author: Mr. Justice Elkin,

text:
    Burns v. Pennsylvania Railroad Company, Appellant.

      Negligence — Railroads—Passenger—Obstruction in aisle of car — Notice — Presumption.
    1. Where a passenger is injured by anything done or left undone by the carrier, or its employees, in connection with the appliances of transportation, or in the conduct and management of the business relating to the same, the burden of proof is upon the carrier to show' that such injury did not result from its negligence. To cast this burden upon the carrier, it must first be shown that the injury complained of resulted from something improper or unsafe in the conduct of the business or in the appliances of transportation; appliances of transportation meaning the roadbed, tracks, cars, engines and all other machinery and equipment furnished by the railroad company and used in connection with the conduct and management of its business. Property belonging to and taken by a passenger into a car is not such an appliance.
    2. While it is the duty of the employees of a railroad company to remove the personal baggage of passengers from the aisles of cars, they must, in order to make it their duty to act, have notice that such obstructions are in the aisle, or the obstruction must have remained there for so long a time before the accident that, in the exercise of due care, they would have discovered it before the accident occurred. The mere fact that a piece of baggage is in an aisle and a passenger stumbles over it does not of itself raise any presumption of negligence on the part of the railroad company..

      3. In an action by a passenger against a railroad company to recover damages for personal injuries resulting from stumbling over a dress suit case placed by another passenger in an aisle of a passenger car, the questions of the defendant’s negligence and the plaintiff’s contributory negligence are for the jury, where the evidence tends to show that immediately before the accident plaintiff started to go to a closet in the front of the car; that after he had proceeded part of the way the train entered a tunnel 2,100 feet long; that the car was dimly lighted; that the plaintiff did not stop when the car entered the tunnel, but in his progress stumbled over a dress suit case placed by another passenger in the aisle; that the train was a fast express train which had not stopped for forty-eight miles; that the conductor and porter had passed through the train while the baggage was standing in the aisle, and that plaintiff, according to his own testimony, had not seen the baggage, and the car was so dimly lighted he could not see it.

      Negligence — Damages—Charge—Duty of court.

    4. It is the duty of a trial judge of his own motion and without request to correctly instruct the jury as to the proper measure of damages.
    Argued Oct. 2, 1911.
    Appeal, No. 119, Oct. T., 1911, by defendant, from judgment of C. P. Cambria Co., Dec. Term, 1909, No. 545, on verdict for plaintiff in ease of Patrick Burns v. Pennsylvania Railroad Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before O’Connor, P. J.
    ' The faets are stated in the opinion of the Supreme Court.
    Verdict for plaintiff for $7,000, on which judgment was entered for $6,000, all above that amount having been remitted. Defendant appealed.

      Errors assigned were various instructions.

      H. W. Storey, for appellant.

      Thomas L. Kerin, for appellee.

      January 2, 1912:
   Opinion by

Mr. Justice Elkin,

The negligence charged in the present case was that the appellant railroad company permitted baggage to be placed in the aisle of the car in which appellee was a passenger, so as to obstruct the passageway, thus making it dangerous for passengers. It was also alleged that the car was not sufficiently lighted. Appellee boarded the car at Johnstown en route for Pittsburg. He paid his fare and took a seat in the rear end of a day coach. He was therefore entitled to the privileges and protection afforded passengers generally, no more and no less. At a point west of Greensburg he testified that he had occasion to go to the water-closet, located in the front end of the car, and started to do so. When he had proceeded part way the train entered a tunnel, thus shutting out the natural light and leaving the car dimly lighted by a lamp in the rear. The testimony is conflicting as to whether one or two lamps were burning. The tunnel is 2,100 feet in length and it required the train over half a minute to run through it. Appellee did not stop when the car was darkened by the entrance into the tunnel but proceeded on his way to the water-closet. Near the front of the car a fellow passenger had placed a dress suit case in the aisle at the end of his seat and there was some testimony indicating that some other small baggage was near it. As appellee proceeded on his way he stumbled and fell over the baggage in the aisle and received the injuries for which he seeks to recover damages in this action. In explanation of his mishap he testified that he did not see the obstruction in the aisle until he was in the act of falling. He accounts for his failure to notice the baggage in the aisle on two grounds, first, that he did not know it was there, not having seen it before entering the tunnel, and, second, that the dimly lighted car made it impossible to see distinctly. He was traveling on a fast express train which left Johnstown at 4.05 p. m. and made no stop until it reached East Liberty. He had been aboard the train a little more than an hour and had traveled about forty-eight miles when the accident occurred. One witness testified that he saw the suit case and a satchel in the aisle soon after leaving Johnstown and that the employees of the railroad company did not cause them to be removed. He also testified that the conductor and a porter passed through the car before the train reached Greens-burg and while the baggage was standing in the aisle. Appellant contends that under these facts appellee should not be permitted to recover damages in this action. Several points asking for binding instructions in favor of defendant were submitted at the trial and the refusal to affirm these points is made the subject of five assignments of error. It is argued that the evidence was not sufficient to show negligence on the part of appellant, and that appellee was so clearly guilty of contributory negligence as to require the court to so hold as a matter of law. We are not prepared to accept these extreme views of the case. We agree with the learned court below that both as to the negligence of the defendant, and the contributory negligence of the plaintiff, the case was for the jury. It was not tried or submitted in a manner clearly defining the exact rights and duties of the parties under the law. Under the facts there was no presumption of negligence. The rule is that where a passenger is injured by anything done or left undone by the carrier, or its employees, in connection with the appliances of transportation, or in the'conduct and management of the business relating to the same, the burden of proof is upon the carrier to show that such injury did not result from its negligence. But to cast this burden upon the carrier, it must first be shown that the injury complained of resulted from something improper or unsafe in the conduct of the business or in the appliances of transportation: Thomas v. Railroad Company, 148 Pa. 180; Ginn v. Railroad Company, 220 Pa. 552; Sutton v. Railroad Company, 230 Pa. 523. The appliances of transportation referred to in these cases mean the roadbed, tracks, cars, engines, and all other machinery and equipment furnished by the railroad company and used in connection with the conduct and management of its business. A dress suit case belonging to a passenger is not such an appliance. The duty of caring for such small baggage primarily rests upon the passenger to whom it belongs. A situation sometimes arises in which the carrier may also have a duty to perform. It is the duty of the carrier to provide reasonably safe means of ingress and egress to its cars for passengers, and this includes aisles and passageways. In the case at bar it is not contended that the aisle as constructed was unsafe or that it did not furnish ample room for the purpose intended. Neither is it contended, that anything done by the railroad company, or its employees, made the aisle unsafe, but it is asserted that it became unsafe by the slight obstruction placed in it by a fellow passenger, and that there was negligence in not sooner removing it, The negligence, if any, in this case is that the employees of the railroad company did not discover and remove the baggage which obstructed the aisle. Did they see it and fail to remove it, or did it remain there so long a time that the employees should have seen it if properly performing their duties? These questions were for the jury under the facts of this case and the trial judge should have submitted them under careful instructions defining the duties of carriers and their employees. The mere fact that the personal baggage of a passenger is in the aisle of a car at the exact time of the accident does not of itself raise a presumption of négligence on the part of the employees of the railroad company. While it no doubt is the duty of the employees of a railroad company to remove the personal baggage of passengers from the aisles of cars, they must, in order to make it their duty to act, have notice that such obstructions are in the aisle, or the obstruction must have remained there for so long a time before the accident that, in the exercise of due care, they would have discovered it before the accident occurred. This is the rule as stated in Stimson v. M., L. Shore & Western Railway Co., 75 Wis. 381, and we think it is sound. There is no Pennsylvania case directly in point, bnt the weight of authority elsewhere seems to be that the employees of the railroad company must have had actual notice of the baggage being in the aisle, or that it must have remained there a sufficient length of time to affect them with constructive notice. This means that the baggage must have remained in the aisle so long as to have been discovered by the officers in charge of the train if they had properly performed their duties. To this- general effect see Van Winkle v. Brooklyn City R. R. Co., 46 Hun (N. Y.), 564; Pitcher v. Old Colony Street Railway Co. (Mass.), 81 N. E. Repr. 876; Lyons v. Boston Elevated Ry. Co. (Mass.), 90 N. E. Repr. 419; Price v. St. Louis Transit Co. (Mo.), 102 S. W. Repr. 626. In the case at bar the duty of the railroad company in this regard was not carefully explained to the jury. The charge was indefinite and perhaps misleading on this point as indicated by that portion of it which is made the subject of the seventh assignment of error. To say that a passenger “without warning, would have a right to presume that the passage was free from obstruction,” might very properly be deemed an instruction that the presumption of negligence arose against the railroad company when the passenger placed his suit case at the end of his seat in the aisle. This is not the law. The railroad company cannot be charged with the neligence of a passenger, and its only negligence in such a case is in allowing the obstruction to remain there after notice, or after it should have had notice if due care had been exercised. These exact questions were not brought to the attention of the jury as they should have been.

