text:
    Ebert v. Mishler.

      Deed — Easement—Passageway—G ontract.

    An owner of land conveyed by deed to an adjoining owner a strip of land five feet wide fronting on a street and extending back to an alley at a distance of 120 feet with the provision that the strip should be used as an addition to the width of a street or passageway belonging to the grantee, and not for any other purpose, and that the same should be used as an open thoroughfare at all times. The street thus widened was thereafter used by both owners. Nineteen years after the date of the deed, the grantor’s successors in title agreed with the grantee’s successor to permit the latter to build over the former’s line two feet for a distance of 59 feet. The former was to have the use of the wall on paying one-half of its cost. It was also agreed that the latter should leave open a passageway five feet wide in and through his building for ingress and egress of the other owner. The buildings were erected in accordance with the agreement but were burned down nine years afterwards. In the course of reconstruction the subsequent owner of the buildings attempted to close up the five feet passageway. Held, that the agreement did not extinguish the easement created by the prior deed, and that the owner should be enjoined from closing the passage.
    Argued Jan. 8, 1912.
    Appeals, Nos. 244 and 258, Jan. T., 1910, by plaintiff and defendant, from decree of C. P. Blair Co., Equity Docket D. No. 710, on bill in equity in case of Jobn W. Ebert v. Isaac C. Mishler.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity for an injunction.

      Shull, P. J., specially presiding filed the following opinion:
    Plaintiff, under bill filed, seeks to compel defendant to remove a certain fence which obstructs ingress and egress to his building, and to keep open perpetually an alley or way across said defendant’s premises to a width of twenty-five feet, extending from 11th Avenue, in the city of Altoona, to an alley in the rear, a distance of 120 feet. And, by Cross-bill filed, the defendant seeks to enjoin the plaintiff Ebert from obstructing, interfering or using in any way, a five foot way in said lot, and prays further that the rights therein, as well as to a party wall, be defined.
    FINDINGS OF FACT.
    1. The plaintiff, John W. Ebert, by deed dated 6th Sept., 1888, became the owner in fee simple of the S. W. part of the N. E. half of Lot No. 11, in the City of Altoona, Blair County, Pa., fronting 20 feet on 11th Avenue and extending back 120 feet to 11th Alley;
    2. That, at the time of filing the bill, the defendant was .the owner in fee of lots Nos. 9 and 10, fronting on said 11th Avenue, 100 and 120 feet in depth, together with and including 5 feet front of Lot No. 11, extending back to 11th Alley, subject, however, to a reservation appearing in Finding No. 3;
    3- Adolphus Roush, the predecessor in title of the lands owned by plaintiff, together with the additional 5 feet, or a total of 25 feet, by deed dated 21st August, 1869, conveyed to the Altoona Hall and Market Company, then owner of Lots Nos. 9 and 10, five feet, fronting on 11th Avenue, and extending back said width to 11th Alley, a distance of 120 feet, which said deed contains a reservation in haec verba: “It is, however,
    agreed that the said described piece of ground shall be used as an addition to the street or alley of the Altoona Market Company, and not for any other purpose, and that the same shall be used as an open thoroughfare at all times, between Virginia Street and the Alley Northwest.” Said Virginia Street being hereafter designated as 11th Avenne;
    4. That, at the time of the conveyance of the said five feet mentioned in the preceding paragraph or finding, there was an open way upon Lot No. 10, about 20 feet in width, through which the respective owners of Lots No. 11 and Nos. 9 and 10, had access by entrance at the sides to the buildings erected on the said several lots. Said alley or way being used by both parties as a means of ingress and egress and for loading and unloading articles of merchandise, etc., at the side entrance of their respective buildings, which said use continued to the date of the agreement, hereafter referred to in the Fifth Finding of Fact;
    5. On the 7th day of September, 1888, an article of agreement was made between Wm. W. Roush, defendant’s predecessor in title, and John W. Ebert, the present plaintiff, wherein it was agreed, inter alia, that said Roush, who was about to commence the erection of a brick building upon his said lot,” may build his wall a distance of two feet over the line of said Ebert, that is, so as to occupy two feet in width of said Ebert’s ground and extending back from Eleventh Avenue back a distance of about 59 feet, and that the remaining portion of said wall shall be built 18 inches beyond the said Ebert side of the line dividing said properties, extending 61 feet from the wall above mentioned, back to the Alley. It is further agreed that the said J. W. Ebert, his heirs and assigns, shall have the right and privilege at any time of joining to the said wall, and building into the same along the whole length or any part of the length thereof, any building he may desire or have occasion to erect on his said lot, and to use and enjoy the said wall or any part thereof, as a wall of the building or buildings so to be erected, and to sink the joists of such building or buildings into the wall aforesaid, provided, however, and on the express condition, that before proceeding to join any building to the said wall, the said Ebert shall pay to the said Roush the one-half part of the cost of the said wall, or so much thereof as shall be joined or used as aforesaid.
    It is further agreed that the said Roush shall provide and have, and leave open at all times, a passage way five (5) feet in width, in and through his said building, so as to give said Ebert equal privileges and passage way to and from each story of his said Ebert’s building, and extending back a distance of about fifty-seven (57) feet from Eleventh Avenue, to be at all times kept open for the use of both parties to this agreement and any occupant of the premises of either of the parties to this agreement or their assigns. In cause either party should make sale of their property, the intention of this agreement is that this hall-way shall remain open perpetually for the equal use of both properties, unless the owners mutually agree to make a change ;
    6. Pursuant to this agreement, said Roush constructed a brick wall on ¿the lines designated under said agreement of 7th September, 1888, that is to say, upon the two feet of Ebert’s land back a distance of 57 feet, and for the remaining distance upon the 18 inches of his own land, to which wall the plaintiff attached his building, having made compensation in accordance with the terms of the said agreement. And said Roush, under the provisions of said agreement, erected upon the said five foot passageway, a stairway, leading to and as a means of ingress and egress to his own building, which was erected upon and over said five foot alley-way; and also .for the use of plaintiff, to reach the second and third story of his said building;
    • 7- That said hall-way and stairs were used by both parties and their several and respective tenants and occupants, from the time oit-its construction in 1888 or 1889 to the 11th day of June, 1907, when the entire structure or building on the premises of defendant’s predecessor in title, together with a portion of plaintiff’s building, was destroyed by accidental fire;
    8. That subsequent to said fire, plaintiff- removed his share or half of the party wall, using the material thereof and re-erected his building wholly upon his own lands, the front portion extending back fifty-seven feet, being within the two feet allowed originally for said party wall, and the remaining portion was built up to the line of defendant’s lot;
    9. The defendant erected a high board fence, enclosing entirely his lot, including the five feet designated as an alley, passage or hallway.
    DISCUSSION.
    The acts of the parties fairly disclose the intention of the parties under the reservation of the deed of 1869, and the interpretation which was placed by them upon the agreement entered into on the 7th day of September, 1888. Both parties and their tenants enjoyed the several rights and privileges thereunder for a period of almost twenty years. There seems to have been no conflict of rights until the buildings were razed by a fire on the 14th June, 1907. After this fire, plaintiff called upon defendant’s agent and manager, making inquiry relative to rebuilding the premises, but, receiving no definite reply, he erected a three story building upon his own land, and served a notice upon defendant not to enclose the 25 feet used by the parties under the agreement of 1869. The plaintiff, however, disregarding said notice and relying upon his rights under the agreement as changed and modified by the agreement of 1888, enclosed his entire premises with a high board fence.
    Plaintiff now insists under his bill filed that the parties are restored to their original rights, as they existed under the agreement of 1869, while defendant urges that the easement created under the agreement of 1869 was extinguished by the subsequent agreement of 1888, and that the fire having effaced the party wall, the latter agreement has lost its force and is now void and of no effect. We cannot subscribe wholly to either of these contentions. The purpose of the parties under the agreements clearly was to economize space where lands were so valuable as in that portion of the city, each making contribution or surrender of rights and privileges in consideration of advantages to be mutually derived. This spirit of the agreement must be kept constantly in view in determining the rights of the parties, because, in the covenant, it was stipulated that the alley or passageway to the extent of five feet in width and fifty-seven feet in length, extending from 11th Avenue, was to “remain open perpetually, for the equal use of both properties, unless the owners mutually agree to make a change.” There is no evidence of any mutual agreement to make any change, and no act has been shown by the evidence to destroy or nullify its terms. While it may be conceded that the agreement of 1888 was substituted for that of 1869, it did not absolutely extinguish the easement, except in so far as it was in direct conflict therewith. The reservation of the right of way necessary for ingress and egress to the building on Lot No. 11, was kopt in view with an eye single to the right of such access. The plaintiff’s contention that by deed of 21st August, 1869, conveying the 5 foot alleyway with the limitation thereon, a servitude was imposed upon the other 20 feet of open roadway, fails of its purpose, when it appears that the grantee did not have title to said 20 feet until 15th October, 1869. But, a more potent reason is found in the fact that no grant is shown to have been made by the owner of that fee, and the fact that both parties mutually assented to the “five feet which has been heretofore used as a passageway.” Even if it be conceded that the grant was to “be used as an addition to the street or alley,” the owner of the easement may abandon it to relieve the servient estate of the encumbrance. 10 Am. & Eng. Enc. Law, (2nd Ed.) 434. If the owner of a dominant estate authorizes the owner of a servient estate to do upon the servient estate that which prevents the dominant estate from any longer enjoying the easement, the effect will be to extinguish it. Washburn on Easements & Servitudes, (4th Ed.) 726. While it clearly appears that the ancient way to the market house upon Lot Nos. 9 and 10, was to be abandoned as absolutely useless, and unnecessary to both the premises under the new conditions, and the rear end of the 5 feet passageway, had been rendered valueless, this in no way affected the 57 feet in the front, so essential to both premises for ingress and egress, which had been substituted and used for a long period by both parties. This was essential under the changed conditions for both parties, as the alimentary canal to the human body, or the door to the fire box in the locomotive. It seems clear that for the mutual advanages of each to the other, all ■rights, whether of servient or dominant tenement, in fee or by easement, was abrogated by the agreement of 1888, except as to the passageway 5x57 feet, which was to be and remain open perpetually for the use of both parties, unless the said parties mutually agree to a change. Neither party under the agreement, which provided only for a passageway or hallway, could call upon the other to erect a stairway, but the plaintiff has the undoubted right to the use of said plot or alleyway 5x57 feet as an entrance to his building, and may construct such means of access to his second and third story as he may deem expedient, but may not call upon defendant for contribution. The defendant is prohibited from interference with the use of the alleyway, for such was the servitude impressed upon -it by the parties under the deed, as modified by the agreement. Should the defendant rebuild or erect a new structure upon his lot, covering to the line prior to 1869, the alley or passageway of 57 feet may be utilized for a stairway and entrance, provided he constructs such stairway as will afford convenient access to the plaintiff’s building now erected upon his premises, restoring thereby to the plaintiff his full rights under the spirit, true meaning and intention of the parties to the agreement of 1888.
    There was no manifest intention of the plaintiff to abandon his right or easement in that portion of the passageway, as a means of access to his said premises, as argued under the authority of Stokoe v. Singers, 8 Ellis & Bl. 31. Conceding that he re-erected his building without regard to a present side entrance, such act would not show an abandonment in face of the notice wherein he asserts a right not only to that which he is actually entitled, but also to a greater right or privilege. The less would be included in the greater. The claim to the full 25 feet of the original alley or passageway from street to alley includes the right in the smaller or restricted entrance.
    We come then to the rights of the parties under the agreement and the laws of the Commonwealth relative to the division, or what is here referred to as the party wall. A party wall is a division wall erected between two adjoining estates belonging to different persons for use of both estates, or as defined by Washburn on Easements & Servitudes, (4th Ed.) 611, “a wall built at common expense and in which each have acquired a common right therein.” The wall in the case at bar was built on the lands of both parties, the front end or portion of the wall, on lands of plaintiff a distance of 59 feet, and the rear end of 61 feet upon lands of defendant’s predecessor in title, each making contribution and each together using the same in common until the buildings were destroyed by fire. What then is the status of the parties. We are cited to Section IV of the Act of April 10, 1849, P. L. 600, which provides that “In the conveyance of houses or buildings, the rights, to and compensation for the party wall built therewith, shall be taken to have passed to the purchaser, unless otherwise expressed, and the owner of the house for the time being shall have all the remedies in respect to such party wall as he might have in relation to the house to which it is attached.” This Act has been held to apply to any wall made such by statute, prescription or agreement, (Voight v. Wallace, 179 Pa. 520), and the purpose of the Act as stated in said cited case “was intended to prevent the inconvenience and injustice resulting from the title to the wall being in one person and the right to compensation outstanding and a secret claim in the hands of another.” In other words, the Act was to prevent a condition such as arose in Dannaker v. Riley, 14 Pa. 435, where the right of the first builder to compensation was considered a personal right and did not pass with the land to the purchaser. In Knight v. Beenken, 30 Pa. 372, it was held that the right or interest should pass by the conveyance and such interest should be in law what it was in fact, “an interest in the realty and not a mere personal right.”
    But, it is clear that this Act and the authorities cited relate to a party wall, in its technical sense, under the statutes, and not to the ordinary division or partition wall created for convenience between adjoining owners of property. Such rights, which are purely statutory, do not exist at common law. List v. Hornbrook, 2 W. Va. 340. A division wall may, however, be a party wall, not only by statute, but also by agreement. Ritter v. Sieger, 105 Pa. 400. We must then look to the agreement of 1888 between the parties and determine whether or not a party wall exists by contract, and what may be required of each thereunder. It is herein provided that whereas Roush is about to commence the erection of a brick building, and that he may build his wall a distance of two feet over the line of said Ebert back a distance of 59 feet, and the remaining portion of the said wall shall be built eighteen inches beyond the said Ebert side of the dividing line, a distance of 61 feet; and that Ebert shall, after compensation, sink the joist of his said building into said wall. But, it will appear under the agreement that while provision is made for the perpetual maintenance of the hallway, no such agreement is made in reference to the wall; nor is any provision made for its repair or re-construction in the event such repairs or rebuilding may become necessary. No right has run by prescription, and, in the absence of such contract, it is to be assumed that none was intended by the parties, for only that which is expressed or fairly implied under the agreement can prevail. The easement of support by means of a common party wall, which belongs to adjoining buildings cease with the state of things which created it, and, when the wall is accidentally destroyed, or is-so much decayed as to require a rebuilding from the foundation, neither may call upon the other for its restoration, unless it was so agreed at the time of its erection. Bonney v. Greenwood, 96 Me. 335 (52 Atl. Repr. 786). And, where one owning an easement in a wall, which forms a side of his building, after the destruction of the wall and building, erects a new building on a different foundation, he, thereby, abandons and extinguishes the easement. Duncan v. Rodecker, 90 Wis. 1 (62 N. W. Repr. 533).
    The buildings were destroyed by a fire, without cause by either party, and, where houses having a party wall are accidentally destroyed by fire, leaving the wall standing, the easement in the wall ceases, and either owner may dispose as he pleases of the part of his ground.” Hoffman v. Kuhn, 57 Miss. 746. There is no implied obligation which will enable either to maintain an action against the other for neglect or refusal to repair or reconstruct. Pierce v. Dyer, 109 Mass. 374. “When the wall has been destroyed by the elements, there being no agreement to build a second jvall, neither party is unden obligation to join the otLer in doing so, and the law would imply no such obligations.” Washburn on Easements & Servitudes, (4th Ed.) 614; Shirley v. Crabb, 37 N. E. Repr. 130. These authorities would seem to indicate that the division or partition wall is wholly eliminated from the controversy, as neither the agreement of 1888 provides for reconstruction or contribution therefor, nor is there any evidence tending to show since the destruction of the buildings that either party obligated himself to a reconstruction, or for contribution in the event of a rebuilding by the other party. The plaintiff, having rebuilt wholly upon his own land, the defendant must, if he desires to rebuild, likewise erect wholly upon his land within the lines as shown between the properties, prior to the deed of 1869-
    conclusions OF LAW.
    1. That the second or subsequent agreement of 7th September, 1888, did not annul or extinguish the grant in its entirety contained in the deed of 1869, but so modified, reformed and changed the same, to conform to the new conditions, restricting the area or size of the passageway for ingress and egress of both parties and their several occupants of the respective buildings;

