author: Mr. Justice Brown,

text:
    Woods v. Klein, Appellant.

      Bankruptcy — Lien—Mortgage of boat — Preference within four months.

    1. A mortgage of a vessel duly recorded in the office of the collector of its home port is as valid a lien against the boat as a mortgage under the statute of this state is against the real estate mortgaged.
    2. Where a mortgage of a boat gives to the mortgagee the right upon default to take possession of the boat and sell it, and such mortgage is duly recorded more than four months prior to the filing of a petition in bankruptcy against the mortgagor, the mortgagee has a right within the four months to take possession of the boat and sell it in accordance with the terms of the mortgage.
    3. No provision of the bankrupt act contemplates that a valid lien, acquired more than four months before the filing of a petition in bankruptcy, shall be vacated by the bankruptcy proceedings, or that the enforcement of such a lien by execution shall constitute an illegal preference. There is a clear distinction between the bald creation of a lien within the four months and the enforcement of one previously acquired. The lien that is invalidated by the bankrupt act is one created by a levy, judgment, attachment, or otherwise within four months; where the lien is obtained more than four months prior to the institution of the bankruptcy proceedings, it is not only not to be deemed null and void on an adjudication of bankruptcy, but its validity is recognized.
    4. Where a mortgagee of a boat purchases the boat at his own sale under a provision in the mortgage, any irregularities in the sale are waived by the mortgagor, if he confirms the sale and takes an option from the mortgagee to repurchase the boat.

      Replevin — Boat—Measure of damages.

      5. Where the defendant in replevin for a boat retains possession of the boat under bond, the jury in estimating the value of the boat may deduct from its market value at the date of the issue of the writ in replevin, the amount of the valid and subsisting liens against it on that date which had not been waived nor abandoned, and which had not been subsequently waived, abandoned or lost by the action of the claimant, nor by legal proceedings.
    6. In such a case the record in the bankruptcy proceedings against the claimant showing a petition of the receiver in bankruptcy to sell the boat and the adjudication by the federal court of maritime and statutory liens against it, is not evidence against the plaintiff in replevin as to the amount that ought to be deducted for such liens from the value of the boat inasmuch as he was not a party to the proceedings in the federal court and was not heard there.

      Trial — Jury—Remark by member of jury.

    7. A complaint made by the foreman of a jury after a verdict to the effect that the jury room had been cold, and that if it had been properly heated there might or would have been a different verdict, is no ground for setting aside a verdict, in view of the fact that nothing was said' by the foreman until after the verdict had been duly returned and recorded without any protest by any of the jurymen.
    Argued Oct. 23, 1908.
    Appeal, No. 133, Oct. T., 1908, by R. M. MacKenzie, Trustee of the Estate of John F. Klein, Bankrupt, from judgment of C. P. No. 4, Allegheny Co., Fourth Term, 1907, No. 67, on verdict for plaintiff in case of Lawrence C. Woods v. John F. Klein.
    Before Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Replevin for a boat. Before Carnahan, J.
    The facts are stated in the opinion of the Supreme Court.
    Plaintiff presented the following point:
    2. In estimating the value of the boat you must find from the evidence its market value on July 8, 1907, and from this market value you must deduct the amount of the valid and subsisting liens on said boat existing on July 8, 1907, and which have not been waived or abandoned at that time, and were not subsequently waived, abandoned or lost by the action of claimants or by legal proceedings.
    Affirmed, but should be considered in connection with the first point. [3]
    Defendant presented these points:
    2. In order to make said bills of sale valid under the terms of the mortgage from John F. Klein to plaintiff, the said terms and conditions of said mortgage, upon default, must be literally complied with, by plaintiff taking possession of the said vessel and after taking such possession, advertising and selling and conveying the same to satisfy said mortgage debt. Therefore, if the jury believe from the evidence that plaintiff, as mortgagee, or his agent, W. D. Stockdale, had not possession of said vessel at the time of said alleged sale by Stockdale, then said sale was null and void, and consequently any bill of sale given by virtue of said sale is of no effect, and the verdict must be for the defendant. Answer: Affirmed as to compliance with the terms and conditions of the mortgage. It was not necessary, however, that plaintiff take possession before the levy; after levy and until sale possession was in plaintiff by reason of the levy. [4]
    3. If the jury believe from the evidence that no consideration passed for the bill of sale from John F. Klein to plaintiff, date June 4, 1907, the same is null and void. Answer: Refused. This bill of sale was given under seal, which seal imports consideration. [5]
    4. If the jury believe from the evidence that the bill of sale of June 4, 1907, from John F. Klein to plaintiff, was given as an additional security for the debt already owing by Klein to plaintiff, then the same is a mortgage. Answer: Refused. It is not a mortgage unless the parties so intended. [6]
    5. A ship or vessel is a mere piece of personal property — a chattel — and a sale accompanied by a delivery of possession will transfer title. Therefore, if the jury believe from the evidence that possession was never delivered to plaintiff or his agent, then both bills of sale are null and void and the verdict must be for the defendant. Answer: Refused. If the sale of May 15, 1907, was in accordance with the mortgage it was valid, and plaintiff was entitled to possession. [7]
    6. That the alleged taking possession of the vessel, as testified to by W. D. Stockdale, was not a legal delivery of possession by John F. Klein, nor such as is contemplated by the terms of the mortgage, nor by the law. Answer: Refused. [8]
    ' 7. The plaintiff by accepting the additional security for his debt on April 26,1907, i. e., the note of John F. Klein and W. D. Stockdale for $2,102, renewed the time of payment of said mortgage until May 14, 1907, and canceled all proceedings on the said mortgage prior to said date. Therefore, upon default on May 14, should have proceeded de novo according to the terms of said mortgage; and the evidence showing that he did not so do, the verdict must be for the defendant. Answer: Refused. [9]
    8. If the jury believe from the evidence that the sale of May 15, 1907, was not properly conducted and fraudulent, then said sale is null and void, and the bills of sale given by virtue thereof are of no effect, and therefore the verdict must be for the defendant. Answer: Refused, because there is no evidence to justify such a belief and conclusion. [10]
    8£. That the mortgage in this case not being recognized by the laws of the state of Pennsylvania, and, therefore, invalid as against claims of creditors of John F. Klein, was not a lien against said vessel, consequently all proceedings under said mortgage are null and void as against creditors, and the verdict must be for the defendant. Answer: Refused as a whole. [11]
    9. That the laws of the state of Pennsylvania do not recognize chattel mortgages such as the one in this action. Therefore, the proceedings under and by virtue of the same having taken place, and the bills of sale of May 15, 1907, and June 4, 1907, having been executed and delivered within four months of the filing of an involuntary petition in bankruptcy against John F. Klein, defendant, in the district court of the United States for the western district of Pennsylvania, the said proceedings are null and void, and consequently said bills of sale of no effect, and the verdict must be for the defendant. Answer: Refused as a whole. [12]
    10. If the plaintiff is entitled to recover at all in this action, the measures of damages would be the value of said vessel at date of the issuing of the writ in this case, July 8, 1907, less the amount of the maritime and statutory liens against the same at said date, and damages for detention not exceeding the legal rate of interest. Answer: Affirmed, with the qualification that the liens must be valid and subsisting liens as of that date and not waived, abandoned or lost subsequent to said date. [13]
    11. That under all the evidence in this case the verdict must be for the defendant. Answer: Refused. [14]
    The court charged in part as follows:
    [Whatever verdict may be rendered here, and the verdict should and will be rendered for the plaintiff, there should be stated in it the value of the boat, because, if the plaintiff is entitled to a verdict, he is entitled to the value of the boat, not. being able to get the boat itself, as of that date; and, in determining the question of value, of course, you will, after having determined that, deduct certain liens to which I will call your attention later.] [15]
    [In the early part of 1907, the plaintiff, claiming there was default in the payment of this indebtedness, authorized a constable, Mr. Stockdale, to levy on the boat, in pursuance of this mortgage, and to sell the boat, in accordance with the mortgage. The boat was levied upon by Mr. Stockdale, and, following the levy, advertisement was made, pursuant to the terms and provisions of the mortgage; and, on May 15, 1907, the boat was sold and Lawrence C. Woods was the purchaser and became the owner.] [16]
    [In pursuance of that request, the sale did not take place on April 23, as it was advertised to take place, but was postponed until May 14; and then, for some reason, on May 14, the sale was again postponed until May 15, on which date the sale took place.] [17]
    [Therefore, it is not for Captain Klein to say that this sale of May 15, 1907, was not a good sale. It is not for him to say there was no default in the payment of this indebtedness, and that, therefore, there could not be a sale. And, it is not for him to say that there were irregularities about the sale, because he himself confirmed that sale, recognized it, and acquiesced in it, as shown by the papers I have read to you. If the sale was good, and I say to you it was good, L. C. Woods became the owner of that boat on May 15, 1907; and, there being no evidence in this case to indicate that he parted with the ownership between May 15, 1907, and July 8, 1907, he was the owner of the boat on July 8, 1907. Therefore, so far as the question of ownership is concerned, there is but one verdict that you can render and that is that he was the owner of the boat at that time.] [18]
    [But you must go a step further. There must be evidence that the supplies were furnished on the credit of that particular steamboat, but that the parties looked to the steamboat for payment. If they were furnished on the credit of Captain Klein and not the steamboat, the steamboat would not necessarily be chargeable with them, and the evidence would be insufficient to charge the steamboat with them. There are certain ways of determining that question, as to whether or not the supplies were furnished on the credit of the boat. If there was a distinct agreement between the parties that the supplies were to be furnished, and were to be furnished on the credit of the boat, that would settle the matter. If there was a common understanding between them, if it had been discussed before, or if the circumstances were such as to indicate a common understanding between the parties (but that must be mutual) that the supplies were to be furnished on the credit of the boat, that would be sufficient testimony to consider and act upon. But, there must be some testimony of that kind, in order to justify you in saying these supplies, or the supplies in any particular case, were furnished on the credit of the boat. If they were not furnished on the credit of the boat, they are not liens for you to consider here at all and to deduct from the value of the boat as you may find it to be as of July 8, 1907.] [19]
    [There is the claim of James Rees & Sons, $608.16. Now, as I recollect it, the bookkeeper testified that these were charged to Klein in the books; but, as I say, that makes no difference, if the bookkeeper knows they were furnished to the "Island Queen,” and, I understand him to say he does know they were furnished to the “Island Queen.” I understand him to say they were furnished on the credit of the “Island Queen;” and, if he did say so, his knowledge was derived from the books, as I understand him. If that is so, and there is no other evidence in the case, that is, Captain Klein did not testify on that question in reference to that claim, the claim should not be allowed. Now, the stenographer has handed me here some notes of the testimony on the part of Mr. Blackmore, the bookkeeper, and the testimony on this point is this: “Q. Are we to understand that $608.16 was charged against the ‘Island Queen’ and on the credit of the ‘Island Queen’? Is that right? A. Charged up against the ‘Island Queen,’ $608.16, and appears on our books. Q. Were these supplies and work done on the ‘Island Queen’ and delivered to the ‘Island Queen’? A. Yes, sir. Q. How can you say that was charged to the ‘Island Queen’ when the caption of your account is Captain John Klein, and this is charged into that account? A. The book of original entry, the daybook, is the steamer ‘Island Queen.’ Q. And that only shows where the work was done? A. Shows who it was done for.” Now, if I am right about it, and I think I am, there is no testimony on the part of Mr. Blackmore that these supplies were furnished on the credit of that boat. There is no testimony of Captain Klein that these supplies were furnished on the credit of the boat. And, that being so, I will have to say to you that that claim should be excluded from your consideration.] [20]
    Verdict and judgment for plaintiff for $2,196.40. Defendant appealed.