We do not agree with the contention of appellant that the appellee was so clearly guilty of contributory negligence as to warrant the court in so declaring as a matter of law. If the accident had occurred before the train reached the tunnel and while the car was well lighted the situation would be different. The passenger was bound to look where he was going and to use his senses for his own protection. If he saw the suit case and stumbled over it, the fault was his, or, if the car had been sufficiently lighted and he could have seen by looking what was in the aisle ahead of him, it was his duty to do so, and failure to perform that duty would defeat his right to recover. In the present case the darkness of the tunnel and the question of the sufficiency of the light must necessarily be taken into consideration. He might or might not have been able to see the suit case in the dimly lighted car. If he saw it, or if he should have seen it by the exercise of proper care, he took his chances in stepping over it, and cannot recover for injuries resulting from his own neglect; if he did not see it, or if in the exercise of due care he could not have seen it because of the darkness, a different question arises, and in a proper case a recovery may be sustained.

There is no assignment of error relating to the charge of the trial judge on the question of damages, but inasmuch as the case is to be again tried, it is only proper to suggest that the true measure of damages should be more clearly defined. It is the duty of the trial judge of his own motion and without request to correctly instruct the jury as to the proper measure of damages: Wilkinson v. North East Boro., 215 Pa. 486. The true measure of damages in such cases is very clearly stated in Goodhart v. Railroad Co., 177 Pa. 1, and this rule should be followed.

Judgment reversed and a venire facias de novo awarded.


source: Caselaw Access Project

author: Mr. Justice Stewart,

license: Public Domain

text:
    Croyle v. Cambria Land & Improvement Company, Limited, Appellant.

      Evidence — Parol evidence — Contracts—Contract in writing — Contemporaneous verbal agreement.

    1. Parol evidence is admissible to show a contemporaneous verbal agreement which induced the execution of a written obligation, although it may vary or change the terms of the written contract, and although the parol agreement may not have been omitted from the writing through fraud, accident or mistake. This rule is applicable to the case of a deed of release for a right of way executed by a landowner in reliance upon a contemporaneous promise that the land on both sides of the road to be constructed should be filled in and brought to a level with the surface of the road.
    2. In such a case declarations made by the same person who made the contemporaneous agreement, but prior to the execution of the written agreement, are admissible, to the effect that there was an original verbal contract to make the fill referred to in the parol agreement. Such declarations are corroborative of the contemporaneous parol agreement.
    Argued Oct. 3, 1911.
    Appeal, No. 185, Oct. T., 19Í1, by defendant, from judgment of C. P. Cambria Co., Sept. Term, 1909, No. 381, on verdict for plaintiff in case of Frank S. Croyle v. Cambria Land & Improvement Company, .Limited.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit for breach of contract. Before O’Con-nor, P. J.
    At the trial it appeared that the plaintiff claimed damages for a failure on the part of the defendant to do certain filling on both sides of a right of way granted by the plaintiff to the defendant, in accordance with a parol agreement alleged to have been made contemporaneously with the execution of the deed of release of the right of way. After the deed of release was offered in evidence the plaintiff offered to prove the parol agreement made by the defendant’s agent at the time of the execution of the deed that the low land on each side of the road should be filled in so as to bring it to a level with the road to be constructed.
    Objection to this offer was made as follows:
    Mr. Williams: The deed from the plaintiff to the defendant having been offered and admitted in evidence, counsel for the defendant now object to the admission of a parol contemporaneous agreement made at the time of the execution of the deed to vary, alter, change, modify, or contradict said deed, or to add to the consideration of said deed mentioned, or to prove any consideration other than the consideration therein mentioned.for the following reasons:
    1. The reading of the deed and the recital therein expressly said that the full consideration for the privileges therein granted are expressed therein, and thereby preclude the proving of any other consideration by parol.
    2. The plaintiff’s statement does not aver that the parol contemporaneous agreement was omitted from said deed through accident or mistake.
    3. The deed purports to contain the full agreement between the parties, especially as to consideration.
    The Court: It is not contended that anything was omitted from the written agreement or deed by virtue of any accident or mistake, but it is contended that the plaintiff refused to sign the deed in question, as it was written, until the defendant agreed that if the deed was executed as it stood, that it would make a fill for which the plaintiff contends in this case, and this contemporaneous parol agreement was made, not with the intention of having it placed in the written agreement, as an inducement of the execution of the deed in its present form and it matters not what the contents of the deed were, or what the consideration therein mentioned was, the plaintiff seeks to recover the consideration for the contemporaneous parol agreement in this proceeding. Therefore, we overrule the objection, note an exception, and seal a bill for the defendant company. [1]
    Verdict and judgment for plaintiff for $2,465. Defendant appealed.

      Error assigned among others was (1) ruling on evidence, quoting the bill of exceptions.

      William Williams, with him R. E. Cresswell, for appellant.
    Parol evidence is not admissible to contradict a grant clearly conveyed: 3 Vale’s Pa. Digest, cols. 8703-8713; Harvey v. Vandegrift, 89 Pa. 346; Thomas v. Henderson, 4 Kulp, 390; Jackson v. Payne, 114 Pa. 67; Black v. Garrett, 2 Leg. Rec. R. 251; Meyers v. Robinson, 74 Pa. 269; Shafer v. Senseman, 125 Pa. 310; Heebner v. Worrall, 38 Pa. 376; Martin v. Berens, 67 Pa. 459; Lewis v. Brewster, 57 Pa. 410; Cozens v. Stevenson, 5 S. & R. 421; Ellmaker v. Ins. Co., 5 Pa. 183; Jessop v. Ivory, 158 Pa. 71; Otto Gas Engine Works v. Pepper, 228 Pa. 205; Quaker City Car Advertising Co. v. Meyers, 20 W. N. C. 388; Allison v> Kurtz, 2 Watts, 185; Meleher v. Hill, 194 Pa. 440; Krueger v. Nicola, 205 Pa. 38; Wodock v. Robinson, 148 Pa. 503.
    January 2, 1912:

      Frank P. Barnhart, with him George E. Wolfe, for appellee.
    Proof of the parol agreement was proper: Gandy v. Weckerly, 220 Pa. 285; Faux v. Fitler, 223 Pa. 568; McSorley v. Allen, 36 Pa. Superior Ct. 271; Land-Wharton Co. v. Hughes, 37 Pa. Superior Ct. 602; Ramsden v. Simplex Foundation Co., 39 Pa. Superior Ct. 587; Zeller v. Haupt, 41 Pa. Superior Ct. 647; Lawrence County National Bank v. Kaufman, 44 Pa. Superior Ct. 567. See also Perkiomen R. R. Co. v. Bromer, 217 Pa. 263.
   Opinion by

Mr. Justice Stewart,

The issue submitted to the jury, and by them passed upon, was whether the plaintiff, in executing and delivering to the defendant company a deed of release for the right of way upon and over his land for a thoroughfare, did so relying upon a contemporaneous promise made by defendant’s contracting agent that the company would, within a fixed period, which had elapsed before the bringing of the suit, so fill the flat or lowland on plaintiff’s lot, at either side of the thoroughfare to be constructed, as to bring it to a level with the surface of the thoroughfare. Because it was not alleged in either the statement of the cause of action or in any of the offers of evidence, that the subject of the alleged parol promise had been omitted from the deed of release through fraud, accident or mistake, the evidence was objected to as incompetent. Its admission is the only matter assigned for error that calls for consideration. It will be observed that the evidence was not offered for the purpose of reforming the contract between the parties. Had it been, it must have been rejected as wholly insufficient for the purpose. Admittedly both parties knew exactly what the deed of release contained, and all that it contained, before it was signed and sealed. This left no possible ground for reformation. As written, untainted by fraud, and standing clear of mistake, it was the contract of the parties to be by each accordingly observed. What was attempted to be shown to the satisfaction of the jury, was that the plaintiff, knowing that the deed of release as prepared imposed no obligation on the defendant to fill the lowland to the level of the thoroughfare, refused to execute it, because of this circumstance, and requested that another instrument containing this provision be written; that the defendant company’s representative desiring to avoid delay, thereupon promised the plaintiff that if he would execute the paper as written, the defendant company would at its cost make the required fill within a given period; and that it was upon the faith of this promise that plaintiff executed the deed of release. No cáse could better illustrate the Wisdom of the policy adopted in this state at a very early period, and since steadfastly adhered to, of excepting out of the operation of the English rule excluding parol evidence to vary, contradict, or alter a written contract, cases where a contemporaneous parol promise is proposed to be shown, on the faith of which the contract was executed. Here was found no fraud in connection with the execution of the contract to be relieved against; The promise to do something over and above what wás expressed in the writing and which induced the signing of it by the plaintiff, was honestly made, or, if otherwise, fraudulent purpose in connection therewith, as an undisclosed intent, was absolutely incapable of proof. The English rule in its strictness would exclude all evidence of the promise, notwithstanding a subsequent refusal by defendant to observe its promise,- while holding on to what it obtained by reason of it, would be quite as much a fraud on the plaintiff as any willful suppression or misrepresentation of fact in connection with the making of the instrument; and notwithstanding the certain result that defendant would be left secure in the enjoyment of plaintiff’s property, which it had not paid for, because of the law’s inability to compel it to keep and observe the promise on the faith of which it had obtained the property. It was this manifest inadequacy of the rule to work out equitable results in just such case as we have here that prevailed with our courts to except such cases out of its operation. And so we have it settled in Pennsylvania, beyond all dispute, “that where at the execution of a writing a stipulation has been entered into, a condition annexed, or a promise made by word of mouth, upon the faith of which the writing has been executed, parol evidence is admissible, though it may vary and materially ehange the terms of the contract.” This was said in the very' early case of Hurst’s Lessee v. Kirkbride, 1 Binney, 616, and the doctrine of that case was so repeatedly recognized .thereafter, that in Greenawalt v. Kohne, 85 Pa. 369, this court said, “No principle is better settled than that parol evidence is admitted to show a verbal contemporaneous agreement which induced the execution of a written obligation though it may vary or change the terms of the written contract.” And again, “All the cases show,” says Bell, J., in Renshaw v. Gans, 7 Pa. 117, “that to pave the way for the receiving of oral declarations it is not necessary to prove a party was actuated by a fraudulent intent at the time of the execution of the writing. ,His original object may have been perfectly honest and upright; but if to procure an unfair advantage to himself he subsequently denies the parol qualification of the written contract, it is such a fraud, as will under the rules operate to let in evidence of the real intent and final conclusion of the contractors.” A recent very thorough discussion of this subject by our Brother Brown in the case of Gandy v. Weckerly, 220 Pa. 285, makes further comment here unnecessary. In the case last referred to will be found a review of all the cases, showing such absolute accordance of authority as should convince that the question raised by the assignments here is no longer disputable.