      2. That defendant has no right or authority to enclose or maintain closed that portion of the plot conveyed by deed of date 21st August, 1869, which fronts on Eleventh Avenue five feet, and extends back a distance of fifty-seven feet, reserved for an alley, passageway or hallway. Nor has the plaintiff any easement rights to or interest in any other portion of defendant’s lands;
    3. That, by agreement of 7th September, 1888, for considerations therein named, the rights of the parties were merged, and, by the fire of 14th June, 1907, the division wall was obliterated, either party then having the right to decline to build, or, rebuilding a division wall, may build upon his own lands without reference to the former rights in the division wall erected under the said agreement of 1888.

      Error assigned was decree awarding injunction.

      R. A. Henderson, for Isaac C. Mishler, appellant.

      Wm. S. Hammond and O. H. Hewitt, for John W. Ebert, appellee.
    February 5, 1912:
   Per Curiam,

These appeals are from a decree entered on bill and cross-bill defining the rights of adjoining owners of land to an easement. They give rise to many questions of interest that have been elaborately and ably argued, but the crucial question in the case is whether the agreement of 1888 extinguished the easement created by deed in 1869. We concur in the conclusion reached by the learned judge of the Common Pleas that it did not and that its only effect was to define and restrict the use of the passage way. Whether under a strict construction of the deed, the easement created by it was personal to the grantor and limited to his life is of slight importance, in view of the construction placed upon it by the owners of the dominant and servient tenements. For a period of nearly forty years they construed the covenant as running with the land, and with this understanding of their rights, negotiations were entered into for their mutual advantage and money expended and buildings erected. It is now too late to call it into question.

The decree is affirmed.


source: Caselaw Access Project

author: Mr. Justice Moschzisker,

license: Public Domain

text:
    Jamison, Appellant v. Cumberland County.

      Road law — Stale roads — Liability of county — Change of grade.

    1. A county is not liable for damages resulting from a change of grade of a township road reconstructed by the state highway department under the Act of May 1,1905, P. L. 318, after the passage of the Act of June 8, 1907, P. L. 505.
    2. The fact that thé improvement had its inception, and the contract for the work was let under the Act of 1905, prior to the amendment of 1907, eliminating the right to recover for a change of grade, does not serve to help an owner of land claiming damages from the county for a change of grade, inasmuch as no liability attached or right vested until the actual physical change of grade occurred.
    Argued Jan. 11, 1912.
    Appeal, No. 282, Jan. T., 1911, by plaintiff from judgment of Superior Ct., March T., 1901, No. 13, reversing judgment of C. P. Cumberland Co., Sept. T., 1909, No. 56, on verdict for plaintiff in case of Rebecca Jamison v. Cumberland County.
    Before Fell, C. J., Brown, Mestrezat, Stewart and Moschzisker, JJ.
    Affirmed.
    Appeal from Superior Court.
    The facts appear by the opinion of the Supreme Court, and by the opinion in 48 Pa. Superior Ct. 32.

