author: Mb. Justice Potteb, Mb. Chief Justice Mitchell,

text:
    Vanuxem’s Estate.

      Taxation—Collateral inheritance tax—Decedents’ estates—Conversion— Real estate in other states.

    Testator directed as follows: “I give unto my executors hereinafter named full power and discretion to sell any or all of my real estate whenever any such sale be necessary or expedient for any purpose of my estate, of administration, distribution or otherwise.” In the administration of the estate it became necessary to sell the real estate in order to pay the pecuniary legatees. Held, that the value of the lands in other states is subject to the payment of the Pennsylvania collateral inheritance tax.
    Mr. Chief Justice Mitchell dissents.
    Argued Jan. 31, 1905.
    Appeal, No. 257, Jan. T., 1904, by William Potter et al., executors, from decree of O. C. Montgomery Co., April T., 1904, No. 7, confirming the report of the collateral appraisement in estate of Louis C. Vanuxem, deceased.
    Before Mitchell, C. J., Dean, Fell, Potter and Elkin, JJ.
    Affirmed.
    Appeal from appraisement of collateral inheritance tax.
    Solly, P. J., -filed the following opinion:
    Louis C. Vanuxem, a resident of the township of Springfield, this county, died therein on December 21, 1903, unmarried and testate, leaving no lineal descendants. His will is dated October 16, 1902, and has several codicils attached. In the third item he gives general pecuniary legacies to the amount of 1570,500, without deduction for taxes or like charges (which are to be paid out of the general estate), to his sisters, nieces and other relatives and persons, payments to be made to them in the order named.
    In the fourth item the testator gives to his sisters, Mary and Florence, during their lives and the life of the survivor, the full and free use and occupancy as a home for themselves and any of his sisters who may become widowed, his dwelling on Evergreen avenue, Chestnut hill, and his plantation at Upatoi, Georgia, together with all household goods, furniture, horses, carriages, etc., at either place, on condition that they maintain the houses in good order, pay taxes and like charges, with the right to rent the premises for their benefit, should they not desire to occupy either. Upon the death of the survivor, the executors are directed to sell the properties, the proceeds of which shall pass into the residuary estate, which is devised and bequeathed in item five to and among certain persons and corporations, share and share alike, with the provision that in the event of the death of either of two of his brothers-in-law, in the lifetime of the testator, leaving his wife surviving, she shall be substituted as residuary legatee in place of her husband, and should both husband and wife predecease him, leaving issue surviving, such issue shall take the share of their father or mother.
    By the third codicil, which is dated June 9, 1903, a pecuniary legacy of $50,000 is bequeathed to Louis Yanuxem Cochran, a nephew. The residuary clause of the will is amended and radically changed. In lieu of the devise and bequest of equal shares of the residue of the estate to the persons named in that clause, there are general pecuniary legacies of $10,000 each bequeathed to John Scott, Jr., James B. Walter and Gustav H. Seelaus, and $25,000 each to the trustees of Princeton University and the trustees of Jefferson Medical College. The interests of his sisters, Mary and Florence Yanuxem, and his brothers-in-law, William Potter, John Lewis Cochran and Daniel L. Hebard, are to remain as devised and bequeathed in the residuary clause. They are, therefore, the residuary devisees and legatees of the estate.
    The language of the seventh item of the will, in part, is as follows: “ I give unto my executors hereinafter named full power and discretion to sell any or all of my real estate whenever any such sale be necessary or expedient for any purpose of my estate, of administration, distribution or otherwise.”
    At the time of his death the testator was possessed of personality, consisting of bonds, stocks, mortgages, notes, insurance policies, cash, etc., all of the value of about $460,000, as fixed by the appraiser of the collateral inheritance tax. His debts amounted in round figures to $140,000. The general pecuniary legacies bequeathed in the will and codicils foot up about $700,000.
    He was seized in fee simple of certain real estate in Pennsylvania, Georgia, Tennessee and Illinois, a detailed statement of which, as well as the personal assets, with values, appear in the inventory and appraisement made up and filed by the collateral appraiser. Upon the real estate situated in the city of Knoxville he assessed the tax due at $1,350.13, and upon that in the city of Chicago at $6,741.82. He assessed no tax on the real estate at Upatoi, Georgia, because in his opinion it is not liable.
    His action is based upon the conclusion that there is an equitable conversion of the real estate because there is not only an absolute necessity to sell the same to execute the will, but also such a blending of the real and personal estate by the testator as to show his intention to bequeath the fund arising out of the same as money. He cites a number of authorities to support the assessment of the tax on the Tennessee and Illinois lands. The executors and legatees have taken this appeal from the assessment of these lands. Their contention is that these lands pass as real estate to the legatees, there being no equitable conversion under the will.
    The Act of May 6, 1887, P. L. 79, provides that all estates, real, personal and mixed of every kind whatsoever, situated within this state, whether the person or persons dying seized thereof be domiciled within or out of this state, and all such estates situated in another state, territory or country, when the person or persons dying seized thereof shall have their domicil within this commonwealth, which passes to collaterals, shall be subject to the payment of collateral inheritance tax. The tax imposed is not a succession duty on the recipient of the property, but is a tax upon the property itself as appears from the second proviso in the third section, that it shall remain a lien on the real estate on which the same is chargeable until paid. When the legislature undertook to impose such tax upon real estate situate in another state, it transcended the power of the state : Bittinger’s Estate, 129 Pa. 338 ; Drayton’s Appeal, 61 Pa. 172 ; Commonwealth v. Coleman’s Administrator, 52 Pa. 468. The border line, however, is reached when property which is in fact real estate is to be treated as personalty under the doctrine of equitable conversion: Handley’s Estate, 181 Pa. 339.
    Is there an equitable conversion of the lands situated in Knoxville and Chicago ? If there is not, then they are not subject to the tax for the “ state cannot exercise extraterritorial taxing power.” If there is a conversion, then they are liable and the action of the appraiser must be sustained.
    Conversion is always a question of intent. The intent of a testator is to be gathered from his entire will, rather than from the terms of a particular devise, which regarded alone might be inconsistent with the testamentary scheme as a whole: Dean v. Winton, 150 Pa. 227.
    In Hunt’s and Lehman’s Appeals, 105 Pa. 128, Mr. Justice Paxson said: “It ought to be settled by this time that in order to work a conversion, there must be either: 1st, a positive direction to sell; or, 2d, an absolute necessity to sell in order to execute the will; or, 8d, such a blending of real and personal estate by the testator in his will as to clearly show that he intended to create a fund out of both real and personal estate and to bequeath the said fund as money. In each of the two latter cases an intent to convert will be-implied.” This case has been cited and the language of Justice Paxson quoted approvingly again and again by the appellate courts. Among instances are Irwin v. Patchen, 164 Pa. 51; Sauerbier’s Estate, 202 Pa. 187; Rauch’s Estate, 21 Pa. Superior Ct. 60.
    Mr. Justice Mitchell, in the late case of Yerkes v. Yerkes,, 200 Pa. 419, says: “ The doctrine of equitable conversion is based on the rule that what is to be, or ought to be done, shall be treated as if done already. It is a fiction, therefore, invented to sustain and carry out the intention of the testator or settler, never to defeat it. Its application requires constant watchfulness to guard against the tendency to become a formal rule de jure without regard to its real purpose and necessity. It should never be overlooked that there is no real conversion ; the property remains all the time in fact, realty or personalty, as it was; but for the purpose of the will it may be necessary, and only so far it is treated in contemplation of law as if it had been converted. Few testators have any knowledge of the doctrine, or any actual intent to change the nature of their property, except when and to the extent that may be required to carry out the special purpose of the will. The presumption, therefore, no matter what the form of words used, is always against conversion, and even where it is required, it must be kept witbin the limit of actual necessity.”
    But conversion will take place, though the language confers a more discretionary power of sale, where it is not possible to execute certain provisions of the will without a sale of the real and personal property into money. “ If a testator authorizes his executors to sell his real estate and to execute and deliver to the purchasers deeds in fee simple, and it is clear from the- face of his will that it was his intention that the power so conférred by him should be exercised, it will be construed as a direction to sell and operate as an equitable conversion. If in addition to this clear intention of the testator, it plainly appears that effect cannot be given to material provisions of the will without the exercise of this power, the conclusion is irresistible that a conversion is as effectually accomplished by the will, and the duties of the executors under it are the same, as if it contained a positive direction to sell: ” Fahnestock v. Fahnestock, 152 Pa. 56.
    With these authoritative explanations of the doctrine of equitable conversion as applied in Pennsylvania, we turn to the will of the testator to ascertain his intent, and his scheme of distribution. In brief he gives general pecuniary legacies upwards of $700,000; devises certain of his real estate to two of his sisters for life, and at their death directs a sale by the executors; and devises and bequeaths the residue of his estate to his two sisters and three brothers-in-law. Whenever it is necessary or expedient for any purpose of the estate, of administration, distribution or otherwise, the executors are given full power and discretion to sell any or all the real estate. The pecuniary legacies are to be paid before those to whom the residuary is given shall receive anything, because it is only what remains of the estate, after the specific legacies are paid, that passes as residue or remainder. These legacies pass to the legatees as money. The testator intended them to be paid in cash. There is nothing in the language of the will to show they are to be paid in any other way. Their character is personalty. He must have foreseen the necessity for a sale of his real estate to carry out his scheme of dividing his estate by first bestowing gifts upon the beneficiaries, in the form of pecuniary legacies, else how were they -to be paid ? He, therefore, gives his executors full power to sell the real estate whenever a sale is necessary for any purpose of the estate, of administration, distribution or otherwise. It is true the power is discretionary, not direct and positive, but the intent is manifest that it is to be exercised, if the purposes of distribution require it. The power is, therefore, to be construed as a direction to sell.
    The last codicil to the will was executed June 9, 1903, less than seven months before testator’s death. It will be observed he bequeaths $80,000 in pecuniary legacies to certain legatees who were included in the residuary clause of the will, thus giving them preference over the remaining residuary legatees. This amount, together with the legacies given in the will, made money gifts aggregating nearly $700,000, or several hundred thousand dollars more than his personal estate was then worth. The testator is presumed to have known the value of his personal estate at that time. He undoubtedly knew the extent of his gifts, and it would be passing strange if he intended their payment to be confined to the proceeds of the personal estate, resulting in each legatee receiving much less than the amount of the gift. The manifest intention of the testator is to first give legacies of different amounts, and what is left of the estate to five residuary legatees. The latter take what remains of the estate after the legacies have been first paid and satisfied thereout. “ A residuary clause in a will is a gift of all that is left after the gifts specified or designated have been paid and satisfied Per Penbose, J., in Wood’s Estate, 13 Pa. Dist. Rep. 195. It may be said the testator blended his real and personal estate, authorized a sale of the former by the executors, when in their discretion the purpose of distribution required it. But there can be no shadow of doubt that in order to execute the will, carry out the provisions, and pay the general pecuniary legacies, it is absolutely necessary to sell the real estate. Effect cannot be given to the will, without the exercise of the power of sale. For the purpose of administration and distribution, the proceeds of the lands must come into this court. It follows that an equitable conversion is as effectually accomplished by the will and the duties of the executors under it are the same as if it contained a positive direction to sell. In reaohing this conclusion, the injunction of Yerbes v. Yerbes, 200 Pa. 419, to “ beep within the limits of actual necessity,” is observed.
    Although the tax is assessed by the appraiser upon the value of the lands situate in foreign states, it is really upon the proceeds to be brought here for distribution. In strictness it is the legacies themselves that are subject to the tax. General pecuniary legacies pass to the legatees only in the form of money. If real estate should be conveyed to such legatees in satisfaction of their legacies, it would only be a substituted equivalent for the pecuniary sum of the legacies: Miller v. Commonwealth, 111 Pa. 821.
    It is immaterial to this inquiry, what the statutes of the states of Illinois and Tennessee are on the subject of collateral inheritance tax on lands within their jurisdiction owned by one dying domiciled in another state. Whether lands of this decedent situated in those states are liable to pay such tax or succession duty cannot affect the question before us. If there is an equitable conversion of the lands into personalty under the will of the decedent, and the proceeds are brought into this court for distribution among collaterals, the legacies payable out of such proceeds are liable for the collateral inheritance.
    From what has been said, it follows that the action of the appraiser must be sustained. In our view, there is such an absolute necessity to sell the lands in the states of Illinois and Tennessee and convert them into money, in order to pay general pecuniary legacies, and carry out the intent of the testator and the provisions of his will, as to worb an equitable conversion into personalty, the proceeds of which sales must be brought into this court for distribution.
    And now, July 21, 1904, appeal dismissed at costs of appellants.

