted, and the whole estate has been awarded back to the executors for further accounting, a commission of five per cent on the unconverted assets cannot be allowed.
    Argued Feb. 1, 1909.
    Appeal, No. 213, Jan. T., 1908, by Clinton R. Sinnott, from decree of O. C. Montgomery Co., Oct. T., 1907, No. 6, dismissing exceptions to adjudication in Estate of Joseph F. Sinnott, deceased.
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Reversed.
    Exceptions to adjudication.
    Solley, P. J., filed the following adjudication:
    Joseph F. Sinnott, a resident of the township of Lower Merion, died on or about June 20, 1906, testate, leaving surviving his widow, the said Annie E. Sinnott, and issue, several children.
    His last will and testament, dated November 10,1905, with codicil dated May 18, 1906, was duly admitted to probate June 25, 1906, and letters testamentary granted to the accountants, who with Samuel Castner, Jr., were appointed executors, the latter renouncing the trust.
    The testator provided for the payment of his debts and funeral expenses, and expressly directed that should any balance be due on the principal of his bond with the accompanying mortgage secured upon premises 1816 S. Rittenhouse square, Philadelphia, belonging to his wife, it should be forthwith paid and satisfied as a debt of his estate. He devised and bequeathed to his wife one full equal third part of his personal estate absolutely, and* one full equal third part of the rents and profits of his real estate for and during the term of her natural life, said devise and bequest to be in full of any dower or share which his wife might be entitled to in his estate under the intestate laws of the state of Pennsylvania. He directed that his wife should be permitted to occupy, rent free, his residence known as Rathalla, situate at Rosemont, for the term of her life, should she so desire, and if she should continue to occupy the same, then during the first two years of such occupancy he directed the executors to pay her $25,000 a year during these two years for her support, and the support of any of his family residing with her at said home. Upon his wife ceasing to reside at or not wishing to occupy said home, he directed the same to be sold. He also bequeathed to his wife so long as she shall occupy said home all furniture, paintings, books, silver, household goods, etc., contained therein, with the offices, stables and equipments of the same, and the live stock of every description. In the event of the sale of said home, or his wife ceasing to live there, he empowers her to make such distribution of the contents, furniture and equipment, among all his children as she may deem fit, keeping for herself such portion as she may desire to furnish a home for herself and the unmarriéd children. Or, she may sell the whole of said furniture and equipment, if she deems best, and the proceeds, if not used by her for the purposes of furniture and equipment for a new home, shall become a portion of the residuary estate. In the event of the death of his wife before such distribution is made, the same power for distribution or sale of said furniture and equipment is given to Mary E. Sinnott, a daughter. In the event that said home is not sold until after the death of the wife and daughter, then the same power for distribution or sale is conferred upon John Sinnott, a son, and Annie L. Devereux, a daughter.
    In the third and fourth items, legacies are given to a number of persons, without any deduction for collateral inheritance tax, United States legacy, or other tax whatsoever (which shall be borne and paid by the residuary estate), but the testator directs that none of these bequests, excepting the one to his brother, Rev. James P. Sinnott, in trust for the support of Agnes E. Sinnott, and the ones to his daughter, Mary E, Sinnott, and John Sinnott, in trust for Emily Harmer, and that to Martha McGahan, and those to his servants, shall be payable, except at the discretion of the executors, for a period of five years after his decease, and that such legacies shall bear interest from his decease at the rate of four per cent per annum. All annuities shall be payable from the time of his decease.
    In the fifth item the testator gives a number of money legacies to certain charities, free of collateral inheritance or other taxes, which he directs shall be borne by the estate, which said bequests shall not be paid until after the expiration of two years from the date of his death without interest, unless ,in the judgment of the executors they can conveniently be paid before that time. He provides that if at the time fixed for the payment of these legacies the market value of the assets of his estate after the payment of debts shall not exceed $1,000,000, then all the bequests to said charities shall be reduced one-quarter in amount, and if the value of the estate after payment of debts shall not exceed $500,000, then said bequests shall be reduced one-half in amount.
    The rest, residue and remainder of his property and estate of which he shall die seized and possessed, he gives, devises and bequeaths to his executors and the survivor of them, in trust, to invest the personal estate, to rent, manage, sell, assign, transfer, mortgage or convey any or all of the real estate as may be necessary for the purposes of the trust, and to invest the proceeds derived therefrom, and to collect the rents, issues, dividends, etc., and after deducting necessary expenses of the trust, and paying the sum of $25,000 each year for two years to his wife should she occupy Rathalla as before provided, to pay, during the lifetime of his wife, one-sixth of the net income to his daughter, Mary E. Sinnott; one-sixth part to his daughter, Annie L. Devereux; one-sixth part to his son, Clinton R. Sinnott; one-sixth part to his son, John Sinnott. Another one-sixth part is directed to be divided into five parts, and during the lifetime of the wife to pay $3,000 annually to his son, James Frederick Sinnott, and the balance to Annie E. Sinnott, wife of testator. And out of the remaining four parts of said one-sixth part to pay one of said parts to the wife of said James Frederick, and the other three parts in equal shares to the children of said James. As to the remaining sixth part of said net income to pay out of the same $3,000 annually to Clarence C. Sinnott, a son, and the balance to the wife' of the testator.
    The testator further provides for the payment of the income of the trust after the decease of his wife, but it is unnecessary at this time to refer specifically to the various provisions concerning the same. •
    At the time of his death and for many years prior, the testator was engaged in distilling liquor, and was the owner of what are known as the Gibsonton Mills or distilling property or plant, situate on the Monongahela river, at Gibsonton, in the state of Pennsylvania. He was solicitous for the preservation of this very valuable property and asset, and he'accordingly provided in the eighth paragraph of his will, and expressed the desire, that a corporation should be formed for the continuance of the business; and he directed that said property and plant should be transferred to said company, either sold or leased. He further ■ expressed the desire that the good will of the business- and the property should be incorporated under the laws of such state as the executors and trustees deem most convenient and advisable. He authorizes and empowers the executors to accept in payment for such property and estate contributed and sold to such corporation the stock or bonds of said corporation, they, however, not to accept less than a majority of the stock or bonds issued as a first lien upon the franchise and property. Should the corporation decline to buy the merchandise and fixtures of the business, the executors are directed to sell the same in open market for cash. He outlines the entire scheme very completely. He believes a continuance of the business for a period of five years from the time of his death without forming a corporation might enhance the estate, and he recommends the executors and trustees so to do. In case they carry on the business he strongly recommends the employment of his son, John Sinnott, as general manager at a salary not less than $15,000 per annum. The whole plan is fully elaborated in this item of the will, and it is unnecessary to give further details.