      Errors assigned amongst others were (3-20) above instructions, quoting them; and (29-35) refusal of the. court to set aside the verdict on account of the alleged misconduct of the jurymen.

      L. C. Barton, for appellant.
    — While it is true as a general principle that an agreement by a debtor to give his creditor an equitable lien upon personal property retained in the possession of the debtor is good as between themselves and will be enforced in equity, it is not good as to attaching or lien creditors, and very doubtful if it is good as to general creditors, after bankruptcy proceedings: First Nat. Bank v. Staake, 202 U. S. 141; Christ v. Zehner, 212 Pa. 188; Wylie’s App., 92 Pa. 196; Mueller v. Nugent, 184 U. S. 1 (22 Sup. Ct. Repr. 269).
    The jurisdiction of the bankrupt court is such that an attempt to enforce a lien in any other court is liable to be enjoined. In re Utt, 105 Fed. Repr. 754; In re Matthews, 109 Fed. Repr. 603; In re Pittelkow, 92 Fed. Repr. 901.
    A sale so made may be set aside: In re Davis, Fed. Cases, 3618; Davis v. Anderson, Fed. Cases, 3623; Cunningham v. Bank, 43 C. C. A. 377.
    In the case of invalid mortgages there is no four months’ limitations as in the case of preferences: Loveland on Bankruptcy, sec. 197; Eau Claire Nat. Bank v. Jackman, 204 U. S. 522; City of Tawas, 3 Fed. Repr. 170.

      All the proceedings under said mortgage took place within four months of the filing of the petition in bankruptcy, during all of which time the evidence shows that Klein was insolvent, and that Woods knew or ought to have known of this fact. Wherefore said proceedings are a preference contrary to sec. 60a, as amended February 5, 1903: In re Wilkes, 112 Fed. Repr. 975; In re Haynes, 123 Fed. Repr. 1001; In re Haymes Buggy, etc., Co., 130 Fed. Repr. 977; Clarke v. Larremore, 188 U. S. 486 (23 Sup. Ct. Repr. 363); The Gordon Campbell, 131 Fed. Repr. 963.
    Upon assignments of error twenty-ninth to thirty-fifth, relating to the action of court below in not setting aside the verdict, we respectfully submit that this matter is directly ruled by case, of Kramer v. Kister, 187 Pa. 227.

      A. Leo Weil, with him Charles M. Thorp and S. Leo Bus-lander, for appellee.
    — A mortgage on a vessel duly recorded under the acts of congress is a valid lien against subsequent purchasers, lienors and all persons, without regard to the state law on the subject of chattel mortgages: White’s Bank v. Smith, 74 U. S. 646; The Vigilancia, 73 Fed. Repr. 452; The Gordon Campbell, 131 Fed. Repr. 963.
    A chattel mortgage given two years before bankruptcy proceedings against the mortgagor were instituted, even if void as to creditors and purchasers, is good as between the parties, and if foreclosed and title obtained by the mortgagee before the bankruptcy proceedings are instituted, the trustee in bankruptcy of the mortgagor cannot attack the title: Bismarck B. & L. Assn. v. Bolster, 92 Pa. 123.
    The foreclosure under the mortgage given prior to the four months’ period of the bankruptcy act, is not within the provisions of said act: Owen v. Brown, 120 Fed. Repr. 812; In re Chapman, 99 Fed. Repr. 395; Rome Planing Mill Co., 96 Fed. Repr. 812; Thompson v. Fairbanks, 196 U. S. 516; Fisher v. Zollinger, 149 Fed. Repr. 54; Humphrey v. Tatman, 14 A. B. R. 74; Wilder v. Watts, 15 A. B. R. 57; In re Mayer, 19 A. B. R. 356.
    . The trustee in bankruptcy had no standing in this replevin suit, which is a proceeding-to try the question of title and taking; his remedy, if any, and his rights could not be determined or enforced in this proceeding.
    The sale was in fact regular and proper and was acquiesced in, ratified and approved by the mortgagor long before any bankruptcy proceedings were instituted.
    The appellant has no right to complain of the measure of damages laid down by the court.
    January 4, 1909:
   Opinion by

Mr. Justice Brown,

On November 23, 1905, John F. Klein, the owner of a steamboat called “ Island Queen,” executed a mortgage on it to Lawrence C. Woods to secure the payment of $2,000. This mortgage was recorded in the office of the collector of the port at Pittsburg six days later, and, by its terms, upon the default of the mortgagor, the mortgagee was authorized to take possession of the vessel, and, after giving thirty days’ notice by publication in a newspaper published in the city of Pittsburg, to sell it, returning any surplus to the mortgagor. A further provision was that .the mortgagee might become a purchaser of it at such sale. Default having been made, Woods, the mortgagee, took possession of the boat through a bailiff in March, 1907, by whom it was advertised to be sold on April 23, 1907. No sale was held on that day, an adjournment having been asked for by Klein, and, after another adjournment, also at his request, the boat was sold to Woods on May 15, 1907. After the sale Klein took a written option from Woods to repurchase it for $1,869.08, the option to be void if payment was not made on or before July 1, 1907. In the interval Klein was allowed to use the boat, but, not having exercised his option, Woods demanded possession of it on or about July 6, 1907, which was refused. On July 8,1907, this writ of replevin was issued, and, upon a bond given by Klein, he retained possession of the boat. On August 8, 1907, involuntary proceedings in bankruptcy were instituted against him, and, on the 29th of the same month he was adjudged a bankrupt. In November following, B. M. MacKenzie, his trustee in bankruptcy, was allowed to intervene as a defendant. A verdict was directed for the plaintiff, and damages were found by the jury under instructions from the court as to their measure. These instructions, as well as the direction of a verdict, are assigned as error.

The validity of the mortgage on the boat, as between the parties to it, is not questioned by any one of the thirty-six assignments of error. The contention of the appellant is that the sale under it was void as to his trustee in bankruptcy, because possession was taken of the mortgaged property within four months of the institution of the bankruptcy proceedings. The boat was a vessel within the provisions of the act of congress of July 29, 1850, and, having been recorded in accordance with that act, it was as valid a lien against the boat as a mortgage under the statute of this state would have been upon real estate of the mortgagor. In White’s Bank v. Smith, 7 Wall. 646, where it was held that the recording of a mortgage on a ship in the office of the collector of the home port of the vessel gives the mortgagee a preference over a subsequent purchaser or mortgagee, irrespective of any formalities required by the state statute to give effect to chattel mortgages, Mr. Justice Nelson said: “Congress having created, as it were, this species of property, and conferred upon it its chief value under the power given in the constitution to regulate commerce, we perceive no reason for entertaining any serious doubt but that this power may be extended to the security and protection of the rights and title of all persons dealing therein. The judicial mind seems to have generally taken this direction.”

The appellee acquired no right or lien as a preference over other creditors of the appellant within four months of the institution of the bankruptcy proceedings. What he did within that period was the exercise of a right and the enforcement of a lien which had been acquired eighteen months before. The right was to take possession of the mortgaged boat and sell it at any time upon • the default of the mortgagor. The preference was obtained when the lien attached in 1905, and not when it was enforced in 1907. No provision of the bankrupt act contemplates that a valid lien, acquired more than four months before the filing of a petition in bankruptcy, shall be vacated by the bankruptcy proceedings, or that the enforcement of such a lien by execution shall, constitute an illegal preference: Owen et al. v. Brown, 120 Fed. Repr. 812. There is a clear distinction between the bald creation of a lien within the four months and the enforcement of one previously acquired : Thompson v. Fairbanks, 196 U. S. 516. The lien that is invalidated by the bankrupt act is one created by a levy, judgment, attachment or otherwise, within four months; where the lien is obtained more than four months prior to the institution of the bankruptcy proceedings, it is not only not to be deemed null and void on an adjudication of bankruptcy, but its validity is recognized. When the lien is obtained within four months, the property of the bankrupt is discharged therefrom, but not otherwise: Metcalf Bros. & Co. v. Barker, 187 U. S. 165. If the appellee had taken from the appellant a mortgage upon a house or farm belonging to him and within four months of the bankruptcy proceedings had issued a scire facias upon it and sold the property at sheriff’s sale, such sale would have been perfectly good as against the trustee in bankruptcy; and so of the proceedings on this mortgage, recognized as a valid lien by the act of congress. An authority directly in support of the appellee’s title to the boat, acquired by the sale on the mortgage, is Fisher v. Zollinger, 149 Fed. Repr. 54, in which it was held by the United States circuit court of appeals for the sixth circuit that where a chattel mortgage was given more than four months prior to the bankruptcy of the mortgagor, "the taking possession by the mortgagee within such four months, with the consent of the mortgagor and as authorized by the terms of the mortgage, although with knowledge of the mortgagor’s insolvency; did not constitute a transfer or preference under the bankruptcy act.