      Error assigned was the decree of the court.

      N~. II. Larzelere, for appellant.
    Where the conversion is not referable to the exact instant of testator’s death, and where it may only tabe place provided the executors chose to exercise the power of sale, no legal conversion tabes place which will bring the estate within the taxing power of the commonwealth; Hale’s Est., 161 Pa. 181; Drayton’s App., 61 Pa. 172; Handley’s Est., 181 Pa. 339; Yerkes v. Yerkes, 200 Pa. 419; Neely v. Grantham, 58 Pa. 433.
    ' The power to tax property in another jurisdiction is of doubtful right, and is restricted to the one case alone where land situated in a foreign jurisdiction is to be considered personal estate in this.

      J. A. Strassburger, for appellees.
    The will worked a conversion : Hunt’s and Lehman’s Apps., 105 Pa. 128; Fahnestock v. Fahnestock, 152 Pa. 56; Yerkes v. Yerkes, 200 Pa. 419; Sauerbier’s Est., 202 Pa. 187; Miller v. Com., 111 Pa. 321.
    Williamson’s Est., 153 Pa. 508, squarely rules that the proceeds of real estate of a testator situate in a foreign state which he has converted and the proceeds are payable to collaterals are subject to collateral inheritance tax : Miller’s Est., 182 Pa. 157; Coleman’s Est., 159 Pa. 231; Lewis’s Est., 203 Pa. 211.
    June 22, 1905:
   Opinion by

Mb. Justice Potteb,

Louis C. Vanuxem, Esq., of Springfield township, Montgomery county, made his last will and testament dated October 16, 1903. By item seven of his will he gives his executors full power and discretion to sell any or all of his real estate, whenever any such sale be necessary or expedient for any purpose of his estate, of administration, distribution or otherwise. -He was seized of certain real estate in Tennessee and Illinois, and upon this property, the appraiser of collateral inheritance tax, assessed taxes. This was done upon the ground that the directions in the will worked an equitable conversion of the lands into personal property, by authorizing the executors in their discretion to sell for distribution, and the further fact that it became necessary to sell in order to pay the pecuniary legatees.

The orphans’ court sustained the action of the appraiser. It was not pretended that the real estate in other states could be charged with collateral inheritance tax as real estate, but only by reason of the fact that it was necessary for the executors to sell it, in order to provide the money to pay the pecuniary legacies. And that being the case, the power to sell if 'necessary to make distribution, became -under the manifest intent of the testator, a direction to sell.

The judge of the orphans’ court thus reasons it out in his opinion : “ The pecuniary legacies are to be paid before those to whom the residuary is given shall receive anything, because it is only what remains of the estate, after the specific legacies are paid, that passes as residue or remainder. These legacies pass to the legatees as money. The testator intended them to be paid in cash. There is nothing in the language of the will to show they are to be paid in any other way. Their character is personalty. He must have foreseen the necessity for the sale of his real estate to carry out his scheme of dividing his estate by first bestowing gifts upon the beneficiaries in the form of pecuniary legacies, else how were they to be paid ? ”

The pecuniary legacies aggregated nearly $700,000, or very much more than the amount of the personal estate, so that we cannot see any way by which the executors can escape converting the land into money, in order to carry out the provisions of the will. We agree with the conclusion of the court below, that “ an equitable conversion is as effectually accomplished by the will, and the duties of the executors under it are the same as if it contained a positive direction to sell.” It follows as a matter of course that if sold, the proceeds of these lands must come' into the courts of Pennsylvania for distribution. The tax, therefore, falls upon the legacies themselves, rather than upon the lands which are now appraised in order to determine the amount of the tax.

The opinion of the court below has met so clearly the questions involved in this appeal and has disposed of them so fully, that further elaboration, upon our part, is both difficult and unnecessary.

The assignments of error are overruled and the decree of the orphans’ court is affirmed.

Mb. Chief Justice Mitchell,

dissenting:

I would reverse this judgment. The taxation of land not within the territorial limits of the state is admittedly beyond the legislative power, and the taxation of the value or the proceeds of such land, under whatever form or disguise it is sought to be exercised, is upon the border line of questionable jurisdiction and should be scrutinized closely with every presumption against its validity.

But even if the lands in this case were within Pennsjdvania there was no proper conversion. They were devised as land to devisees named, and there is in the will no direction to sell but only a power and discretion to do so when the executors should deem it expedient. The learned court below founded its judgment on the doctrine of necessity to carry out the will. But on this point the case falls clearly within the principle of Hunt’s Appeal, 105 Pa. 128 (141), where it was held, “the most that can be said is that the testator made a mistake as to the extent of his estate, and a sale of his real estate became necessary in order to pay his debts. But this is not to the purpose. The scheme oE his will did not contemplate this, and if by reason of the depreciation of his property, or for other causes a necessity to sell the real estate arose which was not foreseen by the testator, it will not work a conversion for the obvious reason that a conversion is always a question of intent.”

The necessity to sell which effects a conversion is one which must have been contemplated by the testator in order to carry out the scheme of his will, not a necessity as a matter of fact arising out of the actual circumstances of the estate after his death. Suppose the personalty though insufficient to pay the pecuniary legacies at the time of testator’s death had so increased in value as to be sufficient before the time of payment, clearly there would have been no conversion which would require or justify an exertion of the executor’s discretion which would subject these devisees’ land to the payment of this tax; and equally so in the contrary case of a sufficiency of personalty at the death and a subsequent decline in value. Either case would come exactly within the quotation above made from Hunt’s Appeal. To attribute the necessity to sell as within the contemplation of the testator seems to me like attributing the gift of foresight to those who are wise after the event. The testator gave large pecuniary legacies, but he had personal estate of still larger nominal value, and .with this knowledge of his affairs he gave his executors not a direction but only a discretion to sell. Clearly he did not contemplate a sale as a necessity but only as a contingency to be dealt with in the discretion of his executors.

I regard the present decision as at variance with the principies of all our later decisions, particularly Hunt’s Appeal, supra; Handley’s Estate, 181 Pa. 339; Yerkes v Yerkes, 200 Pa. 419; Sauerbier’s Est., 202 Pa. 187; and Cooper’s Est., 206 Pa. 628.


source: Caselaw Access Project

author: Mr. Justice Fell,

license: Public Domain

text:
    Reilly v. Crown Petroleum Company, Appellant.

      Ejectment—Boundaries—Evidence—Question for jury.

    In an action of ejectment where three out of four boundaries are fixed by-calls for adjoinders, and the issue is purely one of fact as to whether the fourth boundary was a straight line, or a different character of line, and the evidence is conflicting, the case is for the jury.
    Argued Jan. 31, 1905.
    Appeal, No. 6, Oct. T. 1905, by defendant, from judgment of C. P. Beaver Co., Sept. T., 1905, No. 189, on verdict for plaintiff in case of John C. Reilly, Leopold Vilsack, Hugh Murphy and Charles Finnegan v. The Crown Petroleum Company.
    Before Mitchell, C. J., Dean, Fell, Potter and Elkin, J J.
    Affirmed.
    Ejectment for oil land in Greene Township. Before Miller, P. J.
    The opinion of the Supreme Court-states the case.
    Verdict and judgment for plaintiff. Defendant appealed.