Several of the assignments relate to the admission of declarations on the part of defendant company’s representative made some time previous to the execution of the deed of release, to the effect that under the original verbal contract with the plaintiff the defendant company was to fill up the lowlands on the plaintiff’s lot. It is urged that these were inadmissible because not contemporaneous with the writing. Except for the evidence already in of the promise having been made at the time the deed of release was made, these declarations would not have been competent; but with this evidence in, they lent support to the plaintiff’s contention, and to whatever- extent they did this, plaintiff was entitled to the benefit.

All the assignments are overruled and the judgment is affirmed.


author: Mr. Justice Mestrezat,

text:
    Maxler v. Hawk, Appellant.

      Detimie — Possession—Evidence.
    1. Prior possession is sufficient to sustain detinue by the prior possessor against anyone who cannot show a superior right of possession.

      Gifts — Gift inter vivos — Evidence—Burden of proof — Detimie.
    2. Where the defendant in an action of detinue sets up a gift inter vivos as a defense, the burden of proof is upon him to establish all the facts essential to the validity of such gift.
    3. The essential elements of a gift inter vivos are an intention to give, and such actual or constructive delivery of the thing given as places the absolute control or dominion over the gift in the donee.
    4. When an alleged donor has been surrounded during his last sickness by the family and relatives of the alleged donee, and the claimant has had opportunities to obtain possession of the subject of the alleged gift without title, the proof in support of the claim ought to be clear and satisfactory upon every point essential to title by gift.

      5. The mere fact that a person claiming property as a gift has it in his possession after the death of the alleged donor has little, if any, weight on the question of the gift, where the claimant has had access to the property and effects of the alleged donor during his last sickness, or after his death. Thus where a father claims negotiable bonds as a gift inter vivos from his deceased son, the fact that the father had possession of the bonds immediately after the son’s death is to be given little weight where the evidence would justify a finding that the son kept the bonds with his other valuable papers in his father’s house where he resided, and that the father had access to such papers.
    6. In an action of detinue by an executor against the decedent’s father to recover possession of negotiable bonds found in possession of the father after the son’s death and claimed by the father as a gift inter vivos from the son, the mere proof that the son had retained the bonds and collected the interest on them until within three weeks of his death does not make out a prima facie case for the plaintiff as to the ownership of the bonds. In such a ease if the bonds were negotiable securities, the father, as having possession of them, will be deemed to be in a position of a bona fide holder for value, and before maturity; but very slight circumstances will throw upon the father in such a situation the burden of proving that the bonds were obtained by him bona fide.
    7. In an action of detinue to recover bonds claimed by the defendant as a gift inter vivos from his son, the testimony of witnesses as to their having seen bonds in the possession of the father of the son during the latter’s lifetime is to be given little weight, where they do not identify the bonds in the possession of the father as the bonds seen by them in the son’s lifetime.
    8. In such an action it is proper to admit proof of the amount of the son’s estate, his indebtedness, that he left a surviving daughter, and the relations of the father and son at the date of, and some time prior to, the death of the latter.
    Argued Oct. 3, 1911.
    Appeal, No. 1, Oct. T., 1911, by defendant, from judgment of C. P. Armstrong Co., March T., 1909, No. 52, on verdict for plaintiff in case of Frank Maxler, Executor of Clarence W. Hawk, deceased, v. Albert A. Hawk.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Detinue to recover possession of thirty-three negotiable coupon bonds. Before Reed, P. J., specially presiding.

      The facts are stated in the opinion of the Supreme Court.
    The trial judge charged in part as follows:
    [It appears from the undisputed testimony, that Clarence W. Hawk retained these bonds, and collected the interest on them, up until July 1,1908, and that he died on the twenty-third day of that same month.
    Now these facts present what the law terms a prima facie case as to the ownership of those bonds. Unless the defendant by his testimony has overcome this prima facie case, and satisfied you of his contention, that he is the owner of the bonds, it would be your duty to return a verdict in favor of the plaintiff for the value of the bonds, $3,300, with interest from July 1, 1908.] [1]
    [It appears that at that time these bonds were not included in the appraisement. It also appears that the estate left by C. W. Hawk, exclusive of these bonds in controversy, amounted to between $14,000 and $15,000, and that he left no debts, except one claim made by the wife of the defendant Mrs. Catherine Hawk, whose claim is $2,000 on a note, on which she has brought suit against the estate. If she recovers on that, it would reduce the value of the estate that amount, and would reduce it to about $12,000 or $13,000, exclusive of these bonds. That is the only claim against the estate so far as the testimony discloses.
    After the appraisement was held, it appears that certain papers were handed to the executor by Mrs. Catherine Hawk, the mother of the decedent, consisting of canceled checks and bank deposit books; the executor after looking over these papers and books discovered this check of $3,308, which had been given by the decedent in payment for these Freeport borough bonds. When he discovered that, he went back and demanded these bonds of the defendant A. A. Hawk. He did not deny having the bonds, but claimed to be the owner of them and refused to surrender them, It appears that later on the executor made another demand upon him, and he again refused to giye them up claiming that he was the owner of them and that he proposed to hold them. Subsequently this suit was brought by the executor to recover the possession of the bonds.] [2]
    [In regard to vesting title in the defendant. The burden is on him to satisfy you that these bonds were actually given to him by the decedent, with the intention that he should have the title to the bonds. That is, that the decedent intended to part with his title to the bonds and all interest in the bonds, and that he actually turned them over, and actually delivered them to the defendant, with the intent of passing title to him and of surrendering all control and dominion over them himself, and of vesting that control and dominion in the defendant.] [3]
    [And then the family relation may be such that the possession even of bonds might be easily acquired, and they might be temporarily in the possession of a party, and it would not raise the same presumption as if that relation did not exist.] [4]
    [On the other hand, the defendant contends that his evidence, showing that he had had the possession of these bonds some weeks prior to the death of the decedent, raises such a presumptive title to the bonds in him, that the court should peremptorily instruct you to find that title to the bonds is in him, and that you should find for the defendant. We are not prepared to give that instruction and therefore refuse it. I think upon the whole case, it is a question for the jury to determine, and that it is the duty of the court to refer it to the jury.
    If you are fully satisfied from all the evidence in the case, that the defendant has overcome the prima facie case presented here by the plaintiff, as to the decedent’s ownership of these bonds, and that there was an actual giving of those bonds by the decedent to his father, with the intent to pass the title to the bonds to him, and that they were actually delivered to him, with the intent on the part of the donor or decedent, to surrender all claim to the bonds, and all control and dominion over them, and to vest them in his father; then we say, that so far as these bonds are concerned, your verdict should be for the defendant, otherwise in favor of the plaintiff.] [5]
    Verdict and judgment for plaintiff for $3,773. Defendant appealed.

      Errors assigned among others were (1-5) above instructions, quoting them.

      Orr Buffington, with him S. F. Clark, for appellant.
    As men generally own the personal property they possess, proof of possession is presumptive of ownership: 1 Green-leaf on Evidence, 39; Winlack v. Geist, 107 Pa. 297; Malone’s Est., 8 W. N. C. 179.
    After the death of C. W. Hawk and when the bonds were demanded by the executor the declaration of ownership made by A. A. Hawk should have been taken as true: Miller’s Est., 151 Pa. 525.

      H. A. Heilman, with him J. W. King, for appellee.
    The appellee by the undisputed testimony in this case having established that the alleged donor, C. W. Hawk, was surrounded during his last illness by his father and mother, and that A. A. Hawk had opportunity to obtain possession of the bonds without title, the proof in support of his claim should be clear and satisfactory upon every essential to title by gift: Scott v. Reed, 153 Pa. 14.
    If the appellant relies upon possession and ownership by reason of a gift, then it was incumbent upon him to prove by competent testimony every essential necessary to make a valid gift inter vivos: Rhodes v. Childs, 64 Pa. 18; Fross’ App., 105 Pa. 258; Walsh’s App., 122 Pa. 177; Pryor v. Morgan, 170 Pa. 568; Reese v. Philadelphia Trust Safe Dep. & Ins. Co., 218 Pa. 150.
    If there is evidence of undue influence or of circumstances giving rise to suspicion touching the transaction itself, the burden is upon the donee to show the fairness of the transaction: Vaughn v. Vaughn, 217 Pa. 496; Worrall’s App., 110 Pa. 349; Simon v. Simon, 163 Pa. 292.