      In the same item he refers to his ownership of a large amount of the capital stock of the Philadelphia and .Reading Railway Company, which he urges on his executors to keep as an investment after his death, because of his great confidence in the probable increased prosperity of the company.
    In the codicil a change is made in that part of the seventh paragraph of the will which relates to the distribution of one of the sixth parts of the net income of the residuary estate where he divided it into five parts and directed that out of one of said five parts $3,000 per annum should be paid to his son, James,: and the remaining portion to the wife of the testator, and to the wife and children of James. This provision is revoked, and in lieu thereof he directs that from said one-sixth part, of said income $1,200 shall be paid annually to his- daughter-in-law, Edith, wife of James, in-equal monthly payments so long as she remains the wife or widow of said James, and the remainder of said six parts is directed to be divided into five equal parts. Out of one of said parts $3,000 is to be paid annually to James, and the remainder of said one-fifth part to testator’s wife during life. Anothel fifth part is to be paid to said testator’s wife during life, and the other three-fifths part paid to the children of said James in equal shares.
    At the time of his death the personal estate of the decedent consisted of cash, bonds, notes and corporate stocks, and the assets of his business at Gibsonton Mills, and at‘the warehouses in Philadelphia, New York and Boston. ■ The inventory value of his personal assets was $2,351,830.20. The largest and most valuable asset was the latter.
    The cash on hand belonging to the business was $ 61,334 98
    Bills receivable.......................:....... 7,575 68
    Accounts receivable and considered good...... 212,103 30
    Miscellaneous accounts receivable............ - 9,233 '94
    Merchandise......■.......................... 1,089,632 72
    Machinery and fixtures....................... : 114,860 64
    The death of the testator caused a closing-down of his'vast business because of the strict regulation of the United States government. The distillery was closed, as well as the rectifying establishment at 242 S. Front street, in the city of Philadelphia. In order that the business might be resumed, it was necessary for the executors to obtain license from the court of Philadelphia, and from the court of Westmoreland county. And it also became absolutely necessary for the executors to furnish large bonds to the United States government. They were required to give bonds aggregating in amount about $2,509,000, and, as we understand, these bonds are required to be annually renewed. There were about 40,000 barrels of whisky in the bonded warehouses at Gibson-ton, and 30,000 barrels more belonging to customers. The decedent had established agencies in the cities of New York and Boston. Expert accountants were retained to examine the books and accounts of the decedent’s business so that the executors might be properly informed of the situation.
    They retained Mr. John Sinnott as manager, as the testator expressly recommended, at a salary of $15,000 per year, and they placed a Mr. Daly in charge of the business at Gibsonton.
    The importance of the business, the great responsibility resting upon the executors, their positive duty to manage it for the best interests of the estate and those interested, called for the best business judgment, and the executors very properly resolved themselves into a board of directors, so to speak, held regular meetings, kept full minutes of every proceeding and acted after full consultation and due deliberation. There were frequent consultations with the expert accountants, the manager, and those in charge of the business at Gibsonton. The manager was required to furnish accounts of the business each month; a full detailed statement every three months. There were daily consultations with the manager and the executors’ counsel. Many difficult questions arose day after day requiring not only work and labor to solve, but also the application of the very best business judgment. Under the laws of the state of Massachusetts, in order that the agency business in the city of Boston might continue, ancillary letters on the estate were required. This involved additional labor and responsibility. Another matter of grave concern arose out of the failure of the Real Estate Trust Company of Philadelphia, the surety upon the bonds given by the executors to the United States. Immediately after the public had been informed of the failure of the company, United States officials notified the executors to file new bonds. This required the executors to find additional surety and to act without delay, because failure to comply with the demand of the government would have resulted in the closing down of the entire distillery business.
    We have gone somewhat into detail at this point of the labor and responsibility of the executors of this estate, because one of the children has objected to the compensation claimed by the executors in the account before us, and which will be disposed of later on.
    The account of the executors was filed August 26, 1907. They have charged themselves with the amount of the inventory and appraisement, and certain other items of principal not included therein. They have taken credit for sundry disbursements, and show a balance of principal amounting to $2,200,346. They have in hand, however, unconverted assets consisting of bonds, notes and stocks all itemized in the account; value of the distillery business, and the appraised value of the household effects, etc., at Rathalla, amounting in the aggregate to $2,229,730.30. But $10,000 has been credited in distribution, the cash being taken from income, and there is due accountants $39,384.30. There has been paid to Margurite A. Donnelly and James A. Donnelly each, $5,000, the full amount of their legacies, and this $10,000 represents the distribution account before referred to.
    There is attached to the account a summary of the management of the decedent’s business for the year subsequent to his death, as conducted by the manager, John Sinnott, showing a profit of $228,255.23. This amount is not actual cash, but it is the net result of the operation of the business, as shown on the books, and is embraced in the assets of the business.
    Income to the amount of $27,734 is accounted for. Where an objection is made to the compensation of accountants credited in the account, we have never denied a hearing; indeed we think the court whenever appealed to should investigate the compensation claimed by the accountant, and determine what is just and fair.
    In this case the executors filed an answer, and at the hearing they authorized counsel to state that they courted the fullest investigation. We consented to hear and pass upon the whole matter.
    In Lilly’s Estate, 181 Pa. 478, it is said that, “The labor and responsibility involved in the proper administration of the estate and the care and skill shown by the executors in the performance of the duties connected with the trust, must be taken into consideration in passing upon their claim, and so must the direction of the testator in regard to commissions for their services.”
    It was also said, “There can be no doubt that in a very large majority of estates of decedents there has been an allowance to the executor or administrator of a commission of five per cent.”
    In the opinion of the court, the very early case of Pusey v. Clemson, 9 S. & E. 204, was referred to and the language of Chief Justice Tilghman quoted. He said, “It is very desirable both for the sake of the executors and the family of the testator that there should be some standard to which both may look on the subject of commissions. And in the cases which generally occur, it appears to me, after considerable research, that the common opinion and understanding of this country is fixed upon five per cent as a reasonable allowance. But to this rule there must be exceptions. There are estates, where the total amount is small, and that too collected in driblets. In such, five per cent would be sufficient. On the contrary, there are others where the total being very large, and' made up of sums collected and paid away in large masses, five per cent would be too much. It must be left to the courts to ascertain those cases in which the general rulé should be departed from.” And the court declared that this quotation states, as fairly as any that can be made, the present state of the law in relation to the allowance of commissions to executors.