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

      B. B. Ivory, with him Buchanan Barnett, for appellant.

      J. McF. Carpenter, with him Martin Martin and Thomson Thomson, for appellees.
    June 22, 1905:
   Opinion by

Mr. Justice Fell,

The parties to this ejectment .are lessees of oil and gas lands, and the dispute was as to the boundary lines between the tracts they leased from the same owner. In June, 1902, Swearingen, the owner of the farm, leased to Finnegan, the appellee’s predecessor in title, a tract containing sixty acres, bounded on three sides by the land of others and on the fourth side by other laud of the lessor. In October, 1902, Swearingen and Finnegan went on the land with a surveyor to mark off the land leased. Prior to this they had been on the land and Swearingen had pointed out what he supposed would be the northern terminus of the line between the sixty acres and the remainder of the farm. When the surveyor located his starting point and pointed out the general course of the line, Finnegan objected, saying the line was not where Swearingen had told him it would be. He then left the premises, and subsequently requested the surveyor to run a line more in accordance with his understanding. This line was run in the absence of both parties, and when submitted to Finnegan was rejected by him. Swearingen did nothing in regard to it. Finnegan then went into possession of the land surveyed under Swearingen’s direction and commenced operating for oil and gas. In April, 1904, Swearingen leased the remainder of his farm to the appellants’ assignor.

A line run directly across Swearingen’s land from the eastern extremity of the northern to the eastern extremity of the southern boundary of the land described in the first lease would cut off only thirty-five acres. The circuitous line run under Swearingen’s direction gave Finnegan the exact amount named in the lease, sixty, acres. The appellees rested on the first lease, the survey under Swearingen’s direction, and actual possession in pursuance thereof at the date of entry by the appellants. The contention of the appellants was that the boundaries in the first lease gave the lessee only thirty-five acres and that he had rejected the survey by which sixty acres were set off for him. ' The issue was purely one of fact and it was submitted to the jury with the instructions that since three of the boundaries were fixed by calls for adjoinders, the lines being certain, the fourth boundary would be a straight line across Swearingen’s land, in the absence of proof of a contrary intent. It was left to them to determine whether a different line run so as to include sixty acres called for by the first lease was established and located by agreement of the parties to that lease. This was a proper instruction and there was evidence to warrant a finding that Swearingen in carrying out the intention of both parties to the lease had a survey made to include sixty acres, and that the survey was accepted by the lessee.

The judgment is affirmed.


author: Mb. Justice Potteb,

text:
    Stewart’s Estate.

      Executors and administrators—Accounting—Trust and trustees.

    The orphans’ court commits no error in directing.the administrator of a deceased executor to file an account after the death of the widow of the deceased where it appears that over forty years prior to the death of the widow, the executor filed an administration account showing a balance in his hands the interest upon which was to b$ paid to the widow during her life and the principal to other parties after her death, and that the principal was to be secured during the widow’s life by a bond and mortgage on real estate.
    Argued Feb. 6, 1905.
    Appeal, No. 104, Jan. T., 1904, by Ellen "W. Hibbs, administratrix of Rachel J. Stewart, deceased, from decree of O. C. Bucks Co., directing the filing of an account in the estate of John Stewart, deceased.
    Before Mitchell, C. J., Dean, Fell, Mestrezat and Potter, JJ.
    Affirmed.
    Petition for citation. Before Stout, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was decree directing the account.

      L. L. Smith, with him William, Stuehert, for appellant.
    Whether the estate of Rachel J. Stewart be liable at all upon the theory that she received the assets of her husband’s estate as a trustee under his will, or as life tenant, are questions which will be met at the proper time, but that the appellant is not bound to file an account as executrix there can be no doubt: Seibert’s App., 2 W. N. C. 557; Norris’s App., 71 Pa. 106; Com. v. Snyder, 62 Pa. 158.

      Trevor T. Matthews, for appellee,
    cited : Wiegand’s App., 28 Pa. 471; Weldy’s App., 102 Pa. 454; Stong’s Estate, 160 Pa. 13; Irvine’s Est., 203 Pa. 602; Fesmire’s Est., 134 Pa. 67.
    June 22, 1905 :
   Opinion by

Mb. Justice Potteb,

The appellant in this case alleges that the court below committed error in ordering an account of the administration of the estate of John Stewart, deceased, by Rachel J. Stewart as the surviving executor of the said John Stewart, deceased.

It appears from the record that Rachel J. Stewart and Amos Wilkinson were joint executors of the estate of John Stewart, deceased. That on May 3, 1858, an account was filed, showing the sum of $6,196.32 in the hands of the executors. The interest upon the entire amount of the estate was to be paid to the wife, Rachel J. Stewart, during her lifetime, if she remained unmarried, and the funds were to be secured by bond and mortgage on real estate. The principal of the fund was not payable until the death of Rachel J. Stewart, which did not occur until 1902.

The suggestion of counsel for appellant that the account now ordered is for the same assets which were administered in 1858, is altogether beside the mark. That was an administration account, while the accounting now sought is for the principal of the fund which has been held in trust during all these years as a producer of income for Rachel J. Stewart. The corpus of the fund never belonged to her. The fund in question was reported as on hand when the former account was filed, and it was thereafter to be held for investment as a trust fund, under the terms of the will of John Stewart. What is now sought is an accounting for the principal of that fund, after the term of its use for the benefit of Rachel J. Stewart during her lifetime, had expired. She was entitled to the interest upon it, but not to any part of the principal sum.

The learned judge of the orphans’ court was clearty right in directing the rendering of an account. The assignments of error are overruled and the decree is affirmed.


text:
    Abel, Appellant, v. Northampton Traction Company.

      Negligence—Street railways—Summer car—Standing upon running board ■—Passenger—Burden of proof—Evidence.

    Where a person is unable to find room on a summer car elsewhere than upon the running board, and the street railway company accepts him as a passenger in that position, and while riding on the running board he is killed in a collision with another car, the burden of showing that the accident was not caused by the negligence of the motorman of the colliding car is upon the street railway company. In such a case a presumption 'of negligence arises against the company, and the burden is on the company to rebut it.
    In an action against a street railway company to recover damages for the death of plaintiff’s husband it appeared that on the evening of the accident, a trolley car crowded with passengers started from the platform of a park on the return to a city. A short distance from the end of the platform there was a switch and siding to enable the cars to pass at that point. As the inward bound car approached the switch, another car coming in the opposite direction from the city entered the switch and passed over the turnout towards the platform. Instead of stopping on the turnout the latter car ran on towards the second switch which it reached just as the inbound ear was crossing. The outbound ear struck the inbound one about the middle of the side. The deceased was caught between the cars and killed. There was testimony that the deceased was standing on the running board of the inbound car, but two witnesses testified that he was standing on the track next to the car. Held, that the court could not say as a matter of law that the deceased was guilty erf contributory negligence even if standing on the track, inasmuch as there was no reason why he should have apprehended that the outbound car would continue to run out from the siding and over the switch, and would strike with its front end the side of the inbound car.
    Where , a street railway company anticipating a great crowd on a particular evening at a park owned by it provides in addition to its trolley cars a steam railroad train for visitors to the park, a visitor cannot be charged with contributory negligence in taking passage on a crowded trolley car rather than on the train.

      Negligence—Damages—Husband and wife—-Death of husband—Divorce.

    In an action by a wife to recover damages for the death of her husband caused by the negligence of another, the fact that plaintiff had consulted counsel as to her right to obtain a divorce, does not affect her right of action, and proof as to such matter is irrelevant.
    In such a case there is no error in permitting the defendant to show on cross-examination that the father of the deceased contributed to the support of the plaintiff, particularly where the direct examination showed that the earning capacity of the deceased was very small.

      Negligence—Street railways—Collision—Evidence.

    In an action against a street railway company to recover damages for the death of plaintiff’s husband killed in a collision, evidence as to the effect of the collision upon other passengers is immaterial and irrelevant to show the extent and character of the injuries to the deceased.