      January 2, 1912:
   Opinion by

Mr. Justice Mestrezat,

This is an action of detinue, the plea being non detinet, brought by Frank Maxler, executor of Clarence W. Hawk, deceased, against Albert A. Hawk, his father, to recover, inter aha, thirty-three negotiable coupon bonds, of the par value of $100 each, issued by the borough of Freeport, Pa. It appears by the plaintiff’s evidence that the decedent had purchased the bonds in 1904 and collected the interest on them semiannually, payable on the first days of January and July, until July 1, 1908, the last interest-paying period prior to his death which occurred July 23, 1908. C. W. Hawk was married about ten years before his death, but his wife died within a short time after their marriage, when he returned to the home of his father and mother and continued to reside there until his death. The parents and their son lived in the same house, occupied the same hving room, ate at the same table, and the son kept at least a part of his private papers in a drawer in the table in the sitting room occupied in common by the decedent and his parents. Some time after the death of her son, his mother handed to the appraisers of his estate checks, bank books, etc., which had been taken from a table drawer in the sitting room of their home. The will of the decedent was found in the possession of his father, the defendant.

The defendant claimed the bonds by a gift inter vivos. To prove the gift he introduced evidence to show that they were kept by the decedent in a safe deposit box in a bank in Freeport where the parties lived, that at the semiannual interest-paying periods the decedent would open the box, cut the coupons and secure the borough treasurer’s check for the interest, that he continued this practice until July 1 or 2, 1908, the last interest-paying period prior to his death. The defendant called as a witness Howard Smith, the decedent’s brother-in-law, who testified that on July 4 or 5, 1908, in a conversation with the decedent, the latter, referring to some unintentional injury said to have been done by him to his father, remarked: “I have fixed that,” and that on the following Monday the defendant came into his sitting room and exhibited the bonds to Mr. Smith. The defendant contends that these alleged facts together with his possession of the bonds after the death of his son show that the title and possession of the bonds had passed to him by the gift of his son prior to the latter’s death.

It will be observed that the only question in the case is whether the decedent had made a gift inter vivos to the defendant of the bonds in question. The issue raised by the pleadings required the plaintiff to show title to the bonds in the decedent. This he attempted to do by showing that he purchased the bonds in 1904 and collected the interest on them semiannually until the last semiannual interest-paying period prior to his death. Prior possession is sufficient to sustain detinue by the prior possessor against anyone who cannot show a superior right of possession: 14 Cyclopedia of Law & Procedure, 251. The plaintiff also attempted to show the mala fides of the defendant’s possession of the bonds by showing the declarations of the defendant, the relationship of the parties, the manner of their living, and the probabilities that the bonds were kept in the same place at the common home of the decedent and his parents where his other papers were kept and which were found in the possession of his father and mother, thus disclosing their access to the bonds during his last illness and after his death. If the plaintiff’s testimony was believed, the jury was warranted in finding that the prima facie ownership of the bonds which arose from defendant’s possession of them after decedent’s death had been rebutted.

The defendant setting up a gift inter vivos as a defense, the burden was upon him to prove it. The burden of proof is on the one claiming to be the donee of property to establish all the facts essential to the validity of such gift: 20 Cyclopedia of Law & Procedure, 1219. There was no direct evidence of the gift of the bonds to the defendant and he relied upon circumstantial evidence to sustain his defense. All the evidence tending to sustain or defeat the gift was therefore competent. This includes proof of the amount of C. W. Hawk’s estate, his indebtedness, that he left a surviving daughter, and the relations of the parties at the date of, and some time prior to, the death of the son. All these matters bore upon the intention of the son to make a gift of the bonds under the circumstances: Burkholder v. Plank, 69 Pa. 225; Hasel v. Beilstein, 179 Pa. 560; 14 Am. & Eng. Ency. of Law (2d ed.), 1050. It was therefore proper for the learned court to refer to and instruct the jury in its charge on this testimony.

There is no merit in the third assignment of error. The complaint in that assignment is that the' court erred in instructing the jury that the burden was on the defendant to satisfy the jury that the bonds were actually given to him by the decedent with the intention that he should have title to them. The essential elements of a gift inter vivos are an intention to give and such actual or constructive delivery of the thing given as places the absolute control or dominion over the gift in the donee. The defendant certainly has no reason to complain of the quantum of proof required by the trial court to support the gift. The learned judge might have gone farther than he did and told the jury that the proof of the gift should be clear and convincing. Such degree of proof is required by our cases, and especially where the gift is alleged by the donee to have been made under the circumstances present in this case. The gift must have been made, if at all, between July 1,1908, when it is conclusively shown the decedent had possession of the bonds, and the 23d of that month when he died. In the meantime he was living with his father and mother and was suffering from tuberculosis from which he died. “When an alleged donor,” says Heydrick, J., in Scott v. Reed, 153 Pa. 14, 15, “has been surrounded during his last sickness by the family and relatives of the alleged donee, and the claimant has had opportunities to obtain possession of the subject of the alleged gift without title, the proof in support of the claim ought to be clear and satisfactory upon every point essential to title by gift.”

There was no error in the language used by the court which is the subject of the fourth assignment. It should be read in connection with the other parts of the charge bearing upon the same subject. When he used the language, the learned judge was discussing the defendant’s contention that his possession was prima facie evidence of ownership of the property. The jury was so instructed, and that such possession might be very strong or very weak evidence of ownership, “depending upon the facts and circumstances surrounding the possession, and the character of the property and the length of time that possession is continued.” It was in this connection that the language of the charge, covered by the fourth assignment, was used. The mere fact that a person claiming property as a gift has it in his possession after the death of the alleged donor has little if any weight on the question of a gift, where the claimant has had access to the property and effects of the alleged donor during his last sickness, or after his death: 14 Am. & Eng. Ency. of Law (2d ed.), 1050, and cases cited in note. It has been held in New York that the mere possession of property is not sufficient evidence of a gift, for it may be consistent with a mere custody or agency: Matter of Bolin, 136 N. Y. 177. In the case in hand the jury would have been justified in finding, as already suggested, that the bonds were kept with decedent’s other valuable papers which were subsequently found at the home of his parents where he also resided. They were therefore as readily accessible.to the father, the defendant, as the decedent’s other papers, and under such circumstances their possession by the defendant would necessarily have very little weight with the jury in determining whether the son had delivered them to his father.

The learned counsel for the appellant seem to misapprehend the effect of some of their client’s testimony which was introduced to meet the plaintiff’s prima facie ownership of the bonds in question. Smith’s testimony did not show that the decedent made a gift of the bonds in discharge of a legal or moral obligation. The declaration made by him in Smith’s presence, as testified by the latter, cannot be construed as showing any intention to make a gift. As testified by the witness, the declaration was “without any explanation as to what he (decedent) meant or what he did.” Nor did Smith testify that the defendant showed the bonds in question to him on the occasion referred to in Smith’s testimony. He testified that the bonds shown him were Freeport bonds, of $100 value each, that the roll of papers in the defendant’s hands containing the bonds corresponded with the roll of bonds in question which were present in court. But he admitted on cross-examination that he did not know the numbers of the bonds as he did not examine them, that he thought they were signed by R. P. Thompson, that he did not know how many there were of them, and that they were rolled up in a paper. This was not such an identification of the bonds as would, under the other evidence in the case, have warranted the jury in finding that the defendant on that occasion had possession of the bonds in controversy. The testimony of Mr. Johnson, the cashier of the bank, does not definitely show that these bonds were ever in the decedent’s safe deposit box in the bank, as claimed by the defendant. Johnson testified that the decedent had a box in the bank where he deposited his papers, that he would come to the bank to get Freeport bonds and cut the coupons, and would get the borough treasurer’s check given in payment of the coupons cashed at the bank. On cross-examination, however, he distinctly testified that he never saw the bonds in question in the decedent’s safe deposit box, that he never saw him take the bonds out of the box and that he never saw him cut the coupons from the bonds. This testimony fails to identify conclusively the bonds kept by the decedent in his safe deposit box as the bonds in controversy in this suit. In connection with other testimony it was evidence for the jury, but not conclusive, that the decedent did keep the bonds in this box.