The intervention of the trustee in bankruptcy as a defendant in no manner affected the issue between Klein and Woods. The sole question after the intervention continued to be whether the title to the boat was in Woods at the time he brought his action of replevin, and the learned trial judge correctly decided as a matter of law that it was. The execution of the mortgage was admitted by the mortgagor; his default was clearly proved; the mortgagee, in accordance with the terms of the mortgage, took possession of the boat, sold it and became the purchaser of it, and, even if there had been any irregularities in the sale, they were waived by the mortgagor in writing, when, on June 4,1907, he confirmed the sale and took an option from the appellee to repurchase the boat. In the face of this there was no possible defense on the question of title.

The jury were instructed that in estimating the value of the boat they should find from the evidence its market value on July 8, 1907, and from this value deduct the amount of the valid and subsisting liens against it on that date which had not been waived or abandoned and which were not subsequently waived, abandoned or lost by the action of the claimants or by legal proceedings. This was clearly correct. The boat belonged to Woods, who was entitled to possession of it at the time the writ of replevin was issued. If at that time Klein had surrendered it to him, he would thereafter have been compelled to pay only such liens as had not been waived, abandoned or lost. If from the value of the boat there is now to be deducted the amount of liens against it that Klein was not compelled to pay, he will be profiting at the expense of the appellee. The right of the latter was to get the boat on July 8,1907, burdened with such liens only as he might thereafter be compelled to pay.

The record in the bankruptcy proceedings, showing the petition of the receiver to sell the boat and the adjudication by the United States court of the maritime and statutory liens against it, was not evidence against the appellee as to the amount that ought to be deducted for such liens from the value of the boat, for he had not been a party to the proceedings in the United States court and was not heard there.

The disallowance of the claim of James Keese & Sons Company by the court below as a lien is assigned as error. No competent evidence was offered in support of it as a lien. Neither Klein nor Blackmore, the bookkeeper of the claimant, called in support of the claim, testified that the supplies had .been furnished on the credit of the boat, and there was nothing shown that would have justified a finding by the jury that it was a valid lien.

Five assignments of error complain of the court’s refusal to set aside the verdict on account of a remark made by the foreman of the jury after it had been received and recorded. It seems that as the jury were about to separate after their verdict had been received the foreman complained to the court that their room had been cold and stated that if it had been properly heated, there would or might have been a different verdict. The exact words of • the foreman are uncertain, but the learned court, in disposing of the motion to set aside the verdict for the reason stated, properly said: “ But the question as to whether he used the word ‘ would ’ or the word might,’ we do not regard as of any importance, in view of the fact that not one word on the subject of the jury room was spoken until after the verdict had been duly returned and recorded. There was ample opportunity to protest against the verdict, had any juror desired to do so. We do not understand that any of the jurors, at any time, protested against the verdict. On the contrary, it was returned as the act of all, and expressly assented to by all.”

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


source: Caselaw Access Project

author: Me. Justice Beown,

license: Public Domain

text:
    Wright v. Pittsburg Railways Company, Appellant.

      Negligence — Street railways — Wagon—Right angle collision — Case for jury.

    In an action against a street railway company to recover damages for the death of a driver killed in a right angle collision between a wagon and an electric car, the case is for the jury where the evidence for the plaintiff tends to show that the deceased’s team, after passing over the first track, was caught by the car on the second track at a crossing, and that as the feet of the horse were on this track the car was 120 feet distant, and running at a high rate of speed.
    Argued Oct. 26, 1908.
    Appeal, No. 117, Oct. T., 1908, by defendant, from judgment of C. P. No. 3, Allegheny Co., Feb. T.., 1906, No. 100, on verdict for plaintiffs in case of Joseph L. Wright and Elizabeth Wright, his wife, v. Pittsburg Railways Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Elkin and Stewart, JJ. (
    Affirmed.

      Trespass to recover damages for death of plaintiffs’ son. Before Kennedy, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Yerdict and judgment for plaintiffs, for $2,170. Defendant appealed.

      Error assigned was refusal of binding instructions for defendant.

      William A. Challener, with him Clarence Burleigh and James C. Cray, for appellant.

      Body P. Marshall, with him Thomas M. Marshall, for appellees.
    January 4, 1909:
   Opinion by

Me. Justice Beown,

The son of the plaintiffs, at the time of the collision which resulted in his death, was eleven years and five months old. In company with two other boys he was in a two-wheeled pony cart, driving a pony. This was with the permission of his father, who for some time before had allowed him to drive his team on the streets of the East End, Pittsburg, upon which street railway tracks were laid. The father stated that he had no hesitation in trusting him alone with his pony and cart. When the team was struck by a car of the defendant the boy was driving it as an advertisement for his brothers’ livery stable. He had driven it for that purpose in a procession a short time before he drove across the tracks. The case was submitted to the jury under instructions to which no exception has been taken. The single assignment of error is the court’s refusal, upon request, to charge that, under all the evidence, the plaintiffs could not recover.

The sole defense set up is the contributory negligence of the boy. In insisting that the judgment ought to be reversed for this reason, it is contended that in this suit by his parents to recover for their loss in his death, he must, from the testimony, be regarded as a competent driver, familiar with the streets and the dangers incident to travel thereon; that his act in attempting to cross the railway tracks was their act, and they cannot, in view of their permitting him to drive his team upon the streets, say that the test of his contributory negligence was his boyish appreciation of the dangerous situation. Whether this be so or not we need not decide, for even conceding it to be, and that under the circumstances the plaintiffs are estopped from saying that their child ought not to be held to the degree of care that would have been required of an adult, the court could not, under the testimony, have declared as a matter of law that he was guilty of contributory negligence. He was driving eastward on Frankstown avenue, on which there were two tracks of the appellant. He was driving between the west-bound track and the pavement, and as he approached Berlin street to his right, which runs to, but does not extend over, Frankstown avenue, he turned his pony to cross over and go down the street to his brothers’ stable. • Two witnesses to the collision, called by the plaintiffs, testified that the team had passed over the first track, and, when the feet of the pony were on the second or east-bound one, they saw the car at a fixed point- — Hanlon’s building — approaching at a rapid rate of speed. The distance from the east side of the Hanlon building to the west side of Berlin street is 120 feet by actual measurement. If the car was 120 feet distant when the pony reached the east-bound track, it must have been some distance farther west when the deceased turned to cross over the tracks — so far distant that a jury might fairly find that he was not guilty of contributory negligence in-crossing over. Under the evidence submitted by the defendant, he carelessly drove right in front of the approaching car, but the verdict is not to be disturbed, even though we, as jurors, might have found differently. There was- evidence upon which the jury could find that the boy’s carelessness had ■ not contributed to the collision, and the judgment must, therefore, be affirmed.

Judgment affirmed.


author: Mr. Justice Mestrezat,

text:
    Cole’s Election.

      Election contest — School directors — Sufficiency of petition for contest— Delay in moving to quash.

    1. Proceedings to contest elections are regulated by statute and should be so construed by the courts as to protect the elective franchise. The petition should aver plainly and distinctly such facts, which if sustained by proof, would require the court to set aside the result. It should, in the language of the Act of May 19, 1874, P. L. 208, “ concisely set forth the cause of complaint, showing wherein it is claimed the election is undue or illegal.” This is all the statute requires, and the court is not authorized to require more by construction. This will give the respondent sufficient information of the charges of illegality which he is required to meet, and he is entitled to nothing more.
    2. The petition for an election contest' of school directors set forth the number of votes counted and returned by the election board for respondent and contestant, and the number of votes given for the contestant and not counted were stated, showing that the contestant had eleven votes more than the respondent. This was followed by ah averment of the number of legal votes in each one of three election districts which were cast for contestant, and which the election boards in the respective districts refused to count and return for him. The illegal action of the board in refusing to count the votes, was, as alleged in the petition, the result of fraud, deceit or mistake, and this unlawful action it was averred deprived contestant of election to the office of school director to which he was duly elected. Held, that the averments of the petition were sufficient under the act, and that it was error to quash it.
    3. A petition for an election contest was presented on March 12, and the court fixed a hearing on April 9, and a copy of the petition was served on respondent on March 17. Respondent did not appear on April 9, or file an answer. On May 23, the court appointed an examiner. On June 1, respondent moved to quash the petition without giving any reason for the delay. Held, that such a delay in an election contest was not contemplated by the statute and that the court was not justified in quashing the appeal unless ample and controlling reasons therefor were given by the respondent.
    Argued Oct. 29, 1908.
    Appeal, No. 193, Oct. T., 1908, by J. A. Barr et al., from order of Q. S. Allegheny Co., March Term, 1908, No 14, quashing an election contest in case of Election of James A, Cole, for the office of School Director of McKees Rocks Boroúgh.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Motion to quash election petition. Before Cohen, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in quashing the petition.