      Argued March 6, 1905.
    Appeal, No. 157, Jan. T.,1904, by • plaintiff, from judgment of C. P. Northampton Co., Dec. T., 1902, No. 46, on verdict for defendant in case of Cora Alice Abel v. Northampton Traction Company.
    Before Mitchell, C. J., Fell, Brown, Mesteezat and Potter, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Schuyler, P. J.
    The circumstances of the accident were stated in the opinion of the Supreme Court.
    George Lehman, a witness for plaintiff, was asked this question :
    “ Q. Was there a man at Fourth and Northampton streets, Easton, announcing that there was a train provided by the trolley company? A. During the early part of the day ? Q. Yes. A. Yes, sir.”
    Objected to as immaterial and irrelevant.
    The Court: The objection is overruled and bill sealed for plaintiff. [5]
    Lawrence P. Meyers was asked this question :
    “ Q. What were your instructions ? A. My instructions was to go to the corner of Fourth street at 11 o’clock in the morning to make an announcement to take the cars—”
    Objected to, for the same reason that we objected to the testimony of Mr. Lehman; that it is irrelevant and immaterial as to what took place at Fourth and Northampton streets, and also what took place at the park, what announcements were made by the witness at the park with reference to taking the railroad train in preference to the trolley.
    The Court: The objection is overruled and bill sealed for plaintiff. [6]
    Defendant’s witness, Wilbur Bender, was asked this question :
    “ Q. Was he under the influence of liquor in the evening? ” Defendant proposes to prove by the witness that at the time of the accident Percy Abel was in an intoxicated condition. Also propose to prove his habits, and frequent intoxication, for the purpose of illustrating the condition of his health and probable life, and as upon the question of contributory .negligence.
    So much of the offer as relates to the offer to prove that he was intoxicated at the time of the accident plaintiff objects to that as being immaterial and irrelevant to the issue.
    The Court: The objection is overruled and bill sealed for plaintiff. [7]
    “Q. Did you see him talking to Mr. Hay? A. I did. Q. Did you hear what Mr. Hay said to him ? A. I can’t recall the words. Q. Can you give us the substance of what he said? Did he say anything to him about taking the train ? ”
    Mr. Stewart: This is objected to as immaterial and irrelevant. The testimony as to what 'occurred between Mr. Abel and Mr. Hay which the witness says he overheard is objected to as immaterial and irrelevant.
    Mr. Fox : This is to be followed by proof, by Mr. Hay, that he had .this conversation with Mr. "Abel and induced him to take this train, and actually took him to the train.
    The Court: The objection is overruled and bill sealed for plaintiff. [8]
    Mr. Zinn was asked this question-:
    “ Q. What was the arrangement you made with reference to the train?”
    Mr. Fox: Defendant proposes to prove by the witness that he was a member of the committee of the labor union that arranged with the officers of the trolley company with reference to the transportation of the crowd that day and that the arrangement included provision for a steam train; to be followed by proof that the labor union also arranged to have Mr. Meyers there for the purpose of announcing to the public generally the provisions that weré made for the accommodation of the public.
    Objected to as immaterial and irrelevant what arrangement was entered into by the labor union and the railroad company with reference to transportation of the crowds to and from the park.
    The Court: The objection is overruled and bill sealed for plaintiff. [9]
    Thomas A. H. Hay was asked this question:
    “ Q. Did the traction company pay the entire cost of the running of the train? A. We paid the entire cost.”
    Objected to for the same reason, the amount paid and who it was paid to, as utterly incompetent and irrelevant.

      The Court: Same ruling and bill sealed for plaintiff. [10]
    Plaintiff was asked this question:
    “ Q. After you went to Philadelphia did you take some steps towards procuring a divorce? A. No, I did not. Q. Not at any time prior to his death? A. Only at one time I asked what could be done with reference to that. I never applied for a divorce.”
    Objected to, as not cross-examination. The testimony would be incompetent and irrelevant for any purpose at any time in the case.
    The Court: The objection is overruled and bill sealed for plaintiff, [11]
    Plaintiff’s witness, C. J. Abel, on cross-examination was asked this question:
    “ Q. After that time did you contribute to her support in any way ? A. Well, I paid some money out of my own pocket. He wouldn’t pay it. Q. You paid some of the alimony out of your pocket? A. Yes, sir,”
    Objected to as not cross-examination.
    The Court: The objection is overruled and bill sealed for plaintiff. [12]
    Mr. Stewart: Plaintiff offers to prove by the witness that at the time of the collision when the decedent, Percy Abel, was struck by the car coming from Easton, that other passengers were injured by the same collision.
    Objected to as incompetent and irrelevant and as not a part of the res gestee, and that it would tend to raise collateral issues as to which the court in the action now pending could not inquire.
    The Court: The objection is sustained and bill sealed for plaintiff. [13]
    The court charged as follows:
    Between 9 and 10 o’clock in the evening of Labor Day, 1902, plaintiff’s husband was struck by a car of the defendant, receiving injuries from the effect of which he died a few hours later. The present action has been brought to recover damages for the loss thus sustained on the theory that it was occasioned by the negligence of the defendant. [I do not think there is any evidence that would justify you in finding that the injury complained of was the result of defendant’s negligence. But even if the fact were otherwise it is clear that the negligence of the deceased contributed to the injury.] [1] The only eyewitnesses of the accident were two women, friends of the deceased, who stood near him at the time, both of whom testify that when he was struck he was standing on the track over which the offending car was moving. There is no evidence that he was forced into this position or that it was not his own voluntary selection. True, these women were defendant’s witnesses. It is also true that one of the plaintiff’s witnesses testified that a very short time, if not immediately before the accident, the deceased was standing on the running board of a crowded car pointed in a different direction from the offending ear, but this witness did not see the accident, and frankly admitted that he did not know where the deceased was standing when it occurred. [This leaves wholly uncontradicted the testimony of the two women, which, if believed, and no reason has been assigned why it should not be-believed, clearly establishes contributory negligence on the part of the deceased.] [2]
    [But this is by no means the only evidence bearing upon the question of contributory negligence. The accident happened at a station erected by the defendant company near a" pleasure resort known as Bushkill Park. On the opposite side of the park, and also near to it, the D., L. & W. R. R. Co. had a branch road leading, as did the defendant’s road, to Easton, the home of the deceased. The defendant, anticipating a great crowd beyond the capacity of its ears, hired a train of cars from the D., L. & W. Co., to ply between the park and Easton on the day in question, and also constructed a well defined path, lighted at night by electricity,.leading through the park to the D., L. & W. trains. The fare on both roads was the same. The defendant also employed L. P. Meyers, familiarly known for his stentorian voice, to announce,, from time to time the existence and movements of these trains, and this was done at the defendant’s station and in the park during the evening. Moreover, Mr. Hay, the president of the defendant company, met the deceased, whom he had known from childhood, a very short time before the accident, and advised him to take the train for safety, and walked with him’ a short distance in that direction, the deceased being somewhat under the influence of liquor. None of these facts are disputed, and it is not pretended that either the train or the path to it was unsafe, or that the train was unduly inaccessible. A clearer case of contributory negligence than is thus presented it would be difficult to conceive of: Smith v. City o£ New Castle, 178 Pa. 298; Musselman v. Hatfield Boro., 202 Pa. 489, and many other cases. I therefore direct you to return a verdict in favor of the defendant.] [3]
    The defendant presented this point:
    3. Under all the law and the evidence the verdict must be for the defendant. Answer: Affirmed. [4]

      Errors assigned were (1-4) above instructions, quoting them; (5-13) ruling on evidence, quoting the bill of exceptions.

      Russell 0. Stewart, with him Erante S. Busser and Ira J. Williams, for appellant.—The
    The plaintiff made out a prima facie case : McCaw v. Traction Co., 205 Pa. 271.
    The evidence being conflicting as to the plaintiff’s contributory negligence and the negligence of the defendant, the case was for the jury: Muhlhause v. Monongahela St. Ry. Co., 201 Pa. 237; Keator v. Traction Co., 191 Pa. 102; Ely v. Pittsburg, etc., Ry. Co., 158 Pa. 233; Strader v. Monroe County, 202 Pa. 626 ; Creachen v. Bromley Bros. Carpet Co., 209 Pa. 6; Shaffer v. Clark, 90 Pa. 94; Weaver v. Craighead, 104 Pa. 288; Braunschweiger v. Waits, 179 Pa. 47; Stover v. Penna. R. R. Co., 195 Pa. 616; Penna. R. R. Co. v. Werner, 89 Pa. 59; Penna. R. R. Co. v. Barnett, 59 Pa. 259; Spear v. R. R. Co., 119 Pa. 61; Phila. & Reading R. R. Co. v. Heil, 5 W. N. C. 91; Lehigh Valley R. R. Co. v. McKeen, 90 Pa. 122; Longenecker v. Penna. R. R. Co., 105 Pa. 328; Cougle v. McKee, 151 Pa. 602; Iaquinta v. Traction Co., 166 Pa. 63; Howett v. R. R. Co., 166 Pa. 607; Harlow v. Homestead Boro., 194 Pa. 57; Welsh v. Traction Co., 202 Pa. 530; Rauch v. Smedley, 208 Pa. 175.
    Deceased was not guilty of contributory negligence because he chose to go home on the trolley instead of the train : Smith v. City of New Castle, 178 Pa. 298.
    The testimony in regard to the relation between the defendant and the Delaware, Lackawanna & Western Railroad Company, and the testimony that the decedent was intoxicated was irrelevant and should have been excluded.
    The fact that decedent had deserted his wife did not relieve him from her support or affect her right of action: Appeal of Nye, 126 Pa. 341; Drinkhouse’s Estate, 151 Pa. 302.

      F. J. Fox, with him J. W. Fox, for appellee.
    The deceased was guilty of contributory negligence: Holmes v. Traction Co., 199 Pa. 229; Malpass v. R. R. Co., 189 Pa. 599; Rothchild v. R. R. Co., 163 Pa. 49; Holland v. Kindregan, 155 Pa. 156; Lonzer v. R. R. Co., 196 Pa. 610; Spear v. Phila., etc., R. R. Co., 119 Pa. 61; Heh v. Gas Co., 201 Pa. 443; Muhlhause v. Ry. Co., 201 Pa. 237; Holmes v. Traction Co., 199 Pa. 229; Mooney v. Penna. R. R. Co., 203 Pa. 222; Ammerman v. Coal Twp., 187 Pa. 326; Penna. R. R. Co. v. Henderson, 51 Pa. 315.
    May 24, 1905 :
   Opinion by

Mb. Justice Potteb,

This action was brought to recover damages for the death of plaintiff’s husband, caused, as is alleged, by the negligence of the defendant company. After nine o’clock in the evening of September 1, 1902, a trolley car crowded with passengers started from the platform at Bushkill park on the return trip to Easton. A short distance from the end of the platform there was a switch and siding to enable the cars to pass at that point. As the inward bound car approached the switch, another car coming in the opposite direction from Easton entered the switch and passed over the turnout towards the platform. Instead of stopping on the turnout, the latter car ran on towards the second switch which it reached just as the inbound car was crossing it, and the result was a collision, by which several persons were injured. The outbound car struck the inbound one about the middle of the side, and the husband of tke plaintiff was caught between the two cars and crushed so badly that he died in a few hours.