There was technical error in that part of the charge which is the subject of the first assignment, and for that reason the judgment must be reversed. The learned court told the jury that it appearing from the undisputed testimony that Clarence W. Hawk retained the bonds and collected the interest on them until July 1, 1908, the plaintiff had made out a prima facie case as to the ownership of the bonds. The learned judge tried the case upon this theory, while the plaintiff’s counsel tried it upon a different theory. They showed by undisputed testimony the decedent’s prior ownership of the bonds and, then proceeded in chief to introduce evidence to rebut the presumption of the defendant’s prima facie ownership arising from his possession of them. The plaintiff’s counsel did not rely simply upon the prior ownership to enable him to recover but sought to show the mala fides of the defendant’s possession. As already suggested, there was sufficient evidence on the part of the plaintiff discrediting the defendant’s ownership to warrant the court in sending the case to the jury. If, however, the plaintiff had merely' shown the purchase and possession of the bonds by the decedent and rested, he would not have made out a prima facie case. The bonds which he seeks to recover are coupon bonds, payable to bearer. They were negotiable securities, transferable by delivery, and being in the defendant’s possession he is deemed, prima facie, to be a bona fide holder, for value and before maturity. The defendant’s possession is prima facie evidence of ownership, because the presumption is that it-was honestly acquired: Per Williams, J., in Robinson v. Hodgson, 73 Pa. 202, 210. Hence the mere fact of the prior ownership by the plaintiff was not sufficient in itself to establish the prima facie ownership of the bonds in the plaintiff and to warrant the jury in so finding in this action. While therefore the instruction complained of in the first assignment was technical error, the learned court, as we have already-indicated, was right in submitting the case on all the evidence to the jury. There was sufficient evidence, if believed, to rebut the prima facie ownership arising from the possession and to cast the burden on the defendant of showing, under the circumstances existing here, that the decedent had made a gift to him of the bonds. In such cases, the burden of proof that negotiable securities were obtained bona fide, in the usual course of business, is thrown on the party alleging it by very slight circumstances: Porter v. Gunnison, 2 Grant, 297. On proof of the loss or larceny of negotiable paper, the holder must affirmatively show that he took it in the usual course of business for value: Kuhns v. Gettysburg National Bank, 68 Pa. 445. Here the jury would have been warranted in finding from the plaintiff’s evidence in chief that the defendant was not a holder of the bonds in due course but that they came into his possession mala fides. While therefore the learned judge should not have told the jury that the prior ownership of the bonds by the decedent made out of itself a prima facie case for the plaintiff, he should have submitted to the jury to determine whether the plaintiff had rebutted the presumption of bona fide ownership arising by reason of the defendant’s possession, and if so whether the defendant had established a gift of the bonds to him made by the decedent in his lifetime.

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


author: Mr. Chief Justice Fell,

text:
    Kammerdiener v. Rayburn Township, Appellant.

      Negligence — Township—Dangerous road — Guard rail — Question for jury — Proximate cause — Imputed negligence.

    1. Township authorities are not bound to guard against dangers not reasonably to be anticipated, arising from causes beyond the limits of a public roadway, but against dangers in such close proximity to the roadway as to naturally and probably cause injury to travelers, they are bound to provide proper safeguards.
    2. In an action against a township to recover damages for death of plaintiff’s wife alleged to have been caused by failure to provide a guard rail at a narrow and dangerous curve in a road, the case is for the jury and a verdict and judgment for plaintiff will be sustained, where the evidence shows that at the time of the accident plaintiff’s wife was riding with his brother in a buggy; that at the place of the accident the road was narrow and curved, with a railroad embankment on one side, and an unguarded declivity to a river on the other; that when the buggy was at the curve a train approached from the front; and that the horse turned abruptly and ran down the declivity into the river.
    3. In such a case negligence on the part of the driver, if there was any, in taking an unsafe horse on a dangerous road when he could have taken a safe road, cannot be imputed to the plaintiff’s wife, who had no control over the driver and no knowledge of the roads.
    Argued Oct. 3, 1911.
    Appeal, No. 25, Oct. T., 1911, by defendant, from judgment of C. P. Armstrong Co., Sept. T., 1909, No. 156, on verdict for plaintiff in case of Jacob F. Kammerdiener v. Rayburn Township.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s wife. Before Patton, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $4,000. Defendant appealed.

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

      January 2, 1912:

      R. L. Ralston, with him J. H. Painter for appellant,
    cited: Arthurs v. Wilson, 40 Pa. Superior Ct. 604; Heister v. Fawn Twp., 189 Pa. 253; Schaeffer v. Jackson Twp., 150 Pa. 145; Nichols v. Pittsfield Twp., 209 Pa. 240; Brendlinger v. New Hanover Twp., 148 Pa. 93; Forks Twp. v. King, 84 Pa. 230.

      S. F. Bowser, with him H. N. Snyder, S. B. Cochran and A. L. Bowser, for appellee,
    cited: Scott Twp. v. Montgomery, 95 Pa. 444; Newlin Twp. v. Davis, 77 Pa. 317; Mahanoy Twp. v. Scholly, 84 Pa. 136; Pittston Boro, v. Hart, 89 Pa. 389.
   Opinion by

Mr. Chief Justice Fell,

The negligence complained of was that the township, defendant, failed to provide a guard rail at a narrow place, in a public road, where there was a sharp curve in the road, and an embankment on one side and a declivity on the other. The road at this point was nine feet wide; on the east side there was a railroad embankment ten feet high the foot of which was at the edge of the road. On the west there was a declivity beginning at the edge of the road and extending, with a fall of one foot in three feet, some forty feet to the precipitous bank of a river where the water was forty feet in depth. The plaintiff's wife was riding with his brother in a buggy and when they were at the curve a train approached from their front. The horse turned abruptly from the road, ran down the declivity and plunged into the river. The case was left to the jury to determine whether there was negligence in failing to provide a guard rail and whether the absence of a rail was the proximate cause of the accident. •

The contention on behalf of the defendant that the township authorities were under no duty to guard against dangers not in the roadway itself, cannot be sustained. They were not bound to guard against dangers not reasonably to be anticipated, arising from causes beyond the limits of the roadway, but against dangers in such close proximity to the roadway as to naturally and probably cause injury to travelers, they were bound to provide proper safeguards: Hey v. Philadelphia, 81 Pa. 44; Worrilow v. Township, 149 Pa. 40. In this case there was on one side of a road that was so narrow as to afford little opportunity to guard against a sudden movement of a horse, a steep declivity extending to the edge of the river and on the other an embankment on which, because of the curve, approaching trains would appear to be running directly into the road. The court could not have said that the danger was not to have been foreseen and guarded against nor that the absence of a guard rail was not the proximate cause.

If there was negligence on the part of the driver in taking an unsafe horse on a dangerous road, when he could have taken a safe road, it cannot be imputed to the plaintiff’s wife, who had no control over the driver and no knowledge of the roads: Dean v. Railroad Co., 129 Pa. 514; Bunting v. Hogsett, 139 Pa. 363. The case was submitted with great care and accuracy and we find no error in the record that calls for a reversal.

The judgment is affirmed.


text:
    Hare v. O’Brien, Appellant.

      Executors and administrators — Foreign administrator — Ancillary administrator — Foreign judgment — Foreign attachment — Conflict of laws— Act of March 15,1832, P. L. 135.

    1. A domiciliary administrator may sue in his own name in another state on a judgment recovered by him in his representative capacity in the state of the domicile.
    2. Where a domiciliary administrator in another state brings in the court of the domicile a foreign attachment against a citizen of Pennsylvania, and the defendant appears by counsel and contests the case, and judgment is entered against him, the domiciliary administrator may bring a suit on such judgment against the defendant in Pennsylvania, and it is immaterial that such suit be instituted in his representative character as his official title is surplusage and may be disregarded; and in such a ease it is also immaterial that an ancillary administrator had already been appointed in Pennsylvania before the suit on the judgment was brought. The ancillary administrator under such circumstances cannot sue on the judgment inasmuch as he is not a party to it, nor in privity with the foreign administrator; nor can he sue on the original debt, inasmuch as the debt was merged in the foreign judgment which barred a new action.
    Argued Oct. 3,1911.
    Appeal, No. 30, Oct. T., 1911, by defendant, from judgment of C. P. Armstrong Co., Dec. Term, 1909, No. 99, for plaintiff non obstante veredicto in case of Wellington R. Hare, Administrator d. b. n. of the Estate of Patrick O’Brien, deceased, v. Robert P. O’Brien.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit on a foreign judgment. Before Patton, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned was in entering judgment for plaintiff for $19,314.47 non obstante veredicto.

      B. L. Ralston and R. A. McCullough, for appellant.
    The action was barred by the Act of March 15, 1832, P. L. 135; McCullough v. Young, 1 Binney, 63; Brodie v. Bickley, 2 Rawle, 431; Sayre v. Helme, 61 Pa. 299; Mansfield v. McFarland, 202 Pa. 173; Yiosca’s Est., 197 Pa. 280; Laughlin v. Solomon, 180 Pa. 177; Moore v. Fields, 42 Pa. 467; Cole v. Cunningham, 133 U. S. 107 (10 Sup. Ct. Repr. 269); Galbraith v. Rutter, 20 Pa. Superior Ct. 554; Sweeny v. Hunter, 145 Pa. 363; Com. v. Stambaugh, 22 Pa. Superior Ct. 386.
    These facts place the case squarely within the ruling of this court in Lines v. Lines, 142 Pa. 149.