      But it is said in Wistar’s Estate, 192 Pa. 289, that there is no set rule as to percentage on the estate in cases of the exceptional nature of the accountant’s labor. The rule is fair compensation for the amount and character of the labor. The responsibility involved in large estates is also an element to be compensated, though not a controlling one.
    Or, as it is more elaborately stated in Harrison’s Estate, 217 Pa. 207, the rule as to commissions in all cases is compensation for the responsibility incurred and the services and labor performed. “In arriving at the compensation to which a trustee in any capacity is entitled,” says the court, “ it is necessary to consider the amount of the estate, the labor performed, and the responsibility imposed.”
    ■ These are elements which enter into and determine not only the amount of the compensation, but the right to compensation at all.
    This was practically an affirmance of the rule laid down by Chief Justice Gibson in Harland’s Account, 5 Rawle, 323. So that there is no rate of percentage fixed by rule as compensation for an executor, administrator, guardian or trustee. It is usual to allow a percentage of the fund, but that is not the legal way to ascertain what commission a trustee is entitled to for the responsibility incurred and the services performed in the execution of his trust. See also Young’s Estate, 204 Pa. 32; Moore’s Estate (No. 2), 211 Pa. 343.
    A very complete brief of the cases in Pennsylvania on the subject of the commissions or compensation of trustees is that of counsel for appellee in Wistar’s Estate, 192 Pa. 289.
    In addition to the facts already found concerning the responsibility of the accountants, and the vast amount of labor performed by them, all of which were unusual and extraordinary, it was also made to appear that in conducting the vast business interests of the decedent since his death, imposed upon them by the testator, a very large amount of money has passed through their hands, and as the result of their management of the business, a net profit to the estate of $228,255.23 is shown. It is true that the 10,000 shares of stock of the Philadelphia and Reading Railway Company have not been converted; neither has the distilling business, etc. These two items constitute the greater part of the estate remaining in the hands of the accountants unconverted. But the mere fact that this property has not been converted into money or that the corporation referred to in the will has not been created ought not to deprive the executors of their proper compensation for the performance of their duties.
    It was the express desire of the testator that the stock should not be disposed of until such time as in the judgment of the executors it would be for the benefit of his estate, as he had great faith in the future value of the company, and also great faith in the vast importance to his wife and children of the immense distillery business.
    What is a fair and reasonable compensation for the executors? That and that only is the question, and the answer depends upon the size of the estate; the responsibility incurred by them; and the work and labor done. The exceptant realized that the executors were entitled to at least three per cent on $2,000,000 at this time. We think they are entitled to more.
    The testator himself on April 18, 1900, entered into an agreement with the Fidelity Trust Company, in which he agreed to appoint the company one of the executors and trustees under his will, and he provided that they should have a commission of one and one-half per centum on the principal of his estate if it inventoried over $1,000,000, and a commission of two per centum on the income; and that they should have for acting as trustee two per centum on the income, and an allowance of one-half of one per cent on reinvestments. The compensation of the company was graduated if the inventory was over $500,000, and less than $1,000,000 or if it was $100,000 and less than $500,000.
    The agreement also provided that the company’s compensation should be outside of the compensation of other executors and trustees which the decedent was to fix. Now there can be no question as to the compensation of the fidelity company as one of the executors. They are entitled to one and one-half per centum on the principal and two per centum on the income. The other executors are as much entitled to a reasonable and fair compensation as the fidelity company, because they have had an equal responsibility and have performed their fair share of the labor in connection with the administration of the estate.
    The commission claimed is five per cent on $2,446,892.81, or $122,344.64.
    Under all the facts and circumstances, in. view of the responsibility imposed upon the accountants, and the labor which their duties required, we are of the opinion and so find that the compensation claimed is fair and reasonable and just. Another fact which should be taken into consideration, and which is entitled to weight, is that as trustee, these accountants will have a very great deal of responsibility and labor, and cannot, under the law, receive dual commissions, both as executors and trustees. What they now receive as executors upon the corpus of the estate must be for all time.
    In allowing the commission, it must be understood that no additional compensation will be allowed the accountants in the conversion of the assets of the estate now in their hands, unless it is made to appear to the satisfaction of the court, that by reason of some further responsibility they should be additionally compensated.
    We have now passed upon every matter, claims and compensation of accountants raised at the audit.
    The assets embraced in the trust account are awarded back to the executors for further accounting.