The motorman of the colliding car testified that as he approached the switch so many persons jumped on the car and platform and crowded around him, that he could not move and could not control the car. If it had not been for the crowd he could have averted the accident. It was so dense that he could not move his arms so as to put on the brake. This, he said, was the cause of the accident.

On behalf of the plaintiff, Harry Petty testified that at the time of the accident he was on the returning car, which was crowded, the seats being all filled and also the running boards at the sides. He says he “ saw the deceased who was standing on the running board just before he was hit.” That he “had bis arihs around the standard.” And that “ the blow kind of turned him around.” On cross-examination, the witness said that while he saw the deceased on the running board just before he was hit, he could not tell whether he was on the running board or on the ground when he was hit.

Floyd Stem testified that he saw the car hit a person who was standing on the running board, but it turned his face so that he could not recognize him, and he was unable to say whether he was plaintiff’s husband.

This was all the evidence offered by the plaintiff to show where her husband was standing when struck and injured. But it was sufficient, we think, to justify its submission to the jury. If the decedent was unable to find room upon the car, elsewhere than upon the running board, and if the defendant company accepted him as a passenger in that position, and was undertaking to carry him, he was entitled to protection. If he was thus struck and injured by the other car, the burden of showing that the accident was not caused by the negligence of the motorman of the colliding car, was certainly upon the defendant company.

In Madara v. Electric Ry. Co., 192 Pa. 542, Justice Dean said (p. 547) : “ If the accident had been apparently caused by the act of a stranger while the plaintiff was a passenger, as in Railway Co. v. Gibson, 96 Pa. 83 (a collision with a hay wagon), the burden would have been on her to show negligence on the part of the defendant. But when it arose from a collision between defendant’s cars, operated on its own rails, the presumption of negligence arises and the burden is on the defendant to rebut it.”

In Thane v. Traction Co., 191 Pa. 249, the present Chief Justice said (p. 253) : “ Cases where the car is crowded and no seat is available rest upon a different basis. There the traveler, if he is to get on at all, must stand on the platform, with its rods, etc., to hold by, or inside with a strap -for that purpose. He is presented with a choice of evils, ánd his action must be judged by the jury, while on. the other hand the carrier by receiving him, undertakes and gives him assurance that it will take care of him and guard him against accident as far as the circumstances will permit.”

In Bumbear v. Traction Co., 198 Pa. 198, where the plaintiff was injured while riding on the side step of a crowded open summer car, Justice Fell said (p. 200): “ When the passenger by invitation of the conductor or with his knowledge and assent, and from necessity because of the want of sitting or standing room within the car, rides on the side step, he is entitled to the same degree of diligence to protect him from dangers which are known and may readily be guarded against, as are other passengers.”

Hence, if, in the present case, the deceased was upon the car when the collision occurred, 'the presumption of negligence arose and the case was for the jury.

On the part of the defendant two witnesses were called, Catharine Nuttall and Sarah Thatcher, both of whom testified that the deceased was standing on the track alongside the car when he was struck, and was not upon the running board.

The trial judge instructed the jurjr that the uncontradicted testimony of the two women, if believed, clearly established contributory negligence. In this statement we think there was error. Even if the decedent was standing upon the ground at the side of the car, this is not a place which the court could say as a matter of law was intrinsically dangerous. There was no reason as we see it, why the decedent should have apprehended that the outbound car would continue to run out from the siding and over the switch, and would strike with its front end, the side of the inbound ear. In any event it was not for the court to say as a matter of law that the decedent was guilty of contributory negligence in assuming the position in which he was when struck by the ear. Whether or not his conduct in this respect was negligent under the circumstances was for the jury-

Nor should the court-have said that the failure of the deceased to patronize the steam railroad on the night of the accident,’ rather than the trolley, was contributory negligence. Both methods of conveyance were open to the public and the deceased liad a perfect right to exercise his choice.

It would be strange indeed if the defendant company could •charge any of its patrons with contributory negligence in using the facilities which it was offering to the public. We sustain the first, second, third and fourth specifications. We consider the testimony irrelevant, which was admitted with reference to providing transportation on the steam railroad, and against the objection of plaintiff’s counsel, as set forth in the fifth, sixth, eighth, ninth and tenth specifications of error, and these assignments are therefore sustained.

The fact that plaintiff had consulted counsel as to her right to obtain a divorce, did not affect her right of action in this case, and proof as to that matter was also irrelevant. The eleventh assignment is sustained. We see no error in permitting defendant to show on cross-examination that the father of deceased contributed to the support of the plaintiff. The direct examination had 'shown' that the earning capacity of deceased was very small. Nor do we see that the effect of the collision upon other passengers was material or relevant in showing the extent and character of the injuries.to the deceased.

The twelfth and thirteenth specifications are, therefore, dismissed.

The judgment is reversed with a venire facias de novo.


author: Mb,. Justice Mestbezat,

text:
    Gillard v. City of Chester, Appellant.

      Negligence—Municipalities—Defect in sidewalk—Contributory negligence.

    It is the duty of a municipality to use reasonable care to keep its streets in repair and in a safe and proper condition for the use of the public by day or night. A sidewalk is a part of the street and the duty to repair it is as obligatory as the duty to keep the carriageway in a proper condition.
    Pedestrians are not compelled to remain off the streets of a city because it is dark, but using the care demanded by the circumstances they may go at any hour where business or inclination takes them, and they may assume that the municipality has performed its duty in keeping the streets in a safe condition for use both at night and during the day.
    In an action by a woman against a city to recover damages for personal injuries sustained by falling over the curb pf a sidewalk into the cartway of the street, the case is for the jury and a verdict and judgment for plaintiff will be sustained, where the evidence tends to show that the night when the accident happened was very dark and the street was not lighted at the point at which the plaintiff fell, that the sidewalk had been paved, and was in use by the public to its full width, that next to the curb the brick pavement of the sidewalk was sunken from three and a half to four'inches lower than the curb, and that the sunken or depressed condition of the sidewalk had existed for a sufficient length of time to visit the city with notice of it.
    Guinter v. Williamsport, 208 Pa. 587, and Martin v. Williamsport, 208 Pa. 590, distinguished.
    Argued Feb. 6, 1905.
    Appeal, No. 275, Jan. T., 1904, by-defendant, from judgment of C. P. Del. Co., Sept. T., 1908, No. 141, on verdict for plaintiff in case of Joseph Gillard and Sarah Ann Gillard, his wife, v. City of Chester.
    Before Mitchell, C. J., Dean, Bbown, Mestbezat and Pottbb, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Johnson, P. J.
    The facts connected with the accident are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff, Joseph Gillard, for $1,624.18, and for Sarah Ann Gillard for $1,949.02. Defendant appealed.

      Errors assigned were in refusing binding instructions for defendant.

      A. A. Cochran, for appellant.
    The case was ruled by Guinter v. Williamsport, 208 Pa. 587; Martin v. Williamsport, 208 Pa. 590.

      A. B. Geary, for appellees.
    A pedestrian is not guilty of negligence because he walks in the roadway, and he may cross a street at any point without waiting to reach a crossing: Raymond v. Lowell, 60 Mass. 524; Lincoln v. Detroit, 101 Mich. 245 (59 N. W. Repr. 617); Baker v. Grand Rapids, 111 Mich. 447 (69 N. W. Repr. 740); Brusso v. Buffalo, 90 N. Y. 679; Bell v. Clarion, 113 Iowa, 126 (84 N. W. Repr. 962); Magaha v. Hagerstown, 95 Md. 62 (51 Alt. Repr. 832); Cotterill v. Starkey, 8 Car. & P. 691; Moebus v. Herrmann, 108 N. Y. 349 (15 N. E. Repr. 415); Stringer v. Frost, 116 Ind. 477 (19 N. E. Repr. 331); Denver v. Sherret, 88 Fed. Repr. 226; Moore v. Penna. R. R. Co., 99 Pa. 301; Douglass v. Water Co., 172 Pa. 435; Rick v. Wilkes-Barre, 9 Pa. Superior Ct. 399; Martin v. Williamsport, 208 Pa. 590.
    The condition of the sidewalk was plainly visible during the daytime, and whether or not it was a dangerous obstruction was for the jury: Walton v. Colwyn Boro., 19 Pa. Superior Ct. 172; Gschwend v. Millvale Borough, 159 Pa. 257; Chilton v. Carbondale, 160 Pa. 463; Rowland v. Phila., 202 Pa. 50.
    June 22, 1905 :
   Opinion by

Mb,. Justice Mestbezat,

Sarah Ann Gillard, the plaintiff, residing in the city of Chester, called to see her invalid daughter who lives on West Seventh street in that city on the evening of October 17, 1902. About 8 o’clock in the evening she left the house to procure some medicine for her daughter. It was then very dark. She walked west along the south side of Seventh street until she was within twenty-seven feet of Lloyd street when, seeing a street car approaching on Lloyd street, she started to cross diagonally the carriage way of Seventh street, to board the car. As she was stepping from the sidewalk to the carriage way of the street, her “ right foot struck against a hard substance ” and she fell into the street and was injured. At this point the brick pavement of the sidewalk was sunken and was from three and a half to four inches lower than the curb. Thre"e bricks, projecting four inches from the sidewalk lay against the curb. The curbstone was higher than the pavement of the sidewalk for several feet on either side of the place where Mrs. Gillard fell. The testimony of the city engineer shows that “ the general construction of the sidewalks in the city of Chester is to put in brides and have the bricks level with the top of the curbstone.”

This action was brought by Mrs. Gillard and her husband to recover damages for the injuries she sustained by the fall. The learned trial judge in a charge, fully adequate and to which no exception was taken, submitted the case to the jurj*- and instructed them, inter alia, that to entitle the plaintiffs to recover “ three things will be necessary to be found: “ First, she must be free from negligence herself ; next, the city of Chester must have had notice, either direct, positive or constructive of this defect; and next, there must have been some negligence on the part of the city.” The jury having returned a verdict in favor of the plaintiffs, judgment was entered and the defendant has appealed. The error assigned is the refusal to affirm the point that the verdict should be for the defendant.