      Harry C. Golden, with him H. L. Golden, for appellee.
    Where a debt, fixed by the decree of a court of competent jurisdiction in another state, is due by citizens of Pennsylvania to the estate of one who had his domicile at the time of his death in said foreign state, the administrator of the domicile may sue for and recover the debt, in the courts of this state, without first taking out letters of administration here: Moore v. Fields, 42 Pa. 467; Shakespeare v. Fidelity Ins., etc., Co., 97 Pa. 173; Shinn’s Est., 166 Pa. 121; Wilkins v. Ellett, 108 U. S. 256 (2 Sup. Ct. Repr. 641); Talmage v. Chapel, 16 Mass. 71; Tittman v. Thornton, 16 L. R. A. 410; Arizona Cattle Co. v. Huber, 4 Arizona, 69; McCarthy v. Troll, 118 S. W. Repr. 416; Miller v. Hoover, 121 Mo. App. 568; Low v. Burrows, 12 Cal. 181; Boulden v. Penna. R. R. Co., 205 Pa. 264; Viosca’s Est., 197 Pa. 280.
    January 2, 1912:
   Opinion by

Mr. Justice Mestrezat,

Patrick O’Brien died intestate in 1903 in the state of Ohio, and domiciliary letters of administration were granted to his widow. She resigned, and letters de bonis non were granted to Wellington R. Hare, the plaintiff in this case, who duly qualified. Some time prior to his death O’Brien had placed various sums of money in the hands of his son Robert, the defendant, in trust, to be invested and the interest or income to be paid to Patrick. Hare brought an action against Robert in the court of common pleas of Wyandot county, Ohio, to enforce payment of the money alleged to have been placed in Rqbert’s hands, and recovered a decree or judgment against Robert for $18,000. The suit was in the nature of a foreign attachment, and certain real and personal estate of Robert in Wyandot county was attached in the hands of garnishees. Robert was not personally served but appeared by counsel, put in an answer and contested the suit. The decree or judgment entered against him in the common pleas was subsequently, on his appeal, affirmed by the Supreme Court of Ohio. About $6,000 was realized on the judgment out of Robert’s property in Ohio. On October 11, 1909, Hare brought the present action in the common pleas of Armstrong county, Pennsylvania, on the decree or judgment obtained by him in Ohio, and seeks to recover the balance due thereon. On the trial of the cause the court directed a verdict for the defendant, but subsequently entered judgment non obstante veredicto for the plaintiff. The defendant has taken this appeal. Hare has not administered on O’Brien’s estate in Pennsylvania, but on September 1, 1909, letters of administration were issued in Armstrong county to Carl A. O’Brien.

The appellant denies the right of the plaintiff to recover, and contends that sec. 6 of the Act of March 15, 1832, P. L. 135, 1 Purd. 1074, prohibits the plaintiff, a foreign administrator, from suing on the Ohio judgment in this state, and especially as there is an ancillary administrator here; that to allow a recovery would authorize the assets of the decedent to be removed from this state to the injury of our citizens who are creditors, and that the Ohio court did not have jurisdiction over the subject-matter of the action.

At common law, a foreign executor or administrator had no authority as such to bring an action outside the jurisdiction of his appointment. Our act of 1705, 2 Stat. at Large, 195, changed the common law in this respect, and provided that a foreign executor or administrator, producing letters here, could bring an action in any court of this province. The present law on the subject is the sixth section of the Act of March 15, 1832, P. L. 135, 1 Purd. 1074, which re-established the common law, and provides as follows: “No letters testamentary or of administration, or otherwise purporting to authorize any person to inter-meddle with the estate of a decedent, which may be granted out of this commonwealth shall confer upon such person any of the powers and authorities possessed by an executor or administrator, under letters granted within this state.” This act, it may be observed, is limited in its operation, and in terms, simply prohibits a foreign representative from exercising in Pennsylvania “any of the powers and authorities possessed by an executor or administrator under letters granted within this state.” A foreign administrator cannot sue here for choses in action or other assets of the decedent’s estate whose situs is in this state. Under the statute, they must be administered by an ancillary administrator, and hence the domiciliary administrator cannot intermeddle with them. What the former may do, the latter cannot do. This is the settled law of the state. In this case, we are not dealing with assets of the decedent within this jurisdiction which can be administered by an ancillary administrator. The present action was brought on a judgment obtained by the plaintiff in Ohio, the domicile of the decedent, on a claim against the defendant who appeared and resisted a recovery. The situs of the judgment was in Ohio, and it was an asset of decedent’s estate in Ohio and not in Pennsylvania: Viosca’s Est., 197 Pa. 280, 287; Arizona Cattle Co. v. Huber, 4 Ariz. 69; Attorney General v. Bouwens, 4 Mees. & W. 171. As said by Woodward, J., in Moore v. Fields, 42 Pa. 467, 472, an action brought here by a foreign administrator on a decree obtained in another state: “That money was never subject'to administration in Pennsylvania. It was an administered fund before it was brought here.” The suit in Ohio was brought to enforce the payment of a claim for money placed in the hands of the defendant by the decedent in his lifetime and to be subsequently accounted for to the decedent, and was not brought to recover specific securities of the decedent’s estate in this jurisdiction in the possession of the defendant, a resident of this state. The debt was merged in the judgment which belonged to the administrator personally, subject to the duty to account to the estate of the decedent in the state of the latter’s domicile. He holds the legal title, subject only to his trust as administrator: 1 Freeman on Judgments (4th ed.), sec. 217. He is fixed for the amount of the judgment and can only relieve himself by showing that he exercised reasonable diligence to recover it. It is his duty to pursue the judgment debtor wherever he may be found, if, by doing so, payment may be enforced. The domiciliary administrator may therefore sue in his own name in another state on a judgment recovered by him in his representative character in the state of the domicile: 1 Freeman on Judgments (4th ed.), sec. 217; 2 Wharton, Conflict of Laws (3d ed.), sec. 615 18 Cyclopedia of Law, 1239, and cases cited

in the notes. The administrator sues as an individual and not in a representative capacity; and, it may be added, that he may bring a transitory action in any state where the defendant may be found and on service of its process the court will acquire jurisdiction regardless of where the cause of action arose: Alley v. Caspari, 80 Me. 234; 6 Am. St. Repr. 178; Fisher v. Fielding, 67 Conn. 91; 52 Am. St. Repr. 270; Mowry v. Chase, 100 Mass. 79. Judge Freeman says (sec. 217): “He (the domiciliary administrator) may sue upon the judgment in his own name, without describing himself as administrator, and may therefore pursue the judgment defendant, by action on the judgment, in a different state from that in which the letters of administration were issued; and there can scarcely be a doubt that a judgment rendered in favor of an administrator so merges the debt that it may be treated as his personal effects so far as to authorize him to maintain suit thereon in a foreign country, without there taking out letters of administration.” Moore v. Fields, supra, was an action of debt brought in the district court of Philadelphia by the public administrator of the city of New York on the record of a decree entered by the surrogate’s court of New York. After saying that the decree, unappealed from, was conclusive between the parties, Woodward, J., delivering the opinion, continued (p. 472): “It is of no moment that he is called administrator in the surrogate’s record. Had he been called trustee for creditors and heirs or had no title whatever been given him, his right to recover in our courts upon such a record would have been the same as it is now. A judicial decree that a man receive a certain sum of money from defendants, who were duly warned and fairly subject to the jurisdiction, entitles him to sue for it in a Pennsylvania court, with or without his official title.”

The ancillary administrator cannot sue on the judgment or for the debt, as he is not a party to the judgment nor in privity with the foreign administrator: Talmage v. Chapel, 16 Mass. 71. “An administrator under grant of administration in one state,” says Grier, J., in Stacy v. Thrasher, 47 U. S. 44, 59, “stands in none of these relations to an administrator in another. Each is privy to the testator, and would be estopped by a judgment against him, but they have no privity with each other, in law or in estate. They receive their authority from different sovereignties, and over different property. The authority of each is paramount to the other.” The same principle is recognized and applied in Brodie v. Bickley, 2 Rawle, 431, 437; Lewis v. Adams, 70 Cal. 403; 59 Am. Rep. 423; and Arizona Cattle Company v. Huber, 4 Ariz. 69.

It is equally clear that the ancillary administrator cannot bring an action against the defendant in this jurisdiction to recover the original indebtedness. The suit in Ohio was brought by the domiciliary administrator to recover a money judgment in the court of common pleas, which had jurisdiction of the cause of action so far as the record discloses. The action was in personam and not in rem. The defendant voluntarily appeared and contested the merits of the plaintiff’s right to recover, and therefore the court had jurisdiction of his person. The judgment is conclusive between the parties, Guthrie v. Lowry, 84 Pa. 533, and is a bar to another suit for the same cause of action. The debt was merged in the judgment which bars a new action, and the defendant can successfully interpose the judgment as a defense to a suit brought by the ancillary administrator.

There is no question of fraud in the case. The suit in Ohio was not brought to defeat the rights of Pennsylvania creditors to assets of the decedent in this state, but to assert a claim which was judicially determined to be legally due the plaintiff from the defendant. The domicile of the decedent being in Ohio, his administrator could lawfully sue in that state to recover the claim in question, and the defendant having voluntarily appeared and contested the claim, he is concluded by the judgment of the Ohio court. It is not a fraud nor any evidence of fraud for a party to compel payment of a claim in a court of competent jurisdiction.

For the reasons stated, we are of opinion that the act of 1832 has no application to the facts of this case, and that the plaintiff can maintain the action on the Ohio judgment in this state. It is immaterial that he instituted the suit in his representative character as the domiciliary administrator of the decedent. The proper parties are on the record, and his official title is surplusage and may be disregarded: 2 Wharton, Conflict of Laws (3d ed.), sec. 6153^.

The judgment is affirmed.


author: Mr. Justice Moschzisker,

text:
    Hawk v. Maxler, Appellant.