      Error assigned was the judgment of the Superior Court.

      J. W. Wetzel, with him Conrad Hambleton, for appellant,
    cited: Chester County v. Brower, 117 Pa. 647; Delaware County’s App., 119 Pa. 159; Penna. R. R. Co. v. Marchant, 119 Pa. 541; Miller v. Lehigh County, 181 Pa. 622; Lafean v. York County, 20 Pa. Super. Ct. 573.

      S. B. Sadler, with him John C. Bell, Attorney Gen

      eral, for appellee,
    cited: Lamoreux v. Luzerne County, 116 Pa. 195; Bucher v. Northumberland County, 209 Pa. 618; Kelley v. Cumberland County, 229 Pa. 289; Ogden v. Philadelphia, 143 Pa. 430; Howley v. Pittsburg, 204 Pa. 428; Plan 166, 143 Pa. 414; Clark v. Philadelphia, 171 Pa. 30; Jones v. Bangor Boro., 144 Pa. 638; Allegheny v. King, 18 Pa. Super. Ct. 182.
    February 5, 1912:
   Opinion by

Mr. Justice Moschzisker,

The appellee correctly states the question involved to be “Is a County liable for damages resulting from a change of grade of a township road reconstructed by the State Highway Department after the passage of the Act of June 8, 1907?”

The road which figures in this case was laid out and opened many years ago. In 1906, upon application of the supervisors of Pennsboro Township, the Commissioners of Cumberland County presented a petition to the State Highway Department praying for the improvement and reconstruction of this road, as provided in the Act of May 1, 1905, P. L. 318. Subsequently the necessary surveys were made and a contract for the work was entered into by the State Highway Department as authorized by the Act; but the actual physical change of grade in front of appellant’s property did not take place until many months after the passage of the act of June 8, 1907, P. L. 505, which expressly amended the Act of 1905 so as to eliminate a provision for the assessment of damages resulting from a change of grade. Nevertheless the Court of Common Pleas decided that under the constitutional provision, that municipal corporations shall make compensation for property injured by the construction or enlargement of their highways, the plaintiff was entitled to recover for damages suffered from this change of grade, and entered judgment accordingly; this judgment was reversed by the Superior Court, and the ease is here on appeal from that tribunal.

The facts have been twice before the Superior Court (Jamison v. Cumberland Co., 39 Pa. Superior Ct. 335, 48 Pa. Super. Ct. 32), and on the last appeal, in an opinion by Porter, J., the question here involved is correctly answered in the negative; the whole subject is amply and ably covered, and the positions taken are fully sustained by the authorities there cited and explained. The answers to most of the contentions of the appellant are to be found in the following excerpt from that opinion: “The road with which we are now dealing was one of the general system of highways of the Commonwealth, a township road, the property of the Commonwealth, and the burden of keeping it in repair has been by law imposed upon the township. The County in its corporate capacity had nothing to do with it, save the authority conferred by the Act of 1905 to assist the Commonwealth and the township by contributing 12% per cent, of the cost of making it an improved highway. When, the road was originally laid out as a highway many years ago, the County had nothing whatever to do with it, except to pay damages and expenses in compliance with the general law of the State. The taking was by the State by right of eminent domain, in the manner provided by its laws, through the agency of the judiciary. The six per cent, allowance for roads embraced in all the original grants -from the Proprietaries and the Commonwealth, made the allowance of compensation for the land then taken a matter of grace on the part of the Legislature and not of constitutional right; ---- The road having been opened, it was within the discretion of the Supervisors of the township to change the grade of the highway from time to time as the exigencies of pubic travel required. Had the Supervisors of the township in which this road was located, without the intervention and assistance Of the State Highway Department, made the same change in the grade of the highway this plaintiff could not have asserted a constitutional right to claim compensation for the alleged injury to her property resulting from such change in grade; ____ Any taking of, or injury to, property authorized by the Acts of 1905 or 1907, involves an exercise of the right of eminent domain by the State in its sovereign capacity, acting through one of its executive departments. The statute conferred upon Counties no privilege to take private property in connection with the improvement of a township road, nor did it give to a county any control over or right in such road before, during or after the completion of the improvement. The road was a township road before the improvement was undertaken, the statute enacted in its twentieth section, that the road should after the improvement be known as a ‘State Highway/ but it also provided that it should be the duty of the authorities of the township in which the road was situated, after the improvement was completed, to keep the road in repair, and provided that the Supervisors of the township might apply directly to the State Highway Department and receive aid for the maintenance of the same. The statute, as amended, does allow compensation, for property actually taken in improving a road under its provisions, by the State Highway Department, but that, as is shown by the authorities above cited, was a matter of grace and not of constitutional right. The fact that the statute made the County the paymaster in the first instance, for property thus taken, by the State Highway Department, did not constitute the county a corporation ‘invested with the privilege of taking private property for public uses/ within the meaning and spirit of the constitutional provision, nor did it vest parties whose property was not actually taken with the constitutional right to demand consequential damages for injuries alleged to have resulted from change of grade ---- The County of Cumberland was not invested with the right to take private property for public use in the making of the improvement in question; the road was not and did not become a work, highway or improvement of the county or over which the county had control, and the constitutional provision in question has no application to this case.” This leaves little more to be said upon the subject.

The Commonwealth of Pennsylvania has entered upon the systematic development of a series of State highways, and this the Acts of 1905 and 1907 were intended to carry out- While the construction of these Acts concerns all the people, the rights of the individual particularly affected are the matter of prime importance to be determined here, and we have examined and considered the case from this point of view. The Acts represent a new scheme of highway building undertaken directly by the State, whose subdivisions merely act to put into operation the machinery of the Commonwealth and as its agents and the paymasters of part of the cost of such improvements. The statutory provisions that the State Highway Department may “contract jointly with the County and township or townships, in which said highway lies, to carry out the recommendations of the State Highway Commissioner,” and that no work shall be authorized “until the written agreement of the Commissioners of the County and the____township or townships ...., to assume their respective shares of the cost .... shall be on-file in the office of the State Highway Department,” mean that in each instance a record of the undertaking shall be thus made up for the benefit of the State and the respective localities through which the road passes; these provisions do not in any sense contemplate a contract in which the property owners along the line of the improvement can claim any special beneficial interest, nor do they impose an obligation upon the counties to respond in damages for consequential injuries resulting from a change of grade in the making of the improvement. The work is done directly by the State and the Act expressly provides that every contract for such improvement “shall be made in the name of the Commonwealth of Pennsylvania and shall be signed by the State Highway Commissioner .... and approved .... by the Attorney General.” The State directly, not the County or the township, exercise the power of eminent domain, and injuries suffered by property owners are attributable to the State and not to the County. Although the latter contributes a small percentage of the cost, roads reconstructed under these Acts do not become County roads; and while, in a certain sense, the Counties are quasi municipal corporations, the constitutional provision relied upon by the appellant cannot be applied to impose liability in a case such as this where no injury has been caused through the exercise of a right or the performance of a duty imposed upon the county.

The fact that the improvement had its inception and the contract for the work was let under the Act of 1905, prior to the amendment of 1907 eliminating the right to recover for a change of grade, will not serve to help the appellant, as no liability attached or right vested until the actual physical change of grade occurred : Ogden v. Philadelphia, 143 Pa. 430; Plan 166, 143 Pa. 414; Jones v. Bangor Boro., 144 Pa. 638; Clark v. Philadelphia, 171 Pa. 30; Howley v. Pittsburgh, 204 Pa. 428.

The assignment of error is overruled, and the judgment of the Superior Court is affirmed.


author: Mr. Justice Potter,

text:
    Citizens’ National Bank of New Castle v. Hileman, Appellant.
    Argued Oct. 10, 1911.
    Appeal, No. 138, Oct. T., 1911, by defendant, from order of C. P. Lawrence Co., Sept. T., 1910, No. 203, discharging rule to strike off judgment in case of The Citizens’ National Bank of New Castle, Pa. v. E. E. Hileman, Chas. C. Hileman and A. C. Hileman.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.

      Robert K. Aiken, with him Akens, Wilkinson, Lockhart & Chambers, for appellants.

      James A. Gardner, with him E. T. Kurtz, for appellee.
    February 5, 1912:
   Opinion by

Mr. Justice Potter,

The question involved in this appeal is precisely the same as that at No. 139 October Term 1911, 233 Pa. 432, in which an opinion has been handed down. For the reasons therein set forth, the order of the court below in this case is reversed, and it is ordered that the judgment be stricken off.


author: Per Curiam,

text:
    Jones’ Estate.

      Wills — Probate—Issue devisavii vel non — Undue influence.