      Errors assigned were in dismissing exceptions to adjudication.

      N. H. Larzelere, with him M. Hampton Todd, for appellant.
    —If this court adheres to its rulings in a long line of cases, the decree of the lower court must be reversed: Harrison’s Est., 217 Pa. 207; Young’s Est., 204 Pa. 32; Whelen’s App., 70 Pa. 410; Oliver’s Est., 20 W. N. C. 318; Allen’s App., 125 Pa. 544; Montgomery’s App., 86 Pa. 230.

      Wm. Rudolph Smith, with him ‘Henry Pleasants, for appellees. —
    April 12, 1909:
    In arriving at the compensation to which a trustee in any capacity is entitled, it is necessary to consider the amount of the estate, the labor performed and the responsibility imposed: Lilly’s Est., 181 Pa. 478; Harrison’s Est., 217 Pa. 207; Wistar’s Est., 192 Pa. 289; Moore’s Est., 211 Pa. 338.
   Opinion by

Mr. Justice Stewart,

That the administration of this large estate, so far as it has been proceeded with, has been wisely and judiciously accomplished by the executors, is conceded. The principal effort however up to the time of accounting, has been to conserve, not convert, only because the testator in his will so advised. There is but a single exception to the adjudication in the court below, and that relates to the compensation allowed the executors. The compensation of the Fidelity Trust Company, one of the executors, was made the subject of contract in the lifetime of the testator, and with that we have no concern. The auditing judge allowed the executors a commission of five per cent on the total inventoried and appraised value of the estate, and a like percentage on some additional items omitted from the inventory. Their compensation, as thus determined, amounts to $122,344.64.

The basis on which compensation must be determined in” every case where it takes the form of a commission, is the amount of the estate administered upon and accounted for. With this amount ascertained, such per centum rate may be allowed thereon as in the opinion of the auditing judge will afford just and reasonable compensation to the accountants. We have frequently recognized the method as a convenient and entirely suitable way of determining compensation; but it can easily be misapplied, and made to give a seeming fairness to inequitable results. Ordinarily it is safe enotigh to adopt the total debit side of an account as the basis for the per centum assessment in these cases, for ordinarily such total represents the extent of the conversion that has taken place. But not always so. There are exceptional cases, and this is one of them. Here the executors have charged themselves with the entire inventoried estate at its appraised value, and have been allowed a commission of five per cent thereon, while the account shows that they have not converted a single item included in the inventory. If the estate, as inventoried, was to be distributed without conversion, that is to say, in specie, that would be an entirely different matter. Nothing of the kind, however, is intended. The order of adjudication expressly recommits these specific assets,, amounting at their appraised value to $2,351,830.20, into the hands of the accountants to be converted by them and thereafter accounted for. Until such conversion shall have been accomplished no compensation will have been earned as to these assets, and therefore none should be allowed. Here they have been allowed by way of anticipation as appears from the order recommitting the assets. That order directs that they be converted by the executors without further compensation. The inequity of such an adjudication is apparent. Suppose for some reason the place of these executors should become vacant — a contingency perhaps too remote to be seriously considered in this particular case, but a contingency which not unfrequently occurs in the estates of decedents — and the duty of converting these assets should fall upon their successors, where would the compensation of the successors come from? Would it not necessarily result that the estate would be taxed twice for the same service? We express no opinion as to what would have been proper compensation had the whole estate been administered upon and accounted for. It will be time enough to meet that question when the condition arises. It is enough to know that it has not yet been accounted for, and that the accountants have been allowed a compensation which’ exceeds in amount all that they have actually received, according to the account filed, arid for which they are liable by reason of their accounting. We have not overlooked the fact that the account does not include the income .derived' by the accountants from the unconverted assets, and that such incoirie is exhibited in'a separate statement filed. There can be no reason why it' should not be embraced in the account, made part of it. Only as it is thus accounted for can commissions be allowed thereon. The case calls for a restatement of the account along the lines we have indicated. Until this is done, it cannot be made to appear by percentage or otherwise what would be just compensation to the accountants. This is for the auditing court in the first instance. We have simply indicated the proper method of reaching the result.