      Promissory notes — Gift—Question for jury — Pleading—Allegata and probata — Appeals.
    1. In an action by a mother against her son’s executor on a promissory note in the usual form, made two years before the son’s death and payable three years after its date, the trial judge commits no error in submitting to the jury the question whether the note was given to the mother as a gift, where the mother, on being called for cross-examination, testifies that the note was in fact a gift, that nothing was said between herself and her son as to when it was to be paid, but that she understood that it was to be paid after his death.
    2. In an action on a promissory note made by a son to his mother, where the affidavit attached to the declaration states that the note was given for a loan, and the proofs at the trial show that it was delivered as a gift, a judgment on a verdict for the mother will not be reversed on the ground of variance, where the question of variance was not raised at the trial, nor plea of surprise then entered, and no assignment of error raising the question is presented to the appellate court.
    Argued Oct. 3, 1911.
    Appeal, No. 39, Oct. T., 1911, by defendant, from judgment of C. P. Armstrong Co., Sept. T., 1909, No. 1, on verdict for plaintiff in case of A. A. Hawk v. Frank Maxler, Executor of the Last Will and Testament of C. W. Hawk.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit on a promissory note under seal.
    Reed, P. J., specially presiding, charged as follows:
    This is an action brought by Mrs. A. A. Hawk against the estate of C. W. Hawk to recover on a note made and executed by .C. W. Hawk on May 9, 1905, to her order, payable three years after date, calling for the sum of $2,000, with interest at five per cent. On the back of the note are indorsements showing that the interest has been paid up until November 9, 1907. This action is brought to recover the face of the note, $2,000, with interest from November 9, 1907.
    [The plaintiff has offered testimony here to show that this note was executed by C. W. Hawk, and the defendant has called the payee, Mrs. Anna M. Hawk, as a witness. She testifies that her son executed and delivered this note to her without any consideration, but intended to make her a gift of that amount of money, $2,000, which she supposes she was to get out of his estate after his death. That is, that she did not intend to collect it from him in his lifetime. She testifies that there was some conversation between them with reference to a Mrs. Thompson, that he was afraid she would not get justice in the matter, and he gave her this note to protect her against Mrs. Thompson or Mrs. Thompson’s claim upon his estate.] [2]
    [If you are satisfied from the evidence in this case, that C. W. Hawk executed and delivered this note to his mother with the intention of making her a gift of $2,000, then you will return a verdict in favor of the plaintiff for the sum of $2,000, with interest from Novenaber 9, 1907.] [1] If you are not so satisfied or believe that the note was executed and delivered to her for some other purpose, and that she was not to collect it off him, then you will return a verdict for the defendant.
    January 2, 1912:
    Verdict and judgment for plaintiff for $2,258.34. Defendant appealed.

      Errors assigned were (1, 2) portions of charge as above, quoting them.

      J. W. King and H. A. Heilman, for appellant.
    A gift inter vivos of a promissory note drawn by a third person in favor of the donor is invalid when dependent upon the contingency of the donor’s death: Hafer v. McKelvey, 23 Pa. Superior Ct. 202.
    The burden in this case was upon the plaintiff to show that there was a perfected gift and an intention upon the part of the donor to make the gift then and there, dependent upon no contingency whatever: Ashman’s Est., 223 Pa. 543; Hafer v. MeKelvy, 23 Pa. Superior Ct. 202; Scott v. Reed, 153 Pa. 14; Walsh’s App., 122 Pa. 177.

      Ofr Buffington, with him S. F. Clark, for appellee.
   Opinion by

Mr. Justice Moschzisker,

The plaintiff sued the defendant estate to recover on a promissory note payable to her order for two thousand dollars, dated May 9th, 1905, and executed by the decedent, C. W. Hawk. The trial occurred June 7, 1910. The note was offered in evidence and the signature of the maker proved. The defense then called the plaintiff for cross-examination. She testified that the maker was her son and that he gave her the note about two years before the date of the trial; that it was a gift to her; that there was nothing said between her and the donor as to when the note was to be paid, but that she “understood” and “just supposed” that “after his death it was to be paid out of his estate.” The trial judge submitted the case to the jury and charged: “If you are satisfied from the evidence in this case, that C. W. Hawk executed and delivered this note to his mother with the intention of making her a gift of $2,000, then you will return a verdict in favor of the plaintiff for the sum of $2,000, with interest from November 9,1907. If you are not so satisfied or believe that the note was executed and delivered to her for some other purpose, and that she was not to collect it from him, then you will return a verdict for the defendant.” The verdict was for' the plaintiff. The defendant has appealed and assigns' the charge of the court for error.

While this is a close case, we are not satisfied that error was committed in sending the issue to the jury or in the manner of its submission. The note itself was in the usual form; it was actually delivered to the plaintiff, and there was nothing in the testimony that required a finding that its payment was contingent upon the donor’s death.

The plaintiff’s declaration is upon the note and sets forth a copy of the instrument, but the affidavit attached thereto contains a statement that the money was advanced and loaned to the decedent. The appellant now contends that, since the testimony showed a gift of the note, the allegata and probata fail to agree. The point of variance was not raised at trial, there was no plea of surprise, and there is no assignment of error properly bringing it before us; but we will say, since the allegation of a loan occurs in the affidavit attached to the statement of claim and does not constitute an essential averment in the declaration, that we are not impressed with appellant’s contention.

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


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    Welsh v. Kerr Coal Company, Appellant.

      Mines and mining — Defective mining — Defective support — Negligence —Case for jury — Adjoining landowners.

    1. Where one takes the risk of injuring others to save trouble or expense to himself in the use or enjoyment of his property, he makes himself liable for any loss his conduct may inflict upon his neighbor.
    2. In an action against a coal company to recover damages for the destruction of a house and injury to land caused by a slide, the case is for the jury where expert witnesses for the plaintiff testify that the slide was due to the excessive weight of a tramway upon a surface weakened in texture and strength by the escape of mine water through it; that the defendant could have conducted the water in a harmless channel as was customary in such operations; that the tramway could have been fortified by artificial support at small expense; and other witnesses testify that no such thing as a slide had ever occurred at the locality until after the defendant had started mining operations.
    Argued Oct. 4,1911.
    Appeal, No. 41, Oct. T., 1911, by defendant, from judgment of C. P. Armstrong Co., Sept. Term, 1909, No. 115, on verdict for plaintiff in case of Frank Welsh, v. Kerr Coal Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for injuries to a building and land. Before Patton, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $2,000. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      B. A. McCullough and B. L. Balston, for appellant.

      C. E. Harrington, with him Harry C. Golden, for appellee.

      January 2, 1912:
   Opinion by

Mr. Justice Stewart,

In consequence of a slide, occurring on the hill on which plaintiff owned an improved lot of ground with dwelling erected thereon, plaintiff’s building was wrecked and his property otherwise seriously damaged. He brought the present action against the defendant company complaining that the slide was occasioned by the negligence of the defendant in opening and operating its coal mine on the hillside some twenty-eight feet above the level pf his property. The defendant had utilized the dirt and culm which it had taken from the entry of the mine in constructing a tramway along the hillside from the mouth of the mine, some 240 feet north of plaintiff’s land, to its tipple, 250 feet deep south of said lot, upon which tracks were laid to run cars upon between mine and tipple. It further appeared that in opening the mine, water in considerable quantity which prior thereto had subterranean flow, was diverted in its course and escaped through the entry to the mine above the tramway. The averment was that the defendant company had provided no proper drainage for this water, and had negligently allowed it to percolate through the soil or loam upon the hillside, so that the soil of plaintiff’s lot had become loosened and insufficient to support the weight and pressure of the tramway which defendant had constructed along the hillside, and that the slide which wrecked the plaintiff’s house was the immediate result of the defendant’s negligence in this regard. The case was carefully tried, and was submitted to the jury in a full and impartial charge, with the result that recovery was allowed the plaintiff. The burden of the appeal is that the court erred in not directing a verdict for the defendant, on the ground that the evidence was not sufficient to warrant the inference that the slide that did the injury resulted from either or both of the acts complained of, and that no negligence was shown. The first proposition takes no account whatever of the testimony of the several witnesses called by plaintiff, who, speaking from long acquaintance with the hillside, say that no such thing as a slide ever occurred there until after defendant’s coal operation was entered upon in 1906; and, what is far more important, the testimony of the expert witnesses called by plaintiff, who, speaking from long familiarity with coal operations such as defendant’s, does not hesitate to ascribe the slide to the excessive weight of the tramway upon a surface weakened in texture and strength by the escape of mine water through it. The competency of the witness to testify in this regard was clearly established, not simply by long experience in connection with coal .operations, but by scientific attainments as well. The weight of his testimony, and that of others, with less experience perhaps, but sufficient to qualify them as experts, the correctness of their conclusions, with the reasons on which they rested, were matters wholly for the consideration of the jury. The second proposition is alike untenable. Assuming that the immediate cause of the slide was the weakening of the surface below the tramway by reason of the escaped mine water — and this was evidently the conclusion reached by the jury — was it negligence in the defendant company to suffer this escape in view of conditions there existing? To show that it was, the same expert witnesses were called to testify that such result as a slide was reasonably to be anticipated where such conditions existed, and that because of this it was usual and customary in operations of this kind to conduct the escaped water in a harmless channel; that it was entirely practicable to have done so in this instance; and without this, that it was reasonably practicable for the defendant to have fortified its tramway by artificial support at small expense. The testimony of the main witness for the plaintiff, Robert H. Wilson, a mining engineer of more than thirty years’ experience, was as follows: “Considering the nature of the ground, that that place was a slippery one, it was not a safe proposition to start to build the fill (tramway) without greater protection than was taken; .... that fill, as it appears from the indication on the surface of things there, a careful builder or construction man would not have thought of putting that fill on without taking some precaution to make it tight on the slippery places both for himself as well as the property below. I would say some sort of footing should have been put in there, that would have been only a common and reasonable precaution and a very necessary one in the building of that fill, otherwise the building of that fill is probably just as anyone would do it if they had to get rid of the material from the mine, but they did not begin their work right.” In view of such testimony as this, supported as it was by that of other witnesses to like effect, a withdrawal of the case was impossible. The case of Penna. Coal Co. v. Sanderson, 113 Pa. 126, so much relied upon by appellant, is without application here. That case neither contradicts nor qualifies a settled rule which does here apply, that where one takes the risk of injuring others to save trouble or expense to himself in the use and enjoyment of his property, he makes himself liable for any loss his conduct may inflict on his neighbor. On a review of the whole record we are of opinion that the case was one for the jury. We see no merit in the assignments that charged error in the admission of evidence.