      R. 8. Martin, with him Edward E. Duffy, for appellants.—
    The petition was sufficient: Mann’s Case, 2 Phila. 199; Election Cases, 65 Pa. 20; Bertolet’s Case, 13 Pa. C. C. Rep. 353; Squier’s Election, 24 Pa. C. C. Rep. 619; Mann v. Cassidy, 1 Brewster, 11; Weaver v. Given, 1 Brewster, 140; Fowler v. Felthoff, 1 Legal Record Rep. 105; Gressang’s Contested Election, 5 Pa. C. C. Rep. 251; In re Contested Election of Beamish, 1 Lancaster Law Review, 155.

      H. L. Hegner, with him D. J. Buchley, for appellee.
    — The petition was not sufficient: Hartzell v. Smith, 18 Pa. C. C. Rep. 551; Skerrett’s Case, 2 Parsons, 509; Keboch’s Election, 6 Pa. Dist. Rep. 637; Common Council Contest, First Ward, 10 Lancaster, 121; Zerby v. Snare, 107 Pa. 183.
    January 4, 1909:
   Opinion by

Mr. Justice Mestrezat,

This is a contest over the election of a school director originating in the quarter sessions of Allegheny county.

On March 12, 1908, a petition was presented to the court of quarter sessions averring, inter alia, that at the election held February 18, 1908, two persons were to be elected school directors for the term of three years in the borough of Mc-Kees Rocks, and four persons were candidates for the office; that Charles F. Woods having received the highest number of votes was duly elected as one director; that 649 votes were counted and returned for J. A. Coole for the office; that petitioners believe and aver that 660 votes were cast and voted for J. A. Barr for said office, giving him a clear majority of eleven votes over Cole; that the election board counted and returned* but 649 votes for Barr, making the returns show that the vote between Barr and Cole was a tie; .that in the first election district of the borough one legal vote, in the second election district, five if not six votes, and in the third election district five votes were legally cast for Barr which the election boards of the respective districts, either through fraud, deceit or by mistake, refused to count and return for Barr, all of which eleven votes it is averred were legally cast for Barr and should have been counted and returned for him for the office of school director. It is further averred that an examination and proper counting of the ballots in the ballot boxes will show .that Barr was legally elected to the office of school director in the borough; and that as shown by the count and return by the board the other or fourth candidate at the election received only 635 votes. The petition was verified by the affidavit of five of the petitioners setting forth, as required by the statute, that according to the best of their knowledge and belief the election mentioned in the petition was undue or illegal and the return thereof not correct, and that the petition to contest the^ same was made in good faith.

The court adjudged the petition sufficient and directed it to be filed, and fixed April 9, 1908, for the hearing. A bond was given by fiye of the petitioners, conditioned for the payment of costs, as required by the Act of April 28, 1899, P. L. 118, 2 Purd. (13th ed.) 1390. A rule to answer with a copy of petition was served on Cole on March 17, 1908. On May 23, 1908, an examiner was appointed to take testimony and report it to the court.

On June 1, 1908, Cole presented his petition to the quarter sessions and, for the reasons therein stated, prayed the court to quash the petition and dismiss the proceedings. A rule was granted upon Barr to show cause why the prayer of the petition should not be granted, which was subsequently made absolute. No opinion was filed by the two judges who made the rule absolute. They did not preside in the quarter sessions at the time the petition for the contest was presented and adjudged sufficient. As set forth in the printed brief of the learned counsel of the appellee, “the reasons assigned in the petition to quash are mainly on the ground that the petition of the appellants is not sufficient in law for the reason that it does not concisely set forth the cause of complaint with that precision of averment which is indispensable to inform the court of the probable existence and nature of the grounds for contest as will give it jurisdiction under the Act of May 19, 1874, P. L. 208; that it is vague, unprecise and argumentative, associating irregularities and illegalities; that it affords no sufficient notice to your petitioner of the specific grounds on which his election is assailable, and is especially wanting in that clearness and succinctness which ought to characterize such proceedings.”

In Election Cases, 65 Pa. 20, Mr. Justice Agnew, delivering the opinion of this court, said: “The contest of an election is a remedy given to the people, by petition for redress, when their suffrages have been thwarted by fraud or mistake. . . . The object of the law is to give the people a remedy. It is their appeal from the election board to the court from an undue election or a false return. The law is therefore remedial, and to be construed to advance the remedy.....It is not to be supposed •the legislature, representing the people, intended to subject the remedy to unreasonable or impossible conditions.” Proceedings to contest elections are regulated by statute and should be so construed by the courts as to protect the elective franchise. The petition should aver plainly and distinctly such facts which if sustained by proof would require the court to set aside the result. In the language of the act of 1874, it should “ concisely set forth the cause of complaint, showing wherein it is claimed the election is undue or illegal.” This is all the statute requires, and the court is not authorized to require more by construction. This will give the respondent sufficient information of the charges of illegality which he is required to meet. He is entitled to nothing more. If the statutes on the subject are intended to give the people a remedy for undue and illegal elections, as unquestionably they are, then we must construe them so as to effect the purpose intended. If the courts require anything in a petition beyond substantial averments, clearly disclosing wherein the election is undue or illegal, they will defeat the very purpose of the legislation on the subject.

In the absence of an opinion by the two judges who sat in the quarter sessions and quashed the proceedings, we are without information as to the reasons for their action. There is nothing in the petition of the respondent which justified the action of the court in quashing the petition and dismissing the proceedings. The petition for the contest concisely sets forth the cause of complaint and with such precision and clearness that there can be no doubt as to wherein the action of the election boards are alleged to be undue and illegal. The number of votes, counted and returned by the election board for Cole and Barr, is given, and the number of votes given for Barr and not counted is stated, showing that Barr had eleven votes more than Cole in the borough. This is followed by an averment of the number of legal votes in each one of the three election districts which were cast for Barr and which the election boards in the respective districts refused to count and return for him. The illegal action of the board in refusing to count the votes was, as alleged in the petition, the result of fraud, deceit or mistake; and this unlawful action, it is averred, deprived Barr of election to the office of school director to which he was duly elected. If these averments are supported by proof we are at a loss to see why the contest should not prevail. They are sufficient to advise the respondent what he is to meet and refute in the contest. The petitioners presumably were not with the election board at the time the ballots were counted and hence they cannot state more specifically whether the action of the boards was caused by fraud, deceit or mistake. Whatever motive impelled the action of the election boards, the consequences in refusing or neglecting to count the eleven legal votes for Barr were the same. It caused an undue and illegal election and defeated the will of the people as expressed at the ballot box.

Without any sufficient explanation for the delay in presenting the motion to quash, the quarter sessions should have denied it. The provisions of the statute providing for contested elections of this character show that it was the intention of the legislature to have such contests speedily disposed of. A school director is elected for the term of three years, and in this case, it will possibly be a year before the right of these parties to the office has been determined. So far as the record discloses, Cole, the respondent, has furnished no sufficient reason for his delay in moving to quash the proceedings. The petition for the contest was presented on March 12 and adjudged sufficient, and, as required by statute, the court fixed the hearing within thirty days thereafter, April 9, and ordered notice of the petition and a copy thereof to be served upon Cole, which was done on March 17. Cole did not appear on April 9, nor was any answer filed or anything whatever done by him in response to the rule which the court had granted requiring him to appear. On May 23, 1908, more than six weeks after the date fixed for the hearing and for Cole’s appearance and he not having appeared, the court appointed an examiner to take testimony and report the same to the court. It was not until some time after these several steps had been taken in the contest, June 1, that Cole presented his motion to quash the proceedings. He gave no reason whatever for the delay in presenting the motion and in ignoring the rule of the court to appear on the day fixed for the hearing when he could have been heard either on his motion to quash or in reply to the allegations of the petition for the contest. Such delay in election contests are not contemplated by the statute and should not be tolerated by the court unless ample and controlling reasons therefor are given by the delinquent.

We are of opinion that the petition in this case is sufficient under the act of 1874, and that it was error in the court below to quash it and dismiss the proceedings.

The order of the court below quashing the petition and dismissing the proceedings is reversed at the costs of the respondent, and the petition is reinstated with a procedendo.


author: Pee Cueiam,

text:
    McTighe v. Schwartz, Appellant.

      Equity — Trespasser—Market stall — Licensee.
    A court of equity has jurisdiction to oust a person from the possession of a public market stall who is in possession under a mere license or permit from the city, after the stall has been leased to another person.
    Argued Oct. 29, 1908.
    Appeal, No. 197, Oct. T., 1908, by defendant, from decree of C. P. No. 1, Allegheny Co., June T., 1907, No. 860, on bill in equity in case of J. McTighe v. Abe Schwartz.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Macfarlane, J., filed the following opinion:
    FINDINGS OF FACT.
    1. On March 1, 1907, an ordinance of the city of Pittsburg was passed and approved, a true copy of which is attached to the plaintiff’s bill. It was provided that thereafter the stalls and stands in the Diamond Market shall be leased for a term of three years from the first Monday of May, 1907, and every three years thereafter. Under the authority of this ordinance the director of the department of public works, who was the proper officer, made a lease, dated May 6, 1907, of stand No. 0-37 to the plaintiff. By its terms the city granted to her the right to occupy the stand for the purpose of selling fruits for three years from the first Monday of May, 1907, in consideration of the payment of $591.50, payable quarterly in advance.
    2. At that time the defendant was in possession of stall 0-37 under a permit given him in 1906, and was doing a large business, both wholesale and retail. He had been in business in the Pittsburg Market for about eight or nine years prior to that time and had occupied the stall in controversy for about three years at the time of the making of the lease to Mrs. McTighe.