The decree, so far as it embraces the compensation of the executors, is reversed; and the record is remitted with directions to proceed in the matter of the adjudication in accordance with the methods and principles we have here indicated.


text:
    Carr v. General Fire Extinguisher Company, Appellant.

      Negligence — Master and servant — Dangerous appliances — Delegation of duty.

    1. The absolute duty is upon an employer to see that his employees are supplied with reasonably safe instruments for the work they are given to do. He cannot relieve himself of responsibility by delegating this duty to another. When he delegates the duty hé must see to it at his peril that the duty is performed. Failure on the part of the representative or substitute because of disregard of instructions, is the failure of the principal.

      2. In an action by an employee against his employer to recover damages for personal injuries sustained while working on a defective ladder, it appeared that the defendant company, having its headquarters in one city, sent to another city several miles distant tools and appliances, including ladders, for the purpose of equipping a factory in the latter city. The superintendent of the defendant placed the appliances in the hands of the foreman in charge of the work, and gave him instructions in reference to it. Subsequently the foreman found that the ladders supplied by the company were not suitable for the work which the plaintiff had to do, so he procured another ladder of suitable length, but not belonging to the defendant, and furnished it to the plaintiff with instructions to use it. This was the defective ladder which caused the accident. It appeared that the foreman had instructions to draw upon the company’s storehouse in the other city for what supplies in the way of tools and appliances were necessary. Held, that the case was for the jury and that a verdict and judgment for plaintiff should be sustained.

      Argued Feb. 9, 1909.
    Appeal, No. 220, Jan. T., 1908, by defendant, from judgment of C. P. .Delaware Co., June T., 1906, No. 194, on verdict for plaintiff in case of Edward Carr v. General Fire Extinguisher Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Broomall, J.
    The facts are stated in the opinion of the Supreme Court.
    Defendant presented the following points:
    3. If the ladder which broke was procured by the foreman of the gang, while at the same time the defendant had furnished other ladders or had other ladders which could have been used by the workmen and were not so used, the plaintiff cannot recover. Answer: Refused. [1]
    4. Under the evidence in this case McMinn, the foreman, was not such an officer in the defendant company for whose act of negligence the company can be held responsible. Answer: That is a question for you as I have already indicated. It is for you to find what McMinn’s authority was. And I repeat once more, and for the last time, if McMinn was a mere foreman or boss, then he was not such a man as could render the defendant responsible in this case, but if he was a man possessed of the entire charge of this department of the defendant’s works or was invested with that power by the defendant when the defendant told him if he needed tools to go and get them at a particular place and his sin was that he did not get them at that particular place, being the sin of the master, why that question is for you. If you find that that is so, then the plaintiff is entitled to recover. [3]
    Verdict and judgment for plaintiff for 810,632.12. Defendant appealed.

      Errors assigned were (1, 2) above instructions, and (3) in refusing binding instructions for defendant.

      J. B. Hannum, for appellant. —
    Under the evidence and the law, McMinn was a foreman and fellow servant of the plaintiff, for whose negligence the company was not responsible: New York, etc., R. R. Co. v. Bell, 112 Pa. 400; Ross v. Walker, 139 Pa. 42; Prescott v. Engine Company, 176 Pa. 459; Casey v. Paving Co., 198 Pa. 348; Vant v. Roelofs, 217 Pa. 535; Hughes v. Leonard, 199 Pa. 123; Hartenstine v. Tel. & Tel. Co., 219 Pa. 95; Miller v. McKeesport Connecting R. R. Co., 205 Pa. 60; Keystone Bridge Co. v. Newberry, 96 Pa. 246.

      O. B. Dickinson, with him Jos. H. Hinkson, for appellee.—
    A servant’s duty is to perform the work ordered with the tool supplied. Where it was secured concerns him not in the least: Sharpley v. Wright, 205 Pa. 253.
    A master is liable to a servant for the act of one who is placed in entire charge of his business or a particular branch of it, and also for the act of one to whom he has delegated a duty of his own, which is a direct, personal and absolute obligation from which nothing but performance can relieve him: Green v. Washington Oil Co., 216 Pa. 35; Casey v. Paving Co., 198 Pa. 348; Ricks v. Flynn, 196 Pa. 263; Mullan v. Steamship Co., 78 Pa. 25; Penna. & N. Y. Canal & R. R. Co. v. Mason, 109 Pa. 296; Lewis v. Seifert, 116 Pa. 628; Ross v. Walker, 139 Pa. 42; Prescott v. Engine Co., 176 Pa. 459; Finnerty v. Burnham, 205 Pa. 305; Lininger v. Air Brake Co., 210 Pa. 62.
    Here are a few of the cases in which a master was held liable for injuries to servants caused by supplying defective tools in which the defect could have been discovered by inspection or test.
    Derrick was defective. The defect not apparent, but could have been discovered by inspection: Sharpley v. Wright, 205 Pa. 253.
    Derrick had parts decayed. Not readily apparent, but could have been discovered by inspection: Dyer v. Bridge Co., 198 Pa. 182.
    Chain was defective. Defect could have been discovered by an inspection: Newton v. Vulcan Iron Works, 199 Pa. 646.
    Scaffolding was defective. Its defect could have been discovered by test or inspection: Geist v. Rapp, 206 Pa. 411.
    Shafting was defective. Defect could have been discovered by test or inspection: Lininger v. Air Brake Co., 210 Pa. 62; Stine v. S. Morgan Smith Co., 219 Pa. 145.
    April 12, 1909:
    To convict a servant of contributory negligence in using a defective tool furnished by the master, the defect must be manifest: McKee v. Crucible Steel Co., 213 Pa. 333; Hickey v. Caldwell, 221 Pa. 545.
    Appellant does not undertake to deny that McMinn had authority to order where the men should work. It certainly was negligence to order appellee to work on a defective ladder sixty-five feet from the floor. That was not a safe place to work. If McMinn had this authority and exercised it negligently it is hard to see how appellant can contend he was not vice principal: Prescott v. Engine Co., 176 Pa. 459; Lininger v. Air Brake Co., 210 Pa. 62; Clegg v. Steel Casting Co., 34 Pa. Superior Ct. 63; Wessel v. Jones & Laughlin Steel Co., 28 Pa. Superior Ct. 332; Ryan v. Miller, 12 Daly 77; Lund v. Lumber Co., 41 Fed. Repr. 202; Leonard v. Kinnare, 174 Ill. 532 (51 N. E. Repr. 688); Kerr-Murray Mfg. Co. v. Hess, 98 Fed. Repr. 56; Brown v. Gilchrist, 80 Mich. 56 (45 N. W. Repr. 82).
    The master must see at his peril that his own obligations to his workmen are properly discharged: Ross v. Walker, 139 Pa. 42; Consolidated Ice Machine Co. v. Keifer, 134 Ill. 481 (25 N. E. Repr. 799); La Fortune v. Jolly, 167 Mass. 170 (45 N. E. Repr. 83); Chicago & N. W. Ry. Co. v. Bayfield, 37 Mich. 204; Mann v. Oriental Print Works, 11 R. I. 152; West Chicago Street Ry. Co. v. Dwyer, 162 Ill. 482 (44 N. E. Repr. 815).
   Opinion by