    An issue devisavit vel non will be refused where the evidence shows that the testatrix was of perfectly sound mind, that her will was written by a scrivener from her own personal instructions, that the contestant, a daughter, had angered her mother by her marriage, and by placing her stock in a corporation which the family controlled, in her husband’s name, and that the beneficiaries under the will had in no way influenced their mother against the contestant.
    Argued Jan. 11, 1912.
    Appeal, No. 105, Jan. T., 1911, by Bertha W. Neal, from decree of O. C. Phila. Co., April T., 1910, No. 320, dismissing appeal from Register of Wills in Estate of Elizabeth D. Jones, deceased.
    Before Fell, C. J., Bbown, Mestrezat, Stewart and Moschzisker, JJ.
    Affirmed.
    Appeal from Register of Wills.
    Anderson, J., filed the following opinion:
    A careful consideration of this appeal does not convince the Judge sitting at preliminary hearing that there has been presented evidence sufficient to warrant the granting of an issue. The issue was prayed for on two grounds: First, lack of testamentary capacity; and, secondly, undue influence.
    As to the first ground there is absolutely no evidence upon which an issue could be granted. The evidence disclosed the testatrix to have been a woman of clear mind; and the testimony of the physician who attended her, the lawyer who drafted the will, the nurse who was called in after the drafting of the will, and every one who came in contact with the testatrix, including the daughters whose shares were put in trust, fails to show the slightest impairment of mind if there was any impairment at all until long after the making of the will.
    As to the other ground, there is no testimony to show that any influence had been exerted upon the mind of the testatrix to procure the making of the will. The scrivener, a reputable member of the bar, testified that he was asked to call upon the testatrix by one of her daughters to see about drafting her will, the first suggestion of which was the announcement to the testatrix in the presence of some of her daughters by her attending physician, that she had better have her affairs fixed up. The scrivener called at the house, and after examining the testatrix as to her affairs, she told him how she wanted her will made, and he drew it as she had dictated it, she making but one change, in that she, at his solicitation, increased the legacy to the daughter who is now complaining from five dollars to one hundred dollars. She gave the residue of her estate after a gift of ten thousand dollars to the single daughters, to be equally divided among her children excepting the daughter who now contests, the shares of two of them to be held in trust with the remainder to their children, and in default of children remainder to the other daughters, excepting the contestant.
    Under the circumstances of the family as described by the evidence the will was a natural one. The daughter who was cut off, it was shown by the evidence had angered the mother, first, by a marriage to which she was, justly or unjustly, opposed, being prejudiced against her husband. And, as said in Cauftman v. Long, 82 Pa. 72, and reiterated in Morgan’s Estate, 219 Pa. 355, one has a right to his prejudices. She was still further estranged from her daughter by the act of the latter, who had placed her stock in the Home Made Bread Company, a corporation owned by the mother and her daughters and conducted by them, in her husband’s name. That the daughter realized that her mother was incensed by these acts is shown by her letter to her mother a letter most creditable to the daughter, in which she seeks reconciliation with her. The gift also of a special legacy by testatrix to her single daughter is the natural desire of a mother to add to the share of one, who had not, as her married daughters had, some one to protect and earn a living for her; and the gifts in trust were fully explained by the fact that one daughter had already jeopardized her interest in her father’s estate which the mother was compelled to save, and that the other daughter’s husband was distasteful to the mother and had estranged the family by letters written to them by his attorney.
    But, be that as it may, it was the will of the decedent, dictated by her, and as shown by the evidence, without a single suggestion on the part of those benefited by it. The mere fact that they were daughters of the testatrix, attended to the business and lived in the house with her, raises no presumption against them; Herster v. Herster, 122 Pa. 239. As was said by Mr. Justice Clark in that case: “Undue influence, of that kind which will affect the provisions of a testament, must be such as subjugates the mind of the testator to the will of the person operating upon it; and in order to establish this, proof must be made of some fraud practiced, some threats or misrepresentations. made, some undue flattery, or some physical or moral coercion employed, so as to destroy free agency in the testator; and these inferences must be proved to have operated as a present constraint at the very time of making the will”
    Judging the present case by that standard, there is absolutely no testimony to show any undue influence. It is a case which if a jury should find against the will, the trial Judge would be constrained to set aside the verdict, and for that reason no issue can be granted.
    The appeal is dismissed.

      Error assigned was decree dismissing the appeal.

      V. Gilpin Robinson, with him John G. Kaufman and George Henderson, for appellant.

      Hampton L. Carson, for appellees.
    February 5, 1912:
   Per Curiam,

The order appealed from is affirmed on the opinion of Judge Anderson refusing an issue.


author: Mr. Justice Elkin,

text:
    Mercantile Library Company of Philadelphia, Appellant v. Fidelity Trust Company, Trustee.

      Deed — Construction—Intention—Surrounding circumstances— Passageway — Pavement.
    1. The words of a grant are to receive a reasonable construction and one that will accord with the intention of the parties; but, in order to ascertain their intention courts will look into the circumstances under which the grant was made.
    2. Where a market company owning a passageway along its property sixteen feet wide with a pavement five feet wide elevated above the cartway, enters into an agreement with an adjoining owner by which the latter opens a strip of his land ten feet wide “for the purpose of widening the said passageway (that is the sixteen-foot passageway) at that part to the width of twenty-six feet for the common use and privilege as a street or passageway” for both parties, their successors and assigns, and thereafter for forty years twenty-one feet of the passageway remained as a cartway for the use of wagons, a successor in title to the ten-foot strip will not be permitted to construct a pavement with a curb elevated several inches above the cartway and covering the entire ten feet upon which the easement was originally imposed; and this is the case although during later years a pavement had been constructed upon the ten-foot strip, but on a level with the cartway.
    3. In such a case the owner of the ten-foot strip will not be required to remove grating, doors, etc. if they do not obstruct the right of passage.
    4. In Pennsylvania the owner of land who grants a right of way over it conveys nothing but the right of passage and reserves all incidents of ownership not granted.
    Argued Jan. 3, 1912.
    Appeal, No. 149, Jan. T., 1912, by plaintiff from decree of C. P. No. 5, Phila. Co., March T., 1909, No..2096, on bill in equity in case of Mercantile Library Company of Philadelphia v. Fidelity Trust Company, Trustee for the Methodist Episcopal Orphanage under the will of Joseph M. Bennett, deceased.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Decree modified.

      Bill in equity for an injunction.
    Ralston, J., filed an opinion which was in part as follows:
    First. [The fire-escape projects about four and one-half feet from the building and overhangs the alley. The permanent structure extends down to the second floor, and is connected with the ground by a movable ladder which is ordinarily kept hoisted up to the second floor, but may be lowered to the ground in case of necessity.. This structure in no way interferes with the use of the alley as a street or passageway.] (25) It is built entirely over the ten feet addition to the alley and is, therefore, over land owned by the defendant, but subject to the easement of passage. In Schmoele v. Betz, 212 Pa. 32, the owner of the building upon which the fire-escape was fastened was not the owner of the ground of the alley over which it projected and had, as such owner, no right of passage in the alley. It was, therefore, held that he was a trespasser and had no right to maintain the fire-escape, even although the use of the easement was not materially impaired. In Mershon v. Yfalker, 215 Pa. 41, the defendant had no title to the soil of the court over which the fire-escape projected. The Court said that it was impossible to distinguish the case from Schmoele v- Betz, supra, and on the authority of that decision, ordered the structure to be taken down. In that case the defendant had no rights at all in the alley and could not use the fire-escape without using the alley; therefore, the structure was ordered to be removed without regard to whether or not it obstructed the alley. In Mershon v. Walker, the Court said that while the plaiptiffs “have standing to complain of any obstruction to or interference with the free and full exercise of the privileges they have in the surface of the court, they cannot have any with respect to any invasion by others above or beneath the surface, not affecting them.” These cases might be distinguished on this ground if the Supreme Court had not said they were indistinguishable. In Patterson v. Railroad Co., 8 Pa. C. C. R. 186, Thayer, P. J., said: “So long as he does not materially impair the use of the easement such as it was granted, the owner of the soil may erect such structures in or over or beneath' the way as he chooses.” See also Stevenson v. Stewart, 7 Phila. 293. In Schmoele v. Betz, referring to these two cases, the Supreme Court said: “In both cases the owner of the fee had granted a right of Avay over the premises, retaining the OAvnersliip of the soil, and it Avas held that the grantee could not enjoin him from building over the alley if it did not interfere with the use of the way. But those are not the facts in this case.” In the present case, the OAvner of the soil has built over its oavu land; it has a right to use the alley, so that the use of the fire-escape throAvs no unlawful burden upon the Avay; [the fire escape is not an obstruction of the use of the alley and in no way interferes Avith the plaintiffs right of passage-] (26) Therefore, the Court Avill not order it to be removed.
    Second. When the fence at the rear of the Chestnut street lot was moved ten feet to the south, it is not quite clear from the testimony what Avas done Avith the space. It seems to have been paved in some wa,y, but the weight of the testimony is, and it is so found as a fact, that no sidewalk elevated above the level of the cartway Avas built until 1903. The building at 1019 Chestnut street Avas erected in 1882, and there was a paved way for ten feet back of it, but it does not appear from the testimony that it was a sidewalk as distinguished from the cartway. The building which covers the lot Nos. 1015 and 1017 Chestnut street was erected in 1903, and at that time the present sidewalk Avas built. It extends over the entire space of ten feet north of the buildings 1015, 1017 and 1019 Chestnut street, has a curb and is elevated above the level of the cartway from two and a half to five and a half inches. Whether or not this is an obstruction of the plaintiff’s right of way will depend upon the construction of the grant. The defendant’s predecessor in title threw out and opened the northernmost ten feet of his lot in order to connect it with the existing sixteen feet wide street or passageway for the purpose of widening it to twenty-six feet. A street is a public thoroughfare, and consists of a cartway for animals and vehicles, and sidewalks for the use of pedestrians. The sidewalk is included in the general term street: Bouvier’s Law Die., titles “Street,” “Sidewalk.” [In the present case the “street” is not a public thoroughfare, but a private way; nevertheless, as the parties used the word, it is not unreasonable to conclude that they intended the way to have all the attributes of a “street,” except that it should not be open to the public. This construction is strengthened by the fact that the plaintiff or its predecessors in title constructed a sidewalk of the width of five feet upon their side of the alley, showing that they understood that the “street” was to consist of the usual cartway and sidewalks. It is proper, therefore, that the defendant should be permitted to build a sidewalk upon its side of the way.] (27) It seems unreasonable, however, that it should occupy the entire space of ten feet which was granted for the purpose of widening the street. [The defendant’s sidewalk should be cut down to the same width as the plaintiff’s, namely, five feet, but as that cannot be done without interfering with the doors and openings which the defendant has built to facilitate entrance to and exit from its cellar, the Court will order the sidewalk to be reduced to a width of six feet, which will sufficiently widen the cartway without subjecting the defendant to an unreasonable loss, which ought not to be imposed upon it as the plaintiff permitted it to build these structures without objection.] (28)
    Third. In the rear of each of the lots the defendant has made excavations which extend north under the ten feet strip about three and a half feet, and east and west almost the entire breadth of the lots. These are covered with iron gratings flush Avith the pavement of the sideAvalk, and Avere put in at the time Avhen the buildings Avere erected; that is, the one in the rear of 1019 Avas built in 1882, and those in the rear of 1015 and 1017 in 1903. Besides these gratings, there are in the rear of 1015 and 1017 Chestnut street excavations under the sidewalk which are reached by iron doors. These doors open upward and Avhen closed are level with the sidewalk. Under them are lifts which are used for raising and lowering freight out of and into the cellars. In Mershon v. Fidelity Ins., Trust & Safe Deposit Co., 208 Pa. 292, similar gratings were ordered by the Court to be removed. In that case, both the plaintiff and defendant had an easement of passage in a court “with or without horses, cattle, carts and carriages;” either had title to the soil of the court. The defendant had no right to excavate under the court and change its condition from what it had been before. In the present case the defendant is the oAvner of the ground and has a right to excavate under the street so long as it does not obstruct the plaintiff’s right of passage. [As the alley in question is a “street” Avith sidewalks, the ordinary structures common in the sidewalks of the city, such as area-ways and cellar doors, are not necessarily and per se unlawful obstructions.] (29) Similar openings, Avith gratings and doors, exist in the plaintiff’s sideAvalk, and no objection Avas made to the defendant’s structures until six years after they were built. This would seem to sIioav that the parties intended to use the sideAvalks in the ordinary Avay that other sideAvalks in the City are used.] (30) Neither the gratings nor the cellar doors when closed interfere in any Avay with the passage of pedestrians OArer the sidewalk. The cellar doors Avhen open would, of bourse, obstruct the sidewalk, but it has not been shown that they are kept open for unreasonable periods of time; they, therefore, constitute only such an obstruction as is incidental and reasonably necessary to the use of the sidewalk for business purposes.
    [Being of opinion that the fire-escape, the gratings and the cellar doors do not interfere with, nor obstruct the plaintiff’s rights in the street, the Court will not order them to be removed,] (31) but will order the defendant’s sidewalk to be reduced to the width of sis feet.