      3. On May 6 or 7, 1907, the market constable, duly authorized by the clerk of the market, who was acting under di- ' rection of the director of the department of public works, verbally notified the defendant immediately to give up possession of the stand, and the defendant demanded a written notice. On May 7, 1907, the plaintiff, by her attorneys, gave the defendant a written notice as follows: “You are hereby notified to deliver up quiet and peaceable possession of stand 0-37 in the Diamond Market, City of Pittsburg, to Mrs. J. McTighe, on or before May 8, 1907. Burleigh, Gray & Challener, Attorneys for Mrs. J. McTighe.” The defendant refused to deliver up possession and is still in occupancy of stall.'
    ,4. On January 31, 1908, the clerk of the market collected from and the defendant paid to him the rent for one month, due under his permit, and the rent for nine months from May 1, 1907, to February 1, 1908, at the rate fixed in the lease to Mrs. McTighe.
    CONCLUSIONS OF LAW.
    1. A court of equity has jurisdiction.
    2. The defendant was a mere licensee, and his right of occupancy was terminable at any time upon reasonable notice. He was not a tenant and neither ejectment nor the proceedings provided by the landlord and tenant acts are remedies.
    3. Defendant is a mere trespasser, and an action of trespass being inadequate a decree should be made as prayed for, at the costs of defendant.
    OPINION.
    The prayers of the bill are that the defendant be ordered to give up possession, that he be restrained from remaining in possession, and for damages and general relief. In short, we are asked to dispossess a trespasser.
    The principal question is that of jurisdiction. If this is an ejectment bill, or the action of ejectment or trespass, or proceedings under the landlord and tenant acts afford an adequate remedy, we have no jurisdiction.
    Prior to the ordinance of March 1, 1907, any lease of stalls in the market “was a mere license, not binding upon the city as a conveyance of any sort or title or estate in the stall,” and the occupant has no right to retain possession after a reasonable notice to quit. Levenson v. Pittsburg, 54 P. L. J. 294 (court of common pleas No. 2). In that case Judge Shafer suggested the passage of an ordinance regulating the disposition of the stalls for reasonable terms.
    So far as we know, the rights of a lessee under this ordinance have not been before the courts except in the case of Peter Monteverde v. A. G. Logeman, at No. 522, July Term, 1907, in common pleas No. 2. There the plaintiff, a huckster, had a lease under the ordinance. The rules of the market, which were a part of the lease, required hucksters to allow gardeners to occupy their stands until nine o’clock a. m., and an injunction was granted against such a gardener, restraining him from interfering with the plaintiff in his possession of the stand after that hour, the court holding that the remedy of trespass was not adequate.
    In Woelpper v. Philadelphia, 38 Pa. 203, an action to recover premiums paid at auction for a stall in a market, the market house afterwards being removed by the city, the right of the occupant was likened to that of the purchaser of a pew in a church, although the court said that the pewholder had more property in the pew than the plaintiff had in his stall. It was held that the plaintiff could not recover. That case does not rule this, but shows that the “tenant” was but an occupant under the rules and regulations of the market.
    It is settled that an action of ejectment does not lie: Strickland v. Penna. R. R. Co., 154 Pa. 348. The defendant is not a tenant holding over under a claim of right, but is a mere trespasser with no more rights than an intruder. Even a lessee for a definite term has no right to the ground, no estate or definite legal standing. “He is the holder, by virtue of his lease, of a license to sell at the particular stall assigned or let to him:” Strickland v. R. R. Co., 154 Pa. 348.
    It follows that the landlord and tenant acts do not apply. Neither do the cases cited by counsel for the defendant bear upon the question, for this is not a bill of a lessee asking an injunction against another lessee.

      Error assigned was decree ousting defendant.

      J. M. Friedman, for appellant.
    — It is well settled in Pennsylvania that where the complaining party has a complete and adequate remedy at law, a court of equity will not take jurisdiction: Appeal of Pittsburg & Connellsville Railroad Co., 99 Pa. 177; North Penna. Coal Co. v. Snowden, 42 Pa. 488; Messimer’s Appeal, 92 Pa. 168; Brown’s Appeal, 66 Pa. 155; Leininger v. Summit Branch Railroad Co., 180 Pa. 287; Pittsburg, etc., v. Drove Yard Co.’s App., 123 Pa. 250; Dohnert’s App., 64 Pa. 311.

      Craig Smith, with him Clarence Burleigh, James C. Gray, William A. Challener and L. M. Shoemaker, for appellee.
    — The ■title to market stands, the mode of renting which is provided for by ordinance, cannot be acquired by possession: Hatch v. Pendergast, 15 Md. 251; Woelpper v. Philadelphia, 38 Pa. 203; Strickland v. Penna. R. R. Co., 154 Pa. 348.
    An action of trespass would not be an adequate remedy. In that respect plaintiff is in a position analogous to the plaintiff in a bill to restrain the obstruction of a right of way: Manbeck v. Jones, 190 Pa. 171; Hacke’s Appeal, 101 Pa. 245.
    January 4, 1909:
   Pee Cueiam,

The decree is affirmed on the findings of fact and the opinion of the learned judge of the common pleas.


author: Per Curiam,

text:
    Murdoch, Appellant, v. Pittsburg
    (No. 1).
    . Road law — Appeal from jury of view — Costs and expenses, of improvement — Acts of May 16, 1891, P. L. 75, and April 2, 1903,.P. L. 124— Constitutional law — Taxation.
    1. The Act of April 2, 1903, P. L. 124, sec. 2, amending sec. 6 of the Act of May 16, 1891, P. L. 75, does not confer the right of appeal to the common pleas from assessment by viewers to pay the costs and expenses of grading, paving and curbing a street, if no claim is made for damages.

      2. The Act of April 2, 1903, P. L. 124, making the finding of a jury of view conclusive where the assessment is for costs and expenses only, is constitutional.
    3. Assessments for the construction of sewers and original grading and paving of streets, etc., have always been regarded as a species of taxation which, within well-defined limits, is constitutional and proper, without provision for such appeal from the action of those intrusted with the duty of making and revising assessments.
    Argued Oct. 29, 1908.
    Appeals, Nos. 167, 168 and 171, from order of C. P. No. 3, Allegheny Co., Feb. T., 1908, No. 574, Feb. T., 1908, No. 642, and Aug. T., 1908, No. 320, dismissing appeal from the jury of view in case of Lydia A. Murdoch et al. v. City of Pittsburg.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Appeal from award of jury of view. Before Evans, J.
    The opinion of the Supreme Court states the case.

      Error assigned was decree dismissing the appeal.

      J. M. Shields, with him Allan B. Angney and McKenna & McKenna, for appellant,
    cited: Wyoming Street, 137 Pa. 494; Pusey’s App., 83 Pa. 67; Tourison’s App., 171 Pa. 38; Beechwood Avenue Sewer Case, 179 Pa. 498.

      A. M. Thompson, with him W. B. Rodgers and Lee C. Beatty, for appellee,
    cited: Brackney v. Crafton Borough, 31 Pa. Superior Ct. 413; McMasters v. Commonwealth, 3 Watts, 292; Schenley v. City of Allegheny, 25 Pa. 128; Hammett v. Philadelphia, 65 Pa. 146.
    January 4, 1909:
   Per Curiam,

The question raised by these appeals relates to the right of appeal to the common pleas from an assessment by viewers to pay the costs and expenses of grading, paving and curbing a street. It appeared from the record that the assessment was for this purpose only, that no property had been injured or destroyed, and that no claim had been made for damages to property. The intention to limit by the Act of April 2, 1903, P. L. 124, the right of appeal to a party whose property had been taken, injured or destroyed, or who was assessed benefits to pay damages for property taken, injured or destroyed, is clear. Section 6 of the Act of May 16, 1891, P. L. 75, had been construed in Tourison’s Appeal, 171 Pa. 38, and in Beechwood Avenue Sewer Cases, 179 Pa. 494, to give the right of appeal from assessments of benefits to pay in whole or in part damages sustained by another lot owner. Section 2 of the act of 1903, amending sec. 6 of the act of 1891, expressly provides that the report of viewers when confirmed “ shall be conclusive as to any assessment made therein to pay the costs and expenses of any sewer, street or other improvement;” and gives, as did the act of 1891, the right of appeal to one whose property has been taken, injured or destroyed, and extends the right to one who is assessed for benefits to pay for damages for property taken, etc. Nor is the objection to the constitutionality of the amending section of the act well founded. In Oil City v. Oil City Boiler Works, 152 Pa. 348, it was said: “Assessments for the construction of sewers and original grading and paving of streets, etc., have always been regarded as a species of taxation which, within well-defined limits, is constitutional and proper, without provision for such appeal from the action of those intrusted with the duty of making and revising assessments.” The principle is too firmly settled by a long line of cases, including Hammett v. Philadelphia, 65 Pa. 146; Michener v. Phila., 118 Pa. 535, and on down to Harrisburg v. Segelbaum, 151 Pa. 172, to be now shaken; See also the carefully considered opinion by Henderson, J., in Brackney v. Crafton Borough, 31 Pa. Superior Ct. 413.

The order is affirmed at the cost of the appellant


text:
    Murdoch, Appellant, v. Pittsburg
    (No. 2).

      Road law — Exceptions to report of fury of view — Amount of benefits.