Mr. Justice Stewart,

The several assignments of error raise but a single question. The plaintiff,- an employee of the defendant company, was injured while engaged in his appointed work. He was standing upon a ladder at an elevation of some sixty feet; the ladder broke under his weight, with the result that he fell the entire distance to the floor beneath. It is needless to say that he was seriously injured. The proximate cause of the accident was the insufficiency of the ladder for the purpose for which it was being used.' It had been furnished plaintiff by McMinn, the defendant’s foreman, who had directed plaintiff to use it. Was McMinn in so doing discharging a delegated duty of the employer, or was he simply a fellow workman with the plaintiff? Upon the state of the evidence as presented this was a mixed question of law and fact. The facts having been found for us by the jury, the question of law is easily resolved. The contention of appellant is that, conceding the facts to be as the jury found, McMinn stood in no other relation to the plaintiff than that of fellow workman, and that the court below should have so held as matter of law. The facts are these: The defendant company is engaged in manufacturing and supplying an improved apparatus for the extinguishment of fires in buildings. Through its Philadelphia departments it had contracted to equip a factory in Chester, Pa., with this apparatus. The material for the work was prepared at the shops of the company, and shipped thence to Chester. Such tools and appliances as were regarded necessary for the erection of 'the apparatus, including ladders, were sent from the department at Philadelphia where the company kept a store of supplies of this character. McMinn was placed in charge as foreman of the job, and employed the plaintiff. The assistant superintendent or general foreman of the company went from Philadelphia to Chester the day the work there was commenced, taking with him two workmen. He testified that on that day he “ examined the work to see if it was up all right, and gave him (McMinn) directions how to put up other work he was a little bit stuck on.” This was on Thursday, and he was not there again until after the accident. On the following Saturday a shorter ladder than any of those supplied by the company was required for the particular work plaintiff was then engaged upon, and he so reported to McMinn. The latter found one of suitable length, not belonging to the defendant, however, on the factory premises, and furnished it to the plaintiff with instructions to use it. This was the defective ladder that caused the accident. We then have the fact that the supply .of tools and appliances sent by the defendant to its workmen at Chester was deficient to this extent, that it did not have a ladder of the length required for the work. That it was the duty of MeMinn to supply this deficiency is manifest; indeed, it was not disputed. There was no other representative of the company on the ground who had authority to supply anything; and his instructions were to draw upon the company’s storehouse at Philadelphia for what supplies in the way of tools and appliances were necessary. What matters it that the company had a supply of such instruments in its storehouse in Philadelphia? The case would not have been different in principle had the storehouse been a hundred miles away. It was not plaintiff’s duty to go to Philadelphia to get a ladder. He had not even that privilege. His duty was to report the want to the foreman MeMinn; it was for MeMinn to say whether the ladder asked for was needed, and if so, to supply it. Such were his instructions; and to this extent he stood as the representative of the company. It is argued that because he disregarded these instructions and procured this defective ladder elsewhere no responsibility attaches to the defendant in connection therewith; but this position is wholly untenable. An absolute duty was upon the defendant to see that its employees were supplied with reasonably safe instruments for the work they were given to do. It could not relieve itself of responsibility by delegating this duty to another. When an employer delegates the performance of an absolute duty, he must see to it at his peril that the duty is performed. Failure on the part of the representative or substitute because of disregard of instructions, is the failure of the principal. The case was properly disposed of in the court below.

Judgment affirmed.


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

      Negligence — Railroads—Crossing tracks — '-Conflicting statements of plaintiff’s witness.