      Error assigned was the decree entered in accordance with the opinion.

      George Henderson and Alex. Simpson, Jr.,

    for appellant. — The gratings and iron doors invade the easement and should be enjoined even though the raised sidewalk is declared, to be within the appellee’s rights: Mershon v. Fidelity Ins., Trust & Safe Deposit Co., 208 Pa. 292.
    The overhanging fire escape invades the easement and should be enjoined: Ellis v. Academy of Music, 120 Pa. 608; Reimer’s App., 100 Pa. 182; Com. v. McNaugher, 131 Pa. 55.

      A. U. Bonnard, with him John MeConaghy, Jr., for appellee.
    Duross v. Singer, 224 Pa. 573; Patterson v. P. & R. R. R. Co., 26 W. N. C. 327; Stevenson v. Stewart, 7 Phila. 293; Carter v. Lebzelter, 45 Pa. Superior Ct. 478; Connery v. Brooke, 73 Pa. 80; Greenmount Cemetery Co.’s Appeals, 4 Atl. Repr. 528; Kohler v. Smith, 3 Pa. Superior Ct. 176.
    February 12, 1912:
   Opinion by

Mr. Justice Elkin,

This bill was filed to compel the removal of certain alleged obstructions to the free and uninterrupted use of a passageway created by an agreement in writing between private parties. Tbe assignments of error are numerous, but the legal questions involved with which we are primarily concerned are few and not difficult of solution. Our first inquiry must necessarily relate to the construction of the agreement of, 1864. What rights and privileges were granted by this agreement, and what kind of use in the passageway did the parties intend to be enjoyed? The words of a grant are to receive a reasonable construction and one that will accord with the intention of the parties; but, in order to ascertain their intention, courts will look into the circumstances under which the grant was made: Connery v. Brooke, 73 Pa. 80. Love, the predecessor in title of appellee, covenanted with the predecessor in title of appellant to “forthwith throw out and open the northernmost ten feet” of a certain lot of ground to be connected with a sixteen-foot wide passageway belonging to the adjoining owner with whom he covenanted “for the purpose of widening the said passageway (that is the sixteen-foot passageway) at that part to the width of twenty-six feet for the common use, and privilege as a street or passageway of him, the said Thomas C. Love, his heirs and assigns, and of The Franklin Market Company aforesaid, their successors and assigns, and his and their respective tenants and occupants.” There can be no doubt that the parties intended by their agreement to make a passageway for their common use twenty-six feet in width, nor is this construction questioned by either side of the present controversy. Indeed, each side accepts this view as the proper interpretation of the agreement, but insists that when the covenant is so understood it sustains their respective contentions although widely at variance. The differences between the parties grow out of the kind of use authorized to be made of the passageway. Appellee, the successor of Love in title, has construed the covenant to give it the right to construct a pavement with a curb elevated several inches above the cartway and covering the entire ten feet upon which the easement was originally imposed. If this interpretation be sustained it means the denial of the right of appellant to use any part of the ten feet for cartway purposes. Taking into consideration the circumstances under which the agreement was made, such a construction would in our opinion do violence to the intention of the parties. The Market Company, one of the original parties to the agreement, dedicated sixteen feet to the common passageway, while the other party only dedicated ten feet. If it should now be determined that the party who dedicated the ten feet to the passageway has the right to construct a curb and pavement elevated several inches above the cartway so as to occupy the entire strip of ground thus dedicated, no practical advantage would result to the Market Company or those succeeding to its title. It seems perfectly clear that the purpose of the Market Company in entering into the agreement was to secure a wider passageway for the use of its patrons and to afford more convenient access to its place of business. It is scarcely conceivable that the Market Company gave Love the right to make use of its sixteen feet of ground as a passageway for the benefit of himself and tenants, and that in return it was to receive no substantial benefit in the use of the ten feet of ground dedicated by Love to the common use of both parties. Again, if the intention of Love was simply to construct an elevated pavement upon his ten feet of ground, there was no necessity for him entering into an agreement with the adjoining owner to effectuate this purpose. He had the right to do this without consulting the wishes of any one. It is evident that both parties entered into the agreement for purposes mutually beneficial and this could only mean that the common passageway should be widened by the additional ten feet. Nor is it open to doubt that the passageway thus widened was for a long period of years used as a cartway for horses and wagons as well as a means of access for persons. The parties themselves in effect placed this construction upon their own agreement by the use made of the passageway. It is true that in later years a pavement was constructed upon the ten-foot strip of ground but this pavement was level with the cartway and answered both purposes until it was elevated at the time about which complaint is here made. Under these circumstances we are constrained to hold that the parties intended the passageway mentioned in their agreement to be used as a means of access for horses, wagons, vehicles and persons, and that this right is interfered with by the elevated pavement about which complaint is made. The pavement should be lowered to the level of the cartway in order to carry out the intention of the parties. We think this was the agreement of the parties and that it is controlling here. In this view of the case it is not necessary to discuss what constitutes a street or what rights and privileges abutting property owners have generally in public thoroughfares.

Appellee contends that it should have the right to maintain a pavement with curb elevated above the cart-way on the ten-foot strip of ground because appellant, or its predecessors in title, constructed a five-foot wide pavement at the other side of the passageway. If the facts warranted it, this argument would have strong equitable grounds to rest upon. But under the facts as found, and the evidence is all to this effect, there existed at the time the agreement of 1864 was entered into on the side of the Market Company property a raised curbed sidewalk five feet wide. This sidewalk was a part of the sixteen feet dedicated to the common use of both parties by the agreement in question. The covenant must be understood to apply to the physical conditions then existing on the ground. The Market Company gave sixteen feet, or eleven feet of cartway, while Love only gave ten feet which was a less number of feet than the Market Company set apart for cartway purposes- The parties were familiar with the conditions on the ground and if Love intended to reserve the right to construct a raised pavement on the ten-foot strip of ground, he should have done so in his agreement. He did not do so, and for a period of forty years, and perhaps more, no attempt was made to construct a pavement raised above the cartway on his side of the passageway. We think this clearly shows that the parties either intended that the easement should be superimposed upon the physical conditions then existing on the ground, or that these conditions in view of the subsequent acts of the parties should be considered in determining the intention of the parties under the agreement. In either view the conclusion is the same, and the ten-foot strip of ground must be regarded as an addition to the passageway, which we have said means a passageway for every purpose contemplated by the agreement. Certainly, a raised pavement with a curb narrows the passageway and seriously interferes with some of the uses intended to be enjoyed.

There is nothing in the agreement which defines what kind of a passageway shall be maintained, and we can see no good reason why the appellee may not, if it chooses, construct a pavement as part of the passageway and on a level with it, so that it may serve as a convenience to pedestrians as well as for cartway purposes. The parties themselves made such use of the passageway for many years, and there is nothing in the agreement - to deny them this right.