    Exceptions to report of viewers assessing benefits to pay for the costs and expenses of grading, paving and curbing a city street, are properly dismissed, where the exceptions do not question the liability of the assessments, nor the regularity of the proceedings, nor the action of the viewers in any way, except that they erred in judgment in determining the amount of benefits.
    Argued Oct. 29, 1908.
    Appeals, Nos. 169, 170 and 172, Oct. T., 1908, by plaintiff, from order of C. P. No. 3, Allegheny Co., Nov. T., 1907, No. 275, dismissing exceptions to report of viewers in case of Lydia A. Murdoch et al. v. City of Pittsburg.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to report of viewers.
    Evans, J., filed the following opinion:
    This cause comes on to be heard on exceptions to a viewers’ report, appointed for the purpose of assessing benefits and awarding damages for the grading, paving and curbing of Darlington road.
    By the report of the board of viewérs it appears that the assessment of benefits was made to cover only the cost of the improvement; that no property was taken, injured or destroyed, and that no assessment of benefits was made to pay the damages for property taken, injured or destroyed. Therefore, under the rulings of the court in Brackney v. Crafton Borough, 31 Pa. Superior Ct. 413, no appeal would lie from the report of the viewers. The exceptions filed go simply to the question of the amount of benefits which should be assessed against the ex-ceptant’s property. There is no question as to whether the viewers proceeded upon a proper legal basis in making the report; there is no érror'in the law on the part of the board of viewers alleged. The exceptions raise simply a question of fact, namely, was the property benefited to the extent of the amount assessed against it by the viewers. And this raises the question as to whether, under such circumstances, where there is no complaint made as to the actions of the board of viewers except that it erred in judgment in determining the question of fact as to the amount of benefits which the property sustained by reason of the improvement, exceptions would lie to such a mistake on the part of the board of viewers. The question is not without some difficulty, because in view of the fact that the amendment of the act of 1891, by the Act of April 2, 1903, P. L. 124, takes away in such cases as this the right to appeal to a jury, and the denial of the property holder of the right to file exceptions and have a review of the finding of the board of viewers by the court would make, in such cases as this, the judgment of the board of viewers final and conclusive upon the parties. And yet it is hardly possible that the law contemplates that the court shall sit as a board of viewers upon the question as to the amount and character of the benefits which abutting property has sustained because of a public improvement. It would require that the court should sit as viewers; that in order to properly dispose of the matter that the court should view the premises, because no person can have a proper understanding of the effect of a public improvement upon abutting properties without going upon the premises and viewing the improvement. Certainly the law did not intend that this burden should be put upon the court. But it is argued by the exceptant that the court in its judgment could refer this back to the same or another board of viewers. It is probable that under the provisions of the act of 1891 that if the conduct of the viewers was so far wrong that the court might reasonably infer that their assessment was fraudulent, that it would be the duty of the court to refer the case to another board of viewers. But experience has taught us that the great majority of persons assessed benefits for the payment of the cost of public improvement are clearly of the opinion that their property has been assessed too high, and if in every case of exception we are to appoint a commissioner to take testimony, as requested in this case, and either pass upon the question'of the amount of the assessment or refer it back to another board of viewers, it is going to place upon the courts a burden which we think the law did not contemplate. It will be observed that the costs and expenses of these views are paid by the municipality; there is therefore no check upon exceptants by reason of the fact that a failure to sustain their position might mulct them in costs. The exceptions are dismissed.

      Error assigned was in dismissing exceptions to report of viewers.

      J. M. Shields, with him Allan B. Angney and McKenna & McKenna, for appellant,
    cited: Perrysville Avenue, 210 Pa. 537; Omega Street, 152 Pa. 129; Pittsburg Mfg. Co.’s App., 158 Pa. 464.

      A. M. Thompson, with him W. B. Rodgers and Lee C. Beatty, for appellee,
    cited: Brackney v. Crafton Borough, 31 Pa. Superior Ct. 413.
    January 4, 1909:
   Per Curiam,

These appeals are from orders dismissing exceptions to the report of viewers assessing benefits to pay for the costs and expenses of grading, paving and curbing a city street. The exceptions did not question the liability to assessment nor the regularity of the proceedings, nor the action of the viewers in any way except that they erred in judgment in determining the amount of benefits.

The appeals are dismissed and the orders are affirmed on the opinion of Judge Evans.


text:
    Dollar Savings Fund & Trust Company, Appellant, v. Union Trust Company.

      Trusts and trustees — Parol trust — Evidence—Equity—Findings of fact.

    A bill in equity to establish a parol trust in stocks of a corporation can only be sustained by clear, explicit and unequivocal proof. The question before the court in such a case is as to the sufficiency of the evidence to satisfy the mind and conscience of the chancellor that a trust existed, and not what a jury might have found from it if licensed to pass upon it.
    Argued Oct. 30, 1908.
    Appeal, No. 199, Oct. T., 1908, by-plaintiff, from decree of C. P. No. 2, Allegheny Co.; July T., 1906, No. 82, dismissing bill in equity in case of Dollar Savings Fund & Trust Company, Administrator c. t. a. of the last Will and Testament of T. Lee Clark, deceased, v. Union Trust Company, Assignee of Joseph Hastings.
    Before Fell, Brown, Mestrezat, Potter, Elicin and Stewart, JJ.
    Affirmed.
    Bill in equity to declare a trust. Before Shafer, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was the decree of the court.

      Arthur L. Over, for appellant.

      Samuel McClay, with him Reed, Smith, Shaw & Beal, for appellee.
    January 4, 1909:
   Opinion by

Mr. Justice Brown,

Our review of the testimony upon which the appellant relies to establish a trust in Joseph Hastings for T. Lee Clark at the time the former executed a deed of assignment for the benefit of creditors has led us to the same conclusion that was reached by the court below. The mainstay of the appellant was the testimony of two of the witnesses called by it — T. B. Trimble and J. B. Cunningham. Nothing testified to by anyone else was the slightest evidence of a trust, and when the testimony of the two witnesses named is closely scanned, as it must be in an effort to establish a parol trust from it, it is not to be doubted that the learned chancellor correctly concluded that it was not the clear, explicit and unequivocal proof required to sustain the bill: Earnest’s Appeal, 106 Pa. 310. The question before the court was as to the sufficiency of the evidence to satisfy the mind and conscience of the chancellor that a trust existed, and not what a jury might have found from it if licensed to pass upon it: Olinger v. Shultz, 183 Pa. 469.

This opinion need not be burdened with the testimony of Trimble and Cunningham in detail. Reference to what the appellant regards as the strongest portions of it in support of the bill will suffice to show its insufficiency. Trimble stated that on November 20, 1905 — about a month after the death of Clark— he and Cunningham, the receiver of the Enterprise National Bank of Allegheny, of which Clark had been the cashier, met Hastings at the Duquesne Club, in Pittsburg, and that he there said, in the presence of both of them, that Clark owned a half interest in the stocks of the Pittsburg Vein and Pittsburg Seam Coal Companies, which stood in his name, that he carried the stock in his name, but Clark owned a one-half interest in it; that Clark had paid the one-half of the purchase money, as near as he could tell. Trimble further stated that Hastings had made this declaration to him on three or four other occasions. Cunningham testified that the meeting at the Duquesne Club was for the purpose of devising some plan to help Hastings out of his financial difficulties; that in going over his assets Hastings stated he was interested in certain shares of stock in the Pittsburg Vein Coal Company and the Pittsburg Seam Coal Company and that Clark was jointly interested with him in this stock. The recollection of the witness was that Hastings said Clark had an equal interest. Cunningham further testified that he thought Hastings said that Clark had loaned him jointly out of the bank sufficient money to pay for the entire amount of stock, the witness adding, “Now, which company that was I don’t know.” While both these witnesses testified to what they believed to be the truth, they do not agree in a most important matter. Trimble’s recollection, is that Hastings said Clark had paid for one-half interest in the stock, as nearly as he could tell. Cunningham’s testimony is that he thought Hastings said Clark had loaned him jointly out of the bank sufficient money to pay for the entire amount of stock. .This variance in the recollection of the witnesses as to what Hastings said about Clark’s paying for half of the stock is in itself suL ficient to take away from it the requisite quality of certainty as to what was said. The actual proof in the case is that the coal stocks were paid for with moneys borrowed upon obligations signed by Hastings alone and paid by him from time to time. There is nothing in the evidence to show that any part of the money to pay for the stocks was borrowed from the Enterprise National Bank, as Cunningham testified Hastings had stated to him. On the oral argument and in the printed brief counsel for appellant insists that from the testimony of Thomas Rinaker, receiver of the Enterprise National Bank, and called as a witness by the appellee, it conclusively appears that a check, drawn by Joseph Hastings on that bank in part payment of the coal stocks, was paid, not out of the funds of Hastings, but out of the personal account of Clark. Rinaker’s testimony does not show this. He merely testified that there was a check for $2,500, signed “Joseph Hastings,” which was not charged to his account on the books of the bank, but to the account of T. Lee Clark; that there was a lead pencil mark across the signature of Joseph Hastings and the name “T. Lee Clark” written below it, and that the check was entered “charged against the account of T. Lee Clark.” The witness did not say that the check had any connection with the stocks which are the subject of this litigation.

There is no proof that at or before the time Hastings subscribed for the stock Clark had paid to him, or agreed to pay, anything towards the purchase of it, and apart from the testimony of Trimble that Hastings had stated that Clark had paid one-half of the purchase money, “as near as he could tell,” there is no proof that at any time after the stock had been subscribed and paid for by Hastings Clark had contributed a dollar towards it. There is no evidence of any agreement between them, made at any time, that Clark was to be the owner of the half of the stock, and now, after the death of both, when the administrator of Clark’s estate seeks to have a trust declared for him, something more is needed than recollections which do not agree in an essential matter as to the declarations of Hastings, made in his embarrassment and utterly inconsistent with the actual proofs in the case.

The assignments of error are all overruled and the decree affirmed at appellant’s costs.


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    Homewood People’s Bank v. Marshall, Appellant.