      1. In an action against a railroad company for the death of plaintiff's husband killed on railroad .tracks at a crossing, where the plaintiff's case rests largely upon the testimony of the only person who saw the accident from beginning to end, the fact that such witness'makes contradictory and wholly irreconcilable statements, does not in itself make the case one for binding instructions for defendant. It is for the jury to decide what credit they will give the witness, and which of his statements, if either, they will accept.
    2. In passing upon a motion for nonsuit, where the evidence for the plaintiff is contradictory, it is the duty of the court to allow it the significance most favorable to plaintiff, since for all the court may know, that view may prevail with the jury.
    3. In an action to recover damages for the death of a person killed at a crossing which was not a public crossing, laid out or adopted by municipal authority, it appeared that the crossing was on the property of the defendant railroad company, and had been made by it for the convenience of passengers in passing between stations on opposite sides of the tracks. For many years it had been used by the general public as well, not only with the knowledge of the defendant company, but by its encouragement. The deceased was not a passenger. Held,, that it was proper for the court to charge that if the jury believed the evidence as to the crossing, the deceased was not a trespasser, and that the defendant owed him the same duty that it owed passengers using the crossing.

      Amendment — Practice, C. P. — Name of corporation — Railroad company.

    4. Where in an action of trespass the plaintiff's statement improperly describes the defendant railroad company as a corporation of the state of Pennsylvania, an amendment may be allowed so as to correctly describe it as á corporation of the state of Maryland. In such a case the defendant is in court, and the change brings no new party on the record.
    Argued Feb. 9, 1909.
    Appeal, No. 361, Jan. T., 1908, by defendant, from judgment of C. P. Delaware Co., June T., 1907, No. 277, on verdict for plaintiff in case of Annie L. Meitzner v. Baltimore & Ohio Railroad Company.
    Before Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband. Before Johnson, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $7,725. Defendant appealed.

      Errors assigned, were various instructions, including refusal of binding instructions for defendant.

      Kingsley Montgomery, for appellant. —
    The cases of Carroll v. Penna. R. R. Co., 12 W. N. C. 348; Myers v. Baltimore & Ohio R. R. Co., 150 Pa. 386, and the numerous cases in their wake, are authority for the general proposition that if it is physically impossible for an accident to have happened without negligence on the part of the person injured, such person is not entitled to recover, no matter what his testimony may be.
    A person who goes to the railroad station and on the platform, not for the purpose of any business, or to meet expected friends, or to see others depart, but for his own pleasure and convenience is there at his own risk or peril, and cannot recover damages for personal injuries received in consequence of a defective platform: Burbank v. Ill. Central R. R. Co., 11 L. R. A. 720; Redigan v. Boston & Maine R. R. Co., 155 Mass; 44 (28 N. E. Repr. 1133); Gillis v. Penna. R. R. Co., 59 Pa. 129; B. & O. R. R. Co. v. Schwindling, 101 Pa. 258; Heinlein v. R. R. Co., 147 Mass. 136 (16 N. E. Repr. 698); Penna. R. R. Co. v. Martin, 55 L. R. A. 361; Culp v. R. R. Co., 9 Kulp, 174.
    The plaintiff’s decedent was guilty of contributory negligence in not stopping, looking and listening before he went on the railroad: Kraus v. Penna. R. R. Co., 139 Pa. 272; Hovenden v. Penna. R. R. Co., 180 Pa. 244; Childs v. Penna. R. R. Co., 150 Pa. 73; Custer v. R. R. Co., 19 Pa. Superior Ct. 365.
    The plaintiff was permitted to amend her statement of claim under objection and exception of the defendant, and a plea to the statute of limitations. The amendment was changing the Baltimore & Ohio Railroad Company, a corporation of the state of Pennsylvania, to a corporation of the state of Maryland. The court erred in allowing the amendment: Brit-tin v. Shloss, 9 W. N. C. 510.
    April 12, 1909.

      John M. Broomall, for appellee. —
    In a case against a railroad company to recover damages for personal injuries or death at a grade crossing, where there is a disagreement among the witnesses as to whether a bell was rung, the question whether the failure to ring a bell is negligence, is a question for the jury to determine from all the circumstances in the case: Crane v. Penna. R. R. Co., 218 Pa. 560; Laib v. Railroad Co., 180 Pa. 503; Child v. Railroad Co., 150 Pa. 73; Holt v. Penna. R. R. Co., 206 Pa. 356; Bailey v. Railroad Co., 220 Pa. 516.
    The testimony of a witness, who being near a crossing, was expressly listening for the train warnings, and heard none is of a higher grade than mere negative testimony of other witnesses, and is sufficient to require the submission of the evidence to the jury: Longenecker v. Railroad Co., 105 Pa. 328; Quigley v. D. & H. Canal Co., 142 Pa. 388.
    A mere error in the name of the defendant may be corrected when the real defendant has been served and is before the court even though the statutory period to bring the action has expired: Wright v. Eureka Tempered Copper Co., 206 Pa. 274; Wilkinson v. North East Boro., 215 Pa. 486; Holmes v. Railroad Co., 220 Pa. 189.
   Opinion by