We can see no merit in this appeal. The questions in the case were properly disposed of by the trial judge. It is unquestionably the duty of a municipality to use reasonable care to keep its streets in repair and in a safe and proper condition for the use of the public by day or night. A sidewalk is a part of the street and the duty to repair it is as obligatory on the city as the duty to keep the carriage way in proper condition: 2 Dill. Mun. Corp. (4th ed.), secs. 1008 and 1012. The whole width of the sidewalk from the building line to the curb, on Seventh street, the place of the accident, was paved with brick and open for the use of pedestrians, and hence it was the duty of the' city to see that the entire width of the walk was kept in proper repair and clear of obstructions. Mrs. Gillard had the right to use any part of the sidewalk, and she cannot be convicted of negligence under the facts presented here in stepping from the walk to the carriage way of the street. We know of no decision and have been referred to none which holds that such an act by a pedestrian discloses a want of care in the use of a street. The contrary has been distinctly ruled in a recent case in Iowa: Bell v. Clarion, 113 Iowa 126. Mrs. Gillard was not injured in the carriage way of the street and hence the question of the liability of the city to a person leaving the sidewalk and meeting with an accident on the roadway of the street does not arise here and need not be considered. It may be said, however, that in the states where the question has come up for adjudication it has uniformly been held that it is not negligence, per se, for a pedestrian using the care required by the circumstances to cross the traveled roadway of a street at any point: Raymond v. Lowell (Mass.), 53 Am. Dec. 59; Brusso v. Buffalo, 90 N. Y. 679; Baker v. Grand Rapids, 111 Mich. 447; Magaha v. Hagerstown (Md.), 93 Am. St. Rep. 317. The same rule obtains in England: Boss v. Litton, 5 C. & P. 407; Cotterill v, Starkey, 8 C. &. P. 691.

The question of the defendant’s negligence was clearly for the jury. The sunken or depressed condition of the sidewalk at the place of the accident was not disputed and was shown to have existed for a sufficient length of time to visit the city with notice of it. The witnesses differed very little in their estimate of the height of the curbstone above the sidewalk and the court charged that the uncontradicted testimony showed that the curb was from three and a half to four inches higher than the pavement. Whether that condition of the pavement rendered it unsafe for use by Mrs. Gillard at the time she was injured was manifestly not a matter of law to be declared by the court but one of fact to be found by the jury.

The night was very dark and the street was not lighted where the accident occurred. If her testimony is believed, and it is not contradicted, Mrs. Gillard was walking slowly and carefully at the time she fell. There is nothing whatever in the case disclosed by the record, that shows she was not exercising all the care required of her at the time she was injured. Pedestrians are not compelled to remain off the streets of a city because it is dark, but, using the care demanded by the circumstances, they may go at any hour where business or inclination takes them, and .they may assume that the municipality has performed its duty in keeping the streets in a safe condition for use both at night and during the day. Notwithstanding the defendant’s contention, the evidence does not show that “ trees, posts or poles ” obstructed the plaintiff’s passage from the sidewalk to the roadway. The accident occurred at a point on the curb about equidistant 'from two trees, located on the edge of the pavement and seventeen feet apart. There were no posts, poles or any other obstruction at this point of the street at the time, save the depression of the pavement and the consequent projection above its surface of three bricks and the curbstone. We do not agree with the defendant’s counsel that “the conditions surrounding the accident ” would have justified the court in declaring Mrs. Gillard guilty of negligence.

The defendant’s counsel, in support of their position that the city is not liable to the plaintiff, rely principally upon .Guinter v. Williamsport, 208 Pa. 587, and Martin v. Williamsport, 208 Pa. 590. But these cases are clearly distinguishable on their facts from the case at bar. In stating the facts of those cases, it is said in the opinion of this court: “ At the lot where the accident occurred the distance between the property line and the curb is twelve feet six inches ; by ordinance of the city five feet of this width next the curb was paved for sidewalk and the remaining width was used for ornamental purposes, such as grass plots, flower borders, trees and like purposes ; to protect the grass plots this wire was put up, not only at this point but on other parts of the street. ... In this particular the city had performed its full duty to the public, that is, it had provided a reasonably safe way for the passage of the public by night and day along Fourth street. But there was still left a space between the outer edge of the pavement and the curb of about four feet eight inches occupied as a grass plot as before stated protected by the wire ten inches high. That it was there and so protected any resident of the city, including the plaintiff, must be assumed to have known. . . . The unpaved part of the sidewalk was being used at the time of the accident as it had been used for years and as the residents knew it was being used.” In the Guinter case, the plaintiff, turning from the paved walk to pass some ladies standing’ on the pavement, fell over the wire. In the Martin case he started across the grass plot, caught his foot in the wire and fell. This court held that under the circumstances the wire was not an illegal obstruction on the'sidewalk, quoting in support of the position, from Dougherty v. Village of Horseheads, 159 N. Y. 154, as follows : “ A municipality may set aside portions of the streets or sidewalks not necessary to be used for business purposes in particular localities for the construction of boulevards, parks, grass plots, the planting of shade trees, the maintenance of hitching posts, stepping stones and for other purposes useful, healthful or ornamental merely. And may protect the same by reasonable means from the encroachments of travel. ”

In the case at bar, however, the accident was caused by a failure to repair a sidewalk, the full width of which had been paved and was in use by the public. There was no ordinance dedicating any part of the sidewalk of Seventh street for any other purpose than a pavement to be used by pedestrians. The full width of the sidewalk at the place of the accident was, therefore, under the control and subject to the supervision of the city with the consequent duty to see that it was in a proper condition and reasonably safe for travel. It is apparent that the "Williamsport cases do not rule the case at bar.

The assignments are overruled and the judgment is affirmed.


author: Mr. Justice Mestkezat,

text:
    Moyer v. Dodson, Appellant.

      Mortgage—Defenses—Fraud and duress—Evidence.

    On the trial of a scire facias sur mortgage, evidence that the execution of the mortgage was procured by fraud and duress is properly excluded, where it is admitted that the mortgagee was not present at the interview at which it is claimed that fraud and coercion were used, and no evidence is offered that the mortgagee had notice of the alleged fraud or coercion, or that he was in possession of facts which should have led him to believe that the mortgage had been thus procured.

      Mortgage—Notes—Delivery—Waiver.

    Where a mortgage and notes secured by the mortgage bear the same date, and it appears that some of the notes were actually paid, the mortgagor cannot, on a scire facias sur mortgage to recover the balance due, set up as a defense that the notes and the mortgage were never delivered, and this is the case although some of the payments may have been made prior to the actual delivery of the mortgage.

      Mortgage—Fraud and duress—Illegal contract—Threatened criminal prosecution.

    On a scire facias sur mortgage it cannot be contended as a defense that the mortgage was given to stop a threatened criminal prosecution against the mortgagor’s husband, unless it is shown that there was an agreement not to prosecute if the mortgage was given.
    Argued Feb. 8, 1905.
    Appeal, No. 18, Jan. T., 1905, by defendant, from judgment of C. P. Del. Co., June T., 1903, No. 155, on verdict for plaintiff in case of Jacob S. Moyer v. Lillian R. Dodson.
    Before Mitchell, C. J., Dean, Brown,Mestrezat and Potter, JJ.
    Affirmed.
    Scire facias sur mortgage. Before Johnson, P. J.
    .- At the triál it was contended that the' mortgage was procured from the defendant by duress and coercion and by a threat of criminal prosecution against her husband. When "Mrs. Dodson was on the stand she was asked this question:

      “ Q. Will you tell us how you came to sign this mortgage ? ” Mr. Rumsey: Objected to.
    The Court: I am inclined to think this is a very close proposition. I will maintain this ruling. It may be that as the information came to her by reason of the interview or the agreement between the mortgagee and'her husband you are entitled to have all that took place as part of the res gestee, but for the present I rule it out. Exception. [2]
    “ Q. Will you please tell us what was in your mind at that time ? What was in your mind at that time relative to your husband’s transaction with Mr. Moyer, the plaintiff here? When you executed that mortgage ? ” Objection.
    The Court: That objection is sustained. Exception. [3]
    “ Q. What information did you have when you consented'to sign the mortgage ? ”
    Mr. Rumsey: Objected to unless the information was stated to this good lady in the presence of the mortgagee, the plaintiff in this suit.
    The Court: Objection sustained. Exception. [4]
    Mr. Fronefield: I will put the question in another way so as to get ourselves straight on the record. Will you tell us what inducements or threats, if any, were made by your husband at the time that you consented to sign the mortgage ? Mr. Rumsey : Objected to.
    The Court: Objection sustained. Exception. [5]
    “ Now, will you go on to state what you told Mrs. Dodson you had done regarding this agreement and the demand you made upon her to execute the mortgage and what she told you, etc. ?”
    Mr. Rumsey : Not unless it was in the presence of the plaintiff. I object, therefore, to the question as it now stands.
    The Court: You are seeking to get in evidence conversation between parties to this mortgage—that is, the mortgagors, out. of the presence of the mortgagee ?
    Mr. Barrington : Yes, sir. The mortgagee, of course, was not present when Mr. Dodson demanded that his wife execute the mortgage. There is no question about that, but the mortgagee—and we will bring our proof later legally to satisfy that point—is brought home with knowledge of the means that Mr. Dodson must use to obtain this mortgage. He demanded it of him under certain terms which left no alternative to do but get it or go to jail. We have proved he said that. Now, we can certainly prove by the same witness he told his wife that. We can follow that right np.
    The Court: I will have to exclude what took place between Mr. Dodson and his wife in the absence of the plaintiff. Exception. [6]
    Leon Dodson was asked this question :
    Q. What statements, if any, did you make to Mrs. Dodson at or immediately prior to the execution of this mortgage ? ”
    Mr. Rumsey: I object to that unless the conversations were in the presence of the plaintiff, J. S. Moyer.
    The Court: Were they in the presence of the plaintiff?
    Mr. Froneffeld: They were not in the presence of J. S. Moyer.
    The Court: That is objected to ?
    Mr. Rumsey : That is objected to.
    The Court: Objection sustained. Exception. [7]
    The court gave binding instructions for plaintiff.
    Verdict and judgment for plaintiff for $2,048.65'. Defendant appealed.