The judgment is affirmed.


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    Beck v. Baltimore & Ohio Railroad Company, Appellant.

      Negligence — Damages—Evidence—Inadequacy of charge.

    1. In a negligence ease against a railroad company where the plaintiff offers some evidence as to injuries to her leg, but produces no evidence whatever as to expenses which had been incurred by reason of the injury, or were yet to be incurred, and no evidence upon which to base an allowance for loss of earning power, it is reversible error for the trial judge to instruct the jury that they were warranted in taking these elements into consideration in making up the verdict without any further directions.
    2. In a negligence case damages are never presumed; they must be proven, or at least such facts must be established as will furnish a basis for their assessment according to some definite and legal rule. It is the duty of the trial judge to instruct the jury as to the proper measure of damages, and what the law requires in their ascertainment.
    Argued Oct. 4, 1911.
    Appeal, No. 109, Oct. T., 1911, by defendant, from judgment of C. P. Westmoreland Co., May T., 1910, No. 681, on verdict for plaintiff in case of Mary Beck v. Baltimore & Ohio Railroad Company.
    Before Pell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Doty, P. J.
    The court charged in part as follows:
    In regard to this matter of damages, about all that we can say that will be helpful is to state what the law is in relation to it, and that is if injured by the negligence of defendant company the plaintiff would be entitled to compensation. The purpose of the action is not to punish the defendant. It is not alleged that the injury was willful; it is simply alleged that there was negligence; and the rule is that the plaintiff is entitled only to a fair compensation for the injuries received. If we are to carry out that rule and give the plaintiff fair compensation she ought to be entitled to any expenses that naturally followed the injury that she received. The only trouble in the case in regard to that item is that there is no evidence of any expense to which she was subjected; she had attention in the hospital but no bills are presented and no payments made so far as the evidence goes on account of such matter. There is evidence that liniment, perhaps other medicines, were used, but there is nothing given to the jury to show what was the fair cost. One doctor, who has been examined as a witness, attended her on one or two occasions and perhaps longer, and if he presented a bill the jury is not informed by any testimony as to what the amount of his claim is. Of course these matters should not be simply dumped into the jury box; you have no right to guess that she was under any expense; if the plaintiff does not take the trouble to explain by testimony what such expense was, you have nothing to base any estimate of what would be compensation for expenses. If we are to carry out the rule and give the plaintiff a fair compensation for the injuries she received, she ought to have some allowance for any loss of earning power. Whether this injury be temporary or whether it be permanent she was confined to the hospital, as we have said, two months; she alleges that she is permanently injured; some household duties she can perform now as she formerly performed them, and we have already referred to this branch of the case in suggesting to you that you find the extent of the injuries the plaintiff received. Whatever the loss of earning power is she ought to have some allowance for, if we are to apply the rule already referred to. Whether this be temporary or whether it be permanent, you will likely be embarrassed here too because there is no evidence of what her earning power was or is now. It appears she was keeping house for one of her sons; she employed some help, or about the house other help was resorted to; but there is no testimony on account of any of these matters, and how the jury is going to gauge this particular matter without any evidence we are at a loss to see or direct you about. So far as expenses and earnings are concerned the case seems to be absent of any testimony that would safely guide and ought to control your judgment in the matter. Plaintiff would also be entitled to an allowance looking toward recompense for pain and suffering. She has testified to the pain she suffered and that she still suffers; inconvenience and pain as the result of these injuries. This is a matter, however, that ought not to inflame your imaginations. We have no way to value pain like you do a commodity in the market; there is no way to measure it, but the law does allow some allowance looking toward recompense on account of the suffering consequent upon the injury. With these suggestions we submit the matter to you to determine.
    January 2, 1912:
    Verdict and judgment for plaintiff for $1,654.16. Defendant appealed.

      Errors assigned were (2) portion of charge as above and (3) in not instructing the jury that there was no evidence whatever to justify them in allowing any recovery for expenditures in any form, or for loss of earnings.

      Edward E. Robbins, with him A. M. Wyant, for appellant.
    The charge was erroneous on the subject of damages: McHugh v. Schlosser, 159 Pa. 480; O’Reilly v. St. Ry. Co., 17 Pa. Superior Ct. 626; Goodhart v. Penna. R. R. Co., 177 Pa. 1; McLane v. Rys. Co., 230 Pa. 29; Wilkinson v. North East Boro., 215 Pa. 486.

      Curtis H. Gregg, with him Sidney J. Potts, for appellee.
   Opinion by

Mr. Justice Elkin,

This is an action to recover damages for injuries alleged to have been sustained by plaintiff in alighting from a train on which she was a passenger. The negligence charged is that the defendant company in the operation of the train on which the plaintiff was a passenger at the time of the accident did not give sufficient time to alight in safety, but started the train with a sudden jerk while plaintiff was standing on the step of the platform, and before she had reached a place of safety. It was also charged that the plaintiff was violently thrown to the ground, causing permanent injuries and great bodily pain and suffering. As a result of the injuries thus sustained it is averred that the injured person was compelled to lay out and expend large sums of money for medicine and medical attendance, and that her earning power had been lessened because prevented from attending to her household duties and other regular and lawful business. The statement of claim sets out a good cause of action, but the difficulty is that the evidence offered to sustain the averments is very meager and unsatisfactory. The case seems to have been tried on the theory that the averments contained in the declaration made out a prima facie case of negligence and of damages resulting therefrom, and that the introduction of testimony to sustain the allegations was of secondary importance. The presumption of negligence or of damages did not arise under the facts of this case. The burden of proving the negligence compláined of, the injuries alleged to have resulted therefrom, and the damages sustained thereby, was upon the plaintiff. While the evidence of negligence is not of a definite and satisfactory character, we have concluded that upon the whole record this question was for the jury. Then, again, the nature of the injuries sustained is not definitely or accurately stated by any witness called to testify. Just what the injuries were is largely a matter of conjecture. The plaintiff herself did not give any intelligent description of her injuries, and the physician who attended her at the hospital was not called as a witness. These important matters were overlooked in the trial of the case. However, there was sufficient evidence of negligence to submit to the jury, and there was also some testimony tending to show an injured and swollen leg resulting from the accident. Under these circumstances we have concluded that there is sufficient in the record to warrant the granting of a new trial at which time all of the facts should be more fully developed and presented.

The assignments of error relating to the inadequacy of the charge upon the question of damages we feel constrained to sustain. The burden of proving damages was upon the plaintiff, and this burden to say the least was very indifferently borne. Although it was alleged that the plaintiff had been compelled to expend large sums of money for medicine and medical attendance, not a word of testimony was offered to support this allegation. No earning power either before or after the injury was shown. No testimony was offered to show the value of services before or after the accident. There was testimony showing that a physician had attended the plaintiff after her return from the hospital, but the record is silent as to what his services were worth, or whether anything had been paid him on account of these services. A witness stated that some liniment had been used in rubbing the limb, but there is no suggestion as to the amount or the cost. We might go on almost indefinitely pointing out how bare the record is of facts upon which a jury could base an intelligent finding as to the expenses incurred, or to be incurred, or what compensation if any plaintiff was entitled to recover. The learned trial judge appreciated the difficulties of the case and frequently adverted to the .meager character of the evidence in his charge to the jury, but committed the error of not instructing them that there was no evidence to warrant as an element of damages expenses already incurred, or yet to be incurred, or anything upon which to base an allowance for loss of earning power. The rule as to the eléments of damages that may be recovered in cases of this character is very well stated in Goodhart v. Railroad Co., 177 Pa. 1. It is important, however, in the trial of such cases to prove the facts upon which these various elements of damages are based. This burden is always upon the complaining party. Damages are never presumed; they must be proven, or at least such facts must be established as will furnish a basis for their assessment according to some definite and legal rule. It is the duty of the trial judge to instruct the jury as to the proper measure of damages and what the law requires in their ascertainment: Wilkinson v. North East Boro., 215 Pa. 486; McLane v. Pittsburg Railways Co., 230 Pa. 29. Viewed in the light of the testimony, the instructions of the learned trial judge upon the question of damages did not meet the requirements of the rule.

The second and third assignments of error are sustained.

Judgment reversed and a venire facias de novo awarded.