The other legal question involved is of a different character. Appellant contends, not only that the pavement should be lowered to the level of the cartway but that the gratings, doors, fire escape and other alleged obstructions should be removed. The learned court be.low refused to so decree and we have concluded, after full consideration, upon the facts as found, that the proper conclusion was reached. We do not agree that the case at bar in this respect is ruled by Schmoele v. Betz, 212 Pa. 32; Mershon v. Walker, 215 Pa. 41, and other cases relied on by appellant. In each of the cases cited to sustain this contention, the party against whom complaint was made, was not the owner of the fee upon .which the easement was imposed. This is a material fact and one which must be taken into consideration in properly determining the rights of the parties in such cases. In this commonwealth the rule always has been that the owner of land who grants a right of way over it conveys nothing but the right of passage and reserves all incidents of ownership not granted. In a very recent case, Duross v. Singer, 224 Pa. 573, this court reiterated the rule by making use of the following language: “The grant of a fee subject to an easement carries with it the right to make any use of the servient soil that does not interfere with the easement, and this right cannot be abridged by words used in the granting clause unless the intention to limit the estate is clearly expressed, or is a necessary implication from the words used.” In 1864, when the agreement in question was entered into Love was the owner of the fee in the ten-foot strip of ground and he only granted the right of passage over it. He retained all other incidents of ownership and his successors in title have the undoubted right to the enjoyment of the fee in every way that does not materially impair the use of the easement. If there had been, or if there shall hereafter be, any substantial interference with the use of the passageway, it would be the duty of courts to give relief. But in the case at bar the learned court below sitting as a chancellor has found as a fact that there has been no substantial interference with the use of the passageway either by the gratings in the pavement, or by the doors, or by the fire escape, or by the excavations under the pavement. All of the obstructions complained of are upon the property of appellee and have been constructed as an incident of ownership in the fee. The owner of the servient soil has the right to make use of his property as he chooses, if by so doing, he does not substantially interfere with the easement. The learned court below has found as a fact that there was no substantial interference with the use of the passageway and we must accept this finding as binding upon us. In this connection counsel have submitted since the argument of the case a photograph intended to show recent conditions of a fire escape, for the purpose no doubt of indicating a substantial interference with the use of the easement, but we must take the record as it comes to us from the court below, and cannot undertake to decide this appeal upon facts not considered by the chancellor.

We have concluded that the decree should be modified by requiring appellee to lower the curb and pavement to the level of the cartway, but in all other respects the decree to stand as entered so long as conditions remain the same.

Decree modified as above indicated, and as modified, it is affirmed. Costs to be divided equally between the parties.


text:
    Metzger v. Cramp, Appellant.

      Negligence — Master and servant — Contractor and sub-contractor —Safe place to work.

    1. It is tbe duty of a general contractor to provide a reasonably safe place to work, not only for his own employees, but for the employees of a sub-contractor who are engaged in the general prosecution of the work.
    2. In an action against a general contractor to recover damages for the death of an employee of a sub-contractor, the case is for the jury, where it appears that the deceased was killed by falling over the edge of a dangerous passageway which was unfamiliar to him, and which had been left unguarded by the removal of a guard rail, at the instance of the general contractor, without notice to persons whose duties required them to work at the place where the accident happened.
    Argued Jan. 5, 1912.
    Appeal, No. 205, Jan. T., 1911, by defendant from judgment of C. P- No. 2, Phila. Co., June T., 1907, No. 3743, on verdict for plaintiff in case of Barbara A. Metzger v. Cramp & Company.
    Before Fell, C. J., Bkown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband. Before Wiltbank, J.
    At the trial it appeared that the defendants were the general contractors for the erection of a school building, and that Waldman & Co. were the sub-contractors for the painting of the building, and that they employed John M. Metzger, plaintiff’s husband. The accident happened on February 26, 1907, the deceased fell while attempting to proceed along a passageway which had been previously protected by a guard-rail, but which had been left unprotected at the time of the accident by the removal of the rail at the instance of the general contractor, without notice to the deceased or other workmen employed in the locality.

      The court charged in part as follows:
    Gentlemen of the Jury: On the afternoon of February 26, 1907, Mr. Metzger, the husband of the lady who is here as plaintiff, met with a fatal accident. He fell through a hole, to describe it colloquially, which was in a flooring on what appeal’s to have been the top story of the Manual Training School, at Broad and Jackson streets, in this city. Above that flooring was a ceiling, as I remember, the roof, but he was up there on that story at work. He had been sent up by some one who was authorized to give him the order, and according to the testimony (which, however, is entirely for you to believe or not to believe under your oaths), he had not been up there before. Judging from what Mr. Clark has said, it was the first time that he had been up there. It is for you to determine that. It is an important point, however, and therefore I leave it to you for careful consideration.
    That floor- was peculiarly constructed. It was not meant, according to the evidence, as a floor all over the space. It was meant largely as the support of glass which was to throw light below, and it was not intended that so much of it as was covered with the glass should be used as a floor. According to the testimony of Mr. Newkirk (and, of course, it is for you to say whether or not you believe that), the glass was not meant to hold a person. It was not meant that the space of that floor, as I have called it, should be used as a floor. It was meant to let the light through from above down to the room below.
    There was, however, constructed across that space a running way, as they call it, which was to be used by persons who wanted to move across the floor. That was two feet six inches wide, and it ran from the north wall or side of that building down to the south wall or side, and it was that which was put there for the use of persons who were going to that part of the structure and who -were obliged to move about up there.

      It appears that on the afternoon in question Mr. Metzger was lawfully going up there to do some painting, and when he emerged from the stairway which carried him from below up to that place, he emerged through a door apparently fronting directly upon that running way, so that desiring, as he did, to go across that space to get to the other side of the building, the other wall, there was the running way for him to use. Had he been accustomed to the place, had he worked there before, and if you find such to be the fact now, there was indicated to him the way he was to go to get across to the other side and do his work, but if he was unfamiliar with the place, and if that was the first time he had been there, it may be that you would find that the fact that the boardwalk was there was not sufficient notice to him that he must not go across the other way over these spaces. These spaces were none of them glazed as we understand now. The plan offered in evidence indicates that all but two of them shown on the plan were glazed, but it turns out that none of them were glazed, and they were covered with cheese cloth in a business precaution to protect the lower part of the building in a certain way, in order that certain varnishing or painting might be done there in an atmosphere that was proper for such work.
    The Messrs. Cramp put up that building and they constructed that flooring and passageway that I have described to you. Now the question for you to determine is whether they furnished in this manner a safe place, a reasonably safe place, for Mr. Metzger to work in, and in order to answer that question you will bear certain points in mind. It is conceded that they put the running way there thirty inches wide, and that had he used that running way the accident would not have happened. It is conceded that the spaces for light that I have described to you were then empty and covered with cheese cloth, and were not safe for use in walking. It is also conceded that they were none of them glazed but that they were all covered, as I have already said to you, and it would be your right to infer (but I leave it to you) that cheese cloth is a slim fabric, almost unsubstantial, and not capable of holding the weight of a human being. It is conceded, too, that Cramps had put a guard-rail along the running way on either side, so as to protect a person using that running way from going inadvertently over to either side falling over on the glass or into the holes.
    Now you have that condition of things. This guard you find was at the time of the accident down. It had been removed, and one of the witnesses has testified to you where he saw it lying after the accident. If you find these to be the facts, then you may find evidence of negligence in the defendants for which they should answer to the plaintiff in this case, unless in addition to these facts you find that Mr. Metzger was careless as he entered upon that work. He appears to have reached that floor way, to have entered upon this space immediately in front of the running way. If he had taken that running way and gone across on it the accident would not have happened. Was it his duty under those circumstances to select that running way and not to step into this open space through the cheese cloth that was there? It has been said to you by one of the witnesses that that cheese cloth was sagging, was not drawn taut, and that there was an indication around the edge of it of the framework there which it covered. Was it the duty of Mr. Metzger to look about him and to determine that it was not caution to avoid the running way and do as he did? If you find that to be so then you will find that there was provided by these defendants a reasonably safe passageway to go across, and that by reason of Mr. Metzger’s inadvertence or want of attention he hastily stepped on the wrong place, avoiding that passageway and so incurring the damage. That would be what in law is called contributory negligence, and it would preclude your finding a verdict against the defendants.
    Verdict and judgment for plaintiff for $3,500. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      W. W. Smithers, for appellant.
    The defendant had discharged all the duty he owed to the decedent: Johnston v. Ott, 155 Pa. 17; Newingham v. Blair Co., 232 Pa. 511; Staebler v. Warren-Ehret Co., 223 Pa. 129; Schley v. R. R. Co., 227 Pa. 494; Schneider v. Quartz Co., 220 Pa. 548; Coleman v. Keenan, 223 Pa. 29.