      Errors assigned among others were (2-7) rulings on evidence, quoting the bill of exceptions; (8) in giving binding instructions for plaintiff.

      Boyd 0. Barrington, with him W. Roger Eronefield, for appellant.
    The court erred in rejecting the testimony offered to prove what induced the defendant to execute the mortgage, and the purpose for which it was given: Schrader v. Decker, 9 Pa. 14; Louden v. Blythe, 16 Pa. 532; Michener v. Cavender, 38 Pa. 334; McCandless v. Engle, 51 Pa. 309; Heeter v. Glasgow, 79 Pa. 79; Snyder v. Willey, 33 Mich. 483; Cridge v. Hare, 98 Pa. 561; Kaufmann v. Rowan, 189 Pa. 121; Bank v. Cox, 62 N. V. Supp. 314.
    The mortgage executed by Lillian R. Dodson, being given for the purpose of stifling a threatened criminal prosecution of her husband, is invalid: McGrory v. Reilley, 2 W. N. C. 587; McGrory v. Reilley, 8 W. N. C. 104; Riddle v. Hall, 99 Pa. 116.

      Horace M, Rumsey, with him Frank Jacobs and I. Hazleton
      Mirhil, for appellee.
    When a married woman has mortgaged her separate estate for her husband’s indebtedness, and the mortgage has been duly executed and acknowledged by the married woman and her husband, and suit is brought upon the mortgage, upon the trial thereof, the court will not permit the married woman or her husband to testify as to conversations between them, in the absence of the mortgagee and without notice to him, which the married woman alleges constituted the coercion and duress which impelled her to execute the mortgage, and whereby it was invalidated: Kaufmann v. Rowan, 189 Pa. 121; Oppenheimer v. Wright, 106 Pa. 569; Brewing Co. v. Reinsburrow, 197 Pa. 67; Lewars v. Weaver, 121 Pa. 268; Pioso v. Bitzer, 209 Pa. 503; Highlands v. P. & R. Ry. Co., 209 Pa. 286; Sower v. Weaver, 78 Pa. 443; Bitner v. Boone, 128 Pa. 567.
    If threats were made of a criminal prosecution, not commenced, whereby a money settlement was secured of a lawful debt, that would not constitute fraud, coercion or duress under the law of Pennsylvania, so as to invalidate the mortgage: Swope v. Jefferson Fire Ins. Co., 93 Pa. 251; Saalfield v. Manrow, 165 Pa. 114; Phillips v. Henry, 160 Pa. 24; McGrrory v. Reilley, 2 W. N. C. 587; Snyder v. Willey, 33 Mich. 483; Pearce v. Wilson, 111 Pa. 14.
    June, 22, 1905.
   Opinion by

Mr. Justice Mestkezat,

The mortgage in this case was executed in due form by Mrs. Dodson, after an examination separate and apart from her husband ; and it is admitted that the mortgagee was not present at the interview when it is claimed that fraud and coercion were used to procure its execution by Mrs. Dodson. No evidence was offered to show that the mortgagee had notice of the alleged fraud or coercion, nor did it appear that he was in possession of facts Avliich should have led him to believe that the mortgage had been procured from Mrs. Dodson by such means. Dodson testified he did not remember that, at the interview between the parties, the plaintiff and his counsel directed the witness to say anything specifically to his wife when he should attempt to procure the mortgage; and further, that at the time the mortgage Avas executed nothing'was said about his being arrested or not being arrested. Under the circumstances, therefore, the testimony offered for the purpose of showing that the execution of the mortgage by Mrs. Dodson was procured by fraud and duress was properly excluded by the trial court: Lewars v. Weaver, 121 Pa. 268; Heilman v. Kroh, 155 Pa. 1; Kaufmann v. Rowan, 189 Pa. 121; Pennsylvania Trust Co. v. Kline, 192 Pa. 1.

The learned judge properly held that there was not sufficient evidence to submit to the jury on the question of the nondelivery of the notes and the mortgage. The mortgage bears the same date as the notes, September 20, 1901, but was acknowledged and actually delivered on October 1, 1901. The notes were paid in part and, conceding some of these payments to have been made prior to the actual delivery of the mortgage, yet the notes were secured by the mortgage which bore the same date and hence part of the money secured by the mortgage was paid. The payment of some of the notes must be regarded, so far as it affects the delivery of the notes, as an acknowledgment of their actual delivery, or at least a waiver by the defendants of the right to insist upon the stipulation on the envelope containing the notes that the relation of the parties should remain unchanged until the agreement was fully complied with. The payment of the residue of the moneys secured by the notes and the mortgage could therefore be enforced.

There is nothing in the contention that the mortgage was given to- stop a threatened criminal prosecution against Dodson. Prior to and at the time the agreement and mortgage were executed no prosecution had been brought against Dodson. While he testifies that the plaintiff and the latter’s counsel told him he would be prosecuted if he did not obtain the mortgage, it was not shown, nor is it even claimed, that the plaintiff or his counsel agreed not to prosecute if the mortgage was given. The contract would not be vitiated unless the plaintiff agreed to abandon or suppress the prosecution against Dodson : Johnston v. Allen (Fla.), 1 Am. St. Rep. 180; Cass County Bank v. Bricker (Neb.), 33 Am. St. Rep. 649; Miller v. Minor Lumber Co. (Mich.), 39 Am. St. Rep. 524. There is therefore no substance in this suggestion as a defense to the scire facias on the mortgage.

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


author: Me. Chief Justice Mitchell,

text:
    Howell v. Morrisville Borough, Appellant.

      Road law—Vacation—Damages—Act of May 16, 1891, P. L. 75.
    The vacation of a public road is not an injury to the abutting landowners for which compensation must be made.
    Neither the constitution of 1874 nor the Act of May 16, 1891, P. L. 75, gives a right to damages for the vacation of a public highway.
    The Acts of May 16, 1891, P. L. 65, 69, 71 and 75, explained. Daughters of American Revolution v. Schenley, 204 Pa. 572, followed.
    Argued Feb. 8, 1905.
    Appeal, No. 30, Jan. T., 1905, by-defendant, from judgment of C. P. Bucks Co., Sept. T., 1902, No- 15, on verdict for plaintiff in case of Lewis A. Howell v. Morrisville Borough.
    Before Mitchell, C. J., Dean, Brown, Mestrezat and Potter, JJ.
    Reversed.
    Appeal from report of viewers. Before Stotjt, P. J.
    At the trial the question turned on the right to recover damages for injuries alleged to have been sustained by the vacation of a part of Green street in the borough of Morrisville.
    The defendant presented these points :
    2. There is no legislative provision for the recovery of damages against the borough of Morrisville for the vacation of a street, or part thereof, in the said borough, and in the absence of such legislation the borough is not liable, and the verdict must be for the defendant. Answer : It is true that in the absence of legislative authority for that purpose the said borough of Morrisville is not liable for damages for the vacation of a street, or a part thereof; but it is not true that there is no legislative authority for that purpose. The point is refused. [2]
    3. Under all the evidence the verdict must be for the defendant. Answer: Refused. [3]
    The court charged in part as follows :
    [Now the point in the trial of this case has been made that inasmuch as the vacated portion of the street does not touch, the Howell property, there can be no recovery of damages; the court takes a different view, and instructs you that notwithstanding that the vacated portion of the street does not touch the Howell property, yet, if it specially and materially affects the value of that property, the plaintiff can recover damages to such an extent as the special damage may be, and that is what you are to determine. Now the court instructs you that the plaintiff cannot recover for damages and inconveniences that are common to the public'in general, to all the people who have occasion to use the streets in common with Mr. Howell, for such damages Mr. Howell cannot recover, but for damages and such injuries to this property as specially and materially affect the property of Mr. Howell, for that damage he can recover. The law under the act of 1891, the legislature has provided that boroughs may vacate streets, and by so doing injure property, and for such injuries assessments of damages may be made and damages may be recovered.] [4]
    [By the vacation of Green street from Coleman avenue, extending on toward the Howell property, the access to the public streets of the borough is entirely cut off so that the portion of Green street west of Smith street is what is known as a cul de sac, or blind alley; that is, it is a street now that runs in but having gone some distance beyond the Howell property just stops; it leads to nowhere, so that as the Howell property is now located on a street that leads from Smith street to nowhere, although the vacated part of the street at no point touches the Howell property.] [5]
    Verdict and judgment for plaintiff for §2,700. Defendant appealed.

      Errors assigned were (2-5) above instructions, quoting them.

      N. H. Larzelere, with him Lewis R. Bond, for appellant.
    Until the new constitution and the general Act of May 16, 1891, P. L. 75, it must be conceded that neither right nor remedy existed: Paul v. Carver, 24 Pa. 207; McGee’s App., 114 Pa. 470; Melon Street, 182 Pa. 897; Wetherill v. Penna. R. R. Co., 195 Pa. 156.
    The act of May 16, 1891, created no new or additional liability for damages, and at most simply provided a remedy where such liability already existed: Davis v. County Comrs., 153 Mass. 218 (26 N. E. Repr. 848); Hammond v. County Comrs., 154 Mass. 509 (28 N. E. Repr. 902); Stanwood v. City of Malden, 157 Mass. 17 (31 N. E. Repr. 702); Melon Street, 1 Pa. Superior Ct. 63; Sensenig v. Lancaster, 20 Lanc. Law Rev. 129.