      Evidence — Fraud on creditors — Deeds.
    1. On the trial of an issue to determine whether the grantor in a particular deed had executed it with intent to defraud creditors, where evidence of such intention has been offered, it is not error to admit in evidence deeds executed about the same time by the grantor for other real estate to his mother and other parties.
    2. On the trial of such an issue where it appears that the grantees in the deed were the brothers o'f the grantor, and there is evidence that the grantees had participated in the fraud, declarations made by the grantor subsequently to the execution of the deed that he still owned the property, are admissible.
    Argued Oct. 30, 1908.
    Appeal, No. 203, Oct. T., 1908, by defendants, from judgment of C. P. No. 2, Allegheny Co., June T., 1905, No. 222, on verdict for plaintiff in case of Homewood People’s Bank v. William Marshall and Robert Harvey Marshall.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Ejectment for land situate in the eighth ward of the city of Pittsburg. Before Shafer, J.
    At the trial plaintiff made the following offer:
    We offer in evidence the deed from Tom Marshall and wife, Alice Marshall, to Mary Ann Marshall, dated May 27, 1903, recorded on June 26, 1903, in Deed Book, vol. 1260, p. 295, of the deed books in the records of the recorder’s office of Allegheny county. This to be followed by proof that the Tom Marshall is the Tom Marshall, the brother of the defendants, and grantor in their alleged deed, which is being disputed in this case.
    Mr. Stoner: What is the purpose of the offer?
    Mr. Marshall: We propose to follow that by proof that he conveyed all of his property about this time.
    Mr. Stoner: What is the purpose of the offer?
    Mr. Clark: The purpose is to show that Tom Marshall was conveying away his property at that time, for the purpose of defrauding his creditors, to show a fraudulent intent. The object is to show he conveyed all his property away about this time, before the bank entered.
    Objected to, because it does not tend to prove the purpose of the offer, and is otherwise incompetent and irrelevant. To which defendant excepts, bill sealed.
    Mr. Marshall: We offer in evidence deed of Tom Marshall and wife, Alice Marshall, to William W. Miller, of a certain alleged lot, situated in the twentieth ward, city of Pittsburg, and dated June 15, 1903, recorded on July 28, 1903, contained in Deed Book 1282, p. 313, being deed book in the recorder’s office of Allegheny county.
    Also offer in evidence deed of Tom Marshall and Alice Marshall, his wife, dated May 20, 1903, for a certain piece of property in the eighteenth ward of the city of Pittsburg, it being recorded June 15, 1903, contained in Deed Book, vol. 1279, p. 170, of the recorder’s office of Allegheny county, to Annie Keliher. [1]
    When S. W. Vandersaal was on the stand he was asked this question:
    “Q. I wish you would state what, if anything, he said at that time with regard to the property on Harrison street, that is now in question in this case?”
    Mr. Stoner: Objected to for the reasons already assigned, and because the declarations of the grantor in derogation of his own grant are inadmissible. It is res inter alios acta, and incompetent and irrelevant.

      Objection overruled. To which ruling defendants’ counsel excepts, and at his request exception is noted and bill sealed. [2]
    The Court: This was in May?
    Mr. Marshall: May, 1903.
    Mr. Marshall: “Q. Go ahead. ■ A. He said he still owned it, at that time. Q. Give us the whole conversation, if you can. A. Well, we made an arrangement for him to meet us at Mr. Pauli’s office, and we three met there and we had his statement of his financial condition, his property, etc., and we discussed that — ”
    The Court: “Q. Was he there? A. Yes, sir, he was there at the time — Tom Marshall, Mr. Pauli and myself.”
    Mr. Marshall: “Q. Mr. Pauli was president of the bank? A. Yes, sir, he was president of the bank; I was one of the directors, and Mr. Marshall was a creditor. We discussed the situation, and he did not have any money, and we wanted to have him give us a second mortgage on this Harrison street property.”
    Objected to as irrelevant.
    The Court: Any talk he had about this property is relevant.
    Mr. Marshall: “ Q. Go ahead. A. He declined to do so without consulting his wife; he wanted to talk with his wife. Q. Is that the property you are speaking of now in dispute in this case? A. Yes, sir, it is called the Harrison street property. Q. Go on. A. And he was to let us know after consulting with his wife, whether he would give us this mortgage. Q. Did you have a further meeting with him? A. I met him about a week or so afterwards on Fifth avenue' and he said that his wife didn’t want him to give a mortgage. I talked to him about the debt, I said that didn’t increase his indebtedness, and that he could give a mortgage without having his wife’s consent, if he chose to do so, and I advised him to do so, because I said it would give him two years’ time for the payment of this debt. That was the last of May or about the first of June, that I met him on Fifth avenue, at.which time he still owned the property, he said.”
    Verdict and judgment for plaintiff. Defendants appealed.

      Errors assigned were (1, 2) rulings on evidence, quoting the bill of exceptions.

      George C. Bradshaw, for appellants.
    — The deeds and declarations were not properly admitted in evidence: Miller v. McAlister, 178 Pa. 140; Schroeder v. Walsh, 120 Ill. 403 (11 N. E. Repr. 70); Barnhart v. Grantham, 197 Pa. 502; Doxsee v. Waddick, 122 Iowa, 600; Ford v. Williams, 13 N. Y. 577; Heine v. Com., 91 Pa. 145; Com. v. Zuern, 16 Pa. Superior Ct. 588.

      James M. Clark, for appellee,
    cited as to the admissions of the deeds and declarations: Stauffer v. Young, 39 Pa. 455; Zerbe v. Miller, 16 Pa. 488; Plartman v. Differ, 62 Pa. 37; Confer v. McNeal, 74 Pa. 112.
    January 4, 1909:
   Opinion by

Mr. Justice Brown,

The real estate which is the subject of this ejectment was conveyed by Tom Marshall on January 7, 1903, to the appellants, his two brothers. At that time he was heavily indebted, and this his brothers knew. His indebtedness to the Home-wood People’s Bank, the appellee, amounted to $8,500.27. In the following May and June it brought two suits against him and in one of them recovered a judgment for $3,833.12. When these suits were brought the appellants had not recorded their deed, but placed it on record before the judgment was obtained against their grantor. Believing that his conveyance to them had been made for the purpose of defrauding his creditors, the appellee issued an execution on its judgment, upon which the sheriff sold to it, as the property of Tom Marshall, the real estate in controversy. This ejectment followed, in which a jury found that the conveyance had been made in fraud of creditors, and on the appeal from the judgment on the verdict we have two assignments of error, the one complaining of the admission in evidence of three deeds from Tom Marshall to three other grantees, executed in May and June, 1903, and the other of the permission given to the appellee to show that after his conveyance to his brothers he said he still owned the property.

The first of the deeds alleged to have been improperly admitted in evidence, dated May 27, 1903, and recorded June 26, 1903, was to the mother of Tom Marshall; the second, dated June 15, 1903, and recorded July 28, 1903, was to William W. Miller, his partner-; the third, dated May 20,1903, and recorded June 15,1903, was to Annie Keliher. These deeds were offered for the purpose of showing that Marshall was fraudulently conveying his property about the time the bank brought suit against him. The complaint as to .their admission is that they represented transactions between other parties and Marshall, with which the appellants were in no way connected and of which they had no knowledge, and, as the only question on the trial was their good faith in taking their deed, they ought not to have been prejudiced by what their brother had done with the rest of his property, even if he had conveyed it to defraud his creditors, of which there was no proof. There are authorities in other jurisdictions sustaining this position, but, under our cases, the learned court below did not err in allowing the appellee to offer the three deeds. Before offering them it had submitted evidence from which the jury could fairly have inferred that the deed to the appellants did not represent an honest transaction. This is especially true of the testimony of William Marshall, one of the appellants, called as on cross-examination, which need not be recited in detail. If he was telling the truth, he did not tell it with the frankness and candor which the jury would naturally have expected from one who was a party to an honest transaction, and, after having heard him in connection with the testimony as to the inadequacy of the consideration for the conveyance, they could well have believed that he had been a party to his brother’s fraud. The three deeds were executed about the time the bank was pressing Marshall for payment, or shortly afterwards, and, under Deakers v. Temple & Barker et al., 41 Pa. 234, could not have been excluded. That case was an issue to determine whether Deakers was a fraudulent vendee of Martin Connolly and wife by purchase from her on August 23, 1860, and the defendants were permitted to show that between that date and September 1 following, Connolly and his wife had disposed of a bond amounting to $900; that on August 21 they had conveyed a certain lot of ground to John Mellon, Esq., and on May 23, 1860, had mortgaged certain real estate in the city of Pittsburg for $3,000, which they sold on August 27, Mrs. Connolly receiving the proceeds. This was objected to for the same reason that is urged here, and the admission of the evidence constituted the second assignment of error. In overruling it we held, through Woodward, J., “The evidence complained of in the second error, though not directly relevant to the immediate issue, was such as is usually admitted in cases of fraud, and was very proper as exhibiting the conduct of Connolly and wife on the eve of bankruptcy. It is a bad sign for parties who have been convicted of a fraud to complain of an excess of evidence. Their effort to draw the narrowest possible sight upon the pending issue, and to exclude everything which, according to the most rigid rules of evidence, is not relevant to it, indicates a consciousness that the transactions which surround the main fact will not bear investigation. But all experience proves, and rules of evidence are founded in human experience, that, if fraud is to be detected under the various cloaks it puts on, the conduct of the parties before and after the fact complained of, as well as in immediate connection with it, must be freely examined. Truth and honesty are not likely to suffer by the latitude of evidence allowed in cases of fraud, for the more thoroughly an honest transaction is investigated, the more honest it will appear.”

The appellees having submitted evidence tending to show that the purpose of Tom Marshall to defraud his creditors had been participated in by the appellants, his declaration, made subsequently to the execution of his deed, that he still owned the property, was admissible under Hartman v. Diller, 62 Pa. 37, and Confer et al. v. McNeal, 74 Pa. 112. In the former case, in dismissing the asssignment that the court below had erred in permitting the declarations of the alleged fraudulent grantor, made after the sale to Hartman and not in the latter’s presence, Mr. Justice Sharswood said: “As a general principle it is undoubtedly well established that the declarations of a grantor made after the execution of the grant cannot be made use of for the purpose of impeaching it. But the rule has been so far modified that when the bona fides of the transfer is attacked by creditors alleging that it was intended to hinder, delay and defraud them, and therefore void under the statute of 13 Eliz., c. 5, and some evidence has been adduced tending to show a common purpose or design of this character by the parties, then such declarations are admissible. For wherever evidence is given tending to prove a combination or conspiracy to do an unlawful act, it lets in the declarations of all the parties against each other. In Reitenbach v. Reitenbach, 1 Rawle, 362, where the question was as to the validity of a bond, and a conversation with the obligor in the presence of the obligee had been proved going to show a fraud upon creditors, other declarations subsequently made by the obligor in the absence of the obligee were held to have been improperly excluded.”