      Michael Francis Doyle, for appellee.
    The liability of the employer himself when a subcontractor, for injuries sustained by his employees, has been held in this State to depend upon whether or not the place at which the work was being done and the injury sustained was under the control of the subcontractor or of some third person at the time of the accident, the determining fac tor in fixing the liability being the control of the premises: Anderson v. Oliver, 138 Pa. 156; Connelly v. Faith, 190 Pa. 553; Sharpley v. Wright, 205 Pa. 253; Moore v. B. F. Sturtevant Co., 228 Pa. 399; Johnston v. Ott, 155 Pa. 17; Newingham v. Blair Co., 232 Pa. 511; Foster v. Steel Co. 216 Pa. 279; Hoffner v. Prettyman, 6 Pa. Super. Ct. 20; Clegg v. Steel Casting Co., 34 Pa. Super. Ct. 63; Husvar v. R. R. Co., 232 Pa. 278; Alexander v. Steel Co., 189 Pa. 582.
    February 12, 1912:
   Opinion by

Mr. Justice Elkin,

This suit was brought to recover damages for injuries resulting in the death of the husband of appellee by reason of the alleged negligence of appellant. At the trial all questions of fact upon which the right to recover depended were submitted to the jury and there is no assignment of error as to the manner of the submission. Binding instructions in favor of the defendant were asked and refused, and subsequently a motion for judgment non obstante veredicto upon the whole record was filed and overruled. Appellant contends that he had discharged every duty owed decedent and that the evidence did not warrant a submission of the case to the jury. The two assignments of error raise this single question. If the undisputed facts were as stated in the argument of counsel for appellant it would have been error to submit the case to the jury, but we do not so read or understand the testimony. The material facts were in dispute and this raised an issue which it was the province of the jury to determine. It is argued for appellant that reasonable care was all that was required of him and we agree that this was the proper measure of his duty, but whether he exercised reasonable care under the circumstances was a question of fact for the jury. The place was dangerous and must have been so regarded by the general contractor because he had undertaken to provide a measure of safety by the erection of a guard rail at the place where the accident occurred. At the time of the accident the guard rail was missing; it had been removed, and as a result of this removal, decedent no doubt was misled as to the real conditions. It is contended that it was not the duty of the contractor to follow the employees of a subcontractor around in the prosecution of their work and give notice of every transitory peril. As a general proposition of law this is true, but we are not prepared io say that the negligence complained of comes within the rule of our cases relating to transitory dangers. It was the duty of the contractor to provide a reasonable safe place to work, not only for Ms own employees, but for the employees of a subcontractor, who were engaged in the general prosecution of the work. There may be, and no doubt there are, cases in which a general contractor is not required to exercise the same degree of care for the protection of the employees of a subcontractor as for his own, but no such question arises in the case at bar. The guard rail would in all probability have prevented the accident, and whether appellant was negligent in removing it without notice to those employees whose duties required them to work at that particular place, was under all the circumstances a question of fact for the jury. The unglazed sash frames covered with cheese-cloth proved to be a veritable death trap and we cannot escape the conviction that it was the duty of the contractor to properly guard such a dangerous place as a protection to workmen necessarily engaged in the performance of their duties. At least this was a question for the jury under the circumstances. We cannot agree that, the decedent assumed the risk as an incident of his contract of employment, or that he was so clearly guilty of contributory negligence as to require that the court should so declare as a matter of law. The negligence of the defendant as well as the alleged contributory negligence of the decedent were questions of fact for the jury. We find nothing in the record to warrant a reversal.

Judgment affirmed.


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    Gibbons, Appellant v. Gibbons.

      Wills — Trusts and trustees — Active trust — Children and grandchildren.

    The testator devised the residue of his estate to his executors in trust to pay the income to his wife for life and at her death in trust to pay the income to his five children, share and share alike, and to the issue of any deceased child, “provided, however, that upon the decease of either of my said children, without leaving lawful issue and leaving a husband or wife surviving, then my said trustees shall pay one-half of such deceased child’s share of the rents, issues and profits of my said residuary estate unto the surviving husband or wife for and during all the term of his or her natural life. And the remaining one-half part of such deceased child’s share shall go to and be divided equally among my said remaining children and the issue of my deceased child or children in manner aforesaid.” The gift of income to husbands and wives was revoked by codicil. Held, that the corpus of the estate was to be held in trust until the death of the last surviving child, and that the grandchildren had no standing to have it divided or partitioned until such event happened.
    Argued Jan. 5, 1912.
    Appeal, No. 210, Jan. T., 1911, by plaintiffs from decree of C. P. No. 1, Pbila. Co., March T., 1910, No. 1018, dismissing bill in equity in case of Michael J. Gibbons and Olive E. Gibbons, to the use of Sebastian A. Rudolph et al. v. Charles J. Gibbons et al.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity for partition. Before Kinsey, J.
    The facts are stated in the opinion of the Supreme Court and in Gibbons v. Connor, 220 Pa. 395. *

      Error assigned was decree dismissing the bill.

      Clarence E. Kuemmerle, with him William D. Weilson, for appellant.
    Upon the death of John J. Gibbons, his children became the absolute owners in fee simple of an undivided fifth interest in the real estate described in the bill: Drusadow v. Wilde, 63 Pa. 170; France’s Estate, 75 Pa. 220; Cooper v. Pogue, 92 Pa. 254; Schuldt v. Herbine, 3 Pa. Super. Ct., 65; Engel’s Estate, 180 Pa. 215; Curry v. Patterson, 183 Pa. 238; Shower’s Estate, 211 Pa. 297.
    A trust, even if active, which has no lawful purpose to sustain it, must fall and the active duties of the trustee are dispensed with: Yarnall’s App., 70 Pa. 335; Ogden’s App., 70 Pa. 501; Ritter’s Estate, 190 Pa. 102; Stiles v. Easton Nat. Bank, 33 Pa. Super. Ct. 57; Marshall’s Est., 1 Pa. D. R. 313.
    The testator did not intend that his residuary estate should be held in trust as an entirety after the death of any of his children leaving issue: Wilen’s App., 105 Pa. 121; Aubert’s App., 119 Pa. 48; Du Plaine’s Est., 185 Pa. 332; McCallum’s Est., 211 Pa. 205.

      Alfred N. Keim, with him Carroll R. Williams, for appellee.
    The question attempted to be raised in this case is res adjudicata. The validity of the trust ere* ated by the will of Michael Gibbons, deceased, was affirmatively established by the decision of this court in Gibbons v. Connor, 220 Pa. 395.
    February 12, 1912:
   Opinion by

Mr. Justice Elkin,

In Gibbons v. Connor, 220 Pa. 395, this court held that a valid active trust was created by the will of Michael Gibbons, deceased, and that the intention of the testator to thus protect his estate for the benefit of his children should prevail. The opinion in that case written by the present Chief Justice made no reference to grandchildren for the very good reason that the rights of children alone were involved in that controversy. The court simply passed upon the question then before it and nothing more. It is now earnestly contended that what was there said as to children has no application as to grandchildren. In support of this position it is argued that the ground of our former decision was that the testator intended to protect the estates of his children from the incidents of curtesy and dower, which would have resulted from a vesting of the corpus of the estate in his children, and that the intention to thus guard the shares of grandchildren nowhere appears. The answer to this argument is that the protection of the estates of children from the incidents of curtesy and dower was not the only reason for declaring the trust in question active and valid. It was a potential reason, and it was so expressed, but it was not the exclusive ground upon which the decision rested. The corpus of the estate is to be held in trust until the death of the last surviving child when it will be distributed to the persons entitled to take under the will. This means that the trust estate must be held as an entirety to the end of the trust period and that it cannot be divided or partitioned at the instance of one or more ultimate beneficiaries before the trust has terminated. It must not be overlooked that we are dealing with the estate of the testator, who had the right to choose the objects of his bounty, and to impose such conditions as he deemed wise or expedient to protect his benefactions, provided always that the conditions or limitations are not unlawful. It has already been determined that the trust created by the will of the testator in the present case was a valid exercise of testamentary power not only as a protection to one child but to each of the five children. No child could do what is now undertaken to be done by the representative of grandchildren. It is difficult to see how a grandchild, a more remote object of the testator’s bounty, should have higher rights than his children, who are the immediate beneficiaries. In all such cases the intention of the testator must necessarily be the guide to courts in the interpretation of testamentary provisions, and this intention will be allowed to prevail so long as the purpose to be served is a lawful one. In the present case the purpose for which the trust was created is lawful, and no policy, or rule Qf law, has been contravened by the disposition which the testator made of his property. The trustee has active duties to perform and the time has not yet arrived for a distribution of the corpus of the trust estate. The beneficiaries are entitled to receive, and will receive, their respective portions of the income during the existence of the trust, and we think this was the manifest intention of the testator. The bill for partition was prematurely filed and was properly dismissed.

Decree affirmed at cost of appellant.


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    Nixon’s Estate.

      Trusts and trustees — Resignation of trustee — Accounting.
    1. A trustee may relieve himself from the liabilities arising from a trust relation by submitting the administration of the trust to the jurisdiction of the court.
    2. Where an elderly trustee has acted as trustee for over twenty years, has filed an account, which has been duly audited, and the fund awarded to his two co-trustees, who are competent persons, such trustee has a right to withdraw from the trust, and his withdrawal cannot be objected to by certain of the cestuis que trustent on the ground that the withdrawing trustee is the president of a corporation whose stock is owned largely by the trust estate and by the trustee, that the trustee has the right to purchase the stock of the estate, and that there are pending for the consideration of the stockholders propositions either to liquidate the company or to sell all of its stock, or to sell most of its property.
    Argued Jan. 15, 1912.
    Appeal No. 275, Jan. T., 1911, by William H. Nixon, from decree of O. C. Phila. Co., July T., 1889, No. 127, dismissing petition for discharge of trustee in Estate of Martin Nixon, deceased.
    Before Brown, Mestrezat, Potter, Elkin and Moschziskeb, JJ.
    Reversed,.

      Petition for discharge as trustee.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was the decree dismissing the petition.

      Theodore F. Jenkins, for appellant.
    Every trustee may relieve himself from the liabilities of the office by submitting the administration of the trusts to the jurisdiction of the court: Gardiner v. Downes, 22 Beav. 395; Farshaw v. Higginson, 20 Beav. 485; Greble’s Estate, 9 Pa. D. R. 89; Malone’s Estate, 9 Pa. D. R. 115; Morrow’s Estate, 15 W. N. C. 240; Gartside v. Gartside, 113 Mo. 348; Nathan’s Estate, 191 Pa. 404.