      William 0. Ryan, for appellee.
    The appellee has suffered an injury to his property that is proximate, immediate and substantial : Melon Street, 182 Pa. 397; Mellor v. Philadelphia, 160 Pa. 614; Snyder V. Lancaster, 20 W. N. C. 184; Chatham Street, 191 Pa. 604.

    The right to recover compensation for such an injury has been given by the state in the Act of May 16, 1891, P. L. 75.
    The case of Daughters of the American Revolution v. Schenley, 204 Pa. 572, decides no more than this, that the Act of May 16, 1891, P. L. 75, does not provide for an appeal from an ordinance vacating a street.
    In the late case of Nocton v. Borough of Norristown, 20 Montg. 194, it was held by President Judge Swartz, that the owner of property which does not abut upon the portion of the street vacated, but which is left in a cul de sac by such vacation, is entitled to a jury to assess damages under the act of 1891.
    June 22, 1905:
   Opinion by

Me. Chief Justice Mitchell,

The vacation of a public road is notan injury to the abutting landowners for which compensation must be made. In Paul v. Carver, 24 Pa. 207, it was said “ surrendering the right of way over a public road to the owners of the soil is not taking private property for public use, and the proprietors of other land incidentally injured by the discontinuance of the road are not entitled to compensation.” And in McGee’s Appeal, 114 Pa. 470, after quoting with approval the foregoing passage from Paul v. Carver, it was explicitly held that under the present constitution, the vacation of a street is not subject to the constitutional condition that compensation shall be made for property taken, injured or destroyed. In Wetherill v. Penna. R. R. Co., 195 Pa. 156, it was said, “vacating a street takes no property from any one. It merely restores to abutting owners their portion of the land, freed from the servitude of the public way. There is no constitutional right to damages, even on the ground of injury under the present constitution.” And in Daughters of American Revolution v. Schenley, 204 Pa. 572 (583), our late Brother Dean, after citing the foregoing cases said : “ As under the law thus established the abutting owner could not be damaged in his property by the vacation of a street or highway, he had no tangible interest which gave him a right of complaint; a sentimental interest or artistic taste might be shocked by the closing up of an ancient street or highway, but this affected no property right and the complainant was not given the rights of an appellant. The legislature by the act of 1891 adopted no new rule when it did not confer the right of appeal for vacation of a street on the abutting owner; it merely accepted the law as it stood; he was not damaged and therefore had nothing to appeal from.” And it may be added that it is not merely sentiment or taste but substantial convenience that may be affected unfavorably. There is probably no change of an existing highway, or of any other established order of things, that does not to some extent cause practical inconvenience, and in that sense injury, to those who have adapted themselves to the previous conditions. But it is an incidental result of a lawful act for which there is no legal liability.

It must therefore be accepted as settled law, that the vacation of a highway or street is not an injury to the abutting landowners within the provisions of the constitution requiring compensation, and in the absence of special legislative provision for damages none can be recovered.

These principles were not disputed either in the court below or here, and it would not have been necessary to restate them except to get clearly before our view the point from' which we must approach the construction of the Act of May 16, 1891, P. L. 75, on which the learned judge ruled this case. That the legislature has the power to provide for damages in such cases is beyond question: Howard Street, 142 Pa. 601; and we have cases, like Melon St., 182 Pa. 397, decided upon such special legislation. The learned judge below was of opinion that the act of 1891 gave the right to damages for injury by vacation of the street. As the act is one on which the courts of common pleas have differed widely, we have given it renewed and mature consideration, although the question was in effect settled by the case of Daughters of American Revolution v. Schenley, 204 Pa. 572, cited supra.

The act contains no express grant to property owners of the right to damages for vacation, nor any clear implication of an intent to make such a grant. On the contrary, its purpose and scope looked in quite another direction. It had happened that in the development of municipal improvements in many parts of the state the burdens laid not only on taxpayers generally for damages, but also upon property owners in assessments for benefits, were thought to be oppressive even'in rich communities like Pittsburgh where the improvements had been particularly expensive, and still more in the smaller towns. Hence a general resistance and contest of such claims and a crop of litigation that brought to view differences in the powers of cities, discrepancies in the statutes on the same subject, and gaps in legislation that left apparent powers abortive. Certain claims for paving, etc., had been filed under the Act of May 24,,1887, P. L. 204, which had been declared unconstitutional in Ayar’s Appeal, 122 Pa. 266, and on May 23,1889, P. L, 272, the legislature passed an act validating such claims, the preamble to which states the situation very clearly, “ whereas local improvements of different kinds have heretofore been made in the cities of Pennsylvania, and the cost thereof assessed upon the abutting property, or the property benefited; And whereas it is doubtful whether the assessments made and levied to pay for said local improvements can be collected under existing laws; And whereas said cities are threatened with great loss unless said assessments can be collected; therefore be it enacted,” etc. In City of Chester v. Black, 132 Pa. 568, this act was sustained on the ground that what the legislature might have authorized originally, it could ratify subsequently. This decision Avas rendered in 1890. Another Act, that of June 14, 1887, P. L. 386, had made special provisions for the appointment and poAVers of a standing board of viewers to assess property for municipal improvements in cities of the second class, under which very heavy assessments, as already noted, had been made in Pittsburgh. In Wyoming Street, 137 Pa. 494, decided in January 1891, these provisions of the act were struck down as contravening the constitution. In Pittsburgh’s Petition, 138 Pa. 401 (decided March 16, 1891), Wyoming Street was followed and similar objections Avere sustained to the Act of May 16, 1889, P. L. 228, entitled “ an act relating to streets and sewers in cities of the second class. ”

The result of this litigation was the continuance and increase of the state of doubt and confusion set forth in the preamble to the act of May 23, 1889, quoted, and the legislature of 1891 set itself to the task of finding a remedy. Four acts on the same general subject were passed and approved on the same day, May 16, 1891. The first, P. L. 65, was a remedial or curative act providing for the reassessment and collection of damages and benefits previously imposed in the opening, widening, etc., of streets under acts that had been declared or were invalid. This act came under consideration and was sustained in Twenty-eighth Street, 158 Pa. 464.

The second act, P. L. 69, was in form a general act “ creating and regulating municipal liens and proceedings thereon,” but was intended as a curative act as appears from the provision, inter alia, that “ the municipal improvements for which a lien may be filed shall include all improvements heretofore made or now in progress or hereafter made, and the assessments or reassessments to be made,” etc.

The third Act, P. L. 71, was a counterpart of the first, supra, but providing for the cases of claims for grading, paving, etc., of streets, and the construction of sewers. This act was sustained in Donley v. Pittsburg, 147 Pa. 348; Whitney v. Pittsburg, 147 Pa. 351; Bingaman v. Pittsburg, 147 Pa. 353; and Dawson v. Pittsburg, 159 Pa. 317.

The fourth Act, P. L. 75, is the one with which we are specially concerned in the present case. It is in form and intent a general act, but it is part of the series of curative acts on the subject and manifestly intended as a blanket supplement to the others, to supply deficiencies and confirm doubtful powers under existing legislation. The enacting parts, sections first (amended so as to include changes of grade by the Act of June 12, 1893, P. L. 459), eighth and ninth follow the same phraseology “ all municipal corporations of this commonwealth shall have power whenever it shall be deemed necessary” in the opening, widening, vacating, etc., of streets, constructing bridges, sewers, changing water courses, etc., “ to take, use, occupy or injure private lands, property or material,” to provide for ascertainment of damages, and to assess its proportion of cost upon property benefited. It is a uniform grant of power to municipalities of all grades, supplementary as already said to their existing authority, and in aid of their ability to reimburse themselves for the cost of the improvements. It is true that in the title, and in sections one and three the vacation of streets is included, but this is in accordance with the blanket quality of the intended supplement of municipal powers. The act applies in terms to “ all municipal corporations of this commonwealth ” and its provisions were carefully made broad enough to be applicable to all. Some of them under special statutes were already liable for damages for injury by the vacation of streets : Melon Street, 182 Pa. 397, and care was taken'that they should not be excluded from the benefits of the act. But its purpose was the protection of the interest of the cities, and there is neither express provision nor clear implication anywhere in the act of any intent to increase the obligations of the cities or enlarge the rights or claims of property holders. As to them, as said by our Brother Dean in Daughters of American Revolution v. Schenley, 204 Pa. 572, already cited, the act adopted no new rule but merely -accepted the law as it stood.

Even if the purpose of the act were less plain than it is, the court would not be justified in stretching its terms by a loose construction to cover the exceptional case of vacation of roads. The general rule is founded, not only on sound reasoning but also on sound policy and justice. While it may be admitted that substantial injury may occasionally result from the vacation of a street, yet it is exceptional, and confined to closely built cities. Even there if damages are provided for they should be most carefully hedged about to prevent the inevitable tendency t® run off into speculative and shadowy claims that have no real foundation. No better illustration is needed than the present case. Plaintiff’s property is on the corner of Green and Smith streets. No part of it abuts on the vacated portion of Green street, the nearest point being 295 feet away. His light, air, ingress and egress are not in any way affected, but if he desires to drive westward towards Bristol he has to make a turn along Smith street about 150 feet to reach the new Green street, where he has a better paved road on a rather better grade, and leading to exactly the same places as the old or vacated part of the street. Nothing could be plainer than that his alleged injury was a mere inconvenience the same in kind and little if any greater in degree than that of all the people of the vicinity having occasion to use the street in that direction, and yet a jury was found to give him the preposterous verdict of $2,700, more than one-quarter of his own valuation of his entire lot before its alleged damage.

But the act of 1891 not applying to the case there was no basis for the proceeding, and the defendant’s point to that effect should have been affirmed.

Judgment reversed.