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


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    Fleming v. Wilmerding Borough, Appellant.

      Negligence — Boroughs—Defective sidewalks — Point for charge.

    1. It is reversible error for a trial court to affirm without qualification a point for charge as follows: “If evidence be given, though conflicting, against a borough, for injuries for falling upon a defective sidewalk, and that there were loose or rotten planks observable to the passer-by, which defects had been so existing for several weeks, this is sufficient evidence of knowledge on the part of the borough.” In such a case it is for the jury to determine from the conflicting evidence whether the sidewalk was defective, and if so, whether the defect was of such character, and had existed for a sufficient length of time to charge the borough with constructive notice.
    2. It is the duty of a municipal corporation, having the exclusive care and control of its streets, to see that they are kept in a condition that is safe for the passage of persons and property and if that plain duty is neglected, and thereby an injury results to anyone, the borough is primarily liable to the injured party. In such case, the municipality is not relieved from liability because it notified the owner of the sidewalk to remove the defect.
    Argued Oct. 30, 1908.
    Appeal, No. 212, Oct. T., 1908, by defendant, from judgment of C. P. No. 1, Allegheny Co., Dee. Term, 1904, No. 991, on verdict for plaintiff in case of Catherine Fleming v. Wilmerding Borough.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Macfarlane, J.
    At the trial it appeared that plaintiff was injured on April 23, 1904, by a fall on a defective boardwalk in the borough of Wilmerding.
    Verdict and judgment for plaintiff for $2,626. Defendant appealed.

      Error assigned amongst others was the answer to plaintiff's third point, quoted in the opinion of the Supreme Court.

      Samuel S. Mehard, with him Wm. H. Thompson, for appellant.

      Thomas Lawry, for appellee.
    January 4, 1909:
   Opinion by

Mr. Justice Mestrezat,

It was manifest error for the learned'court to affirm the plaintiff's third point, the subject of the eighth assignment of error, which point is as follows: “If the evidence be given, though conflicting, against a borough, for injuries for falling upon a defective sidewalk, and that there were loose or rotten planks observable to the passer-by, which defects had been so existing for several weeks, this is sufficient evidence of knowledge on the part of the borough.” As suggested by the counsel for the appellant the point is indefinite, inaccurate and misleading. The court in affirming the point told the jury if conflicting evidence be given that there was a defective walk and the defect had existed for several weeks, the evidence was sufficient to show knowledge on the part of the borough. In the first place, if the evidence was conflicting, it was for the jury to determine what it established. In the second place, it was for the jury and not for the court, to determine whether the conflicting evidence disclosed knowledge of the defect on the part of the borough. It was manifestly wrong for the court to say that if there was conflicting evidence that the defect had been existing for several weeks, the evidence was sufficient to show knowledge by the borough of the defect. It was for the jury to determine whether the sidewalk was defective, and if so, whether the defect was of such character and had existed for a sufficient length of time to charge the borough with constructive notice. Both questions were for the jury and not for the court.

We are not prepared to say that the court committed reversible error in its charge. There are some expressions by the learned judge which are not entirely accurate and which do not state the law as clearly as it should be stated to a jury. Numerous cases decided by this court define the duty as well as the liability of a municipality for defective sidewalks, and we have no doubt that the law will be accurately given to the jury on the next trial.

While the case may be a close one on the facts, we cannot say that the court was wrong in refusing to withdraw it from the consideration of the jury.

As the case is remanded for another trial, it may be well to suggest that there was entirely too much said in the charge as to the primary liability of the property owner and the secondary liability of the defendant borough. That was not a question in this case, and if the trial had resulted in a verdict for the defendant and this appeal had been taken by the plaintiff, we might have had some difficulty in sustaining the charge on this ground. The learned judge iterated and reiterated that the liability of the borough in the case was only secondary; that its duty was supervisory only, and that the only duty it had to perform was to see that the property owner whose land abutted the pavement kept the sidewalk clear of defects. In fact the learned judge interjected this into the answer of one of the defendant's points, when the answer should have been simply an affirmation.

It is true that the borough, if compelled to pay damages for an injury resulting from a defective sidewalk may look for reimbursement to the owner of the abutting lot or to any other party who is responsible for the defect, but as between the party injured and the borough the latter is primarily liable. It is the duty of a municipal corporation, having the exclusive care and control of its streets, to see that they are kept in a condition that is safe for the passage of persons and property, and if that plain duty is neglected, and thereby an injury results to anyone, the borough is primarily liable to the injured party: Brookville v. Arthurs, 130 Pa 501. In such case, the municipality is not relieved from liability because it notified the owner of the sidewalk to remove the defect: Wyman v. Philadelphia, 175 Pa. 117. If a city or other municipality has notice of a defect in a sidewalk used by the public, it is the duty of the municipality to act promptly and see that the defect is removed. It cannot exculpate itself from liability to a person who is injured while using the walk with care on the ground that it had notified the abutting lot owner of the defect and had been waiting for him to remove it. The obligation is upon the municipality to see that the defect is removed, and that the public is protected without awaiting the pleasure or the continued negligence of the property owner. Whether the property owner will be liable to the borough if there is a recovery by the plaintiff against it was not involved in this case, and the right of the plaintiff to recover is not dependent upon the question of the primary or secondary liability of the borough: Bucher v. Sunbury Borough, 216 Pa. 89, 95.

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


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    Calhoun v. Pennsylvania Railroad Company, Appellant.

      Negligence — Railroads—Grade crossings — “Stop, look and listen”— Proper place to stop — Case for jury.

    1. If a driver of a wagon on approaching a railroad grade crossing cannot see from the vehicle in which he is riding, he should get out and go forward to a place where he can sec; but where a driver has stopped at the usual place for stopping from which he has a view of the tracks, whether he should go forward in advance of his team to a better place to look, is a question to be determined by the jury from the circumstances of the particular case.
    2. In an action against a railroad company to recover damages for personal injuries, it appeared that the plaintiff was injured at a grade crossing where there were five tracks, on four of which rapidly moving trains ran frequently. He was riding on a long lumber wagon and was seated twenty feet back of his horses’ heads near the hind axle, a position from which he could reach the brake. He stopped when his horses were twenty feet from the tracks and he was about forty feet from them, and waited until a train had passed west 300 feet. This was the usual place where drivers stopped, but from it he could see only about 300 feet either way. Within twenty feet of the tracks there was an unobstructed view for 1,400 feet. After the train had passed, the plaintiff looked and listened as he drove on the crossing. When his horses were on the second track and the front of his wagon on the first he saw a train coming east around a curve 1,500 feet away. He hastened to get across, but one of the hind wheels of his wagon was struck when on the last rail of the fourth track by a train which, according to the testimony of his witness, was running fifty-five miles an hour, of the approach of which no warning had been given. Held, that the case was for the jury and that a verdict and judgment for plaintiff should be sustained.
    Argued Oct. 30, 1908.
    Appeal, No. 129, Oct. T., 1908, by defendant, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1906, No. 527, on verdict for plaintiff in case of Johnston R. Calhoun v. The Pennsylvania Railroad Company.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Patton, J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for 15,000. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      James 8. Crawford, with him Patterson, Sterrett & Acheson, for appellant.

      Rody P. Marshall, with him' Thomas M. Marshall for appellee.
    January 4, 1909:
   Per Curiam,

The plaintiff was injured at a grade crossing of the defendant’s road in East Braddock, where there were five tracks, on four of which rapidly moving trains ran frequently. He was riding on a long lumber wagon and was seated twenty feet back of his horses’ heads near the hind axle, a position from which he could reach the brake. He stopped when his horses were twenty feet from the tracks and he was about forty feet from them, and waited until a train had passed west 300 feet. This was the usual place where drivers stopped, but from it he could see only about 300 feet either way. Within twenty feet of the tracks there was an unobstructed view for 1,400 feet. After the train had passed, the plaintiff looked and listened and he continued to look and listen as he drove on the crossing. When his horses were on the second track and the front of his wagon on the first, he saw a train coming east around a curve 1,500 feet away. He hastened to get across, but one of the hind wheels of his wagon was struck when on the last rail of the fourth track by a train which, according to the testimony of his witness, was running fifty-five miles an hour, of the approach of which no warning had been given.

It is argued that the plaintiff was negligent in not getting off his wagon and going forward to a place where he could obtain an unobstructed view, and in knowingly attempting to cross in front of a rapidly moving train. There has been no departure from the rule that, if a driver cannot see by looking from the vehicle in which he is riding, he should get out and go forward to a place where he can see; and there should be no departure from it: Kinter v. Railroad Co., 204 Pa. 497; Mankewicz v. Railroad Co., 214 Pa. 386. But where a driver has stopped at the usual place for stopping, from which he has a view of the tracks, whether he should go forward in advance of his team to a better place to look, is a question to be determined by the circumstances of the particular case. It was said by the present chief justice in Ely v. Railroad Co., 158 Pa. 233: “Stopping is opposed to the idea of negligence, and unless, notwithstanding the stop, the whole evidence shows negligence so clearly that no other inference can be drawn from it, the court cannot draw the inference as a conclusion of law, but must send the case to the jury.”

As the plaintiff advanced from the usual stopping place, he had a view for 1,400 feet before his horses reached the first track, and no train was in sight. He saw all that he could have seen if he had gone forward before starting to cross. Neither the court nor the jury could properly adjudge him negligent in attempting to cross.

When he first saw the train, his horses were near the middle of the crossing and he had reason to believe that it was safer to go on than to stop on the first or second tracks where trains passed every few minutes, or to attempt to back off. He was, moreover, confronted by a sudden peril and could not be held to the exercise of the highest degree of prudence.

The judgment is affirmed.