      E. B. Martin, of McCully & Fawkes, for appellees,
    cited: Union Banking Co.’s Assigned Estate, 12 Phila. 214; Longstreth’s Estate, 12 Phila. 86; Myers v. Loveland, 10 Kulp 457; Wimmer’s App., 1 Whart. (Pa.) 96; Jones v. Stockett, 2 Bland (Md.) 409; Hanson v. Worthington, 12 Md. 418; Tilden v. Fiske, 4 Dem. Surr (N. Y.) 357.
    February 12, 1912:
   Opinion by

Mr. Justice Elkin,

By his will executed February 14, A. d. 1880, Martin Nixon, now deceased, appointed William H. Nixon, appellant here, one of his three executors. The testator died in 1888 and his estate was duly administered. The account of the executors filed in 1889 was confirmed absolutely and the balance shown to be in their hands was awarded to them as trustees under the will. From that time to the present the trust estate has been controlled and managed either by the original trustees or by their successors duly appointed. Appellant has served continuously in the trust relation from the time the estate was awarded to the trustees until the present. In 1911 the trustees filed their account with notice to the parties in interest that upon its confirmation appellant would apply for his discharge as trustee. The account was audited and the balance awarded to the two co-trustees of appellant to hold under the trusts of the will. In accordance with his notice of withdrawal appellant then filed his petition asking for a discharge. The co-trustees and all of the parties in interest except the two appellees, by consents in writing, filed of record, agreed to the discharge. Appellees object to the discharge on the ground that the business of the testator’s paper company has readied a critical period in that there are three propositions pending concerning it; one to liquidate, another to sell most of the property, still another to sell all the stock; and that appellant is president of the company, executor and trustee of the estate, pxivate owner of stock, and trustee of stock belonging to the estate, which he has the privilege of voting and buying, but which he does not yet own. For these reasons it is earnestly contended he should not be discharged. The learned court below took this view of the situation and in refusing to discharge him, entered the following decree: “The petition is dismissed, with leave to the petitioner to renew his application when the present negotiations have been concluded, or, if they fail, within a reasonable time.” The reason given for refusing to discharge the trustee was that the proper time had not arrived for him to retire. We cannot accept this view of the situation. Almost every objection made to his discharge is a reason why he should be discharged. If appellees were in court asking for his removal upon the grounds now insisted upon as reasons for preventing his discharge, they would in all probability prevail. His duties as a trustee and Ms interests as an individual may be at variance, indeed this is the inference to be drawn from the facts averred in the supplemental answer, and if so, it would seem to be to the common interest of all parties to have the trust relation terminated. The remaining trustees can then act solely and alone for the best interests of the trust estate without any complication in the performance of their duties by reason of being affiliated in its management with one having an adverse interest. But aside from all such considerations, appellant is clearly within his legal rights in asking for a discharge, and no sufficient reason has been given to warrant a refusal of his request. The general rule is that a trustee may relieve himself from the liabilities arising from a trust relation by submitting the administration of the trust to the jurisdiction of the court. In our State the right of a trustee to bé discharged is recognized by statutes which provide the method of procedure. Appellant has complied with the statutory requirements and has done everything that the law requires to be done antecedently to the asking of a discharge. There may be, and no doubt there are, cases in which a court would be justified in refusing a discharge, as where there has not been an accounting, or where the trustee on account of benefits, accruing to himself had undertaken to do certain things, or for other sufficient reasons, the time had not arrived for the termination of the trust relation. But we see nothing of this character in the present case.

There is nothing in this record to indicate that the remaining trustees are not fully competent to manage the trust estate, or that they are unwilling to do so. The trust estate will be as safe in their hands as it was in the hands of those who preceded them in its management. The argument that the cestuis que trustent will lose some advantage if the trustee be discharged is without merit. The discharge will in no way affect other proceedings said to be pending in which the attempt is being made to inquire into former adjudications relating to the trust estate. Whatever legal rights the parties have in those proceedings may be asserted without reference to what is done in the case at bar. Upon the record here presented appellant is entitled to Ms discharge as trustee and this is all we decide.

Decree reversed, petition reinstated, and record remitted for the purpose of having a decree entered in accordance with the views herein expressed. Costs of this appeal to be paid by appellees.


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    Henessey, Appellant v. Wabash Mills Company.

      Negligence — Master and servant — Night watchman — Unguarded hatchway — Safe place to worlc.

    In an action by a night watchman against his employer to recover damages for personal injuries resulting from falling down an unguarded hatchway at night, the case is for the jury, where the evidence, shows that plaintiff was injured on the second night of his employment; that the place where the accident occurred was in darkness, except for the light from a lantern on plaintiff’s arm; that the view of the open hatchway was obstructed by bundles of goods, and that according to plaintiff’s own evidence, although contradicted, his attention had not been called to the hatchway in question when he had been taken through the building at the beginning of his employment.
    Argued Jan. 15, 1912.
    Appeal, No. 182, Jan. T., 1911, by plaintiff from order of C. P. No. 3, Pbila. Co., Dec. T., 1907, No. 3713, refusing to take off non-suit in case of James Hennessey v. Wabash Mills Company.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Eeversed.
    Trespass to recover damages for personal injuries. Before Davis, J.
    The facts appear by the opinion of the Supreme Court.

      Error assigned was refusal to take off non-suit.

      G. Von Phul Jones, for appellant.
    A master is bound to use ordinary care to protect his servants from dangers which may be reasonably anticipated from open and unguarded hatchways or chutes: Johnson v. Bruner, 61 Pa. 58; Ferry v. Rapid Transit Co., 232 Pa. 403; Gilbert v. Elk Tanning Co., 221 Pa. 176; Clegg v. Seaboard Steel Casting Co., 34 Pa. Super. Ct. 63; Smith v. Oil City Tube Co., 183 Pa. 485.
    The duty of maintaining a safe place for plaintiff to work was an absolute obligation from which only performance would relieve the defendant, and the fact that the accident might have been caused by the negligence of a fellow servant is no defense: Gilbert v. Elk Tanning Co., 221 Pa. 176; Toward v. Meadow Lands Coal Co., 229 Pa. 553.
    By the Factory Act of May 2, 1905, P. L. 352, a statutory duty was imposed on defendant to keep this opening “enclosed, secured or guarded:” Wood v. Philadelphia, 46 Pa. Super. Ct. 573; Jones v. American Caramel Co., 225 Pa. 644; Bollinger v. Crystal Sand Co., 232 Pa. 636.

      F. B. Bracken of Loughlin & Bracken, for appellee.
    There was no evidence of negligence: Pawling v. Hoskins, 132 Pa. 617; Clough v. Hoffman, 132 Pa. 626; Kupp v. Rummel, 199 Pa. 90; B. & O. R. R. Co. v. Brown, 146 Fed. Repr. 24; Hoffman v. Clough, 124 Pa. 505.
    February 12, 1912:
   Opinion by

Mr. Justice Elkin,

This is an action to recover damages for personal injuries alleged to have been sustained by reason of the negligence of the defendant company. The negligence charged is that defendant maintained dangerous hatchways, used for the purpose of raising and lowering merchandise, and had permitted one of these hatchways on an upper floor to be left unguarded, unprotected and uncovered, as a result of which failure to properly guard, appellant in discharge of his duties as a night watchman and without notice of the dangerous situation, fell through the open hatchway to the floor below and sustained the injuries about which complaint is here made. In other words, appellant contends that he was not provided a reasonably safe place to work. At the conclusion of the testimony produced by the plaintiff tending to show negligence, defendant moved for a non-suit, which was granted by the learned trial judge on the ground that the evidence was not sufficient to charge the defendant with negligence within the meaning of the law. From the judgment so entered this appeal was taken. Appellee relies on Pawling v. Hoskins, 132 Pa. 617; Clough v. Hoffman, 132 Pa. 626; Kupp v. Rummel, 199 Pa. 90, and other cases and principles of like character to sustain the judgment of non-suit. Appellant contends that it was the duty of the appellee company to use ordinary care to protect its servants from dangers which should have been reasonably anticipated from open and unguarded hatchways, and that under the facts of the present case it was for the jury to say whether there had been a failure to perform this duty. To sustain this contention, Johnson v. Bruner, 61 Pa. 58; Bennett v. Plate Glass Co., 158 Pa. 120; Smith v. Oil City Tube Co., 183 Pa. 485; Gilbert v. Elk Tanning Co,, 221 Pa. 176 and Ferry v. Rapid Transit Co., 232 Pa. 403, are cited. The principle underlying each class of cases is sound but its application depends upon the facts. If appellant had been familiar with the premises and had known of the location of the hatchway, his right to recover to say the least would be very doubtful, but his own testimony is positive that he had no knowledge of a hatchway in the floor at the place where the accident occurred, and that he had not seen it during the short time he was employed as night watchman. The ' accident occurred in the night time of the second day of his employment and a view of the hatchway was to some extent obstructed by bundles of cotton and other materials piled near it. The place was in darkness, the only light furnished being that of a lantern carried on the arm of appellant. Under such circumstances nothing could , have been more dangerous than an open unguarded hatchway in the floor over which the watchman in the performance of his duties had to walk several times each night in total darkness except as his footsteps might be guided by the light of his lantern. It is argued for appellee that the testimony of the witness, Brooke Carl, shows appellant to have been familiar with the location of the hatchway in question, it having been pointed out to him the day before when he was taken through the building for the purpose of being familiarized with his duties. Appellant positively denies that he saw the hatchway at that time, or that it was pointed out to him by Carl, and the testimony of Carl leaves the question in doubt. But even if there was a variance in the testimony of these two witnesses as to the fact in dispute, it would still be a question for the jury. We cannot agree that this is a case where the employer is relieved from liability because a workman employed in other duties during the day left the hatchway open. If the testimony of appellant is believed, and his credibility is for the jury, he did not know that there was a hatchway on that floor, and had no notice of this hidden danger to put him on inquii’y. We are all of opinion that this case was for the jury.

Judgment reversed and a venire facias de novo awarded.