Mr. Justice Stewart,

At the place where this accident occurred the defendant company maintains two tracks, one used for east-bound, the other for west-bound trains. Louis A. Meitzner, the plaintiff’s husband, approached the crossing from the north. At that moment a freight train was moving west on the track nearest him. After it had cleared the crossing he attempted to cross over, and was struck and -killed by the engine of a passing express train moving east on the south track. If, without waiting for the freight train to move far enough away to admit of his seeing more of the second track than was immediately in his front, he started forward and was accidentally struck by the engine on the second track moving east, the law would unquestionably refer the accident to his own want of care'. On the other hand, if he waited until the freight train had so far proceeded that it no longer obstructed his view of the second track before attempting to cross, he did all that could be reasonably required of him in that regard. Which course does the evidence on the part of plaintiff show that he pursued? If the former, the case called for a nonsuit or binding instructions for the defendant; if the latter, it was for the jury. The peculiarity of the case is that because of the conflicting statements which appear in the testimony of the witness Bishop, who alone had opportunity to see the whole occurrence from beginning to end, and upon whose testimony plaintiff's case must largely rest, this question is left debatable. In one part of his testimony the witness says that Meitzner made no attempt to cross the tracks until the last car of the freight train was from 150 to 200 feet west of where he stood; in another part he says that Meitzner stepped upon the second track just as the engine of the express train was passing the last car of the freight train. The two statements are wholly irreconcilable; but that fact did not make it a case for binding instructions for the defendant. It was for the jury to decide what credit they would give the witness, and which of his statements, if either, they would accept. The result of the trial shows that they credited him as a witness, and accepted his statement that when Meitzner started to cross the freight train had moved from 150 to 200 feet west of the crossing. "Whether with this much of the second track in view, while what was beyond was hidden by the moving freight train, he was negligent in attempting to cross when he did; and whether after he committed himself to the act of crossing he exercised due care as he proceeded, are questions which could only be resolved as other contradictory statements of Bishop's were reconciled, or as some of them were allowed to prevail. This witness who saw the occurrence from the opposite side of the tracks, says in one place, that when he first saw the express train coming from the west it was three-quarters of a mile from the crossing; that it could -not then have been seen by Meitzner from where he was then standing on the platform, because of the position of the freight train at that time; that he, the witness, had the approaching train in sight continuously up to the time it met the freight train, and that at this point he saw Meitzner standing between the two tracks and looking in the direction of the advancing train and listening, but that the train was then lost to his view, and Meitzner’s as well, because of the dense smoke from the engine of the freight train. If this state of the facts gave rise to an inference of negligence on the part of the plaintiff, the jury only could derive it. In passing upon a motion for nonsuit, where the evidence for plaintiff is contradictory, it is the duty of the court to allow it the significance most favorable to plaintiff, since for all the court can know that view may prevail with the jury.

The crossing where Meitzner was killed was not a public crossing, that is, it had not been laid out or adopted pursuant to municipal authority; it was on the property of the defendant company and made by it for the convenience of passengers in passing between the stations on opposite sides of the tracks. But there was evidence that for many years it had been used by the general public as well, not only with the knowledge of the defendant company, but by its encouragement. The court properly instructed the jury that if they believed this evidence Meitzner was not a trespasser, and that the defendant company owed him the same duty that it owed passengers using the crossing.

In plaintiff’s statement the defendant company was described as a corporation of the state of Pennsylvania. An amendment was allowed describing it as a corporation of the state of Maryland. The defendant was in court, and the change brought no new party on the record. The amendment was properly allowed: Wright v. Copper Co., 206 Pa. 274.

In what we have said the several assignments of error have been considered. They are overruled and the- judgment is affirmed.


author: Per Curiam,

text:
    Boyer, Appellant, v. Lengel.
    April 12, 1909:

      Ejectment — Title—Adverse possession — Evidence.
    In an action of ejectment where the plaintiff shows an apparently good paper title, and the defendants claim by adverse possession, the trial judge properly states the burden upon the defendants when he charges as follows: “When parties claim title by adverse possession, by virtue of the statute of limitations, it has been said time after time that that possession must be hostile, adverse, open, visible, notorious, and a continuous possession, in order for them to maintain title. In other words, the mere fact of parties going in now and then and cutting some timber, or cutting some ties, or some logs, such acts in themselves do not constitute adverse possession.”
    Argued Feb. 15, 1909.
    Appeal, No. 23, Jan. T., 1908, by plaintiffs, from judgment of C. P. Schuylkill Co., Sept. T., 1901, No. 115, on verdict for defendants in case of Mahlon H. Boyer and J. W. Beecher v. Paul L. Lengel et al.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Ejectment for land in Pingrove township. Before Marr, J.
    The opinion of the Supreme Court states the case.
    Verdict and judgment for defendants. Plaintiffs appealed.

      Errors assigned were various rulings on evidence and instructions.

      A. W. Schalck, with him Joseph W. Moyer, for appellants.

      W. F. Shepherd, with him B. S. Bashore, for appellees.
   Per Curiam,

In submitting this case to the jury they were instructed that, in the opinion of the court, plaintiffs had shown a good paper title, which should prevail, unless the defendants had acquired one by adverse possession. In his charge the learned trial judge explained fully and correctly what the defendants were required to prove in support of the title which they set up. The jury were told: “When parties claim title by adverse possession, by virtue of the statute of limitations, it has been said time after time that that possession must be a hostile, adverse, open, visible, notorious, and a continuous possession, in order for. them to maintain title. In other words, the mere fact of parties going in now and then and cutting somé timber, or cutting some ties, or some logs, such acts in themselves do not constitute adverse possession.”

We have discovered no error in the rulings of the court or in the instructions under which the question of the defendants’ title went to the jury. The assignments of error are all overruled and the judgment is affirmed.